Excerpt: ...nt, and further leave to amend is not justified. Defendant shall prepare, circulate and submit a proposed Judgment. Defendant's Request for Judicial Notice is GRANTED\. "[T]he elements of an achon for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally conceale...

Excerpt: ...uests for judicial notice are GRANTED, but not for the truth of the matters contained therein. The Court notes that Defendant filed a request for judicial notice that is over 800 pages long, but Defendant failed to "bookmark" the exhibits thereto. This is in violation of CRC Rule 3.1110(f)(4) and ü)cal Rule 3.3. Accordingly, the Court was left to scroll through 800 individual pages, which is abusive. Defendant is hereby warned that failure to co...

Excerpt: ... Counsel exchanged emails on March 27, 2023 regarding the filing of the Cross-complaint and the need for Mr. Perdue to obtain joint representation waivers from Cross-Defendants. Sorba Decl„ "3-4. Counsel for Crosscomplainant followed up via email on April 3, 2023. Ibid. , 95. Cross-Defendant Fofoanga Club filed an Answer to the Cross Complaint through Mr. Perdue on April 17, 2023. Ibid. , 96. Cross-complainant's counsel sent an email on May 31,...

Excerpt: ...l in opposition to this Motion, but failed to file any application or moton to have these documents filed under seal. "A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record." (CRC Rule 2.551(b)(1).) "The moton or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing." (Ibid.) Accordingly, the documents are hereby ORDE...

Excerpt: ...mber 1, 2023. Defendants demur that these causes of action fail to state facts sufficient to support a claim because Plaintiff Edgewater Holding Corporation has not alleged facts sufficient to support its performance or excuse for nonperformance under the contract. Specifically, Defendants assert that Plaintiff must allege that it first obtained a determination that the damages sued for are not covered by insurance before it may bring these claim...

Excerpt: ...or Plaintiff in July 27, 2023. Although Jones presented evidence that she was on maternity leave from March 28, 2023 to June 26, 2023, there is no valid excuse or explanation from the other two attorneys as to why they did not take action on behalf of Plaintiff. Indeed, Plaintiff's counsel were able to promptly file and serve the Second Amended Complaint on April 21, 2023 in the midst of Jones' maternity leave. It is further puzzling, because the...

Excerpt: ...ended Complaint for the fifth cause of action. Defendant's Demurrer to the fifth cause of action to the extent that it claims fraudulent concealment of a defective battery know to be defective at the tme of sale of the vehicle is SUSTAINED WITH LEAVE TO AMEND. Contrary to the Code of Civil Procedure, Plaintiff fails to s#cifically allege the amount of damages claimed under this cause of achon for fraud. Further, Plaintiff fails to identify a sing...

Excerpt: ...NISTRATIVE SERVICES LLC for residents at BURLINGAME HEALTH CARE CENTER during the time period that Ms. CYNTHIA JENNINGS was a resident at BURLINGAME HEALTH CARE CENTER. No. 22: All "review tool" manuals from which ROCKPORT ADMINISTRATIVE SERVICES LLC will any e-mail "load files" in response to the discovery requests in this First Set of Requests for Production. As part of the meet and confer process, Plaintiffs stated that they were amenable to t...

Excerpt: ...d Telios. Plaintiff's Complaint does not provide details on the relationship between her and Telios, but merely lumps Kartos and Telios together at the beginning of the Complaint as Defendants or collectively, "the Company." Plaintiff's Complaint does not allege that she entered into a contract of any kind with Telios, and the attached offer letter is only on behalf of Kartos and signed by Kartos offcers. In regard to the demurrer of Kartos, alth...

Excerpt: ...ut by CCP S 386 and relevant caselaw. As an initial matter, this motion lacks a proof of service as required by California Rules of Court Rule 3.1300(a), and therefore there is no indication that any party to this action received requisite notice. The Court previously noted this omission when denying Plaintiff's previous motion to distribute interpleader funds. A proof of service is a basic requirement of any motion, and Plaintiff's moton can be ...

Excerpt: ...njunctive relief, and the sixth cause of action for declaratory relief. Defendant's Demurrer to the Complaint as to the third cause of action for an accounting is SUSTAINED WITH LEAVE TO AMEND. An action for accounting lies when the complainant sues for recovery of an unascertained amount that cannot be determined without an accounting. (St. James Church v. Superior Court (1955) 135 Cal.App.2d 352, 259.) The third cause of action is based on the ...

Excerpt: ... this Defendant, on a case that has been pending for years, and after discovery concluded, and after motions for summary judgment were heard. No gtnd cause is given for the delay. Further, the affirmative defense fails to state a viable defense, as it is evident from the motion that the Floating Home Residential Law does not apply to Docktown Marina. Defendant asserts that evidence has been obtained showing that 8 slips at Docktown Marina had sho...

Excerpt: ...imple collection case seeking an unpaid portion of a loan for approximately $11,Cü3. Plaintiff seeks $5,495.65 in costs follow-ng entry of judgment in their favor. Defendant seeks to tax $4,648.15 in costs. These costs solely pertain to two writs of attachment—an original writ and an amended writ—which Plaintiff sought following Defendant's request of a trial de novo. A prevailing party is entitled to certain costs as a matter of right. CAL....

Excerpt: ... Memorandum of Costs and a motion to tax costs is pending hearing. This is a simple collection case seeking an unpaid portion of a loan for approximately $11,000. By this motion, Plaintiff seeks a staggering award of $63,223.50 in attorneys' fees. Plaintiff's counsel billed 118.90 hours for a lodestar of $56, 673.50, plus seeks an additional 10 hours for this fee motion. Although pursuant to contract and Civil Code section 1717, Plaintiff as prev...

Excerpt: ...UT LEAVE TO AMEND, on the basis that all claims are time-barred. All other grounds for Demurrer are thus MOOT. Respondents' 8-21-23 Request for Judicial Notice is GRANTED. In 2020, Petitioner Thomas Nussbaum filed a Petton for Writ against these same Respondents in the Alameda County Superior Court, challenging Respondents' calculation of his deceased mother's (Evelyn Clayton Nussbaum's) Medi-Cal benefits/eligibility. In April 2021, the Alameda C...

Excerpt: ...tos admittedly used an alias, Jose Rodrigues, while employed by Defendant Cheesecake Factory. Plaintiff stated in his Complaint that he worked there from 2019 to 2021 as a cook. Plaintiff's signature on his declaration is for his true name, and does not match any documents submitted by Defendant. Plaintiff states that he speaks very little English, and his declaration is submitted as translated from Spanish. Plaintiff denies that it is his signat...

Excerpt: ... the Court sustained with leave to amend. Watt joined in AVM's demurrer, and separately filed the instant demurrer as to Hirata's first cause of action under Labor Code S 1102.5(b) as against Watt specifically. For the reasons stated below, Watt's demurrer to the first cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Labor code section 1102.5 is a whistleblower statute, the purpose of which is to "encourag[el workplace whistle-blowers to repo...

Excerpt: ... filed a Cross-complaint against Plaintiff. On May 5, 2022, Plaintiff filed a First Amended Complaint to add claims for accounting and declaratory relief. On June 28, 2022, this case was set for trial to commence June 1, 2023. On May 8, 2023, less than one month before trial, Defendant brought an ex parte application to continue the trial date, allow further merits discovery, and allow more time to complete expert discovery — due to the recent ...

Excerpt: ...elevant Facts This personal injury case arises out of a December 16, 2019 incident in which Plaintiff and Cross-defendant Nancy Hey, who had already been legally blind, was struck in the eye by a metal protrusion on the premises of Rancho Viejo horse stables located at 145 Ansel Lane in Portola Valley (the "Premises"). The Premises are owned by the Defendant Board of Trustees of the Leland Stanford Junior University ("Stanford") and leased to Def...

Excerpt: ..."). In the operative First Amended Complaint, Plaintiff alleges causes of acton against both Watt and AVM for whistleblower retaliation, false imprisonment, battery, and intentional infliction of emotional distress.l Defendant AVM now demurs to all causes of action, arguing that Plaintiff has failed to state facts sufficient to constitute a cause of action as to his whistleblower retaliation claim, and that AVM has failed to allege sufficient fac...

Excerpt: ...n suing a public entity defendant. Public entities can be liable only to the extent prov-ded by statute. Government Code Section 815 states, in pertinent part: " Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." To assert a valid claim against Defendant, which is public entity, Plaintiff must...

Excerpt: ... to state a claim as the parties (or their predecessors in interest) entered into a settlement with broad mutual releases as part of the Second Settlement Agreement. (2) SUSTAINED WITH LEAVE TO AMEND as to the second cause of action for negligence. Although the negligence claim cannot be based upon the prior settlements, the Second Amended Complaint also contains some allegations that the failure of Defendant to maintain its subslab depressuraton...

Excerpt: ...Complaint is DENIED. Defendants shall file and serve their Answers to the Complaint on or before September 1, 2023. Evidence and facts external to the Complaint cannot be considered on a Motion to Strike. In their briefing, both parties assert arguments based on the "Traffic Collision and other supposed "evidence," including a declaration from Plaintiff's counsel. None of this, however, is part of the Complaint. On a Motion to Strike, the Court o...

Excerpt: ... Civil Procedure Section 340.5, which begins to run after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury. See MP&A ISO Motion, 5:6-8; Opp. 2:16-20. As used in Section 340.5, discovery of the injury means discovery of both the physical condition and also the negligent cause of condition; it refers to the damaging effect of the alleged wrongful act and not the act itself, and no cause of actio...

Excerpt: ...ied upon, and that she was deceived. Her claims are based on HealthSmart's use of the descriptions "healthy" and "all-natural," yet as is apparently conceded by Plaintiff, HealthSmart has not used these adjectives to describe the products purchased by Plaintiff. HealthSmart notes the accused Sweet Nothings products are just one of several product lines. HealthSmart points to its website to demonstrate that, in fact, HealthSmart has not used the w...

Excerpt: ...on the defendant's intentionality. Snowney v. Harrah's Ent. , Inc. (2005) 35 Cal.4th 1054, 1062. This prong is only satisfied when the defendant purposefully and voluntarily directs its activities toward the forum so that it should expect, by virtue of the benefit it receives, to be subject to the court's jurisdiction based on its contacts with the forum. ld. Thus, purposeful availment occurs where a nonresident defendant purposefully directs its...

Excerpt: ...not filed any papers subsequently, and the moton remains unopposed. Defendants' motion to compel discovery set for hearing on August 23, 2023 is VACATED AS MOOT. The Court finds as follows: Plaintiff's complaint is for recovery on a $260,000 Check written to Plaintiff by Defendants. (See Civ. Code sect. 1719, subd. (a)(l) (statutory basis for liability against "any person who passes a check on insufficient funds").) Defenses to a claim for a dish...

Excerpt: ...e enforcement of a right to inspection of corporation books and records is done by Petition, not by Complaint. (2) Section 1501(c) has to do with disclosure of financial statements and/or creation of quarterly financing statements — which is not the relief that Vaid has pleaded. (3) Demand for inspection of books and records is under Sectons 1601 and 1602, not 1500 or 1501. (4) In an action to enforce under Section 1503, the Court may appoint a...

Excerpt: ...Defendants have demonstrated that the claims alleged against them by Plaintiff LaVerne Norman Jones fall with Prong One of SLAPP statute, and Plaintiff has failed to demonstrate any probability of prevailing on her claims under Prong wo of SLAPP statute. An "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes "any written or oral statement...

Excerpt: ...ion is DENIED. This lawsuit was originally filed by Plaintiffs against Defendant Giusto's Specialty Foods LLC back on August 21, 2019 — almost four years ago. Although the Complaint was served upon Defendant GSF on August 22, 2019, Defendant GSF failed to file any Answer to the Complaint. On March 3, 2021, Plaintiffs filed a First Amended Complaint, adding parties to the case. Defendant GSF filed its Answer on April 26, 2021. This case was set ...

Excerpt: ...tract; (2) plaintiff's performance; (3) defendant's breach; (4) plaintiff's damages therefrom. (See Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) hough the Complaint alleges that a written contact exists, it does not attach a copy, set out the contract's terms, or otherwise state the terms' legal effect. (See Gilmore v. Lycoming Fire Ins. Co. (1880) 55 Cal. 123, 124.) Second, to the extent the Complaint asserts a cause of action for disc...

Excerpt: ...lany and Majdy Alkablany shall, jointly and severally, pay Defendants Colla & Ray, LLP's, Samuel Charles Ray's, and Luke Robert Garvey's reasonable attorney fees in the total amount of Defendants Colla & Ray, LLP's, Samuel Charles Ray's, and Luke Robert Garvey's Objections to Evidence are SUSTAINED as all items. Defendants Colla & Ray, LLP, Samuel Charles Ray, and Luke Robert Garvey (collectively "Colla & Ray") specially move here to strike the a...

Excerpt: ...hin two years of the sale of the all the subject properties and the time when profits were required to be divided. To the extent that the first parcel was sold more than four years prior to the filing of this lawsuit, it is unclear whether any distribution of profits was triggered, as the Consulting Agreement sets forth a "waterfall" of payments to be made before any profit distribution, and the Court was not provided with sufficient evidence and...

Excerpt: ...andatory dismissal statute Secton 583.310. Code of Civil Procedure Section 583.310 mandates that a civil action be dismissed for failure to prosecute if the case does not start trial within five years of filing: "An action shall be brought to trial within five years after the action is commenced against the defendant." This civil action was dismissed for failure to bring the matter to trial within five years. For the sake of argument, even there ...

Excerpt: ...i and Jackie A. Fagnani, and the defendant is Teiko Inuoe Lewis dba Peninsula Cleaners. First Amended Complaint ("FAC"), 1-3. The Second Settlement Agreement is signed between Fagnani Properties LP, John Fagnani, individually and as Trustee of the John and Jackie Fagnani Family Trust dated August 2, 1999, and Jackie Fagnani, individually and as Trustee of the John and Jackie Fagnani Family Trust dated August 2, 1999, on the one hand, and Teiko In...

Excerpt: ...ional Tort and "Discriminated Against as a Member of an underrepresented Group" are attached. However, the only attachments to the Complaint are documents showing a hotel reservation, and a police report. The checked boxes and attachments are insufficient to show what causes of action are alleged so that Defendant may prepare a defense. The Demurrer to each cause of action is therefore SUSTAINED with leave to amend for uncertainty pursuant to Cal...

Excerpt: ...$25,000, Plaintiff will need to formally serve the Amended Complaint on Defendant, which would re-open Defendant's default. (See 3-21-22 Order denying Plaintiff's "Application to Amend the Complaint."); see also The Rutter Group: unlawful Detainer Complaint, Cal. Prac. Guide Landlord-Tenant Ch. 8-8, Sect. 8:498 ("An amended complaint making substantive changes in effect "opens" existing defaults: All defendants, even those currently in default un...

Excerpt: ...is due in November 2023, and the parties have declined to stipulate to any waiver of the five year dismissal statute. This is a motion for reconsideration in disguise. On August 17, 2022 this Court held a hearing on Plaintiff's moton to continue the trial (which was granted) and Defendants' motion to continue all pretrial dates and deadlines, to be calculated based upon the new trial date, which was denied. The Court found "No good cause for cont...

Excerpt: ...Make Increase Deposit to $2,000,000 is GRANTED pursuant to Cal. Code of Civ. Proc. 51255.030. The Court previously ruled that Defendant's original Motion for Order Increasing Amount of Deposit of Probable Compensation and Commanding Plaintiff to Increase Deposit to $2 million pursuant to Code of Civil Procedure Section 1255.030 was denied without prejudice for failure to present the factual details required by subsection (a) regarding valuation. ...

Excerpt: .... 1—6, 10, 12—13, 16, 18, 19, 21—23. Defendant's Evidentiary Objections are DENIED. As a preliminary matter, Defendant's separate statement in opposition does not comply with California Rules of Court. Rule 3.1350(f)(2) that requires that, when a material fact is disputed, the evidence supporting the position that the fact is controverted must be described and cited to. In addition, Defendant has not properly bookmarked his exhibits, in vio...

Excerpt: ... Sect. 1005, subd. Plaintiff is reminded to comply with filing and service deadlines in the future. Defendant Diwa Rachakonda's demurrer to the first cause of action (breach of contract) is SUSTATINED WITH LEAVE TO AMEND. Demurrer to the second cause of action (common count for work, labor, services) is OVERRULED. Plaintiff shall file and serve his First Amended Complaint on or before May 8, 2023. The first cause of action (breach of contract) fa...

Excerpt: ...ASE SUMMARY The Complaint alleges that on January 7, 2020, Plaintiff Mary Jane Estacio (“Plaintiff”) entered into a warranty contract with Nissan regarding a 2018 Nissan Kicks (“vehicle”). Plaintiff attaches a copy of the express warranty to the Complaint. (See Defendants' Request for Judicial Notice, Exh. 1.) Plaintiff claims that the vehicle had defects and nonconformities to the warranty. Plaintiff delivered the vehicle to GSN for repa...

Excerpt: ... GRANTED. A. Request for Continuance In the memorandum of points and authorities supporting her opposition, Defendant contends that “discovery in this matter remains ongoing, with significant discovery items still outstanding,” that “numerous issues related to the allegations contained within the Cross-Complaint for property damage have yet to be fully explored or adjudicated,” and therefore “considering summary judgment at this point i...

Excerpt: ...TAINED WITH LEAVE TO AMEND. Code Civ. Proc. Sect. 430.10. The Demurrer is unopposed. See CRC 8.54(c) (“A failure to oppose a motion may be deemed a consent to the granting of the motion.”). Respondents' 10-28-22 Request for Judicial Notice is GRANTED as to Exhibits A-C. Evid. Code Sect. 452(c). Petitioner Nussbaum shall file and serve a Second Amended Petition for Writ on or before April 3, 2023. All asserted claims appear to be time-barred o...

Excerpt: ...abandoned, and that claim for relief is DISMISSED. A plaintiff may move for summary judgment in an action if it is contended that there is no defense to the action or proceeding. (Code of Civ. Proc. 437c, subd. (a)(1). A Plaintiff meets its moving burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (Id. sect. 437c, subd...

Excerpt: ...he First Amended Complaint on or before February 10, 2023. Defendant Peninsula Corridor Joint Powers Board demurs to Plaintiffs' First Amended Complaint on the grounds that the first, second, and fourth causes of action, which allege negligence against Defendant, “are fatally divergent from the tort claims they submitted to Defendants.” According to Defendant, “Plaintiffs' FAC completely altered the factual landscape vis‐a‐vis PCJPB. Th...

Excerpt: ...Court Case no. C19‐02458 filed November 26, 2019, and (2) a probate action titled In the Matter of the Estate of Raymundo Guzman Sr., San Mateo Superior Court Case no. 19‐PRO‐01521 filed December 9, 2019. Plaintiff brings this Motion pursuant to Code of Civil Procedure section 403 and Cal. Rules of Court Rule 3.500, contending that these actions share common questions of law and fact and that their coordination will promote the ends of just...

Excerpt: ...the amount of fees requested; and the Court finds the fee request to be inflated. Sahlbach repeatedly and successfully contested service of process by multiple motions to quash. No SLAPP motion to strike or other motion as to the pleadings was called for prior to the time that the Court granted the Plaintiff's request for service by publication, and publication was conducted. The only SLAPP motion was filed in April 19, 2022. The moving paper con...

Excerpt: ...action for conversion in the Second Amended Complaint, by Annie and Jeannie Hung, on the basis of Statute of Frauds is SUSTAINED WITHOUT LEAVE TO AMEND. This claim is based upon an alleged oral contract to either loan or provide as an investment the down payment on the house – which funds were given by Plaintiffs to Defendant voluntarily. Either way, such an agreement regarding real estate must be in writing, pursuant to civil Code sections 109...

Excerpt: ...iff wishes to prosecute a claim for punitive damages, Plaintiff must comply with Code of Civil Procedure Section 425.13, pursuant to Central Pathology Service Medical Clinic Inc. v. Superior Court (1992) 3 Cal.4th 181, by bringing a separate motion for leave to amend to add a claim for punitive damages. The one year statute of limitations (“SOL”) applies to Plaintiff's claims for professional negligence pursuant to Code of Civil Procedure Sec...

Excerpt: ...ble to dispose of only causes of action, affirmative defenses, claims for damages, and issues of duty. (Code of Civ. Proc. sect. 437c, subd. (f)(1).) Plaintiff's motion does not fall within the scope of section 437c. Even if the Court were to consider the motion on the merits, the motion would fail. Issues for motions for summary adjudication are framed by the pleadings. Summary adjudication cannot be granted or denied on grounds not raised in th...

Excerpt: ...er retaliation in violation of Labor Code § 1102.5 on the grounds that the Complaint does not allege facts demonstrating that Plaintiff engaged in a protected activity. Plaintiff alleges that “he reasonably believed that the therapy platform that Defendant was producing had potential toxicity that could be detrimental to cancer patients.” Complaint, ¶ 13. Plaintiff further alleges that “the information he provided to Defendant violated Pa...

Excerpt: ... (1) breach of CC&R's, (2) breach of fiduciary duty, (3) nuisance, (4) negligence, and (5) declaratory relief. HOA's moving papers fails to address all theories of liability asserted by Sarko. HOA completely ignores the cross‐ claim for declaratory relief. The Cross‐ Complaint alleges a breach of fiduciary duties resulting from (1) the HOA's selective enforcement of the CC&R's with respect to Sarko's fence and the HOA's failure to follow the ...

Excerpt: ...or before November 1, 2022. Defendants contend, first, that Plaintiff's claim is barred by the applicable statute of limitations. According to Defendants, Plaintiff's claim is subject to a 6‐month statute of limitations under CCP § 473, and a 2‐year statute of limitations under CCP § 473.5. Defendants further contend that Plaintiff's claim is subject to a 3‐year statute of limitations applicable to “An action for relief on the ground of...

Excerpt: ...ovision in the Retail Installment Sales Contract (“RISC”) entered between Plaintiff and Napa Ford Lincoln on grounds of equitable estoppel. Napa Ford Lincoln is not a party to this lawsuit. The arbitration provision states, in pertinent part: Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you an...

Excerpt: ... attorney's fees). Having reviewed the parties' briefing and supporting evidence, the Court finds that Plaintiff's Application satisfies the requirements of Sect. 483.010(a). Plaintiff has met its burden of showing (1) the claim upon which the attachment is based is one upon which an attachment may be issued (Defendant Li's alleged breach of the guarantee agreement), (2) Plaintiff has established the probable validity of its claim (see Code Civ. ...

Excerpt: ...d on posting of a $10,000 undertaking. Defendant's Evidentiary Objections Nos. 25, 26, 27, 28, 29, are SUSTAINED; Objections 30 and 31 are SUSTAINED IN PART to the extent Mr. Field describes the contents of Exhibits 3 and 4 and otherwise OVERRULED as to all other grounds; and Objections Nos. 32, 33, and 34 are OVERRULED. The moving evidence offered only an inadmissible conclusion that Windy Hill Eight was the successor to Windy Hill Two. Plaintif...

Excerpt: ...responded. Thus there is nothing actually under oath by the Defendant. Rather, there is a court order deeming the matters admitted. Defendant has presented no case law holding that requests for admissions not filed as part of a motion for summary judgment and/or never actually admitted by the party under oath can be a matter of judicial notice for determination on the pleadings. Plaintiff cites to Evans v. California Trailer Court Inc. (1994) 28 ...

Excerpt: ...al investigation.” According to Defendants' Notice of Motion, “The motion is made on the ground that Plaintiff has illegally obtained certain evidence, specifically seafood and documents in violation of section 2023.010 (subd. (b)) of the Code of Civil Procedure.” NOM, p.2. Defendants, however, have provided no authority indicating that use of illegally obtained evidence constitutes a discovery violation under any part of the Civil Discover...

Excerpt: ...se, in June 2008, of DeRitz, LLC, and its asset, real property located at 1528 S. El Camino Real in San Mateo. Pursuant to the terms of the Purchase Agreement, as part of the funding for the purchase of DeRitz, Plaintiffs transferred to the sellers three properties in San Mateo for the fair market value of either $1,763,891.22 or $1,764,963.74. Plaintiffs' AUMF 18. This amount should have been credited toward the purchase of DeRitz. Plaintiffs' A...

Excerpt: ...e a cause of action. The First Amended Complaint alleges that Plaintiffs Jeannie and Annie Hung gave money to Defendant to use as a down payment to buy a residence to be occupied by Defendant and by Plaintiff Edmond Hung as their family home. They raised a family there, although Defendant Edmond Hung left the family in 2014 and stopped making any payments towards the house. Plaintiffs allege that Defendant – seven years after Edmond left – so...

Excerpt: ...ies previously lived together for 13 years. Plaintiff alleges that in 2017, Defendant transferred/conveyed his ownership interest in the subject property from himself (individually) to himself as Trustee of the newly formed “MSI Family Trust.” Because Defendant's interest in the property is now held by himself as Trustee of the new Trust, it is proper for Plaintiff to request to add Defendant in his capacity as Trustee, so that any judgment c...

Excerpt: ...he second cross‐cause of action for dissolution of partnership regarding a real estate business is OVERRULED. Cross‐Defendant Loeswick's Demurrer to the First Amended Cross‐Complaint as to the third cross‐cause of action for violations of the Labor Code is SUSTAINED WITHOUT LEAVE TO AMEND. Cross‐Complainant Vernon fails to allege facts supporting any allegation that she was an “employee” of Loeswick under the Labor Code. A major con...

Excerpt: ...rt have the force of law and are as binding as procedural statutes as long as they are not inconsistent with statutory or constitutional law.” (R. R. v. Superior Court (2009) 180 Cal.App.4th 185, 205.) Defendants' failure to comply as to their Request for Judicial Notice imposes an unnecessary burden on the Court. Defendants' Request for Judicial Notice is GRANTED, The Demurrer by Defendants MERS and SHAUNA BOEDEKER as to the first, second, fou...

Excerpt: ...in the complaint are sufficient to allege any cause of action. Witkin, California Procedure (6th ed. 2021) Pleading §953. Plaintiff is self‐represented. At the very least, Plaintiff has alleged facts in the Second Amended Complaint that Defendant Nash yelled at Plaintiff Rodriguez, told her to get off of “his” property, and slammed Plaintiff's right foot on the door. Plaintiff also alleges facts that she sustained personal injuries from th...

Excerpt: ...nd serve her First Amended Complaint on or before August 12, 2022. Requests for Judicial Notice are GRANTED. Plaintiff Maka filed a Complaint that is styled only as a complaint to set aside judgment. But the basis of the Complaint is that the Court lacked personal jurisdiction over her, in that service of process was defective or false. Further the enforceability of the original judgment expired but was renewed within the 10 year period. “Defec...

Excerpt: ...ty located at 567 Price Street in Daly City (“property”). The First Amended Complaint (“FAC”) alleges claims for partition and quiet title. A trial was held before Judge Buchwald, and a Statement of Decision issued on December 19, 2016. (See Sabharwal Decl., Exh. A, Statement of Decision (“SOD”).) The SOD states that the parties stipulated at trial that bank mortgage payments were paid directly to the bank by checks from Plaintiff in ...

Excerpt: ...at he Plaintiff will prevail on the claim for punitive damages under Section 3294. Section 3294 requires proof of malice, oppression or fraud by clear and convincing evidence. As noted by the Opposition, this request appears to be premature given the preliminary nature of discovery taken in this case so far. Plaintiff presents no deposition testimony of any party, and no deposition testimony of any witnesses. In the moving declaration of counsel,...

Excerpt: ...rs, which is 123 pages with Exhibits A through J. In violation of CRC Rule 3.1110(f) and Local Rules, the document exhibits ARE NOT BOOKMARKED. Failure to do so in the future, will result in the filed documents being stricken! The matters is in dispute appear to be Requests for Production Nos. 8 and 36. The privilege log was not presented, and thus is not in dispute. A constitutional right to financial privacy is asserted by Malaspina, but was no...

Excerpt: ...uit against Defendant Jim Khorge for breach of a contract (Promissory Note) that contains an attorney's fees clause. The Arbitrator found in favor of Plaintiff Dan Khorge on the breach of contract claim, and Judgment has been entered in favor of Plaintiff Dan Khorge. (1‐4‐22 Clerk's Judgment). Accordingly, the Court finds that Plaintiff Dan Khorge is the prevailing party on his claim for breach of contract, and is entitled to recover his reas...

Excerpt: ...o evidence was presented by moving party of any signed acknowledgment or other document proof that Ponder ever saw or signed any arbitration agreement. Ponder provided a declaration stating that she never saw nor signed any arbitration agreement. Defendant argues that according to their Human Resources business practices, Ponder should have been given an arbitration agreement and that she would have been required to sign it – with the written p...

Excerpt: ...lely to an allegedly improper transfer of funds from Plaintiff Standard Fiber Investors, LLC to Defendant Gross & Rooney in December 2019. FAC, ¶¶ 16, 23. Plaintiffs now seek leave to file a Second Amended Complaint to add causes of action against a newly identified Defendant, Interiorworx, LLC, relating to two transfers of funds from Plaintiff SFI to Interiorworx in 2014 and 2016. Plaintiffs' counsel states in his declaration that allowing ame...

Excerpt: ...3) 218 Cal.App.4th 1079, 1102. Defendant's Demurrer to Second Amended Complaint is SUSTAINED WITH LEAVE TO AMEND as to the Eighth Cause of Action for Wrongful Eviction, and is OVERRULED as to the Ninth Cause of Action for Declaratory Relief. The Second Amended Complaint does not allege that Plaintiff has vacated the property, which is an essential element of a wrongful eviction claim. Ginsburg v. Gamson, (2012) 205 Cal.App.4th 873, 900. Defendant...

Excerpt: ...o the Complaint is SUSTAINED WITH LEAVE TO AMEND as to the cause of action for breach of oral contract, and is otherwise OVERRULED. Defendant's Request for Judicial Notice is GRANTED as to Exhibits B, C, D, E, F and H. The Court may take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached, in the documents such as orders, statements of decision, and judgments, but it cannot take j...

Excerpt: ...aintiff's first cause of action. Plaintiff has explicitly pleaded violation of Civil Code Sections 2924 et seq. Plaintiff is not seeking to enforce Civil Code Section 2924m as a private cause of action – on the contrary, Plaintiff is alleging that Section 2924m does not apply; and it is Defendant that is asserting application of Section 2924m. Plaintiff has adequately alleged that Plaintiff was the highest bidder at auction, and entitled to the...

Excerpt: ...ndant argues that the amount awarded by the default judgment exceeds the amount sought by Plaintiff's Complaint. Taking judicial notice of the Complaint filed August 14, 2008 as a record of this Court pursuant to Cal. Evidence Code §452(d), it seeks damages in the principal sum of $ 16,918.02, plus interest thereon at the rate often percent (10%) per annum from October 19, 2007, and reasonable attorney's fees and costs. These damages pleaded in ...

Excerpt: ...denying Shaw‐Owens' motion to vacate judgment pursuant to Code of Civil Procedure Section 473(d) (arguing Shaw‐Owens was never personally served with the Summons and Complaint, and thus the default Judgment is “void” under Sect. 473(d)). With the prior motion having been denied, Defendant asks the Court to set the Judgment aside on equitable grounds, after the time limit for seeking relief under Sect. 473 has elapsed. Although the Court h...

Excerpt: ...ments or the matters asserted therein, pursuant to Evidence Code section 452(h). First, Defendants fail to establish that the Complaint is barred by the statute of limitations under Commercial Code section 3118(b). This statute of limitations provides that “if demand for payment is made to the maker of a note payable on demand, an action to enforce the obligation of a party to pay the note shall be commenced within six years after the demand.�...

Excerpt: ...irst Amended Complaint (“FAC”) by Plaintiffs Standard Fiber Investors, LLC (“SFI”) and Standard Fiber, LLC (“SF”), is ruled on as follows: (1) Before reaching the merits of this Motion, the parties disagree on whether Utah or California law applies to the claims alleged in the FAC. Defendants claim that Plaintiffs have admitted that Utah law controls with regard to ownership of the funds because the account is located in Utah, but Def...

Excerpt: ...provides compelling evidence contradicting Plaintiff's position regarding former Harmonize employee Sylvain Ntwali's alleged access of documents and information contained in Exhs. NN, OO, PP, and YY that Plaintiff claims as trade secrets in September 2021. Zhao Decl. at ¶¶49‐53. Additionally, the Cashman Decl., Exh. 1, casts a different light on the “Harmonize Sales Pipeline” document that Defendants maintain is evidence of improper acces...

Excerpt: ...stablishing that it is entitled to summary judgment. Plaintiff's Motion for Summary Adjudication to the open book account claim is GRANTED. Plaintiff presents evidence to establish all the elements of an open book account claim for $2,884.84. (See Plaintiff's Statement of Undisputed Material Facts nos. 1, 3, 4, 6, 7; see also Dorr Decl. ¶ 11.) Defendant Michael Delacruz failed to oppose this motion, and therefore fails to raise a triable issue o...

Excerpt: ... 439. The statutory “meet and confer” requirement requires that the party filing a motion for judgment on the pleadings must meet and confer with the opposing party in‐person or by telephone. Section 439(a)(3) requires a declaration identifying “the means by which the moving party met and conferred …” The Le Roux Declaration does not comply with the statute. Second, Plaintiff/Petitioner filed a Notice of Appeal seeking trial de novo r...

Excerpt: ...s $61,133.75 = $79,611.74, divided by three = $26,537.25). Request for judicial notice is GRANTED. Plaintiffs' 12‐20‐21 Memorandum of Costs seeks $140,745.49 in total costs. Vanguard moves to tax a $61,133.75 fee charged by Plaintiffs' retained expert, Jason Fries of 3D Forensics, Inc., for creating a 3D video animation for use at trial. Vanguard also contends the requested costs should be reduced by 2/3 because Plaintiffs entered into a sepa...

Excerpt: ...D AT THIS TIME subject to reconsideration after Plaintiff proves liability against Defendant Kukje Inc.; and is DENIED AT THIS TIME as to the requests for production of documents, subject to reconsideration after Plaintiff proves liability against Defendant Kukje Inc. The parties shall stipulate and submit a proposed Confidentiality Order for this case. A sample order is available on the Court's website under Complex Civil Litigation. Defendant c...

Excerpt: ...ART and DENIED‐IN‐PART, as set forth below. As to the First Cause of Action (failure to pay all hours worked) and the Second Cause of Action (failure to pay overtime), the Motion for Summary Adjudication is DENIED. See Defs' UMF 5 (disputed); CACI 2700 (Non‐Payment of Wages). As a threshold issue, Defendants suggest Plaintiff Chavez may have been a nonexempt employee because he performed managerial/supervisory tasks, and thus he cannot seek...

Excerpt: ...d this action against Defendant/Cross‐Complainant Maria Rosado to collect an outstanding credit card debt in the amount of $2,270.33. Cross‐Defendants Harris & Zide and Flint Corey Zide (collectively, “Harris & Zide”) filed the Complaint in this action on behalf of LVNV. In response, Ms. Rosado filed a Cross‐Complaint, asserting two causes of action against Harris & Zide for violations of the Federal Fair Debt Collection Practices Act (...

Excerpt: ...22. As to the First Cause of Action, alleging negligence, and the Second Cause of Action, alleging premises liability, the Demurrer is SUSTAINED WITH LEAVE TO AMEND. The Complaint does not assert a viable survivorship claim. Rather, Plaintiffs assert these two causes of action in their individual capacities. Plaintiffs do not allege they represent decedent's estate, or are decedent's personal representative(s) or successor(s)‐in‐interest. See...

Excerpt: ...Plaintiffs cannot establish their claims for wrongful foreclosure or to set aside the trustee's sale because there is no triable issue of fact as to whether the trustee's sale of the subject property was illegal, fraudulent, or willfully oppressive. According to Defendants, “The undisputed evidence demonstrates the transfer of the Deed of Trust to US BANK, as Trustee, and no void Assignment is implicated.” MPA, p.1‐2. Defendants further ass...

Excerpt: ...ions is GRANTED WITH LEAVE TO AMEND. The motion to strike “Attachment 12” is DENIED AS MOOT. As to the Complaint's punitive damages allegations, the motion is GRANTED, for several reasons. First, because the Court is sustaining Defendant's demurrer to each asserted cause of action, the punitive damages claim, which is predicated on the asserted causes of action, necessarily fails. Second, even if the wrongful death claim had been properly ple...

Excerpt: ...cise of this Court's discretion; or under any other statute. Defendant has failed to demonstrate that the default judgment entered December 14, 20219 is void on its face. There is no dispute here the December 2019 Judgment is not void on its face. See 1‐26‐22 Reply brief at 3. An order is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record, without considering extrinsic evid...

Excerpt: ...pertaining to Defendant/Judgment debtor dating back to 2017. The documents are sought as part of Plaintiffs' efforts to collect on their 12‐23‐19 Judgment. Defendant separately filed a motion to vacate the Judgment. Defendant argues the bank records will be largely irrelevant if the Judgment is vacated, because Plaintiffs will no longer be judgment creditors. Alternatively, Defendant argues that even if the Judgment is not vacated, the subpoe...

Excerpt: ...onkie. Kirton McConkie serves as Defendant Gross & Rooney's registered agent, and has represented Defendant Jefferson Gross in a variety of matters since 2017. Gross Decl., ¶¶ 4, 5. According to Defendants, “On or before November 24, 2021, Sanai associated with Kirton as co‐counsel in the instant matter.” MPA, p.2. Kirton McConkie firm is not counsel of record for Plaintiffs in this lawsuit and have never appeared in this action. Defendan...

Excerpt: ...to Special Interrogatories is GRANTED in its entirety for the reasons set forth below. The Court exercises its discretion to consider Cross‐Complainant's late‐ filed Opposition. See Kapitanshki v. Vons (1983) 146 Cal. App. 3d 29, 32. Special Interrogatory No. 14 Cross‐Defendants' Special Interrogatory No. 14, from Set Two, asks that CrossComplainant provide the name, address, and telephone number of certain witnesses. Cross‐Complainant re...

Excerpt: ...nied in part and granted in part as to Document Categories 3 and 4. Defendant's written response states that that it will comply with the request and produce “non‐privileged” document. The response implies that privileged documents will not be produced. Defendant must supplement its responses to Categories 3 and 5 by identifying all responsive documents that are withheld under privilege, i.e., produce a privilege log. (Code of Civ. Proc. §...

Excerpt: ...aintiff Sunstone DID NOT SUE STILLCREEK in the Complaint. The individual defendants and Stillcreek filed a Cross‐Complaint against Sunstone alleging claims of breach of contract and negligence for defective work. Sunstone filed an arbitration claim against Stillcreek seeking payment; and Stillcreek and the individual defendants filed a cross‐claim for arbitration, with allegations identical to those in their Cross‐Complaint. The Arbitrator ...

Excerpt: ...red. Defendants were served with a 60‐day termination notice via posting and mailing on October 8, 2021. See Compl., Exh. 3; Civ. Code §§ 1946, 1946.1; C.C.P. § 1162 (a)(3). The 60‐day notice period is determined by excluding the day of the posting and mailing and including the last day of the 60‐day period. C.C.P. § 12; see also Losornio v. Motta, 67 Cal. App. 4th 110, 113 (1998), as modified (Oct. 8, 1998), as modified (Nov. 2, 1998)....

Excerpt: ... no Default Judgment has yet been entered against him. Defendant Thomas P. Davies' Motion to Set Aside Default entered March 24, 2020 is DENIED for the following same reasons: (1) Defendant is not entitled to relief under Code of Civil Procedure Section 473(b) as more than six months have passed since entry of the default; (2) Defendant is not entitled to relief under Section 473(b) due to his failure to comply with the statutory requirement that...

Excerpt: ...wood Drive in Pacifica, Ca. The owner of the school property, Defendants Ignatian Corp. and St. Ignatius College Preparatory (“School”) is in the process of demolishing an old structure on the property, which has involved some asbestos abatement. Plaintiff claims Defendants failed to obtain all of the required permits/approvals before beginning the demolition and asbestos abatement work, including CEQA/environmental approvals. Plaintiff also ...

Excerpt: ...e knowledge or notice of the facts as to which Plaintiffs assert delayed discovery. Tolu's demurrer to the Second Amended Complaint on the basis of statute of limitations is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs shall file and serve their Third Amended Complaint on or before December 26, 2022. There is a relaxed duty of inquiry applicable to fiduciary relationships, though “the general rules relating to pleading and proof of facts excusing ...

Excerpt: ..., filed 10‐18‐21, is DENIED. C.C.P. 483.010 et seq. The Attachment Law requires strict construction; unless specifically provided for by the Attachment Law, no attachment procedure may be ordered by the court. Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106. As the moving party, Plaintiffs have the burden of proving a proper basis for Attachment. C.C.P. 484.090. Plaintiffs assert claims for money had and re...