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: ... 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: ...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: ...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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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...