Excerpt: ... an open book account and an account stated. However, Plaintiff also asserts claims for goods sold and delivered and credit extended on account. The alternative Motion for Summary Adjudication is GRANTED as to the claim based on an open book account. Plaintiff has met its burden to show that there is no defense to this cause of action. CCP §437c(p)(1). See Undisputed Material Facts 1‐8; LaRosa Declaration ¶¶5 ‐8, 10‐12 and Exs. A‐C. Th...

Excerpt: ...cted with the requisite intent to cause damage to Plaintiff. See CACI No. 1320. Defendant Michael Solomon's Demurrer to the “motor vehicle” negligence cause of action is OVERRULED. Plaintiff has asserted factual allegations in the Complaint sufficient to constitute a cause of action for motor vehicle negligence. Though the allegations are contained in an attachment labeled “general negligence,” Plaintiff's form Complaint asserts only inte...

Excerpt: ...tered a dismissal he signed, which requested dismissal of the ‘Entire action of all parties and all causes of action.” The filing of a dismissal has immediate effect, rendering subsequent proceedings void. Aetna Cas. & Sur. Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 931. The dismissal has caused confusion since only Xie signed it. It may be that this dismissal was meant to dismiss plaintiff Wang's claims, but there is no evidenc...

Excerpt: ...ny cause of action and also cannot be determined at the demurrer stage. The Court has jurisdiction over the case because Business & Professions Code section 6200 et seq. does not divest the Court of jurisdiction to hear the case. Business & Professions Code section 6201 provides: “[A]n attorney shall forward a written notice to the client prior to or at the time of service of summons or claim in an action against the client.... The written noti...

Excerpt: ...ovember 12, 2019, ruling, Defendant previously moved to set aside the default and default judgment entered against her on March 2, 2009 on the basis that she was never served with the summons and complaint. Judge Brown denied the motion without prejudice on September 23, 2019. Defendant then moved to set aside the renewal of judgment on the basis that she did not receive notice of the Notice of Renewal filed on March 19, 2018. Defendant made her ...

Excerpt: ...proposed order, submitted with its moving papers on April 23, did not specify whether the action is dismissed with or without prejudice. The court's tentative ruling granting Defendant's motion also did not state that the matter was dismissed with prejudice. Defendant points to the following portion of the transcript from the July 8 hearing on the motion to dismiss or stay as support for its request that the matter be dismissed with prejudice: TH...

Excerpt: ...dure section 473 where it is clear from the face of the record that the judgment should not have been entered; however, a judgment valid on its face but void for improper service is governed by analogy to Code of Civil Procedure section 473.5 and therefore relief in the same action must be sought no later than 2 years after entry of the default judgment. (See Rogers v Silverman (1989) 216 Cal.App.3d 1114, 1121‐1122.) Defendant contends here tha...

Excerpt: ... motion to preclude a res ipsa loquitur instruction lacks merit. (The purpose behind this portion of the motion is unclear because even if res ipsa loquitur does not apply, that does not dispose of the entire cause of action.) “There can be no doubt that the doctrine of res ipsa loquitur is applicable to a factual situation involving injury resulting from the collapse of a scaffold.” (Biondini v. Amship Corp. (1947) 81 Cal.App.2d 751, 767.) R...

Excerpt: ...t (1) Plaintiff is limited to the exclusive remedy of workers' compensation benefits, and that under Privette v. Superior Court (1993) 5 Cal. 4th 689, Plaintiff is precluded from recovering against KENMARK, the hirer of a contractor, and (2) the evidence does not support the “retained control” exception to Privette. Privette does not apply to this case because Plaintiff's employer, CBC, is not the contractor whose negligence is alleged to hav...

Excerpt: ... Santa Monica (1972) 6 Cal.3d 920, 939.) Courts apply such a liberal policy at any stage of the proceedings, up to and including trial. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) If the motion to amend is timely made and granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal results in a party being deprived of the right to assert a meritorious cause of action. (...

Excerpt: ...tion that an equitable lien survived the statute of limitations bar is contrary to current law, Cal. Civ. Code § 882.030, and Plaintiff fails to address all evidentiary issues concerning Mr. Goldstein's Will. Moreover, Plaintiff's assertion that Plaintiff and Option One lacked actual knowledge of the vesting issue does not refute the evidence demonstrating that Option One was on notice that Defendant was a record owner of the subject property as...

Excerpt: ...yd J. DeMartini (“DeMartini”) for Summary Judgment, or in the Alternative, Summary Adjudication, on the First Amended Complaint (“FAC”) of Plaintiff Fuentebella Enterprises, LLC (“Fuentebella”) is ruled on as follows: (1) DeMartini's and Fuentebella's Requests for Judicial Notice are GRANTED. (2) For purposes of a motion for summary judgment/summary adjudication, a defendant has met his or her burden of showing that a cause of action ...

Excerpt: ...DIN‐PART and DENIED‐IN‐PART. The request for terminating and issue sanctions is DENIED. The request for evidentiary and monetary sanctions is GRANTED‐IN‐PART, as set forth below. These consolidated cases arise from a cancelled real estate sales transaction involving the Love Cross‐Complainants' property in East Palo Alto. After the prospective sellers (the Loves) refused to sell the property as contemplated by the Listing Agreement, t...

Excerpt: ...se attachment is purely a statutory remedy, it requires strict construction with the statutory requirements. Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1107; Code Civ. Proc. § 482.030 (the Legislature directed the Judicial Council to promulgate forms to implement the attachment law). First, Plaintiff did not serve Notice of the Application and hearing using Judicial Council Form AT‐115 (“Notice of Applicat...

Excerpt: ...roc. § 430.10(e). As an initial matter, Code Civ. Proc. § 1005 requires service of Opposition briefs either by personal service or by means of next‐day delivery at least 9 court days prior to the hearing. In this case, it appears Plaintiffs did not serve their Opposition brief at all. There is no Proof of Service on file. WF's counsel apparently became aware of the Opposition by reviewing the Court's docket online. Plaintiffs' violation of §...

Excerpt: ...ry duties.” According to Defendant, “The gravamen of NAS's cause of action is BAES's alleged violation of the Liquor License Statutes.” MPA, p.11. As a result, Defendant contends Plaintiff's claim is based “upon a liability created by statute,” and the applicable statute of limitations is three years pursuant to CCP § 338. Plaintiff does not dispute that the question of which statute of limitations applies is determined by looking to t...

Excerpt: ...8.50. Per Code Civ. Proc. § 1033.5(a)(10)(A), fees are recoverable as an element of costs where authorized by contract. The Settlement Agreement at issue here includes a fee provision. See 10‐8‐19 Salassi Decl., Ex. A, § 7.12. The claimed fees appear to be sufficiently documented/supported and reasonable. See 10‐8‐19 Decl. of Hannah Salassi and Ex. D‐G. Defendants do not challenge the amount of claimed fees (they do not challenge the ...

Excerpt: ...N should not be part of this lawsuit. Defendants CHANG and CHEN did not enter into any contracts with Plaintiff CAVESTONE, did not make any representations to Plaintiff CAVESTONE that induced justifiable reliance, and did not benefit individually from Plaintiff CAVESTONE.” Reply., p.1‐2. Plaintiff, however, has alleged an alter‐ego theory of liability. According to Plaintiff's complaint, “Defendants, and each of them, acted in concert wit...

Excerpt: ...r Dismissal on Judicial Council Form CIV‐110, which purports to dismiss the “Entire action of all parties and all causes of action.” The Dismissal was entered that same date, as requested. This Dismissal has caused confusion, however, since only Plaintiff Min Xie signed it. In general, the filing of a dismissal has immediate effect, rendering subsequent proceedings void. Aetna Cas. & Sur. Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d ...

Excerpt: ...he property at 74 New Montgomery is the individual Defendants' “usual mailing address” or “usual place of abode” pursuant to CCP § 415.20. Plaintiff relies on her own declaration, which states that the property “has also been used as [Mr. Saito's] personal residence and corporate office” and that “Mr. Okada has been working and residing at PROPERTY while acting as Saito's business associate in State of California.” Smith Decl., �...

Excerpt: ...on to approve dismissal of the PAGA claim includes a supporting declaration of Plaintiff's counsel, Jeffrey Curtiss, which refers to the Settlement Agreement, but does not include a redacted version of the document as an exhibit. The present motion to seal includes a supporting declaration of Mr. Curtiss, which states only that the Settlement Agreement will be lodged “as Exhibit A to this Declaration.” The Exhibit A is a blank document. Since...

Excerpt: ...anted as to the first cause of action. It is undisputed that, at the time of the 2015 merger, Plaintiff RAI held no shares of H2 Wellbeing Oy. (UMF 8.) Plaintiff argues that “H2H never issued agreed upon shares to RAI, but agreed in writing to issue such shares in the 2011 Agreement and in its modifications” (Opp. to UMF 8) and that “H2H provided assurances that the matter of unissued shares would be addressed.” (Decl. of Rapakko para. 10...

Excerpt: ... TO AMEND as to all asserted claims. Code Civ. Proc. § 430.10(e). The Court assumes the 10‐23‐19 Opposition brief was filed on behalf of Ely and Sonia Tangonan, despite its reference to “Cross‐Complainant Mary Pablo,” since no such person is a party to the case. The Court notes that except for a couple references to the res judicata defense, the Opposition does not specifically address any of the asserted claims, nor Barrett Daffin's a...

Excerpt: ... 10‐23‐19 Opposition brief was filed on behalf of Ely and Sonia Tangonan, despite its reference to “Cross‐Complainant Mary Pablo,” since no such person is a party to the case. Per the Proof of Service, the Opposition brief was not served on Wells Fargo, the demurring party. For this reason, and because the Opposition does not specifically address the asserted causes of action or any of Wells Fargo's arguments (it merely recites general ...

Excerpt: ... Vacate Judgment under C.C.P. section 473(b) is untimely. Defendant seeks relief only under CCP section 473(b) on the ground that default judgment was taken in error against Defendant due to Defendant's mistake, inadvertence, surprise, or excusable neglect. Since judgment was entered in 2009, the motion is untimely under this statute. A motion seeking relief under CCP section 473(b) must be filed within 6 months after entry of default. (See Weil ...