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2019.9.30 Petition to Compel Arbitration and Request for Stay, Motion to Amend Complaint 337
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.30
Excerpt: ...gust 29, 2019 declaration in support of motion to amend complaint, ¶¶13, 15. This confirms Lyft's electronic records which show that Plaintiff consented to Lyft's terms on more than one occasion; and is sufficient to establish that the electronic signature affixed to these consents is attributable to Plaintiff, and that a valid contract to arbitrate was created. Plaintiff further admits that he did not opt out of these previous arbitration agre...
2019.9.30 Motion to Stay of Forum Non Conveniens 913
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.30
Excerpt: ...t. The parties to this case are involved in two simultaneously‐pending cases, apparently involving the same subject matter—this case and another in Wisconsin. See Matrix's 7‐ 2‐19 Motion, Ex. A (attaching Complaint filed in Wisconsin Circuit Court, captioned Matrix IT Medical Tracking Systems, Inc. v. Time Traveller, Inc. and Vitaly Golomb, Case No. 2019CV000968). In the present motion to stay, Matrix seeks to stay this case in favor of t...
2019.9.30 Demurrer 731
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.30
Excerpt: ...nce and breach of fiduciary duty is based on the claim that Defendants did not owe her a duty because she was not a named beneficiary of the CWK trust. According to Defendants, “Because Plaintiff fails to allege any facts qualifying her as an expressly designated recipient of any provision in the CWK Trust gifting her the bequest she now seeks (i.e., a provision in the CWK Trust shielding her from tax liability), the Defendant Attorneys owed he...
2019.9.27 Motion for Summary Judgment 503
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.27
Excerpt: ...fore, Plaintiff has failed to meet its initial burden of establishing that it is entitled to summary judgment. However, the Motion for Summary Adjudication to the open book account and account stated claims is GRANTED. Plaintiff presents evidence to establish all the elements of both its open book account and account stated claims. (See Plaintiff's Statement of Undisputed Facts nos. 1, 3, 4, 6‐8, 10‐13, and 15‐17.) Defendant failed to oppos...
2019.9.26 Motion to Tax Costs 510
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.26
Excerpt: ...” As a result, the motion to tax costs for CCP § 638 trial fees is GRANTED in the amount of $39,444.00. Trial Technology Support Services Defendant contends that Plaintiff's costs for trial technology support services are not allowable under CCP 1033.5(c)(4) because they were not “reasonably necessary to the conduct of the litigation.” As the party opposing costs, Defendant bears the burden of demonstrating that the costs were not reasonab...
2019.9.26 Demurrer 390
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.26
Excerpt: ..., 2019) No. 19‐CV‐00114‐YGR, 2019 WL 2423375, at *3, 4.) All four causes of action are based on the allegation that Defendant censored or interfered with Plaintiff's speech. (SAC para. 37, 40, 43, 45, 49, 52.) Since all claims treat Defendant as a publisher of content provided by another information provider (Plaintiff), the CDA immunizes Defendant from liability as to all claims. Plaintiff argues that his first and second causes of action ...
2019.9.25 Demurrer 442
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.25
Excerpt: ...othy Anderson and Elizabeth Cullinan (collectively “Cross‐Defendants”) to the Cross‐Complaint of Defendant/Cross‐ Complainant Florence Fang (“Cross‐Complainant”) is ruled on as follows: (1) The Town of Hillsborough's Demurrer to the First Cause of Action for Violation of the Fair Housing Act is SUSTAINED WITH LEAVE TO AMEND for Cross‐Complainant to cite the specific statute under which she is bringing this claim. (2) Cross‐Def...
2019.9.24 Motion to Compel Deposition 118
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.24
Excerpt: ...for sanctions, filed 8‐8‐19, is GRANTED‐IN‐PART, as set forth below. The motion to compel the deposition of AAC's person most knowledgeable (PMK) is GRANTED‐IN‐PART. The motion has merit, for multiple reasons. First, the Court already denied AAC's “Motion for Temporary Stay, to Quash, and to Continue the Date of the Deposition,” in which AAC made the same argument that it simply re‐hashes here. See 7‐24‐19 Minute Order. ACC ...
2019.9.24 Motion for Summary Judgment 684
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.24
Excerpt: ...izable claim to an easement on Defendant's property. Defendant separates her arguments with respect to the individual and entity Plaintiffs, based on her claim that the 1907 subdivision map is referenced in the deed to 655 Miramar Dr., Parcel 1, the adjacent property owned by entity Plaintiff TEG Partners, LLC, but that the 1907 map is not referenced in the deed to 18 Terrace Avenue, the nonadjacent property owned by the individual Plaintiffs. Al...
2019.9.23 Motion for Summary Judgment, Adjudication 443
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.23
Excerpt: ... to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). A defendant has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause(s) of action cannot be established, or there is a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). On summary judgment or adjudication, the court considers all of th...
2019.9.23 Motion to Set Aside Default, Vacate Default Judgment
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.23
Excerpt: ...e 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 that the judgment is void because she was not properly se...
2019.9.20 Motion for Protective Order 123
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.20
Excerpt: ...d the deposition of Mercado in her individual capacity. Mercado previously appeared for deposition after Defendant designated her as Defendant's person most qualified to testify for Defendant. Plaintiff is not precluded from taking Mercado's deposition in her individual capacity under Code of Civil Procedure section 2025.610(c)(1). Defendant now seeks a protective order as to further deposition of Mercado pursuant to Code of Civil Procedure secti...
2019.9.19 Demurrer 789
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.19
Excerpt: ...� 15610.30 is SUSTAINED WITH LEAVE TO AMEND. Code Civ. Proc. § 430.10(e). The TAC does not allege PSI directly engaged in financial abuse, rather, it alleges PSI “assisted” Defendant Khalid in committing financial abuse by failing to provide Plaintiff Riley with “mandated” counseling services, and by failing to conduct sufficient due diligence to confirm the Trust's proper Trustee, and to confirm whether Khalid was Riley's attorney‐in�...
2019.9.19 Motion for Attorney's Fees 084
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.19
Excerpt: ...rney's fees. The complaint has not been dismissed as to Defendant; no judgment has been entered by which “neither plaintiff nor defendant” obtained any relief; no judgment has been entered by which Plaintiff has not recovered any relief against Defendant. (See Code of Civ. Proc. Sect. 1032, subd. (a)(4).) The case of Profit Concepts Management, Inc. v. Griffith (2008) 162 Cal.App.4th 950 is inapplicable. In that case, the defendant was deemed...
2019.9.19 Motion for Summary Judgment 382
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.19
Excerpt: ... other common count claims for: (1) money had and received, (2) for goods, wares and merchandise sold and delivered, (3) for money lent, and (4) for money paid out. (See Complaint, Second Cause of Action for Common Counts, ¶¶ CC‐1(b)(1), (3), (4) and (5).) Plaintiff fails to address these claims, and therefore has not met its initial burden of proving these claims such that it is entitled to judgment as a matter of law. Further, summary adjud...
2019.9.18 Motion for Summary Judgment 383
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.18
Excerpt: ... § 437c(p)(1).) Plaintiff's motion only addresses the common count claims for open book account and account stated, but the Complaint also alleges other common count claims for: (1) money had and received, (2) for goods, wares and merchandise sold and delivered, (3) for money lent, and (4) for money paid out. (See Complaint, Second Cause of Action for Common Counts, ¶¶ CC‐1(b)(1), (3), (4) and (5).) Plaintiff fails to address these claims, a...
2019.9.13 Motion to Release Bond 475
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.13
Excerpt: ...nlawful detainer action filed against him, which the court granted through February 16, 2018 conditioned upon Moore's payment of monthly rent of $6,300.00 during the stay. (Ibid.) Moore paid the $6,300.00 monthly rent in December 2017 and January 2018, which is the amount he now wants released. Staying the unlawful detainer action is in the nature of an injunction, and a bond may be required. (The Rutter Group, Cal. Prac. Guide: Landlord‐Tenant...
2019.9.13 Motion to Confirm Settlement in Good Faith 321
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.13
Excerpt: ... de‐published. (See Opposing P&A at 7:2 (citation to depublished opinion in Leung v. Verdugo Hills Hospital (review granted; opinion vacated).) Defendant Chang's motion to confirm settlement in good faith is GRANTED. The disputed Tech‐Bilt factor is the rough approximation of plaintiff's total recovery and settlor's proportionate liability. The party opposing the good faith determination has the burden of establishing the lack of good faith. ...
2019.9.13 Motion to Compel Further Responses 862
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.13
Excerpt: ...endants' requests for admission Nos. 3‐8 from Plaintiff Carol Hoy ask her to admit that she created notes relating to (1) William Hoy's medical care, (2) this lawsuit, and (3) William Hoy's deposition, and that she subsequently destroyed those notes. Plaintiffs contend that the requests are “fundamentally unfair.” However, Plaintiffs have provided no pertinent authority supporting the claim that the requests are unfair. In determining wheth...
2019.9.13 Motion for Summary Judgment, Adjudication 646
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.13
Excerpt: ...dgment or adjudication, the court considers all of the evidence and all of the inferences reasonably drawn therefrom, and views such evidence and inferences in the light most favorable to the opposing party. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843‐856. Any doubts as to the propriety of granting the motion are normally resolved in favor of the party opposing the motion. Id. As to the 10‐17‐18 First Amended Complaint's (F...
2019.9.11 Motion to Set Aside Default and Vacate Default Judgment 108
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.11
Excerpt: ... 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 that the judgment is void because he was ...
2019.9.11 Motion to Compel Arbitration and Stay Court Proceedings 073
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.11
Excerpt: ...Purchase Agreement. The present proceedings are hereby STAYED pending completion of the arbitration. Defendants have established the existence of an arbitration agreement, and there is no basis to deny enforcement of the agreement under CCP § 1281.2. Plaintiffs' first, second, third, and fourth causes of action are jointly asserted against Defendants Lurline and Jaojoco. Each of the causes of action arises from the same transaction governed by t...
2019.9.9 Motion for Interlocutory Judgment 889
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.9
Excerpt: ...defaulted under the terms of the Settlement Agreement and that the Settlement Agreement provides for entry of judgment, it is unclear whether the Court may enter judgment at this time. A partition complaint shall set forth “[a]ll interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that plaintiff reasonably believes will be materially affected by the action, whether the n...
2019.9.6 Motion to Compel Arbitration and Stay Proceedings 905
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.6
Excerpt: ... et. seq.; Armendariz v. Foundation Health Psychcare Services Inc. 24 Cal.4th 83, 97 (2000) (“California law, like federal law, favors enforcement of valid arbitration agreements.”); Cione v. Foresters Equity Services, Inc. 58 Cal.App.4th 625, 642 (1998) (a heavy presumption weighs in favor of enforcing arbitration agreements). Although arbitration is a matter of contract, non‐signatories to arbitration agreements may be bound by an agreeme...
2019.9.5 Demurrer 019
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.5
Excerpt: ...redited) 06‐10‐19 Cross‐Complaint (XC) is OVERRULED. Code Civ. Proc. §430.10(e). A demurrer is used to challenge defects that appear on the face of the pleading, or from matters outside the pleading, that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. All properly pleaded facts are assumed true. Chavez v. Indymac Mortg. Servs. (2013) 219 Cal.App.4th 1052, 1057. In ruling on a demurrer, the trial court is required to ...
2019.9.4 Motion to Contest Good Faith Settlement 904
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.4
Excerpt: ...settling party DKS on January 25, 2019, which was prior to this Application being filed on April 10, 2019. Upon dismissal, the court lost jurisdiction over DKS. (See Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 425 (voluntary dismissal deprives court of subject matter and personal jurisdiction).) “Where the plaintiff has filed a voluntary dismissal of an action …, the court is without jurisdiction to act further …, and any subsequent order...
2019.9.3 Demurrer 123
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.3
Excerpt: ...ion against it because it has no duties to third parties under Bus. & Prof. Code § 24074. This argument, however, was squarely rejected in Cohn v. Gramercy Escrow Co., 65 Cal. App. 3d 884, 892–93 (Ct. App. 1977). In that case, which relied on decisions in Grover Escrow Corp. v. Gole, 71 Cal.2d 61 (1969) and Doyle v. Coughlin 37 Cal.App.3d 911 (Ct. App. 1974), the court held as follows: The provisions of [Section 24074] are mandatory and as suc...
2019.9.2 Motion to Compel Arbitration 782
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.9.2
Excerpt: ...aintiff's complaint seeks payment for work performed at that project. Therefore, Plaintiff's complaint is a dispute that relates to the Agreement. Plaintiff does not demonstrate that the Agreement is procedrually unconscionable. Defendant sent the Agreement to Plaintiff in the evening of October 21, 2018. That same evening, Plaintiff responded “the contract is good and will sign it.” (Email from Gaddis to Lee, September 21, 2018, Exhibit 3 to...
2019.8.30 Motion for Summary Judgment 426
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.30
Excerpt: ..., but also “prejudgment interest in the amount and at the rate provided by law.” (See Complaint, Prayer, 2:21.) Plaintiff presents no evidence as to the amount of interest sought. Further, Plaintiff has not presented admissible evidence to establish all the elements of an account stated, including that Defendant JBJ Holdings, Inc. (“Defendant”) owed Plaintiff money from previous financial transactions and that Plaintiff and Defendant agre...
2019.8.29 Motion to Strike Complaint 501
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.29
Excerpt: ...ant moves to strike the SAC on the ground that Plaintiffs are no longer represented by counsel, and cannot represent themselves in propria persona because Plaintiffs are an LLC and trustees of a trust. A court may strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (C.C.P. § 436(b).) Defendant fails to show that the SAC was “not drawn or filed" in ...
2019.8.28 Motion to Reopen Discovery, to Issue Terminating Sanctions 110
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.28
Excerpt: ...igence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; and (4) the l...
2019.8.28 Motion to Compel Further Responses 862
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.28
Excerpt: ...a HIPAA‐compliant protective order which protects the identity of Patient No. 2 in satisfaction of 45 CFR Section 164.512(e)(1)(v) within ten days of this order. Within 5 days of issuance of the protective order, Defendant shall provide verified responses to Request for Production nos. 65 – 68 ("RFP") and produce documents redacting any personally identifying information of Patient No. 2. Plaintiff William Hoy ("Plaintiff") ha...
2019.8.28 Request for Sanctions 391
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.28
Excerpt: ..., and Aug. 28, 2019, is GRANTED‐IN‐PART, as set forth below. Plaintiff filed 12 separate motions to compel further responses to written discovery requests—4 motions against each of Defendants Autobahn, Inc., JPMorgan Chase Bank, and Hartford Fire Ins. Co. The 12 motions were set for hearing on Aug. 13, Aug. 14, and Aug. 28, 2019. Defendants then served further responses to the discovery requests before the Aug. 13‐14 hearings. Accordingly...
2019.8.28 Demurrer 274
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.28
Excerpt: ... DENIED as to the Notice of Rescission because it was not provided with the request. Defendants' Request for Judicial Notice of the Complaint in this action is GRANTED. (2) Demurrer to the First Cause of Action for Rescission is OVERRULED. Defendants demur to the First Cause of Action based on failure to allege facts sufficient to constitute a cause of action on the following grounds: (a) Plaintiff accepted the benefits of the contract and theref...
2019.8.26 Motion to Appoint Arbitrator and Compel Arbitration 760
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.26
Excerpt: ...etition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate the controversy, the court shall order petitioner and respondent to arbitrate the controversy if it determines that an agreement to arbitrate exists, unless it finds that certain exceptions apply. (See C.C.P. § 1281.2.) Thus, the court must first order the dispute to arbitr...
2019.8.22 Motion to Compel Further Responses 548
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.22
Excerpt: ...NDANTS' ATTORNEY 0F RECORD JENNY L1 AND DENNIS FAORO IN THE SUM 0F $1,280 TENTATIVE RULING: The Motion of Plaintiff HaiboYu (“Plaintiff”) to Compel Defendant Aim Consolutions, Inc. (“ACI”) to Further Respond to Form Interrogatories and Request for Production of Documents and Other Tangible Things, Set One, and Defendant Hailin Li (“Li”) to Further Respond to Form Interrogatories, is ruled on as follows: (1) Plaintiff's Motion to Compe...
2019.8.21 Motion to Set Aside Dismissal 089
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.21
Excerpt: ...not have authority to stipulate to dismissal of the cause of action. This claim is supported by counsel's declaration, which states that (1) counsel mistakenly believed she had authority to enter the stipulation to dismiss, (2) Plaintiff was not aware of the stipulation, and (3) Plaintiff did not grant authority to enter into the stipulation. [Graves Decl., ¶¶ 2, 4] A misunderstanding between an attorney and client furnishes a proper and suffic...
2019.8.19 Motion for Summary Judgment, Adjudication 353
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.19
Excerpt: ...n is GRANTED, in part, and DENIED, in part. Collateral Estoppel As indicated in Moriarty v. Laramar Mgmt. Corp., 224 Cal. App. 4th 125, 141 (2014) and other authorities, the preclusive effect of a judgment in a UD action is limited. This is because the only issues typically litigated in a UD action are the plaintiff's right to possession, and the defendant's defenses to the plaintiff's claim of possession. In the prior UD action, the jury determi...
2019.8.19 Motion to Disqualify Counsel 571
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.19
Excerpt: ... the Ceccatos' supplemental briefing. This motion was continued from July 18, 2019 for supplemental briefing by the Ceccatos. The Ceccatos assert that Bonis should be disqualified as counsel for the Montgomerys due to a conflict of interest based on concurrent representation and successive representation. The court requested further briefing regarding both concurrent and successive representation, as well as briefing on the issue of whether the m...
2019.8.16 Motion for Summary Judgment, Adjudication 369
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.16
Excerpt: ...hen the patent expires. (Brulotte v. Thys Co (1964) 379 U.S. 29, 33‐34.) Royalties may continue to be collected past the patent expiration if the royalties represent other than patent rights (hybrid agreement). (Kimble v. Marvel Entm't, LLC (2015) ___ U.S. ___, 135 S. Ct. 2401.) The License Agreement granted patent rights, “technology rights,” and “Improvements,” each of which is specifically defined. RUST‐OLEUM acknowledges that ...
2019.8.16 Motion for Summary Judgment 369
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.16
Excerpt: ...ary, the Complaint expressly states that the breaches were by “Defendants,” an allegation that does implicate RPM. The premise of this motion is that RPM cannot be liable for breach of the licensing agreement because RPM had no contractual obligations under the licensing agreement. The motion argues that RPM “assigned Sierra” to Rust‐Oleum, and Rust‐Oleum continued to perform Sierra's payment obligations under the license agreement. S...
2019.8.9 Motion to Quash Service of Summons, to Set Aside Entry of Default Judgment 452
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.9
Excerpt: .... However, Defendant does not dispute that she was personally served with the summons and complaint on May 22, 2019. Accordingly, the court finds there are no grounds for granting Defendant's motion to quash service. Alternatively, Defendant seeks to set aside the default and default judgment on the basis of mistake and excusable neglect. According to Defendant, her failure to respond was due to the fact that she has a brain injury and cannot rea...
2019.8.9 Motion to Seal 369
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.9
Excerpt: ...of the subject documents at the time the motion is made. (See CRC Rule 2.551(b)(4).) No documents are lodged under seal with this motion or RPM's motion for summary judgment. The motion fails to comply with the requirement that redacted public versions of the documents be filed. (Id. Rule 2.551(b)(5).) No redacted versions are filed. The court cannot determine whether the proposed redactions are sufficiently narrow. (See Rule 2.550(d) (sealing mu...
2019.8.8 Motion to Consolidate Cases and Injunction of Unlawful Detainer 585
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.8
Excerpt: ...tion to exercise a lease extension was fraudulently misrepresented to him – and because it would promote judicial economy. He further contends that consolidation would “avoid the potential for irreparable injury.” According to Mr. Nguyen, “If the business is summarily evicted, at the least, both Mr. Nguyen and Mr. Tran will lose their only source of income and health insurance, and suffer irreparable harm.” [MPA, p.12] Mr. Nguyen relies...
2019.8.8 Demurrer 501
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.8
Excerpt: ...ur to them. However, California requires that affirmative defenses be pleaded with ultimate facts. Demurrer is sustained because the affirmative defenses plead only legal theories, but not any ultimate facts. Defendants argue that the facts are set forth in the Cross‐complaint. Even if that were true, the allegations belong in the Answer. The case of Schaefer v. State Bar of California (1945) 26 Cal. 2d 739 does not support Defendants. Schaefer...
2019.8.8 Motion to Consolidate Cases and for Injunction of Unlawful Detainer 502
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.8
Excerpt: ...�� namely, whether the nature of his option to exercise a lease extension was fraudulently misrepresented to him – and because it would promote judicial economy. He further contends that consolidation would “avoid the potential for irreparable injury.” According to Mr. Nguyen, “If the business is summarily evicted, at the least, both Mr. Nguyen and Mr. Tran will lose their only source of income and health insurance, and suffer irreparable...
2019.8.6 Motion for Attorney Fees 664
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.6
Excerpt: ...f $25,737, plus a 2.0 multiplier, plus $1,206.15 in costs/expenses. The Court declines to apply a loadstar enhancement/multiplier. The Court finds no basis to conclude the case was complex or novel. It appears to have been a fairly routine consumer warranty/lemon law case. Complexity is judged in part by whether the case involved: 1) numerous pre‐trial motions raising novel issues; (2) a large number of witnesses and documents; (3) a large numb...
2019.8.6 Motion to Set Aside Default, Judgment 182
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.6
Excerpt: ...ts proposed answer within 5 days of this order. Defendant Adams claims that he sent the summons and complaint to an unnamed attorney in Santa Rosa. Mr. Adams indicates that he was too busy to follow up on his instructions that the attorney file an answer to the complaint. Based on the facts as set forth in Mr. Adams' declaration, it is questionable whether Mr. Adams exercised reasonable diligence in responding to the complaint. The court finds, h...
2019.8.5 Motion for Judgment on the Pleadings 342
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.5
Excerpt: ...ach of Express Warranty Defendant contends Plaintiff has failed to assert a cause of action for breach of express warranty because Plaintiff has not alleged that the “latent defect” in the timing chain system manifested itself during the five‐year warranty period. According to Defendant, Plaintiff has alleged “no manifestation of the purported defect in the timing chain.” [MPA, p.4] Construing the complaint liberally, however, Plaintiff...
2019.8.2 Motion for Leave to File Amended Complaint 950
Location: San Mateo
Judge: Davis, Leland
Hearing Date: 2019.8.2
Excerpt: ...ases on their merits if possible. Here, Plaintiffs have already had multiple opportunities to draft and file a Complaint asserting a valid cause of action, beginning with their Complaint filed in federal district court, which was dismissed for lack of subject matter jurisdiction. Nonetheless, because Plaintiffs may be able to assert a valid cause(s) of action based on their allegation of unpaid wages (whether in the form of a breach of contract c...

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