Excerpt: ...contract, while the contract is between Financial Pacific and Plaintiff. This argument ignores the allegations of agency made in Paragraphs 4 and 7 of Plaintiff's Complaint. These allegations are sufficient for agency. CACI 3700 et seq.; 5 Witkin, Cal. Proc. 5th Plead §§ 919, 920 (5th ed. 2020). Further, the allegations are supported by the apparently uncontested fact that Plaintiff did sign a lease for the spray booth with the moving Defendant...

Excerpt: ...ULED on the ground that these claims are barred by the statute of limitations under Code of Civil Procedure section 338(d). Plaintiff alleges facts sufficient to support that these claims are not time barred based on the delayed discovery rule. Specifically, the allegations support both the time and manner of discovery, and Plaintiff's inability to have made discovery earlier than June 19, 2017, despite reasonable diligence. (See First Amended Co...

Excerpt: ...fendant Rajiv Agarwal seeks to quash the service of summons and set aside the entry of his default under CCP § 473(d) on the grounds that the summons was not properly served on him in compliance with CCP § 415.20. According to Defendant, Plaintiff did not properly effectuate substituted service in accordance with CCP § 415.20 because Defendant was not served at his “dwelling house, usual place of abode . . . or usual mailing address.” Defe...

Excerpt: ...e are multiple defendants named in this action, yet the Notice simply purports to seek summary adjudication on behalf of “all Defendants and Cross‐ Complainants” without ever identifying by name who these Defendants and CrossComplainants are. Additionally, Defendants' counsel fails to identify who they represent underneath the attorneys' names. The Memorandum of Points and Authorities also fails to identify by name which Defendants seek sum...

Excerpt: ...omplaint is GRANTED. Alternatively, Plaintiff's motion for summary adjudication of the first cause of action for breach of contract is GRANTED; Plaintiff's motion for summary adjudication of the second cause of action for account stated is GRANTED; Plaintiff's motion for summary adjudication of the third cause of action for money lent is GRANTED: and Plaintiff's motion for summary adjudication of the fourth cause of action for money had and recei...

Excerpt: .... Berquist Construction Co., (1994) 24 Cal.App.4th 1426, 1439‐1440. Service of process statutes are generally construed liberally, but there must be at least substantial compliance with the statutory requisites for service. Lebel v. Mai, (2012) 210 Cal.App.4th 1154, 1165. If a copy of the summons and of the complaint “cannot with reasonable diligence be personally delivered to the person to be served” … another type of substituted service...

Excerpt: ...tal condition at issue. She argues that before delving into similar injuries in her past, Defendant must first establish a nexus between the alleged injuries from her employment termination and those past injuries. (Mov. P&A at 5:21 – 6:13.) Plaintiff relies on the case of Tylo v. Superior Court (1997) 55 Cal. App. 4th 1379. The Tylo case is inapplicable. The Court in Tylo held that a defendant cannot launch a fishing expedition to find out if ...

Excerpt: ...n evidentiary hearing. Due process and notice of opportunity to be heard does not require a public evidentiary hearing. “In general, ‘something less' than a full evidentiary hearing is sufficient prior to adverse administrative action.” (Today's Fresh Start, Inc. v. Los Angeles Cty. Off. of Educ. (2013) 57 Cal. 4th 197, 228 [quoting Cleveland Bd. of Educ. v. Loudermill (1985) 470 U.S. 532, 545.) “The extent to which procedural due process...

Excerpt: ...tle, unjust enrichment, intentional infliction of emotional distress, forcible detainer, loss of consortium, conspiracy against civil rights, violation of civil rights, violation of RICO, and conspiracy to violate RICO against over 30 recently named Doe Defendants. According to Plaintiff, “The facts concerning the new defendants who were previously sued as Does require additional Causes of Action in addition to facts to supplement each cause of...

Excerpt: ... states that if a contract provides for attorney's fees incurred to enforce the contract to be awarded to one of the parties or to the prevailing party, the party who is determined to be the party prevailing shall be entitled to fees whether he or she is the party specified in the contract. Here, ¶40 of the lease provides for an award of reasonable attorney's fees to the prevailing party in an action arising out of the lease, except as provided ...

Excerpt: ...This action is STAYED pending the outcome of the parties' arbitration pursuant to Cal. Code of Civ. Proc. § 1281.4 and 9 U.S.C. § 3. There is a strong presumption in favor of arbitrability in California. Cione v. Foresters Equity Servs., Inc., 58 Cal. App. 4th 625, 642 (1997). A party may move to compel arbitration pursuant to Code of Civ. Proc. Section 1281.2, which states, in relevant part: On petition of a party to an arbitration agreement a...

Excerpt: ...STAINED WITHOUT LEAVE TO AMEND; the demurrer to the seventh cross‐cause of action for violation of Business & Professions Code Section 17200 for “unlawful” or fraudulent acts or practices is SUSTAINED WITHOUT LEAVE TO AMEND; and the demurrer to the eleventh cross‐cause of action for “injunctive relief” is SUSTAINED but with leave to amend only to add a request for injunctive relief as a remedy to an appropriate and viable cause of act...

Excerpt: ...As an initial matter, the Court did not consider the Defendants' late‐filed reply. (1) The Demurrer to the Fourth, Fifth, and Sixth Causes of Action based on the court having no jurisdiction of the subject of the cause of action is OVERRULED. Defendants make no argument as to this ground for demurrer. (2) The Demurrer to the Fourth Cause of Action for Concealment based on a failure to state a claim is OVERRULED as to Defendant Hanna DDS, Inc., ...

Excerpt: ...urt has previously denied this motion for failure to hold an Informal Discovery Conference. TD Bank has refiled the motion arguing that this Court cannot require an Informal Discovery Conference when there is no response to requests for admissions. TD Bank is incorrect. TD Bank made this argument before the Hon. Danny Chou in another case, TD Bank USA, N.A. v. Arnold, 18Civ06667 involving the same law firm as in this case, which motion was joined...

Excerpt: ... examination. Vinson v. Superior Court (1987) 43 Cal.3d 833. Plaintiff has failed to show that the specific psychological tests that the examiners propose are unnecessary, and Plaintiff has not shown that the time or scope that the examiners propose is unreasonable. (2) Pursuant to Code of Civ. Procedure § 2032.320(d) the Court orders as follows: (a) Howard Friedman, PhD, ABPP is to perform the first portion of the examination. Charles Saldanha,...

Excerpt: ...or punitive damages requires a showing that the accused party is guilty of “oppression, fraud, or malice.” Civ. Code 3294. Here, the SAXC seeks punitive damages based on the asserted Fifth Cause of Action for “fraud by intentional misrepresentation.” CrossComplainants McNally and Lombardi also argue De Bibo's alleged conduct/actions constitutes “malice” under Sect. 3294. The Court finds that the SAXC fails to allege facts supporting t...

Excerpt: ...ed by petitioner, (2) grounds exist to rescind the arbitration agreement, or (3) one of the parties is also party to a pending court action with a third party. (Code of Civ. Proc. § 1281.2.) The parties do not dispute the existence of the arbitration provision. The only issue is whether Defendant LALLY waived his right to arbitration. Contractual arbitration rights are subject to waiver, and waiver may be expressed or implied from the parties' c...

Excerpt: ... of the LWDA Notice submitted on July 9, 2020. (See Eubank v. Terminix Int'l, Inc. (S.D. Cal., May 15, 2018, No. 15‐CV‐0145‐WQH‐ JMA) 2018 WL 2215288, at *4 ‐ *5 (“The Court concludes that the terms of the Settlement are not ‘reasonable in light of PAGA's policies and purposes' because the Settlement releases claims for violations of § 2802 and Eubank has not been authorized to commence a PAGA action for violations of § 2802” wh...

Excerpt: ...'s Demurrer to Cross‐Complainants McNally and Lombardi's 6‐3‐21 Second Amended CrossComplaint (SAXC) is SUSTAINED WITH LEAVE TO AMEND. Code Civ. Proc. Sect. 431.10(e). A party alleging fraud by intentional misrepresentation must show that the accused party's misrepresentation of fact was a “substantial factor” in causing the asserting party's alleged harm/damage. See CACI 1900. A claim for negligent misrepresentation requires the same s...

Excerpt: ... willful despoliation of evidence. Plaintiff seeks terminating sanctions on the grounds that Defendant deliberately deleted evidence of phone calls between Plaintiff and Nordstrom. According to Plaintiff, “Defendant's acts are premediated and not simply negligent in preserving documents related to this case.” (MPA, p.5). Alternatively, Defendant seeks to permit the trier of fact an adverse inference as a result of the alleged spoliation. (Id....

Excerpt: ...art: In this motion, Petitioners have not satisfied any of the requirements to obtain a new trial or vacate the judgment. Petitioners have provided no evidence in support of their fraud claims. In any case, however, they have provided no persuasive argument or pertinent authority indicating that the judgment was issued based on an incorrect or erroneous legal conclusion. Code Civ. Proc. § 663; Shapiro v. Prudential Property & Casualty Co., 52 Ca...

Excerpt: ...ns though implicate Plaintiff's and third parties' privacy rights. The Court must balance the right of privacy against the need for discovery. Williams v. Superior Court (2017) 3 Cal. 5th 531, 552. As our Supreme Court explained: The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, § 1.) Protection of informational privacy is the provision's central concern. (Hill v. National Collegiate Athletic Assn. (1...

Excerpt: ...ng this time of the COVID 19 pandemic, “that the integrity of the judicial process requires … [the Court] to subject every motion to review before granting it.” California Judge's Benchbook: Civil Proceedings Before Trial § 6.21 (Thomson Reuters 2021). Therefore, the Court has substantively reviewed Defendant's demurrer even though there is no opposition. Defendant's Request for Judicial Notice is GRANTED “that the San Mateo Medical Cent...

Excerpt: ...th below. Interrogatories Nos. 5 & 6 Plaintiff's Interrogatories Nos. 5 and 6 ask GM to identify individuals who communicated with any of GM's authorized dealerships concerning Plaintiff or Plaintiff's vehicle. GM responds that it is not currently aware of any communications between any GM‐authorized dealer and GM relating to Plaintiff or Plaintiff's vehicle prior to this lawsuit being filed. GM also states that it referred Plaintiff to the doc...

Excerpt: ...to all four causes of action in the Complaint based on failure to state facts sufficient to support them. On its own motion, the Court takes judicial notice of the Complaint in this action. (See Evid. Code § 455.) The Complaint attaches both Geico's umbrella policy (“policy”) and the Complaint in the underlying action in Gina Lerona v. Lillian Christian, et al., San Mateo Superior Court Case no. 19CIV06066 (hereafter “underlying action”)...