Excerpt: ...16, 2023. At that time, Defendants had not filed an opposition. At the hearing on February 16, 2023, Defendants claimed that they never received the Motion so the Court continued the hearing to February 23, 2023. At the hearing on February 23, 2023, the Court continued the hearing to March 16, 2023 and set a briefing schedule for Defendants' opposition, and Plaintiff's reply. 80th Defendants and Plaintiffs timely filed their briefs. In their oppo...

Excerpt: ...ition is CONTINUED to May 25, 2023 at p.m. The parties are ORDERED to file and serve simultaneous supplemental briefs no longer than seven (7) pages on or by April 6, 2023 addressing the following issues: 1. Whether Logan v. Country Oaks Partners LLC (2022) 82 Cal.App.5th 365 [review granted) can be reconciled with Hutcheson v. Eskaton Fountainvvoc„d Lodge (2017) 17 Cal.App.5th 937 (Hutcheson)? And if so, how? 2. Whether Hutcheson is distinguis...

Excerpt: ...ferences that may be drawn from those facts." (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may "also consider matters that may be judicially noticed .. " (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) he Court does "not, however, assume the truth of contentions, deductions or conclusions of law." (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) Because the...

Excerpt: ...vil Procedure section 481.010, et seq.)] are subject to strict construction," and a court may not issue a writ of attachment unless authorized by those statutes. (Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106.) under the Attachment Law statutes, an application for a writ of attachment must be based on a claim for breach of an express or implied contract. (Code Civ. Proc., S 483.010(a); Korea Water Resources C...

Excerpt: ...tella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191.) But a demurrer “ ‘will lie where the complaint “has included allegations that clearly disclose some defense or bar to recovery.” ' ” (Ibid.) In other words, “ ‘a demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.' ” (Ibid.) B. Discussion Both partie...

Excerpt: ... inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567,...

Excerpt: ...ssory fraud on the ground that it is barred by the three-year statute of limitations set forth in Civil Code Section 338, subdivision (d). The Court previously sustained Plaintiff's demurrer on this ground: “Plaintiff contends Defendants' fifth cause of action for promissory is barred by the three-year statute of limitations applicable to causes of action for fraud. Defendants counter that they are only asking for rescission in that cause of ac...

Excerpt: ...quest for Production of Documents, Set Two (Motion) is GRANTED. Plaintiff's request for monetary sanctions is GRANTED IN PART and DENIED IN PART. As a threshold matter, the Court notes that Defendant filed his opposition on February 10, less than 9 court days before the hearing date in violation of Code of Civil Procedure section 1005, subdivision (b) and rule 3.1300, subdivision (a) of the California Rules of Court. But even upon considering Def...

Excerpt: ...e the prevailing party on their anti-SLAPP motion and are therefore entitled to recover their attorney's fees and costs. Under Code of Civil Procedure section 425.16, subdivision (c)(1),” a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs.” “Given the express legislative preference for awarding fees to successful anti-SLAPP defendants, a party need not succeed in stri...

Excerpt: ...order. Defendant's Motion to Strike is DENIED. Defendant's Request for Judicial Notice is GRANTED with respect to the items numbered 1–7, 10, and 13–16 and DENIED with respect to the items numbered 8–9 and 11–12. I. DEMURRER As a preliminary matter, Defendant's Demurrer addresses both the “Objection to Demurrer Motion [¶] Amended Complaint” (Objection) and “Amended Complaint and Petition for Protection under the American Disabiliti...

Excerpt: ...o strike, the allegations in the complaint are considered in context and presumed to be true: ‘(J)udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.' ” (Weil & Brown, supra, at § 7:197.5, quoting Clauson v. Superior Court (Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255.) Accordingly, a motion to strike “will be granted only if it is clear that the matte...

Excerpt: ...laint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (20...

Excerpt: ...OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Defendant City of Millbrae's (City) Motion for Summary Judgment or, in the Alternative, Summary Adjudication (Motion) came for hearing before this Court on February 9, 2023 at 2:00 p.m. All parties appeared through their counsel. Having considered all papers filed in support of and in opposition to the Motion, oral arguments of the parties, any testimony and evidence presented at the hearing, and all o...

Excerpt: ...positions of Golden Gate Produce Terminal Ltd.'s Board of Directors Peter Carcione, Stephen Hurwitz, and Joseph Carcione, Jr (Motion) is DENIED. Plaintiff's request for sanctions is DENIED. Plaintiff contends “apex” depositions of three members of Plaintiff's Board of Directors are improper because Defendant has not made the showing required by Liberty Mutual Ins. Co. v. Superior Court (Frysinger) (1992) 10 Cal.App.4th 1282, 1287-1288 (Libert...

Excerpt: ...rted by an otherwise sufficient claim or defense.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group June 2020) § 7:178 (Weil & Brown).) Defendant moves to strike: (1) introductory allegations about the results of surveys on the prevalence of security deposit withholding in California (see Compl., ¶¶ 1‐6) and (2) the punitive damage allegations (see id., ¶¶ 6, 80, 100, 109, 113 & p. 22). As explained below, the M...

Excerpt: ...dale Shopping Center (Hillsdale) (collectively, Defendants) is GRANTED. A. Facts Plaintiff Abigail Masic‐Maharaj, a toddler, approached the escalator unaccompanied by an adult. (Statement of Undisputed Facts (SUF), ¶ 1.) Plaintiff fell on the escalator while unaccompanied by an adult. (Id., ¶ 2.) “Immediately after the incident, the escalator was shut down and inspected.” (Id., ¶ 3.) The inspection revealed “[n]o defects or operational...

Excerpt: ...d confer requirement imposed by Code of Civil Procedure section 430.41, subdivision (a). Plaintiff's meet and confer declaration simply states that “On October 25, 2022, I attempted to meet and confer with Craig Smith, counsel for Cross‐Complainant, regarding a demurrer to the First Amended Cross‐Complaint in this matter. I sent via email the letter attached hereto as ‘Exhibit A' and invited Mr. Smith to have a telephone conference regard...

Excerpt: ...i (collectively, Plaintiffs) concede that the causes of action in their Amended Complaint “are less than well pled.” (Opp., at p. 1.) Instead of opposing the Demurrer on the merits, they attach a Proposed Second Amended Complaint (Proposed SAC) as evidence that leave to amend should be granted. (See Opp., ex. A.) Although the Proposed SAC does not cure all the defects identified by Defendants, the Court cannot conclude that there is no reason...

Excerpt: ...The Gearings move to compel further responses to the 104 requests for production (RFPs) contained in Defendant Thomas Gearing's Request for Production of Documents, Sets One and Two (Thomas Gearing Set One and Set Two), and Defendant Daniel Gearing's Request for Production of Documents, Set One (Daniel Gearing Set One). The Gearings served the sets of RFPs on Plaintiff and Cross‐Defendant City of Half Moon Bay (City) on April 26 and May 24, 202...

Excerpt: ... Association's Demurrer to Plaintiff's Complaint—which is incorporated herein—the MJOP is DENIED as to Plaintiff Brian Peagler's first cause of action under the Unruh Act but GRANTED WITH LEAVE TO AMEND as to his remaining causes of action. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the Individual Defendants shall prepare a written order consistent with the Court's ruling for the Co...

Excerpt: ...Standard On a demurrer, the Court must “assume the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of co...

Excerpt: ...ment is denied because the Motion addresses only the open book account claim, even though Plaintiff alleges other common count claims in the Complaint. Therefore, Plaintiff has not met its initial burden of establishing that it is entitled to summary judgment. 2. Summary Adjudication Summary adjudication of Plaintiff's open book account claim is denied without prejudice because Plaintiff has not met its initial burden establishing that Defendant ...

Excerpt: ... set forth in Code of Civil Procedure section 366.2. According to Defendant, “[b]ecause this action is based ‘on a liability of the decedent', i.e. Andrew Goldstein, C.C.P. section 366.2 was triggered upon Andrew's death. HSBC had one year from Andrew's death to bring its action and HSBC alleged that Andrew died on November 18, 2014. (FAC, ¶18.) The action is therefore barred by C.C.P. section 366.2.” The Court of Appeal, however, already ...

Excerpt: ...D IN PART and SUSTAINED IN PART WITH LEAVE TO AMEND. Defendants' Evidentiary Objections are OVERRULED. Defendants' Request for Judicial Notice (RFJN) of the Facebook Memorial Page is DENIED. The RFJN is GRANTED in all other respects. 1. Legal Standard On a demurrer, the Court must “assume the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of ...

Excerpt: ...aving reviewed Plaintiff's Seventh and Eighth Amended Complaints and the discovery at issue, the Court finds that the Declarations in Support of Additional Discovery for Defendant's Request for Admissions (Set Three) and Special Interrogatories (Set Three) satisfy the requirements of Code of Civil Procedure sections 2033.050 (request for admissions) and 2030.050 (interrogatories). Specifically, Defendant Nordstrom, Inc. has met its burden of show...

Excerpt: ...cuments as Subject to Privilege (collectively, Motions) are DENIED as to document nos. 1 and 7‐11 on Defendant Nordstrom, Inc's Second Revised Supplemental Privilege Log (Privilege Log). The parties are ORDERED to appear to discuss document nos. 2‐6 on the Privilege Log. “The attorney‐client privilege, set forth at Evidence Code section 954, confers a privilege on the client ‘to refuse to disclose, and to prevent another from disclosing...

Excerpt: ...d Mary Altube's Motion to Compel Responses to Written Discovery (Requests for Production of Documents (Set One), Requests for Admissions (Set One), Special Interrogatories (Set One), and Form interrogatories (Set One), served on or about May 12, 2022), to Deem the Truth of Any Matters Specified in the Requests for Admissions Admitted, and for Sanctions (Motion) is GRANTED pursuant to Code of Civil Procedure sections 2030.290, 2031.300, subdivisio...

Excerpt: ...‐Defendants' Request for Judicial Notice is GRANTED pursuant to Evidence Code section 452. As a threshold matter, it does not appear that Cross‐Defendants met and conferred with Defendant and CrossComplainant James Walsh as required by Code of Civil Procedure section 439, subdivision (a). Although CrossDefendants bring the MJOP under both the common law and Code of Civil Procedure section 438, the availability of a non‐statutory motion for ...

Excerpt: ...S CONSTRUCTION; and DOES 1 through 25, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 20‐CIV‐04521 Assigned for All Purposes to Hon. Danny Y. Chou ORDER GRANTING MOTION FOR TERMINATING SANCTIONS AGAINST PLAINTIFF GANGFENG LAI Plaintiffs Justin Tao's and Linda Lu's unopposed Motion for Terminating Sanctions Against Defendants Atlas Construction and Development, Inc. (Atlas) and America Home Builders, Inc. (AHB) (Motion) came for heari...

Excerpt: ...he Court must “assume the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or ...

Excerpt: ...made in good faith. In support, PMI submits declarations from Rangi Perera, its counsel, and attaches the Settlement and Release Agreement (Settlement Agreement) to one of those declarations. The Settlement Agreement defines the scope of work performed by PMI on the construction project that resulted in the lawsuit and is covered by the release (PMI's Scope of Work). Specifically, the Agreement defines PMI's Scope of Work as “providing and inst...

Excerpt: ...al Interrogatories, Set Three, and Request for Production of Documents, Set Four, and Request for Sanctions (Motion) is GRANTED IN PART and DENIED IN PART. As a threshold matter, the Court finds that the meet and confer and informal discovery conference requirements were met. In reaching this finding, however, the Court notes that the deadline imposed by Cross‐Defendant in its 11‐page letter resulted in a meet and confer that was not producti...

Excerpt: ... Plaintiff's request for terminating sanctions is DENIED. Plaintiff's request for monetary sanctions in the amount of $810.00 is GRANTED. Plaintiff seeks terminating sanctions because Defendant Ching Lin Wang failed to comply with the Court's May 18, 2022 Order (1) compelling Defendant to serve responses to Plaintiff's form interrogatories and requests for production, (2) deeming requests for admissions as admitted, and (3) and imposing monetary ...

Excerpt: ...ONSTRUCTION, INC., a California corporation, Cross‐ Plaintiff, v. GENESIS KINGHWA, LLC, a California Limited Liability Company; 171 CORONADO INVESTMENTS, LLC, a California Limited Liability Company, and ROES 1‐40, inclusive Cross‐Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 19CIV02560 Assigned For All Purposes to Hon. Danny Y. Chou ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL Defendant Excel One Construction, I...

Excerpt: ...er) is OVERRULED. In its fifth and sixth causes of action, Plaintiff Financial Pacific Insurance Company asserts claims for equitable subrogation. (FAC, ¶¶ 50—76.) Defendant contends the Demurrer should be sustained because Plaintiff did not allege facts sufficient to establish that Plaintiff is not primarily liable for insured Robert Boeger Plastering's (the Insured) loss. Alternatively, Defendant contends the Demurrer should be sustained be...

Excerpt: ...riginally filed a complaint, alleging among other things, a cause of action under the Insurance Fraud Preventions Act (IFPA). Plaintiff the Insurance Commissioner of the State of California (CDI) intervened and assumed “primary responsibility” for prosecuting the IFPA cause of action. (Ins. Code, § 1871.1, subd. (f)(1). By way of a written agreement (Agreement), Plaintiff and CDI have settled the IFPA cause of action. Defendants The Allergy ...

Excerpt: ... facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Paci...

Excerpt: ...opics. Weiner's PMQ deposition notices also request that Nordstrom produce many categories of documents. Nordstrom, which recently changed counsel in this case, filed this Motion seeking to stay all discovery until Nordstrom files an “answer” to an “operative complaint.” The Court continued the hearings on Weiner's four motions to compel to November 3, 2022 so they could be heard together with this Motion. The Court did so because this Mo...

Excerpt: ...ourt issued a tentative ruling denying part of the Motion as moot and denying the remainder of the Motion without prejudice because of, among other things, defects in the Certificates of Merit submitted by Plaintiff. Since then, the Court has continued the hearing on the Motion three times to give Plaintiff an opportunity to correct the defects outlined in the Court's tentative ruling. Despite this, Plaintiff has simply resubmitted the Certificat...

Excerpt: ...ain, et al's (Defendants) August 2, 2022 case management conference statement (CMC Statement), which summarized the case as follows: “There is a dispute concerning the actual amount owed on a loan made by [Plaintiff]. [Plaintiff] has not properly credited certain settlement payments and are seeking to foreclose on a deed of trust.” (Aug. 2, 2022 CMC Statement, ¶ 4(b).) Plaintiff contends these statements were “knowingly false” and “[De...

Excerpt: ...f's Motion for Judgment for Backpay (Motion) because “Plaintiff appears to have filed four documents containing exhibits to a declaration” without filing “the declaration itself or any other papers in support of the Motion.” As a result, the Court could “discern no basis for granting the relief requested by Plaintiff.” (June 30, 2022 Minute Order.) In apparent response to the Court's June 30, 2022 ruling on the Motion, Plaintiff filed...

Excerpt: ...al., Defendant. ELIZABETH KARNAZES; Cross‐Complainant, v. DAVID MELCHNER, JOHN J. HARTFORD, et al., Cross‐Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV458258 Assigned For All Purposes to Hon. Danny Y. Chou ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR ATTORNEY'S FEES AND COSTS Cross‐Defendant and Judgment Creditor John Hartford's Motion for Attorney's Fees and Costs (Motion) originally came for hearing ...

Excerpt: ...ursuant to a Code of Civil Procedure section 998 offer (Section 998 Offer). There is, however, a dispute over the amount of fees that may be recovered by Defendant. Defendant contends she is entitled to recover $25,337.50 in fees. Plaintiff Midland Credit Management Inc. counters that Defendant should be awarded no more than $4,147.50. Using the lodestar method, the Court awards Defendant $11,450 in attorney fees. 1. Hourly Rates Defendant claims...

Excerpt: ...n from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) Fraud must be pled �...

Excerpt: ...ree that the arbitration provision states that “[a]ll disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association” (AAA). As explained below, the Court denies the Motion because Petitioner has not made proper demand for arbitration as required by the parties' written agreement. A party seeking to compel arbitration pursuant to Code of Civil Procedure section 1281.2 must “p...

Excerpt: ...h 279, 293.) However, the right depends on a timely demand; the failure to demand a jury trial t in a timely manner may constitute a waiver of the right. (Code Civ. Proc., § 631; Grafton Partners L.P. v. Superior Court (2005) 36 Cal.4th 944, 955.) Further, even if a timely demand has been made, the demanding party's failure to post jury fees before “the initial case management conference” constitutes a waiver of the right to jury trial. (Cod...

Excerpt: ...ve two opportunities to do so, the Court ADOPTS its October 6, 2022 tentative ruling. The Court reproduces its October 6, 2022 tentative ruling below: Plaintiff's Motion to Seal Certificates of Merit, Permit Service on Doe Defendants, Permit Plaintiff to file an Amended Complaint, and Permit Plaintiff to Proceed Under a Fictitious Name is DENIED IN PART AS MOOT and DENIED IN PART WITHOUT PREJUDICE. Plaintiff's request to seal the Certificates of ...

Excerpt: ...und in Part 2 of the Code of Civil Procedure—does not apply to this conservatorship proceeding. As this Court previously explained, “the California Supreme Court, over 80 years ago, held that a conservatorship proceeding under Insurance Code sections 1010 to 1062 is a special proceeding that is not subject to the provisions of Part 2 of the Code of Civil Procedure. (See Carpenter v. Pacific Mutual Life Ins. Co. of Cal. (1937) 1.0 Cal.2d 307, ...

Excerpt: ...n the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electr...

Excerpt: ...e prevailing party on his anti‐SLAPP motion,” “is entitled to reasonable attorney's fees and costs incurred in establishing his entitlement to fees and costs under [Code of Civil Procedure] section 425.16, subdivision (c) and in defending the validity of his judgment for those fees and costs.” (Nov. 18, 2021 Order, at p. 6.) Thus, Hartford is entitled to recover his reasonable attorney fees and costs incurred in protecting the validity an...

Excerpt: ...fore November 14, 2022. Defendant establishes that it properly noticed Plaintiff's deposition for August 16 and 17, 2022 at the San Mateo County Attorney's Office in Redwood City, and that Plaintiff failed to appear for her deposition. (See Cruz Decl., ¶¶ 1, 15, and Exs. A and N.) Plaintiff does not dispute that Defendant is entitled to take her deposition for two additional days, but instead argues that Defendant should only be permitted to ta...

Excerpt: ...ed Razzaqui v. Williams, Case No. CGC‐22‐597701, to this Court (San Mateo County Superior Court) for coordination with this case. Defendants from both cases oppose the Motion, and indicate that they will file a motion to bifurcate if the two cases are joined for trial. Code of Civil Procedure section 403 authorizes a judge in one court to order a case pending in another court transferred to the judge's court if it (a) involves a “common que...

Excerpt: ...ade in good faith. In support, Myson submitted the declaration of its counsel, Gary L. Franklin. Franklin's declaration sets forth the basic facts concerning the litigation (Franklin Decl., ¶¶ 3‐9), and attaches the settlement agreement (id., ex. 1). Franklin also avers that Myson agreed to pay Plaintiff $120,000 to “buy peace,” that Myson vigorously disputes that it is in any way liable to Plaintiff, and that Myson is not insured for thi...

Excerpt: ...s Motion to Quash (Motion) is DENIED. Discovery is RE‐OPENED for the limited purpose of allowing Plaintiff to take Rhone's deposition before October 10, 2022. The deposition may be conducted remotely. The parties are ORDERED to meet and confer on a date for Rhone's deposition. 1. Witness's Lack of Knowledge Defendants and Rhone contend the subpoena does not seek relevant information because Rhone has submitted a declaration stating that she has...

Excerpt: ... to summary judgment because “Plaintiff's failure to submit this dispute to arbitration is a complete bar to this civil action.” (MPA, at p.9) This contention lacks merit. The Loan Agreement entered into between Defendant Escandon Uniforms, Inc. (Escandon) and School Apparel, Inc. (SAI), Plaintiff's predecessor‐in‐interest, contains an arbitration provision stating that “[i]n the event of a dispute between the parties under this Agreeme...

Excerpt: ...e Motion as timely because the electronic filing stamp on the moving papers indicated Plaintiff filed the Motion on March 17, 2022—two days after the March 15 deadline. After oral argument on August 11, 2022, the Court continued the hearing to September 22, 2022, and requested additional briefing on the timeliness issue. Having reviewed the parties' Supplemental Briefs, the Court finds that the Motion was timely‐filed. Plaintiff submitted the...

Excerpt: ...V‐04521 Assigned for All Purposes to Hon. Danny Y. Chou ORDER GRANTING MOTION FOR TERMINATING SANCTIONS AGAINST PLAINTIFF GANGFENG LAI Defendant Sterling Bank & Trust, FSB's (Sterling) unopposed Motion for Terminating Sanctions Against Plaintiff Gangfeng Lai (Motion) came for hearing before this Court on September 22, 2022 at 2:00 p.m. Having considered all papers filed in support of and in opposition to the Motion, oral arguments of the partie...

Excerpt: ...the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (...

Excerpt: ... reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.A...

Excerpt: ... in any manner connected with a judicial proceeding before it, in every manner pertaining thereto.” (Code of Civ. Proc., § 128, subd. (a)(5); see Capra v. Capra (2020) 58 Cal.App.5th 1072, 1091– 1092.) In deciding whether to disqualify an attorney, the paramount concern “must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.” (People ex rel Dept. of Corps. v. SpeeDee Oil Change Systems,...

Excerpt: ...ty of San Mateo (Defendant) from 2007 to 2019 pursuant to an independent contractor agreement. (FAC, ¶¶ 6‐19.) Plaintiff alleges that “beginning in early 2019,” Defendant “began to change the terms of [Plaintiff's] employment,” which effectively changed her status from independent contractor to employee. (Id., ¶ 16.) After Plaintiff filed an EEOC Complaint against Defendant, Defendant allegedly “terminated” her. (Id., ¶¶ 19‐2...

Excerpt: ... seek any monetary relief. In her first through fifth causes of action under the Fair Employment and Housing Act (FEHA), however, Plaintiff does seek monetary relief. Although Defendant acknowledges that Plaintiff's FEHA claims are not subject to the Government Claims Act (GCA), it nonetheless argues that Plaintiff's sixth cause of action is subject to the GCA based solely on the claims for monetary relief in her FEHA causes of action. The Court ...

Excerpt: ...im's second demurrer. (See Mar. 30, 2022 Demurrer, p. 1 [“Defendants Joseph and Suzie Kim (hereafter ‘Defendants'), will and hereby do generally and specifically demurrer [sic] to Plaintiffs Carol and Charles Oushani's, [sic] Complaint”].) But subsequent demurrers are not prohibited as a matter of law. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 282 [“[w]hile it is true that no statute specifically authorizes the procedu...

Excerpt: ...AVE TO AMEND, and SUSTAINED IN PART WITHOUT LEAVE TO AMEND. 1. Legal Standard On a demurrer, the Court must “assume the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App....

Excerpt: ...econsideration Motion #1). On July 6, 2022, Plaintiff filed a Motion to Contest Tentative Ruling Dated 06‐30‐2022; Motion for Reconsideration; Memorandum of Points and Authorities; Declaration (Reconsideration Motion #2). On July 8, 2022, Plaintiff filed Declaration 3 of Plaintiff Andrada in Support to her Motion for Consideration on Her Request for Entry of Default Judgment Against Defendant Arman Baghbanbashi (Reconsideration Motion #3.) Al...

Excerpt: ...t cause of action alleges “various forms of indebtedness” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394), including an open book account, accounted stated, money lent, money paid or laid out to or for the defendant at her request and for the loan issued by the plaintiff upon the defendant's request. The Motion, however, only addresses the claim of an open book account. Summary adjudication of the common count claim based on an open boo...

Excerpt: ...or All Purposes to Hon. Danny Y. Chou ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES The Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues (Motion) filed by Defendants Jaye Morris and Brett Kinigstein (collectively, Defendants) came for hearing before this Court on August 25, 2022 at 2:00 p.m. All parties appeared through th...

Excerpt: ...s (Reconsideration Motion #1). On July 6, 2022, Plaintiff filed a Motion to Contest Tentative Ruling Dated 06‐30‐2022; Motion for Reconsideration; Memorandum of Points and Authorities; Declaration (Reconsideration Motion #2). On July 8, 2022, Plaintiff filed Declaration 3 of Plaintiff Andrada in Support to her Motion for Consideration on Her Request for Entry of Default Judgment Against Defendant Arman Baghbanbashi (Reconsideration Motion #3....

Excerpt: ...e drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) 2. First Cause ...

Excerpt: ...hat much of the $5,747.80 claimed in Item 1 consist of fees for legal service firms, and not filing or motion fees. Indeed, the only filing/motion fee listed in Item 1 is for Defendants' motion for summary judgment, incurred on October 8, 2019. However, the Court has discretion to grant costs of couriers or messenger fees if reasonably necessary to the conduct of the litigation. (Foothill‐De Anza Community College Dist. v. Emerich (2007) 158 Ca...

Excerpt: ...e grounds even if statutory relief is unavailable.” (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 910 (Luxury Asset Lending), quoting Rappleyea v. Campbell (1994) 8 Cal.4th 975 [quotation marks, brackets, and ellipses omitted].) “One ground for equitable relief is extrinsic mistake—a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on th...

Excerpt: ... Further Responses to Requests for Production (Set Seven) (Motion) and Requests for Monetary Sanctions is GRANTED IN PART and DENIED IN PART. 1. Request for Production (RFP) No. 78 In responding to RFP No. 78, Defendant Nordstrom, Inc. only provided objections. Defendant's response is not, however, code compliant. Under Code of Civil Procedure section 2031.240, a party who objects to a request for production must “identify with particularity an...

Excerpt: ...nsula Infiniti, a dealership, pursuant to a Retail Installment Sale Contract (Contract). (Maugeri Decl., ¶ 4, and ex. 3.) The only signatories to the Contract are Peninsula Infiniti and Plaintiff. (See id., ex. 3.) Defendant is not a signatory. (Ibid.) The Contract contains an arbitration provision, which states in relevant part that: “Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope...

Excerpt: ...Y KATHRYN LOW; MONETARY SANCTION FOR $1,500.00 FOR DEFENDANT'S WILLFUL VIOLATION OF COURT ORDERS AND EXHIBITS TENTATIVE RULING: Plaintiff David Weiner's Motion to Compel Further Responses to Requests for Production (Set One) is and Request for Monetary Sanctions (Motion) is GRANTED IN PART and DENIED IN PART. 1. Requests for Production (RFP) Nos. 6–7 On July 8, 2021, this Court granted in part and denied in part Plaintiff's motion to compel fur...

Excerpt: ...s Motion as a “repeat” of Defendants' 2021 motion to stay this case pending resolution of Defendants' earlier‐filed federal court case appears to be inapt. In denying Defendants' 2021 motion to stay, this Court stated that the motion may be renewed “if any only if” the federal district court issued a “conflicting ruling.” (See Sept. 28, 2021 Order.) As Plaintiff correctly notes, the federal district court has issued no “conflictin...

Excerpt: ...sement unit at 284 Mastick Avenue, San Bruno, CA 94066 (Property). (FAC, ¶ 3.) The unit was represented to Plaintiff as a legal one‐bedroom, one‐bathroom apartment, but it was actually not a legally rentable unit because the Property only had a certificate of occupancy as a duplex, and not as four individual units. (Id., ¶¶ 13, 19.) Defendants also allowed “dangerous housing conditions” to persist, including, but not limited to, inadeq...

Excerpt: ...e is shown to the adverse party, the liberal rule of allowance prevails.” (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.) Following the reversal of summary judgment by the Court of Appeal, Plaintiff seeks to amend its complaint by: (1) deleting three causes of action rejected by the Court of Appeal; (2) adding a cause of action for judicial foreclosure; and (3) correcting, clarifying, and adding factual allegations to support the other th...

Excerpt: ...iff's First Amended Complaint (FAC). This case stems from Plaintiff's unlawful detainer action, Case No. 19UDU00203. In that case, the parties entered into a Stipulation to Vacate Premises and to Transfer Unlawful Detainer Action to Civil Calendar (Stipulation). The Stipulation provides that “Plaintiff's claim for monetary damages, including but not limited to back rent, remains at issue in this matter. The parties stipulate and request that th...

Excerpt: ...sy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883 (Miklosy).) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) Finally, a “general demurrer does not ...

Excerpt: ...ixth causes of action. According to Defendants, those causes of action are barred by the California Uniform Trade Secret Act (CUTSA) and the economic loss rule. As explained below, the Court disagrees and therefore overrules the Demurrer in its entirety. A. Facts These facts are taken from the Complaint for Injunctive Relief and Damages (Complaint or Compl.). Blatt and Beigelman are the founders and former officers of Alios Biopharma Inc. (Alios)...

Excerpt: ...nt is not entitled to relief under Code of Civil Procedure section 473, subdivision (d) because Defendant cannot establish that the judgment is void without relying on extrinsic evidence— i.e., the truth of matters asserted in Plaintiff A.J.E. Investment Group, LLC's memorandum and declaration offered in support of its motion for summary judgment. (See Def.'s Request for Judicial Notice (RFJN), Exs. 3 and 7.) “In determining whether an order ...

Excerpt: ... § 437c, subd. (p)(1).) If the moving plaintiff satisfies this initial burden, the burden shifts to the defendant to set forth “specific facts” showing that a triable issue of material fact exists as to a cause of action or a defense. (Ibid.) Having reviewed the record, the Court finds that Plaintiff met its initial burden under Code of Civil Procedure section 437c, subdivision (p)(1) of establishing each element of its causes of action for ...

Excerpt: ...4 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) Defendant contends her demurrer should be sustained because Plaintiff's Complaint does not allege ...

Excerpt: ...ntract, false claims, and unfair competition. On June 14, 2021, VLS filed its own cross‐complaint against the City for breach of contract, breach of the implied covenant of good faith and fair dealing, and claims arising under section 1983 of title 42 of the United States Code. I. BACKGROUND On December 19, 2017, after a competitive bidding process, the City awarded VLS a contract for construction of the Five Cities Lift Station, and modificati...

Excerpt: ...Partners, LLC dba Half Moon Bay Golf Links (Defendant) claims $3,619.40 in deposition costs, but has only established that it is entitled to $3,537.65, as evidenced by the invoices. (See Streza Decl., ex. B [pp. 007 to 009].) Defendant does not adequately explain the discrepancy between the invoices and the amount claimed in its Memorandum of Costs (Costs Memo). Plaintiffs have withdrawn their objections to the invoiced amount. The Court therefor...

Excerpt: ... moving party on a motion to strike attempt to speak with the party who filed the pleading. Simply exchanging emails is not enough. In this case, the declaration of counsel for Defendant does not clearly indicate whether counsel made any attempt to speak to counsel for Plaintiff. Nonetheless, the Court will consider the merits of the Motion to Strike in the interests of moving this case forward and in light of its tentative ruling below—which d...

Excerpt: ...s that the moving party on a demurrer attempt to speak with the party who filed the pleading. Simply exchanging emails is not enough. In this case, the declaration of counsel for Defendant does not clearly indicate whether counsel made any attempt to speak to counsel for Plaintiff. Nonetheless, the Court will consider the merits of the Demurrer in the interests of moving this case forward and in light of its tentative ruling below—which overrul...

Excerpt: ...al. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) Plaintiff Carol and Charles Oushani (Plaintiffs) allege common counts for “money had...

Excerpt: ... to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “ ‘[T]he defendant has the initial burden to show that undisputed facts support each element of the affirmative defense . . . .' ” (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289‐290.) If the defendant carries that burden, it “causes a shift, and the opposing party is then subject to a burden of production of [its] own to make a prima facie show...

Excerpt: ...rney fees only when authorized by contract or statute. (Code Civ. Proc., §§ 1021 & 1033.5, subd. (a)(10).) TEN6's First Amended Cross‐Complaint (FACC) does not seek attorney fees pursuant to contract. Rather, it seeks fees pursuant to Code Civ. Proc. section 1021.5. The Court previously struck TEN6's request for attorney fees in the original Cross‐Complaint, which also sought fees pursuant to Code of Civil Procedure Section 1021.5. (See Jan...

Excerpt: ...right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” In ruling on an anti‐SLAPP motion under this section, the Court engages in a two ‐step process. “First, the court decides...

Excerpt: ...s (TEN6) First Amended Complaint (FAC) (Demurrer) is OVERRULED. In the Demurrer, Genesys only challenges TEN6's third cause of action for violation of the Unfair Competition Law (UCL), Bus. & Prof. Code, § 17200, et seq. Citing this Court's previous order sustaining its demurrer to the UCL cause of action and Linear Technology Corp. v. Applied Materials (2007) 152 Cal.App.4th 115 (Linear), Genesys contends TEN6 failed to cure the defects in its ...

Excerpt: ...Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) A demurrer does not lie to only part of a cause action. (See Daniels v. Select Portfolio Servicing, ...

Excerpt: ...ion. (Soloway Decl., ¶7.) The FAC was served on January 18, 2022. (Id., ¶8.) The parties later disagreed about what the proper date for service was, with Defendants contending that February 22, 2022 was the proper date based on an extension of time to file due to electronic service. (Id., ¶¶13, 14 & Exs. 10, 11.) Defendants attempted to file their demurrer and special motion to strike on February 22, 2022, but the filing was rejected the foll...

Excerpt: ... account stated and open book account. It alleges the following facts: (1) third‐party Comenity Bank issued a credit account to Defendant Marjorie Anunciacion; (2) Defendant used, or authorized the use of, the credit account to make purchases and/or transactions; (3) Defendant received periodic billing statements for the credit account; (4) Defendant defaulted in making the required payments; and (5) Plaintiff was assigned and transferred all r...

Excerpt: ...e neglect under Code of Civil Procedure section 473, subdivision (b). According to Defendant, he was not aware of these proceedings because he did not receive a copy of the Complaint. (Corrected Chin Decl., ¶ 5) In light of statements set forth in Defendant's declaration, the Court finds that his motion should be granted pursuant to Code of Civil Procedure section 473.5. That section provides that “When service of a summons has not resulted in...

Excerpt: ...ded to Plaintiff under the Act. (See Civ Code, § 1794, subd. (d).) As a result, Plaintiff has filed this Motion, seeking an award of attorney fees and costs in the amount of $228,872.34 based on the lodestar amount and a 1.5 multiplier. Defendant does not dispute that Plaintiff is entitled to recover fees and costs but counters that the lodestar amount is inflated and that the Court should award a negative 0.2 multiplier. The Court agrees that s...

Excerpt: ...e neglect under Code of Civil Procedure section 473, subdivision (b). According to Defendant, he was not aware of these proceedings because he did not receive a copy of the Complaint. (Corrected Chin Decl., ¶ 5) In light of statements set forth in Defendant's declaration, the Court finds that his motion should be granted pursuant to Code of Civil Procedure section 473.5. That section provides that “When service of a summons has not resulted in...

Excerpt: ...nd denied as to RFP Nos. 7, 12, 13, 17, and 18. As a threshold matter, Defendant has waived her objections to the RFPs. Plaintiff's RFPs, Set One were served on July 29, 2021 with responses due on October 1, 2021. (Achermann Decl., ¶ 3.) Defendant did not, however, serve her responses on October 1, 2021, and no extension of time to respond was sought by Defendant. (Id., ¶ 4.) Instead, Defendant served her responses on November 5, 2021, 35 days ...

Excerpt: ... the Court takes judicial notice of the pleadings and docket in that case, which both parties have referenced in their papers. (See Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343 [when ruling on a demurrer, a court may take judicial notice of the plaintiffs' prior pleadings and positions in the same action as well as those from prior lawsuits].) The parties appear to agree that the statute of limitations governing Plaintiff...