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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...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: ...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: ...��) 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...

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: ...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, ...