Excerpt: ...61 Cal.4th 435, 441; Health and Safety Code § 50003(a). The First Amended Petition alleges facts demonstrating the City's efforts to mitigate the housing crisis in its city. As has become increasingly frequent, solutions to solving the housing crisis comes into potential conflict with policies protecting the environment. In 1970, the California Legislature enacted the California Environmental Quality Act (CEQA), Public Resources Code § 21000 et...

Excerpt: ..., Garcia et al. v. Citibank N.A., San Diego Superior Court Case No. 37‐ 2022‐00005196 (“San Diego case”, and Monasterio v. Citibank, N.A., San Mateo Superior Court Case No. 20Civ03650 (“San Mateo case”) should be coordinated pursuant to Code of Civil Procedure section 404 et seq. As a preliminary matter, the Court finds that the actions are complex. They are both wage‐andhour PAGA (Private Attorney General Action) cases. When simila...

Excerpt: ... privacy is the provision's central concern. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Id. at pp. 35–37.) The party seeking inf...

Excerpt: ...sed on: (1) an open book, (2) an account stated, (3) goods sold and delivered, and (4) an account extended. However, Plaintiff's memorandum of points and authorities in support of the motion attempts to demonstrate that Plaintiff has established claims for (1) an open book, and (2) an account stated. (MPA, p.5‐7; see also Proposed Judgment) Accordingly, because Plaintiff has addressed only two of its claims, Plaintiff has not demonstrated it is...

Excerpt: ...t repeats its tentative from the September 20 and November 1, 2022 hearing: The Hon. Nancy L. Fineman discloses that she received via regular mail a letter dated August 19, 2022 from Defendant to the Commission on Judicial Performance, which was not served on Plaintiff. The referenced attachments were not enclosed. The special motion to strike, filed by Cross‐defendant Portfolio Recovery Associates, LLC, is GRANTED as to the entire cross‐comp...

Excerpt: ... Sect. 430.10(e). First Cause of Action (“Violation of Due Process: 42 U.S.C. 1983”) As to First Cause of Action alleging a “Violation of Due Process: 42 U.S.C. Sect. 1983,” the Demurrer is SUSTAINED. Code Civ. Proc. Sect. 430.10(e). First, Plaintiff's Opposition does not appear to meaningfully address this cause of action, or respond to Defendants' contention that the claim is time‐barred. Instead, the Opposition appears to focus solel...

Excerpt: ...man”), Gail Suzanne Marie Teymourian, and2700 Middlefield Road LLC (collectively “Plaintiffs”) is DENIED. Procedurally, the Court notes that Plaintiffs' memorandum filed in support of the ex parte application and OSC is in excess of the fifteen‐page limit. (See Cal. Rules of Court Rule 3.1113(d).) Therefore, Plaintiffs are cautioned to comply with the page limit requirement in the future, or else the Court may not consider the entirety of...

Excerpt: ... are minor. For instance, Plaintiffs violated California Rule of Court 3.1350(b). Others are more substantial and have hindered the Court in reviewing the motion. For example, both parties violated California Rules of Court 3.1350(d)(3) by, at times, by failing to cite to specific pages. Plaintiffs also incorporate by reference facts set forth in their motion to class certification without specifying all specific pages. Plaintiff provide hyperlin...

Excerpt: ...et forth below. Pizziconi shall fill an amended complaint no later than ten (10) days after service of notice of entry of this order. California Rule of Court 3.1320(g); Code of Civil Procedure § 472b. Bylkylov's Request for Judicial Notice is GRANTED. By this Demurrer, Bylkylov demurs to Pizziconi's Second Amended Complaint (the “SAC”) on the basis that the complaint as a whole and the second through fifth causes of action therein fail to s...

Excerpt: ... that under the facts of this case, Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 367 requires a stay of this proceeding because if Defendant is successful in Guichang Tian v. Microcredit Loan Fund, San Mateo Case No. 21Civ06731, Plaintiff will not have standing to prosecute this case. Plaintiff attempts to distinguish the case from this proceeding, pointing to the fact that the defendant in that case claimed title for himself while Defendants c...

Excerpt: ...rounds on which Defendant brings his motion, must be made “within a reasonable time, in no case exceeding six months” after judgment is entered. (Code of Civ. Proc. § 473(b).) Judgment for possession and judgment for damages were entered on December 19, 2014, and June 10, 2015, respectively. Defendant filed this motion November 22, 2022, more than six months after entry of both judgments. Further, Defendant's having filed a Motion to Tax Cos...

Excerpt: ...on as required for contract and business interference and failed to alleged an independently wrongful act as required for intentional and negligent interference with prospective economic relations. Order Sustaining Demurrer to Second Amended Complaint filed August 30, 2022. Plaintiffs have filed the Third Amended Complaint adding a cause of action for negligent misrepresentation and additional facts based, inter alia, on deposition testimony of D...

Excerpt: ... in the First Amended Complaint by Plaintiff Mary Helena Celine Joseph, individually and as successorin‐interest to Gryselda Joseph (“Plaintiff”), is SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim. The elements of a claim for negligent entrustment of a motor vehicle are: (1) that the driver was negligent in operating the vehicle; (2) that the defendant owned the vehicle or had possession of t...

Excerpt: ... Civil Procedure section 2030.290, subdivision (c) authorizes a court to impose various sanctions prescribed under Code of Civil Procedure sections 2023.010 and 2023.030 on a party who fails to obey a court order compelling responses to interrogatories. (Code of Civ. Proc., § 2030.290, subd. (c) [all further references are to the Code of Civ. Proc. unless designated otherwise].) Section 2031.300, subdivision (c) authorizes the same with respect ...

Excerpt: ...e Civ. Proc. Sect. 430.10(e). Defendants' 11‐1‐22 unopposed Request for Judicial Notice is GRANTED. Evid. Code Sect. 452(d). As to court‐filed documents, the court takes judicial notice of their contents and filing dates, but does not take judicial notice of the truth of statements/allegations therein. The Court notes that after this Demurrer was filed, Plaintiff dismissed all named defendants except for demurring party Walgreen Co. (12‐2...

Excerpt: ... for hearing of the motion is less than 30 days before the date of trial – January 11, 2023 – and Plaintiff has not sought or obtained a determination that there is good cause to hear the motion less than 30 days before trial. Accordingly, Plaintiff's motion is procedurally defective under Code of Civil Procedure § 473c. Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268. Defendant seeks sanctions based on Plaintiff's failure to withdraw th...

Excerpt: ...rd Amended Complaint (“TAC”). Plaintiff filed the amended complaints in response to demurrers and motions to strike filed by Defendants before the Court could rule on any of the motions. Finally the demurrers came before this Court for ruling and on November 1, 2022, the Court issued tentative rulings for Defendants Laikun Lei and Kei Leung's demurrer and motion to strike the Third Amended Complaint (“TAC”). The Court granted the joinders...

Excerpt: ...sented by counsel. Defendant correctly pointed out that an entity must be represented in litigation by an attorney. Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 730; CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145; Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101–1103. However, the rule does not deprive a corporation the right to be a party t...

Excerpt: ...017. The Court notes that the proof of service to the reply is not signed. The Court rules on Defendant John Cowan's Motion to Strike portions of Plaintiff Barbie Barrett M.D.'s 8‐31‐22 Complaint as follows. Emotional distress damages While generally, a lawyer does not assume or “create a duty to protect the client's emotional state,” Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 472‐473, when “a plaintiff sufficiently alleges i...

Excerpt: ...rt rules on Defendant John Cowan's Demurrer to Plaintiff Barbie Barrett M.D.'s 8‐31‐ 22 Complaint as follows: Defendant demurrers to the First, Second and Fifth causes of action alleging that they do not state facts upon which relief can be granted because they are not pled with sufficient specificity and/or particularity. Code Civ. Proc. § 430.10(e). The rules for a demurrer are well known: In reviewing the demurrer, the Court construes the...

Excerpt: ...ton Ave., Belmont, Ca., is GRANTED‐IN‐PART and DENIED‐IN‐PART. The Application is GRANTED as to Parcel Nos. 043‐ 102‐170, 043‐102‐260, 043‐102‐270, and DENIED as to Parcel No. 043‐ 102‐180. Pending resolution of this case or until further Order from the Court, Defendants are HEREBY ENJOINED from conducting a foreclosure sale of Parcel Nos. 043‐102‐170, 043‐102‐260, 043‐102‐270. Background. The following facts a...

Excerpt: ...compelling further responses to an interrogatory if “[a]n answer to a particular interrogatory is evasive or incomplete.” (Code of Civ. Proc., § 2030.300, subd. (a).) By this Motion, the State of California (the “State”) seeks to compel a further response from Darkhan Bylkylov (“Bylkylov”) to Form Interrogatory No. 17.1 propounded in its second set of form interrogatories. The interrogatory requests, inter alia, that Bylkylov provide...

Excerpt: ...nstitute a defense to the complaint.” (Code of Civ. Proc. Section 438, subd. (c)(1).) The motion fails to make that showing. A. For Judgment on the Pleadings, a General Denial Overcomes a Properly Pleaded Complaint. The Judicial Council Form Complaint sufficiently pleads common counts for account stated, goods sold and delivered, money lent, and money paid. The next question is whether the Answer controverts the Complaint's allegations. Defenda...

Excerpt: ...ly pleads assignment from West Builders, Inc. to Museum Plaza LLC on its first two pages. Overruled. Second/Third, other parties may be found culpable with Steadfast. Thus, equitable indemnity and contribution claims are appropriate at the pleading stage. Further, as shown by CCP 877, culpability may be spread among a mix of tortfeasors and contract obligors. Overruled. Fourth, an insurer and insured have a "special relationship," but the insurer...

Excerpt: ...on. Jamie Jacobs‐May (ret.). No hearing was required. (Marathon Nat. Bank v. Sup. Ct. (1993) 19 Cal.App.4th 1256, 1258.) A reconsideration motion must be "based upon new or different facts, circumstances, or law" and a valid reason for not presenting them earlier. (CCP SEC 1008; Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Plaintiff makes none of these showings. Rather, Judge Jacobs‐ May's 21‐page report makes clear that the obj...

Excerpt: ...ve, for Summary Adjudication of the question of whether the Option Agreement between the parties was a loan.”]; see also Defendant's Memorandum.) However, the Court previously denied Defendant's motion for summary judgment to this same cause of action after Defendant argued that the Option Agreement was not a loan. (See Order filed July 18, 2022.) The Court found that a triable issue of material fact existed as to whether the transaction betwee...

Excerpt: ...(1990) 224 Cal.App.3d 1249, 1254–55 (additional IME's permitted upon showing of good cause). Plaintiff alleges that during a 2017 pickup volleyball game at Stanford University, Defendant picked Plaintiff up and accidentally dropped Plaintiff on the top of her head, causing Plaintiff severe injuries, including traumatic brain injury, concussion, jaw fracture, and osteomyelitis in her jaw (a bone infection). Since the 2017 incident, Plaintiff has...

Excerpt: ...9, 2022 from Defendant to the Commission on Judicial Performance, which was not served on Plaintiff. The referenced attachments were not enclosed. The special motion to strike, filed by Cross‐defendant Portfolio Recovery Associates, LLC, is GRANTED as to the entire cross‐complaint and each cause of action. Code of Civil Procedure section 425.16, the anti‐SLAPP statute (“strategic lawsuit against public participation”), is designed to pr...

Excerpt: ...ate steps to have the original Brotman Declaration removed from the Court file and replaced by a redacted copy. Even if Plaintiff does not believe that the document contains confidential information, she may not file documents designated by Defendant in the public court file. The Supreme Court has instructed trial courts to use the following framework in deciding discovery disputes that involve the privacy rights: The state Constitution expressly...

Excerpt: ...S OF ACTION Any Defendant, if the required meet‐and‐confer is unsuccessful, may challenge any new cause of action asserted in the Third Amended Complaint by subsequent motion/demurrer. JOINDER The joinder by Yafei Luu, Chao Liu, and Zhiying Qiu is GRANTED. DEMURRER ON FAILURE TO JOIN INDISPENSIBLE PARTIES Nianshun Construction Co., Ltd. has now been added as a plaintiff. Therefore, Defendants' argument that there is a failure to join it as an...

Excerpt: ...als. In entering a judgment, the Court must find in favor of one party. Kosta, Practice Under the California Environmental Quality Act §§ 23.117 et seq. The Court finds that Plaintiffs are the prevailing party and judgment should be entered in their favor. This finding includes taking into consideration that the parties have stipulated to dismiss the second cause of action. Plaintiffs and respondent City of Pacifica apparently agree that the Co...

Excerpt: ...��) demurs to the First Amended Complaint (the “FAC”) and each cause of action therein on the grounds of (1) uncertainty and (2) failure to state facts sufficient to constitute a cause of action. As a preliminary matter, Defendant did not offer any argument or authority regarding any uncertainty in the FAC, and thus the Court overrules the portion of the demurrer made on those grounds. (See Quantum Cooking Concepts, Inc. v LV Assocs., Inc. (2...

Excerpt: ... a duty to meet‐and‐confer in good faith. “The statute requires that there be a serious effort at negotiation and informal resolution. . . . Argument is not the same as informal negotiation; that attempting informal resolution means more than the mere attempt by the discovery proponent to persuade the objector of the error of his [or her] ways; and that a reasonable and good faith attempt at informal resolution entails something more than b...

Excerpt: ...pon the facts of this case. Costs of partition include “[r]easonable attorney's fees incurred or paid by a party for the common benefit.” (Code of Civ. Proc. § 874.010(a).) The Court can award attorneys' fees to a defendant who opposes partition. (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967 citing Riley v. Turpin (1960) 53 Cal.2d 598, 601‐603.) The motion is properly brought post‐judgment. (Code of Civ. Proc. §§ 874.010, 1033.5(b).) P...

Excerpt: ...order this matter off calendar for noncompliance, the Court exercises its discretion to address the demurrer on the merits. The demurrer filed by MidFirst Bank is OVERRULED in its entirety. This Court believes, especially when the issue is one of law “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 (T...

Excerpt: ...onco Re Corporation, a California Corporation; and Bre Cameron Creek, LLC, an Arizona Limited Liability Company (the “Fair Defendants”) is ruled upon as follows: This case was assigned to the Hon. Nancy L. Fineman due to the retirement of the judge who originally decided the SLAPP motion. As directed by the Court of Appeal in Case No. A160098, the Fair Defendants are entitled to their reasonable attorneys' fees and costs. A “prevailing defe...

Excerpt: ...brought against the authority shall be brought in a court of competent jurisdiction in the County of Sacramento.” Plaintiff opposes the motion on the grounds that venue is proper in San Mateo County pursuant to Code of Civil Procedure § 1250.020, which provides that, with respect to actions for eminent domain, “the proceeding shall be commenced in the county in which the property sought to be taken is located,” except “When property soug...

Excerpt: ...nt that ultimately could be granted approval by this Court at the final fairness hearing. Plaintiff's counsel is experienced in class litigation, the case was vigorously contested by Defendants and their experienced counsel, the settlement was reached after a mediation with an experienced mediator, and Plaintiff's counsel has provided a detailed analysis of each claim, including the strengths and weaknesses. The Court would like a further explana...

Excerpt: ...intiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Plaintiffs claim that Defendant is entitled to a credit in the amount of $31,259.16 for payments and the security deposit. (Plaintiffs' Sep. Statement of Undisputed Material Facts (“PSSUMF”) no. 12....

Excerpt: ...is as follows: Petitioner Broadway West Owner's Association's (“Association”) “Petition to Reduce Voting Requirements and Approve Amendments to the Restated Declaration (Civ. Code Sect. 4275),” filed Aug. 2, 2022, is GRANTED, conditioned on correction of the typographical error in the “First Amendment,” noted below. Factual background. Petitioner is a Homeowner's Association (HOA) for an 18‐unit Condominium complex in Burlingame, Ca...

Excerpt: ...h November 18, 2022. This case has been assigned to the Hon. Nancy L. Fineman for all purposes and she must be the one to try the case. Accordingly, the Court VACATES the October 19, 2022 Trial and October 11, 2022 Pretrial Conference. The Court sets a Trial Setting and Case Management Conference for December 6, 2022 at 9:30 a.m. The parties are to file a Joint Case Management Conference Statement by November 29, 2022 with a trial plan, which inc...

Excerpt: ...th the Court's previous orders, failure to oppose discovery motions, and refusal to appear at scheduled hearings and conference evidences his abandonment of his case and demonstrates that no lesser sanction would be effective. FACTUAL BACKGROUND Plaintiff initiated this case on April 14, 2021, and served Defendant with the summons on April 28, 2021. (April 14, 2021 Complaint; May 3, 2021 Proof of Service of Summons.) Defendant promptly served wri...

Excerpt: ...t, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499‐ 500. Factual background. This case arises from a Feb. 22, 2019 auto accident near the Dumbarton Bridge in Menlo Park. As described by the parties, after Plaintiff Perry Kim Robinson's vehicle broke down, defendant CalTrans had Plaintiff's vehicle towed to a location on University Ave. in Menlo Park, near the intersection of University Ave. and Bayfront Expressway. Plaintiff all...

Excerpt: ...rises out of alleged abuse suffered by Plaintiff and other students and perpetrated by Dinorah Ethel Molina, a teacher at a middle school within the defendant school district. By this Motion, Plaintiff seeks to compel Defendant's further responses to the first set of each of her Form Interrogatories, Requests for Production, and Requests for Admission. The parties should have been able to resolve many of these issues without the need for Court in...

Excerpt: ...hird, and Ninth COA's in Plaintiff's FAC are OVERRULED. The Court in its discretion has considered Plaintiff's late‐filed Opposition. Nuffer's and Callinan's Demurrers Defendants Nuffer and Callinan argue that COA's 5‐7 in Plaintiff's FAC do not allege sufficient facts regarding the demurring Defendants' personal liability under the applicable Labor Code sections to support the causes of action at issue. In ruling on a demurrer, the Court acc...

Excerpt: ...icable statute of limitations. According to Defendant, A refinance occurred on May 16, 2001 (Ex. 2) which is the same date that the Grant Deed conveying the Daly City Property to Joe and Defendant was recorded. If Plaintiff's allegation is correct, when the refinance was completed on May 16, 2001, Defendant was obligated to transfer back the property starting on May 17, 2001 and his failure to do so would be a breach of the (alleged) oral agreeme...

Excerpt: ...e of entry of the Court's order. The First Amended Complaint (the “FAC”) sets forth two causes of action for invasion of privacy by portrayal in a false light. According to the allegations of the FAC, Plaintiff is a former employee of Defendant California Casualty Management Company (“CCMC”). (FAC., p. 4.) On March 31, 2022, CCMC and its officer, Defendant Robert Nicolay, eliminated Plaintiff's position and terminated Plaintiff's employme...

Excerpt: ...efendant Portfolio Recovery Associates, LLC, is GRANTED as to the entire cross‐complaint and each cause of action. Code of Civil Procedure section 425.16, the anti‐SLAPP statute (“strategic lawsuit against public participation”), is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. (Bonni v. St. Joseph Health Sys. (2021) 11 Cal.5th 995, ...

Excerpt: ...t Amended Complaint (FAC) filed on April 1, 2022 in the federal court case, is DENIED. Code Civ. Proc. Sect. 436; Civ. Code Sect. 3294. A party seeking punitive damages under Civ. Code Sect. 3294 must show, by clear and convincing evidence, that defendant is guilty of fraud, malice, or oppression. Civ. Code Sect. 3294(a). An employer may be liable for punitive damages based upon acts of an employee where the employer either had advance knowledge ...

Excerpt: ...EPOSITION AND FOR SANCTIONS TENTATIVE RULING: Plaintiffs Pacific Diversified Investments, LLC's, Texas Sugar North, LLC's, Texas Dove Cove, LLC's, Texas Cedar Ridge, LLC's, and Texas Brick Maze, LLC's Motion for Protective Order and Order Compelling Appearances for Deposition and Responses to Discovery is GRANTED in part and DENIED in part. Plaintiffs seek (1) a protective order precluding Defendant Ramson Mumba from testifying or presenting evid...