Excerpt: ...ed by petitioner, (2) grounds exist to rescind the arbitration agreement, or (3) one of the parties is also party to a pending court action with a third party. (Code of Civ. Proc. § 1281.2.) The parties do not dispute the existence of the arbitration provision. The only issue is whether Defendant LALLY waived his right to arbitration. Contractual arbitration rights are subject to waiver, and waiver may be expressed or implied from the parties' c...

Excerpt: ... of the LWDA Notice submitted on July 9, 2020. (See Eubank v. Terminix Int'l, Inc. (S.D. Cal., May 15, 2018, No. 15‐CV‐0145‐WQH‐ JMA) 2018 WL 2215288, at *4 ‐ *5 (“The Court concludes that the terms of the Settlement are not ‘reasonable in light of PAGA's policies and purposes' because the Settlement releases claims for violations of § 2802 and Eubank has not been authorized to commence a PAGA action for violations of § 2802” wh...

Excerpt: ...'s Demurrer to Cross‐Complainants McNally and Lombardi's 6‐3‐21 Second Amended CrossComplaint (SAXC) is SUSTAINED WITH LEAVE TO AMEND. Code Civ. Proc. Sect. 431.10(e). A party alleging fraud by intentional misrepresentation must show that the accused party's misrepresentation of fact was a “substantial factor” in causing the asserting party's alleged harm/damage. See CACI 1900. A claim for negligent misrepresentation requires the same s...

Excerpt: ...th below. Interrogatories Nos. 5 & 6 Plaintiff's Interrogatories Nos. 5 and 6 ask GM to identify individuals who communicated with any of GM's authorized dealerships concerning Plaintiff or Plaintiff's vehicle. GM responds that it is not currently aware of any communications between any GM‐authorized dealer and GM relating to Plaintiff or Plaintiff's vehicle prior to this lawsuit being filed. GM also states that it referred Plaintiff to the doc...

Excerpt: ...to all four causes of action in the Complaint based on failure to state facts sufficient to support them. On its own motion, the Court takes judicial notice of the Complaint in this action. (See Evid. Code § 455.) The Complaint attaches both Geico's umbrella policy (“policy”) and the Complaint in the underlying action in Gina Lerona v. Lillian Christian, et al., San Mateo Superior Court Case no. 19CIV06066 (hereafter “underlying action”)...

Excerpt: ... argument lacks merit, both because Defendant filed no evidence supporting this argument, and because he admits he resides in California. The motion also appears to challenge subject matter jurisdiction and service of the Complaint. These arguments were not properly noticed. Defendant also offers no evidence or authority indicating the Court lacks subject matter jurisdiction, or that the Complaint was improperly served. While Defendant's moving p...

Excerpt: ... W.R.C., a minor individual, by and through, guardian ad litem, Sonia Marisol Cruz, is ruled on as set forth below. The Court has considered, in full, Plaintiff's opposition brief, even though it exceeds fifteen pages and was untimely. California Rule of Court 3.1113(d),(g). Defendants have had an opportunity to respond to Plaintiff's opposition papers. Defendants' Request for Judicial Notice is GRANTED. See Munoz v. State of California (1995) 33...

Excerpt: ...follows: (1) The Demurrer to the First Cause of Action for Tenant Relocation Assistance, Violation of Cal. Health and Safety Code 17975‐17975.2, is SUSTAINED WITHOUT LEAVE TO AMEND based on failure to allege facts sufficient to support this claim. Defendants demur on the ground that Plaintiff lacks standing to bring this claim because the allegations do not support that Plaintiff and Defendants had a landlord‐tenant relationship. In order to ...

Excerpt: ...efer to Equinix Services, Inc. as “PHI,” even though PHI or “Packet” is the company's prior name. PHI's motion to strike each of the SAC's causes of action asserted against PHI is DENIED. PHI merely references its arguments made in its concurrently‐filed Demurrer to the SAC, arguing that for the same reasons stated in the Demurrer, the Court should strike each cause of action asserted against PHI. PHI's argument that the SAC's claims ar...

Excerpt: ...nt's demurrer to the "entire SAC" on the ground of uncertainty is overruled. Defendant fails to provide any arguments as to why the first, second and third are uncertain. C. Defendant's demurrer to the third cause of action is sustained without leave to amend. The economic loss rule bars Plaintiff's claim. The economic loss rule allows a plaintiff to recover in tort when a product defect causes damage to "property other than the product itself." ...

Excerpt: ... as “PHI,” even though PHI, or “Packet,” is the company's prior name. As to the Third Cause of Action alleging breach of contract, the Demurrer is OVERRULED. Code Civ. Proc. Sect. 430.10(e). The SAC alleges PHI breached the “PHI Agreements” (9‐10‐19 Employment Agreement; Stock Option Grant Agreement; Packet Equity Incentive Plan) by failing to accelerate and immediately vest all of Plaintiff's PHI stock options when PHI constructi...

Excerpt: ...” is interpreted broadly to favor an award of attorney's fees to a partially successful defendant. Where a defendant obtains some benefits of a partially successful SLAPP motion, the defendant's fee recovery is normally reduced proportionately, but not denied entirely. Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1017. However, a fee award is not required when...

Excerpt: ...intiff Serra Falk Goldman to Further Respond to Its Special Interrogatories, Form Interrogatories, and Requests for Production of Documents,” filed 1‐29‐21, is GRANTED‐IN‐PART and DENIED‐IN‐PART, as set forth below. Special Interrogatory No. 13 and Request for Production, Nos. 13‐14, 18‐27, 31, 33, 35, or 38. The parties dispute whether Commissioner Halperin authorized this motion to compel. As to these requests, after reviewing...

Excerpt: ...mission (RFAs) admitted, and the Court's 3‐12‐21 Minute Order granting the motion to deem RFAs admitted. The Complaint here seeks subrogation for Worker's Compensation benefits allegedly paid to Plaintiff's employee, who was injured in an automobile collision, allegedly caused by Defendant's negligence. See 3‐6‐19 Complaint. On 3‐12‐21, the Court granted Defendant's unopposed motion to deem RFAs admitted, resulting in judicial admissi...

Excerpt: ...mended Complaint (“FAC”) for failure to state a cause of action is OVERRULED. The FAC alleges that on August 22, 2018, Plaintiff was visiting friends, one of which was a paying tenant at the hotel, when he was intentionally struck by the car of Doe Defendants 6‐10 outside of the front entrance of a Holiday Inn Express. Defendant Radha Patel dba Holiday Inn Express is “engaged in the business of operating” the hotel, while the other Defe...

Excerpt: ...guing that the documents sought in these Requests are directly relevant to this litigation, and none of Defendant's objections have merit. Thus, where a demanding party deems that an objection to a response is without merit, the demanding party may move for an order compelling further response to the demand. (Code of Civ. Proc. § 2031.310(a)(3).) Thus, the Court treats this Motion as a Motion to Compel Further Responses to Request for Production...

Excerpt: ...uires service on an a competent member of the household, followed by a mailing to the defendant at the same address. The Proof of Service, filed September 8, 2014, shows that the summons and cross‐complaint were left with Stacey Pierce at Cross‐ defendant's residence, and the papers were mailed to Cross‐defendant at that address on August 28, 2014. Service was complete 10 days after mailing. (Code of Civ. Proc. Sect. 415.20, subd. (a).) Tha...

Excerpt: ...iled his original Petition in this matter (12‐1‐20 Petition) seeking a Writ of Mandamus that would have directed Respondent police department to issue a “Certificate of Detention” following Petitioner's arrest and release, pursuant to Pen. Code Sects. 849.5, 851.6. The original Petition was apparently rendered moot by Respondent's subsequent issuance of the requested Certificate. Petitioner thereafter filed, on 2‐25‐21, the operative ...

Excerpt: ... to Sect. 397(c), Cirrus requests a venue transfer to the Sonoma County Superior Court, which is near the subject airplane crash site, on grounds that twelve (12) non‐party witnesses (4 eye‐witnesses and 8 first responders) live in or near Sonoma County and have signed declarations stating they would be inconvenienced by having to travel about 85 miles to Redwood City to testify at trial. See Sect. 397(c) (the Court may transfer venue “when...

Excerpt: ...t prejudice for the reasons set forth below. Plaintiff seeks the appointment of a discovery referee to preside over the remaining depositions in this case, in light of the fact that Plaintiff has attempted to complete the deposition of Defendant Orhan Tolu on three separate occasions. The gravamen of the parties' dispute concerns Plaintiff's counsel's questions relating to a $50,000 check issued by Defendant Tolu, and defense counsel's invocation...

Excerpt: ...t on the basis of extrinsic mistake. Defendant filed this motion to set aside default more than six months after the default and default judgment were entered. Accordingly, relief under CCP § 473(b) is not available to Defendant. The Court, however, may set aside default on the basis of extrinsic fraud or mistake pursuant to its equitable powers. In order to obtain relief under the Court's equitable power, Defendant must demonstrate (1) a merito...

Excerpt: ...d below. Code Civ. Proc. Sect. 436. In sustaining Putnam's Demurrer to Nissan's Second Amended CrossComplaint (2ACC), the Court concluded that the 2ACC did not allege a valid liquidated damages clause. See 11‐12‐20 Order (signed 11‐9‐20). The allegations in Nissan's 3ACC largely track the allegations from the 2ACC, with some minor additions, including the following Parag. 9: “The Repayment Provision was included in the FI Agreement beca...

Excerpt: ...c.'s Third Amended Cross‐Complaint (3ACC) is OVERRULED, for the reasons stated below. Code Civ. Proc. Sect. 430.10(e). Putnam has not shown Nissan's breach of contract claim to be time‐barred on its face Putnam first argues Nissan's breach of contract claim is time‐barred under California's four‐year statute of limitations. Code Civ. Proc. Sect. 337. Putnam made this identical argument in the context of its previous demurrer to Nissan's 2...

Excerpt: ...ilar and Nicole Aguilar (“Plaintiffs”) is ruled on as follows: The Court may strike out any irrelevant, false or improper matter asserted in any pleading. (C.C.P. § 436(a).) A motion to strike may be brought where the facts alleged do not rise to the level of malice, fraud or oppression to support a punitive damages award. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) A motion to strike is widely used to ch...

Excerpt: ...iffs”) is ruled on as follows: (1) Defendant's Request for Judicial Notice is GRANTED. 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 cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or state...