Excerpt: ...b)‐16(d) is GRANTED. These costs are barred by the oral settlement agreement between the parties entered into on April 24, 2018. The transcript of the April 24, 2018 hearing shows that Defendant's counsel, Matthew James, stated on the record: …And just so I'm absolutely in an abundance of caution, that the parties are agreeing to incur their own attorney's fees and costs relating to this litigation except as provided for by Mr. Macias [Plaint...

Excerpt: ...nt. The parties to this case are all currently involved in another pending case—an earlier‐filed action in the United States District Court for the Southern District of Indiana, captioned Genesys Telecommunications Laboratories, Inc. v. Talkdesk, Inc. et. al., Case No. 1:19‐CV‐00695‐TWPDML. In the Indiana case, parties Talkdesk, Morales, Strahan, Hertel, and Manno, who are all Plaintiffs in this case and Defendants in the Indiana case, ...

Excerpt: ...aining broadly‐worded arbitration clauses. 8‐16‐19 Maley Decl., Ex. 2 at § 11, Ex. 6. Morales does not appear to dispute that the arbitration clause in one or both of the agreements would apply to her asserted claims against Genesys. However, she contends the agreements are unconscionable and/or voidable under Labor Code § 925, and thus should not be enforced. Because unconscionability is a contract defense, the party asserting the defens...

Excerpt: ... no merit. CCP §437c(p)(2). The complaint asserts causes of action for products' liability based on defective design, defective manufacturing and failure to warn, negligence based on design and manufacturing defects and failure to warn, loss of consortium and negligent infliction of emotional distress. The undisputed material facts and supporting evidence establish the following: Defendant was not involved with the installation of its product. U...

Excerpt: ...aint (SAC) is GRANTED. Code Civ. Proc. §§ 435‐437; Civ. Code § 3294. As a general rule, punitive damages are disfavored and are awarded “with the greatest caution” and only in the “clearest of cases.” Beck v. State Farm Mut. Auto. Ins. Co. (1976) 54 Cal.App.3d 347. Mere negligence, even gross negligence, is not sufficient. Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894. The law requires that a plaintiff seeking punitive damages prove...

Excerpt: .... I. Issue One – First Cause of Action (Declaratory Relief) The Stadler‐Freeman deed reserved a right of way that is 50‐feet wide, designated for “road purposes and for public utilities.” The reservation does not indicate any specific dimensions for road purposes or for utilities. Certain defendants received easements over the 50‐foot right of way, but Defendants' deeds do not specify any width of their respective easements. Therefore...

Excerpt: ...other state agencies. Those agencies are not a party to this action. As a result, Defendants must seek the documents through a third‐party subpoena pursuant to People ex rel. Lockyer v. Superior Court, 122 Cal. App. 4th 1060, 1078–80 (2004). Defendants have provided no argument or discussion relating to Lockyer. Defendants contend that, in accordance with CCP § 2031.230, the People are required to indicate whether a diligent inquiry has been...

Excerpt: ...ute of limitations defense bars this Cause of Action as a matter of law. Additionally, triable issues of material fact exist pursuant to Code of Civ. Proc. Section 437c as to the substantial nature of alleged stream diversions, including with regard to SSUMF numbers 2, 4, 6, 9, 15, and 16. Plaintiffs' dispute of these facts are supported by the depositions of Deleon, Leicester, Lt. Ober and Randi Adair and the declaration of Crystal Chau. As to t...

Excerpt: ...pposition brief, filed 9‐30‐19. Defense counsel is reminded to comply with the service requirements set forth in Code Civ. Proc. § 1005(b)‐(c) (Opp. briefs must be served by means of next‐day delivery). Plaintiff seeks leave to file a FAC adding a new Defendant (Fidelity National Title Co., or FNTC) and several new causes of action, all based on the alleged non‐disclosure of an additional easement encumbering the property (the “1954 ...

Excerpt: ...t the privacy interest. Absent sealing, the private information would be publicly available. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties. ...

Excerpt: ...31.320, subd. (a).) In response to Categories 1, 2, 3, 4, 6, and 7, Plaintiff responded that it would produce certain documents, but the motion offers no evidence that Plaintiff has refused to actually produce them. The motion states, “June 20 came and went with no production or any response from plaintiff's counsel. (Nelson Decl. ¶ 10.)” (Moving P&A at 4:22‐23.) Paragraph 10 to the Nelson Declaration states merely that Attorney Nelson did...

Excerpt: ...specific requirements of Code Civ. Proc. § 2031.030, which includes a designation of the land or property to be inspected, tested or sampled by “specifically describing each individual item or by reasonably particularizing each category of item”; and a specification of “any inspection, copying, testing, sampling, or related activity that is being demanded, as well as the manner in which that activity will be performed, and whether that act...

Excerpt: ...performed by the Knight Law Firm (“Knight firm”), and $27,775.00 for work performed by Hackler Daghighian Martino & Novak, P.C. (“HDMN”). In opposition, Defendants FCA US LLC and KTP Cars, Inc. (“Defendants”) object to both the hourly rates and the claimed time spent by the attorneys. Plaintiff provided additional declarations at the prior hearing, and the court continued the motion to consider this evidence and to give Defendants an ...

Excerpt: ...because all asserted claims hinge on a 2006 trust deed signed only by decedent, Plaintiff was required to file the lawsuit within one year of decedent's 2014 death, and thus all claims are now time‐barred. Citing Probate Code § 13550, 13551, and 13554; Code Civ. Proc. § 366.2. The merits of this defense cannot be resolved on Demurrer. A demurrer lies where the dates alleged in the complaint show clearly and affirmatively that the action is ba...

Excerpt: ...fraud. Further, it does not allege facts that can reasonably support a finding of malice or oppression, as defined by Civ. Code § 3294. The allegations lump defendants together, without specifying what acts/conduct Fidelity allegedly engaged in that constitutes fraud, oppression, and/or malice. Further, the allegations of wrongdoing appear directed at the lender and/or servicer of the loan. There is no allegation Fidelity was the lender or servi...

Excerpt: ...is for binding arbitration. When arbitration is pursuant to Code of Civil Procedure section 1280 et seq., the resulting arbitration award is, in substance, binding. Judicial arbitration is nonbinding; a party dissatisfied with the award may reject the award by requesting trial de novo. In contrast, when arbitration is under Section 1280 et seq., such as what the present motion seeks, the arbitration award may be attacked only on limited grounds. ...

Excerpt: ...is expected to explain, at the 8‐2‐17 hearing, why granting leave to amend as to Fidelity would not be futile. First, as to all asserted claims, the FAC is uncertain by failing to specifically identify what conduct defendant Fidelity, as distinct from the other named defendants, purportedly engaged in. Code Civ. Proc. Sect. 430.10(f); Moore v. Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 125. As set forth in Code Civ. Proc. Sect. 425.10(a),...

Excerpt: ... a claim or issue litigated in the prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. Tobin v. Nationstar Mortgage, Inc. (2016) 2016 WL 1948786, at *5 (citing Boeken v. Phillip Morris USA, Inc. (2010) 48 Cal. 4th 788, 797. Plaintiff filed a prior action, San Mateo County Superior Court C...

Excerpt: ...0, 2018, no declaration had been filed. Consequently, the demurrer is stricken. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties. ...

Excerpt: ...pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties. ...

Excerpt: ...�Application”), or whether Mr. Carroll intended for this hearing to be treated as the Order to Show Cause re: Contempt hearing. On the same day Mr. Carroll filed the Application, he also filed an Order to Show Cause re: Contempt purporting to give Ms. Carter notice of this hearing as a contempt hearing. No Order to Show Cause re: Contempt was ever signed by the court. Thus, to the extent that Mr. Carroll intended this hearing as a contempt hear...

Excerpt: ...ndants concede they have no breach of fiduciary duty claim against Plaintiff and do not intend to assert one, appears outside the scope of permissible discovery as to this responding party. Code Civ. Proc. § 2017.010. Plaintiff's request for monetary sanctions is DENIED. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal o...

Excerpt: ...is interrogatory, limited to prior incidents (dating back three years before Plaintiff's alleged incident) in the women's department of the Macy's in question. “PREMISES” is defined in the interrogatories to mean the entire Macy's store, which is overbroad given that the alleged incident occurred in the women's department, which itself is sizeable. Defendant's relevance argument lacks merit. Evid. Code § 210 (broadly defining relevant eviden...

Excerpt: ...d the omission, but expressly directed Defendant BSI, “In the future, Defendant must comply with the meet and confer requirement prior to filing a motion to strike. (See Code of Civ. Proc. 435.5.)” (Minute Order, April 11, 2018 (last paragraph). Instead of meeting and conferring in person or by telephone, Defendant BSI merely sent a letter. The supporting declaration does not indicate any attempt to meet in person or by phone, as specified by...

Excerpt: ...the order to arbitration or until such earlier time as the court specifies. (C.C.P. sec. 1281.4.) The court previously ordered that the parties submit Plaintiff's non‐PAGA claims to arbitration after Defendant Binary Capital Management, LLC (“Binary”) moved to compel arbitration. (See Baker Decl., Exhs. 2, 3.) Plaintiff then proceeded to pay AAA's arbitration filing fee. (Baker Decl., paras. 5, 6, and Exhs. 5, 6.) Binary apparently became i...

Excerpt: ...) Defendant's Motion to Compel Documents Responsive to Defendant's requests for production of documents (set one and two), is GRANTED. Plaintiff is to produce all responsive documents, to the extent any exist, as to these requests. Alternatively, as Defendant proposed, Plaintiff may instead provide a signed verification that the documents provided by CrossDefendant Nordeman are the only documents that exist responsive to Defendant's requests. (3)...

Excerpt: ...ers, Inv. v. Municipal Court (1978) 21 Cal.3d 724. Therefore, on the court's own motion, the complaint is stricken with 30 days' leave to file an amended pleading if plaintiff retains an attorney. The demurrer is moot. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is re...

Excerpt: ...August 31, 2018 at 9:00 a.m. in the Law and Motion Department so that the parties may meet and confer. Defendant is required to file, no later than 7 days prior to the new hearing date, a code‐compliant declaration stating either (1) the parties have met and conferred in person or by telephone and (a) the parties have resolved the objections raised in the motion, which shall be taken off calendar or (b) the parties did not reach an agreement re...

Excerpt: ...t the scope of these requests to information pertaining to conduct similar to the allegations in Plaintiff's Complaint. Plaintiff also agreed to limit the timeframe from January 1, 2010 to the present. (Decl. Loh ¶ 7, Exhibit 3.)  GRANTED as to Request for Production (Set One), Request No. 18 and Request for Production (Set Two), Request No. 57. Defendant iPASS, INC. is ordered to serve full and complete, verified responses to the foregoing d...

Excerpt: ...version for the Court's signature. Defendant correctly notes that cases should normally be prosecuted under the parties' true names. Code Civ. Proc. § 367. However, this rule is not absolute. Courts have authority to permit the use of pseudonyms in various circumstances, such as where doing so is necessary to protect against harassment, injury, embarrassment, and social stigmatization. See, e.g., Does I thru XXIII v. Advanced Textile Corp. (9th ...

Excerpt: ...tion of plaintiff's total recovery nor defendant's proportionate share of that liability. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties. ...

Excerpt: ...ntially completed on September 19, 2007. (5th Am. Complaint ¶ 51.) Therefore, the deadline was September 18, 2017. Plaintiff named the AC&H for the first time in the Third Amended Complaint, which was filed October 24, 2017, one month after the 10‐year deadline. Plaintiff contends that AC&H was timely named in June 22, 2017, when Plaintiff substituted AC&H for Doe 16. The argument lacks merit. “Even if a plaintiff meets the other requirement...

Excerpt: ... the subject property. Thus, the two year statute of limitations under Code of Civil Procedure section 339(1) does not apply to Defendant. Although section 339(1) “generally” applies to claim for professional negligence (Thomson v. Canyon (2011) 198 Cal. App. 4th 594, 606), the limitations periods of sections 337.1 and 337.15 are specific to claim for design defects in the construction of real property. Sections 337.1 and 337.15 apply to a cl...

Excerpt: ...ubstantive allegation is that Old South performed services for which it received payment from Crosscomplainants. The allegations, if proven, could support a jury's finding that Old South was a party to the implied‐in‐fact contract with Cross‐complainants. Demurrer to the fourth cause of action (unfair business practice) is overruled. A corporate plaintiff may not bring a representative suit under the Unfair Competition Law. (Linear Technolo...

Excerpt: ...les of Court, Rule 2.112, including by separately listing each cause of action, its nature, and the defendant to whom it is directed. The demurrer based on failure to comply with the claims presentation requirement in the Government Claims Act (Gov. Code §§ 900, et seq.), is SUSTAINED WITH LEAVE TO AMEND for Plaintiff to allege facts to support such compliance. Although Plaintiff generally alleges he complied with the claims presentation requir...

Excerpt: ...for “Wrongful Trustee Sale,” the claim lacks merit for multiple reasons, first because Eagle Vista played no part in the trustee's sale. Plaintiff contends the banking entities that foreclosed upon and sold Plaintiff's home, whom Plaintiff has dismissed from the case with prejudice, lacked the authority to foreclose and failed to comply with various statutory requirements pertaining to a non‐judicial foreclosure sale. This argument/cause of...

Excerpt: ...LEAVE TO AMEND. Plaintiff has not established that he is entitled to recover punitive damages. (See Gov. Code § 818 [“Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”.) The motion to strike the relief sought in paragraphs 2, 3 and 4 of the Relief Sought & Compensa...

Excerpt: ...mplaint (TAC). On 2‐8‐18, when Defendants filed the motion, the operative Complaint was Plaintiff Ryce's First Amended Complaint (FAC), filed 3‐17‐17. Thereafter, on 3‐18‐18, Plaintiff filed a Second Amended Complaint (SAC), and then on 6‐13‐18, filed a Third Amended Complaint (TAC), which currently serves as the operative pleading. Defendants have filed a Demurrer to the TAC, which is set for a hearing on 8‐21‐18. The TAC sup...

Excerpt: ...bd. (a).) Further, NICOLOSI does not specify in the Notice of Motion or Points and Authorities that the motion is based on any judicially noticeable matter. (Id. section. 437, subd. (b.)) Even if the Court were to consider the matters set forth in the moving Declaration of Franck, the Court would find that the Roe amendment is not necessarily improper. Although L & J possibly knew the name “Axalta” when filing the cross‐complaint, the oppos...

Excerpt: ...vice of the verified responses, or any supplemental verified response, or on or before any specific later date to which the parties agree in writing, or the propounding party waives any right to compel further response. (C.C.P. sec. 2030.300(c).) The court lacks jurisdiction to order further response where a motion to compel is not timely filed. (Vidal Sassoon, Inc. v. Sup. Ct. (1983) 147 Cal.App.3d 681, 685.) There is no dispute that Plaintiff s...

Excerpt: ...ation was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (See Code of Civ. Proc. § 1008(a).) Further, notwithstanding this procedural defect, Plaintiff has not presented any new or different facts, circumstances or law to warrant reconsideration of the Order. Defendant's request for judicial notice is GRANTED. If the tentative ruling is un...

Excerpt: ...urt previously ruled on Defendant's motion to tax costs, the judgment had not been satisfied as of the time Plaintiff claimed costs. Plaintiff filed the present motion on June 26, 2018. There is no evidence before the court that Defendant satisfied the judgment before Plaintiff filed the present motion. Therefore, the motion is timely. Plaintiff's motion sets forth a prima facie showing of hours incurred for enforcement of judgment, as well as ea...

Excerpt: ...Environmental Services, Inc., Langan Engineering Environmental Surveying and Landscape Architecture DPC dba Langan Engineering Environmental Surveying and Landscape Architecture, Treadwell & Rollo, Inc. and T&R Consolidated, Inc. (collectively “Defendants”) to the First Amended Complaint of Plaintiff KB Home South Bay, Inc. (“Plaintiff”) is ruled on as follows: Demurrer to the Fourteenth Cause of Action for Successor‐in‐Interest Corpo...

Excerpt: ...fs to file the motion. (Minutes, January 10, 2018.) No trial date was pending, and Plaintiffs' motion was for the purpose of setting a trial date. Therefore, the motion also was not filed for the purpose of delay. The grounds for the motion to reset trial date were not asserted in bad faith or frivolously. At the time of the motion, this case had not been included in the coordinated action, and no trial date was set in this Court. Presently, the ...

Excerpt: ...��76, 82, 93‐94, 99, 105‐106, 111‐112, 117‐118, 129‐130, 135, 147‐148 and for sanctions is GRANTED‐IN‐PART and DENIED‐IN‐PART. The 27 interrogatories at issue are sufficiently relevant to the asserted claims. Although not the primary basis of its Opposition papers, the County argues the 27 disputed interrogatories here have only marginal relevance to “whether Mr. Sedillo was having improper relationships with his clients.”...

Excerpt: ... that dismissal should be vacated under Code of Civil Procedure section 473. (See Declaration of Dubowski, para. 11.) Therefore, the ground for this motion is that dismissal was entered by “mistake, inadvertence, surprise, or excusable neglect.” (Code of Civ. Proc. §473, subd. (b).) The motion shows no “mistake, inadvertence, surprise, or excusable neglect.” The parties stipulated in writing to entry of dismissal, and the Court entered t...

Excerpt: ...such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” (Silver Organizations Ltd. v. Frank (1990) 217 Cal. App. 3d 94, 99 [permitting crosscomplaint on “eve of trial”].) The provision for allowing of compulsory cross‐complaints “shall be liberally construed to avoid forfeiture of causes of action.” (CCP § 426.50.) A “strong showing of bad faith...

Excerpt: ...e time for service is increased by “two court days.” (Code of Civ. Proc. § 437c, subd. (a)(2).) The 75th calendar day before the July 6, 2018 hearing date was April 22, 2018, a Sunday. Adding “two court days” extends the service deadline to Thursday, April 19, 2018. Defendant served this motion on Friday, April 20, 2018, one day too late. “The statutory language regarding minimum notice is mandatory, not directive.” (Urshan v. Musici...

Excerpt: ...onic service. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties. ...

Excerpt: ...o less restrictive means to protect the privacy interest. Absent sealing, the private information would be publicly available. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties. ...