Excerpt: ... three payment options in accordance with Code of Civil Procedure section 1161(2). The Court agrees with Defendant. Pursuant to CCP S 1161(2), a three-day notice must provide the following information relating to how payment may be made: (1) "the amount that is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be avai...

Excerpt: ... does not state that non-renewal of lease will render termination of the tenancy. The notice should have given the opportunity to cure. This did not happen because the notce was to quit without the opportunity to perform." The argument lacks merit. The Notce expressly states that rent was not paid by February 1, 2023, and it sets forth explicit instructions on how and where to pay the delinquent rent. The Notice is sufficient. Defendant's argumen...

Excerpt: ...hnson and Rose Johnson shall file a second amended complaint no later than ten (10) days after service of written notice of this order. Defendants Compass California II, Inc. ("Compass") and Joe Velasco demur to the tenth cause of action for fraudulent concealment set forth in Plaintiffs Dennis Johnson's and Rose Johnson's First Amended Complaint (the "FAC")— pursuant to Code of Civil Procedure section 430.10, subdivision on the grounds that it...

Excerpt: ...or "Creditor's Claim Deemed Rejected." (SAC 33-43.) The SAC states that Plaintiff previously filed a creditor's claim in the related pending probate action, Estate of Omid Tabatabai, San Mateo Superior Court Case No. 22PRO[n832 ("probate action"). (SAC '134.) The SAC alleges that Defendants failed to take action on the creditor's claim, and therefore Plaintiff exercises its option to deem the creditor's claim as rejected. (SAC 38-42.) Since a cre...

Excerpt: ...urchased the vehicle. Richards's purchase was financed, creating a lien immediately upon the sale. Defendants towed the vehicle pursuant to Vehicle Code section 22651, resulting in an immediate lien "for caring for and keeping the vehicle safe." (Veh. Code S 22851, subd. (a)(l).) Plaintiff's lien is superior to Defendants' lien, having been created and having attached first. The owner of a vehicle towed pursuant to Section 22651 has a right to re...

Excerpt: ...ment Debtor VITALY GOLOMB concedes belong to him, his wife Kateryna Mamyko-Golomb, and Golomb Solet Capital. Judgment Debtor Golomb concedes that he was CEO and "owner" of TIME TRAVELLER. If that is true, then money transfers to his wife and to Golomb Solet-i Capital raise questions about their propriety, especially since at least some of the transfers occurred after this lawsuit was filed. To determine whether the transfers were fraudulent for t...

Excerpt: ...and Reply briefs, and considers them timely. Facts. This is a residential unlawful detainer (UD) case. The allegations in Plaintiff's Complaint appear to be undisputed. As alleged, on 12-6-23, Plaintiff served Defendant with a Three-Day Notice to Pay Rent or Vacate. Defendant was two months behind in her rent payments at this time, having failed to pay rent for both November and December, 2023. On 12- 9-23, the Three-Day Notice expired. After the...

Excerpt: ...D as to exhibits A—B attached to the April 7, 2023 Declaration of Jason George and DE-NIED as to exhibits C—H. A hearing was held November 7, 2022, at which the Court continued the hearing to May 22, 2023, and permitted the parties to file supplemental briefing. The Court has considered the supplemental briefing and issues this modified tentative ruling. Defendant Facebook, Inc. ("Facebook") demurs to the First Amended Complaint (the "FAC") o...

Excerpt: ...an Carlos, CA. Plaintiffs allege breach of contract of a February 23, 2022 written agreement between Plaintiffs Riley Russell and Tomoko Russell as sellers to Defendant Akaal LLC as buyer for a sales price of $2,100,000 with a leaseback provision, an initial deposit amount of $63,000 within 3 days of acceptance, with the balance due March 8, 2022, and a 90 day lease back. Plaintiffs also allege a cause of action for fraud against Defendants Sarbd...

Excerpt: ...d Guang Dai's Motion to Compel Defendant Mavrik Construction & Development, Inc.'s Further Responses and Requests for Sanction is GRANTED IN PART and DENIED IN PART for the reasons set forth below. Defendant Mavrik Construction & Development, Inc. ("Mavrik") shall provide further responses to Form Interrogatories no. 324.1, Special Interrogatories nos. 1, 3, & 5—8, and Requests for Production nos. 1, 4— 5, & 8—14 no later than thirty (30) d...

Excerpt: ...apers prove each element of the causes of action, and the opposing papers fail to raise a triable issue of material fact as to any element of either cause of action or as to any affirmative defense. l. OBJECTIONS has asserted 37 pages of 52 objections to various matters, most of which are innocuous, having no bearing on the issues. On the subject of "inconsequential written evidentiary objections, without focusing on those that are critical," the...

Excerpt: ...of Plaintiffs Opposition, filed untimely on May 1, 2023, have not been considered. While the Opposition indicates that the parties have agreed to a continuance of this hearing, no justification has been provided for the late-filed Opposition, and a continuance is not conducive to the Court's impacted calendar. Defendants' Demurrer is OVERRULED. Plaintiff's Complaint is based upon a Three-Day Notice to Quit, which states that Defendants permitted ...

Excerpt: ...N-PART. 1. Procedural Matters Defendants' October 12, 2022 Request for Judicial Notice is GRANTED. (Evid. Code, S 452(d).). Defendants' Reply brief argues that the Court should not consider Plaintiff's Opposition brief due to alleged improper electronic service, and non- compliance with the parties' agreement regarding service. In the Court's discretion, the Court has considered Plaintiff's Opposition brief, but admonishes the parties that, going...

Excerpt: ...e Court's ruling on Defendant's Motion for Judgment on the Pleadings. 8. Discussion 1. Paragraph 9 Does Not Support Granting Summary Judgment Defendant argues that Paragraph 9 is an exculpatory clause that precludes liability for breach of contract. That argument is unpersuasive. i. Paragraph 9 Is an Indemnity Clause, Not an Exculpatory Clause In the absence of any extrinsic evidence, the Court may "determine the parties' intentons as disclosed b...

Excerpt: ... hereby STAYED pending resolution of the arbitration proceeding. Code Civ. Proc. Sect. 1281.4. As a matter of public policy, California courts favor the enforceability of arbitration agreements. Code Civ. Proc. Sect. 1281.2 provides that upon a showing that the parties entered into a valid agreement to arbitrate, and that a party thereto has refused to arbitrate the controversy, the Court "shall" order the parties to arbitrate "unless it determin...

Excerpt: ...ction for Money Had and Received is GRANTED. EKA's Request for Judicial Notice is GRANTED. On reply, the Plaintiff submitted additional evidence in support of his Motion, to which Defendant objects. The Court, in making fts ruling, has not considered any of the new evidence submitted by Plaintiff on reply. Plaintiff's Supplemental Request for Judicial Notice, made for the first time on reply to accompany the new evidence discussed above, is DENIE...

Excerpt: ...pursuant to cal. code of Civ. Proc. S 430.10(e). These causes of action are time barred by the applicable statute of limitations under Code of Civil Procedure section 337(a), and therefore fall to state a claim upon which relief can be granted. The gravamen of Plaintiff's First Amended Complaint arises out of alleged overcharges on Plaintiff's real estate loan from Defendant Bank of America, in which Plaintiff received a misstated HUD-statement w...

Excerpt: ...roc. Sect. 437c. Legal standard. A motion for summary judgment shall be granted if the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. Sect. 437c(c). A defendant has met its burden of showing that a cause of action has no merit if defendant shows that one or more elements of the cause of action cannot be established, or that there is a co...

Excerpt: ...es not state facts sufficient to constitute a defense to the complaint. (Code of Civ. Proc. (“C.C.P.”) § 438(c)(1)(A).) Plaintiff asserts that the Complaint states facts sufficient to constitute a breach of contract cause of action. (See Plaintiff's Memorandum, p.2:12-16.) Plaintiff claims that the Complaint establishes the existence of a contract between Plaintiff and Defendant, that Defendant breached the contract and that Defendant failed...

Excerpt: ...- Compel Duplicate Deeds. Plaintiff's claim to “compel duplicate deeds” is based on an allegation that two grant deeds relating to real property in Santa Clara County were stolen from a safe. (Complaint para. 65-69.) The Probate Court of this County fully adjudicated the issue of the deeds on the merits when it granted Defendant WALLACE's Rental Properties Petition. The Probate Court ruled that ROBERT had no valid property interest in the pro...

Excerpt: ... (30) days after written notice of entry of this order. Failure to timely file an amended pleading in compliance with this order may result in dismissal of this action. The Request for Judicial Notice of Private Defender Program Office (“PDPO”) is GRANTED. Defendant demurs to the Supplemental Complaint on the grounds that the claims are barred by res judicata, that the pleading is uncertain, and that insufficient facts are stated as to consti...

Excerpt: ...failed to (1) allege facts constituting a violation of the Homeowner's Bill of Rights (HBOR), (2) allege a timely tender of their indebtedness, or (3) establish that they were prejudiced by the alleged violations of the HBOR. Defendant contends, first, that Plaintiffs have failed to state facts constituting a violation of Civ. Code §§ 2923.7 or 2924.9. Civ. Code § 2923.7 provides that “[u]pon request from a borrower who requests a foreclosur...

Excerpt: ...of Peide An and Xiao Chen Liu is DENIED. 1. Section 1008(b) Is Inapplicable. IMUSIC asserts Code of Civ. Proc. section 1008(b) as the basis for this motion. (Notice of Motion at 2:7-8.) Section 1008, subdivision (b), however, pertains only to renewed motions. The present motion is not a renewed motion. The previous proceeding was Liu's and An's demurrer and the order sustaining demurrer. Since the present motion is not a renewal of any motion bro...

Excerpt: ...re exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. The clerk of the court is hereby ordered to seal the following doc...

Excerpt: ... pages 3 and 4, paragraphs 19, 21, 26‐29, 31, 34, 35, and items 4 and 7 of the Prayer for Relief in the SAC. Defendants maintain that these portions of the pleading are irrelevant and false. To the extent the Motion relies on the request for judicial notice, it is not well taken. If the documents were accepted as judicially noticeable, to the extent Defendants contest the factual allegations of the pleading it is an evidentiary matter that does...

Excerpt: ...efects from their prior motion, which the Court had denied on June 15, 2022. The present motion explains the new facts that rise the request to add Rona Maskan as a defendant and that the facts were discovered in April 2021. The present motion also includes the proposed pleading and an explanation of the new allegations. Plaintiffs promptly filed a 4th Amended Complaint on April 26, 2021. A. Plaintiffs Did not Act with Reasonable Diligence As to ...

Excerpt: ...eave to amend as to D & B. (Id. at 2:23-6:8.) As to Netwise, plaintiff pleads that its founder and CEO Dwight Gorall sexually assaulted and harassed her at a business event put on by plaintiff and her employer LiveRamp, Inc. (Cmplt. 3:6-4:9.) Civil Code 51.9 (sexual harassment): Plaintiff pleads that she helped host the LiveRamp "executive dinner for its clients and business partners" such as Gorall's Netwise at which Gorall groped and otherwise ...

Excerpt: ...ty Center, Redwood City. As to the merits, by this motion, Defendant moves for relief from its default on primarily equitable grounds. A court has inherent equitable authority to vacate a default at any time for extrinsic fraud or mistake, even when statutory relief is unavailable. (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 910.) A defendant seeking relief from its default must show generally al...

Excerpt: ...ining objections are OVERRULED. A party may move for summary adjudication of as to one or more claims of damages if the party contends that there is no merit to the claim. Cal. Code of Civ. Proc. §437c(f)(1). A defendant has met his or her burden on summary judgment of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established. Cal. Code of Civ. Proc. §437c(p). Once...

Excerpt: ...roc. Sect. 438. Legal standard for MJOP. The grounds for an MJOP must appear on the face of the challenged pleading or be based on facts the court may judicially notice. Code Civ. Proc. Sect. 438(d); Tung v. Chicago Title Co. (2021) 63 Cal.App.5th 734, 758‐759. An MJOP assumes that all facts pleaded in the complaint are true, no matter how improbable. Serrano v. Priest (1971) 5 Cal.3d 584, 591; CrossTalk Productions, Inc. v. Jacobson (1998) 65 ...

Excerpt: ...asons set forth below. As a preliminary matter, the exhibits filed in support of this motion fail to comply with California Rules of Court rule 3.1110(f)(4). All future exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit. Failure to properly bookmark exhibits may result in rejection of the filing or continuance ...

Excerpt: ...Notice (filed in support of DMARC Advisor's 4‐19‐22 Demurrer to Plaintiff's Complaint). CRC 2.550 states that “a court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prej...

Excerpt: ... Sect. 452(d)); GRANTED as to Exhibits C, D, E, and F (Evid. Code Sect. 452(f) and (h)); and DENIED as to Exhibits G and H. Plaintiff's 11‐29‐22 Request for Judicial Notice is GRANTED. Evid. Code Sect. 452(d). DMARC Advisor B.V.'s 12‐5‐22 Request for Judicial Notice is GRANTED. Evid. Code Sect. 452(f) and (h). The Demurrer to the Fourth Cause of Action (fraud by concealment) is OVERRULED. Code Civ. Proc. Sect. 430.10(e). DMARC Advisor cor...

Excerpt: ...uest for Production of Documents, categories 1 through 4 and 6 through 16 is GRANTED as to all categories. Defendant's responses on March 1 and April 5, 2021, were blatantly insufficient. Defendant's May 20, 2022, response states that he conducted a diligent search and reasonable inquiry, but is “unable to comply” because the requested documents either never existed, had been destroyed/lost/stolen/misplaced, or has never been or no longer is ...

Excerpt: ...med consent—arising out of a shoulder surgery and bicipital tenodesis procedure performed by Bolanos on Plaintiff in 2019. (February 8, 2021 Complaint, p. 4.) By this Motion, Bolanos moves for summary judgment with respect to the action—and, in the alternative, summary adjudication with respect to these causes—on the grounds that Plaintiff cannot establish the elements of either claim and that the claims are time‐barred. A. Legal Standard...

Excerpt: ...rent.” MPA, p.4‐5. Defendant contends that “As such, the ThreeDay Notice to Quit upon which Plaintiffs' complaint is deemed waived, unenforceable, and cannot support a later judgment.” MPA, p.5. The Court agrees. Plaintiff's Complaint alleges that, on September 29, 2022, Plaintiff issued a Three‐ Day Notice to Quit for Breach of Covenant resulting from Defendant's failure to comply with prior notices to cure breaches of the parties' lea...

Excerpt: ... on the grounds that these causes of action are barred by the three‐year statute of limitations set forth in CCP § 338(b), pertaining to injuries to real property. According to Defendants, “The facts underlying the cause of action for nuisance and trespass are the construction of the concrete retaining wall and fence thereon. As alleged in this Memorandum of Points and Authorities, the facts underlying the Cause of Action for Trespass and, u...

Excerpt: ...ion must be based on “new or different facts.” (Code of Civ. Proc. § 1008, subd. (a).) The moving party must “show diligence with a satisfactory explanation for not having presented the new or different information earlier.” (Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) Plaintiff's motion presents facts that were not before the Court when the Court heard the underlying motion. (See Decl. ...

Excerpt: ...est Seller Ltd. (“Best Seller”) shall provide further responses to Request for Production Nos. 63–71 within thirty (30) days of entry of the Court's formal order. Best Seller and Mayer shall also meet and confer, and they shall file, by December 5, 2022, a stipulated request for entry of an appropriate protective order for the Court's signature as discussed below. By this Motion, Plaintiff Alexander Mayer seeks to compel the further respons...

Excerpt: ...emotional distress is SUSTAINED with leave to amend. The demurrer is OVERRULED with respect to the remaining causes of action. 1st, 2nd & 7th COA – Breach of Lease, Breach of Covenant of Good Faith & Fair Dealing, Violation of CLRA Defendants demur to Plaintiffs' first cause of action for breach of lease and second cause of action for breach of the covenant of good faith and fair dealing on the grounds that Plaintiffs are not parties to the Lea...

Excerpt: ..., Civ. Code Sect. 1714(a)”), the Demurrer is OVERRULED. Code Civ. Proc. Sect. 430.10(e), (f). Defendants' arguments lack merit. First, contrary to Defendants' contention, the 4AC sufficiently alleges an agency relationship between the demurring Defendants (the alleged owners) and Defendant Ma (the owners' alleged agent). The Demurrer argues that the 4AC does not allege any statements or actions by the owners/demurring Defendants, and only alleg...

Excerpt: ...ended Complaint (the “FAC”) on the basis that it fails to state sufficient facts to constitute a cause of action and that its claims are barred by section 230 of the Communications Decency Act (the “CDA”). Plaintiff John A. Fetto contends that the FAC sufficiently alleges facts supporting the breach of three separate promises and that the CDA does not bar his claims for these breaches. A. Legal Standard on Demurrer The purpose of a demurr...

Excerpt: ...ree, PARTIES ARE TO APPEAR. The parties are to be prepared to address whether Plaintiff is required to file a probate petition before proceeding with this action. Plaintiff alleges that she is the sole beneficiary and executor of decedent James Wilmoth's estate, but the parties indicate that no probate action has been filed. Plaintiff claims that Mr. Wilmoth's estate was a small estate that is statutorily exempt from probate, but then also acknow...

Excerpt: ...LC's Motion to Compel Race Technologies, LLC's Further Responses to Requests for Production and Request for Sanctions is GRANTED. Race Technologies, LLC shall provide further responses within thirty (30) days of written notice of the entry of this order. El Camino Motors, LLC (“El Camino”), by this Motion and its concurrently filed companion motion, seeks to compel further responses from Race Technologies, LLC (“Race Tech”) to specially p...

Excerpt: ...ture. Plaintiff seeks to compel further responses to its Requests for Production of Documents, Set One, Nos. 27, 28, 31, 33, 35‐40, and 42 from Defendant Timothy Draegen. The requests seek documents relating to the process by which ownership of Dmarcian EU was allocated. Plaintiff contends the documents are relevant in light of his claim that he was granted an ownership interest in Dmarcian EU. In Defendant's supplemental responses to the disco...

Excerpt: ..., Stephen Lee and Sincere Care Management Corporation (“Defendants”) to the First Amended Complaint of Plaintiff Dora Guerrero, individually and as successor‐in‐interest to the Estate of James R. Wilmoth (“Plaintiff”), PARTIES ARE TO APPEAR. The parties are to be prepared to address whether Plaintiff is required to file a probate petition before proceeding with this action. Plaintiff alleges that she is the sole beneficiary and execut...

Excerpt: ..., or alternatively, a stay of Plaintiff's action on grounds of forum non conveniens. Defendants have not met their burden of demonstrating “extraordinary circumstances” justifying dismissal of this action. Plaintiff is a California resident and Defendants have their principal places of business in California. Defendants have provided no authority supporting dismissal of an action on grounds of forum non conveniens where all parties reside in ...

Excerpt: ...tion asserts three grounds to challenge testimony that consists of multiple statements. The Court cannot discern which statements are subject to which objection. Further, Objections 2 and 3 challenge evidence supporting Bomel's Material Facts 29 and 30, which Plaintiff responds as “undisputed.” Further, the objections appear to have been waived. The challenged testimony repeats much of the material that Plaintiff moving papers submitted into ...

Excerpt: ...he subject of Liberty's complaint in San Mateo County Superior Court Case number 21‐CIV‐04741 (“Lawsuit No. 1). That lawsuit alleges that Hillhouse embezzled approximately $800,000 from Liberty's defined benefit play through use of “secret electronic bank transfers,” forging Liberty's name on “business checks,” and embezzling “thousands of dollars” from Liberty's “business checking account.” The lawsuit also alleges that Hil...

Excerpt: ...ymphony Communication Services, LLC's Second Amended Cross‐complaint is DENIED. The origins of this case trace back to a settlement agreement (the “Settlement Agreement”) entered into by Plaintiff and Defendant on August 21, 2019. The Settlement Agreement ended a 2018 case filed in this court, entitled LogiGear Corporation v. Symphony Communication Services, LLC, et al. and numbered 18CIV06464. In that case (the “Prior Litigation”), Pla...

Excerpt: ...s Desikan and Sastri (buyers) purchased the property during a remodel project. Plaintiffs experienced water intrusion issues, and contacted moving party Mavrik, which had been the architect for the remodel. (6‐ 27‐22 Patadia Decl.). Mavrik worked with the buyers to remedy the water issue. The problems apparently were not resolved, and thus in June 2020, Plaintiffs (buyers) sued the Patadia Defendants (sellers), alleging defects in the home. I...

Excerpt: ...action. The alternative motion for summary adjudication of issues is GRANTED as to Issues 4, 6, 11, 12, 14, 16, and DENIED as to Issues 1, 2, 3, 5, 7, 8, 9, 10a, 10b, 13, 15, 17, and 18. Defendants' Objections 1. Supplemental Declaration of Randy Dizitser Objection 1 is OVERRULED. The Supplemental Declaration of Randy Dizitser is untimely filed, but the Court exercises its discretion to consider late‐filed papers. (CRC Rule 3.1300(d); Levingsto...

Excerpt: ... GRANTED as to Ex. A (Evid. Code Sect. 452(d), and GRANTED as to Ex. B‐C. Evid. Code Sect. 452(c). THE 4‐29‐21 SUBSTITUTE SERVICE AT DEFENDANT'S TIBURON HOME. Defendant seeks relief from the October 2021 default and default Judgment on grounds the process server's April 29, 2021 substitute service of the Summons and Complaint on a woman living in Defendant's Tiburon, Ca. home was purportedly ineffective. Defendant contends he did not receiv...

Excerpt: ... an in‐dependent contractor agreement signed in 2015 (the “2015 Agreement”). Plaintiff seeks leave to file an amended pleading instead alleging that Defendant breached it duties under insurance coverage it offered to its agents under a prior agreement dating to 2012 (the “2012 Agreement”), in addition to asserting an alternative legal theory of recovery. Defendant contends that the Complaint's allegation that the 2015 Agreement governed...

Excerpt: ... Demurrer to Plaintiffs' First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND pursuant to Cal. Code of Civ. Proc. §430.10(e). Defendants argue, inter alia, that the same defects that led the Court to grant judgment on the pleadings as to the Original Complaint are fatal to the FAC. Namely, there is no judgment entered against the Wong Estate, meaning the claim for indemnification has not ripened. Defendants further argue that the allegations...

Excerpt: ...ent of a strip of land located between their and Defendant's property and used by Plaintiffs as a driveway (the “Driveway Land”). Plaintiffs also seek to enjoin Defendant from opening a ‘tap room' and selling alcoholic beverages on its property. In determining whether to issue a preliminary injunction, the Court must evaluate two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits at trial, and (2) the int...

Excerpt: ...2022 Cross‐Complaint pursuant to Code Civ. Proc. Sect. 425.16 (the anti‐SLAPP statute), is GRANTED‐IN‐PART and DENIED‐IN‐PART. Legal standard. Resolution of an anti‐SLAPP motion involves two steps. In the first step, the moving party (here, Cross‐Defendant Richard George) bears the burden of establishing that the challenged claim(s) arise from protected activity. If the [moving party] makes this required showing, the burden shifts...

Excerpt: ... cause of action (declaratory relief) are identical verbatim to the second cause of action in case number 20‐ CIV‐04592 (“Pending Action”). The allegations of the second cause of action (writ of mandate) are substantively verbatim to the third cause of action in the Pending Action. The two added sentences in paragraphs 72 and 74 of the present Complaint present nothing to substantively distinguish the second cause of action from the Pendi...

Excerpt: ...art and DENIED in part. A. Combined Motion Is Not Sufficient Grounds for Denial In opposition to the Motion, Defendant raises three preliminary procedural issues that it contends warrant denial of the Motion. The first is that this Motion combines remedies authorized by separate provisions of the Civil Discovery Act. Plaintiff has moved (1) for an order compelling further responses to her Form and Special Interrogatories pursuant to Code of Civil...

Excerpt: ...under Civil Code § 1717(b)(2), there is generally no “prevailing party” when an action on a contract is voluntarily dismissed. “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” Civ. Code, § 1717(b)(2). The statute is based on public policy to encourage plaintiffs to discontinue nonmeritorious litigation rather than continue...

Excerpt: ...st for Judicial Notice is GRANTED. Evid. Code Sect. 452(d). Defendants Kieran Treacy, Kelly Treacy, and Treacy Group, LLC's Demurrer to the SAC's First and Second Causes of Action (alleging breach of contract and breach of the implied covenant of good faith and fair dealing), is OVERRULED. Code Civ. Proc. Sect. 430.10(e). The Court previously sustained these three Defendants' Demurrer to these two causes of action in the original Complaint (see 6...

Excerpt: ...olution of the preliminary injunction is automatically stayed pending Defendant's appeal of the preliminary injunction pursuant to Cal. Code of Civ. Proc. § 916(a), citing Varian Med. Sys., Inc. v. Delfino (2005) 35 Cal. 4th 180, 189‐ 90. Defendant argues that the Court retains jurisdiction of the issue because the order issuing the preliminary injunction is void for lack of requiring an undertaking pursuant to Cal. Code of Civ. Proc. § 529, ...

Excerpt: ...specific. 2. The Court exercises its discretion to not rule on Objections numbers 2, 3, and 8 because evidence relating to standard of care is not material to ruling on this motion. (Code of Civ. Proc. § 437c, subd. (q).) 3. Objections numbers 4, 5, 6, and 7, are sustained for lack of foundation. In addition, the opinions in paragraphs 4, 5, 6, and 7 lack a reasoned explanation for Dr. Light's opinions. (See Fernandez v. Alexander (2019) 31 Cal....

Excerpt: ...on. (Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191.) In contrast, an undertaking is required in order to stay operation of a prohibitory injunction. (Id.) “California has had the rule that an appeal automatically stays mandatory injunctions for more than 100 years.” (Agric. Lab. Bd. v. Superior Ct. (1983) 149 Cal. App. 3d 709, 716.) “A prohibitory injunction remains in full force pending such an appeal, and the court below may enf...

Excerpt: ...tion for summary judgment. (See Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) Plaintiff Joan K. Levin (“Plaintiff”) owned property located at 100 Palmetto Avenue in Pacifica (“property”) for nearly forty years until she sold it to Western Edge Projects, LLC (“Western”) on January 11, 2016. (Amended Complaint (“AC”) ¶ 8.) Plaintiff agreed to a seller finance or carry back loan of $1.9 mi...

Excerpt: ...he time of the foreclosure.” (MPA, p.1.) Indeed, according to the declaration of Eric Houser, Defendant's counsel, “Rushmore stopped servicing the loan months before the foreclosure sale.” Houser Decl., ¶ 2. However, Rushmore is identified as the loan servicer in the Notice of Default and Election to Sell Under Deed of Trust recorded on August 19, 2021, attached to Defendant's request for judicial notice. The Notice contains a declaration,...

Excerpt: ...ice of the Summons and Supplemental Complaint on the grounds that Plaintiff did not seek leave to file the Supplemental Complaint pursuant to CCP § 472. Alternatively, Defendant requests that the Court set aside the default entered against Defendant pursuant to the Court's equitable powers. Defendant does not provide recognized grounds for quashing service of the summons. Indeed, Defendant provides no authority suggesting that service of a summo...

Excerpt: ...Proc. Sect. 430.10(e). The Complaint alleges Fay violated several HBOR (Homeowner's Bill of Rights) statutes, which are all deficient in some respect. The Court grants leave to amend so that Plaintiffs may attempt to remedy the defects. Civ. Code Sects. 2923.7 (single point of contact) and 2924.9 (requiring written notice to borrower explaining foreclosure prevention alternatives) do not apply to all mortgages and deeds of trust. Pursuant to Sect...

Excerpt: ...ordered EXPUNGED. A court must expunge a lis pendens if the pleading on which the lis pendens is based does not contain a real property claim. (Code of Civ. Proc. (“C.C.P.”) § 405.31.) A party possesses a real property claim where the cause of action in a pleading would, if meritorious, affect "title to, or the right to possession of, specific real property." (Code Civ. Proc. § 405.4.) Defendant argues that the First Amended Complaint (“F...

Excerpt: ...ft, Inc.), and which seeks monetary sanctions against Dmarcian, is GRANTED‐IN‐ PART and DENIED‐IN‐PART, as set forth below. Code Civ. Proc. Sect. 1987.1. Plaintiff argues the two subpoenas are overbroad because they seek documents that are irrelevant, privileged and/or subject to privacy rights. Plaintiff does not argue undue burden. Dmarcian argues the requested documents are directly relevant to Plaintiff's asserted claims and Dmarcian'...

Excerpt: ...ntiff's Complaint alleges causes of action for breach of contract and common counts based on: (1) an open book, (2) an account stated, (3) money had and received, (4) goods sold and delivered, (5) money lent, and (6) money paid. However, Plaintiff's MPA in support of the motion for summary judgment attempts to demonstrate that Plaintiff has established claims for breach of contract, an open book, and an account stated. (MPA, p.3‐6) Accordingly,...

Excerpt: ...at a claim for contractual indemnity requires that a judgment in an earlier action be entered in order for indemnity to apply. Since the Complaint does not allege that a judgment in the Asian Square Action has been entered, the claim for express indemnity is premature. Plaintiffs do not dispute this. Instead, Plaintiffs argue that the “hold harmless” obligation in MSA paragraph 1.7(a) is something different from indemnity ‐‐ that “hold ...

Excerpt: ...de Civ. Proc. Sect. 430.10(e). Groeneweg's Demurrer does not dispute whether the Complaint sufficiently alleges a fiduciary duty owed to Plaintiff. (See Mot. at 10) (Groeneweg stating: “although not at issue for purposes of demurrer, Plaintiff will be unable to prove that Groeneweg owed any fiduciary duty to Plaintiff. Although Plaintiff may have sufficiently pled the existence of such a [fiduciary] relationship, the true facts show that Groene...

Excerpt: ...aintiffs' motion does not include a copy of the proposed Fifth Amended Complaint. The supporting declaration states that redlined and clean copies of the proposed pleading are attached as Exhibits A and B, but neither of those exhibits is attached to the declaration. Further, Rule 3.1324(a) requires that the motion must state what allegations are proposed to be deleted or added. The motion fails to comply with this requirement. The moving Points ...

Excerpt: ...RANTED. Code Civ. Proc. Sect. 340.1(m)‐(o). On May 9, 2022, the Court heard oral argument pertaining to this motion and continued the hearing to permit the parties to submit supplemental briefing on the issues presented. Having reviewed the entirety of the record, including the supplemental briefs dated 5‐20‐22, 5‐27‐22, and 6‐1‐22, and the Certificates of Corroborative Fact lodged with the Court under seal on 3‐1‐22, the Court ...

Excerpt: ...paid, an open book, and an account stated. To prevail on a cause of action for breach of contract, Plaintiff must prove (1) the contract, (2) Plaintiff's performance of the contract or excuse for nonperformance, (3) Defendant's breach, and (4) resulting damage to Plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; CACI 303) Plaintiff has provided evidence establishing each of these elements through the declaration of Evelyn J. Sican...

Excerpt: ... of Pendency of Action is ordered EXPUNGED. A court must expunge a lis pendens if the pleading on which the lis pendens is based does not contain a real property claim. (Code of Civ. Proc. (“C.C.P.”) § 405.31.) A party possesses a real property claim where the cause of action in a pleading would, if meritorious, affect "title to, or the right to possession of, specific real property." (Code Civ. Proc. § 405.4.) Defendant argues that the Fir...

Excerpt: ...filed on September 6, 2018. Since that date, Plaintiff has not filed a proof of service establishing that the summons and complaint were served on Defendants. When the summons and complaint is not served within the three‐year period, CCP § 583.250 provides that the court shall dismiss the action. This requirement is mandatory and is not subject to extension, excuse or exception except as expressly provided by statute. Plaintiff bears the burde...

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

Excerpt: ...ary judgment shall be granted when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Code Civ. Proc. Sect. 437c(c). A defendant has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established, or there is a complete defense to that cause of...

Excerpt: ...on). The first cause of action alleges that Defendant made statements to Peters, which induced Peters to not pay Plaintiff, which forced Plaintiff to sue Peters. Since the Complaint does not allege any representation made to Plaintiff, the Complaint does not allege a claim for intentional misrepresentation. However, a Complaint may survive a motion for judgment on the pleadings if it alleges any cause of action, despite the title of the claim. He...

Excerpt: ...an be granted. The gravamen of Plaintiff's Complaint arises out of an alleged August 21, 2014 overcharge on Plaintiff's real estate loan from Defendant Bank of America. Complaint, ¶¶ 5‐14. Each cause of action relates to that event and is supported only by those factual allegations. Although the first cause of action alleges that the breach of contract began on a date to be determined after February 15, 2019, this conflicts with the prior all...

Excerpt: ... Serramonte (“Defendant”) for Failure to Arbitrate, is DENIED. On November 21, 2019, the parties entered into a “Stipulation To Submit This Matter To Binding Arbitration” (“Stipulation”). (Liberty Decl., Exh. 1.) The Stipulation was approved by the Court on November 22, 2019 (“Order”). (Ibid.) Plaintiff brings this Motion contending that Defendant failed to participate in binding arbitration pursuant to the Stipulation and Order. ...

Excerpt: ...tract Plaintiff alleges that Defendant “breached the contract in violation of Section 4 Subsection 2 of the Terms of Use, Section 12 Subsection 2 of the Advertising Policies, and Section 7 Subsection e of the Facebook Platform Terms by cancelling Plaintiff's account when Plaintiff had done nothing to merit such cancellation.” SAC, ¶12. Section 4 Subsection 2 of the Terms of Use provides, in relevant part: If we determine that you have clearl...

Excerpt: ...e motion to compel Plaintiff to sign a release authorizing production of cell phone records on October 15, 2020. Yakubova Decl., ¶3. Plaintiff argues that while the parties did attend an IDC, that was for disclosure of records for Plaintiff's phone number (650) 518‐ 4905, and did not concern the release of records associated with the phone numbers which are subject to the present motion, [650‐630‐7711; 650‐ 267‐9474; 650‐278‐0531; ...

Excerpt: ...Court's task is to determine whether the Certificates (under seal) contain “one or more facts corroborative of one or more of the charging allegations against a defendant or defendants . . . .” (Code of Civ. Proc. § 340.1, subd. (m)(1).) Plaintiff's Certificate of Corroboration as to Defendant Doe 2 sets forth facts describing Plaintiff's attendance at Doe 1 recreational activities, where Plaintiff was supervised by Doe 2. The Certificate de...

Excerpt: ...proposed Cross‐Complaint is compulsory because the causes of action arise out of the same transactions or occurrences as the causes of action in the Complaint. (See C.C.P. § 426.10(c); see also ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 82‐84.) The allegations in the proposed Cross‐ Complaint concern Plaintiff Mehrdad Elie's (“Plaintiff”) investment for which Defendants claim Plaintiff is improperly d...

Excerpt: ... that “the Premises is not subject to the just‐cause nor relocation assistance requirements contained in Civil Code section 1946.2 because of Landlord's compliance under Civil Code section 1946.2(e)(8).” Complaint, Ex.2, p.1. According to Defendant, however, the Notice violates the Act because “Plaintiff has never provided Defendant with written notice that the Premises is exempt from the TPA,” as required under Civil Code § 1946.2(e)(...

Excerpt: ... the attorney's client and the third party, the disclosure must be reasonably necessary to achieve the purpose for which the attorney was retained, and the disclosure must have been with a reasonable expectation that the disclosed material remain confidential. 1. The Parties Must Have a Common Legal Interest. “Common interest” has never been defined, but cases imply that it means more than “common goal” or “common hope.” Instead, it m...

Excerpt: ...dens recorded 1‐31‐22. As alleged in the Complaint and not disputed, BG purchased the property in foreclosure. Plaintiffs' Complaint does not name BG as a defendant. There is no allegation BG is related to the named defendants, or that BG engaged in any wrongdoing relating to the sale. BG is merely the buyer. BG intervened in the case for purpose of filing the present motion to expunge the lis pendens. The parties dispute BG's claimed status ...

Excerpt: ...eration fails to comply with section 1008 lacks merit. This is not a motion for reconsideration under Code of Civil Procedure section 1008, subdivision (a). It is a renewed motion under subdivision (b), which requires showing “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code of Civ. Proc. § 1008, subd. (b).) In a...

Excerpt: ... Judicial Notice is GRANTED. (2) Demurrer to the First Cause of Action for Negligence, Second Cause of Action for Premises Liability and Fifth Cause of Action for Negligent Infliction of Emotional Distress by Jared is SUSTAINED WITHOUT LEAVE TO AMEND. Defendant demurs that these claims fail because Jared has not and cannot allege compliance with the Government Claims Act. (See Defendant's Request for Judicial Notice, Exh. A.) Jared concedes in op...

Excerpt: ...er properly served. Specifically, he contends he did not live at the stated Redwood City address at the time of alleged service. Defendant also contends that at the time of alleged service, he was not living with “Mary Tuiaki,” the person identified in the Proof of Service as Defendant's “co‐tenant,” to whom copies of the Summons and Complaint were allegedly handed. Defendant states he did not receive actual notice of the Judgment until...

Excerpt: ...mon counts based on: (1) an open book, (2) an account stated, and (3) goods sold and delivered. However, Plaintiff's MPA in support of the motion attempts to demonstrate that Plaintiff has established claims for (1) an open book, and (2) an account stated. (MPA, p.5‐7) Accordingly, because Plaintiff has addressed only two of its claims, Plaintiff has not demonstrated it is entitled to summary judgment. Nonetheless, the Court finds that Plaintif...

Excerpt: ... the merits at trial (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206) and (2) the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 624–625.) Mandatory preliminary injunctions are “rarely granted.” The granting of a mandatory injunction ...

Excerpt: ...e facts supporting the FAC with sufficient specificity to support a COA for fraud under the requisite heightened pleading standards. Plaintiff argues that the specific individuals at Defendant Tesla or Lux that had knowledge of or perpetrated the false statement about forthcoming title are presently unknown. In light of that information being unavailable to Plaintiff, the FAC should not be found lacking in sufficient particularity with respect to...

Excerpt: ...vide “reasonable notice in writing of his or her intent to enter and enter only during normal business hours.” Whether Plaintiff provided adequate notice of entry, however, is not a proper ground for demurrer in this unlawful detainer action. Plaintiff does not allege that the Notice to Enter provided grounds for termination of the lease. Rather, Plaintiff's Complaint is based on Defendant's alleged violation of a 3‐Day Notice to Cure or Qu...

Excerpt: ...n Plaintiff, Plaintiff has disobeyed the order, Plaintiff has here been given the opportunity to be heard regarding that disobedience, and Plaintiff has not offered any explanation for that disobedience. The Court entered the following order on June 9, 2021: Defendant TESSA EVANGELINE WIGTON's motion to compel plaintiff Andrea L. Ramos to supply verified objection‐free responses to Second Special Interrogatories, First Supplemental Interrogator...

Excerpt: ...t by Plaintiffs Vincent Pluvinage and VPV, LLC (“Plaintiffs”) is ruled on as follows: A party may move to strike out any irrelevant, false or improper matter inserted in any pleading. (C.C.P. § 436(a).) The Motion to Strike Paragraph 22, lines 15 to 17, is DENIED. Defendants seek to strike the allegations regarding the CHALLENGES article that they claim are false. In support Defendants request judicial notice of this article. (See Defendants...

Excerpt: ...date, which had already been continued five times, was set for Jan. 11, 2022. Over Defendant's opposition, the Court thereafter granted Plaintiff's ex parte application to continue the Jan. 2022 trial date to Aug. 2022, in light of the fact Plaintiff had already filed the present motion seeking to re‐open discovery, which was set to be heard on 2‐7‐22, after the scheduled Jan. 2022 trial date. The Court's 10 ‐27‐21 Order continuing the ...