Excerpt: ...ct, conversion and common counts.” Notably, however, Plaintiff's complaint did not assert causes of action for breach of contract or conversion. Nonetheless, the complaint states facts sufficient to constitute causes of action for account stated and money lent, and the answer admits those facts. The answer, however, does not show on its face that it is incapable of amendment. As a result, the motion is granted with leave for Defendant to amend ...

Excerpt: ...to Defendant's demurrer, there is no requirement that a claim for breach of implied covenant must plead the plaintiff's performance of the contract. The authority cited in the Demurrer (Habitat Tr. For Wildlife v. City of Rancho Cucamonga) pertains to claims for breach of contract, not breach of implied covenant. B. Fourth and Fifth Causes of Action (Fraud, Negligent Misrepresentation) Demurrer is SUSTAINED as to Phuong T. Nguyen, DDS, Inc. The c...

Excerpt: ...3 months old. Trial is set for 9‐9‐19. There have been no trial continuances. Although Plaintiff seeks leave to amend relatively late in the case, the evidence before the Court does not demonstrate any prejudice compelling enough to justify denying leave to amend. The Opposition does not argue that granting leave would affect the 9‐9‐19 trial date. Indeed, the proposed FAC adds no new causes of action; all 9 causes of action were already ...

Excerpt: ...n dated February 6, 1992. Plaintiff has not identified a proper basis for judicial notice pursuant to Evidence Code Section 452. Defendant's Request for Judicial Notice is GRANTED pursuant to Evidence Code Sections 451 and 452. Defendant's Motion for Summary Judgment is GRANTED pursuant to Code of Civ. Proc. Section 437c. No triable issue of material fact exists as to the dates of record notice of Defendant's interest in the Property and Defendan...

Excerpt: ...a cause of action if that party has proved each element of a cause of action to entitle the party to judgment on the cause of action. (C.C.P. § 437c(p)(1).) Once the plaintiff has met its burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) Plaintiff presents evidence to establish all of the elements of the First Cause of Action for Br...

Excerpt: ...equested relief must be sought from the judge or court that entered the original sealing orders, under the general rule that “The power of one judge to vacate an order duly made by another judge is limited.” Greene v. State Farm Fire & Cas. Co., 224 Cal. App. 3d 1583, 1588 (Ct. App. 1990). The People have provided no authority indicating that this court can unseal records ordered to be sealed by another judge or court. Further, as indicated i...

Excerpt: ...or a Plaintiff to demur to them. However, California law requires that affirmative defenses be pleaded with ultimate facts. Demurrer is sustained because the affirmative defenses plead on legal theories, but not any ultimate facts. Defendants cite cases that recognize a fine distinction between proper ultimate facts and improper legal conclusions; such pleading must be read in context with other allegations. (See cases cited at Defendants' Opposi...

Excerpt: ...leging a fraud claim against a corporate defendant, a plaintiff must “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 it was said or written.” Lazar v. Sup.Ct. (Rykoff‐Sexton, Inc.) (1996) 12 C4th 631, 645. Newsweek has not alleged who made the alleged fraudulent representations or what was said. Consequently, Newsweek has fail...

Excerpt: ...h Trevor initially stopped, he left and later returned with his son, Defendant Lawrence Tam (“Lawrence”). The investigating police officer completed a traffic collision report that incorrectly identifies Lawrence, as the driver, and Trevor, as the son. Plaintiff filed this Complaint against Lawrence only, but then filed an Amendment to the Complaint substituting Trevor as Doe 1. Trevor brings this motion on the ground that Plaintiff improperl...

Excerpt: ...D pursuant to Evidence Code Sections 451, 452, and 453. Defendant's objections to evidence are DENIED. Plaintiff's objections to evidence are DENIED. Defendant's Motion for Summary Judgment, or in the Alternative Summary Adjudication is DENIED pursuant to Code of Civ. Proc. Section 437c. Defendant has not demonstrated that he is entitled to judgment as a matter of law as to any of the four causes of action in Plaintiff's Complaint. As to the Firs...

Excerpt: .... (SAC paras. 23 ‐ 27.) The new allegations do not describe conduct that is “extreme and outrageous” for IIED. Further, the wrongful conduct “must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Wilson v. S. California Edison Co. (2015) 234 Cal. App. 4th 123, 152.) The new allegations do not state or imply that Defendants' conduct was “directed at Plaintiff.” None of th...

Excerpt: ...egis Group of Northern California, LLC et. al.'s Demurrer to Plaintiff Sodini Enterprises, Inc., et. al.'s 5‐17‐19 First Amended Complaint (FAC) is OVERRULED. A demurrer challenges 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. In ruling on a demurrer, the trial court is required to construe the complaint liberally with a view of ...

Excerpt: ...er Plaintiff to file a proper one. Instead, the Court admonishes and directs attorneys John F. Martin, Marta R. Venegas, Brittany C. Jones, and the entire law firm of Martin& Vanegas to learn and comply with all Rules of Court in this and every other case. Plaintiff also has filed, without leave of court, two sets of supplemental evidence (July 19 and 22) after Defendant had already filed its Reply papers. Plaintiff never sought leave for the del...

Excerpt: ...nscious disregard of the rights and safety of others. Rather, the complaint alleges that the ant infestation and accumulation of dog droppings occurred, but not that Defendants caused them or that Defendants intentionally refrained from addressing the problems. As to the mold, Plaintiff alleges that he discovered the mold on June 30, 2017, and a restoration company began remediating just one week later. (SAC para. 16 & 17.) As to the shelving, Pl...

Excerpt: ...ty, Defendant it is entitled to judgment as a matter of law. The facts of this case are not in dispute. According to Plaintiff's complaint, on the evening of October 25, 2015, [P]laintiff was on the premises of the PALO MAR STABLES, there to visit with defendant ROBIN [HOWLAND] and/or to tend to her own horse. As she walked on the premises, she walked past the vicinity of [Ms. Howland's horse,] Valentino, who was at that time not properly in his ...

Excerpt: ...il Procedure Section 187, cited by Plaintiff as support for this Motion, authorizes the Court to use the means necessary to carry jurisdiction into effect, but does not specifically discuss a motion to stay the action. CCP Section 418.10(a)(2) reads “A defendant... may file a notice of motion… [t]o stay or dismiss an action on the ground of inconvenient forum.” Here, it is plaintiff moving for a stay, and the ground for the request is not r...

Excerpt: ... based on failure to allege facts sufficient to constitute a cause of action. (See Code of Civ. Proc. § 430.10(e).) The Complaint indicates that Plaintiffs are bringing causes of action for General Negligence, Intentional Tort and Premises Liability. (See Complaint ¶ 10.) It also appears Plaintiffs may be attempting to allege a cause of action for Breach of Contract as well. (See Complaint, ¶ 12.) However, “each complaint must have one or mo...

Excerpt: ... the choice of law provision contained in the parties' Agreement. Defendant Cheung contends that, notwithstanding the choice of law provision, California law applies to the dispute over attorney's fees pursuant to Rincon EV Realty LLC v. CP III Rincon Towers, Inc., 8 Cal. App. 5th 1 (Ct. App. 2017) and ABF Capital Corp. v. Grove Properties Co., 126 Cal. App. 4th 204, 220 (2005). The facts of Grove are similar to the present case: Plaintiff and re...

Excerpt: ...motion seeks to strike the request for “restitution” and “damages” in ¶1 of the XC's Prayer for Relief. As an initial matter, the Opposition brief argues a request for rescission may validly exist without any accompanying claim for restitution. This is irrelevant because CrossDefendants have not moved to strike the XC's request for a rescission; they only seek to strike the request for “restitution” and “damages” in ¶1 of the Pr...

Excerpt: ...f Action for “fraud in the inducement” and “promissory fraud” is OVERRULED. Cross‐Defendants argue the XC fails to allege any misrepresentation(s) of fact. It alleges, however, that Cross‐Defendants falsely represented, both on their website and orally, that (a) they had accelerated 120+ Startups; (b) they had obtained $400,000,000 for those startups; (c) those startups are currently valued at $4 billion; (d) they had partners and loc...

Excerpt: ... Before Trial (Rutter, Jun. 2019 Update) ¶ 9:102.6.) Respondent's Request for Judicial Notice is GRANTED, BUT NOT FOR THE TRUTH OF THE MATTERS ASSERTED THEREIN, as to: (1) Request no. 1 (Petition filed on March 28, 2019); (2) Request no. 5 (Petitioner's reply papers filed May 2, 2019); and (3) Request no. 6 (Court's tentative ruling and order of May 9 and 10, 2019). Respondent's Request for Judicial Notice is DENIED as to: (1) Re...

Excerpt: ...ent Agreement”) entered into with Defendant in August 2018. (See Campbell Decl., Exh. A.) The court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement, if requested by the parties. (C.C.P § 664.6.) The Settlement Agreement, which is signed by both parties, contains such a provision here. (See Settlement Agreement ¶ 23.) Plaintiff establishes that Defendant George P. Esho...

Excerpt: ...e to pay rent or quit based on the language in the Late Payment Schedule agreement (“agreement”). (See Complaint, Exh. 1, p.2.) However, the agreement does not contain any language requiring a 30‐day notice. Rather, the agreement provides that after 30 days, “an eviction notice will be posted.” (Ibid.) “Unless the rent is brought current and late fees are paid, the Tennant [sp] shall be vacated from the unit after 60 days of nonpaymen...

Excerpt: ...imited Dr. Steinberg's deposition to this period. In a January 29 letter to Plaintiff's counsel, defense counsel stated: Gary Steinberg, M.D. is available on 3/7 from 2:00 p.m. – 6:00 p.m. at Stanford. Unfortunately, this is the only available weekday Dr. Steinberg has within the next couple of months. If you are not available on this date, we will have to schedule his deposition on a Saturday. Please let us know. [Dolinski Decl., Ex. E] Plaint...

Excerpt: ...ation overcomes the right of public access to the records and supports sealing them. Absent an order sealing this information, defendant's rights will be prejudiced as the records would be available to the public. The proposed sealing is narrowly tailored and there is no less restrictive means to protect defendant's right to privacy. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant ...

Excerpt: ...esent Disclosure is operative, and Plaintiff may challenge it. Defendant correctly points out that there is no such thing as “cumulative experts” based on their specialty. Rather, the prohibition is against testimony that is cumulative. Plaintiff's motion does not identify any specific testimony of any expert witness that is cumulative of any other witness. B. Motion to Exclude Dr. Ament or to Disqualify Defendant's Counsel. The motion to exc...

Excerpt: ...Same Parties. The parties must stand in the same relationship (i.e., as plaintiff or defendant) in both suits. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789 [“absolute identity of parties” required].) In ED 1005's cross‐complaint in the Lease Action, the parties are identical to the unlawful detainer action, but only as to Vinh Nguyen. Defendant Broadway Prime Motorz is not a party to the cross‐complaint. Thus, ...

Excerpt: ...DENIED as moot. All proceedings in this action are hereby STAYED pending resolution of the appeal from this court's order granting Defendant's motion to quash service of summons in Docket No. 17‐CIV‐05088, assigned Appellate Case No. A157248, or until this court orders, upon a showing of good cause, that the stay should be lifted. The court finds that the Court of Appeals' determination in Appellate Case No. A157248 may have significant beari...

Excerpt: ...ealth & Safety Code § 1430(b), is OVERRULED. For purposes of the Demurrer, Defendant has not demonstrated the § 1430(b) claim(s) are time‐barred. The parties dispute whether the applicable statute of limitations is one year under Code Civ. Proc. § 340(a) (applicable to statutory “penalties”) or three years under Code Civ. Proc. § 338(a) (applicable to “all other claims for liability created by statute”). Defendant cites no case appl...

Excerpt: ...(or former attorney), or both. The moving papers indicate Defendant Virginia Gualberto was represented during part of the relevant time period by attorney James Imperiale. The Notice of Motion does not provide proper notice unless it states the specific person or persons against whom sanctions are requested. Second, the 6‐10‐19 Proof of Service does not demonstrate proper service of the moving papers. It states the papers were mailed to defen...

Excerpt: ...CTION 2000 at: i:6‐7, 16‐28; ii:1‐5; 1:2‐3, 5‐6, 15‐17, 23‐ 28; 2; 3:1‐3, 20‐28; 4:1‐23, 27‐28; 5:19‐22; 6:25, 27‐28; 7:11‐28; 8‐14; 15:1‐4, 6‐9. The portions of the DECLARATION OF DAVID ANDRIGHETTO IN SUPPORT OF MOTION TO CONFIRM VALUE OF SHARES IN ANDRIGHETTO PRODUCE INCORPORATED PURSUANT TO CORPORATIONS CODE SECTION 2000 filed herewith in redacted form at: 1:13‐28 2:1‐10, 16‐18, 22‐25; 3:1‐11; Exs. A...

Excerpt: ...otion Department. 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. Where the conflict of interest is alleged to be a concurrent representation, the “primary” value at issue is the attorney's duty, and the client's legitimate expectation of loyalty, rather than confidentiality. (Flatt v. Superior Court (1994) 9 Ca...

Excerpt: ...‐17 Order granting Plaintiffs' SLAPP motion. Code Civ. Proc. § 425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; Morrow v. Los Angeles Unified Sch. Dist. (2007) 149 Cal.App.4th 1424, 1446. Defendants have not challenged the charged hourly rates, which appear to be reasonable. Plaintiffs' appellate counsel is highly qualified. See 5‐17‐19 Sargent Decl. The charged rates of $650/hr. (for Mr. Russo) and $450/hr. (for Mr. Sargent, who ...

Excerpt: ...days after service of the demand. As a result, Plaintiff's waived any objections to the demand pursuant to CCP § 2031.260. Plaintiff contends that, pursuant to CCP § 2031.310, Defendant's motion is untimely because it was not filed within 45 days of Plaintiff's response on January 18. CCP § 2031.310 governs motions to compel further responses. Defendant, however, does not seek to compel further responses to the demand. Rather, Defendant seeks ...

Excerpt: ... counsel Jennifer Emmaneel told Plaintiffs' counsel Desmond Tuck that she was waiting for someone from the City to review and verify the discovery responses. (Email from Emmaneel to Tuck, April 29, 2019, Ex. 8 to Decl. of Emmaneel.) This suggests that the responses were substantially complete on that date. In the same email, Ms. Emmaneel stated that if she could not get a City representative to review and verify the responses, she might serve the...

Excerpt: ...efendant Little's capacity. There is a recognized right to privacy in medical records and communications. This privacy interest constitutes an overriding interest that overcomes the public right of access and supports sealing within the meaning of CRC 2.550. The proposed order is narrowly tailored. It seeks to seal only the document containing Dr. Landsverk's medical opinion relating to Defendant's Little's capacity. There does not appear to be a...

Excerpt: ...As a threshold matter, Defendant BMW argues this motion is preempted by federal law (Opp. at 6‐8). Because BMW's planned motion for summary judgment on the preemption issue has not yet been filed or decided, and that issue has not been properly raised, it is not a basis to deny or delay a ruling on this motion. Accordingly, the Court does not reach the merits of the preemption argument. However, the Court agrees that RFP Nos. 37‐38 and 40‐4...

Excerpt: ...limitations shall be tried separately from the issues of liability and damages. Defendant's request to have the issues tried before two separate juries is DENIED without prejudice at this time. The trial court is best positioned to weigh the issues of judicial economy and potential for prejudice to each party and determine whether separate juries are appropriate. If the tentative ruling is uncontested, it shall become the order of the Court. Ther...

Excerpt: ...C”), Plaintiff relies on two documents: a “Notice to the Partners” and a “Partner Sale Agreement.” [Porter Decl., ¶ 6, Ex. A] According to Plaintiff, “It was not until mid‐to‐ late 2017, when a third party provided me with the ‘Notice to the Partners' and ‘Partner Sale Agreement,' that I realized Mete Tan had actually sold me thirty (30) shares in Fox.” [Id.] Plaintiff, however, has not alleged any personal knowledge regard...

Excerpt: ... AS SET‐ BACKED PASS‐THROUGH CERTIFICATES, SERIES 2007—PA3 (“HSBC”), AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (“MERS”) (COLLECTIVELY “DEFENDANTS”) TO PLAINTIFF'S FIRST AMENDED COMPLAINT TENTATIVE RULING: A. First through Fifth Causes of Action – Statute of Limitations. Demurrer to the first, second, third, fourth, and fifth causes of action is sustained on the ground that they are barred by the applicable statutes of...

Excerpt: ...69–70; Cent. Pathology Serv. Med. Clinic, Inc. v. Superior Court (1992) 3 Cal. 4th 181, 190.) The allegations of “willful and conscious disregard” (para. 41, 49, 50) are not mere conclusions. They are supported by allegations of specific fact that AMERIGAS knew the pipes were non‐ compliant with the ordinance and that continuing to fill the tanks was dangerous. (Proposed SAC paras. 36‐39, 47, 48.) Allegations of director/officer approva...

Excerpt: ... FAC on December 19, 2018. It filed the present demurrer and motion to strike on May 17, after the time to file a responsive pleading expired. Accordingly, Cornerstone's motion is untimely. Cornerstone contends that “this motion is indisputably timely.” However, Cornerstone presents no argument or evidence in support of this position. Relation Back As noted in the court's ruling on the related demurrer, Cornerstone has provided no authority i...

Excerpt: ...act is SUSTAINED WITH LEAVE TO AMEND. This claim alleges WF breached ¶28 of the Deed of Trust (DOT), which Plaintiff contends states that Plaintiff may reinstate the loan up to five business days prior to the foreclosure sale. First, ¶28 of the DOT does not say that. And even if it did, the FAC still would not allege a breach because, as with the original Complaint, nowhere does the FAC allege that Plaintiff ever offered to reinstate the loan m...

Excerpt: ...19, 2018. It filed the present demurrer and motion to strike on May 17, after the time to file a responsive pleading expired. Accordingly, Cornerstone's motion is untimely. Cornerstone contends that there is “no timeliness issue” with respect to the present motions. However, no argument or evidence is submitted in support of this position. Facts Sufficient to State a Claim Cornerstone's demurrer fails on the merits for the same reasons set fo...

Excerpt: ...ion and has not provided a proposed answer as required by CCP §§ 473 and 473.5. The language of those statutes is mandatory, in that they require that an application for relief from default “shall” be accompanied by a proposed answer. Although Plaintiff appears to be willing to stipulate to set aside the entry of default, the court is not empowered to grant the requested relief due to Defendant's failure to satisfy the mandatory requirement...

Excerpt: ...fore this court. Accordingly, it's not clear whether CCP § 877.6 provides GE with authority to file an application for a good faith settlement determination. As set forth in CCP § 877.6, that statute applies to “a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors.” Because Defendant's complaint has not alleged that GE is a joint tortfeasor, it is not clear how this scenario fits ...

Excerpt: ...r expert and sent a witness disclosure statement to Plaintiff. [Gumear Decl, ¶¶ 5, 8, 9] Plaintiff has not opposed this motion and, accordingly, has not provided any reason why he would be prejudiced by augmentation of Defendant's expert witness list. The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses and has determined that Plaintiff will not be prejudiced in maintaining his actio...

Excerpt: ...the breached covenant is curable. Case law holds that a prohibitory covenant, once broken, cannot be cured. (See, e.g. Hignell v. Gebala (1949) 90 Cal.App.2d 61, 69 (lease required use as apartment house; tenant used it for real estate business; breach was incurable); Pfitzer v. Candeias (1921) 53 Cal.App. 737, 739‐740 (livestock raised on land leased for growing alfalfa held to be noncurable breach).) Here, Defendant's alleged breaches of cove...

Excerpt: ...he repeated interruptions and interjections by defense counsel, Plaintiff cites no authority indicating that CCP § 2025.290 excludes breaks or interruptions from the permitted “seven hours of total testimony.” Third, the Court notes that when Plaintiff's counsel adjourned the deposition, he stated “This has been – this has been plenty long for me, starting at 9:00 to 4:00.” At the conclusion of the deposition, counsel did not indicate ...

Excerpt: ...tiffs contend that the Court may enforce Defendant's payment obligation under Code of Civil Procedure section 664.6 without the parties' having signed the separate settlement agreement; Defendant contends that without a signed separate agreement, enforcement under section 664.6 is not permissible. The Court does not decide whether enforcement of the October 16, 2018, agreement is possible without an executed separate settlement agreement. The sig...