Excerpt: ... Settlement is tentatively ruled upon as follows. This Court GRANTS preliminary approval of the Settlement as set forth in the First Amended Joint Stipulation and Settlement Agreement attached as Exhibit 4 to the Declaration of David Bibiyan (“Bibiyan”). On February 3, 2022, this Court filed a written order denying preliminary approval without prejudice and identified issues that the Court wanted addressed. On March 7, 2022, Plaintiffs filed ...

Excerpt: ...prejudice and has not misled the other side, even if the request is delayed, the liberal policy of allowing amendments prevails and it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. Higgins v. Del Faro (1981) 123 Ca1.App.3d 558, 564‐565. “The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: ‘If the motion to amend is timely made and the grantin...

Excerpt: ...nce per se, and a survival claim. Plaintiff also seeks to add Vaishali Bhardwaj as a defendant. According to the declaration of Plaintiff's counsel, further investigation revealed additional facts relevant to the Complaint after counsel substituted into this case in September 2021. Sachs Decl., ¶ 4. Requests to amend are to be liberally granted. Nestle v. City of Santa Monica (1972) 6 Ca1.3d 920, 939. When amendment would not prejudice and has n...

Excerpt: ...cal Rule 3.403 for the April 19, 2022 hearing. The Court SUSTAINS without leave to amend Defendant Twitter, Inc.'s demurrer to the complaint. The Court GRANTS Defendant's Request for Judicial Notice: Pursuant to Evidence Code §452(d), the Court may take judicial notice of court records, but only as to the fact that these documents were filed in the federal court in a case by Plaintiff against Defendant and not the contents therein, which are hea...

Excerpt: ... against Defendant Social Concepts Inc. is GRANTED. The Court GRANTS Plaintiff's and Defendant's Requests for Judicial Notice. Document Request Defendant has withdrawn its attorney‐client and work product objections. Declaration of Donald F. Drummond in Opposition to Motion to Compel and in Support of Motion for Protective Order ¶ 3. The Court overrules the objection that the request seeks documents that are not material or reasonably calculat...

Excerpt: ... about January 10, 2022. Plaintiff American Express Bank's Motion for Summary Judgment, filed 1‐11‐22, is GRANTED. Code Civ. Proc. Sect. 437c. Plaintiff's alternative Motion for Summary Adjudication is therefore DENIED AS MOOT. Having reviewed the parties' briefing and evidence, the Court finds that Plaintiff met its initial burden of presenting evidence demonstrating that Defendant Lilia Rodriguez: (a) entered into a credit card agreement wi...

Excerpt: ...) First, the court determines whether plaintiff may bring the action and force the claimants to interplead. (Id. at 1126‐1127.) Second, if it is so determined, then the court discharges plaintiff and then determines the rights of the various claimants to the property deposited with the court. (Id. at 1127.) Plaintiff presents evidence to support that it is a mere stakeholder that has no interest in the $64,500 funds that it seeks to interplead,...

Excerpt: ...tion to strike the “conspiracy” allegations from the SAC, Para. 50 and 51, is DENIED. The motion argues the conspiracy allegations are improper because the SAC does not properly plead fraud or elder abuse against the Luthra Defendants. It also argues the Luthras owed no “duty” to the Plaintiff, and therefore, cannot be held liable for “conspiracy.” The authority cited for that proposition, however, appears distinguishable. The Court i...

Excerpt: ...mur to the SAC's First, Second, Fourth, and Fifth Causes of Action (alleging “cancellation of instruments,” fraud, financial elder abuse, and violation of Bus. & Prof. Code Sect. 17200). The SAC generally alleges that the Luthra Defendants, together with the Love/Williams/Omega Defendants, participated in a fraudulent scheme/plan to damage Plaintiff by arranging a purchase of Plaintiff's Millbrae property in which (a) all Defendants would rec...

Excerpt: ... on failure to state facts sufficient to support this claim. Government Code section 835 provides for liability of a dangerous condition of public property by a public entity. First, the County asserts that Plaintiffs has not pled facts to support its liability under either section 835(a) or (b). Plaintiffs allege facts sufficient to support that the County had actual notice under section 835(b) to support this claim though. In order to sufficien...

Excerpt: ...ce of Administrative Hearings and Department of Developmental Services and Real Party in Inter Golden Gate Regional Center (“GGRC”), which denied that she was eligible for services under the Lanterman Developmental Disabilities Act. On February 4, 2022, Vivian filed her opening brief, on March 4, 2022, GGRC filed its opposition brief, and on March 21, 2022, Vivian filed her reply brief. The parties filed a Joint Submission of Record. PROCEDUR...

Excerpt: ...s. Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. Finley and McGuire, California Summary Judgment and Related Termination Motions |August 2021 Update, § 2:63, citing Kim v. Reins International California, Inc. (2020) 9 Cal. 5th 73. It is undisputed that the California State Personnel Board (SPB) issued an order on December 13,...

Excerpt: ...a case by Plaintiff against Defendant and not the contents therein, which are hearsay in the present action. “The court cannot accept as true the contents of pleadings … in the other action just because they are part of the court record of file. Such documents are inadmissible hearsay in the present case.” Weil & Brown, Cal. Practice Guide, California Civil Procedure Before Trial (TRG 2021) ¶7:15.1, citing Day v. Sharp (1975) 50 Cal.App.3d...

Excerpt: ...d March 21, 2022 has the Court making a finding that the Settlement was entered into in good faith pursuant to Code of Civil Procedure § 877.6, proposed order at 2, when the memorandum of points and authorities does not discuss any of the factors that the Court must consider under Tech‐Bilt, Inc. v. Woodward‐Clyde & Assocs. (1985) 38 Cal.3d 488, to find a good faith settlement. Background This is a PAGA and putative class action regarding ov...

Excerpt: ...teenth affirmative defense provides: “As a separate and affirmative defense, defendants contend that plaintiffs' complaint, each cause of action thereof and/or remedies sought are barred by the doctrine of estoppel.” SAA, ¶ 14. As noted by Plaintiffs, the answer must aver facts “as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.” Weil & Brown, Cal. Prac. Guide Ci...

Excerpt: ...ns received or generated from November 1, 2020 to present, relating to the management” of Respondent's open spaces and the Parks and Recreation and Open Space Management Plan. Exhibit 1 to the Declaration of Scott Rennie in support of Respondent's Opposition filed January 28, 2022 (“Rennie Decl.). On March 19, 2021, Respondent informed Petitioner that it needed more time to review documents. On April 1, 2021, Respondent determined that there ...

Excerpt: ...in this case DENIES Plaintiff's motion to reopen discovery for the reasons set forth below. Plaintiff filed this action in September 2019, and the case was initially set for trial in December 2020. Due to the Covid‐19 pandemic, trial was continued to January 26, 2022. Plaintiff served an Expert Witness Disclosure on Defendants on December 6, 2022. Liang Decl.. ¶ 6; Ex. C. Plaintiff's current counsel, Sam Fareed, was substituted into this case ...

Excerpt: ...Motion tentative rulings. For the reasons stated below, having reviewed the parties' briefing and supporting evidence, and in exercise of the Court's discretion, the Court hereby DENIES Petitioners Coalition of Pacificans for an Undated Plan et. al.'s (“Petitioners”) Motion for Sanctions, filed 2‐7‐22. Code Civ. Proc. Sects. 128.5, 128.7. Petitioners seek sanctions against Real Parties in Interest Javier Chavarria (“Chavarria”) and Vi...

Excerpt: ...t to arbitrate these claims exists. Instead, Plaintiff claims that the arbitration agreement is unconscionable because Defendant put the onus on Plaintiff, as the employee, to opt out of the arbitration agreement. The party opposing arbitration has the burden of proving that the arbitration provision is unconscionable. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.) Unconscionability has both a procedural and substantive element, a...

Excerpt: ...es of action. See Weil & Brown, California Practice Guide: Civil Procedure Before Trial §7:129 (TRG 2021) (Although leave to amend is routinely granted, it is proper to deny amendment when the complaint shows on its face that it is incapable of being amended.). After the Court sustained the Scopazzi Defendants demurrer to the Second Amended Complaint finding that there were no facts alleged which demonstrated justifiable reliance on the alleged ...

Excerpt: ... to demonstrate that there are additional facts, which would state a cause of action, the Court finds that based upon the facts previously alleged and the omissions from the original complaint, which were omitted in the First and Second Amended Complaints, further amendment would be futile. (See Weil & Brown, California Practice Guide: Civil Procedure Before Trial §7:129 (TRG 2021) (Although leave to amend is routinely granted, it is proper to d...

Excerpt: ...n Lei's Asset Disclosure Exhibit A containing a list of Ms. Lei's real properties in London and Macau; (2) those portions of Ms. Lei's Asset Disclosure Exhibit B, containing a list of Ms. Lei's bank or financial accounts; (3) those portions of Ms. Lei's Asset Disclosure Exhibit C, containing a list of Ms. Lei's personal property valued at over $10,000; and (4) those portions of Kei Leung's document production containing Mr. Leung's financial docu...

Excerpt: ... the complaint within ten days after this action was commenced. (See Labor Code section 2699(l)(1). The Court does not see evidence that the complaint was filed with LWDA within that ten day period. Second, the parties shall explain why they decided to have any uncashed checks escheat to the general fund rather than select a cy pres recipient whose mission is to fulfill the purposes of PAGA. Third, it is unclear the amount Plaintiff is seeking fo...

Excerpt: ...losed: Plaintiff Michael D. Liberty and I previously worked at the same law firm until Mr. Liberty left the firm over 20 years ago and were co‐counsel on at least one matter over five years ago. While we were colleagues, we socialized on occasion at firm functions. More recently, Mr. Liberty was opposing counsel on a matter I was handling just before my appointment to the bench. I do not believe I have socialized with Mr. Liberty for at least 8...

Excerpt: ...ber 1, 2020, Plaintiff sent the following email to Defendants, which provides in relevant part: From: Debra Myers Subject: Re: 202 14th Avenue Date: November 1, 2020 at 9:26:15 AM Good Morning Sue and Bob, […] I accept that the move is real and I will be leaving my home of 34 years. That said, I am still uncomfortable with the reason I have to leave. I have contacted a friend of mine who is a tenant rights[‘] attorney and I have attached some...

Excerpt: ...ry motion to review before granting it.” California Judge's Benchbook: Civil Proceedings Before Trial § 6.21 (Thomson Reuters 2021). Therefore, the Court has substantively reviewed Defendants' demurrer. Defendants demur to the entire Complaint on the ground that it fails to allege facts sufficient to constitute any cause of action. (See Defendants' Demurrer.) However, Defendants also argue in their Memorandum that the Complaint is uncertain. (...

Excerpt: ... for Deposition and Provide Further Discovery Responses is GRANTED. The Court imposes terminating sanctions and therefore dismisses Plaintiff's case. Alternatively, if that order is not upheld, the Court issues evidentiary sanctions and strikes portions of the prayer. This Court is familiar with this case having presided over key motions when it was Law and Motion judge and having been the single assigned judge on this case since December 4, 2020...

Excerpt: ... 3294. Meet and Confer GM has not filed the meet and confer declaration required by Code Civ. Proc. Sect. 435.5. The argument in GM's Memorandum of Points & Authorities that “GM made a good faith attempt to meet and confer to resolve the issues in this motion to strike without the need for court intervention, but was unsuccessful despite its best efforts,” does not satisfy Sect. 435.5, which requires a sworn declaration attesting to a proper ...

Excerpt: ...mpany v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017, 1024, 209 L.Ed.2d 225 quoting Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 919. Specific jurisdiction is different: It covers defendants less intimately connected with a State, but only as to a narrower class of claims. The contacts needed for this kind of jurisdiction often go by the name “purposeful availment.” Burger King Corp. v. Rudzewicz, 471 ...

Excerpt: ...ct to the first cause of action for cancellation of the parties' agreement, and as to the third cause of action for fraud. 1 st COA ‐ Cancellation Defendant contends “Plaintiffs' cause of action is based on the alleged deficiencies of the components of the Contract itself, which Plaintiffs received and entered by September 8, 2014. . . . Therefore, the statute of limitations began to run and would have expired on or about September 8.” MPA,...

Excerpt: ...any other person or his property.” (Bewley v. Riggs (1968) 262 Cal.App.2d 188, 194.) “The driver of an automobile is bound to use reasonable care to anticipate the presence on the highway of others who have equal right to be there . . . .” (Hill v. Peres (1934) 136 Cal.App. 132, 137.) “It cannot be disputed that [a motorist owes] a duty . . . not to drive under the influence of alcohol . . . .” (Bryant v. Glastetter (1995) 32 Cal. App. ...

Excerpt: ...D. Plaintiff's Motion for Summary Adjudication is GRANTED in part pursuant to Code of Civil Procedure §437c(f) with respect to the Ninth Cause of Action for Failure to Provide Records and DENIED with respect to the remainder of the motion, as follows: Procedural Issues in Plaintiff's Motion Plaintiff's motion fails to comply with the California Rules of Court Rule 3.1350(b) regarding identification of all issues in the notice of motion. Defendan...

Excerpt: ...tation and Second Cause of Action for Fraudulent Concealment is OVERRULED. Cross‐Defendant asserts that Cross‐ Complainant cannot allege facts to support justifiable reliance because the fee sharing agreement that Cross‐Complainant seeks to enforce is unlawful and against public policy because it fails to comply with Professional Rules of Conduct Rule 1.5.1. Rule 1.5.1 governs fee divisions among lawyers that are not in the same law firm, a...

Excerpt: ...n Order to Show Cause re Failure to Complete ADR Process on August 10, 2021; and (2) a Case Management/Trial Setting Conference on August 10, 2021, where the Court set a jury trial for March 9, 2022, a Pretrial Conference on February 7, 2022, and a Mandatory Settlement Conference on February 24, 2022. The parties failed to file any of the documents required by the Pretrial Order, e.g. motions in limine, jury instructions, witness and exhibit list...

Excerpt: ... is DENIED. The Motion addresses only the open book account and account stated claims, even though Plaintiff alleges other common count claims in the Complaint. Therefore, Plaintiff fails to meet its initial burden of establishing that it is entitled to summary judgment. However, the Motion for Summary Adjudication to the open book account claim is GRANTED. Plaintiff presents evidence to establish all the elements of an open book account claim fo...

Excerpt: ...m seeking an award of costs of proof under section 2033.420. The case Plaintiffs rely on, City of Glendale v. Marcus Cable Assocs., LLC, 235 Cal. App. 4th 344, 348 (2015), is distinguishable since it involves a federal law that expressly limited remedies to equitable relief. Under section 2033.420, if a party fails to admit the truth of any matter when requested to do so, and if the party requesting that admission thereafter proves the truth of t...

Excerpt: ...led their SLAPP motion. On August 24, 2021, the Court granted Plaintiff's motion to conduct limited discovery pursuant to Code of Civil Procedure § 425.16(g). The written order was filed on September 23, 2021. On October 26, 2021, Plaintiff filed her opposition to the SLAPP motions and on November 1, 2021, Defendants filed their replies. Between the time that Defendants filed their motion and Plaintiff filed her opposition, the Supreme Court iss...

Excerpt: ...nd Melanie Cole, as an individual (“Plaintiff”) is ruled on as follows: The Demurrer to the First Cause of Action for Breach of Contract is OVERRULED. Plaintiff alleges facts sufficient to support that Defendant is liable for breach of contract based on Defendant's alleged breach of the written Admission Agreement. (See FAC, ¶¶ 65, 67, and Exh. A, ¶¶ 8, 10.) The term “supervision promises” is not so uncertain that Defendant cannot rea...

Excerpt: ...t”) is ruled on as follows: The Motion for Summary Judgment is DENIED. The Motion addresses only the open book account and account stated claims, even though Plaintiff alleges other common count claims in the Complaint. Therefore, Plaintiff fails to meet its initial burden of establishing that it is entitled to summary judgment. The Motion for Summary Adjudication to the open book account and account stated claims is also DENIED. Plaintiff's ev...

Excerpt: ... and building materials furnished to Plaintiffs but not paid for, that factual allegations in the lien were verified under penalty of perjury as true by Defendant Berry, and that the factual allegations made in the lien were untrue. Complaint, ¶15. Defendant Berry signed the lien as the agent of Verco Ex. B to Complaint. These allegations are taken as true for purposes of demurrer. Plaintiffs sue Berco and Berry in the first cause of action for ...

Excerpt: ...requiring Plaintiff to provide verified responses to Defendant's Form Interrogatories, Set One, Special Interrogatories, Set One, and Demands for Inspection, Set One. According to the declaration of Defendant's counsel, “To date, plaintiff has failed to comply with the Court's orders and has failed to properly respond to discovery.” Olsen Decl., ¶ 8. Defendant does not seek any lesser sanctions in its notice of motion or motion. Defendant re...

Excerpt: ...ed each of the specific requests for sealing as well as the pleadings filed regarding this motion. This Court in exercising its discretion, after considering and balancing all the factors in California Rule of Court 2.550 and NBC Subsidiary (KNBC‐TV), Inc. (1999) 20 Cal. 4th 1178, 1204 (“KNBCTV”) specifically finds for each of the portions identified below: (i) there exists an overriding interest, which (ii) overcomes the right of public ac...

Excerpt: ...ing the record and weighing the Tech‐Bilt factors finds that Transmetro has met its burden of demonstrating Plaintiff's settlement with Defendants A3 Mobility, LLC and Jose Antonio Rodriguez, Jr., for the collectively sum of $50,000, was not entered into in good faith for purposes of Code Civ. Proc. Sect. 877.6 and Tech‐Bilt, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499‐500. Even without considering the sworn November 10,...

Excerpt: ...or Settlement or Judgment (the “Stipulation”) signed November 9, 2020 by Joe Iskander, President of Defendant Synectic Packacking, Inc. Paragraph 6 of the Stipulation specifies that the Court shall retain jurisdiction of the stipulation pursuant to Code of Civil Procedure § 664.6. Paragraph 1 provides that Defendant acknowledges a debt owing to Plaintiff by Defendant is “is $329,841.80 principal, interest on said amount at the rate of ten ...

Excerpt: ...the “prevailing party” on the Petition to Release Mechanic's Lien. Petitioner contends that “Petitioner is the prevailing party as it obtained the relief sought in its Petition as evidence by the subsequent release of the Subject Mechanics Lien.” MPA, p.3. Petitioner notes that “Respondent's initial refusal to release the Subject Mechanics Lien caused the filing of the Petition and Respondent should not be able to avoid the consequences...

Excerpt: ...occurred on February 7, 2019, but this action was not filed until more than two years later on June 28, 2021. Defendant acknowledges that the Judicial Council adopted California Rules of Court, Emergency Rule 9 though. Rule 9 tolled statutes of limitations for civil causes of action from April 6, 2020 until October 1, 2020, but Defendant argues that Rule 9 only applies to statutes of limitations that expired during this time frame. The Court find...

Excerpt: ...nd dryer are personal property that remained in the premises after the deadline to vacate. (Decl. of Tsang, Ex. 4.) Further, Defendants were required to remove all trash except “any trash from the outdoor spaces which has been left by Plaintiff . . . .” (Stipulation para. 2.) Plaintiffs' opposing evidence shows extensive amounts of trash and refuse left in the yard of the rented property (Decl. of Tsang, Ex. 4) and in Plaintiffs' adjacent vac...

Excerpt: ... the Complaint alleges compliance with applicable claims statutes, the government claim attached to the Complaint shows that Plaintiff did not file it within six months of the accrual of her cause of action, as required by Gov't Code § 911.2. Facts appearing in exhibits attached to the complaint are given precedence over inconsistent allegations in the complaint. (Moran v. Prime Healthcare Mgmt., Inc (2016) 3 CA5th 1131, 1145‐1146.) Plaintiff ...

Excerpt: ...st not use the information produced in this case in any other proceeding. The issue for the Court to resolve is whether the stipulated protective order, signed by the Court on October 19, 2021, allows Plaintiffs to use the information produced by Lei in this case to file cases in other jurisdictions to freeze her assets. A court may in its discretion enter a protective order to prohibit the disclosure of confidential information. See Raymond Hand...

Excerpt: ...aim for false or fraudulent misrepresentation under Bus. & Prof. Code § 7160, he is entitled to attorney's fees as the “prevailing party.” The Court, however, has previously rejected this argument, asserted in Mr. Paycheck's opposition to Defendants' motion for attorney's fees. (9/30/21 Opposition, p.4) As noted in the Court's October 26, 2021 tentative ruling, which was incorporated in the Court's November 16 Order: Only one of Paycheck's f...

Excerpt: ...nd that the Complaint fails to state facts sufficient to constitute a cause of action. Defendants do not assert that the notice fails to advise them of the conduct alleged to have constituted a violation of Cal. Code Civ. Proc. § 1161(4). Rather, Defendants contend that the conduct alleged in the notice does not amount to a nuisance or violation of the law under Section 1161(4). Defendants' argument is unpersuasive for the reasons set forth belo...

Excerpt: ... because the challenged evidence is not deemed material to disposition of the motion. (Code of Civ. Proc. § 437c, subd. (q).) TCLC alleges claims of damages arising from being constructively evicted after Defendant De Ritz (“LANDLORD”) failed to make tenant improvements that were required by the Lease. LANDLORD's motion argues that (1) its obligation to perform never arose because TCLC failed to fulfill a condition precedent of providing pro...

Excerpt: ...s”) to defendant BBV, Nos. 24‐52, is GRANTED‐IN‐PART. The motion for protective order is GRANTED. In the Court's discretion, the sanctions requests are DENIED. The intrusiveness of Plaintiff's discovery requests clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. Code Civ. Proc. Sect. 2017.020(a). Discovery rights are broad, but not limitless. The information/documents sought mus...

Excerpt: ...mplant Dentistry Institute LLC to Active Status is DENIED. BAII seeks reconsideration on the ground that the Court erred in granting relief on the basis of Government Code section 12261(a)(2), but a section 1008 motion is not the proper vehicle for correcting judicial errors. Glob. Protein Prod., Inc. v. Le (2019) 42 Cal.App.5th 352, 364. Nonetheless, the Court has broad and inherent powers to reconsider its rulings (see, e.g., Marriage of Bartho...

Excerpt: ...e Court's July 27 ruling provides as follows: Once again, Petitioners have provided no clear argument or pertinent authority indicating that the judgment was issued based on an incorrect or erroneous legal conclusion. They want the Court to consider new alleged facts, which is not a proper basis for a motion to vacate. A motion to vacate the judgment may only be brought when the trial judge draws an incorrect legal conclusion or renders an errone...

Excerpt: ...Civil Procedure § 425.17(b) arguments and explain how the facts of those cases are similar to the allegations of Plaintiff's complaint. Regarding Prong 1 of the Code of Civil Procedure § 425.16 analysis, the Court refers the parties to Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995 and Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, which were not cited in their briefs. Plaintiff shall refer to where in ...

Excerpt: ... notice under Code of Civil Procedure section 1005(b). Thus, this Motion is continued to provide adequate notice to Plaintiff First Resolution Investment Corporation (“Plaintiff”). Defendant is to provide notice of this new date to all parties and file the proof of service by November 22, 2021. If the proof of service is not filed showing timely service, the Court will not consider the motion. Additionally, the Court has reviewed Defendant's ...

Excerpt: ... Electric, Inc., Richard Wulff, and Ann Wulff. A. The Motion to Vacate Default Is Untimely. Before moving to vacate the default judgment, Defendants must first vacate the entry of default. A motion to vacate entry of default must be filed timely, but in no case more than six months after entry of default. Defaults were entered against Wulff Electric and Richard Wulff on September 29, 2020. Default against Ann Wulff was entered on October 13, 2020...

Excerpt: ...�21, 2‐ 8‐21, and 2‐9‐21, the opposition papers, filed 3‐9‐21, and the reply, filed 3‐16‐21. The Court did not need to consider the amended opposition papers of Plaintiff Mary Elizabeth LeMasters (“Plaintiff”), filed 10‐12‐21. The Court also did not consider Plaintiff's Exhibit Nos. 6‐ 20. Plaintiff attempted to file these documents under seal on October 12, 2021, pursuant to the parties' 6‐3‐20 Stipulation and Order...

Excerpt: ...ation of Civ. Code Sect. 8800. See 5‐10‐ 19 Complaint; Civ. Code Sect. 8800 (“In an action for collection of the amount wrongfully withheld, the prevailing party is entitled to costs and a reasonable attorney's fee.”). The Sarnas are the prevailing parties, having achieved their litigation objectives, given the Court's determination following the May 2021 trial that because Paycheck was not duly licensed at all times during the project, �...

Excerpt: ...ation of Instrument is SUSTAINED with leave to amend. The claim to cancel the Luthra Deed of Trust and the Trustee's Deed does not involve Stewart, which was not a party to the Deed of Trust or the Trustee's Deed. Cancellation of those instruments calls for no action on Stewart's part, and Stewart will be unaffected by the cancellation of those instruments. Plaintiff argues that consequential damages such as escrow and closing costs may be recove...

Excerpt: ...nsel for Monterey met and conferred with counsel for Petitioners by email and telephone to discuss the issues raised by the Demurrer prior to filing the Demurrer. Kontabecki Decl., ¶¶ 7‐20. Monterey's Request for Judicial Notice is GRANTED. The Court takes judicial notice of the existence of the documents, but not the truth of the matters within them. The Court notes that the official writings are not certified, but there is no objection by P...

Excerpt: ...notice of motion filed August 20, 2021 lists three grounds for the motion: (1) Reconsideration of Statement of Decision; (2) Credit of Settling Surety Party; and (3) CrossDefendant prevailing party attorneys' fees. Notice at 2. His memorandum of points and authorities, however, only addresses the first issue, the Statement of Decision. Memorandum of Points & Authorities in Support of Motion re: Reconsideration of Statement of Decision filed Septe...

Excerpt: ...ds to be provided: Plaintiff William Lombardini's motion to compel further responses to Form Interrogatory 17.1 is GRANTED. A. Subpart (b) ‐ Facts Explaining the RFA Denials Defendant's Opposing declaration states, “I . . . generally described the nature of the assistance and/or guidance I provided to him in the interrogatory responses.” (Decl. of Makada ¶ 4.) This is not accurate. Defendant's response to that “Mr. Lombardini had difficu...

Excerpt: ...oduction of Documents (RFPs) to Defendants Dr. Ihab Hanna and the two “Entity defendants” (Defendants “BAII” and “BAIC”), is GRANTED‐IN‐PART and DENIED‐IN‐ PART, as set forth below. Protective Order Defendants have raised HIPAA/privacy/trade secret concerns regarding documents that may contain (dental) patient information, and Defendants have requested that Plaintiff agree to sign a Protective Order addressing these concerns/o...

Excerpt: ...mpel further responses to Form Interrogatory 17.1 is GRANTED. A. Subpart (b) ‐ Facts Explaining the RFA Denials Defendant's Opposing declaration states, “I . . . generally described the nature of the assistance and/or guidance I provided to him in the interrogatory responses.” (Decl. of Makada ¶ 4.) This is not accurate. Defendant's response to that “Mr. Lombardini had difficulty resolving cases without assistance” and “Mr. Makada wa...

Excerpt: ...issued its remittitur. The Demurrer of Defendants Richard George and Sandrine Clark (“Defendants”) to the Complaint of Plaintiff Triton Property Investments, LLC (“Plaintiff”) is OVERRULED. Defendants first argue that the Complaint fails to state facts sufficient to support an unlawful detainer claim because the Notice of Terminating of Tenancy (“notice”) was posted and mailed without any alleged attempt to personally serve the notice...

Excerpt: ...y Adjudication is GRANTED. The Court also GRANTS summary adjudication on Issue Nos. 1 and 4 as to general negligence (but not gross negligence). The Motion for Summary Adjudication is otherwise DENIED. Plaintiffs Kurt and Elvira Reitman's 1‐15‐20 Complaint asserts three causes of action against Defendant Ngo: negligence, “gross negligence,” and loss of consortium. An amendment to the Complaint names another defendant in place of Doe 1. A ...

Excerpt: ...supervisor at Mark Thomas & Company (“Mark Thomas”) and for him to produce documents. Plaintiff claims that Defendants are on an improper fishing expedition, she has a privacy right in her employment records that Defendants cannot overcome, and that the document demands are impermissibly broad. Working backwards, the Court address the document demand first. Defendants acknowledge that Mark Thomas has already produced documents in response to ...

Excerpt: ...his Motion is whether emails and text messages between Plaintiff and Myers should have also been produced in response to Defendants' Second Amended Deposition Subpoena. (See Ewins Decl., Exh. A.) The document request at issue states: All DOCUMENTS (which is defined herein to mean any writing as defined by California Evidence Code Section 250) and other records (including, but not limited to, audio recordings, notes, treatment records, test result...

Excerpt: ... When ruling on a demurrer, a trial court must admit “all material facts properly pleaded” and “also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38. Moreover, “[i]f the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of th...

Excerpt: ...iff's or Defendant's objections; the challenged evidence was not material to disposition of the motion. (Code of Civ. Proc. § 437c, subd. (q).) The Court grants Plaintiff's Request for Judicial Notice as to Exhibits 1, 2, and 3 and Defendant's Request for Judicial Notice as to Exhibits 15 through 26. The Court reminds Counsel for both parties to comply with California Rules of Court. E‐filed documents must be electronically bookmarked, includi...

Excerpt: ...,740.62. This case was single‐assigned to the Hon. Nancy L. Fineman, who presided over the pre‐trial hearings and trial in this matter. The parties' lease contains an attorneys' fees clause. Complaint, Ex. A, ¶ 23. Plaintiff is the prevailing judgment as a result of the judgment in his favor. Accordingly, he is entitled to attorneys' fees. Attorney fees are ordinarily determined by the court pursuant to the “lodestar” method. Under the l...

Excerpt: ...t's 3‐9‐21 Minute Order sustaining JAMS' Demurrer to this same cause of action in the First Amended Complaint (FAC), the FAC did not allege that Plaintiff and Waterville ever agreed to arbitrate before JAMS. Similarly, the SAC recites Plaintiff's and Waterville's arbitration agreement, in which they agreed to arbitrate any dispute arising from the vehicle purchase before AAA, “or any other organization … subject to [Waterville's] approval...

Excerpt: ...on ex partes due to the COVID 19 pandemic, the Court set the application for hearing. For the reasons set forth below, the Court finds that there is good cause to issue a temporary restraining order and issue an order to show cause why a preliminary injunction should not issue. Plaintiff seeks a temporary restraining order enjoining Defendant from restricting access and passage on the private easement and requiring the removal of all vehicles and...

Excerpt: ...ne Group Capital Corp. is the alter ego or successor of the judgment debtor. This matter was continued from August 3, 2021 because Plaintiff's counsel had not been aware of any opposition having been filed. Accordingly, the Court continued the hearing so that Plaintiff could file a reply. This tentative is issued after review of that reply and supporting declaration. Plaintiff seeks to amend the judgment to add Fortune Group Capital Corp. as a ju...

Excerpt: ...tober 19, 2021 hearing date and retains the November 9, 2021 hearing date. The parties are to cooperate in having the discovery completed. The Court has some initial comments regarding the parties' actions to date in litigating this case. Not every dispute should require court intervention, and those that do should not necessitate inundating the Court with voluminous briefing and documentation. Plaintiff filed this case less than six months ago, ...

Excerpt: ...oves to strike each cause of action in the Cross‐Complaint of Defendants/Cross‐ Complainants Sean Wells and San Francisco Veterinary Medical Group, Inc. dba Nor Cal Veterinary Emergency and Specialty Hospital (“Defendants”), or alternatively to strike ¶¶ 18‐20. A cross‐defendant may bring a special motion to strike any cause of action “arising from any act of that person in furtherance of the person's right of petition or free spe...

Excerpt: ..., but continued to allow discovery regarding Shinno's assets. Upon review of the original and supplemental filings and exercising its discretion, the Court GRANTS the motion and DENIES the application that Shinno's settlement with Plaintiff is in good faith. Code of Civil Procedure § 877.6 allows the Court to approve good faith settlements to stop codefendants from seeking contribution from the settling defendant. The Court considers the followi...

Excerpt: ...tective order for the reasons set forth below. In this motion, Plaintiff seeks to compel a corporate representative designated as the Person Most Qualified (“PMQ”) to answer three further specific deposition and all other deposition questions that Plaintiff may ask in this subsequent deposition. The person most qualified deposition is a specific type of deposition that allows a party to designate subjects rather than a person, and it is the e...

Excerpt: ...ULED on the ground that these claims are barred by the statute of limitations under Code of Civil Procedure section 338(d). Plaintiff alleges facts sufficient to support that these claims are not time barred based on the delayed discovery rule. Specifically, the allegations support both the time and manner of discovery, and Plaintiff's inability to have made discovery earlier than June 19, 2017, despite reasonable diligence. (See First Amended Co...

Excerpt: ...contract, while the contract is between Financial Pacific and Plaintiff. This argument ignores the allegations of agency made in Paragraphs 4 and 7 of Plaintiff's Complaint. These allegations are sufficient for agency. CACI 3700 et seq.; 5 Witkin, Cal. Proc. 5th Plead §§ 919, 920 (5th ed. 2020). Further, the allegations are supported by the apparently uncontested fact that Plaintiff did sign a lease for the spray booth with the moving Defendant...

Excerpt: .... Berquist Construction Co., (1994) 24 Cal.App.4th 1426, 1439‐1440. Service of process statutes are generally construed liberally, but there must be at least substantial compliance with the statutory requisites for service. Lebel v. Mai, (2012) 210 Cal.App.4th 1154, 1165. If a copy of the summons and of the complaint “cannot with reasonable diligence be personally delivered to the person to be served” … another type of substituted service...

Excerpt: ...tal condition at issue. She argues that before delving into similar injuries in her past, Defendant must first establish a nexus between the alleged injuries from her employment termination and those past injuries. (Mov. P&A at 5:21 – 6:13.) Plaintiff relies on the case of Tylo v. Superior Court (1997) 55 Cal. App. 4th 1379. The Tylo case is inapplicable. The Court in Tylo held that a defendant cannot launch a fishing expedition to find out if ...

Excerpt: ...urt has previously denied this motion for failure to hold an Informal Discovery Conference. TD Bank has refiled the motion arguing that this Court cannot require an Informal Discovery Conference when there is no response to requests for admissions. TD Bank is incorrect. TD Bank made this argument before the Hon. Danny Chou in another case, TD Bank USA, N.A. v. Arnold, 18Civ06667 involving the same law firm as in this case, which motion was joined...

Excerpt: ... examination. Vinson v. Superior Court (1987) 43 Cal.3d 833. Plaintiff has failed to show that the specific psychological tests that the examiners propose are unnecessary, and Plaintiff has not shown that the time or scope that the examiners propose is unreasonable. (2) Pursuant to Code of Civ. Procedure § 2032.320(d) the Court orders as follows: (a) Howard Friedman, PhD, ABPP is to perform the first portion of the examination. Charles Saldanha,...

Excerpt: ...As an initial matter, the Court did not consider the Defendants' late‐filed reply. (1) The Demurrer to the Fourth, Fifth, and Sixth Causes of Action based on the court having no jurisdiction of the subject of the cause of action is OVERRULED. Defendants make no argument as to this ground for demurrer. (2) The Demurrer to the Fourth Cause of Action for Concealment based on a failure to state a claim is OVERRULED as to Defendant Hanna DDS, Inc., ...

Excerpt: ...ng this time of the COVID 19 pandemic, “that the integrity of the judicial process requires … [the Court] to subject every motion to review before granting it.” California Judge's Benchbook: Civil Proceedings Before Trial § 6.21 (Thomson Reuters 2021). Therefore, the Court has substantively reviewed Defendant's demurrer even though there is no opposition. Defendant's Request for Judicial Notice is GRANTED “that the San Mateo Medical Cent...

Excerpt: ...ns though implicate Plaintiff's and third parties' privacy rights. The Court must balance the right of privacy against the need for discovery. Williams v. Superior Court (2017) 3 Cal. 5th 531, 552. As our Supreme Court explained: The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, § 1.) Protection of informational privacy is the provision's central concern. (Hill v. National Collegiate Athletic Assn. (1...

Excerpt: ...art: In this motion, Petitioners have not satisfied any of the requirements to obtain a new trial or vacate the judgment. Petitioners have provided no evidence in support of their fraud claims. In any case, however, they have provided no persuasive argument or pertinent authority indicating that the judgment was issued based on an incorrect or erroneous legal conclusion. Code Civ. Proc. § 663; Shapiro v. Prudential Property & Casualty Co., 52 Ca...

Excerpt: ...n brief (pp. 1:22‐13:14), and Exhibits C, D, E, F, H, J, and K to the Sean Wells Declaration, the Motion is DENIED. Regarding the Defendant's Opposition brief (pp. 14:2, 14:16‐ 17), the Motion is GRANTED. Pursuant to California Rules of Court, rule 2.551(b)(6), within 10 days of this order denying Defendants' Motion to Seal, Defendant may notify the Court and all other parties that the following documents lodged on March 8, 2021 are to be fil...

Excerpt: ...y of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party.” (C.C.P. § 128.7(a).) “An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” (Ibid.) A notice of hearing must be filed and served with the Demurrer. (See CRC Rule 3.1320(c).) Thus, the Notice of Hearing is STRICKEN...

Excerpt: ...ding to dismiss Plaintiff's action on grounds of forum non conveniens is DENIED, for the reasons set forth below. Defendant Financial Pacific Leasing's motion for joinder in the motion to dismiss is GRANTED. The motion is procedurally proper as a defendant may file a forum non conveniens motion after a demurrer is filed. Global Financial Distributors, Inc. v. Superior Court (2019) 35 Cal.App.5th 179, 191‐192. Defendants Jeff O'Day and First Pac...

Excerpt: ...gal arguments in this demurrer are not applicable to her. The joinder is also unnecessary because she has filed her own demurrer. The Court rules of the Demurrer of MOORE as follows: Demurrer to the ninth cause of action (breach of fiduciary duty) is OVERRULED. As a real estate broker who promised to act on behalf of Plaintiff regarding the sale of the business, paragraph 12 of the Complaint, MOORE had a fiduciary duty to Plaintiff. (William L. L...

Excerpt: ... Defendant's Motion for Judgment on the Pleadings without leave to amend as to the First and Second Causes of Action in the Second Amended Complaint and made other rulings, which order Plaintiff seeks to have vacated. Plaintiff brings this unopposed motion to Vacate Judgment on the Pleadings, and to Set this Equity Action for Trial, or in the Alternative, to Enter Judgment in Favor of Plaintiff on the Second Cause of Action to Correct the Record ...

Excerpt: ... Defendant has not established that it cannot be held vicariously liable for its supervisory and administrative employees that allegedly knew about Molina's abuse, and are alleged to have still retained and inadequately supervised her. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865, 875.) (2) The motion to strike portion of paragraph 59 is GRANTED only as to the portion “while in the course and scope of employme...

Excerpt: ...ted that there is a right to privacy under the California Constitution, Article I, Section 1, the right is not absolute and can be waived. In this case, there is no question that Plaintiff has tendered his mental condition in this lawsuit and that Defendants are entitled to documents related to that issue. The issue presented before this Court is the scope of the production of a subpoena issued to Plaintiff's only disclosed healthcare provider wh...

Excerpt: ...cause any prejudice, but notifies the parties so that they know that any in person appearances before Judge Fineman will be in South San Francisco. The Demurrer of Defendant BBV Profit Sharing Plan (“Defendant”) to the Amended Complaint of Plaintiff Bernice Turner (“Plaintiff”) is ruled on as follows: Defendant's Demurrer to the First Cause of Action for Fraud is SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to...

Excerpt: ... Mateo based on the judicially noticed fact that the Police Department is a subsidiary department or division of the City. As in Defendants' briefing, Defendants City of San Mateo and Officer Andre Malott are referred to herein as City Defendants. City Defendants' unopposed Demurrer to the First Cause of Action for Intentional Tort in Plaintiff's Complaint, the only cause of action therein, is SUSTAINED with leave to amend pursuant to Code of Civ...

Excerpt: ... requirements for service of process are not fulfilled. In the unlawful detainer context, a defendant may contest personal jurisdiction where the five‐ day summons specific to unlawful detainer actions is not supported by a complaint for unlawful detainer. Such instances are unusual and arise only where the summons is served alongside a complaint for a completely different cause of action (e.g., breach of contract) or a complaint that fails to ...