Excerpt: ...nctions,” filed 3‐12‐21, is GRANTED‐IN‐ PART and DENIED‐INPART, as set forth below. The motion to compel further responses to the post‐ Judgment Requests for Production (RFPs) is GRANTED, but will become moot if Plaintiff pays the $2,832.07 in costs within 10 days of this Order. This Order should be read together with the related Order of this same date, granting Defendant's motion to compel further responses to post‐Judgment Inte...

Excerpt: ...tated below. First, all six asserted claims are uncertain because they do not identify, with sufficient clarity, the specific plaintiff(s) asserting each claim and the specific defendant(s) against whom each claim is asserted. Code Civ. Proc. Sect. 430.10(f); CRC 2.112 (each cause of action shall identify the plaintiff(s) asserting it and the defendant(s) against whom it is asserted). This should be made explicit. CRC 2.112. Further, given that t...

Excerpt: ...ompel Compliance. This discovery dispute arises from a New York personal injury action titled Louis Christophides and Cara Christophides v. Subaru Distributors Corp., New York State Supreme Court, Orange County, Case No. 004941/2018. The subpoenas seek discovery of the contents of the Facebook and Instagram accounts of the Plaintiffs in the New York action. On April 30, 2020, the Supreme Court of the State of New York, Orange County, issued an or...

Excerpt: ...gal Contract is SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim and uncertainty. Plaintiffs assert that Defendant failed to comply with Business and Professions Code section 7159 and thus the contract is void. (Complaint ¶ 21.) It is unclear what claim Plaintiffs are attempting to allege though, as they fail to offer any authority to support that a claim for “Illegal Contract” exists. Further, ...

Excerpt: ...the evidence, and that Plaintiff's claims are governed by the agreement. The arbitration provision at issue, which was contained in the parties' Employee Proprietary Information and Inventions Assignment Agreement, provides as follows: Any dispute, controversy or claim arising out of or relating to either: (a) this Agreement, its enforcement, arbitrability or interpretation, or because of an alleged breach, default, or misrepresentation in connec...

Excerpt: ...ell as Plaintiff's amended opposition, filed April 19, in which Plaintiff claims that Defendants did not meet and confer in good faith. Plaintiff alleges a breach of his lease based on the claim that he had an “indefinite and perpetual” lease term that Defendants could not terminate. Complaint, ¶ 36. As alleged in the Complaint, however, the lease specified a one‐year term and stated that a 60‐day notice could be used to terminate the le...

Excerpt: ...), DEBORAH SULLIVAN(DOE 18), KAREN FITZGERALD(DOE 19) AND GREGORY D. HANSEN(DOE 30) TENTATIVE RULING: The Court grants Defendants' Request for Judicial Notice as to all 31 matters. The Motion to Strike, filed by Defendants MAINS, SLOAN, SHREWSBERRY, FRANCESCONI, WT CAPITAL LENDERS SERVICES, BERG, POWELL, NUNEZ, WELLS FARGO & CO., SULLIVAN, FITZGERALD, and HANSEN is DENIED. The 12 moving defendants were substituted into this matter in place of Doe...

Excerpt: ...DOE 19) AND GREGORY D. HANSEN(DOE 30) TENTATIVE RULING: A. The Complaint Fails to State any Cause of Action against the DEMURRING DEFENDANTS. The demurrers by Defendants MAINS, SLOAN, SHREWSBERRY, FRANCESCONI, WT CAPITAL LENDERS SERVICES, BERG, POWELL, NUNEZ, WELLS FARGO & CO., SULLIVAN, FITZGERALD, and HANSEN to the seventh and eighth causes of action are sustained. Neither the seventh nor eighth cause of action alleges any wrongful acts by thes...

Excerpt: ...AINED WITHOUT LEAVE TO AMEND based on failure to state facts sufficient to support a cause of action. All five causes of action in the Cross‐Complaint arise out of the same allegations that Gonzalez purportedly entered into an agreement with Matson for Matson to rig the bidding for the property in exchange for Gonzalez paying Matson $10,000. (See Cross‐Complaint ¶¶ 4, 5, 15‐19.) Matson claims that he was never paid the $10,000, and furthe...

Excerpt: ...lings on the Demurrer by Defendant FPT follow: A. Sixth Cause of Action Demurrer to the sixth cause of action (interference with contract) is OVERRULED. The original MSA and the Amendment No. 1 expressly provide that the MSA is an at‐will agreement. (MSA para. 9; Amendment No. 1 sect. 1(B).) Pursuant to the Settlement Agreement and MSA, the Parties entered into the 2019 Work Order, which provides that “this Addendum shall continue for a minim...

Excerpt: ...h of contract resulting from Defendants' alleged failure to properly maintain a water heater, which caused the ceiling in the premises leased by Plaintiff to collapse. Plaintiff asserts these claims against Defendant Louis Matteucci, the lessor of the subject premises, as well as Defendants David Clark and Lagomarsino Property Management, Inc. (the “property manager Defendants”). The Court will address the arguments with respect to each Defen...

Excerpt: ... et. al.'s “Motion to Dismiss or Stay on the Ground of Inconvenient Forum,” filed 3‐29‐21, is DENIED. Code Civ. Proc. Sects. 410.30; 418.10. Assuming it applies, the forum selection clause is permissive, not mandatory Defendants first argue the Court should dismiss the case because the forum selection clause in the referenced 2008 “Limited Tenancy In Common Agreement” (TIC Agreement) (10‐23‐20 Klimp Decl., Ex. A) “requires” th...

Excerpt: ... share of arbitration fees or waive arbitration. The parties do not dispute that Luchetti did not agree to pay Butte's share of arbitration fees by December 4, 2020, or at any date thereafter. Luchetti has therefore waived its right to arbitrate Butte's claim. The Court's order was expressly based on the controlling authority of Roldan and Weiler, which each held in relevant part as follows: “[I]f the trial court determines that any of these pl...

Excerpt: ...s from selling the Property. The standard for a preliminary injunction is set forth in Code of Civil Procedure section 525 et seq. To obtain a preliminary injunction, the plaintiff must establish that the defendants should be restrained from the challenged activity pending trial. See Code Civ. Proc. § 526, subd. (a); see also Trader Joe's Co. v. Progressive Campaigns (1999) 73 Cal.App.4th 425, 429. In seeking a preliminary injunction, the burden...

Excerpt: ...The parties settled this matter following Plaintiff's acceptance of Defendants' CCP Section 998 offer to compromise. The offer provided that Defendants would pay Plaintiff $160,000.00 “to resolve fully and finally all of the parties' respective claims against one another, exclusive of costs and fees.” McDonald Decl., Ex. P, p.2; McLennon Decl. ¶ 25. The offer also provided that Plaintiff “shall dismiss all of its claims alleged in its oper...

Excerpt: ...th respect to the First Cause of Action for Wrongful Foreclosure and Fifth Cause of Action for Violations of RESPA pursuant to Cal. Code of Civ. Proc. § 430.10(e). The Demurrer is OVERRULED with respect to Plaintiff's remaining causes of action. Any amended pleading is to be filed within 20 days of this order. First COA for Wrongful Foreclosure The elements of a wrongful foreclosure cause of action are: “ ‘(1) [T]he trustee or mortgagee caus...

Excerpt: ...dant must either pay overdue rent covering the time period from Nov. 1, 2020 to Dec. 15, 2020, “or quit and deliver up possession of the premises.” See Complaint, Ex. II. Thus, the Complaint is based on tenant's alleged non‐payment of rent. Per Code Civ. Proc. Sects. 1179.01‐ 1179.07 (The Covid‐19 Tenant Relief Act of 2020, or “Relief Act”), Notices that seek to terminate a tenancy based on the non‐payment of rent that was due dur...

Excerpt: ...tion to quash subpoenas based on litigation taking place in New York. The underlying New York action is a personal injury action. The Defendant in that action, Subaru Distributors Corp., served the subpoenas on non‐party Petitioner Facebook, Inc. The subpoenas seek discovery of the contents of Plaintiffs' Facebook and Instagram accounts. The Stored Communications Act (“SCA”) bars disclosure of the contents of the subpoenaed accounts. The SC...

Excerpt: ...icipated in an informal discovery conference on December 1, 2020, but did not resolve the issues raised herein. Kawahito Decl. ¶23‐24. This, and the subsequent communications detailed in the Kawahito Decl., satisfies the meet and confer requirement. Defendant argues that Dr. Scott cannot participate in a deposition because of health issues, based on a November 24, 2020 letter from Dr. Gilbert Goodman of the Palo Alto Medical Foundation which s...

Excerpt: ... reasons set forth below. Both the First Cause of Action for Breach of Contract and Second Cause of Action for Negligence are barred because Facebook is immune from liability under section 230(c)(1) of the Communications Decency Act of 1996 (“CDA”). (See 47 U.S.C. § 230(c)(1).) Section 230(c)(1) states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by ...

Excerpt: ... “material continuing violations of your lease (smoking, unapproved dog, noise),” “material failure to carry out obligations under state landlord and tenant law (nuisance and interfering with quiet enjoyment of neighbors),” and “other good cause (harassment of neighbors, smoking, noise).” (Complaint, Ex. 2.) Defendant's tenancy is a Section 8 tenancy. (Complaint, Ex. 1.) The Complaint does not allege facts that would permit terminatio...

Excerpt: ...torney's fees is DENIED. Respondent contends, first, that the arbitrator lacked statutory authority to issue the December 18, 2019 “Amended Ruling.” According to Respondent, “the arbitrator had no statutory authority or power to change, ‘amend,' or otherwise ‘clarify' his December 17, 2019, decision, regardless of his desire to do so or whether the parties requested ‘clarification' during a telephone call.” Opposition, p.5. Pursuant...

Excerpt: ...min Darrow (“Plaintiff”), is ruled on as follows: (1) Defendant's Request for Judicial Notice is GRANTED, pursuant to Evidence Code section 452(d). (2) The Demurrer to the First through Fifth Causes of Action as barred by the statute of limitations is OVERRULED. Defendants argue that these claims are barred by the three‐year statute of limitations under Code of Civil Procedure section 338(d). The statute commences to run only after one has ...

Excerpt: ...ber 16, 2020 is denied. (Code Civ. Proc., sec. 473(d); see Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 [default judgment entered against a defendant who was not served with a summons in the matter prescribed by statute is void].) Pursuant to Code of Civil Procedure section 415.20(b), plaintiff's process server attempted service on defendant at the Fremont apartment, the address defendant gave as his home address at the scene of the accident, ...

Excerpt: ...icle negligence arising from a collision on the 280 Freeway in San Mateo County. It alleges Defendant “was engaged in a race on the freeway with his motor vehicle with another unknown individual …. [and] caused his motor vehicle to strike Plaintiff's vehicle with such force that it caused Plaintiff's vehicle to fly off the highway and to rollover multiple times.” The Complaint refers to Defendant's actions as “despicable conduct, intentio...

Excerpt: ... Plaintiffs have demonstrated the records they seek to seal contain proprietary or confidential information. The records consist of testimony and documents furnished to the San Mateo County Assessment Appeals Board in conjunction with an application for changed assessment. Complaint, ¶ 10. Plaintiffs cite to Rev. and Tax. Code § 451, which provides that “All information requested by the assessor or furnished in the property statement shall be...

Excerpt: ... Alexander Mayer (“Mayer”) (collectively “Plaintiffs”), is ruled on as set forth below. The demurrer to the second, third, fourth, ninth, and tenth causes of action is SUSTAINED WITH LEAVE TO AMEND as to Defendant Pepe Pimentel (“Pimentel”). Plaintiffs have not alleged facts to support these causes of action. There is no alleged misrepresentation by Pimentel to support the Second Cause of Action for Intentional Misrepresentation and T...

Excerpt: ...g to Defendants, “when dealing with injuries of the magnitude at issue in this case, the effect of sympathy and passion in the jury's deliberations on the subject of liability may well result in a miscarriage of justice.” MPA, p.8. Defendants assert that “Should the facts and evidence support a conclusion that Defendants are not liable for decedent's and Plaintiffs' injuries, presentation of evidence and argument regarding the tragic result...

Excerpt: ...h Plaintiff, the existence of which is established by the Complaint and judicially noticeable facts. Contrary to Defendant's contention, the contract does not need to be in writing since it falls under the exception set forth in Commercial Code section 2201(3)(a). Paragraphs 42 and 43 of the Complaint establishes the remaining elements of this claim. See CACI No. 2201. Defendant also contends this cause of action is barred by res judicata based o...

Excerpt: ...for Wrongful Foreclosure and Fifth Cause of Action for Violations of RESPA pursuant to Cal. Code of Civ. Proc. § 430.10(e). The Demurrer is OVERRULED with respect to Plaintiff's remaining causes of action. Any amended pleading is to be filed within 20 days of this order. First COA for Wrongful Foreclosure: The elements of a wrongful foreclosure cause of action are: “ ‘(1) [T]he trustee or mortgagee caused an illegal, fraudulent, or willfully...

Excerpt: ...vely “Cross‐Defendants”) to the First Amended Cross‐Complaint (“FACC”) of Cross‐Complainants Tarun Gaur (“Gaur”), Tringapps, Inc., Jinigram, LLC, Dial2Buy.com, LLC, and Ravi Kumar (collectively “CrossComplainants”), is ruled on as follows: (1) Demurrer to the Fourth Cause of Action for Declaratory Relief based on failure to state facts sufficient to support this claim, is OVERRULED. Cross‐Defendants fail to show that all o...

Excerpt: ...ed by a means guaranteeing no later than next‐day delivery. See Code Civ. Proc. Sect. 1005(c). The Complaint properly states a cause of action for unlawful detainer (UD). Code Civ. Proc. Sect. 430.10(e). The Complaint alleges that after the initial lease term expired and a month‐to‐month tenancy was created, Plaintiffs served Defendants with a 60‐day Notice of Termination of Tenancy (Complaint, Ex. B), which stated that Plaintiffs intende...

Excerpt: ...itz LLC. The pleading alleges that Plaintiffs are members of Fox Investments, LLC. It does not allege, however, whether any Plaintiff is one of the “certain partners” of Fox Investments (Complaint para. 8) who purchased DeRitz LLC. The Complaint does not identify any member of DeRitz LLC. Further, the Complaint fails to state a cause of action for an accounting. “An action for an accounting may be brought to compel the defendant to account ...

Excerpt: ...s”) to Strike Portions of the First Amended Cross‐ Complaint (“FACC”) of CrossComplainants Tarun Gaur, Tringapps, Inc., Jinigram, LLC, Dial2Buy.com, LLC, and Ravi Kumar (“Cross‐ Complainants”), is ruled on as follows: (1) The Motion to Strike the portions of Paragraphs 1 and 2 in the Prayer for Relief on page 36, lines 21 and 24 that read “and that Gaur be restored all consideration” is GRANTED WITHOUT LEAVE TO AMEND. CrossCompl...

Excerpt: ...nor any facts suggesting Defendant engaged in “despicable conduct,” as is required by Section 3294. Specifically, Plaintiff alleges he dined at Defendant's restaurant, informed Defendant he had a peanut allergy, inquired whether the food he had ordered contained peanuts, and was told it did not. (Complaint, p. 5). Plaintiff alleges he became ill after consuming the food, which it turns out contained peanut ingredients. Id. For the reasons sta...

Excerpt: ...or Summary Judgment or in the alternative, Summary Adjudication, is ruled on as follows: Defendants' Motion for Summary Judgment is DENIED since they have failed to establish that there are no triable issues of material fact as to an essential element for each cause of action. Summary Adjudication is DENIED as to the First, Second, Fourth, Sixth and Seventh Causes of Action and GRANTED as to the Third and Fifth Causes of Action for the reasons se...

Excerpt: ... mail and electronic mail, respectively, to Consumer First Legal at 416 Hillview Drive in Milpitas, CA and to [email protected]. The email address is identified in the parties' stipulation as the address where Defendant may be notified of default. However, no appearance has been entered on behalf of Defendant in this action, and there is no indication in the record that the physical or email address to which the papers were served belong to Defend...

Excerpt: ...ek to invalidate the settlement agreement. “'Ordinarily where the rights involved in litigation arise upon a contract, courts refuse to adjudicate the rights of some of the parties to the contract if the others are not before it.'” Deltakeeper v. Oakdale Irrigation Dist., 94 Cal. App. 4th 1092, 1106 (2001) (quoting Nat'l Licorice Co. v. N.L.R.B., 309 U.S. 350, 363 (1940)). “Such a judgment or decree would be futile if rendered, since the co...

Excerpt: ...and the forum state to justify imposition of personal jurisdiction. Elkman v. National States Ins. Co. (2009) 173 CA4th 1305, 1313. In this case, Plaintiffs contend the Court has specific personal jurisdiction over Defendants Hart and HME Legal because Defendants (1) accepted payment out of funds administered in California; (2) intentionally offered their services to Plaintiffs in California; and (3) proposed California dispute resolution in a te...

Excerpt: ... Darrow (“Plaintiff”) and Defendant providing that any action arising out of the agreement be brought in Florida. (See Barnes Decl., Exh. A, ¶ 18.f.) A mandatory forum selection clause is valid and enforceable absent a showing that enforcement of such a clause would be unreasonable. (CQL Original Products, Inc. v. National Hockey League Players' Assn. (1995) 39 Cal.App.4th 1347, 1353–1354.) The plaintiff bears the burden of demonstrating t...

Excerpt: ...tiff paid $15,000 against a surety bond it issued to Defendant. Plaintiff contends it is entitled to reimbursement of the $15,000 payment on the grounds that it made payment out of the surety bond in good faith, that Defendant waived his right to contest the payment when he failed to specifically instruct Plaintiff not to make payment, and that Plaintiff has a statutory right to reimbursement under Civil Code section 2847. However, the pleadings ...