Excerpt: ...pecific personal jurisdiction over them, claiming they do not have the necessary minimum contacts with this forum. According to Defendants, “the Complaint is devoid of any facts that establish the Lewiners ‘purposefully availed themselves' of California's benefits, or that the controversy is related to any of the Lewiners' extremely limited contacts with California.” MPA, p.3. However, Plaintiffs' verified Complaint alleges that Plaintiff I...

Excerpt: ...facts and supporting evidence establishes a prima facie showing that Defendant CHICAGO TITLE did not breach any duty that it owed to Plaintiff. Plaintiff has not demonstrated that a triable issue of material fact exists. Escrow instructions govern the rights and liabilities of the parties and the escrow holder. The parties are entitled to only the performance that is provided in their instructions, and the escrow holder is obligated to perform on...

Excerpt: ...d be characterized as an argument based more on semantics than substance. However, the Court sustains the Demurrer with leave to amend, for the following reasons. First, while various California courts have disagreed on this point, more recent California Supreme Court cases have concluded that “unjust enrichment” is not a proper cause of action, at least where the claim can be re‐ stated as a “quasi‐contract” claim that seeks “resti...

Excerpt: ...First Cause of Action ‐ Fraud The Demurrer to Cross‐ Complainant's First Cause of Action for fraud is OVERRULED. The Cross‐Complaint alleges fraud by intentional misrepresentation and concealment. Where a fraud claim is properly plead on any legal theory, a Demurrer must be overruled. Viewing the allegations as a whole, the Cross‐Complaint adequately pleads a claim for fraud by intentional misrepresentation and/or concealment. It alleges ...

Excerpt: ...ttachment may be issued, (2) plaintiff has established the probable validity of the claim, (3) the attachment is not sought for any purpose other than to secure recovery on the claim, and (4) the amount to be secured is greater than zero. (See C.C.P. §484.090.) Except as otherwise provided by statute, a claim is one upon which an attachment may be issued: (1) in an action on a claim or claims for money, (2) based upon a contract, express or impl...

Excerpt: ...rty as a “deposit” toward arbitration costs. BUTTE has less than that amount in cash. The cases of Roldan v. Callahan & Blaine (2013) 219 Cal. App. 4th 87 and Weiler v. Marcus & Millichap Real Estate Inv. Servs., Inc. (2018) 22 Cal. App. 5th 970 are controlling. [When] a party who has engaged in arbitration in good faith is unable to afford to continue in such a forum, that party may seek relief from the superior court. If sufficient evidence...

Excerpt: ... To demonstrate substantial compliance with the contractor's licensure requirements, Plaintiff De Bibo must show he (1) had been duly licensed as a contractor in this state prior to the performance of the act or contract, (2) acted reasonably and in good faith to maintain proper licensure, and (3) acted promptly and in good faith to remedy the failure to comply with the licensure requirements upon learning of the failure. Application of the subst...

Excerpt: ...on of Bus. & Prof. Code § 7031(e), and the doctrine of substantial compliance, to the undisputed facts. To demonstrate substantial compliance with the contractor's licensure requirements, Plaintiff De Bibo must show he (1) had been duly licensed as a contractor in this state prior to the performance of the act or contract, (2) acted reasonably and in good faith to maintain proper licensure, and (3) acted promptly and in good faith to remedy the ...

Excerpt: ... only to the default judgment, Defendants' motion also seeks to set aside the default. See Mot. at 8:11‐14. Under Code of Civil Procedure section 473.5, relief based on lack of actual notice must be sought within 2 years of the default or 180 days after service of a written notice that the default has been entered, whichever is earlier. (C.C.P. section 473.5(a).) There is no time limit on a motion for relief under Code of Civil Procedure sectio...

Excerpt: ...tion for Summary Adjudication to the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Causes of Action, is DENIED. On a motion for summary adjudication, a defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code of Civ. Proc. § 437c(p...

Excerpt: ...im of newly discovered evidence, Plaintiff notes that, just prior to the Court's ruling granting Dane's motion for summary judgment, Frederick Tate, a Target employee, testified at his deposition that Dane sent a representative to Target on a quarterly basis in 2016 to perform “preventative maintenance” on the smartKART shopping carts. According to Plaintiff, this evidence suggests that Dane did, in fact, have possession and control over the ...

Excerpt: ...k of Am., N.A. (2015) 243 Cal. App. 4th 1293, 1305–06 [tender not required when claim is based on allegations that Defendant foreclosed during time that plaintiff was seeking loan modification].) B. First Cause of Action (Wrongful Foreclosure) Demurrer to the first cause of action is sustained. An element of the claim for wrongful foreclosure is that the foreclosure sale occurred. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4t...

Excerpt: ... seventh and eighth causes of action with prejudice on September 23, 2020. Thus, Defendant's motion for summary judgment is moot as to those claims. First Cause of Action – Wrongful Constructive Termination As to the First Cause of Action for “wrongful constructive termination,” Plaintiff must show that he resigned as a result of intolerable working conditions, and that those working conditions violated public policy. (See CACI No. 2432.) D...

Excerpt: ...ration and Proposed Order. The court starts with the presumption that court records are open unless confidentiality is required by law. (See Cal. Court Rule 2.550(c).) A court may order that a record be filed under seal if it expressly finds facts establishing that: (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...

Excerpt: ...gument does not address why the Complaint does not state facts sufficient to constitute a cause of action for breach of fiduciary duty, unlawful use of trade secrets, or breach of contract, nor for intentional/negligent interference with economic prospects, or IIED/NIED. Defendant has not addressed whether the listing of names in his complaint and first amended complaint in the separate action violates specific fiduciary duties without violating ...

Excerpt: ...to state a valid cause of action, and is uncertain. Code Civ. Proc. §§ 430.10(e) and (f). In general, the Court takes a liberal approach with respect to permitting amendments to pleadings, particularly where, as here, no prior Demurrer has been filed. It is normally Plaintiff's burden, however, to show that a reasonable possibility exists that the defects in the Complaint can be cured by amendment. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Tor...

Excerpt: ...o judgment as a matter of law. A privileged statement is not defamatory, as a statement must be non‐privileged in order to be proven defamatory. Lemke v. Sutter Roseville Medical Center (2017) 8 Cal.App.5th 1292, 1298. As Defendants have argued, “Application of the privilege involves a two‐step analysis. The defendant has the initial burden of showing the allegedly defamatory statement was made on a privileged occasion, whereupon the burden...

Excerpt: ...ode §15657.01). (See Application ¶6b.) Plaintiff does not allege a cause of action for financial elder abuse, and the Application is not supported by any evidence of elder abuse. The first and second causes of action are for open book account and account stated, but the Application offers no evidence supporting either of these common counts, other than a copy of one invoice. The invoice contains suggestions that Plaintiff performed and the rate...

Excerpt: ...assment and Intentional Infliction of Emotional Distress Pursuant to CCP § 527.6 §§§ (a)(1), (B) (1)(2)(3, & (L) and with its Judgment discharge ability Preempted Pursuant to USC 11 § 523(a)(4)” is SUSTAINED WITH LEAVE TO AMEND based on uncertainty and failure to allege facts sufficient to support a cause of action. A demurrer for uncertainty may be sustained where the complaint is so bad that defendant cannot reasonably determine what iss...

Excerpt: ...XHIBITS ATTACHED TO THE DECLARATIONS OF BENJAMIN SCHWAN (“SCHWAN DECL.”) AND JONATHAN C. SANDERS (“SANDERS MSJ DECL.”) IN SUPPORT OF THE MSJ. TENTATIVE RULING: ACCREDITED DEBT RELIEF's motion to seal portions of its moving papers in support of Motion for Summary Judgment is granted as to the Memorandum of Points and Authorities, Separate Statement of Undisputed Facts, Exhibits A through H and J through O of the Declaration of Schwan, and ...

Excerpt: ...art. Plaintiff's request for attorney's fees is also GRANTED, in part. Defendant does not oppose Plaintiff's request to enter judgment pursuant to CCP § 664.6. Consequently, judgment shall be entered setting forth the terms of the parties' settlement agreement. Plaintiff also requests that the Court enforce the parties' agreement under § 664.6. In this case, the parties' agreement awards the Gill Vista, 24770 Soto Road, and 998 Governors Bay Dr...

Excerpt: ...PORATION'S REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) WITHIN 7 DAYS OF THE ORDER. TENTATIVE RULING: Defendants' motion to compel further responses is DENIED as to Request No. 23. For this request, Defendants seek Plaintiffs' source code for the games at issue. Plaintiffs' source code constitutes a trade secret. (See CACI No. 4402.) Plaintiffs' evidence shows that the source code is secret and that Plaintiffs have made reasonable efforts to kee...

Excerpt: ...�PART and OVERRULED‐INPART, as set forth below. As an initial matter, the Court notes that the FAC and Defendants' Demurrer papers lack clarity in some respects, possible creating unnecessary work. The FAC names multiple Plaintiffs and Defendants. Each asserted cause of action identifies the Defendants against whom the claim is asserted, but does not identify the Plaintiffs asserting the claim, which suggests that all named Plaintiffs are asser...

Excerpt: ...ional infliction of emotional distress are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct....” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) Plaintiff ...

Excerpt: ...Authorities in Support of Plaintiffs' Opposition to the Motion for Preliminary Injunction (“MPA”) is DENIED. The proposed sealing is overbroad. Lines 18‐19 on page 11 of the MPA quote a section of PUBG's Motion for a Preliminary Injunction, and Plaintiffs seek to seal this portion of the MPA based on PUBG's Motion to Seal the related portion of its Motion for a Preliminary Injunction. The Court denied PUBG's Motion to Seal portions of its M...

Excerpt: ...he Motion of Defendants Equinox Holdings, Inc. and James Lopresti (collectively “Defendants”) for Summary Judgment or alternatively, Summary Adjudication, to the Complaint of Plaintiff Robert Pierre Alexander (“Plaintiff”), is DENIED WITHOUT PREJUDICE. Failure to comply with the separate statement may in the court's discretion constitute a sufficient ground for denying a motion for summary judgment or summary adjudication. (C.C.P. § 437c...

Excerpt: ...ED BY THE JUDGE FINEMAN, ON JANUARY 28, 2020; AND THE JUDGMENT THAT WAS ENTERED AGAINST ROBIN AND SEAN LOVE, DATED FEBRUARY 7, 13 2020 TENTATIVE RULING: Defendants Robin Love's and Sean Love's (“Defendants”) Motion to Set Aside Dismissal, Orders, and Judgment is GRANTED‐IN‐PART. As an initial matter, the motion to set aside the December 11, 2019 dismissal and the January 8, 2020 order granting the motion for evidentiary sanctions is to be...

Excerpt: ...pposition to be filed “not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” Notably, Defendant submitted a reply on August 28 and has not objected to Plaintiff's opposition on the grounds that it was not timely filed or that it has been prejudiced by the delay. As a result, the Court, in its discretion, has considered Plaintiff's opposition. Premises Liability In order to...

Excerpt: ...rder requires that Plaintiff meet and confer with Defendants and attempt to resolve the present dispute informally, and if unsuccessful, to then participate in a mediation with Defendants prior to filing a motion in Court to enforce the Agreement. Thus, the parties contractually agreed, and the Court ordered, that the § 9 ADR procedure constitutes a prerequisite to either party seeking Court intervention to enforce the Agreement. See 7‐6‐20 ...

Excerpt: ...t aside a default under § 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted …”). To the extent Defendant seeks relief under § 473(d), the moving papers provide no persuasive argument or authority indicating the Judgment is somehow “void.” Further, and as independent grounds for denying the motion, it lacks sufficient evidentiary support. ...

Excerpt: ...FS LUIS B. CABRERA AND NORMA CABRERA (“PLAINTIFFS”). TENTATIVE RULING: Defendants Select Portfolio Servicing, Inc., Deutsche Bank National Trust Co., and JPMorgan Case Bank, N.A.'s demurrer to Plaintiffs' first amended complaint is SUSTAINED without leave to amend. The claims asserted by Plaintiffs against Defendants Select Portfolio Servicing, Inc., Deutsche Bank National Trust Co., and JPMorgan Case Bank, N.A. are barred by the doctrine of ...

Excerpt: ...e of the evidence that “minimum contacts” exist between defendant and the forum state to justify the imposition of personal jurisdiction. (Mihlon v. Sup. Ct. (1985) 169 Cal.App.3d 703, 710; Ziller Electronics Lab GmbH v. Sup. Ct. (1988) 206 Cal.App.3d 1222, 1232.) Here, Plaintiffs Jeffrey C. Poetsch and JC Poetsch Advisors, Inc. (“Plaintiffs”) have not established that the court has either general or specific jurisdiction over Defendants....

Excerpt: ...f”), is ruled on as follows: (1) Defendant's Request for Judicial Notice Defendant's Request for Judicial Notice is GRANTED as to Exhibits A, B, C, E, F, G, J and K. Defendant's Request for Judicial Notice is GRANTED as to Exhibits D, H, I, and L, but the court does not take judicial notice of the truth of the matters asserted in any of these documents. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 8...

Excerpt: ...ation”), is DENIED. Suntrek contends that it only manufactured the solar system installed at the property, and therefore has no liability for the claims alleged in Plaintiff Tremin Corporation's (“Tremin”) Complaint (and therefore no liability on Warm Corporation's Cross‐Complaint seeking equitable contribution, indemnity and apportionment) because Tremin's claims do not allege the solar system was defective. However, Warm Corporation sho...

Excerpt: ...sed in the briefing, even where requested documents are relevant, in assessing discoverability, the Court considers both the requesting party's discovery rights and the corresponding burden imposed on the responding party. Given the asserted claims here, the Court generally agrees that the requested documents are reasonably calculated to lead to the discovery of admissible evidence. Code Civ. Proc. § 2017.010. It also appears, however, that a co...

Excerpt: ...ration states “I was not contacted by counsel for Plaintiffs prior to the filing and service of this Motion to Compel. The only communications I had with counsel regarding the issues in this Motion were my repeated requests for production by Plaintiffs of a list of all patients Plaintiffs allege Defendants ‘stole' from Advance Male Medical, Viceroy Health and/or Dr. Shah.” Because the declaration required by CCP §§ 2016.040 and 2031.310(b...

Excerpt: ...aim that the matters raised in Plaintiffs' Petition are not reviewable because they do not fall within the grounds identified in CCP § 1286.2. The Court disagrees. The Court finds the parties expanded the scope of review under the following provision of the arbitration agreement: . . . The determination of the arbitrator shall be accompanied by written findings of fact and conclusions of law of the arbitrator and the decision shall be reviewable...

Excerpt: ...erials were publicly “scattered, spread widely, broadcast or disperse[d]” to a significant number of persons in California. But paragraph 15 (quoted above) alleges that the false material was “distributed” to Defendant's “existing and prospective customers . . . .” (para. 15.) 2. On demurrer, the Court must construe the complaint liberally in the plaintiff's favor. The allegation that Defendant “distributed to . . . existing and pro...

Excerpt: ...ice of responses to his RFA's. The request is therefore DENIED: Plaintiff's Motion to Deem Facts Admitted and request for sanctions are DENIED. Plaintiff did not demonstrate that his Request for Admissions was properly served. Motion to Compel Defendant has stipulated to an order compelling responses to Plaintiff's Request for Production of Documents and Interrogatories. This portion of the Motion is therefore GRANTED: Plaintiff's Motion to Compe...

Excerpt: ...llegations, if proven, are sufficient to permit a jury to find that Defendant's actions were malicious or fraudulent. The Complaint need not allege approval or ratification by an officer, director, or managing agent. The allegation of corporate approval or ratification is necessary only when punitive damages are sought against an “employer,” based on the wrongful acts of an employee. (See Civ. Code sect. 3294, subd. (b).) The allegations for ...

Excerpt: ... limitations defect, which appears clearly and affirmatively on the face of the FAC. McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874. Plaintiff admits that he waited nineteen years to assert a claim to the Subject Property, despite his claim allegedly accruing in November 1999, and despite having had, at all times, the right to be placed on title to the Subject Property “upon his request”. (FAC ¶¶ 22‐23.) The demurre...

Excerpt: ...t to “postpone stressful, prolonged legal proceedings, until a course of treatment has been established,” (2) that she was in the process of hiring an assistant to help search documents to respond to the request for production, and (3) she was willing to participate in a deposition when medically able. In the intervening month, Defendant has not offered any evidence updating her medical status, has not responded to document requests, has not ...

Excerpt: ...T LEAVE TO AMEND. Code Civ. Proc. § 430.10(e). Plaintiff has filed four versions of the Complaint. In response to the Court's 2‐25‐19 Order sustaining Defendants' Demurrer to the Second Amended Complaint (SAC), Plaintiff filed the operative TAC, which is virtually identical to the SAC, with the exception of minor additions to ¶¶ 36‐37. These minor changes, however, do not cure the defects raised in Defendants' Demurrer to the SAC. For th...

Excerpt: ...ninth and tenth causes of action. A. Procedural Issues. 1. The Present Motion is Permissible. The minute order from Defendant's previous motion that the Court “declines the request to make these rulings either specifically with or without prejudice” is not a ruling that Defendant may not bring the present motion. A party may not “move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the ...

Excerpt: ...Opposition, p.1, 2] Plaintiff misunderstands the burden of proof. On a motion to expunge lis pendens, it is the duty of the party opposing the expungement motion to defeat the underlying bases for the motion by establishing the existence of a real property claim, and the probable validity of the underlying real property claim, by a preponderance of the evidence. CCP §§ 405.30, 405.32. Plaintiff has presented no evidence, in the form of declarat...

Excerpt: ...OSSFELD LLP TENTATIVE RULING: The Motion of Michael G. King and Hennelly & Grossfeld, LLP (“Plaintiffs' counsel”) for Reconsideration is GRANTED. Plaintiffs' counsel provides new or different facts and circumstances to warrant reconsideration of the Court's April 8, 2019 orders denying Plaintiffs' counsel's Motions to be Relieved as Counsel for Plaintiffs. The Court notes that Plaintiffs Napean Capital Group, LLC and Frederic Shih‐Hsing Yan...

Excerpt: ...which would seek only the following documents: [Plaintiff's] personnel file, documents pertaining to [Plaintiff's] earnings, documents pertaining to any charges, complaints or lawsuits by [Plaintiff] against Advanced Medical Personnel and documents pertaining to the termination of her employment if applicable. Given the generally broad scope of discovery rights, the proposed narrowed subpoena above is reasonable and permissible and does not undul...

Excerpt: ...e a cause of action for fraud. Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 C3d 197, 216; Philipson & Simon v. Gulsvig (2007) 154 CA4th 347, 363. Further, although Plaintiff has named multiple defendants in this suit, Plaintiff has not identified the party or parties to whom this cause of action is directed pursuant to CRC 2.112. The Demurrer to the Second Cause of Action for negligent representation is SUSTAINED ...

Excerpt: ...tified grounds upon which punitive damages are recoverable. As noted in the court's ruling on Defendants' demurrer, Plaintiff's claim for fraud is unsupported by specific factual allegations. The motion to strike all claims for attorney's fees is GRANTED WITH LEAVE TO AMEND. Attorney's fees must be authorized by contract, statute, or law. Code Civ. Proc. §§ 1021; 1033.5(a)(10). Plaintiff's complaint contains no allegations supporting the reques...

Excerpt: ... required by Section 2025.450(a). However, they did appear at an earlier‐scheduled, and then canceled, deposition and requested alternative dates for the rescheduled depositions based on medical need. Defendants are in agreement that the depositions should take place. Plaintiff's counsel's insistence on particular documentation regarding the medical excuse before agreeing to reschedule was made without legal support, but the short time for tria...