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: ...ed causes of action arises from (i.e., is based on) protected activity. City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79. If defendant meets this initial burden, the burden shifts to the plaintiff(s) to demonstrate a probability of prevailing on the claim(s). Zamos v. Stroud (2004) 32 Cal.4th 958, 965. Here, Plaintiffs' 12‐4‐20 Complaint asserts two causes of action, for defamation and intentional infliction of emotional distress (“IIED�...

Excerpt: ... Motion for Summary Adjudication is DENIED. Neither Plaintiffs' Notice of Motion nor Plaintiffs' Separate Statement of Undisputed Facts are compliant with California Rules of Court, Rule 3.1350(b) because they do not state specifically the cause of action for which summary adjudication is sought and repeat it verbatim on the separate statement. Defendants' objections numbers 1 and 3 are SUSTAINED on those grounds. Additionally, Plaintiffs have no...

Excerpt: ...ges claims for: (1) Negligent Infliction of Emotional Distress; (2) Breach of the Covenant of Quiet Enjoyment; and (3) Violation of Government Code § 815.6. The FAC is brought against Defendant, who is “a city located in San Mateo County, California.” (FAC ¶ 7.) A claim for money or damages against a local public entity requires that a claim first be presented before filing a lawsuit, subject to certain exceptions. (See Gov. Code §§ 905, ...

Excerpt: ...Defendants are barred by the doctrine of res judicata. The asserted claims arise from the same conduct alleged in Plaintiff's complaint against Defendants in Yichao Chen v. Patricia Lileggi, et al, Supreme Court of the State of New York, County of New York, Index No. 655664/2017 (“New York Civil Case”). See RJN, Ex. E. Defendants' summary judgment motion was granted in the New York Civil Case and the case was dismissed. RJN, Ex. F. Thus, Plai...

Excerpt: ...election clause such as the one at issue here is generally given effect unless enforcement would be unreasonable or unfair, and the party opposing enforcement of the clause ordinarily bears the burden of proving why it should not be enforced.” (Handoush v. Lease Finance Group (2019) 41 Cal.App.5th 729, 734 (Handoush).) “The burden, however, is reversed when the claims at issue are based on unwaivable rights created by California statutes. In ...

Excerpt: ...s Industry, Inc. (Siemens) and Liberty Mutual Ins. Co. (Liberty Mutual) are ORDERED to conduct a mediation pursuant to their subcontract with McCarthy under the terms set forth below. Pending the completion of the mediation, the crossactions involving Siemens, Liberty Mutual, and McCarthy are STAYED. Siemens' Subcontract with McCarthy requires that Siemens and McCarthy mediate any dispute arising from the Subcontract “before any legal proceedin...

Excerpt: ...ts discretion not to rule on Plaintiff U.S. Bank National Association's (Plaintiff or US Bank) objections to Defendants' evidence, because none of the disputed evidence affects the Court's ruling on the motion. (Code of Civ. Proc. Sect. 437c, subd. (q) [court need rule only on objections deemed material to court's disposition of motion].) Plaintiff's Request for Judicial Notice is GRANTED as to all attached exhibits. B. Defendants' Motion for Sum...

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: ...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: ...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: ... “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: ...lows: Demurrer to the First Cause of Action for Premises Liability and Second Cause of Action for Negligence is OVERRULED. Defendant demurs to these claims based on failure to state facts sufficient to support these claims. Defendant assert that the facts pled are insufficient to support that Defendant owed Plaintiffs a duty of care. After reviewing the cases cited by the parties and the facts alleged in the Complaint though, the Court finds that...

Excerpt: ... Further, the Demurrer provides no argument that the first or second cause of action is uncertain. B. Demurrer to Third Cause of Action Defendant's demurrer to the third cause of action (fraudulent inducement) is sustained with leave to amend. 1. 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.” (Jimenez v...

Excerpt: ...ased solely on allegations that Realogy “is the controlling company for” Cornerstone (Compl., ¶ 3) and that Defendants were the “alter egos of their co‐defendants” and “were joint venturers with, or co‐partners with, . . . their co‐defendants” (id., ¶ 11), Plaintiff contends that he has sufficiently pled the first cause of action for negligence and the third cause of action for tort of another against Realogy (see Pl. Opp., at...

Excerpt: ...AINED IN PART WITH LEAVE TO AMEND. As a threshold matter, the Court exercises its discretion to consider the Demurrer even though Defendant filed it more than a year after being served with the Summons and Complaint. Plaintiff has not opposed the Demurrer, and therefore has not demonstrated that it will be prejudiced. (Jackson v. Doe (2011) 192 Cal. App. 4th 742, 750.) Defendant's Demurrer to the Sixth, Seventh, and Eighth Causes of Action based ...

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: ...by Defendant Clark Pest Control Services, Inc. (CPCS) in 2016. Plaintiff alleges that, following a company event at a San Mateo County golf course on January 20, 2018, her supervisor, Chris Burkett, “made a racist comment to Plaintiff” using a racial slur. Complaint, ¶ 8. Plaintiff complained to her employer about the comment. Defendant conducted an investigation and found Plaintiff's claim unsubstantiated. Id., ¶ 9. Upon learning the resul...

Excerpt: ... California, Inc., Aetna Health Management, Inc. and Aetna Life Insurance Company (collectively, Aetna) is CONTINUED to March 18, 2021 at 2:00 p.m. in Department 22. Defendants have lodged Exhibit Nos. 1‐7 under seal pursuant to California Rules of Court (CRC), Rule 2.254(c). (See Notice of Lodging filed September 24, 2020.) Rule 2.254(c) states that “[e]xcept as provided in rules 2.250‐ 2.259 and 2.500‐2.506, an electronically filed docu...

Excerpt: ...ity cause of action, but DENIED as to the remaining claims. Id. As to Conco, Plaintiffs allege claims for negligence, premises liability, and loss of consortium. 9‐ 26‐19 Complaint. The parties appear to agree that the loss of consortium claim is predicated upon and dependent on the negligence and premises liability claims. Having reviewed the parties' briefing and supporting evidence, the Court concludes that triable issues of fact preclude ...

Excerpt: ...mpt from disclosure under Gov. Code § 6254(k), part of the California Public Records Act (CPRA), which provides that the Act does not require disclosure of “Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” In Citizens Oversight, Inc. v. Vu (2019) 35 Cal.App.5th 612, 618– 620, the Fourth District Court of Appeal...

Excerpt: ...t, the parties are to contest the tentative and appear at the hearing to explain. Defendants' demurrer is SUSTAINED with leave to amend. In this case, six plaintiffs sue Defendant for violation of Business & Professions Code § 17529.5(a)(1),(2). None of the emails are attached to the SAC. The Court further notes that while the SAC identifies the number of emails each Plaintiff received, there is no further information about the specific emails t...

Excerpt: ...on with Defendant Waterville, Inc. (“Waterville”). The parties dispute whether Defendant had authority to administer the arbitration. As a threshold matter, the Court has authority to determine issues of arbitrability. Courts defer “questions of arbitrability” to the arbitrator only where the parties have “clearly and unmistakably” agreed that the arbitrator decide those issues. Rent‐A‐Center, West, Inc. v. Jackson (2010) 561 US 6...

Excerpt: ...ies the tentative issued on February 18 as follows: The motion is GRANTED and the notice is approved. The remainder of the tentative is adopted. The Court declines Plaintiff's counsel's request for attorneys' fees of 38% In exercising its discretion after reviewing the record and weighing the factors, the Court continues to believe that one‐third is an appropriate per centage. TENTATIVE OF FEBRUARY 18, 2021 Plaintiffs' motion for approval of a ...

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: ...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: ...ervention (FAC) is DENIED. Motions to strike are generally regarded with disfavor.1 (See Real v. Johnson & Johnson Consumer Companies, Inc. (C.D. Cal., Feb. 8, 2016) 2016 WL 3220811, *2). Use of a motion to strike should be “cautious and sparing” to avoid a “procedural ‘line item veto.' ” (PH II, Inc. v. Superior Court (Ibershof) (1995) 33 Cal.App.4th 1680, 1683.) A motion to strike may seek to strike any “irrelevant, false or imprope...

Excerpt: ...t Equinox Equinox's motion for summary adjudication of Plaintiff Robert Pierre Alexander's first through fourth causes of action is DENIED. Equinox's motion for summary adjudication of Plaintiff's claim for punitive damages is GRANTED. 1. Plaintiff's first cause of action for retaliation in violation of Labor Code sections 1102.5, 6310, and 6311 Equinox contends that summary adjudication of Plaintiff's first cause of action for retaliation in vio...

Excerpt: ...ssity and the reasons for the discovery; (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or r...

Excerpt: ...aintiffs J.B.B. et. al. (see 2‐10‐21 Opposition brief) pursuant to Code Civ. Proc. Sect. 128.5(g) is also DENIED. This Court, after reviewing the record and weighing the factors, exercises its discretion and denies both requests for sanctions. J.B.B. et. al. argues Defendants Fair et. al. should be sanctioned for Mr. Fair making false statements in his 12‐3‐20 declaration. J.B.B.'s request for sanctions is based on two sentences in Paragr...

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: ...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: ...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: ...SAN MATEO INSURANCE COMMISSIONER OF THE STATE OF CALIFORNIA, Applicant, v. CALIFORNIA INSURANCE COMPANY, a California corporation, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 19‐CIV‐06531 Assigned For All Purposes to Hon. Danny Y. Chou ORDER DENYING RESPONDENT'S SPECIAL ANTI‐SLAPP MOTION TO STRIKE On November 4, 2019, this Court appointed Applicant the Insurance Commissioner of California (Commissioner) the Conservator of Respondent C...

Excerpt: ...in November 2020, the LLC's counsel substituted out of the case, leaving the LLC without counsel. Plaintiffs then filed this motion, seeking to strike the LLC's previously filed answer, on the groundsthat an LLC, like a corporation, cannot represent itself in litigation. (See, generally, Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal. 3d 724, 727.) Although Plaintiffs are correct that the LLC cannot represent itself in this action...

Excerpt: ...ances,” however, a plaintiff may sue under fictitious names, such as “Jane Doe.” (See Doe v. Lincoln Unified Sch. Dist. (2010) 188 Cal.App.4th 758, 766‐67.) The Court finds that the circumstances of this action are sufficiently exceptional to justify allowing Petitioner to proceed under a fictitious name. In this action Petitioner seeks a ruling that the evidence did not support a finding that Petitioner engaged in child abuse. Although P...

Excerpt: ...st instruments”. It is Defendant's contention that the oral examination can be conducted remotely, but that some of the psychological tests cannot be conducted remotely. The Amended Notice lists a multitude of potential tests, and that the doctor “will use her judgment to administer any, all or none of the following test”. No specific evidence has been presented as to which specific tests the doctor has a good faith belief will actually nee...

Excerpt: ...d failed to serve this motion on RJ Leonard Painting, a pro per defendant who failed to serve any party with its answer. Per the Court's order, on February 17, 2021, A&B notified all parties of the continuance and served the motion on RJ Leonard Painting. “[O]nly when the good faith nature of a settlement is disputed it is incumbent upon the trial court to consider and weigh the Tech‐ Bilt factors … when no one objects, the barebones motion...

Excerpt: ...ple v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51. Judge Fineman also represented the County of San Mateo in In re Natural Gas Antitrust Cases (Price Indexing), San Diego County, Nos. JCCP4221, JCCP4224, JCCP4226, and JCCP4228. See Regents of University of California v. Superior Court (2008) 165 Cal.App.4th 672. Judge Fineman represented the County of San Mateo in other cases; she does not have the full names or case numbers for those ...

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: ... confusion, the Court will refer to Equinix Services, Inc. as “PHI,” even though PHI is the company's prior name. The legal basis for the Court's exercise of personal jurisdiction over a Defendant is set forth in detail in the parties' moving and opposing papers, and will not be repeated at length here. Procedurally, when a non‐resident Defendant challenges personal jurisdiction, the burden is on the plaintiff to first demonstrate, by a pre...

Excerpt: ...led to comply with the terms of the parties' Settlement Agreement by failing to make payments due thereunder. The Agreement provided that Defendant was to make payments to Plaintiff's counsel's law firm. Mahfouz Decl., Ex. A. ¶ 6. Plaintiff's counsel's declaration states that no payments have been made. Mahfouz Decl., ¶ 9. As a result, Plaintiff has established Defendant is in default under the parties' Agreement. The terms of the Settlement Ag...

Excerpt: ...f Act precludes a court from finding a tenant guilty of unlawful detainer before July 1, 2021, absent certain exceptions. (See C.C.P. § 1179.03.5.) The Complaint does not allege that any of the exceptions under C.C.P. § 1179.03.5 apply to this unlawful detainer action. As a result, Plaintiff has failed to allege facts sufficient to support a cause of action for unlawful detainer. Leave to amend is not granted. Although leave to amend is routine...

Excerpt: ...ubdivision (b)(1). (Id., ¶ 8.) Plaintiff served Defendant with a 3‐day notice to quit that expired on December 7, 2020. (Compl., ex. 2.) The notice alleges that Defendant repeatedly harassed and disturbed neighbors, including Plaintiff's daughter, and states, in pertinent part, that: “This harassing and disturbing behavior, besides being a violation of your written rental agreement's rules and regulations, constitutes the maintenance of a nu...

Excerpt: ... AMEND, and SUSTAINED IN PART WITHOUT LEAVE TO AMEND. 1. Plaintiff's Causes of Action Against Apttus a. First Cause of Action for Breach of Contract The demurrer to Plaintiff's first cause of action for breach of contract against Apttus is OVERRULED. A demurrer to only a portion of a cause of action is “procedurally improper.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) Apttus only argues that the conversion of Plaintiff...

Excerpt: ...IN AND FOR THE COUNTY OF SAN MATEO JEFFREY SANTELLICES; Plaintiff, v. APTTUS CORPORATION; PROJECT EVEREST PARENT, LLC; PARENT EVEREST HOLDINGS, LLC; and DOES 1 through 25, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 19‐CIV‐00821 Assigned For All Purposes to Hon. Danny Y. Chou ORDER DENYING DEFENDANTS' MOTION TO DISMISS FOR FORUM NON CONVENIENS Defendants Apttus Corporation (Apttus), Project Everest Parent, LLC, and Parent Everest Holdin...

Excerpt: ...n August 29, 2017, causing injury. Defendant contends the statute of limitations for any cause of action against Ms. Person has run, as Plaintiff did not name Ms. Person as a Defendant within two years of the date of injury, and the amendment does not relate back to the original filing because Plaintiff was not genuinely ignorant of Ms. Person's identity. As noted by Defendant, Plaintiff spoke with Ms. Person and took pictures of Ms. Person's dri...

Excerpt: ...ULED. Defendant's objection to evidence are OVERRULED. Plaintiffs' counsel, three different firms, seek their attorneys' fees of $304,274.25, which amount includes a .5 multiplier pursuant to the Song‐Beverly Act, Civil Code § 1794(d). The case settled for $170,000 after Defendant's failed to repair the car that Plaintiffs had purchased for $33,000. Plaintiffs have submitted declarations from counsel, verified billing statements, a National Co...

Excerpt: ...e Court finds that the same result is obtained under both California and Delaware law. Accordingly, the Court does not engage in a conflict of law analysis. The Court notes though that even if substantive Delaware law applies, California procedural law, including whether the pleadings are sufficient, are determined under California law. 3 Witkin, Cal. Proc. 5th Actions § 46 (2020) citing Restatement 2d, Conflict of Laws §§ 127, 128. Failure to...

Excerpt: ...ants) is GRANTED IN PART and DENIED IN PART. “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will pr...

Excerpt: ... party to judgment on the cause of action. (Code Civ. Proc., sect. 437c, subd. (p)(1).) Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue on one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) The defendant shall not rely upon the allegations or denials of its pleadings to show a triable issue; defendant must set forth the specific facts showing that a tri...

Excerpt: ...plained below, entry of judgment finding Defendant Raymond Wilson guilty of unlawful detainer in this action is currently barred by the COVID‐19 Tenant Relief Act of 2020 (Tenant Relief Act). Plaintiff filed this unlawful detainer action on January 31, 2020. (Compl. for Unlawful Detainer, filed 1/31/20.) In the Complaint, Plaintiff alleged, among other things, that: (1) Defendant agreed to pay Plaintiff $2,325.00 per month as rental for certain...

Excerpt: ...or Fraudulent Concealment, the Second Cause of Action for Fraudulent Misrepresentation, and Third Cause of Action for Fraudulent Inducement (collectively fraud claims) is SUSTAINED WITH LEAVE TO AMEND Defendants' demurrer to the fraud claims is sustained with leave to amend because they are not pled with sufficient particularity and because Plaintiffs failed to plead a duty to disclose on the part of Defendants. Fraud claims must be pled with suf...

Excerpt: ...er, the Court construes the complaint's allegations liberally with a view to attaining substantial justice among the parties. Code of Civil Procedure section 452. All material facts are treated as true. Apple v. Superior Court (2017) 18 Cal.App.5th 222, 240. The Demurrer to the First Cause of Action for Fraud is OVERRULED. Defendants challenge the specificity of the allegations, that there are no actionable allegations, and no damages pled. The C...

Excerpt: ...c. (“Sedgwick”) and Plaintiff‐in‐Intervention Guadalupe Campillo‐Cortes (“Campillo”) are DENIED. Sedgwick's request for joinder is GRANTED. A. The Peculiar Risk Doctrine Applies Only to Hazardous Activities Under the peculiar risk doctrine, a property owner who hires an independent contractor to do “inherently dangerous work” can be held directly liable for damages when that independent contractor causes injury to others by negl...

Excerpt: ...plaint. (See California Arbitration Act (“CAA”), codified in the Code Civ. Proc. Sect. 1281, et seq., and the Federal Arbitration Act (“FAA”), 9 United States Code Sect. 1, et seq.) Plaintiff argues that the arbitration agreement is void because he did not sign an arbitration agreement. (Opp. at 3:9‐15.) The arbitration agreement provided by Defendant, which reflects Plaintiff's signatures, is authenticated by Fatima Parayno, Defendant'...

Excerpt: ...ance with CCP § 2030.300(c). The parties' disagreement centers around the question of whether Plaintiff's responses to Defendant's special interrogatories, served on August 10, 2020, were properly verified with Plaintiff's electronic signature. According to Plaintiff's declaration, he completed his review of the discovery responses on August 10 and directed his attorney to electronically sign Plaintiff's name on the verifications. Makada Decl., ...

Excerpt: ...rd Motor Company does not challenge Plaintiffs' right to costs, but in this motion challenges certain of those costs. Defendant has made ruling on this motion more difficult because of its failure to comply with California Rule of Court 3.1700(b)(2). Thus this Court's ruling does not correspond to the line item on the Cost Memorandum. After viewing the totality of the record and weighing all the factors, this Court exercises its discretion and ru...

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: ...fendant Agrawal, whereby Agrawal would take over Plaintiff's lease with EJC (FAC, ¶¶ 13‐15); JLL knew of this contract prior to charging Plaintiff with an improperly calculated Additional Rent (Id., ¶¶ 21‐22); JLL charged Plaintiff an incorrect amount for Additional Rent and failed to correct it, despite Plaintiff informing JLL that curing the Additional Rent issue was “paramount” to it being able to complete the sale of its business ...

Excerpt: ...ency Regulation, through August 31, 2020, unless further extended by the County before that date (“Termination Date”), no Landlord shall endeavor to evict a tenant . . . for a no‐fault termination of tenancy as defined herein unless necessary for the health and safety of the Tenant, other residents of the building at which the Tenant resides, the Landlord, or the Landlord's Family. Endeavors to evict that are prohibited by this Emergency Re...

Excerpt: ...ndants' conversion/theft of Plaintiffs' corporate assets (i.e., Defendants' alleged theft of funds from Plaintiffs' corporate bank accounts). Defendants contend the dispute centers on Plaintiffs' violation of labor and employment laws (i.e., alleged failure to pay its Californiabased employees' wages). In 2018, shortly after filing the Complaint in this case, Plaintiffs filed their first application for a writ of attachment, seeking to attach pro...

Excerpt: ...lace of business in Los Angeles, (2) the parties' Subcontract was to be performed in Los Angeles County, and (3) Joel Parker executed the parties' Subcontract and Personal Guarantee in Los Angeles. (MPA, p.1.) Plaintiff contends that venue is proper in San Mateo County pursuant to the following provision in the parties' Subcontract: “SUBCONTRACTOR agrees that this Agreement is to be executed in San Mateo County, California and that venue for an...

Excerpt: ...r hearing,” “that the plaintiff resides out of the state . . . and that there is a reasonable possibility that the moving defendant will obtain judgment in the action . . . .” Here, Plaintiff concedes that he resides out‐of‐state. (Compl., ¶ 7.) Plaintiff's ownership of real property and bank accounts does not fulfill the “reside” requirement of Code of Civil Procedure section 1030. There is also a reasonable possibility of Defenda...

Excerpt: ...ust (Plaintiffs) unopposed Motion for Judgment Pursuant to Stipulation and Order, is GRANTED IN PART and DENIED IN PART. (Code Civ. Proc. Sec. 664.6; see also Stip. & Order filed 11‐ 19‐20.) Plaintiffs' motion for entry of judgment for possession is GRANTED. Because Defendant is not a “tenant” as defined by the COVID‐19 Tenant Relief Act of 2020 (Tenant Relief Act) (Code Civ. Proc., § 1179.02, subd. (h)) and because this action does no...

Excerpt: ...endant's Demurrer to the First Cause of Action for Breach of Contract is SUSTAINED WITH LEAVE TO AMEND. The elements of a claim for breach of contract are: (1) existence of the contract, (2) plaintiff's performance or excuse for nonperformance of the contract, (3) defendant's breach, and (4) plaintiff's damages as a result of the breach. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) If the action is based on a writt...

Excerpt: ...intiff does not allege the existence of any contract between Plaintiff and Hollyvale. Plaintiff has only alleged a contractual relationship with the parties to the loan and the deed of trust. Hollyvale, however, is not a party to either of those contacts. Plaintiff argues that Hollyvale is a necessary party because the Complaint seeks equitable relief that would require Hollyvale to reconvey the property to Plaintiff. But the fact that Plaintiff ...

Excerpt: ...s contained within the documents. Defendant/Cross‐Complainant Cullens' Motion to Enforce Settlement is GRANTED. Plaintiff/Cross‐Defendant Jeromes' Motion to Enforce Settlement is DENIED. Defendant/Cross‐Complainant Cullens' request for attorney's fees is DENIED. The Court has jurisdiction to enforce the Settlement Agreement pursuant to Cal. Code of Civ. Proc. § 664.6, item 7 of the Settlement Agreement, and the March 5, 2020 Order Retainin...

Excerpt: ...or Summary Judgment or in the alternative, Summary Adjudication, is ruled on as follows: (1) As a threshold matter, Defendants' Notice of Motion indicate that this Motion is brought to the First, Second, Third, Fifth, Sixth and Seventh Causes of Action (“COA”) based on Plaintiff's failure to produce admissible evidence in support of these COA. (See Defendants' Notice of Motion, Issues 1‐3, and 5‐7.) A defendant moving for summary judgment...

Excerpt: ...so primarily in the interests of judicial economy and efficiency, minimization of expense, and avoidance of potentially inconsistent rulings. Having reviewed the parties' briefing, given the still ongoing Delaware court proceeding, the Court finds that the rationale and policy concerns underlying the 3‐2‐20 stay Order still apply, and thus declines to lift the stay at this time. Plaintiffs Blum et. al. argue the Delaware lawsuit is “essenti...

Excerpt: ...s well as a code‐compliant separate statement of material facts. Plaintiff appears not to have filed any evidence in support of the opposition, in violation of CRC 3.1350(3). The clerk's office has confirmed that it is not in receipt of any of Plaintiff's evidence. Further, the Court notes that Plaintiff's separate statement is 515 pages. The separate statement sets forth pages of narrative in response to each of Defendant's undisputed facts an...

Excerpt: ...§ 437c. The parties agree that Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny apply to the facts, but disagree as to the result. In general terms, the California Supreme Court's decision in Privette limits the liability of the hirer of an independent contractor for on‐the‐job injuries sustained by the independent contractor's employees. Id. As the Supreme Court explained in subsequent case law, however, the Privette doctrine...

Excerpt: ...tively, Summary Adjudication, to the Complaint of Plaintiffs Sherlene and Lawrence Wong is ruled on as follows: Stillwater has brought this motion for summary judgment on two grounds: (1) that there was no direct physical loss to property as described in Coverage C of the policy; and (2) any loss was not covered by one of the sixteen perils covered under the policy. Defendants then claim that the other causes of action fail because they depend on...

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: ...ch the demurrer was sustained. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [holding that plaintiff may not amend complaint to add a new cause of action without having obtained permission from the court to do so].) Here, Plaintiff's Second Amended Complaint (SAC) alleges several new causes of action and a new defendant that were not included in his First Amended Complaint (FAC). Specifically, Plaintiff alleges new cause...

Excerpt: ...3, plus late fees and loan costs of $1,432.81. Plaintiff's Motion for Summary Judgment is DENIED. Plaintiff contends that it is entitled to summary judgment or, in the alternative, summary adjudication on its breach of contract claims. As explained below, Plaintiff is entitled to summary adjudication on its breach of contract claims but not summary judgment. The essential elements of a claim for breach of contract, whether express or implied, are...

Excerpt: ...Act (CLRA) is SUSTAINED WITHOUT LEAVE TO AMEND. Defendant's demurrer to the seventh cause of action for violation of the Unfair Competition Law (UCL) and eighth cause of action for violation of the False Advertising Law (FAL) are SUSTAINED WITH LEAVE TO AMEND. Sixth Cause of Action for Violation of the CLRA In sustaining the demurrer to the cause of action for violation of the CLRA in the FAC, the Court found that “Plaintiff has not alleged com...

Excerpt: ... other responsive pleading on or before five days after service upon him of the notice of entry of the order denying the motion to quash. In unlawful detainer actions, the filing of a motion to quash “extends the defendant's time to plead until five days after service upon him of the written notice of entry of an order denying his motion[.]” C.C.P. § 1167.4(b). Defendant filed a motion to quash on March 4, 2020. The Court denied the motion t...

Excerpt: ...2 Cal.App.4th 1234); Weil & Brown, Civil Procedure Before Trial ¶6:94‐¶6:96. Plaintiffs appearing pro per drafted and filed their Complaint on December 21, 2018, alleging claims for negligence and personal injuries arising from a vehicle collision on January 2, 2017. In the caption, Plaintiff identified “AAA Insurance (American Automobile Association)” as Defendant. Throughout the body of the Complaint, Plaintiffs addressed their negligen...

Excerpt: ...e answer. Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1379. “The grounds for a motion for judgment on the pleadings must appear from the face of the complaint or from a matter of which the court may take judicial notice.” RichardsonTunnell v. Schools Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061 (disapproved on other grounds by Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798). Here, Plaintiff...

Excerpt: ...t notes that he threw the papers away without looking at them and asserts that “[t]his is not outside the realm of normal behavior for a small business owner who is inundated with paperwork and has limited time to response to administrative issues.” (Id., at p.6.) Defendant bears the burden of showing that he is entitled to relief pursuant to Code of Civil Procedure section 473, subdivision (b). In the absence of an attorney affidavit of faul...

Excerpt: ... to Defendants' Merger Agreement. Further, the only portion of the Agreement that is relevant to Defendants' demurrer is a brief passage on page 22 of the Merger Agreement; the remainder of the Agreement's contents are not relevant to the demurrer for which Defendants cite the Agreement. For these reasons, the Court finds that (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding inter...

Excerpt: ...(See Code of Civ. Proc. § 395.5.) “In tort, ‘liability arises where the injury occurs….'” (Mission Imports, Inc. v. Sup.Ct. (Monterey Bay Co., Inc.) (1982) 31 Cal.3d 921, 929.) Injury refers to a wrongful invasion of rights. (Black Diamond Asphalt, Inc. v. Sup. Ct. (2003) 109 Cal.App.4th 166, 172.) The burden is on Defendant to overcome the presumption that the venue selected by Plaintiffs Yolanda S. Recania and Vernon Recania (“Plaint...

Excerpt: ...oc. § 430.10(e). On 9‐11‐20, the Court granted Defendants' Motion for Judgment on the Pleadings (MJOP) with leave to amend, directed to the original Complaint's asserted causes of action for (1) actual fraudulent transfer, (2) constructive fraudulent transfer, (3) common law fraudulent transfer, (4) declaratory relief, and (5) accounting. Plaintiff thereafter filed the FAC, reasserting the same first four causes of action, but dropping the a...

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 ...

Excerpt: ... Concealment, Breach of Fiduciary Duty, Negligence, and Civil Conspiracy.  This case involves a number of related corporate entities in both China and California, and alleges fraud and theft of corporate assets. As alleged, Plaintiff China New Era Group Corporation (CNEGC), based in Beijing, was engaged in various business ventures world‐wide, and in 2015, CNEGC entered into agreements with third parties to pursue a real estate development p...

Excerpt: ... wrongful eviction, and other related claims, arising out of an oral subletting of garage unit in East Palo Alto that allegedly was un‐permitted and unlawfully converted to a small rental unit. The Causes of Action asserted are: 1. Tenant Relocation Assistance, Violation of CA Health & Safety Code §§ 17975‐17975.2 2. Tenant Relocation Assistance, Violation of East Palo Alto Municipal Code §§ 14.02.130, 14.02.150, 14.06.080 3. Tenant Haras...

Excerpt: ...e negligence action on a Judicial Council Form Complaint, and appears to arise out of a dispute over Defendants' August 22, 2020 refusal to provide security tape footage to Plaintiff of an altercation Plaintiff had with a third party outside Defendants' hotel property. Defendants here demur to the Complaint as uncertain and failing to state facts sufficient to constitute a cause of action.  In his confusing pleadings, Plaintiff seems to claim ...

Excerpt: ...he Court. Defendant Daniel Brian Schatt's unopposed Demurrer to Plaintiff James Alexander's First Amended Complaint, filed October 15, 2020, (“FAC”) is SUSTAINED WITH LEAVE TO AMEND for the following reasons: The demurrer to the first cause of action for declaratory relief is SUSTAINED WITH LEAVE TO AMEND. This claim is predicated on Plaintiff's other causes of action. Because the FAC fails to state facts sufficient to constitute a cause of a...

Excerpt: .... Plaintiff's opposition is long on argument, but does not indicate what specific allegations in the SAC describe extrinsic fraud, and the Court has not located any. The allegations of wrongdoing describe, at most, intrinsic fraud. It is Plaintiff's burden to offer a showing that he can amend his pleading to state a cause of action. Plaintiff's Opposition makes no showing of possible amendment. The motion is DENIED as to the third through sixth c...

Excerpt: ... Fraudulent Transfer based on failure to allege facts sufficient to support this claim against it. Defendant asserts that the allegations show it was not a transferor or transferee of any alleged fraudulent transfer, and therefore cannot be liable for conspiracy to commit fraudulent transfer. Defendant argues that the controlling authority here is Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503 (“Applied Equipment”). ...

Excerpt: ...ion for breach of contract, the motion is DENIED. As with a demurrer, a motion for judgment on the pleadings “does not lie to a part of a cause of action.” Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163. Here, Plaintiff's Second Cause of Action alleges multiple breaches of the 2017 Operating Agreement, not all of which appear to hinge on the parties' dispute regarding LLC ownership percentages. Complaint, ¶¶82‐92. The Second Cau...

Excerpt: ...,000 in American Express Company. Plaintiff American Express National Bank's unopposed “Motion for Order Vacating Dismissal and Entering Judgment against Defendant,” filed 10‐2‐ 20, is GRANTED. Code Civ. Proc. § 664.6. Per the parties' “Stipulation for Conditional Entry of Judgment” filed 10‐22‐18 (signed 10‐19‐ 18), the parties settled their dispute and Defendants agreed to make a series of payments to Plaintiff per a paymen...