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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...causes of action in Plaintiff's Complaint. Additionally, triable issues of material fact exist as to whether a union member who receives a discharge letter may always remain on the job (SSUMF 12/14; O'Mahony Decl. for Defendant, vs. Bourn Decl. Exhs. J, K and Chinn Depo. pp. 29:9‐30:2 and Woulfe Depo. pp. 40:8‐24 for Plaintiff); whether UPS Labor Relations pursued Barefield's termination for the June 15, 2016 incident (SSUMF 19; Woulfe Decl. ...

Excerpt: ...$6,217,681. Ms. Dolch has not provided declarations or documentary evidence supporting the probable validity of her underlying claim or the amounts sought in the application. Rather, she relies on her verified § 850 Petition to support the application. According to the § 850 Petition, In December 2016, Angelique escorted Nellie to a Charles Schwab office and, without Bob's knowledge or consent, transferred more than $1.5 million of community pr...

Excerpt: ...on alleging a violation of Civ. Code § 2923.6 (“dual‐tracking”), the Motion for Summary Adjudication is DENIED. The parties agree that the version of § 2923.6 in effect in 2017 barred a foreclosure sale while a complete loan modification application was “pending.” Ocwen argues there was no pending application at the time of the 7‐20‐17 sale. Ocwen points to documentary evidence showing that from Nov. 2016 to May 2017, Ocwen denied...

Excerpt: ...ourt found that “it was the intention of the parties to the contract between [attorney] Dunnigan and Max Orloff that said Max Orloff should not have the right to settle or dismiss or compromise the aforementioned actions without the consent of his attorney, and that, if said Orloff did so dismiss said actions, he was required to pay as a penalty therefor the sum of $1,000 to his said attorney.” Id., at 747. The trial court found this provisio...

Excerpt: ...n in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16(b)(1).) In ruling on a motion to strike under this section, the co...

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: ...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: ...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: ...d therefore Plaintiff and South Bay Colma LLC are ordered to arbitrate the claims asserted against South Bay Colma LLC in Plaintiff's Complaint. Plaintiff raised a number of arguments as to why the arbitration agreement is unenforceable. First, Plaintiff claims that the arbitration agreement is unconscionable. The party opposing arbitration has the burden of proving that the arbitration provision is unconscionable. (Ajamian v. CantorCO2e, L.P. (2...

Excerpt: ... California. Further, since Blue Bird has no contacts with the state, the Plaintiff has not shown that his claim arises out of or is related to such contacts. (Burger King Corp. v. Rudzewicz (1985) 471 US 462, 477‐78.) The emails attached to Plaintiff's opposing declaration are not authenticated. However, even if the emails were admitted into evidence, they do not show that Blue Bird had purposeful contacts with California. A plaintiff is gener...

Excerpt: ...‐115, which contains all the necessary advisements pursuant to Section 484.050. Although use of the form is optional, Plaintiff's notice includes none of the required information. Second, and more significantly, Plaintiff's complaint alleges breach of contract by Defendant Ye. Plaintiff, however, seeks to attach property owned by Defendant Chen and the Chenye Irrevocable Gift Trust. Plaintiff alleges the property was fraudulently transferred to...

Excerpt: ...ircuit Court (Waukesha County), which by all appearances involves substantially the same subject matter. Both Complaints seek a judicial declaration regarding the validity/enforceability of the parties' Consulting Agreement. As the moving party here, Matrix has the burden of proving the parties' dispute would be more appropriately tried elsewhere (in Wisconsin). Plaintiff Time Traveller's choice of forum will not be disturbed unless the Court is ...

Excerpt: ...ttached to the Request for Production” is deficient. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783–84.) Plaintiff shall supplement its response to set forth specific responsive facts. Interrogatories 112.2 through 112.5. A response that merely points to another discovery response is deficient. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783–84.) Further, as set forth above, the response to Interrogatory 112.1 (to which this response...

Excerpt: ...ation Agreement. The present proceedings are hereby STAYED pending completion of the arbitration. Defendant Dick's has established the existence of an arbitration agreement, and there is no basis to deny enforcement of the Agreement under CCP §1281.2. Plaintiff does not dispute that he signed a binding Arbitration Agreement with Defendant Dick's Sporting Goods or that the claims against Dick's are within the scope of the Agreement. Rather, Plain...

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: ...aning of the settlement terms agreed to on the record on June 28, 2019. The court should reject the County's proposed Paragraph 17 as an improper attempt to effectively convert the “no professional publicity” term the parties agreed to into a “confidentiality” term that was neither bargained for nor agreed to. The court should instead construe the agreement to “no professional publicity” to prohibit plaintiff and her counsel from util...

Excerpt: ...o Compel Plaintiff Triple Net Companies, LLC (“Plaintiff”) to Comply with Agreement to Produce Documents, is ruled on as follows: (1) Defendants originally sought to Compel Plaintiff's Compliance with the Agreement to Produce Documents in response to KComm's Request for Production of Documents, Set One. Specifically, Defendants' Motion sought compliance with Request nos. 1, 2, 7, 8, 15‐17, 19‐23, 25‐30, 32‐43, 49 and 54. The court con...

Excerpt: ...ailure to Pay Wages (Bonus) As noted by Plaintiff, the elements of a cause of action for failure to pay wages are (1) that plaintiff performed work for defendant; (2) that defendant owes plaintiff wages under the terms of the employment; and (3) the amount of unpaid wages. CACI 2700. According to Plaintiff, he has established each of these elements as a matter of law. Plaintiff contends he was entitled to wages pursuant to the terms of the Novemb...

Excerpt: ...hose acts do not constitute “binding the company” or “executing an instrument.” The motion does not demonstrate that Plaintiffs acted in contravention of paragraph 7.10. The motion lacks merit also because Paragraph 7.10 does not entitle a Member to attorney's fees in the present context. The purported “action by the Member” is the signing and filing of the Complaint. However, there is no claim based on that “action by the Member.�...

Excerpt: ...t is GRANTED‐IN‐PART, in the amount of $50,979, which appears to be a conservative estimate of the amount owed. Plaintiff's Application satisfies the requirements of §483.010(a), namely, (1) the claim upon which the attachment is based is one upon which an attachment may be issued, (2) Plaintiff has established the probable validity of its claim (see Code of Civ. Proc. § 481.190, “more probable than not…”), (3) the attachment is not s...

Excerpt: ...iffs”) for Terminating Sanctions Against Defendants Cevera Automotive Group, LLC and Robert V. Branzuela (“Defendants”), or Alternatively, for Issue and Evidentiary Sanctions, and Contempt, is ruled on as follows: The Motion for Terminating Sanctions, or Alternatively, for Issue and Evidentiary Sanctions, is DENIED. A trial court has broad discretion in selecting discovery sanctions, and considers both the conduct being sanctioned and its e...

Excerpt: ...”) on Plaintiff's former counsel, David G. Finkelstein, Esq. (“Mr. Finkelstein”). Procedurally, Plaintiff filed a Separate Statement with his motion that fails to comply with Cal. Rules of Court Rule 3.1345. The separate statements must include the text of the request or demand. (See Cal. Rules of Court Rule 3.1345(c).) Plaintiff's counsel failed to include the entire text in the separate statement, and therefore is admonished to comply wit...

Excerpt: ...‐Bilt v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488. The Tech‐ Bilt decision requires this Court to consider “the allocation of settlement proceeds among plaintiffs”. Id. at 499‐500. Given that Ms. Geipe is not a Plaintiff in this action and has not articulated a persuasive reason why $1 million of her son's settlement should be allocated to her personally for the purpose of buying a house, the Court declines to find that the se...

Excerpt: ... or cause unnecessary delay or needless expense under CCP § 128.7. Notably, Defendant's motion for sanctions was not denied on the merits. Rather, as noted in the court's May 20, 2019 order, Defendant's motion was denied because Defendant failed to follow the safe harbor procedures mandated by CCP § 128.5. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written or...

Excerpt: ...ce of the complaint; it is not enough that the complaint shows merely that the action may be barred. McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874. Here, the statute of limitations bar appears clearly on the face of the Verified Complaint as Plaintiff admits that he waited nineteen years to assert a claim to the Subject Property. The discovery rule does not save Plaintiff's claims. It is the discovery of facts, not their l...

Excerpt: ...the entire cause of action for failure to allege the legal description of the property and failure to allege tender of the outstanding debt. The allegation of tender is not excused; Plaintiff fails to allege facts showing that the sale was void. B. Third Cause of Action (Breach of Implied Covenant) Demurrer is SUSTAINED. Of the implied covenant of good faith and fair dealing, the pleading fails to allege a breach. The acts of which Plaintiffs com...

Excerpt: ... Motion of Plaintiff Bonnie Rodemeyer (“Plaintiff”) and proposed additional Plaintiffs Kristina L. Nelson, Michael J. Rodemeyer and Edward E. Rodemeyer, III (“proposed Plaintiffs”) to Compel Defendants Jim Heldberg and Professional Computing Solutions, Inc. dba Silicon Segway (“Defendants”) to Produce Independent Medical Examiner (“IME”) Report is ruled on as follows: This motion purports to be brought by the proposed Plaintiffs, ...

Excerpt: ...RULING: The Motion of Plaintiff Bonnie Rodemeyer (“Plaintiff”) and proposed additional Plaintiffs Kristina L. Nelson, Michael J. Rodemeyer and Edward E. Rodemeyer, III (“proposed Plaintiffs”) to Compel Defendant Jim Heldberg dba Silicon Segway to Serve Verified Answers and for Issuance of Monetary Sanctions is ruled on as follows: This motion purports to be brought by the proposed Plaintiffs, who are not yet parties to this action. Theref...

Excerpt: ...ndant's motion is procedurally defective as it fails to include a copy of the answer or other pleading proposed to be filed in this action. Code Civ. Proc. §473(b). If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice...

Excerpt: ...e of whether the existence of Defendants, who are necessary parties to Plaintiffs' claim for partition, but who are non‐signatories to the arbitration provision of the Bagnarols' LLC operating agreement, precludes the Court from determining that Plaintiffs' claim is subject to arbitration pursuant to the arbitration agreement. Because Plaintiffs have not presented authority indicating that the existence of third parties precludes application of...

Excerpt: ...019. There are no acts for the Court to compel. The sufficiency of the objections and responses are not at issue in the present motion since the motion is pursuant to Code of Civil Procedure sections 2030.290 and 2031.300 and not 2030.300 or 2031.310. (See Notice of Motion.) Defendant's Motion to Compel Production of Documents is DENIED. A motion to compel production of documents is proper when a party responds that he will comply with the reques...

Excerpt: ... Proc. §1987.1. These subpoenas seek information that is protected by Plaintiff's privacy rights. In Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, the Court barred disclosure of “personnel… or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Id. at 529; see Cal. Const., Article I, §1. Defendants fail to demonstrate a compelling need for the production of these documents...

Excerpt: ...d cause of action against Defendant. All of Plaintiffs' claims against Defendant are barred by res judicata. Res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) Claim preclusion operates as a bar to a second lawsuit between the same parties on the same cause of action. (Id.) The elements for claim preclusion are: ...

Excerpt: ...owledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363). Fraud must be pled with specificity. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The plaintiff must allege facts which show how, when, where, to whom, and by what means the representations were tendered. (Ibid.) Here, Plaintiff fails to allege facts sufficient to support a claim f...

Excerpt: ...ngs if “the complaint does not state facts sufficient to constitute a cause of action against that defendant.” Code Civ. Proc. § 438(c)(1)(B)(ii). “The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of ...

Excerpt: ...arnered the requisite two‐thirds of the vote to pass, pursuant to Gov. Code §§ 53326(b) and 53328; and (2) Whether the CFD boundary map was fatally defective because it includes “openspace” territory without Plaintiff's consent, in violation of Gov. Code § 53312.18(a). As to the first issue, the Court finds that the City was not a qualified landowner for purposes of voting in the special election. The City acknowledges that it voted its ...

Excerpt: ...tion: (1) Paul McKinnie, et al. v. Phyllis Harrison, et al., Case No. 18CIV04938 (“McKinnie action”), and (2) William Grosso, et al. v. Phyllis Harrison, et al., Case No. 18CIV02540 (“Grosso action”) However, Ms. Harrison has not demonstrated that a transfer order is necessary given that both the McKinnie and Grosso actions were also filed in this court. (See C.C.P. § 403 [“A judge may, on motion, transfer an action or actions from ano...

Excerpt: ...ED. All requests for judicial notice are GRANTED. This matter was originally heard on January 24, 2019 at which time the court continued the matter to March 7, 2019 and ordered defendant Suzie Investments, Inc. to comply with CCP §430.41(a)(3) by filing the declaration required by that statute. The Second Declaration of Seth Weiner in Support of Demurrer to Complaint filed on February 1, 2019 satisfies the statute, so the demurrer may now procee...

Excerpt: ...lication for leave to present a claim as contemplated by that section. Indeed, Petitioner does not indicate that “application was made to the board under Section 911.4 and was denied or deemed denied,” as required to obtain relief under Gov't. Code § 946.6. As set forth below, Respondent appears to have waived any defense as to the timeliness of Petitioner's claim pursuant to Gov't. Code § 911.3(b). Petitioner submitted a Government Claim o...

Excerpt: ...t the sale. As the winning buyer, AJE is the owner of the personal property listed in the UCC‐1 Statements. After the sale, Cross‐defendants remained in possession of the property at the dental office, despite AJE's having purchased the personal property at the sale. AJE estimates that the property is valued at $161,000. Cross‐defendants' Opposition does not contest the estimate. B. Opposing Arguments Lack Merit. NGUYEN contends that the ap...

Excerpt: ... Defendant's business records subpoena, which requests records relating to “treatment for any condition” since July 1, 2010 is overly broad, as it makes no attempt to limit its scope to the conditions alleged in Plaintiff's complaint. The scope of the subpoena shall be limited to records relating to the conditions identified in Plaintiff's complaint, including records relating to the treatment Plaintiff sought immediately following the allege...

Excerpt: ...e days before the date a motion to strike must be filed” (Id. sect. 435.5, subd. (a)(2).) The motion to strike must include a declaration setting forth in detail the compliance with section 435.5, or reasons why compliance was not possible. (Id. sect. 435.5, subd. (a)(2) & (3).) Plaintiff's motion fails to comply with these statutory requirements. No declaration is on file. The motion is also possibly untimely. A motion to strike an Answer must...

Excerpt: ...ons. Under Plaintiffs' reasoning, any litigant could avoid the mandatory 21‐day period merely by waiting until the Court has ruled on a motion and then filing a motion for sanctions. Plaintiffs cite no authority for this interpretation. The interpretation is unreasonable because it would render the waiting period provision meaningless. (See Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 274 (statutes must be construed in m...

Excerpt: ...�) Cross‐Complaint, is ruled on as follows: (1) Plaintiff's Motion for Summary Judgment, or in the Alternative, Summary Adjudication, to the Complaint is DENIED. Plaintiff fails to meet her initial burden of establishing each element of her causes of action. (See C.C.P. § 437c(p)(1).) Plaintiff not only seeks recovery of the possession of the vehicle, but also seeks damages in connection with all three causes of action alleged. (See Third Amen...

Excerpt: ...its entirety. The Complaint alleges claims for open book account, account stated, money lent, and money paid at Defendant's request. (Complaint ¶¶ CC‐1(a) & CC‐1(b).) The motion against the entire complaint can be granted only if it defeats all causes of action. The motion is denied because it fails to dispose of three of the four causes of action. A. The Motion Establishes that Defendant Owes $3,321.48 to Plaintiff for “Money Paid.” Th...

Excerpt: ...tter. The Court directs Plaintiffs' counsel to file motions separately in the future. A. BLACK PINE GROUP's Motion to Compel JAMES YOUNG to Produce Documents The motion is DENIED. 1. The motion identifies documents that purportedly have not been produced, but the motion does not indicate whether the missing documents are responsive to any document category. Plaintiff's failure to specify the document categories places the burden on the Court to f...

Excerpt: ...App.2d 194, 197.) The same policy favoring liberality in amended pleadings applies so that all matters in dispute between the parties may be resolved in a single lawsuit if reasonably possible. (Id.) Plaintiffs seek to supplement the Complaint to include allegations of additional trespasses and nuisances that they have discovered since the Complaint was filed. The only prejudice argued by Defendants is that they have already deposed Plaintiffs an...

Excerpt: ...Memorandum of Points & Authorities, neither Defendant's Notice of Motion nor the Demurrer itself state that the Demurrer is being brought under Code Civ. Proc. § 430.10(a), which is the subsection dealing with subject matter jurisdiction. Thus, the jurisdiction argument was not properly noticed. Further, the cited authority does not establish that the Court lacks subject matter jurisdiction over this breach of contract claim. The Complaint is no...

Excerpt: ...18, 19 and 20. As to the Declaration of Gilg, the Court overrules Chantler's Objection 1 and sustains Objection 2. The Court exercises its discretion to not rule on Yeganeh's Objections since none of the matter to which Yeganeh objects was necessary or material to the Court's analysis of the present motion. (See Code of Civ. Proc. Sect. 437c, subd. (q).) B. Issue 1 (Sixth Cause of Action) Plaintiff Chantler's claim for action on a judgment is tim...

Excerpt: ...olves the objections to be raised in the motion. §435.5(a)(3) requires the moving party to file and serve with the motion a declaration stating either the means by which the moving party met and conferred and that they did not reach an agreement or that the party who filed the pleading that is the subject of the motion failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. The declaration of Gopal ...

Excerpt: ...ive Order, filed 2‐13‐19, which includes a request for attorney's fees, is GRANTED‐IN‐PART and DENIEDIN‐PART, as set forth below. Plaintiff has not filed any “Opposition” per se, but on 2‐19‐19, filed and served (by regular mail) a document stating Plaintiff “Objects” to the DA's Motion to Quash. Even if this document had been formatted and entitled properly, Plaintiff served it by regular mail, which violates Code Civ. Proc...

Excerpt: ...multiple counties, not just where the defendant(s) reside. In breach of contract cases, venue is proper, inter alia, where the contract work is to be performed. Code Civ. Proc. § 395(a). On a motion to change venue, the moving party bears the burden of establishing the facts necessary to justify a change of venue. Buran Equip. Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1666. The Complaint here alleges the contract was formed in, and perfo...

Excerpt: ...nterrogatories (Set One) within 14 days of this order. Defendant's request for sanctions is DENIED. Allstate's opposition does not respond to the arguments presented in the moving papers, and it is not supported by a declaration signed under penalty of perjury. Allstate's response is also deficient because the attached exhibits are not what they are purported to be in its memorandum in opposition. In any case, Defendant has demonstrated it is ent...

Excerpt: ...to bring the instant motion. Moreover, the motion is untimely pursuant to Code Civ. Proc. § 473(b), and the Court has no jurisdiction to consider it. Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36. Even if Mr. Thompson had standing and the motion was timely, it would be denied for lack of merit. Mr. Thompson provides no explanation as to what “mistake, inadvertence, surprise or excusable neglect” resulted in entry of the Court's July...

Excerpt: ...and Bonnie Rodemeyer (“Plaintiffs”) to File Second Amended Complaint is GRANTED IN PART and DENIED IN PART. Defendants Professional Computing Solutions, Inc. dba Silicon Segway and Jim Heldberg (“Defendants”) ask that this motion be denied for failure to comply with California Rules of Court Rule 3.1324(a). While Plaintiffs did not state what allegations are proposed to be deleted and amended, by page, paragraph and line number, Plaintiff...

Excerpt: ...Plaintiff leave to amend one cause of action. Plaintiff then filed a TAC five days after the statutory deadline for filing an amended pleading had expired. Under the circumstances, including the absence of any compelling showing of prejudice, the Court will exercise its discretion and accept Plaintiff's late‐filed TAC. § 473(a)(1). To the extent the County contends the Court lacks discretion to do so, the Court disagrees. Harlan v. Department ...

Excerpt: ...t retained at the time the default was entered cannot be the proximate cause of the entry of default under 473(b).” In that case, the defendants' counsel was not contacted until after default was entered on June 4. Although counsel was retained in August, counsel failed to move to set aside the default before judgment was entered in September. The court concluded that counsel's conduct was not the proximate cause of entry of default because he ...

Excerpt: ...de full and complete responses within 14 days of this order. To the extent Newsweek has already provided the information sought, it may respond accordingly. Structure asserts that Newsweek has waived objections for failure to respond to the discovery requests by October 2. The court agrees. With respect to this issue, however, the court notes that Structure refused to grant any extension for responding to its discovery requests. Further, during t...

Excerpt: ...laintiff's objection to Defendant's purported attempt to file a moving Memorandum of Points and Authorities of excessive length by manipulating typeface size and line spacing. (Opp. P&A at 1 and n.1). The Court also notes that Plaintiff's extensive use of footnotes brings her Opposing brief to a word‐count nearly identical to that of Defendant. The motion for summary adjudication is DENIED as to Issues 1, 2, and 3. A. Issue 1 – Damages 1. The...

Excerpt: ...d on “the judgment debtor” and “all members” of the LLC in which the judgment debtor purportedly owns an interest. (Code of Civ. Proc. § 708.320(a).) The Proof of Service does not show that this motion was served on Judgment Debtor METAMINING, INC., or on any members of Spiro Mining, LLC, or Coal Creek, LLC. It shows service on the LLCs, but the statute requires service on the LLCs' “members.” This defect in service was pointed out i...

Excerpt: ...x months. Second, defendant has not provided a proposed responsive pleading as required by the statute. Finally, defendant has not offered evidence to support a finding that the default was entered as a result of her mistake, surprise, inadvertence of excusable neglect. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court's ruling ...

Excerpt: ...for breach of contract and negligence cannot be established, and Plaintiffs fail to meet their burden of showing the existence of a triable issue of material fact. Code Civ. Proc. § 437c(p)(2); Calvillo‐Silva v. Home Grocery (1998) 19 Cal.4th 714, 735. Moving and opposing papers in a summary judgment motion must be supported by admissible evidence consisting of “affidavits, declarations, admissions, answers to interrogatories, depositions, a...

Excerpt: ...ion in Plaintiff's complaint are OVERRULED. Plaintiff's complaint properly asserts accounting as an alternative theory to his cause of action for breach of contract. California recognizes a cause of action for constructive trust. Michaelian v. State Comp. Ins. Fund, 50 Cal.App.4th 1093, 1114. Plaintiff is granted leave to amend the complaint within ten days of this order. If the tentative ruling is uncontested, it shall become the order of the Co...

Excerpt: ...confirming that Petitioner may install and use a second hoist at the south side location originally approved by the Harbor Master on March 28, 2014, this issue is DENIED AS MOOT. Petitioner acknowledges in its moving papers that at their October 17, 2018 Board meeting, “Respondents voted on a resolution authorizing Three Captains to install its second hoist and directing their General Manager to take all actions necessary to give effect to the ...

Excerpt: ...led to comply with CRC 3.1350(b), which requires that “[T]he specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” Defendants have not repeated the noticed issues verbatim in their separate statement. Further, Defendants have noticed and briefed issues, relating to Plaintiffs' c...

Excerpt: ... a default or default judgment entered against him or her as a result of his or her mistake, inadvertence, surprise or excusable neglect. In this case plaintiff is seeking relief from a default judgment entered in its favor, not any judgment or order entered against it. Furthermore, there is no showing that the default was the result of mistake, inadvertence, surprise of excusable neglect. The declaration of Nichol Alan De Guzman merely states th...

Excerpt: ...hus should not be allowed to recover attorney's fees for their time.” Opposition, p.4. Cross‐Defendant NAS, however, is not an attorney and did not represent itself. Cross‐complainant provides no authority supporting apportionment of fees between attorney and non‐attorney parties when those parties jointly file and prevail on an antiSLAPP motion to strike. See Ramona Unified Sch. Dist. v. Tsiknas, 135 Cal. App. 4th 510, 525, 37 Cal. Rptr....

Excerpt: ... resolve the objections to be raised in the demurrer. The declaration of Candace Shirley states only that a letter was sent to plaintiff's counsel. Consequently, the hearing on the demurrer is CONTINUED to March 27, 2019 at 9:00 a.m. in the Law and Motion Department so that the parties may meet and confer. The demurring party is required to file, no later than 7 days prior to the new hearing date, a code‐compliant declaration stating either (1)...

Excerpt: ...iled to provide the court with evidence of an executed or otherwise binding agreement between the parties. Instead, Plaintiff has provided a one‐page “Membership Application and Agreement” that appears to be an application for an account with Plaintiff. Notably, the application makes no reference to a line of credit. Plaintiff also relies on (1) an unsigned “Open End Loan Plan Agreement and Truth in Lending Disclosure,” and (2) monthly ...

Excerpt: ...(See Plaintiff's Statement of Undisputed Facts nos. 1, 3, 4, 6‐8, 10‐13, 15‐17.) Judgment shall be entered in favor of Plaintiff and against Defendant Arleen Gonzales for the principal amount of $32,925.50. Plaintiff also requests court costs of $1,033.00 as part of this motion. Plaintiff filed a Memorandum of Costs on November 1, 2018 at the same time this motion was filed. However, a prevailing party who claims costs must file and serve a...

Excerpt: ...ing resolution of the arbitration is GRANTED. Code Civ. Proc. § 1281.2 et. seq. California law favors the enforceability of arbitration agreements. See California Arbitration Act (“CAA”), codified by Code Civ. Proc. Sect. 1281, et seq.; Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal.4th 83, 97 (2000). Here, Plaintiff does not dispute that she entered into a binding and enforceable arbitration agreement. See 12‐19‐18 Cap...

Excerpt: ...o each request for production of documents with (1) a statement that the party will comply; (2) a statement that the party lacks the ability to comply; or (3) an objection. Code Civ. Proc. § 2031.210.  Where a statement of compliance is made, the party must state whether it will comply with a demand in whole or in part, and that all documents or things in the demanded category that are in the possession, custody or control of the party will b...

Excerpt: ...nd Bayview Loan Servicing LLC (“Bayview”) (also collectively “Defendants”) to the Second Amended Complaint (“SAC”) of Plaintiff Mele M. Uperesa (“Plaintiff”) is ruled on as follows: (1) Demurrer to the Second Cause of Action for Cancellation of Instruments is SUSTAINED WITHOUT LEAVE TO AMEND based on failure to allege facts sufficient to support this claim. This claim is alleged against MERS and BONYM. Plaintiff seeks to cancel wr...

Excerpt: ...920, 939. The improperly‐served Opposition (see Code Civ. Proc. § 1005(b), requiring service by overnight delivery), does not dispute that joining the proposed new defendants is proper, and does not identify any meaningful prejudice or other basis for disallowing the proposed TAC. Defendant questions the viability of the proposed new claims for “nuisance per se” and “interference with easement,” and the punitive damages claim against t...

Excerpt: ...le, or (3) identify the extent of the relief requested; i.e. what specific performance is sought by court order. In any case, however, the court finds that the contractual provision at issue is inscrutable. The disputed language provides: The valuation shall not include any discounts including discounts for lack of control or lack of marketability of the interest in the LLC, though the appraiser may consider discounts if necessary to be considere...

Excerpt: ...rike that portion of the SAC setting forth a cause of action for negligence is GRANTED. Paragraphs 87 through 107 of the second amended complaint are hereby stricken. Ocwen contends the entire SAC should be stricken because it was not timely filed under operation of CRC 3.1320. The court notes, however, there is a split of authority as to whether Plaintiffs must file a noticed motion seeking permission to file the late pleading, or whether the co...

Excerpt: ...ourt previously sustained Ocwen's demurrer to these causes of action and provided Plaintiffs with the opportunity to amend the complaint to plead facts sufficient to state a claim. The court's order provided, in pertinent part, as follows: As to the First Cause of Action for violation of Bus. & Prof. Code 17200, the Demurrer is SUSTAINED WITH LEAVE TO AMEND. This claim is predicated on the alleged HBOR statutory violations and common law claims a...

Excerpt: ...otion for Summary Judgment/Adjudication is GRANTED pursuant to California Rules of Court Rule 2.550(d). Based on the Motion, the document is confidential pursuant to the terms of the parties' discovery stipulation; although it was submitted in support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment/Adjudication, it had limited bearing on the legal issues necessary to adjudication of the motion; and based on those facts, the c...

Excerpt: ...om its making. (Civ. Code sect. 1624, subd. (a)(1).) However, if it is merely unlikely that it will be so performed, or the period of performance is indefinite, the statute does not apply. (Blaustein v. Burton (1970) 9 Cal. App. 3d 161, 185.) The statute of frauds applies only to contracts that “cannot” be performed within one year. (Hollywood Motion Picture Equip. Co. v. Furer (1940) 16 Cal. 2d 184, 187.) Even though a promise may not by its...

Excerpt: ...NIED. Defendant brings this motion under Code of Civil Procedure section 473.5, or alternatively, under Code of Civil Procedure section 473(d). Defendant seeks to set aside the default and default judgment for possession entered on March 7, 2017, and the default judgment for money entered on May 8, 2018. Plaintiff argues that the motion is untimely because Defendant failed to bring it within 180 days after service on Defendant of written notice t...

Excerpt: ... a married spouse of the injured plaintiff or to his or her registered domestic partner. (CACI 3920; Fam. Code sect. 297.5, subd. (c). Plaintiff's reliance on the Butcher case is unpersuasive; the Supreme Court rejected Butcher for the proposition cited by Plaintiff. (See Elden v. Sheldon (1988) 46 Cal.3d 267, 277, 279‐80.) Plaintiff LOPEZ does not allege that she is the spouse or registered domestic partner of Plaintiff ALFARO. Plaintiff LOPEZ...

Excerpt: ...ded Complaint (“FAC”) of Plaintiff Sean Bugayong (“Plaintiff”) is ruled on as follows: Motion to Strike the Claim for Punitive Damages in paragraph 65 of the FAC is GRANTED WITHOUT LEAVE TO AMEND. Plaintiff agrees to withdraw this claim for punitive damages. Motion to Strike the Prayer for Damages in paragraph 4.a of the FAC is GRANTED WITH LEAVE TO AMEND. For the Fourth Cause of Action, Plaintiff seeks “[d]amages for loss of earnings, ...

Excerpt: ...t is GRANTED. With respect to this cause of action, Masoli alleges that “Cross‐Defendants failed to send Cross‐Complainant a Notice of Intention to Sell Repossessed Vehicle that truthfully and accurately set forth ‘all the conditions precedent' to reinstatement of the Retail Installment Sale Contract in violation of Cal. Civil Code § 2983.2(a)(2).” Cross‐ Complaint, ¶ 69. Masoli, however, does not allege or explain how the notice, w...

Excerpt: ...��) of Plaintiff Sean Bugayong (“Plaintiff”) is ruled on as follows: Demurrer to the First Cause of Action for Fraud by CalCare is SUSTAINED WITH LEAVE TO AMEND for Plaintiff to allege facts sufficient to support this claim. Fraud against a corporation requires pleading facts that allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when i...