Excerpt: ...motion for leave to file an amended complaint (Plaintiff moves to file a "Second" Amended Complaint, but the record shows that no First Amended Complaint is on file) as follows: Defendant Brayan Perez properly objects that plaintiff failed to provide proper notice yet also responded substantively on the merits. A defendant who does not receive proper notice is in a difficult position. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267-1268 [dis...

Excerpt: ... As a preliminary matter, the First Amended Complaint (the "FAC") included a fourth cause of action for civil conspiracy in violation of the Court's order granting leave to amend. The cause of action was not included in the prior Complaint, and Gibbs was given leave to amend only to assert a personal claim for damages identified in the Complaint's first three causes of acton. (Aug. 22, 2023 Order.) While the fourth cause of action is therefore su...

Excerpt: ... Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1126.) First, the court determines whether plaintiff may bring the action and force the claimants to interplead. (ld. at pp. 1126-1127.) Second, if it is so determined, then the court discharges plaintiff and then determines the rights of the various claimants to the property deposited with the court. (ld. at p. 1127.) In this case, Plaintiff has not demonstrated that all Defendants have answered ...

Excerpt: ...bitration Provision) (RJN, Ex. A); (2) Costco Member Offer Program 4Q 2020 Incentive, Customer - Dealer Agreement and Pricing Sheet (Ex. B); and (3) 2020 Traverse FWD LS Vehicle Window Label ("Monroney Sticker") (Ex. C). (Evid. Code S 452, subd. (h).) None of the requested documents are referred to in the Complaint. (Contra RJN, p. 1:12-16 (citing to Complaint "1 14, 16, 48, 51, 53, 59, 61—62, 65, 71, 91, 109, 113).) The Court finds distinguish...

Excerpt: ..., and DENIES the request as to Exhibit 2. The court notes that the notice to the demurrer is not signed, plaintiff does not object and the court finds the error nonconsequential. Counsel though is reminded to make sure that all pleadings are signed. Legal Standard on Demurrer The purpose of a demurrer is to test the legal sufficiency of the facts alleged in the operative complaint to see whether they state a cause of action under any legal theory...

Excerpt: ...0 for an order compelling Plaintiff Swenberg to provide responsive documents to the Document Request Nos. 21, 22, 80, 88, 89, 100-103, 105, and 113-118 which were attached to Dmarcian's Second Amended Notice of Continued Deposition to Plaintiff. In particular, Dmarcian seeks the production of the following documents: First category: mitigation documents Relating to Agari: consulting agreement, invoices, records of payments, and any 1099 form from...

Excerpt: ... DISCOVERY PROCESS BY PLAINTIFFS OLE TRAVEL INC. AND OLE VENTURES INC. TENTATIVE RULING: The Motion of Plaintiffs Ole! Travel Inc. and Ole Ventures Inc. ("Plaintiffs") for Monetary Sanctions, Issue Sanctions, Evidentiary Sanctions, Terminating Sanctions and/or Contempt Sanctons against Defendant Timothy Alexander is DENIED WITHOUT PREJUDICE. Plaintiffs filed this Motion on March 5, 2023, which was originally set for hearing on September 11, 2023....

Excerpt: ..., and OVERRULED in part as to the general demurrer to the SAC as being barred by collateral estoppel, as follows. Defendant's Request for Judicial Notice is GRANTED pursuant to Cal. Evidence Code Section 452(d). Collateral Estoppel as to Entire SAC OVERRULED. Collateral estoppel applies when an issue determined in a prior adjudication is identical to that presented in a subsequent action, the prior adjudication resulted in a determination on the ...

Excerpt: ...il action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court finds both that the party has a substantial interest in the action as a whole, and that the health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. Section 35(a) "is mandatory and absolute in its applicaton in civil cases whenever the litigants are 70 years old." ...

Excerpt: ... Deborah Q. Ruddock by Defendants and Cross-complainants Thomas J. Gearing and Daniel K. Gearing (collectively, the "Gearings") on August 31, 2023. For the reasons set forth below, the motion to quash is granted. A. Deposition Not Warranted Code of Civil Procedure section 1987.1 permits a party to move for an order quashing a subpoena and authorizes the Court to enter appropriate protective orders. (Code of Civ. Proc., S 1987.1 subds. (a)—(b).)...

Excerpt: ... defenses. A party may demur to an answer on grounds of failure to state facts sufficient to constitute a defense. (CCP S 430.20.) The determination of whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) The allegations of the pleading demurred to must be regarded as true, but a demurrer...

Excerpt: ...On November 13, 2023, plaintiff applied ex parte for a temporary restraining order and order to show cause why a preliminary injunction should not issue. This Court granted plaintiff's ex parte application, and issued a temporary restraining order enjoining the termination of PG&E services to the premises and ordering that any previously terminated PG&E services be restored. The matter is now before the Court on an order to show cause why a preli...

Excerpt: ...Summary Judgment (MS]), filed August 24, 2023, which seeks summary judgment of all claims asserted against each of them in Plaintiff Liezel De Guzman's August 31, 2022 Second Amended Complaint (SAC), is GRANTED as to each of defendants RTR, MERS, and Boedeker. (Code Civ. Proc., S 437c.) Accordingly, the moving defendants' alternative Motion for Summary Adjudication (MSA) is DENIED AS MOOT. (Code Civ. Proc., S 437c.) Defendants' request for adjudi...

Excerpt: ...TING PARTY MUST NOTIFY DEPARTMENT FOUR AND ALL OTHER PARTIES BY 4:00 P.M. ON MONDAY, NOVEMBER 27, 2023. HOWEVER, THE HEARING ON THE MOTION IS CONTINUED TO DECEMBER 5, 2023 AT 2:00 P.M. FOR ARGUMENT. IF THE TENTATIVE IS NOT CONTESTED, IT WILL BE ADOPTED AT THE DECENBER 5, 2023 AT 2:00 P.M. HEARING. THERE WILL BE NO LAW AND MOTION HEARING ON NOVEMBER 28, 2023. PLAINTIFF PROVIDED NOTICE THAT HE IS CONTESTING. Plaintiff's Mohon to Compel Further Resp...

Excerpt: ...he court regardless of whether the arbitrator determines arbitrability. (Code of Civ-l Proc„ S 1281.2, subd. (a); Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961- 964.) To prove waiver, plaintiff must show (1) knowledge of an existing right to compel arbitration; and (2) intentional acts inconsistent with that existing right. (Hill v. Xerox Business Services, LLC (9th Cir. 2023) 59 F.4th 457, 468.) In taking into account the totality...

Excerpt: ...D. As a preliminary matter, the Notce of Application and Hearing incorrectly lists the address of the Court. Hearings for Department 4 are held at 800 North Humboldt Street in San Mateo, California 94401. On the merits, the unopposed application satisfies all procedural requirements, and its supporting declarations and documentary evidence are sufficient to find all the facts prerequisite to the issuance of a right to attach order and writ. First...

Excerpt: ...intiff's motion for approval of a settlement of claims brought pursuant to the Private Attorney General's Act (PAGA). On October 24, 2023, plaintiff's counsel submitted a renewed motion for an order approving the settlement, including supplemental declaration addressing the court's concerns. In ruling on settlements involving PAGA claims, this court has a duty to independently determine whether a settlement is fair, reasonable and adequate. (Moni...

Excerpt: ...ositions, and matters of which judicial notice shall or may be taken." Under Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, the party moving for summary judgment has the burden of production to make a prima facie showing that there is no triable issue of any material fact. The burden then shifts to the nonmoving party to make a prima facie showing that there is a triable issue of material fact. Here, there is no opposition; thus, the court ...

Excerpt: ...PTED AT THE DECEMBER 5, 2023 HEARING. Defendant Bren Farrell's Demurrer to the Second Amended Complaint ("SAC") is OVERRULED as to the first through sixth causes of action. (Code Civ. Proc. S 430.10, subd. (e), (f), (g).) Defendant's request for judicial notice of the Complaint, First Amended Complaint and Second Amended complaint is GRANTED, BUT NOT FOR THE TRUTH OF THE MATTERS ASSERTED THEREIN. Plaintiff's request to file a Notice of Errata to ...

Excerpt: ...RTIES BY 4:00 2M. ON MONDAY, NOVEMBER 27, 2023. HOWEVER, THE HEARING ON THE MOTION IS CONTINUED TO DECEMBER 5, 2023 AT 2:00 P.M. FOR ARGUMENT. IF THE TENTATIVE IS NOT CONTESTED, IT WILL BE ADOPTED AT THE DECENBER 5, 2023 AT 2:00 P.M. HEARING. THERE WILL BE NO LAW AND MOTION HEARING ON NOVEMBER 28, 2023. DEFENDANT PROVIDED NOTICE THAT SHE IS CONTESTING. For the reasons stated below, defendant Kathryn Castricone's demurrer, filed 10-13-23, which is...

Excerpt: ...is unlawful detainer Complaint is defective. The Complaint alleges that Defendants' tenancy is exempt from the Tenant Protection Act of 2019 ("Act") based on Civil Code section 1946.2(e)(8). Defendants argue that section 1946.2(e)(8) only applies to residential real property "that is alienable separate from the title to any other dwe ling unit." Since the notice includes "Unit #1" in the property address, Defendants contend that this reference to...

Excerpt: ... ADOPTED AT THE DECEMBER 5, 2023 HEARING. Defendant uber Technologies, Inc.'s ("Uber") Motion to Seal, filed 10-20-23, is GRANTED. (Cal. Rules of Court ["CRC"], Rules 2.550(d); 2.551). Uber's Motion seeks to seal the following two documents: • Unredacted Declaration of Matthew J. Michelsen in support of Motion to Enforce Settlement (lodged on 10-25-23); unredacted Memorandum of Points and Authorities in support of Motion to Enforce Settlement (...

Excerpt: ...ice of Appeal "fails to state a cause of action" against the Fields, and/or improperly names them as parties (real parties in interest) in this appeal. (Code Civ. Proc. Sect. 430.10(d), (e).) The function of a demurrer is to test whether, as a matter of law, the facts alleged in the complaint state a cause of achon under any legal theory. Intengan v. BAC Home Loans Servicing, LP (2013) 214 Cal.App.4th 1047, 1052. Code Civ. Proc. Sect. 389(a) stat...

Excerpt: ...to amend, as to the Special Demurrer to the First Cause of Acton ("COA") for Civil Rights Violations pursuant to Cal. Code of Civil Procedure Section 430.10(e). OVERRULED with respect to the general Demurrer to the Complaint and the remaining special demurrers. General Demurrer OVERRULED. Defendants argue that each cause of action in the Complaint must be dismissed pursuant to Heck v. Humphrey, (1994) 512 U.S. 477 ("Heck") because the claims impl...

Excerpt: ... Reply Request for Judicial Notice is DENIED because none of the requested matter is material to the Court's evaluation of Defendants' motion. l. ABO COMIX STANDING The motion is DENIED as to A. 8.0. for lack of standing. The cases cited by County do not support this motion. In the case of Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, the complaint alleged that the plaintiff organization was "formed and operating under the laws of Calif...

Excerpt: ... served form interrogatories, a first set of special interrogatories, and a first set of document requests on Plaintiff. (Defendant's Request for Judicial Notice ("RJN") Ex. C-1.) After some back and forth with Plaintiff's counsel, Defendant requested an Informal Discovery Conference ("IDC") before Commissioner Mau, which was held on June 5, 2023. (ld.) Plaintiff agreed to serve substantive supplemental discovery responses by June 13, 2023. (ld.)...

Excerpt: ...ed on October 16, 2020, after failing to heed the summons purportedly served on him. (Oct. 16, 2020 Request for Entry of Default; see Sep. 21, 2020 Proof of Service of Summons by Substituted Service.) More than two years later, Plaintiff Scottsdale Insurance Co. ("Scottsdale") requested a default judgment, and judgment was entered against McNulty in the amount of $433,448.73 on March 30, 2023. (Mar. 22, 2023 Request for court Judgment; Mar. 30, 2...

Excerpt: ...whether the proposed settlement satisfies CCP 5877.6. See Tech-Bilt v. Clyde & Associates, 38 Cal.3d 488 (1985) and Regan Roofing Co. v. Superior Court, 21 Cal.App.4th 1685 (1994). However, the Oppositions contain evidence indicating that the proposed settlement between the Plaintiffs and Sung defendants may qualify as a faith settlement if the record is further developed. Accordingly, the Motion is DENIED without prejudice to re-file in accordan...

Excerpt: ... 20, 2023, is ruled upon as set forth below. Chugh refers in its briefing to the Amended Cross-complaint as the "Second Amended Crosscomplaint, or "SAXC." This Order refers to it as the AXC. The AXC asserts seventeen (17) total causes of action, eight (8) of which are asserted against the Chugh Cross-Defendants. Chugh has demurred to all eight of these claims. The AXC identifies three Cross-complainants: (1) CPQ Solutions, LLC ("CPQ") (2) Christo...

Excerpt: ...ely "Plaintiffs") is ruled on as follows: Procedurally, Defendant has not established compliance with the meet and confer requirement under Code of Civil Procedure secton 430.41 regarding the Second Cause of Action. Defendant only shows that he met and conferred regarding the Third, Sixth and Seventh Causes of Acton. Nevertheless, since the Second and Third Causes of Action are both fraud claims, the Court proceeds to address the merits of the De...

Excerpt: ...ement of Non-oppositon as to the requested production, confirming that the parties have agreed to such production through participation in the Informal Discovery Conference process and subsequent meet and confers. Accordingly, the Court shall GRANT this Motion, subject to the conditions outlined below. Pupil and education records are protected from disclosure under federal and state law. Federal educational funds are withheld from any school dist...

Excerpt: ... (the "Settling Parties") have agreed upon material terms, as summarized: Rodda will pay Plaintiff a $250,000.00 settlement payment. In exchange, Plaintiff has agreed to provide Defendant/cross-complainant SC Builders with an issue release discharging all claims in connection with Rodda's work on the renovation project which is the subject of this litigation. Plaintiff and Rodda have agreed to fully discharge, waive, and release each other from a...

Excerpt: ...has indicated actual notice of the Opposition, it has been considered. The only argument it raises is that the Motion is untimely pursuant to Cal. Rules of Court, Rule 3.1702. Timeliness of Mohon A motion for attorney's fees up to and including the rendition of judgment must be served and filed within the time for filing a notice of appeal. Cal. Rules of Court, Rule 3.1702. In this case, that time is 60 days pursuant to Cal. Rules of Court, Rule ...

Excerpt: ...nt, and further leave to amend is not justified. Defendant shall prepare, circulate and submit a proposed Judgment. Defendant's Request for Judicial Notice is GRANTED\. "[T]he elements of an achon for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally conceale...

Excerpt: ...O DECEMBER 5, 2023 AT 2:00 P.M. FOR ARGUMENT. IF THE TENTATIVE IS NOT CONTESTED, IT WILL BE ADOPTED AT THE DECENBER 5, 2023 AT 2:00 P.M. HEARING. THERE WILL BE NO LAW AND MOTION HEARING ON NOVEMBER 28, 2023. Plaintiff's Moton to Compel Further Responses to Form Interrogatories, Set Two, is DENIED for the reasons set forth below. Plaintiff served Defendant Rosie Elena Rivera with his first set of form interrogatories, which included which Form Int...

Excerpt: ...uests for judicial notice are GRANTED, but not for the truth of the matters contained therein. The Court notes that Defendant filed a request for judicial notice that is over 800 pages long, but Defendant failed to "bookmark" the exhibits thereto. This is in violation of CRC Rule 3.1110(f)(4) and ü)cal Rule 3.3. Accordingly, the Court was left to scroll through 800 individual pages, which is abusive. Defendant is hereby warned that failure to co...

Excerpt: ...l in opposition to this Motion, but failed to file any application or moton to have these documents filed under seal. "A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record." (CRC Rule 2.551(b)(1).) "The moton or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing." (Ibid.) Accordingly, the documents are hereby ORDE...

Excerpt: ... Counsel exchanged emails on March 27, 2023 regarding the filing of the Cross-complaint and the need for Mr. Perdue to obtain joint representation waivers from Cross-Defendants. Sorba Decl„ "3-4. Counsel for Crosscomplainant followed up via email on April 3, 2023. Ibid. , 95. Cross-Defendant Fofoanga Club filed an Answer to the Cross Complaint through Mr. Perdue on April 17, 2023. Ibid. , 96. Cross-complainant's counsel sent an email on May 31,...

Excerpt: ... strike paragraphs 19 and 25 from the First Amended Complaint on the grounds that these paragraphs contain false matter under CCP S 436. However, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (CCP S 437.) The falsity of Plaintiff's allegations does not appear on the face of the FAC, and Defendants have not requested that the Court take judicial notice...

Excerpt: ...The Agreement was signed by Defendants Li and Xie. Defendant Xie failed to make the payment due on or before April 21, 2023 and failed to make the $25,CM payment due on or before May 21, 2023. (Flegel Decl., '1 4.) The parties' Agreement provides that, "The Superior Court of California for the State of California shall have jurisdiction to enforce this Agreement." (Flegel Decl., Ex. A, 5.) The Agreement also states that "If Xie fails to timely de...

Excerpt: ...Code SS 3439 et seq. For the reasons set forth below, Defendant's moton for summary judgment is DENIED. The facts relevant to the pending motion are as follows: according to Plaintiffs' First Amended Complaint ("FAC"), Defendant DBM Cloud Systems Inc. ("DBM") is a software development company that allegedly entered into 28 separate loan agreements with the Plaintiffs between December 20, 2016 and October 12, 2019, by which the Plaintiffs collecti...

Excerpt: ...vice of notice of entry of judgment, as required by California Rules of Court rule 3.1700(a)(1). The form Complaint asserts two causes of action for breach of contract and four common counts. (Dec. 14, 2022 Complaint, pp. 3—6.) Each of these six counts are merely pleadings of alternative legal theories to recover a single debt. The only discrepancy in the requested remedies is that attorney fees are requested only under the first cause of actio...

Excerpt: ...murrer should be sustained because Plaintiff failed to properly serve Defendant with the Second Amended Complaint. Defendant cites no authority for sustaining a demurrer on this ground though. Instead, this may be a valid ground for a motion to strike. (See Code of Civ. Proc. S 436(b).) Nevertheless, Plaintiff is cautioned to properly serve Defendant with any amended pleading in the future and to file a proof of service with the Court. Plaintiff'...

Excerpt: ...TIVE IS CONTESTED, THE CONTESTING PARTY MUST NOTIFY DEPARTMENT FOUR AND ALL OTHER PARTIES BY 4m P.M. ON MONDAY, NOVEMBER 6, 2023. HOWEVER, THE HEARING ON THE MOTION IS CONTINUED TO NOVEMBER 14, 2023 AT 2:00 P.M. FOR ARGUMENT. IF THE TENTATIVE IS NOT CONTESTED, IT WILL BE ADOPTED AT THE NOVEMBER 14, 2023 AT P.M. HEARING. THERE WILL BE NO LAW AND MOTION HEARING ON NOVEMBER 7, 2023. PLAINTIFF PROVIDED NOT CE THAT HE IS CONTESTING. The court denies p...

Excerpt: ...osition to an unlawful detainer summary judgment motion may be made in writing until the court day before the hearing, or orally at the time of hearing pursuant to California Rules of Court, rule 3.1351(b), (c). The parties shall APPEAR. According to the complaint, defendants agreed to rent the premises at 408 C Street, #2, South San Francisco, CA 94080 and they failed to pay rent but continue to hold over even after service of the three- day not...

Excerpt: ...ice of entry of order. Irene Lopez Perez ("Perez") moves here for leave to intervene in this matter regarding disputed title to a mobile home (the "Property") and file her proposed complaint in intervention. (See Oct. 4, 2023 Motion, pp. 9—27.) A. Legal Standard on Intervention A nonparty may petition a court for leave to intervene by filing a noticed motion that includes a copy of the pleading in intervention and sets forth the grounds on whic...

Excerpt: ... as follows: The court OVERRULES the demurrer on uncertainty grounds. Defendants raise this ground in their demurrer, but fail to discuss it in their brief. "The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced." (Cal. Rules of Court, rule 3.1113(b); Fenton v. Groveland Community Services ...

Excerpt: ... GRANTED as to Exhibits 5-6. (Evid. Code Sect. 452(c).) As to each of these documents, the Court takes judicial notce of their contents and the dates that they were filed and/or issued, but the Court does not take judicial notice of the truth of statements/allegatons in the documents. Plaintiff Li's 10-24-23 Reply brief was untimely filed, but the Court has considered it. Plaintiff's Reply brief was due 10-23-23. Plaintiff filed it on 10-24-23, o...

Excerpt: ...E failed to provide verified responses to Form Interrogatories that were served in July 2021. The Court granted Plaintiff Oakville Produce Partners' motion to compel verified responses and ordered Defendant Le to provide verified responses "within 14 days of service of this order" and to pay a monetary sanction of $1,185.00 "within 30 days service of this order." (Order, Dec. 8, 2022 (filed Dec. 9, 2022.) Plaintiff served Notice of Entry of Order...

Excerpt: ... COA for Breach of Contract Plaintiffs were given leave to amend the original Complaint as to the sustained demurrer to the Second Cause of Action for Fraud. See June 20, 2023 Order. The amendments to the First Cause of Action for Breach of Contract were not authorized by that order. Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authoriz...