Excerpt: ...OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Defendant City of Millbrae's (City) Motion for Summary Judgment or, in the Alternative, Summary Adjudication (Motion) came for hearing before this Court on February 9, 2023 at 2:00 p.m. All parties appeared through their counsel. Having considered all papers filed in support of and in opposition to the Motion, oral arguments of the parties, any testimony and evidence presented at the hearing, and all o...

Excerpt: ...positions of Golden Gate Produce Terminal Ltd.'s Board of Directors Peter Carcione, Stephen Hurwitz, and Joseph Carcione, Jr (Motion) is DENIED. Plaintiff's request for sanctions is DENIED. Plaintiff contends “apex” depositions of three members of Plaintiff's Board of Directors are improper because Defendant has not made the showing required by Liberty Mutual Ins. Co. v. Superior Court (Frysinger) (1992) 10 Cal.App.4th 1282, 1287-1288 (Libert...

Excerpt: ...61 Cal.4th 435, 441; Health and Safety Code § 50003(a). The First Amended Petition alleges facts demonstrating the City's efforts to mitigate the housing crisis in its city. As has become increasingly frequent, solutions to solving the housing crisis comes into potential conflict with policies protecting the environment. In 1970, the California Legislature enacted the California Environmental Quality Act (CEQA), Public Resources Code § 21000 et...

Excerpt: ...efects from their prior motion, which the Court had denied on June 15, 2022. The present motion explains the new facts that rise the request to add Rona Maskan as a defendant and that the facts were discovered in April 2021. The present motion also includes the proposed pleading and an explanation of the new allegations. Plaintiffs promptly filed a 4th Amended Complaint on April 26, 2021. A. Plaintiffs Did not Act with Reasonable Diligence As to ...

Excerpt: ...eave to amend as to D & B. (Id. at 2:23-6:8.) As to Netwise, plaintiff pleads that its founder and CEO Dwight Gorall sexually assaulted and harassed her at a business event put on by plaintiff and her employer LiveRamp, Inc. (Cmplt. 3:6-4:9.) Civil Code 51.9 (sexual harassment): Plaintiff pleads that she helped host the LiveRamp "executive dinner for its clients and business partners" such as Gorall's Netwise at which Gorall groped and otherwise ...

Excerpt: ... pages 3 and 4, paragraphs 19, 21, 26‐29, 31, 34, 35, and items 4 and 7 of the Prayer for Relief in the SAC. Defendants maintain that these portions of the pleading are irrelevant and false. To the extent the Motion relies on the request for judicial notice, it is not well taken. If the documents were accepted as judicially noticeable, to the extent Defendants contest the factual allegations of the pleading it is an evidentiary matter that does...

Excerpt: ...ries, request for admissions, request for production of documents, and form interrogatory 17.1. DFS GREEN argues that the discovery requests exceed the scope of permissible discovery because they exceed the limitations of GALICHA's PAGA Notice and partially pertain to claims outside of the one‐year limitations period that applies to GALICHA's personal claims. The arguments are unpersuasive. 1. The Statute of Limitations Does not Preclude Discov...

Excerpt: ...e Defendant ARE's 11‐3‐22 Request for Judicial Notice (Lease) is GRANTED, to the extent stated below. Evid. Code Sect. 452(d), (h). Incelldx's Opposition brief argues that as Plaintiff, Incelldx was not obligated to attached the Lease to the Complaint in order to state a cause of action for breach of contract. True or not, that is a separate issue from whether Defendant may properly seek judicial notice of the Lease to support its Demurrer. H...

Excerpt: ...rted by an otherwise sufficient claim or defense.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group June 2020) § 7:178 (Weil & Brown).) Defendant moves to strike: (1) introductory allegations about the results of surveys on the prevalence of security deposit withholding in California (see Compl., ¶¶ 1‐6) and (2) the punitive damage allegations (see id., ¶¶ 6, 80, 100, 109, 113 & p. 22). As explained below, the M...

Excerpt: ...dale Shopping Center (Hillsdale) (collectively, Defendants) is GRANTED. A. Facts Plaintiff Abigail Masic‐Maharaj, a toddler, approached the escalator unaccompanied by an adult. (Statement of Undisputed Facts (SUF), ¶ 1.) Plaintiff fell on the escalator while unaccompanied by an adult. (Id., ¶ 2.) “Immediately after the incident, the escalator was shut down and inspected.” (Id., ¶ 3.) The inspection revealed “[n]o defects or operational...

Excerpt: ...d confer requirement imposed by Code of Civil Procedure section 430.41, subdivision (a). Plaintiff's meet and confer declaration simply states that “On October 25, 2022, I attempted to meet and confer with Craig Smith, counsel for Cross‐Complainant, regarding a demurrer to the First Amended Cross‐Complaint in this matter. I sent via email the letter attached hereto as ‘Exhibit A' and invited Mr. Smith to have a telephone conference regard...

Excerpt: ...i (collectively, Plaintiffs) concede that the causes of action in their Amended Complaint “are less than well pled.” (Opp., at p. 1.) Instead of opposing the Demurrer on the merits, they attach a Proposed Second Amended Complaint (Proposed SAC) as evidence that leave to amend should be granted. (See Opp., ex. A.) Although the Proposed SAC does not cure all the defects identified by Defendants, the Court cannot conclude that there is no reason...

Excerpt: ...abandoned, and that claim for relief is DISMISSED. A plaintiff may move for summary judgment in an action if it is contended that there is no defense to the action or proceeding. (Code of Civ. Proc. 437c, subd. (a)(1). A Plaintiff meets its moving burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (Id. sect. 437c, subd...

Excerpt: ...t repeats its tentative from the September 20 and November 1, 2022 hearing: The Hon. Nancy L. Fineman discloses that she received via regular mail a letter dated August 19, 2022 from Defendant to the Commission on Judicial Performance, which was not served on Plaintiff. The referenced attachments were not enclosed. The special motion to strike, filed by Cross‐defendant Portfolio Recovery Associates, LLC, is GRANTED as to the entire cross‐comp...

Excerpt: ..., Garcia et al. v. Citibank N.A., San Diego Superior Court Case No. 37‐ 2022‐00005196 (“San Diego case”, and Monasterio v. Citibank, N.A., San Mateo Superior Court Case No. 20Civ03650 (“San Mateo case”) should be coordinated pursuant to Code of Civil Procedure section 404 et seq. As a preliminary matter, the Court finds that the actions are complex. They are both wage‐andhour PAGA (Private Attorney General Action) cases. When simila...

Excerpt: ... privacy is the provision's central concern. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Id. at pp. 35–37.) The party seeking inf...

Excerpt: ...sed on: (1) an open book, (2) an account stated, (3) goods sold and delivered, and (4) an account extended. However, Plaintiff's memorandum of points and authorities in support of the motion attempts to demonstrate that Plaintiff has established claims for (1) an open book, and (2) an account stated. (MPA, p.5‐7; see also Proposed Judgment) Accordingly, because Plaintiff has addressed only two of its claims, Plaintiff has not demonstrated it is...

Excerpt: ...ty Center, Redwood City. As to the merits, by this motion, Defendant moves for relief from its default on primarily equitable grounds. A court has inherent equitable authority to vacate a default at any time for extrinsic fraud or mistake, even when statutory relief is unavailable. (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 910.) A defendant seeking relief from its default must show generally al...

Excerpt: ...ining objections are OVERRULED. A party may move for summary adjudication of as to one or more claims of damages if the party contends that there is no merit to the claim. Cal. Code of Civ. Proc. §437c(f)(1). A defendant has met his or her burden on summary judgment of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established. Cal. Code of Civ. Proc. §437c(p). Once...

Excerpt: ...roc. Sect. 438. Legal standard for MJOP. The grounds for an MJOP must appear on the face of the challenged pleading or be based on facts the court may judicially notice. Code Civ. Proc. Sect. 438(d); Tung v. Chicago Title Co. (2021) 63 Cal.App.5th 734, 758‐759. An MJOP assumes that all facts pleaded in the complaint are true, no matter how improbable. Serrano v. Priest (1971) 5 Cal.3d 584, 591; CrossTalk Productions, Inc. v. Jacobson (1998) 65 ...

Excerpt: ... and Second Cause of Action for Negligent Misrepresentation is OVERRULED on the ground that these claims are preempted by the Railway Labor Act (“RLA”) because they arise under or require interpretation of the collective bargaining agreement (“CBA”) between United and Defendant Association of Flight Attendants‐CWA, AFL‐CIO (“AFA”). The Court previously overruled United's Demurrer on this same ground as to the First Amended Complai...

Excerpt: ...3rd COA for Fraud or Non‐Disclosure; 4th COA for Fraud – Intentional Misrepresentation; 5th COA for Fraud – Negligent Misrepresentation As in the case of Defendant Snowflake's Demurrer, these fraud causes of action do not state a claim for relief. Taking Plaintiff's allegations as true that Defendants had decided to hold an IPO, knew that the IPO would increase the price per share, and withheld the information from Plaintiff in order to ind...

Excerpt: ...The Gearings move to compel further responses to the 104 requests for production (RFPs) contained in Defendant Thomas Gearing's Request for Production of Documents, Sets One and Two (Thomas Gearing Set One and Set Two), and Defendant Daniel Gearing's Request for Production of Documents, Set One (Daniel Gearing Set One). The Gearings served the sets of RFPs on Plaintiff and Cross‐Defendant City of Half Moon Bay (City) on April 26 and May 24, 202...

Excerpt: ... Association's Demurrer to Plaintiff's Complaint—which is incorporated herein—the MJOP is DENIED as to Plaintiff Brian Peagler's first cause of action under the Unruh Act but GRANTED WITH LEAVE TO AMEND as to his remaining causes of action. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the Individual Defendants shall prepare a written order consistent with the Court's ruling for the Co...

Excerpt: ...Standard On a demurrer, the Court must “assume the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of co...

Excerpt: ...he First Amended Complaint on or before February 10, 2023. Defendant Peninsula Corridor Joint Powers Board demurs to Plaintiffs' First Amended Complaint on the grounds that the first, second, and fourth causes of action, which allege negligence against Defendant, “are fatally divergent from the tort claims they submitted to Defendants.” According to Defendant, “Plaintiffs' FAC completely altered the factual landscape vis‐a‐vis PCJPB. Th...

Excerpt: ... Sect. 430.10(e). First Cause of Action (“Violation of Due Process: 42 U.S.C. 1983”) As to First Cause of Action alleging a “Violation of Due Process: 42 U.S.C. Sect. 1983,” the Demurrer is SUSTAINED. Code Civ. Proc. Sect. 430.10(e). First, Plaintiff's Opposition does not appear to meaningfully address this cause of action, or respond to Defendants' contention that the claim is time‐barred. Instead, the Opposition appears to focus solel...

Excerpt: ...asons set forth below. As a preliminary matter, the exhibits filed in support of this motion fail to comply with California Rules of Court rule 3.1110(f)(4). All future exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit. Failure to properly bookmark exhibits may result in rejection of the filing or continuance ...

Excerpt: ...s of fraudulent concealment with sufficient specificity and therefore may not recover punitive damages. According to Defendant, “As outlined in AHM's demurrer (filed concurrently with this motion to strike), the fraudulent concealment claim is barred for a myriad of reasons, including that AHM did not owe a duty of disclosure as a matter of law and the claim is barred by the Economic Loss Doctrine.” MPA, p.3. Defendant asserts that “Because...

Excerpt: ... defective because none of the supporting medical/hospital records or the depositions transcripts is properly cited. Dr. Kao's Separate Statement, and the 10‐21‐22 Declaration of Dr. Marcus, both repeatedly cite to decedent's medical records, and to portions of deposition transcripts. (See Exhibits to the 10‐21‐22 Kanter Declaration). But none of the medical records or transcripts is properly cited. Code Civ. Proc. Sect. 437c(b)(1) (the S...

Excerpt: ...ction for fraudulent concealment on the grounds that Defendant did not have a duty to disclose material facts relating to the alleged sensing defect. According to Defendant, it did not have a duty of disclosure because it did not have exclusive knowledge of the alleged defect and because there was no direct transaction between the parties. A failure to disclose can constitute actionable fraud in four circumstances: (1) when the defendant is in a ...

Excerpt: ...e First Cause of Action for Intentional Misrepresentation, Second Cause of Action for Negligent Misrepresentation, Third Cause of Action for Interference with Economic Advantage and Opportunity, and Fourth Cause of Action for Intentional Interference with Contractual Relationship is OVERRULED on the ground that the collective bargaining agreement (“CBA”) between Defendant and United Airlines, Inc. (“United”) governs these claims such that...

Excerpt: ... or by telephone due to delays caused by injuries to Plaintiff's counsel. The Court, in its discretion, has opted to reach the merits of the Demurrer. Basis for Defense on Face of Pleading Defendant argues that Plaintiff's statements in Plaintiff's March 2, 2021 letter, attached as Exh. B to the First Amended Complaint, that his Senior Inspector position was temporary, create a bar to recovery because they contradict the allegations that Plaintif...

Excerpt: ...ment is denied because the Motion addresses only the open book account claim, even though Plaintiff alleges other common count claims in the Complaint. Therefore, Plaintiff has not met its initial burden of establishing that it is entitled to summary judgment. 2. Summary Adjudication Summary adjudication of Plaintiff's open book account claim is denied without prejudice because Plaintiff has not met its initial burden establishing that Defendant ...

Excerpt: ... set forth in Code of Civil Procedure section 366.2. According to Defendant, “[b]ecause this action is based ‘on a liability of the decedent', i.e. Andrew Goldstein, C.C.P. section 366.2 was triggered upon Andrew's death. HSBC had one year from Andrew's death to bring its action and HSBC alleged that Andrew died on November 18, 2014. (FAC, ¶18.) The action is therefore barred by C.C.P. section 366.2.” The Court of Appeal, however, already ...

Excerpt: ...D IN PART and SUSTAINED IN PART WITH LEAVE TO AMEND. Defendants' Evidentiary Objections are OVERRULED. Defendants' Request for Judicial Notice (RFJN) of the Facebook Memorial Page is DENIED. The RFJN is GRANTED in all other respects. 1. Legal Standard On a demurrer, the Court must “assume the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of ...

Excerpt: ...et forth below. Pizziconi shall fill an amended complaint no later than ten (10) days after service of notice of entry of this order. California Rule of Court 3.1320(g); Code of Civil Procedure § 472b. Bylkylov's Request for Judicial Notice is GRANTED. By this Demurrer, Bylkylov demurs to Pizziconi's Second Amended Complaint (the “SAC”) on the basis that the complaint as a whole and the second through fifth causes of action therein fail to s...

Excerpt: ... are minor. For instance, Plaintiffs violated California Rule of Court 3.1350(b). Others are more substantial and have hindered the Court in reviewing the motion. For example, both parties violated California Rules of Court 3.1350(d)(3) by, at times, by failing to cite to specific pages. Plaintiffs also incorporate by reference facts set forth in their motion to class certification without specifying all specific pages. Plaintiff provide hyperlin...

Excerpt: ...man”), Gail Suzanne Marie Teymourian, and2700 Middlefield Road LLC (collectively “Plaintiffs”) is DENIED. Procedurally, the Court notes that Plaintiffs' memorandum filed in support of the ex parte application and OSC is in excess of the fifteen‐page limit. (See Cal. Rules of Court Rule 3.1113(d).) Therefore, Plaintiffs are cautioned to comply with the page limit requirement in the future, or else the Court may not consider the entirety of...

Excerpt: ... 2022 on the grounds of excusable neglect under CCP § 473(b). According to Mr. Bulaya, who is doing business as KJ Millworks, he did not file a timely response to the Complaint “due to the fact that he was unfamiliar with the United States legal system and he was also in an emotional state which was affected by the recent death of his father‐in‐law.” MPA, p.4. Defendants' motion is procedurally defective. Defendants have not attached a p...

Excerpt: ...ts' 10‐17‐22 Demurrer to Plaintiff Samantha Ai's 8‐30‐ 22 Complaint is SUSTAINED‐IN‐PART and OVERRULED‐IN‐PART, as set forth below. The Demurrer to the Second Cause of Action (breach of contract) is SUSTAINED with leave to amend, for the following reasons. First, the Complaint does not allege/identify whether Plaintiff's alleged 2017 contract with Shoreline Education, Inc. was oral or written. See Code Civ. Proc. Sect. 430.10(g). ...

Excerpt: ...cuments as Subject to Privilege (collectively, Motions) are DENIED as to document nos. 1 and 7‐11 on Defendant Nordstrom, Inc's Second Revised Supplemental Privilege Log (Privilege Log). The parties are ORDERED to appear to discuss document nos. 2‐6 on the Privilege Log. “The attorney‐client privilege, set forth at Evidence Code section 954, confers a privilege on the client ‘to refuse to disclose, and to prevent another from disclosing...

Excerpt: ...aving reviewed Plaintiff's Seventh and Eighth Amended Complaints and the discovery at issue, the Court finds that the Declarations in Support of Additional Discovery for Defendant's Request for Admissions (Set Three) and Special Interrogatories (Set Three) satisfy the requirements of Code of Civil Procedure sections 2033.050 (request for admissions) and 2030.050 (interrogatories). Specifically, Defendant Nordstrom, Inc. has met its burden of show...

Excerpt: ... that under the facts of this case, Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 367 requires a stay of this proceeding because if Defendant is successful in Guichang Tian v. Microcredit Loan Fund, San Mateo Case No. 21Civ06731, Plaintiff will not have standing to prosecute this case. Plaintiff attempts to distinguish the case from this proceeding, pointing to the fact that the defendant in that case claimed title for himself while Defendants c...

Excerpt: ...rounds on which Defendant brings his motion, must be made “within a reasonable time, in no case exceeding six months” after judgment is entered. (Code of Civ. Proc. § 473(b).) Judgment for possession and judgment for damages were entered on December 19, 2014, and June 10, 2015, respectively. Defendant filed this motion November 22, 2022, more than six months after entry of both judgments. Further, Defendant's having filed a Motion to Tax Cos...

Excerpt: ...on as required for contract and business interference and failed to alleged an independently wrongful act as required for intentional and negligent interference with prospective economic relations. Order Sustaining Demurrer to Second Amended Complaint filed August 30, 2022. Plaintiffs have filed the Third Amended Complaint adding a cause of action for negligent misrepresentation and additional facts based, inter alia, on deposition testimony of D...

Excerpt: ...Allegations re Antitrust Plaintiff seeks to strike the portions of Defendant's FACC alleging that Defendant engaged in antitrust activity on the grounds that Defendant has not asserted an antitrust claim. Defendant responds that “The details of the alleged or believed antitrust constitute the factual pleading elements of her claims under the first, and second causes of action.” Opp., p.4. While Defendant has not alleged an antitrust claim, De...

Excerpt: ...reasons set forth below. 1st COA – Whistleblower Retaliation Plaintiff contends that Defendant cannot establish a claim for whistleblower retaliation in violation of Labor Code § 1102.5 because Defendant fails to allege facts establishing that she was subjected to an “adverse employment action.” In response, Defendant points to the allegation, at Paragraph 110 of the FACC, that “her prospective deals were not approved, she was denied the...

Excerpt: ...Court Case no. C19‐02458 filed November 26, 2019, and (2) a probate action titled In the Matter of the Estate of Raymundo Guzman Sr., San Mateo Superior Court Case no. 19‐PRO‐01521 filed December 9, 2019. Plaintiff brings this Motion pursuant to Code of Civil Procedure section 403 and Cal. Rules of Court Rule 3.500, contending that these actions share common questions of law and fact and that their coordination will promote the ends of just...

Excerpt: ... in the First Amended Complaint by Plaintiff Mary Helena Celine Joseph, individually and as successorin‐interest to Gryselda Joseph (“Plaintiff”), is SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim. The elements of a claim for negligent entrustment of a motor vehicle are: (1) that the driver was negligent in operating the vehicle; (2) that the defendant owned the vehicle or had possession of t...

Excerpt: ...e Civ. Proc. Sect. 430.10(e). Defendants' 11‐1‐22 unopposed Request for Judicial Notice is GRANTED. Evid. Code Sect. 452(d). As to court‐filed documents, the court takes judicial notice of their contents and filing dates, but does not take judicial notice of the truth of statements/allegations therein. The Court notes that after this Demurrer was filed, Plaintiff dismissed all named defendants except for demurring party Walgreen Co. (12‐2...

Excerpt: ... Civil Procedure section 2030.290, subdivision (c) authorizes a court to impose various sanctions prescribed under Code of Civil Procedure sections 2023.010 and 2023.030 on a party who fails to obey a court order compelling responses to interrogatories. (Code of Civ. Proc., § 2030.290, subd. (c) [all further references are to the Code of Civ. Proc. unless designated otherwise].) Section 2031.300, subdivision (c) authorizes the same with respect ...

Excerpt: ...‐Defendants' Request for Judicial Notice is GRANTED pursuant to Evidence Code section 452. As a threshold matter, it does not appear that Cross‐Defendants met and conferred with Defendant and CrossComplainant James Walsh as required by Code of Civil Procedure section 439, subdivision (a). Although CrossDefendants bring the MJOP under both the common law and Code of Civil Procedure section 438, the availability of a non‐statutory motion for ...

Excerpt: ...d Mary Altube's Motion to Compel Responses to Written Discovery (Requests for Production of Documents (Set One), Requests for Admissions (Set One), Special Interrogatories (Set One), and Form interrogatories (Set One), served on or about May 12, 2022), to Deem the Truth of Any Matters Specified in the Requests for Admissions Admitted, and for Sanctions (Motion) is GRANTED pursuant to Code of Civil Procedure sections 2030.290, 2031.300, subdivisio...

Excerpt: ...the amount of fees requested; and the Court finds the fee request to be inflated. Sahlbach repeatedly and successfully contested service of process by multiple motions to quash. No SLAPP motion to strike or other motion as to the pleadings was called for prior to the time that the Court granted the Plaintiff's request for service by publication, and publication was conducted. The only SLAPP motion was filed in April 19, 2022. The moving paper con...

Excerpt: ...action for conversion in the Second Amended Complaint, by Annie and Jeannie Hung, on the basis of Statute of Frauds is SUSTAINED WITHOUT LEAVE TO AMEND. This claim is based upon an alleged oral contract to either loan or provide as an investment the down payment on the house – which funds were given by Plaintiffs to Defendant voluntarily. Either way, such an agreement regarding real estate must be in writing, pursuant to civil Code sections 109...

Excerpt: ... for hearing of the motion is less than 30 days before the date of trial – January 11, 2023 – and Plaintiff has not sought or obtained a determination that there is good cause to hear the motion less than 30 days before trial. Accordingly, Plaintiff's motion is procedurally defective under Code of Civil Procedure § 473c. Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268. Defendant seeks sanctions based on Plaintiff's failure to withdraw th...

Excerpt: ...rd Amended Complaint (“TAC”). Plaintiff filed the amended complaints in response to demurrers and motions to strike filed by Defendants before the Court could rule on any of the motions. Finally the demurrers came before this Court for ruling and on November 1, 2022, the Court issued tentative rulings for Defendants Laikun Lei and Kei Leung's demurrer and motion to strike the Third Amended Complaint (“TAC”). The Court granted the joinders...

Excerpt: ...Notice (filed in support of DMARC Advisor's 4‐19‐22 Demurrer to Plaintiff's Complaint). CRC 2.550 states that “a court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prej...

Excerpt: ... Sect. 452(d)); GRANTED as to Exhibits C, D, E, and F (Evid. Code Sect. 452(f) and (h)); and DENIED as to Exhibits G and H. Plaintiff's 11‐29‐22 Request for Judicial Notice is GRANTED. Evid. Code Sect. 452(d). DMARC Advisor B.V.'s 12‐5‐22 Request for Judicial Notice is GRANTED. Evid. Code Sect. 452(f) and (h). The Demurrer to the Fourth Cause of Action (fraud by concealment) is OVERRULED. Code Civ. Proc. Sect. 430.10(e). DMARC Advisor cor...

Excerpt: ...(b); Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504. The moving parties seek a court order bifurcating and ordering separate trials of the Second Amended Complaint (SAC) and the Second Amended Cross‐Complaint (SACC). Having reviewed the parties' briefing and exercising its discretion, the Court declines to do so, for the reasons stated below. First, this is not a case in which, if bifurcation were ordered, the first trial wou...

Excerpt: ...hments referenced therein. The Court, on its own Motion, takes judicial notice of the pleadings filed in this action, including the attachments to Plaintiff's verified Complaint, the Dutra Decl. filed October 6, 2022 in support of Plaintiff's prior Motion to Compel, including its attachments, and this Court's November 10, 2022 Order, pursuant to Cal. Evidence Code § 452(d). Plaintiff's Complaint alleges three causes of action (COA), all for fail...

Excerpt: ... not party to an arbitration agreement between purchaser and Dealer, when the Dealer brings a motion to compel arbitration. The Felisilda case does not, however, address the primary issue, which is whether the nonparty automobile manufacturer itself (rather than the Dealer) may bring a motion to compel arbitration. Ford cannot bring this motion. In Felisilda, the auto Dealer moved to compel arbitration. The court granted the motion, including the...

Excerpt: ...rther Responses to Requests for Production of Document is DENIED AS MOOT and the Request for Sanctions GRANTED. By this Motion, Plaintiff Banc of America Leasing & Capital, LLC (“BALC”) sought to compel the further responses of Defendant and Cross‐ Complainant St Giab Inc. (“SG”) to a set of requests for production propounded by BALC on December 8, 2021. After the Motion was filed, SG served verified amended responses along with a privi...

Excerpt: ...S CONSTRUCTION; and DOES 1 through 25, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 20‐CIV‐04521 Assigned for All Purposes to Hon. Danny Y. Chou ORDER GRANTING MOTION FOR TERMINATING SANCTIONS AGAINST PLAINTIFF GANGFENG LAI Plaintiffs Justin Tao's and Linda Lu's unopposed Motion for Terminating Sanctions Against Defendants Atlas Construction and Development, Inc. (Atlas) and America Home Builders, Inc. (AHB) (Motion) came for heari...

Excerpt: ...he Court must “assume the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or ...

Excerpt: ...ble to dispose of only causes of action, affirmative defenses, claims for damages, and issues of duty. (Code of Civ. Proc. sect. 437c, subd. (f)(1).) Plaintiff's motion does not fall within the scope of section 437c. Even if the Court were to consider the motion on the merits, the motion would fail. Issues for motions for summary adjudication are framed by the pleadings. Summary adjudication cannot be granted or denied on grounds not raised in th...

Excerpt: ...iff wishes to prosecute a claim for punitive damages, Plaintiff must comply with Code of Civil Procedure Section 425.13, pursuant to Central Pathology Service Medical Clinic Inc. v. Superior Court (1992) 3 Cal.4th 181, by bringing a separate motion for leave to amend to add a claim for punitive damages. The one year statute of limitations (“SOL”) applies to Plaintiff's claims for professional negligence pursuant to Code of Civil Procedure Sec...

Excerpt: ...sented by counsel. Defendant correctly pointed out that an entity must be represented in litigation by an attorney. Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 730; CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145; Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101–1103. However, the rule does not deprive a corporation the right to be a party t...

Excerpt: ...017. The Court notes that the proof of service to the reply is not signed. The Court rules on Defendant John Cowan's Motion to Strike portions of Plaintiff Barbie Barrett M.D.'s 8‐31‐22 Complaint as follows. Emotional distress damages While generally, a lawyer does not assume or “create a duty to protect the client's emotional state,” Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 472‐473, when “a plaintiff sufficiently alleges i...

Excerpt: ...rt rules on Defendant John Cowan's Demurrer to Plaintiff Barbie Barrett M.D.'s 8‐31‐ 22 Complaint as follows: Defendant demurrers to the First, Second and Fifth causes of action alleging that they do not state facts upon which relief can be granted because they are not pled with sufficient specificity and/or particularity. Code Civ. Proc. § 430.10(e). The rules for a demurrer are well known: In reviewing the demurrer, the Court construes the...

Excerpt: ...uest for Production of Documents, categories 1 through 4 and 6 through 16 is GRANTED as to all categories. Defendant's responses on March 1 and April 5, 2021, were blatantly insufficient. Defendant's May 20, 2022, response states that he conducted a diligent search and reasonable inquiry, but is “unable to comply” because the requested documents either never existed, had been destroyed/lost/stolen/misplaced, or has never been or no longer is ...

Excerpt: ...med consent—arising out of a shoulder surgery and bicipital tenodesis procedure performed by Bolanos on Plaintiff in 2019. (February 8, 2021 Complaint, p. 4.) By this Motion, Bolanos moves for summary judgment with respect to the action—and, in the alternative, summary adjudication with respect to these causes—on the grounds that Plaintiff cannot establish the elements of either claim and that the claims are time‐barred. A. Legal Standard...

Excerpt: ...rent.” MPA, p.4‐5. Defendant contends that “As such, the ThreeDay Notice to Quit upon which Plaintiffs' complaint is deemed waived, unenforceable, and cannot support a later judgment.” MPA, p.5. The Court agrees. Plaintiff's Complaint alleges that, on September 29, 2022, Plaintiff issued a Three‐ Day Notice to Quit for Breach of Covenant resulting from Defendant's failure to comply with prior notices to cure breaches of the parties' lea...

Excerpt: ... and found Defendant to be the prevailing party. (Defendant's Request for Judicial Notice, Exh. 4.) In any action on a contract where the contract provides for an award of attorney's fees and costs, the prevailing party shall be entitled to reasonable attorney's fees. (Civil Code § 1717(a).) Defendant establishes that it is entitled to recover reasonable attorney's fees as the prevailing party in this action pursuant to Civil Code section 1717. ...

Excerpt: ...ims raised in the Complaint. This action is STAYED pending resolution of the arbitration proceedings. In this Private Attorneys General Act (“PAGA”) action, Plaintiff asserts a single cause of action seeking civil penalties against Defendants for alleged violations of the Labor Code with respect to himself and to other workers. Defendants seek to compel a portion of this action to arbitration, pursuant to an arbitration agreement contained in...

Excerpt: ...(FAC), filed 8‐29‐22, is DENIED. Code Civ. Proc. Sect. 435; 436. Cirrus' failure to meet and confer. Code Civ. Proc. Sect. 435.5 required that Cirrus, prior to filing this Motion, discuss the substance of the Motion with Plaintiffs, either in‐person or by telephone, in an effort to resolve the dispute without the need for court intervention. The 8‐ 29‐22 declaration of Cirrus' counsel Patrick Bradley does not state how the parties met a...

Excerpt: ...made in good faith. In support, PMI submits declarations from Rangi Perera, its counsel, and attaches the Settlement and Release Agreement (Settlement Agreement) to one of those declarations. The Settlement Agreement defines the scope of work performed by PMI on the construction project that resulted in the lawsuit and is covered by the release (PMI's Scope of Work). Specifically, the Agreement defines PMI's Scope of Work as “providing and inst...

Excerpt: ...est Seller Ltd. (“Best Seller”) shall provide further responses to Request for Production Nos. 63–71 within thirty (30) days of entry of the Court's formal order. Best Seller and Mayer shall also meet and confer, and they shall file, by December 5, 2022, a stipulated request for entry of an appropriate protective order for the Court's signature as discussed below. By this Motion, Plaintiff Alexander Mayer seeks to compel the further respons...

Excerpt: ...ion must be based on “new or different facts.” (Code of Civ. Proc. § 1008, subd. (a).) The moving party must “show diligence with a satisfactory explanation for not having presented the new or different information earlier.” (Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) Plaintiff's motion presents facts that were not before the Court when the Court heard the underlying motion. (See Decl. ...

Excerpt: ... on the grounds that these causes of action are barred by the three‐year statute of limitations set forth in CCP § 338(b), pertaining to injuries to real property. According to Defendants, “The facts underlying the cause of action for nuisance and trespass are the construction of the concrete retaining wall and fence thereon. As alleged in this Memorandum of Points and Authorities, the facts underlying the Cause of Action for Trespass and, u...

Excerpt: ...al Interrogatories, Set Three, and Request for Production of Documents, Set Four, and Request for Sanctions (Motion) is GRANTED IN PART and DENIED IN PART. As a threshold matter, the Court finds that the meet and confer and informal discovery conference requirements were met. In reaching this finding, however, the Court notes that the deadline imposed by Cross‐Defendant in its 11‐page letter resulted in a meet and confer that was not producti...

Excerpt: ... Plaintiff's request for terminating sanctions is DENIED. Plaintiff's request for monetary sanctions in the amount of $810.00 is GRANTED. Plaintiff seeks terminating sanctions because Defendant Ching Lin Wang failed to comply with the Court's May 18, 2022 Order (1) compelling Defendant to serve responses to Plaintiff's form interrogatories and requests for production, (2) deeming requests for admissions as admitted, and (3) and imposing monetary ...

Excerpt: ...ONSTRUCTION, INC., a California corporation, Cross‐ Plaintiff, v. GENESIS KINGHWA, LLC, a California Limited Liability Company; 171 CORONADO INVESTMENTS, LLC, a California Limited Liability Company, and ROES 1‐40, inclusive Cross‐Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 19CIV02560 Assigned For All Purposes to Hon. Danny Y. Chou ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL Defendant Excel One Construction, I...

Excerpt: ...er) is OVERRULED. In its fifth and sixth causes of action, Plaintiff Financial Pacific Insurance Company asserts claims for equitable subrogation. (FAC, ¶¶ 50—76.) Defendant contends the Demurrer should be sustained because Plaintiff did not allege facts sufficient to establish that Plaintiff is not primarily liable for insured Robert Boeger Plastering's (the Insured) loss. Alternatively, Defendant contends the Demurrer should be sustained be...

Excerpt: ...er retaliation in violation of Labor Code § 1102.5 on the grounds that the Complaint does not allege facts demonstrating that Plaintiff engaged in a protected activity. Plaintiff alleges that “he reasonably believed that the therapy platform that Defendant was producing had potential toxicity that could be detrimental to cancer patients.” Complaint, ¶ 13. Plaintiff further alleges that “the information he provided to Defendant violated Pa...

Excerpt: ...nstitute a defense to the complaint.” (Code of Civ. Proc. Section 438, subd. (c)(1).) The motion fails to make that showing. A. For Judgment on the Pleadings, a General Denial Overcomes a Properly Pleaded Complaint. The Judicial Council Form Complaint sufficiently pleads common counts for account stated, goods sold and delivered, money lent, and money paid. The next question is whether the Answer controverts the Complaint's allegations. Defenda...

Excerpt: ...compelling further responses to an interrogatory if “[a]n answer to a particular interrogatory is evasive or incomplete.” (Code of Civ. Proc., § 2030.300, subd. (a).) By this Motion, the State of California (the “State”) seeks to compel a further response from Darkhan Bylkylov (“Bylkylov”) to Form Interrogatory No. 17.1 propounded in its second set of form interrogatories. The interrogatory requests, inter alia, that Bylkylov provide...

Excerpt: ...ton Ave., Belmont, Ca., is GRANTED‐IN‐PART and DENIED‐IN‐PART. The Application is GRANTED as to Parcel Nos. 043‐ 102‐170, 043‐102‐260, 043‐102‐270, and DENIED as to Parcel No. 043‐ 102‐180. Pending resolution of this case or until further Order from the Court, Defendants are HEREBY ENJOINED from conducting a foreclosure sale of Parcel Nos. 043‐102‐170, 043‐102‐260, 043‐102‐270. Background. The following facts a...

Excerpt: ...riginally filed a complaint, alleging among other things, a cause of action under the Insurance Fraud Preventions Act (IFPA). Plaintiff the Insurance Commissioner of the State of California (CDI) intervened and assumed “primary responsibility” for prosecuting the IFPA cause of action. (Ins. Code, § 1871.1, subd. (f)(1). By way of a written agreement (Agreement), Plaintiff and CDI have settled the IFPA cause of action. Defendants The Allergy ...

Excerpt: ... facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Paci...

Excerpt: ...(1990) 224 Cal.App.3d 1249, 1254–55 (additional IME's permitted upon showing of good cause). Plaintiff alleges that during a 2017 pickup volleyball game at Stanford University, Defendant picked Plaintiff up and accidentally dropped Plaintiff on the top of her head, causing Plaintiff severe injuries, including traumatic brain injury, concussion, jaw fracture, and osteomyelitis in her jaw (a bone infection). Since the 2017 incident, Plaintiff has...

Excerpt: ...ve, for Summary Adjudication of the question of whether the Option Agreement between the parties was a loan.”]; see also Defendant's Memorandum.) However, the Court previously denied Defendant's motion for summary judgment to this same cause of action after Defendant argued that the Option Agreement was not a loan. (See Order filed July 18, 2022.) The Court found that a triable issue of material fact existed as to whether the transaction betwee...

Excerpt: ...on. Jamie Jacobs‐May (ret.). No hearing was required. (Marathon Nat. Bank v. Sup. Ct. (1993) 19 Cal.App.4th 1256, 1258.) A reconsideration motion must be "based upon new or different facts, circumstances, or law" and a valid reason for not presenting them earlier. (CCP SEC 1008; Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Plaintiff makes none of these showings. Rather, Judge Jacobs‐ May's 21‐page report makes clear that the obj...

Excerpt: ...ly pleads assignment from West Builders, Inc. to Museum Plaza LLC on its first two pages. Overruled. Second/Third, other parties may be found culpable with Steadfast. Thus, equitable indemnity and contribution claims are appropriate at the pleading stage. Further, as shown by CCP 877, culpability may be spread among a mix of tortfeasors and contract obligors. Overruled. Fourth, an insurer and insured have a "special relationship," but the insurer...

Excerpt: ...emotional distress is SUSTAINED with leave to amend. The demurrer is OVERRULED with respect to the remaining causes of action. 1st, 2nd & 7th COA – Breach of Lease, Breach of Covenant of Good Faith & Fair Dealing, Violation of CLRA Defendants demur to Plaintiffs' first cause of action for breach of lease and second cause of action for breach of the covenant of good faith and fair dealing on the grounds that Plaintiffs are not parties to the Lea...

Excerpt: ..., Civ. Code Sect. 1714(a)”), the Demurrer is OVERRULED. Code Civ. Proc. Sect. 430.10(e), (f). Defendants' arguments lack merit. First, contrary to Defendants' contention, the 4AC sufficiently alleges an agency relationship between the demurring Defendants (the alleged owners) and Defendant Ma (the owners' alleged agent). The Demurrer argues that the 4AC does not allege any statements or actions by the owners/demurring Defendants, and only alleg...

Excerpt: ...ended Complaint (the “FAC”) on the basis that it fails to state sufficient facts to constitute a cause of action and that its claims are barred by section 230 of the Communications Decency Act (the “CDA”). Plaintiff John A. Fetto contends that the FAC sufficiently alleges facts supporting the breach of three separate promises and that the CDA does not bar his claims for these breaches. A. Legal Standard on Demurrer The purpose of a demurr...

Excerpt: ...opics. Weiner's PMQ deposition notices also request that Nordstrom produce many categories of documents. Nordstrom, which recently changed counsel in this case, filed this Motion seeking to stay all discovery until Nordstrom files an “answer” to an “operative complaint.” The Court continued the hearings on Weiner's four motions to compel to November 3, 2022 so they could be heard together with this Motion. The Court did so because this Mo...

Excerpt: ... (1) breach of CC&R's, (2) breach of fiduciary duty, (3) nuisance, (4) negligence, and (5) declaratory relief. HOA's moving papers fails to address all theories of liability asserted by Sarko. HOA completely ignores the cross‐ claim for declaratory relief. The Cross‐ Complaint alleges a breach of fiduciary duties resulting from (1) the HOA's selective enforcement of the CC&R's with respect to Sarko's fence and the HOA's failure to follow the ...