Excerpt: ...on submitted in support of Defendants' Reply is OVERRULED. Existence of Agreement to Arbitrate On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, u...

Excerpt: ...laint is SUSTAINED in part and OVERRULED in part. Defendants Matte Sun Group, LLC's and Evan Haskell's Request for Judicial Notice is DENIED as irrelevant. (AL Holding Co. v. O'Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313 fn. 2 ["a court must decline to take judicial notice of material that is not relevant"].) As a preliminary matter, Plaintiff TGA F299 Franklin LLC's opposition was not timely filed or served. (See Code of Civ. Proc„ S ...

Excerpt: ...0 for an order compelling Plaintiff Swenberg to provide responsive documents to the Document Request Nos. 21, 22, 80, 88, 89, 100-103, 105, and 113-118 which were attached to Dmarcian's Second Amended Notice of Continued Deposition to Plaintiff. In particular, Dmarcian seeks the production of the following documents: First category: mitigation documents Relating to Agari: consulting agreement, invoices, records of payments, and any 1099 form from...

Excerpt: ... DISCOVERY PROCESS BY PLAINTIFFS OLE TRAVEL INC. AND OLE VENTURES INC. TENTATIVE RULING: The Motion of Plaintiffs Ole! Travel Inc. and Ole Ventures Inc. ("Plaintiffs") for Monetary Sanctions, Issue Sanctions, Evidentiary Sanctions, Terminating Sanctions and/or Contempt Sanctons against Defendant Timothy Alexander is DENIED WITHOUT PREJUDICE. Plaintiffs filed this Motion on March 5, 2023, which was originally set for hearing on September 11, 2023....

Excerpt: ..., and OVERRULED in part as to the general demurrer to the SAC as being barred by collateral estoppel, as follows. Defendant's Request for Judicial Notice is GRANTED pursuant to Cal. Evidence Code Section 452(d). Collateral Estoppel as to Entire SAC OVERRULED. Collateral estoppel applies when an issue determined in a prior adjudication is identical to that presented in a subsequent action, the prior adjudication resulted in a determination on the ...

Excerpt: ... served form interrogatories, a first set of special interrogatories, and a first set of document requests on Plaintiff. (Defendant's Request for Judicial Notice ("RJN") Ex. C-1.) After some back and forth with Plaintiff's counsel, Defendant requested an Informal Discovery Conference ("IDC") before Commissioner Mau, which was held on June 5, 2023. (ld.) Plaintiff agreed to serve substantive supplemental discovery responses by June 13, 2023. (ld.)...

Excerpt: ... Reply Request for Judicial Notice is DENIED because none of the requested matter is material to the Court's evaluation of Defendants' motion. l. ABO COMIX STANDING The motion is DENIED as to A. 8.0. for lack of standing. The cases cited by County do not support this motion. In the case of Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, the complaint alleged that the plaintiff organization was "formed and operating under the laws of Calif...

Excerpt: ...ice of Appeal "fails to state a cause of action" against the Fields, and/or improperly names them as parties (real parties in interest) in this appeal. (Code Civ. Proc. Sect. 430.10(d), (e).) The function of a demurrer is to test whether, as a matter of law, the facts alleged in the complaint state a cause of achon under any legal theory. Intengan v. BAC Home Loans Servicing, LP (2013) 214 Cal.App.4th 1047, 1052. Code Civ. Proc. Sect. 389(a) stat...

Excerpt: ...to amend, as to the Special Demurrer to the First Cause of Acton ("COA") for Civil Rights Violations pursuant to Cal. Code of Civil Procedure Section 430.10(e). OVERRULED with respect to the general Demurrer to the Complaint and the remaining special demurrers. General Demurrer OVERRULED. Defendants argue that each cause of action in the Complaint must be dismissed pursuant to Heck v. Humphrey, (1994) 512 U.S. 477 ("Heck") because the claims impl...

Excerpt: ... strike paragraphs 19 and 25 from the First Amended Complaint on the grounds that these paragraphs contain false matter under CCP S 436. However, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (CCP S 437.) The falsity of Plaintiff's allegations does not appear on the face of the FAC, and Defendants have not requested that the Court take judicial notice...

Excerpt: ...e an amended answer no later than November 20, 2023. Cross- complainants FXIO International, Inc.'s and Plan B Equipment Rentals, LLC's Request for Judicial Notice is DENIED as irrelevant. (Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 902 ["trial court retains its usual discretion not to take judicial notice of matters that are irrelevant"].) As a preliminary matter, the notice of demurrer provides the incorrect address for t...

Excerpt: ...E failed to provide verified responses to Form Interrogatories that were served in July 2021. The Court granted Plaintiff Oakville Produce Partners' motion to compel verified responses and ordered Defendant Le to provide verified responses "within 14 days of service of this order" and to pay a monetary sanction of $1,185.00 "within 30 days service of this order." (Order, Dec. 8, 2022 (filed Dec. 9, 2022.) Plaintiff served Notice of Entry of Order...

Excerpt: ... COA for Breach of Contract Plaintiffs were given leave to amend the original Complaint as to the sustained demurrer to the Second Cause of Action for Fraud. See June 20, 2023 Order. The amendments to the First Cause of Action for Breach of Contract were not authorized by that order. Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authoriz...

Excerpt: ... GRANTED as to Exhibits 5-6. (Evid. Code Sect. 452(c).) As to each of these documents, the Court takes judicial notce of their contents and the dates that they were filed and/or issued, but the Court does not take judicial notice of the truth of statements/allegatons in the documents. Plaintiff Li's 10-24-23 Reply brief was untimely filed, but the Court has considered it. Plaintiff's Reply brief was due 10-23-23. Plaintiff filed it on 10-24-23, o...

Excerpt: ... Owner, LLC ("Plaintiff" or "The Marina"). Plaintiff and, collectively, the five Defendants brought cross-motions for summary judgment. Plaintiff partially settled with four of the five defendants, leaving Defendant Matthew Klein ("Defendant" or "Klein") the sole remaining Defendant in the action. The Court granted summary judgment for Plaintiff against Klein and entered the Judgment following its Order Granting Summary Judgment on June 29, 2023....

Excerpt: ...t to Cal. Evidence Code Section 452(d). Fourteenth COA for Breach of Fiduciary Duty OVERRULED. The SAC alleges that Defendant Hillhouse had authority and control over Plaintiff's finances, books, records and accounting documents, and that she handled Plaintiff's money and was entrusted to handle the finances at Plaintiff's law practice. SAC, "5, 171. It also alleges that Defendant Hillhouse had control and access to Plaintiff's American Express C...

Excerpt: ...Anthony L Webb shall file his Third Amended Complaint no later than December 4, 2023. As a preliminary matter, the demurrer is made on behalf of Defendants Private Defender Program Office ("PDPO"), Lisa Maguire, and Paul Demeester. However, Maguire and Demeester were dismissed on October 27, 2023. The portion of the demurrer made by them is thus moot, and only the portion of the demurrer made by POPO is relevant here. Though the five causes of ac...

Excerpt: ...laintiff's request for attorney's fees on the grounds that Plaintiff has not stated any grounds for recovery of fees, except for Plaintiff's Third Cause of Acton for violation of Civil Code 1790, et.seq. Because Plaintiff has not stated a claim for violation of the Song-Beverly Act, Plaintiff has not asserted any viable claim for recovery of attorney's fees. Accordingly, Defendant's moton to strike Plaintiff's claim for attorney's fees is GRANTED...

Excerpt: ...ng that interest on the judgment would accrue at 10% per annum from the date of entry until paid. Matrix now moves the Court to amend the judgment to add Vitaly Golomb ("Golomb"), the sole owner and officer of Plaintiff Time Traveller, Inc. ("Time Traveller" or "Plaintiff") as a judgment debtor pursuant to California Code of Civil Procedure ("CCP") S 187. For the reasons set forth below, the motion is GRANTED. CCP S 187 empowers the trial court t...

Excerpt: ...e absence of any extrinsic evidence, the Court may "determine the parties' intentions as disclosed by the lease itself, looking at the plain language" of the contract, "viewed within the lease as a whole." (Frittelli, Inc. v. 350 N. Canon Drive, LP (2011) 202 Cal.App.4th 35, 44.) Although Paragraph 9 is titled "Indemnification of Lessor" and includes language of indemnification, the first sentence of Paragraph 9 is tantamount to an exculpatory cl...

Excerpt: ...tes that Defendant's counsel's meet and confer declaration states that the parties met and conferred via email. (Schultz Decl., '1 2.) However, CCP S 430.41 requires the parties to meet and confer "in person or by telephone." Any subsequent failure to file a meet and confer declaration will result in the matter being ordered off calendar. Defendant demurs to Plaintiff's Third Cause of Acton for Breach of Implied Warranties of Fitness and Merchant...

Excerpt: ...r Judicial Notice (RJN) is GRAN ED. (Evid. Code Sect. 452(c).) Background. Plaintiff's 11-17-22 FAC alleges that Plaintiff Mboma started working as an for Defendant DPR Constructon in 2020. Plaintiff alleges that Defendants discriminated against her due to her race/national origin and her pregnancy/sex, that Defendants harassed and retaliated against her, and ultmately terminated her. Plaintiff's FAC asserted 20 total causes of action, six (6) of...

Excerpt: ...z, Rebecca Yuhasz, Chase Yuhasz and Max Yuhasz (collectively "Plaintiffs") is OVERRULED. The FAC alleges a single cause of action for Declaratory Relief. Plaintiffs allege that an actual controversy exists between Plaintiffs and Defendants regarding the amount of attorneys' fees and costs, if any, to which Defendants are entitled to Plaintiffs' recovery from the Fire Victim Trust. (FAC 33.) Defendants claim they are entitled to the entire contrac...

Excerpt: ...econd, and Eighth Causes of Action, arguing that they do not sufficiently state a cause of action. The Court finds that these three claims are adequately pled at the pleading stage, for the reasons stated below. Legal standard. A demurrer is used to challenge defects that appear on the face of the pleading, or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer assumes all fact...

Excerpt: ...he ground of fraud or mistake. Cal. Code of Civil Procedure Section 338(d). Plaintiff's cause of action for fraud is based on events that took place from July to September of 2017. Complaint, 99, 16. This action was filed more than three years later, on September 20, 2021. This cause of action is therefore time-barred on the face of the Complaint, and the Demurrer is SUSTAINED on this basis. Defendant additionally argues that the Complaint fails ...

Excerpt: ... DENIED without prejudice. A motion for an order compelling further responses to interrogatories must file a meet and confer declaration that states "facts showing a reasonable and faith attempt at an informal resolution of each issue presented by the motion." of Civ. Proc., S 2015.010; see id., at S 2030.300, subd. he purpose of these statutory requirements is to make civil discovery self-executing, without the need for judicial intervention. (T...

Excerpt: ...nt"). Plaintiff Jose David Sanchez, a former employee of Defendant, initially brought a complaint to the Labor Commissioner. The Labor Commissioner is empowered to hold administrative "Berman" hearings to provide an ex#ditious and less costly means to adjudicate wage claims. (Lolley v. Campbell (2CM) 28 Cal.4th 367, 372-373.) The parties settled the claim and agreed that Defendant would pay Plaintiff (via the Labor Commissioner) settlement sums a...

Excerpt: ...Mayer communicated with his attorney concerning Plaintiff Mayer's expert testimony. Any privilege that existed between Plaintiff Mayer and his attorney as to communications regarding expert testimony was waived when Plaintiff Mayer testified as an expert at his deposition. Plaintiff has already agreed to produce such documents but stated that none exist. (Mayer Deposition, attached as Exhibit G to Moving Declaration of Varnica.) The motion is DEN...

Excerpt: ...the Court sustained Defendant's Demurrer to Plaintiffs Third Amended Complaint, in part, with respect to the second, third, fourth, fifth, and sixth causes of acton therein, without leave to amend at that time because leave to allege those causes of action was not within the scope of the leave to amend permitted by the Court's December 9, 2022 Order. The denial of leave to amend on July 10, 2023 was issued without prejudice to granting leave to a...

Excerpt: ...ich are directed to the FAC'S Third Cause of Acton, which asserts a claim for "foreclosure of mechanic's lien." As explained below, the Court finds that these arguments are not grounds for a demurrer. Defendant Rose's unopposed Request for Judicial Notice, filed 4-25-23, is GRANTED as to Ex. 1 (Evid. Code Sect. 452(d)), and GRANTED as to Ex. 2. (Evid. Code Sect. 452(h).) As to the USPS website page, the Court takes judicial notice of the contents...

Excerpt: ...THOUT LEAVE TO AMEND and OVERRULED IN PART. Defendants Marianne Onate and Emmanuel Onate shall file their answer(s) no later than ten (10) days after entry of this order. Defendants Marianne Onate's and Emmanuel Onate's Request for Judicial Notice is GRANTED. Plaintiffs Proud Thai Massage LLC's and Alexander Mayer's Request for Judicial Notice is GRANTED. The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND, with respect to the First through Eighth C...

Excerpt: ...eclaration in Defendant's demurrer filed March 24, 2023. However, because a failure to meet and confer is not grounds to sustain or overrule a demurrer, the Court proceeds to the merits of the motion. In this subrogation action, Plaintiff alleges that Defendant negligently provided professional plumbing services to Plaintiff's insured. The Complaint contains two causes of action: negligence and breach of implied warranty. Defendant demurs on vari...

Excerpt: ...otion for Order to Release Plaintiff and Crossdefendant Mavericks Builders' Mechanics Lien and Expunge Lis Pendens is GRANTED for the reasons set forth below. Defendants, Cross-complainants, and Cross-defendants Ryan Atkins and Meghan Concra are ordered to prepare a formal order or orders that include the required specifications of the lien and lis pendens and release Plaintiff and Cross-defendant Mavericks Builders' claim of a mechanics lien and...

Excerpt: ...filed on August 19, 2019, and this amended complaint was otherwise substantially unchanged from the initial complaint. A Second Amended Complaint was filed on January 13, 2020, alleging eight causes of action: The First COA for Breach of Contract against the seller, Betty L. Swedberg; Second COA for Fraud against Swedberg; Third COA against Swedberg for Negligent Misrepresentation, and Fourth Cause of Acton against Swedberg of violations of Civil...

Excerpt: ...intiff did not unreasonably delay its request to amend the Complaint. Additionally, the Court takes note of the rule that requests to amend are to be liberally granted. Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939. When amendment would not prejudice and has not misled the other side, even if the request is delayed, the liberal policy of allowing amendments prevails and it is an abuse of discretion to deny leave in such a case even if s...

Excerpt: ...claim is one upon which an attachment may be issued, (2) plaintiff has established the probable validity of the claim, (3) the attachment is not sought for any purpose other than to secure recovery on the claim, and (4) the amount to be secured is greater than zero. CCP S 484.090. Except as otherwise provided by statute, a claim is one upon which an attachment may be issued: (1) in an action on a claim or claims for money, (2) based upon a contra...

Excerpt: ...he Complaint. PhotoGauge contends that (1) the first cause of action fails to state facts sufficient to constitute a cause of action and (2) the Court has no jurisdiction over the subject of the second cause of action. (Code of Civ. Proc., S 430.10, subds. (a), A. First Cause of Action: Breach of Contract The first cause of acton is premised upon the employment contract entered into Heslin and PhotoGauge in March 2021. (Sep. 14, 2022 Complaint, '...

Excerpt: ...ss and Professions Code section 7031(b). "Except as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract." (Bus. & Prof. Code S 7031(b).) Plaintiffs seek summary adjudication on the ground that Defendant was an unlicensed contractor duri...

Excerpt: ...-motions for summary judgment. Plaintiff partially settled with four of the five defendants, leaving Defendant Matthew Klein ("Defendant" or "Klein") the sole remaining Defendant in the action. The Court granted summary judgment for Plaintiff against Klein and entered the Judgment following its Order Granting Summary Judgment on June 29, 2023. Plaintiff served the Notice of Entry of Judgment Following Order Granting Summary Judgment on Defendant ...

Excerpt: ... to a commercial lease. The dispute centers on whether the parties' lease agreement included/incorporated by reference an "Addendum A," which purportedly granted/provided the tenants/defendant an option to renew the lease upon its expiration. The parties participated in a July 7, 2023 court trial, which inwlved witness testimony. upon its conclusion, the Court issued a Minute Order indicating its intenton to find in favor of Defendant (tenant) an...

Excerpt: ...Sanctions is ruled on as follows: (1) The Motion to Requests for Production ("RFP") Nos. 1, 2, 7, 22, 24, 29, 34, 36, 38-40, 68, 70, 71, 76, 77, 79, 81, 83, 92, and 97 is GRANTED. The dispute regarding these RFP pertains to a 9/1/15 Plan Set that Plaintiff contends Suffolk deleted from Procore Technologies, Inc. ("Procore") and failed to produce in response to these RFP. Suffolk asserted objections to these RFP, but then notwithstanding those obj...

Excerpt: ...very Order is GRANTED IN PART and DENIED IN PART for the reasons set forth below. Defendants Jason Ertola and Brittany Ertola are ordered to provide responses without objections to Plaintiff Mark Benson's March 27, 2023 Form Interrogatories no later than three (3) days after service of written notice of this order. Defendants Jason Ertola and Brittany Ertola are also ordered to pay, jointly and severally, Plaintiff Mark Benson's reasonable expens...

Excerpt: ...of action." Code Civ. Proc. Sect. 430.10(c); see Michael Liberty's 5-2-23 Second Amended Complaint (SAC) in the earlier-filed case, Case No. 21ClV04741, captioned Michael Liberty v. Bank of the West. Accordingly, Mr. Liberty's FACC in this case is HEREBY ABATED/STAYED, pending resolution of Liberty's claims against Hillhouse in Case No. 21CIV04741. Sect. 430.10(c) prov-des for demurrer, and for abatement of the laterfiled action, where "there is ...

Excerpt: ...nt had knowledge of the object to be attained and intentionally participated in the wrongdoing. Demurrer, 6:5-7. The Complaint alleges that each Defendant is an alter ego of the other. Complaint, 937. It also alleges that each Defendant acted both individually and in alignment with the other Defendants with full knowledge of their respective wrongful conduct and building upon each other's wrongdoing in order to accomplish the acts alleged in the ...

Excerpt: ... the burden of proof is on the plaintiff to demonstrate by a preponderance of the evidence that "minimum contacts" exist between defendant and the forum state to justify the imposition of personal jurisdiction. (Mihlon v. Sup. Ct. (1985) 159 Cal.App.3d 703, 710; Ziller Electronics Lab GmbH v. sup. ct. (1988) 206 cal.App.3d 1222, 1232-1233.) Under a general jurisdiction analysis, a nonresident defendant may be sued on a cause of acton unrelated to...

Excerpt: ...laintiff's Second Amended Complaint ("SAC") is DENIED. The parties' respective requests for judicial notice are GRAN ED pursuant to Cal. Evidence Code section 452(d). Defendants argue that Plaintiff does not sufficiently allege a fiduciary duty owed to herself individually, because she alleges her ownership interest of FMCTD and Bayshore were through her interest in Nucleus Management. Reply, 2:23-3:16. The Ninth COA in the SAC alleges, in part: ...

Excerpt: ...re or quit for breach of lease covenant on March 8, 2023." (MPA, p.4.) According to Defendants, because Plaintiff's Complaint does not attach a threeday notice to cure or quit served on March 8, 2023, the notice requirements of Civ. Code 1946.2(c) have not been satisfied, and Plaintiff's Complaint is fatally ambiguous. Plaintiff responds that both the Three-Day Notice to Quit and the Complaint allege that Defendants were first given notice of the...

Excerpt: ...cer. (Complaint at 42; Javer Dec. at '1 4.) In Defendants' conditional non- opposition to Plaintiffs' motion, Defendants do not dispute that Plaintiffs are entitled to a trial preference pursuant to Code Civ. Proc. S 36(a). Accordingly, the Court finds that, pursuant to CCP S 36(a), Plaintiff has demonstrated a substantial interest in this action and that her health is such that a preference is necessary to prevent prejudicing her interest in the...

Excerpt: ... filed on December 20, 2018. A First Amended Complaint was filed on August 17, 2020. Defendant was substituted as Doe Defendant no. 1, and was served with the summons and complaint on September 14, 2022. (Mitrione Decl. 1-2.) A "summons and complaint shall be served upon a defendant within three years after the achon is commenced against the defendant." (Code of Civ. Proc. ("C.C.P.") S 583.210(a).) An action is "commenced" at the time the complai...

Excerpt: ...est for Judicial Notice is GRANTED pursuant to Cal. Evidence Code secton 452(d). In an action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action. Cal. Code of Civil Proced...