Excerpt: ...s an Unlimited Civil Case. The Court's docket has the case as a limited civil case and on the caption page of their reply brief, filed September 28, 2020, Defendants state in red on the caption that this case is a Limited Civil Case. For limited civil cases: “Motions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” Code of Civil Procedure § 92. The Court does n...

Excerpt: ... set forth below. Defendant has demonstrated that the parties entered into a valid agreement to arbitrate. Plaintiff does not dispute that a valid arbitration agreement exists that covers the parties' dispute. Plaintiff contends, however, that Defendant has waived the right to arbitrate as a result of Defendant's failure to respond to Plaintiff's arbitration demands. Defendant contends the issue of waiver is appropriately determined by the arbitr...

Excerpt: ...ployment Records is DENIED‐IN‐PART and GRANTED‐IN‐PART. The Court notes that Defendants failed to file a Separate Statement in compliance with California Rules of Court Rule 3.1345. Nonetheless, the parties have provided sufficient information for the Court to rule on the matter. Plaintiff first contends that the six subpoenas do not comply with the affidavit requirement of C.C.P. section 1985. An affidavit is not required to be included ...

Excerpt: ...ublic utilities vault that was located on a sidewalk owned and controlled by Defendant CITY of South San Francisco. (Complaint ¶ 9.) For the vault cover to constitute a dangerous condition of public property under Government Code section 830, it must be “owned or controlled” by Defendant CITY. Aaitui v. Grande Properties (1994) 29 Cal.App.4th 1369, 1373–77. The undisputed facts demonstrate that the City neither owned nor controlled the vau...

Excerpt: ...r Relief seeking punitive damages are HEREBY STRICKEN. “In California there is no separate cause of action for punitive damages.” (McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1164.) Plaintiff therefore cannot allege exemplary damages as a separate cause of action, but rather must seek such damages in connection with an underlying cause of action. Thus, Plaintiff is given leave to amend to allege, if possible, such d...

Excerpt: ...ndant ED 1005 BM, LLC purchased this property, which property is next door to the property at issue in this case located at 621 California Dr., Burlingame. Part of 621 California may be in a picture included in the complaint in the Hatch v. Kantz action. During the course of the litigation, Judge Fineman, at one point, talked to some people who worked at the garage adjacent to Ms. Hatch's home. In addition, during the case, she had communications...

Excerpt: ...cifically argue that that negligence per se is not a recognized cause of action in California. However, in Sierra‐Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 336, the court held that a plaintiff must prove the following four elements in order to establish negligence per se: (1) defendant violated a statute, ordinance or regulation of a public entity, (2) the violation proximately caused his injury, (3) the injury resul...

Excerpt: ...bjection to Preliminary Injunction Bond, PARTIES ARE TO APPEAR WITH PLAINTIFFS TO BE PREPARED TO ADDRESS: (1) It does not appear that a publicly redacted copy of Plaintiffs' ex parte application was filed at the time that the unredacted copy of Plaintiffs' ex parte application was lodged conditionally under seal. (See Cal. Rules of Court (“CRC”) Rule 2.551(b)(5).) If no publicly redacted copy was filed, Plaintiffs should address how the court...

Excerpt: ... was not served on Plaintiff, and because Defendants' supporting declarations did not include exhibits which were purported to be attached to both. Plaintiff, however, has indicated that he was able to obtain the opposition papers from the Court's website, and Plaintiff has submitted a reply brief. Accordingly, Plaintiff has not demonstrated prejudice from the alleged lack of service of Defendants' opposition. As a result, the Court has considere...

Excerpt: ...e Defendants and Cross‐Complainants' motion to compel cross‐defendant Maha Naber to appear for deposition is GRANTED. Cross‐ def Naber shall appear for deposition with 15 days of service of notice of the court's order. The deposition shall be conducted remotely through Zoom or a comparable platform. CCP §2025.450 provides that if, after service of a deposition notice, a party fails to appear without having served a valid objection under CC...

Excerpt: ...ic service address for counsel being served. The Court cannot determine from the moving papers and the Proof of Service, filed 6‐30‐20, whether Plaintiff confirmed that the email address at which it served the motion on Defendant's counsel was the appropriate email address. If Plaintiff can demonstrate that it confirmed the email address when it served the motion, then the Court rules on Plaintiff's Motion for Summary Judgment or alternativel...

Excerpt: ...a cause of action as to either the first or second cause of action alleged. Plaintiff has dismissed the third cause of action. A demurrer is treated as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. San Diego Hospital Assn. v. Superior Court (1994) 30 Cal.App.4th 8, 12. A defendant may object to a complaint through documents upon which a court may properly take judicial notice. Code ...

Excerpt: ...urrently pending), Case No. 19CIV04335, entitled BAPC, LLC v. Todd Vance (case dismissed on 9‐5‐19), and Case No. FAM0120769, entitled Todd Vance and Donna Vance (dissolution action). As set forth in the pleadings in the above‐referenced cases, Bradshaw previously represented Vance as his attorney in Vance's dissolution action, Case No. FAM0120769. Bradshaw later sued Vance to collect allegedly unpaid legal fees in Case No. 19CIV04210. Brad...

Excerpt: ...��Beverly Act) is SUSTAINED without leave to amend. Generally, the Song‐Beverly Consumer Warranty Act applies to buyers of consumer goods, which are defined as “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables. (Civ. Code § 1971, subd. (a). The only “used” goods within the definition are assistive devices sold at retail. (Id....

Excerpt: ...its May 8, 2020 COVID 19 Emergency Order Regarding Tentative Rulings, Briefing, and Hearings on Pending Matters in the Civil Law and Motion Department. That order contemplates a briefing schedule different than the statutory deadlines. Defendants, however, filed their reply brief pursuant to the statutory deadlines and the Court did not realize that Defendants had filed a reply when it issued its first tentative. The Hon. Nancy L. Fineman apologi...

Excerpt: ...e pleadings lies where the Complaint, or the cause of action at issue, “does not state facts sufficient to constitute a cause of action against that defendant.” Code Civ. Proc. § 438(c). As with a demurrer, a motion for judgment on the pleadings must be denied if the allegations state any valid cause of action; it is not necessary that the cause of action be the one intended by plaintiff. Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998)...

Excerpt: ...CHA KUANG, GUO MIN LI, ANTHAN WEICHAUN HE, HUA BIN HE, AND LIZI HU TENTATIVE RULING: The motion to enforce Settlement Agreement, filed by Defendants MAStar Professional Corp., Acumentum Penny Lane, Woodland EPA, Jenny Huang, Mingcha Kuang, Guo Min LI, Anthan Weichuan He, Lizi Hue, Hua Bin He, Yung‐Jen Hsu, and Charles Koo (“Defendants”) and Crosscomplainants Acumentum Penny Lane, Mingcha Kuang, Guo Min Li, Anthan Weichaun He, Hua Bin He, an...

Excerpt: ...TED for the reasons set forth below. Judgment shall be entered in the form set forth in the Arbitrator's Award, issued December 27, 2019. Service and Filing of Petition As an initial matter, Respondent claims that the Petition should be dismissed because Petitioners did not attach a copy of the parties' arbitration agreement to the Petition, and because Petitioners did not serve First Hawaiian Bank with a notice of the Petition. Both claims are u...

Excerpt: ...old and delivered, money lent, and money paid. (See Complaint ¶ CC‐1(b).) Since those claims are unaddressed, summary judgment is not possible. The motion for summary adjudication of issues is GRANTED as to the 1st cause of action for breach of contract and the 2nd cause of action as to common counts open book account and account stated. A. Procedural Rulings Defendant's Objections 1 through 6 as to Common Counts and 1 through 12 as to Breach ...

Excerpt: ...ot malicious or wanton in her use and maintenance of her property at 392 Greenbriar Road, Half Moon Bay, California; 2. Under the theory of trespass, Defendant John Lorts was not malicious or wanton in his use and maintenance of his property at 392 Greenbriar Road, Half Moon Bay, California; 3. Under the theory of nuisance, Defendant Colleen Lorts was not malicious or wanton in her use and maintenance of her property at 392 Greenbriar Road, Half ...

Excerpt: ...VIL PROCEDURE. TENTATIVE RULING: This motion is continued to October 28, 2020 at 1:30 in Department 4 so that the parties can respond to the following questions. Opening briefs of no more than ten (10) pages shall be filed and served by October 14, 2020 and responsive briefs shall be filed and served by October 21, 2020. Courtesy copies of the briefs shall be delivered to Department 4. 1. Has there ever been a SLAPP motion granted when a party ha...

Excerpt: ...E SEVENTH CAUSE OF ACTION IN ITS ENTIRETY, THE EIGHTH CAUSE OF ACTION IN ITS ENTIRETY, THE NINTH CAUSE OF ACTION IN ITS ENTIRETY, THE TENTH CAUSE OF ACTION IN ITS ENTIRETY, AND/0R THE ELEVENTH CAUSE OF ACTION IN ITS ENTIRETY. TENTATIVE RULING: Defendants' Motion to Strike from the Complaint the causes of action predicated on Defendants' alleged conspiracy is DENIED. Civil Code section 1714.10 requires a prior court order before filing an action a...

Excerpt: ...SUSTAINED. These causes of action are predicated on Defendants' alleged fraudulent or negligent misrepresentations and omissions. Each element of fraud and negligent misrepresentation must be specifically alleged. Cadlo v. Owens‐Illinois, Inc. (2004) 125 Cal. App. 4th 513, 519. General and conclusory allegations are not sufficient. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. A plaintiff must plead facts which show how, when, where, to w...

Excerpt: ...kenzie & Associates, Inc. dba Truex Metier (“Plaintiff”) is ruled on as follows: (1) Defendant's Memorandum of Points and Authorities fails to comply with California Rules of Court Rule 3.1113(b). Rule 3.1113(b) requires a memorandum to contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. Here, Defendant...

Excerpt: ...laintiff”) is ruled on as follows: (1) Demurrer to the First Cause of Action for Interference with Prospective Economic Advantage based on failure to allege facts sufficient to support this claim and uncertainty, is OVERRULED. Plaintiff alleges both negligent and/or intentional interference in this claim. (See FAC ¶ 33.) Plaintiff alleges facts sufficient to support a claim for intentional interference with prospective economic advantage. The ...

Excerpt: ...es both the demurrer and motion to strike in this tentative. For purposes of ruling on a demurrer, the complaint is read liberally as a whole rather in isolation with a view to substantial justice and all allegations are to be accepted as true. Code of Civil Procedure § 452; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The same is true for a motion to strike. Courtesy Ambulance Service v. Superior Court (1992) 8 ...

Excerpt: ...defendants in this case. Plaintiff ALLSTATE paid its insured $57,350. The insurer of defendant Nemmer Roofing, Watford Specialty Insurance, paid Plaintiff's insured $108,359. Defendant Nemmer Roofing has filed a cross‐complaint against settling defendant AN/BE and Watford has filed a separate action against AN/BE. Plaintiff ALLSTATE's Complaint seeks $57,350, which is the maximum judgment possible against AN/BE. Plaintiff and AN/BE have settlem...

Excerpt: ...n June 5, 2020 with an identical copy of the exhibits, Plaintiff in response to the separate statement states that it is impossible for Plaintiff to confirm the relevance or accuracy of certain statements because the exhibit was not attached. See e.g. Response to UMF Nos. 3, 4, 5. Plaintiff may not have realized that the same exhibits were attached to a previously served motion. Usually, the Court will continue the motion to allow a full response...

Excerpt: ...rst through Fifth Causes of Action is SUSTAINED WITH LEAVE TO AMEND. On the face of the Complaint, these claims appear barred by the three‐year statute of limitations under Code of Civil Procedure section 338(d). The statute commences to run only after one has knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud, thus putting him on inquiry. (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437.) “A plaintiff...

Excerpt: ...refore, the Court issues this tentative. The unopposed motion for summary judgment filed by Defendant CHICAGO TITLE INSURANCE COMPANY is granted. The undisputed material facts and supporting evidence establishes a prima facie showing that Defendant CHICAGO TITLE did not breach any duty that it owed to Plaintiff. Plaintiff has not demonstrated that a triable issue of material fact exists. Escrow instructions govern the rights and liabilities of th...

Excerpt: ...staurants, Inc. (1989) 215 Cal.App.3d 353, 356). Plaintiff has waived her right to seal the records in this case. A party waives their right to obtain an order to seal documents where the documents are already part of the public record. (See Savaglio v. Wal‐Mart Stores, Inc. (2007) 149 CA4th 588, 600; Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial § 9:417.5 (TRG 2020).) The records in this case were all filed prior to the motion to seal...

Excerpt: ...isposition of this motion. After the parties submitted supplemental briefing, the Court continued this matter so that it could rule on Plaintiff's pending motion for consolidation. The Court granted Plaintiff's unopposed motion to consolidate Case Nos. CIV525758 and 19CIV00123 on July 27, 2020. The Court, having considered the parties' original and supplemental briefs, as well as the pleadings on file in this matter, rules on Plaintiff's motion a...

Excerpt: ... Court notes that Defendants filed this motion in April 2020, and directed it to the Second Amended Complaint (SAC). Thereafter, on 7‐6‐20, Plaintiff filed a Third Amended Complaint (TAC), which made no change(s) to the parties or to the asserted causes of action, but made minor changes to the Prayer for relief. Plaintiff then filed an Opposition to this Motion for Summary Judgment. The moving and opposing papers refer only to the SAC. All pa...

Excerpt: ...0 Request for Dismissal, and the dismissal entered the same date. For the reasons stated below, as to the Seventh Cause of Action for “harassment,” the motion is DENIED. As an initial matter, the Court notes that Defendants filed this motion in April 2020, and directed it to the Second Amended Complaint (SAC). Thereafter, on 7‐6‐20, Plaintiff filed a Third Amended Complaint (TAC), which made no change(s) to the parties or to the asserted ...

Excerpt: ...ed the moving, opposition, and reply papers and now issues the following ruling. Cross‐ Defendant's Special Motion to Strike (“SLAPP”) the Cross‐Complaint is DENIED. CrossDefendant has not established the first prong of the SLAPP analysis that the acts underlying any of the six causes of action in the Cross‐Complaint arise out of protected activity described by Code of Civil Procedure § 425.16(e). Further, even if Cross‐Defendant had...

Excerpt: ...same last name. The Court means no disrespect to them. Defendants assert that as the hirer of a contractor that they are not liable for personal injuries sustained by Plaintiff, the contractor's employee, based on Privette v. Sup. Ct. (1993) 5 Cal.4th 689. However, “when a hirer of an independent contractor, by negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the injury of an employee of the contractor, th...

Excerpt: ...heduled date, and no prejudice has been established. Plaintiff's motion for attorneys' fees is GRANTED pursuant to Civil Code § 1717 and Code of Civil Procedure § 1032. Plaintiff followed the proper procedure in filing a memorandum of costs with the attorneys' fees and contemporaneously filing this motion. Plaintiff's complaint was one for a non‐judicial foreclosure. Plaintiff agrees that there is no right based on the complaint to obtain the...

Excerpt: ...ent from the location identified in Plaintiff's Government Claim is OVERRULED. Plaintiff's Government Claim identified the location as an intersection of Sand Hill Road and Sand Hill Circle.” The FAC states that the incident occurred at specific GPS coordinates. (FAC para. GN‐1, MV‐1.) The numerical coordinates differ from the words “Sand Hill Road and Sand Hill Circle,” but nothing in the Complaint implies that the coordinates describe...

Excerpt: ...omplaint alleges eight causes of action; she has dismissed the fourth and fifth causes of action. Stanford brings only a motion for summary judgment. Stanford argues that Plaintiff cannot establish an essential element of all her claims, which is a proper basis for summary judgment. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see Code Civ. Proc., § 437c, subd. (p)(2). Defendant has the initial burden and once the defendant meet...

Excerpt: ...7c(a)(2), a motion for summary adjudication must be “served on all other parties to the action at least 75 days before the time appointed for hearing. . . . If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75‐day period of notice shall be increased by two court days.” Plaintiff served this motion via email on June 1. The hearing, which was set for A...

Excerpt: ... of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. Code Civ. Proc., § 664.6 In this case, the parties had an arbitration agreement, but when disputes arose agreed to...

Excerpt: ...ies of purportedly official records, to which Plaintiff objects. Without a proper certification, the Court cannot take judicial notice of the documents. As Justice Mark Simons explains: § 2:69. Official records and other official writings—Certification of official and recorded writings Evidence Code § 1530 provides that “(a) A purported copy of a writing in the custody of a public entity, or of an entry in such writing, is prima facie evide...

Excerpt: ... before the reply was filed. Replies in writs of attachment are only due two court days before the hearing, Code of Civil Procedure 484.060(c), by which time the tentatives are already prepared and, in this case, the Court failed to check the court file prior to the hearing to see if a reply had been filed. In ruling on a writ of attachment, the Court uses its discretion and weighs the evidence, based upon a preponderance of the evidence standard...

Excerpt: ...f action. “The anti‐SLAPP motion need not address what the complaint alleges is an entire cause of action, and may seek to strike only those portions which describe protected activity.” Baral v. Schnitt (2016) 1 Cal.5th 376, 395‐396. A 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 speech under the United States Constitution...

Excerpt: ...3‐30‐20, which alleges Unfair Business Practices under Business & Professions Code § 17200 (“UCL”), is SUSTAINED WITH LEAVE TO AMEND. This Cause of Action seeks disgorgement of roughly $314,000 the Hogans allegedly paid to JPM for work they contend was performed by unlicensed subcontractors. This Court previously sustained with leave JPM's demurrer to the UCL cause of action. The Hogans filed a SACC with additional allegations. Once agai...

Excerpt: ...bout, inter alia, small amounts of money; the attorney time to object to and support some of the requests probably exceeds the amounts requested. Since both parties imply that discussions may be able to resolve the issues, the Court believes that in this time of the pandemic with the Court budget being slashed, it is a better use of judicial resources for the parties to resolve what they can and then return to the Court, if necessary, with pared ...

Excerpt: ... an opportunity to formally respond and for Defendant to file a reply, the Court continued the hearing. After review of the moving papers, opposition and reply, the Court GRANTS the motion. In this action, Plaintiff brings suit against his former spouse for forcible entry and forcible detainer. Defendant contends that Plaintiff may not bring an unlawful detainer claim against Defendant because the Complaint admits that Plaintiff and Defendant are...

Excerpt: ...on of an anti‐SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by [Code of Civil Procedure] section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a “summary‐ judgment‐like procedure.” The court does not ...

Excerpt: ...s. California Rule of Court 3.1113(d),(g). Timeliness of the Motion As an initial matter, Plaintiffs contend the Court should decline to rule on this motion because it was not scheduled at least 30 days from the scheduled trial date as required pursuant to CCP § 437c(a). Plaintiffs acknowledge that the trial date has been continued. However, they contend Defendant must file a new motion in order to provide the required 75‐day notice of a motio...

Excerpt: ...RG 2020). Plaintiff has not demonstrated that it is more likely than not that the he will obtain a judgment against Defendant on the claim. Plaintiff's memorandum does not analyze any of the elements necessary for Plaintiff to prevail. Plaintiff submits two declarations in support of the application (one specific to the application and the other one in support of judgment), but both only refer to the executed settlement agreement and that no paym...

Excerpt: ...ion for trial in California. See Stangvik v. Shiley (1991) 54 Cal. 3d 744, 750‐51. The Court declines to dismiss the action until the parties demonstrate that the action may proceed in the alternative forum. Defendants contend California is an inconvenient forum for this case because: “(1) the alleged accident occurred in Arizona; (2) plaintiffs are residents of Arizona, (3) there are additional parties over which California may not have pers...

Excerpt: ... filed in 2014. In August 2018, Plaintiff and Defendant George Eshoo (“Defendant”) entered into a written settlement agreement pursuant to which Defendant agreed to transfer 5% of his membership interest in 32 & Bruce Partners, LLC (“the LLC”) to Plaintiff. (See Plaintiff's Decl., Exh. A, Settlement Agreement.) In July 2019, Plaintiff brought a motion to enforce the settlement agreement, which the court granted in part. (See Plaintiff's R...

Excerpt: ...hall meet and confer on this issue, and may, in their discretion, contact the Court to re‐schedule the hearing date after additional discovery is taken. A lis pendens may be ordered expunged where the complaint does not assert a “real property claim” (Code Civ. Proc. § 405.31); or where plaintiff (“claimant”) cannot establish the real property claim's “probable validity” by a “preponderance of the evidence.” Code Civ. Proc. § ...

Excerpt: ...as set forth below: Defendants' request for judicial notice is GRANTED pursuant to Evid. Code § 452(d). Res Judicata The Court finds Plaintiffs' claims are barred by the doctrine of res judicata. The doctrine of res judicata, or claim preclusion, promotes judicial economy by mandating that all claims based on the same “cause of action” be decided in a single suit; if not brought initially, they may not be raised at a later date. Mycogen Corp...

Excerpt: ...usiness Alliance Insurance Company. See PSM Holding Corp. v. National Farm Financial Corporation (9th Cir. 2018) 884 F.3d 812. The Application of Plaintiff Independent Electric Supply, Inc. (“Plaintiff”) for Right to Attach Order and Writ of Attachment to the property of Defendants Platinum Sales Group dba Sunstor Solar Electric (“Sunstor”) and Joshua Orozco (“Orozco”) (also collectively “Defendants”), is GRANTED IN PART. The Cour...

Excerpt: ...terest that outweighs the right of public access to the records. The Notice of Motion to Strike and the moving Memorandum of Points and Authorities are redacted sufficiently narrowly to comply with CRC Rule 2.550(d) (sealing must be “narrowly tailored”) and Rule 2.550(e)(1) (order must seal only those documents or pages, or “portions” of those documents).) NETEASE's motion to file under seal is DENIED without prejudice to seal more limite...

Excerpt: ...mbered case. The tentative is being posted here, as well as in 19‐CIV‐04266, for ease of tracking. Motion to Strike, filed by Defendants Working Dirt R2, LLC, Working Dirt, LLC, Claudia Truesdell, Abraham Farag, Amy Miller, Brenda Davis and Whitney Ballestrazze: A. Third and Fifth Causes of Action. The Motion to Strike the third and fifth causes of action (aiding and abetting breach of fiduciary duty) is GRANTED. Plaintiff added the new cause...

Excerpt: ...Y 18, 2020 Defendant's Motion to Dismiss or Stay on the Ground of Inconvenient Forum is DENIED. Plaintiff's Complaint alleges causes of action for declaratory relief, rescission and unfair competition under Business & Professions Code §17200 related to a non‐compete clause in the contract between Plaintiff and Defendants. This motion presents the question of whether this Court should use its discretion to stay or dismiss this case based upon t...

Excerpt: ...peal, this Court still has jurisdiction over this ancillary matter, which will not affect the issues on appeal. Code of Civ. Proc. §916(a). Defendant's Requests for Judicial Notice in Support of the Motion and Reply are GRANTED pursuant to Evidence Code Section 452(c) and 452(d). Plaintiff's Request for Judicial Notice in support of the Opposition is GRANTED pursuant to Evidence Code Section 452(d). Defendant's Motion for Attorney Fees is GRANTE...

Excerpt: ...fact in dispute in this case on whether Plaintiff was participating in an active sport, as Defendant contends or whether he had left the sport and was on his way home. Defendant Jacques' duty to Plaintiff applies to a “coparticipant in an active sport.” Ford v. Gouin (1992) 3 Cal.4th 339, 342, referencing Knight v. Jewett (1992) 3 Cal.4th 296. The question of whether Plaintiff and Defendant Jacques were coparticipants in the active sport of g...

Excerpt: ...to Defendant Ng for the reasons set forth below. Defendant Peng As an initial matter, the court notes Defendants Peng and Ng are not similarly situated with respect to the procedural facts at issue. Notably, Defendant Peng was not named as a Respondent in the Labor Commissioner's action pursuant to Labor Code § 98.7(a) and (b). This fact is fatal to the Commissioner's claims against Defendant Peng in this action pursuant to Labor Code § 98.7(c)...

Excerpt: ... Ng are not similarly situated with respect to the procedural facts at issue. Notably, Defendant Peng was not named as a Respondent in the Labor Commissioner's action pursuant to Labor Code § 98.7(a) and (b). This fact is fatal to the Commissioner's claims against Defendant Peng in this action pursuant to Labor Code § 98.7(c). The Commissioner's April 20, 2018 determination specifically addresses the individual respondents' participation in the...

Excerpt: ...efendants JPMorgan Chase Bank, N.A., California Reconveyance Company, and Long Beach Securities Corp., to the First Amended Complaint, filed 2‐13‐20 (“FAC”), is SUSTAINED without leave to amend, as set forth below: Defendants' request for judicial notice is GRANTED pursuant to Evid. Code § 452(c), (d). Res Judicata The Court finds Plaintiffs' claims are barred by the doctrine of res judicata. The doctrine of res judicata, or claim preclu...

Excerpt: ...on this demurrer is whether the pleading alleges that the subject damage was to property other than the property on which Cross‐defendant was performing work. The amended cross‐complaint alleges that damage to an upstairs bedroom, a closet, and a bathroom ceiling, were caused by when “laborers were working above or in these areas and stepped through the ceiling and/or struck the walls or ceilings. (FACC para. 9.) The pleading also alleges t...

Excerpt: ...ndisputed that Plaintiff's counsel is entitled to attorneys' fees in this Song‐Beverly action. Defendant disputes plaintiff's counsel's hourly rate and the number of hours billed. A prevailing buyer in a lawsuit brought under the Song‐Beverly under Act is allowed to recover as part of the judgment a sum equal to aggregate of the amount of costs and expenses, including attorney's fees based upon buyer showing and the judge determining that fee...

Excerpt: ...Defendant contends that Plaintiff may not bring an unlawful detainer claim against Defendant because the Complaint admits that Plaintiff and Defendant are co‐owners of the property. Defendant fails to establish that this is a proper ground for moving to quash summons of the Complaint. There is a split of authority on whether a motion to quash service of summons under C.C.P. section 418.10(a) is the proper vehicle to challenge a complaint in cir...

Excerpt: ...p.m. Contesting party is to give notice. Tentative ruling issued May 18, 2020 On the Petition of Anil Ali and Mehjabeen Ali ("Petitioners") for Release of Property from Lien of Respondent Henry Wang ("Respondent"), the court rules as follows: The court previously GRANTED the Petition for Release of Property from Lien. (See January 24, 2020 Minute Order.) The court continued the hearing on the issue of attorney's fees for Petitioners' counsel to p...

Excerpt: ...ted of falsely impersonating another person on a proof of service and ordered not work in any capacity as a process server. However, that evidence is not new evidence in that the facts were not only known, but argued in the moving papers seeking relief from default, see Declaration of Todd Yancey (“Yancey”) filed November 6, 2019 ¶¶ 9, 10, and at the hearing on relief from default on January 31, 2020. Sun Valley also provides a declaration ...

Excerpt: ...ted of falsely impersonating another person on a proof of service and ordered not work in any capacity as a process server. However, that evidence is not new evidence in that the facts were not only known, but argued in the moving papers seeking relief from default, see Declaration of Todd Yancey (“Yancey”) filed November 6, 2019 ¶¶ 9, 10, and at the hearing on relief from default on January 31, 2020. Sun Valley also provides a declaration ...

Excerpt: ... on as follows: (1) Liberty's Request for Judicial Notice is GRANTED. However, while the court takes judicial notice of the existence of the bankruptcy docket as well as the existence of documents filed in Riley's bankruptcy case (see Liberty's Request for Judicial Notice, Exhs. 1‐10), the court does not take judicial notice of the matters asserted therein. (See Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 660.) The ...

Excerpt: ...s wrongfully detained by Defendants, the manner in which Defendants came into possession of the property, and the reason for the detention. (See C.C.P. § 512.010(b)(2).) The contract for the vehicle was entered into between Towne Ford Sales and Jahnetics California, and the contract was then assigned by Towne Ford Sales to Plaintiff. (See Dunstan Decl., Exh. A.) However, Plaintiff now claims that the vehicle is in the possession of Defendants Ja...

Excerpt: ... Court's order, which was not done, or answer, which was done. Weil & Brown, California Practice Guide: Civil Procedure Before Trial § 7.152 et seq. (TRG 2019). Unlike the situation where a demurrer is sustained with leave to amend and the law is uncertain on whether a successive demurrer can be filed to the amended complaint, id. at § 7:139 et seq., the law does not allow successive demurrers when the initial demurrer has been overruled in its...

Excerpt: ...intiff's claims for the second cause of action for negligent misrepresentation, third cause of action for intentional misrepresentation, fourth cause of action for unfair business practices, and sixth cause of action for professional negligence were barred by the statute of limitations. For the second, third and sixth causes of action, there is no dispute that the longest statute of limitations is three years and that Plaintiff's complaint filed ...

Excerpt: ...e sufficient allegations in the complaint to establish partnership. A partnership is “an association of two or more persons to carry on as co‐owners a business for profit.” Holmes v. Lerner (1999) 74 Cal.App.4th 442, 453 citing the Uniform Partnership Act. While the sharing of profits or management or control are indicia of partnership, there are other elements can establish partnership. Id. at 456. For example, in Holmes, Pat Holmes was Sa...

Excerpt: ..., for the reasons set forth below. 1 st COA for Declaratory Relief In their first cause of action, the Tangonans allege an “actual controversy” exists as to which party is entitled to the surplus funds from the foreclosure sale, and they seek a judicial determination as to “whether the written agreement is valid.” The Tangonans do not assert any grounds for declaratory relief. The issue of whether the Tangonans are entitled to surplus fun...

Excerpt: ... licensed attorney, cannot represent plaintiffs Marquetta and Marquel Benton. Plaintiffs Marquetta and Marquel Benton must represent themselves in pro per or they must get an attorney. As to the Fourth Cause of Action alleging a violation of the Ralph Act (Civ. Code § 51.7), the Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Code Civ. Proc. § 430.010(e). As discussed in the case law cited by the parties, the Legislature enacted the Ralph Act pri...

Excerpt: ...bly incurred following Defendant's May 2019 § 998 offer to repurchase the vehicle. According to Defendant, “all of the [] claimed costs and expenses incurred after the FCA May 3, 2019 good faith offer should be disallowed.” Opposition, p.9. However, additional fees were incurred after this date, at least in part, as a result of Defendant's failure to provide a specific repurchase amount in its offer. Plaintiff's counsel's efforts to determin...

Excerpt: ...tains the material terms. Weddington Productions, Inc. v. Flick, 60 Cal. App. 4th 793, 797 (2d Dist. 1998). The settlement agreement must be a valid and binding agreement according to contract principles. Kohn v. Jaymar‐Ruby, Inc., 23 Cal. App. 4th 1530, 1533 (1st Dist. 1994). “A settlement agreement, like any other contract, is unenforceable if the parties fail to agree on a material term or if a material term is not reasonably certain.” L...

Excerpt: ...hase date. Defendants are therefore entitled to judgment in their favor.” MPA, p.9. Unfortunately, Defendant does not distinguish in its analysis between the delayed discovery rule as applied to express, as opposed to implied, warranties. Indeed, Defendant conflates the analysis. In its discussion of Plaintiff's claim for breach of express warranty, Defendant cites Mexia v. Rinker Boat Co. (2009) 174 Cal. App. 4th 1297, 1306 for the proposition...

Excerpt: ...ursuant to Code of Civil Procedure § 664.6 to resolve this dispute. The Court rules as follows: Interpretation of a contract is a judicial function. The trial court “give[s] effect to the mutual intention of the parties as it existed” at the time the contract was executed. (Civ. Code, § 1636.) Ordinarily, the objective intent of the contracting parties is a legal question determined solely by reference to the contract's terms. (Civ. Code, �...

Excerpt: ...‐party's interests are identical to those of the moving party and where joinder would conserve the parties' resources.” (See Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial, Law and Motion Model Forms, § 16C:2.Sample Motion for Joinder—Memorandum, citing Calvert Fire Ins. Co. v. Kropper (1983) 141 Cal. App. 3d 901.) FAR fails to establish that its interests are identical to Liberty's interest with respect to Liberty's Motion for Ju...

Excerpt: ...efendant Peng As an initial matter, the court notes Defendants Peng and Ng are not similarly situated with respect to the procedural facts at issue. Notably, Defendant Peng was not named as a Respondent in the Labor Commissioner's action pursuant to Labor Code § 98.7(a) and (b). This fact is fatal to the Commissioner's claims against Defendant Peng in this action pursuant to Labor Code § 98.7(c). The Commissioner's April 20, 2018 determination ...

Excerpt: ... are not similarly situated with respect to the procedural facts at issue. Notably, Defendant Peng was not named as a Respondent in the Labor Commissioner's action pursuant to Labor Code § 98.7(a) and (b). This fact is fatal to the Commissioner's claims against Defendant Peng in this action pursuant to Labor Code § 98.7(c). The Commissioner's April 20, 2018 determination specifically addresses the individual respondents' participation in the Co...

Excerpt: ...siness & Professions Code § 17200 related to a non‐compete clause in the contract between Plaintiff and Defendants. This motion presents the question of whether this Court should use its discretion to stay or dismiss this case based upon the parties' contract which provided in section 13.2 of the agreement that the “Agreement shall be construed and interpreted in accordance with the laws of the State of Arizona applicable to agreements made ...

Excerpt: ...t. First, Plaintiff's calculations are $5 off. See 1‐23‐20 Harnett Decl., ¶9 (the numbers add up to $2,990, not $2,995. Further, the $350 requested for anticipated attorney time attending the hearing will likely to unnecessary, because the Tentative Ruling is unlikely to be opposed. Accordingly, Plaintiff Kenneth Grayson is entitled to Judgment in his favor, and against Defendant America Home Builders, Inc., a California Corporation, dba Goo...

Excerpt: ...nia sufficient to invoke personal jurisdiction. To be subject to a court's specific jurisdiction, (1) the non‐resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arise...

Excerpt: ...get an attorney. Defendant Burlington Coat Factory of Texas, Inc.'s Motion to Strike portions of Plaintiff Bertha Benton et. al.'s Third Amended Complaint (TAC) is GRANTED WITHOUT LEAVE TO AMEND, for the same reasons set forth in the Court's 10‐15‐19 Minute Order granting Defendant's Motion to Strike Plaintiffs' request for punitive damages in the Second Amended Complaint. Code Civ. Proc. §§ 435‐437; Civ. Code § 3294. As stated in the 10...

Excerpt: ...est the tentative, it may be heard on the same date as the demurrer in Line 2. ORIGINAL TENTATIVE RULING Defendant Richard A. Keating's (“Keating”) motion to strike portions of the Fourth Amended Complaint is ruled upon as follows: The motion to strike the punitive damage claim is DENIED. Punitive damages may be awarded in nuisance claims when the jury “could reasonably infer that defendants acted in callous disregard of plaintiffs' rights,...

Excerpt: ...to Strike the Memorandum of Costs filed by Petitioner Retail Delivery Drivers, Drivers‐Salesmen & Helpers & Auto Truck Drivers Union Local 2875 (“Petitioner”), is GRANTED. Petitioner initiated this action by filing a Petition to Compel Arbitration. Prior to the court's ruling on the Petition to Compel Arbitration on March 4, 2020, Petitioner filed a Memorandum of Costs on February 13, 2020. California Rules of Court (“CRC”) Rule 3.1700 ...

Excerpt: ...�) and RPA2 LLC dba WIN HOME INSPECTION SAN MATEO's (“WIN”) Motion to Strike the punitive damages allegations in Plaintiffs' Complaint for Damages is GRANTED with leave to amend. As a general rule, punitive damages are disfavored and are awarded “with the greatest caution” and only in the “clearest of cases.” Beck v. State Farm Mut. Auto. Ins. Co. (1976) 54 Cal.App.3d 347. The law requires that a plaintiff seeking punitive damages pro...

Excerpt: ...ot deemed filed merely by virtue of the Court granting leave to amend. A proposed amended pleading must be separately filed with the Clerk's office after leave to amend has been granted. Here, the “First Amended Cross‐Complaint” (FACC) at issue in this Motion to Strike has not been properly filed with the Court. The Court's 12‐5‐19 Order merely granted the Hogans leave to file it. However, notwithstanding this procedural defect, under t...

Excerpt: ...written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. (c) A party to the arbitrati...

Excerpt: ...and then has taken the motion offcalendar, refiled it and continued the hearing date due to Plaintiff's counsel's medical issues. On January 17, 2020, this motion was set for hearing. Plaintiff filed no opposition, but after the date the opposition was due, Plaintiff's counsel requested a continuance for medical reasons. Over defense objections on the basis that the hearing had been continued previously and defense counsel did not want to incur u...

Excerpt: ...e liability. The Moving Defendants have submitted only the declaration of their attorney, Daniel Cribbs. The declaration provides no facts, based on discovery or otherwise, relating to Plaintiff's anticipated recovery or Defendants' proportionate liability. As a result, the motion must be denied. Greshko v. County of Los Angeles (1987) 194 CA3d 822, 834; Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 CA4th 1337, 1351.” At the hearing, Movin...

Excerpt: ...e Civ. Proc. § 187. On 1‐29‐19, Plaintiff Homma, Inc. filed a Motion to Amend Judgment to Add Mr. Yoshiro Mikumo as an additional Judgment Debtor, pursuant to Code Civ. Proc. § 187. The initial 3‐14‐ 19 hearing date was thereafter continued multiple times, in part to allow Yoshiro Mikumo additional time to retain counsel to represent him in his personal capacity. On 6‐19‐19, the Court published a Tentative Ruling indicating its inte...

Excerpt: ...gree, an action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.” Code of Civ. Proc. § 340.6(a)....

Excerpt: ...iscloses that she currently owns and/or has a potential beneficial interest as of February 28, 2020 of about $2,700 in Travelers Cos., Inc. Further, she discloses that she has a niece and nephew that work for Travelers Insurance Company, which may be a related company to plaintiff. The motion for entry of judgment, filed by Plaintiff Travelers Property Casualty Company of America is DENIED. To qualify for enforcement or entry of judgment under Co...

Excerpt: ...ment, the Court continued the matter to March 12, 2020 and allowed Defendants to respond to the objections. After further review of the application and all documents, the Court rules as follows. Plaintiff's evidentiary objections to the Declarations of Laurie Morgan and Andrew Engler are OVERRULED. The declaration of Laurie Morgan is based upon her personal review of nonhearsay materials and expert opinion; the Court finds she satisfies the requi...

Excerpt: ...“could reasonably infer that defendants acted in callous disregard of plaintiffs' rights, knowing that their conduct was substantially certain to vex, annoy, and injure plaintiffs. Such behavior justifies the award of punitive damages.” Farmy v. College Housing, Inc. (1975) 48 Cal.App.3d 166, 176 (italics in original omitted). “Oppression for which punitive damages may be awarded ‘means subjecting a person to cruel and unjust hardship in ...

Excerpt: ...PARTY BUSINESS RECORDS SUBPOENA The Petition/Motion to Compel Compliance with Third Party Business Records Subpoena is GRANTED IN PART. First, to the extent that Third Party Exponent, Inc. (“Exponent”) objects that this Petition/Motion is untimely under C.C.P. section 2025.480(b), the court finds this argument unpersuasive. C.C.P. section 2025.480(b) provides that a motion under this section shall be made no later than 60 days after the compl...