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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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...