Excerpt: ... limitations defect, which appears clearly and affirmatively on the face of the FAC. McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874. Plaintiff admits that he waited nineteen years to assert a claim to the Subject Property, despite his claim allegedly accruing in November 1999, and despite having had, at all times, the right to be placed on title to the Subject Property “upon his request”. (FAC ¶¶ 22‐23.) The demurre...

Excerpt: ...t to “postpone stressful, prolonged legal proceedings, until a course of treatment has been established,” (2) that she was in the process of hiring an assistant to help search documents to respond to the request for production, and (3) she was willing to participate in a deposition when medically able. In the intervening month, Defendant has not offered any evidence updating her medical status, has not responded to document requests, has not ...

Excerpt: ...T LEAVE TO AMEND. Code Civ. Proc. § 430.10(e). Plaintiff has filed four versions of the Complaint. In response to the Court's 2‐25‐19 Order sustaining Defendants' Demurrer to the Second Amended Complaint (SAC), Plaintiff filed the operative TAC, which is virtually identical to the SAC, with the exception of minor additions to ¶¶ 36‐37. These minor changes, however, do not cure the defects raised in Defendants' Demurrer to the SAC. For th...

Excerpt: ...or O'Keefe‐Mikumo Co., Inc. (OKM) and Mr. Mikumo such that the separate personality of the corporation no longer exists, and that an inequitable result would follow if the corporate separateness were recognized. Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538‐ 9. The Court finds the following facts/factors to be relevant and persuasive. First, the evidence suggests a unity of interest between OKM and Mr. Mikumo, which re...

Excerpt: ...UEN CHENG WONG TRUST. Code Civ. Proc. § 437c. On its merits, the motion is denied due to the existence of multiple triable issues: (1) whether the relationship between Plaintiffs and Defendant YASUO ITO was fiduciary in nature (UMF No. 8); (2) whether any Defendant failed to diligently pursue a Certificate of Occupancy (UMF Nos. 13, 15, 16, 17, 18, 19, 28, 34, 35); (3) whether any Defendant misrepresented the status of the project (UMF Nos. 29, ...

Excerpt: ...articular interpretation of the document. Cross‐Defendant's Demurrer to AW Distributing Inc.'s First Amended Cross‐Complaint is SUSTAINED without leave to amend as to the Third Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing, and as to the Fourth Cause of Action for Equitable Indemnity. Cross‐Defendant's Demurrer is OVERRULED as to the Second Cause of Action for Breach of Contract. Second COA Reading the pl...

Excerpt: ... burden in moving for summary judgment. (See C.C.P. § 437c(p)(1).) Plaintiff's Memorandum of Points and Authorities and Separate Statement address the open book account and account stated claims. However, the Complaint also alleges a claim for goods, wares and merchandise sold and delivered to Defendant Jeffrey Chen (“Defendant”) and for which Defendant promised to pay Plaintiff. (See Complaint, p.3, ¶ CC‐1(b)(3).) Plaintiff also appears ...

Excerpt: ...f's motion for costs, expenses and attorney fees. OVERRULED. 2. ¶7 – Speculation, Relevance, Prejudicial, Lacks Foundation, Argumentative/Conclusory The language objected to describes a Bill of Costs filed in another case. The speculation and relevance objections are not well‐taken. The language is laying foundation for the document. OVERRULED. 3. ¶9 – Argumentative, Inadmissible Opinion, Speculative, Relevance, Prejudicial The paragraph ...

Excerpt: ...” (CRC Rule 3.1320(a).) Cross‐defendant's demurrer is embedded within the Notice. It states none of the grounds set forth in Code of Civil Procedure section 430.10. Since the Notice does not identify any specific cause of action, the Court deems the demurrer to be on the ground that the entire crosscomplaint fails to state a cause of action. The supporting points and authorities, however, argue that only the first cause of action for indemnit...

Excerpt: ...r conditions or covenants alleged to have been violated.” The court disagrees. The 3‐day notice, which is attached to the complaint as “Exhibit 3,” clearly advised Defendant that he was in violation of Section 19A of the parties' lease agreement, and the notice quotes that lease provision in full. Defendant further contends that “the complaint fails to state a cause of action for unlawful detainer in that the complaint fails to allege t...

Excerpt: ... documents is GRANTED, in part, and DENIED, in part. The motion to compel Mr. Lopez's deposition is GRANTED. Defendant is ordered to appear for deposition within 14 days of this order. The motion to compel production of documents is DENIED. Plaintiff is entitled to take Mr. Lopez's deposition pursuant to CCP § 2025.010. Plaintiff noticed Mr. Lopez's deposition for April 10. Defendant asserted a general objection to the deposition notice on the g...

Excerpt: ...rtinent part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding...” The power of the courts to allow amendment of pleadings is to be liberally exercised so that cases may be decided on their merits. Desny v. Wilder (1956) 46 Cal. 2d 715, 751. Courts are bound to permit amendments to the complaint “at any stage of the proceedings, up to and including trial”, and ...

Excerpt: ...r Code Civ. Proc. § 1008. Plaintiff failed to serve timely responses to Defendant's discovery requests, and thus waived all objections. See Code Civ. Proc. §§ 2030.290(a); 2031.300(a); 2033.280(a). Plaintiff then did not oppose any of Defendant's underlying motions to compel. Plaintiff's attempted service of belated responses on 2‐1‐19 was ineffective because they were unverified and included objections, which had been waived. Appleton v. ...

Excerpt: .... As indicated in the declaration of Plaintiff's counsel, Plaintiff contends that the disclosure sought is material to the litigation because it is relevant to Officer McAlindon's credibility and to establish a “pattern of practice”: Officer McAlindon's discovery answers regarding the facts surrounding the incident differs materially from Plaintiff's version of the events in that it is claimed that [Plaintiff] was not cooperating, yet [Plaint...

Excerpt: ...re it is proven by clear and convincing evidence that a defendant is guilty of “oppression, fraud, or malice”. Punitive damages may not be pled generally, but must be pled with specificity. Brousseau v. Jarret (1977) 73 Cal.App.3d 864, 872. Both sides here cite to Taylor v. Superior Court (1979) 24 Cal.3d 890, in which punitive damages were permitted against an intoxicated driver. Taylor involved a defendant who had a history of prior arrests...

Excerpt: ...as not reasonably necessary or helpful. (The motion is not supported by any declaration.) The Motion to Tax costs for electronic filing (Item 14) is granted in the amount of $1,404.00. This Court does not require and did not order electronic filing. (Code of Civ. Proc. §1033.5, subd. (a)(14).) The Motion to Tax costs of hotels (Item 16) is granted. Counsel's explanation for staying at a hotel and for the room rates is accepted. (Decl. of Becker ...

Excerpt: ...his order. Defendant Siatuu seeks to set aside the default and default judgment pursuant to CCP § 473(d). Defendant contends that she “was never served” with the summons and that the judgment is void because, without proper service, the court had no jurisdiction to issue judgment. Defendant states in her declaration that “I believe I was never served with the Summons and Complaint in the Unlawful Detainer Matter. Nobody ever handed them to...

Excerpt: ...d cause of action for breach of contract (third party beneficiary) and Third cause of action for breach of the implied covenant of good faith and fair dealing. The Court takes judicial notice of certain party admissions made by Plaintiffs and their counsel in their prior Motion for Leave to File First Amended Complaint, specifically that Plaintiff ELITE was only recently found to be a third party beneficiary in this action following “formal and...

Excerpt: ... 2.6 (Kelly Dinger). Granted. The supplemental response shall indicate all titles and lines of work. 2.7 (Kelly Dinger). Granted. Even if Kelly Dinger did not attend high school or other American educational institutions, she must respond as to any “other academic or vocational institutions,” as stated in the interrogatory. 3.7 (Kelly Dinger, Bruce Dinger, and BKD). Denied as to Kelly Dinger, who responded fully and unambiguously, “No.” D...

Excerpt: ... allegations against Defendant JP Morgan Chase. Further, where an action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. Otworth v. S. Pac. Transportation Co., 166 Cal.App.3d 452, 459 (1985). Plaintiff has not attached or set forth the terms of any alleged agreement with Defendant JP Morgan. The ...

Excerpt: ...DENIED‐IN‐PART, as set forth below. The Ladnier‐Singal Family Trust is Revocable The parties dispute whether the Ladnier‐Singal Family Trust (Trust) is revocable, and thus subject to Probate Code § 18200 (creditors may reach its assets), or irrevocable. Based on the evidence submitted, the Court finds the Trust is revocable. See 5‐22‐19 Request for Judicial Notice, Ex. AB (Sacramento County Superior Court reaching the same conclusion...

Excerpt: ...e the general practice is to hear a motion to seal concurrently with the motion that is the subject of that request. Plaintiffs believed that the Court was indicating that no order to seal was required, when the Court was actually explaining that an ex parte order was not necessary and that the motion to seal could be calendared with the present motion to enforce settlement. There is no order permitting the sealing of documents related to this mo...

Excerpt: ...e/exemplary damages is GRANTED WITH LEAVE TO AMEND. The FAC's allegations of “malice,” “fraud,” and “oppression” are conclusory and unsupported by specific factual allegations. Further, the facts that are alleged are not specific as to each Defendant. Instead, Plaintiff groups all Defendants together, leaving each specific Defendant guessing as to which allegation(s) pertain to it. As to each Defendant, the Complaint must plead specif...

Excerpt: ...RRULED. Defendant argues the breach of contract claim fails to state a cause of action (Code Civ. Proc. § 430.10(e)) because (a) if § 8.1 is properly construed, the Complaint does not allege a breach; (b) § 8.1 is an unenforceable non‐compete provision; and (c) the liquidated damages clause is unenforceable. The Court addresses each argument in turn. First, the Court finds that the Complaint sufficiently alleges a breach of § 8.1. Defendant...

Excerpt: ...ed in bad faith or without substantial justification.” (Code of Civ. Proc. § 1987.2, subd. (a).) There is no showing that Debtor opposed the motion in bad faith or without substantial justification. Section 708.170 permits awarding sanctions or fees for this motion, but the Motion states expressly that the request is pursuant to only section 1987.2. (Moving P&A at 3:22‐25.) The request for sanctions, therefore, is denied for lack of notice. ...

Excerpt: ..., 2015 form EJ‐190 Application for and Renewal of Judgment and October 16, 2015 Amended Application for and Renewal of Judgment constituted the unauthorized practice of law to the extent that the application was made on behalf of the seventeen other judgment creditors who were included on Attachment “A” to that Application and Amended Application. Timberline Inc. v. Jaisinghani (1997) 54 CA 4th 1361, 1367; People v. Landlords Professional S...

Excerpt: ...ready been conclusively established by Defendant's default, and Plaintiff may seek a judgment against Defendant. The court notes that the requirements for issuance of a writ of possession – that a plaintiff's claim have “probable validity” and that the plaintiff obtain an undertaking – have no meaning or purpose where a pre‐trial writ of possession is sought after the defendant's default. Further, even if Defendant had submitted an oppo...

Excerpt: ...t base this motion on the premise that Attorney Eassa presently represents Fox Bayshore on one side and Steven Porter on the other, and their respective positions are adverse. Fox Bayshore is named only as a nominal defendant, whose interests are not adverse to Plaintiff Stephen Porter. In the complaint, Attorney Eassa is not representing any interest that is adverse to Fox Bayshore. 2. The Cross‐complaint. The Cross‐complaint alleges that th...

Excerpt: ...idence are OVERRULED. Cross‐Defendant Michelle Charles's Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED pursuant to Code of Civ. Proc. Section 437c. A reasonable trier of fact could find that Cross‐Complainant Danwen's evidence of online wire transfers from MAD's Chase bank account to Cross‐Defendant Michele Charles, as well as the testimony contained in Cross‐Defendant Charles's Exhibit 28 to her Compe...

Excerpt: ...intervention is GRANTED. BBSI shall separately file and serve its complaint in intervention as set forth in CCP § 387(e) within 14 days of this order. Intervention of a nonparty in an action or proceeding is governed by CCP § 387. That section provides in pertinent part: (d)(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: (A) A provision ...

Excerpt: ... the authority cited by Plaintiff states only that a claim for spoliation may arise if a “duty based on contract” exists. (Cooper v. State Farm Mut. Auto. Ins. Co. (2009) 177 Cal. App. 4th 876, 894) Plaintiff does not allege or contend that any contractual relationship exists between Plaintiff and Defendant. Negligent Infliction of Emotional Distress “is not an independent tort, but the tort of negligence.” (Burgess v. Superior Court (199...

Excerpt: ... WITH LEAVE TO AMEND. As noted in the moving papers, the FAC does not allege that Plaintiff performed under the contract or was excused from performance. Further, where an action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. Otworth v. S. Pac. Transportation Co., 166 Cal.App.3d 452, 459 (1985)....

Excerpt: ...eir counsel, can properly meet and confer further and, in good faith, attempt to resolve this dispute without Court intervention. The Court notes that on May 9, 2019, Plaintiff Tom Gehman, Jr. (Junior) obtained new counsel, Peter Myers. It does not appear Mr. Myers has had a chance to participate in a meet and confer. From the papers, it is unclear exactly which provisions/terms in the proposed irrevocable trust Junior finds objectionable, aside ...

Excerpt: ...the time for Oasis's response to January 31. On that date, Oasis submitted a declaration pursuant to CCP 430.41(2), extending the time to file a responsive pleading by 30 days. However, Oasis filed the present demurrer and motion to strike on March 6, after the time to file a responsive pleading expired. Accordingly, Oasis's motion is untimely. Because Oasis has provided no explanation for its untimely filing, the court overrules the demurrer on ...

Excerpt: ...the time for Oasis's response to January 31. On that date, Oasis submitted a declaration pursuant to CCP 430.41(2), extending the time to file a responsive pleading by 30 days. However, Oasis filed the present demurrer and motion to strike on March 6, after the time to file a responsive pleading expired. Accordingly, Oasis's motion is untimely. Because Oasis has provided no explanation for its untimely filing, the court overrules the demurrer on ...

Excerpt: ...ART and DENIED‐IN‐PART, as set forth below. The Motion for Summary Judgment is DENIED. West Ridge's Complaint seeks both possession of the property and damages. The moving papers state: “For purposes of this motion, Plaintiff has reserved its claim for money damages.” The meaning of the above statement is unclear. Both West Ridge's proposed Order and proposed Judgment ask the Court to determine the amount of damages owed. West Ridge has n...

Excerpt: ...ervice of the moving papers, (2) a copy of the filed judgment, or (3) a proposed order. The court granted leave to file an amended motion to cure these defects. The court's prior ruling also indicated that Defendant had failed to provide authority for the relief sought; i.e. enforcement of a non‐money judgment. Now that the parties have provided a copy of the filed judgment, it is clear that the court must deny the present motion for the same r...

Excerpt: ...e first cause of action. 1. A Triable Issue Exists About Whether Plaintiff Knew or Should Have Known of the Damage Before March 2015. The statute of limitations is 3 years. Plaintiff filed his complaint on March 2, 2018. The issue is whether Plaintiff knew or should have known of the damage no earlier than March 2, 2015. CITY's argues that Plaintiff admitted that the Google Images accurately depict his house “at all relevant times.” (UMF 1.) ...

Excerpt: ...robable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences. Pacific Gas and Electric Company v. Superior Court, (2018) 24 Cal.App.5th 1150, 1159. The allegations in the complaint are not sufficient to establish that Defendant was aware of the probable consequences of his conduct and that Defendant willfully and deliberately failed to avoid those consequences. If the tentative ruling is...

Excerpt: ...mains and a dental bridge that were supposed to be from David Seid but which did not come from or belong to David Seid, a mix‐up that Plaintiffs have repeatedly sought to be corrected and acknowledged by Defendants, so far to no avail. 27. Repeated demands that the defendants help correct the mixed up remains issues have failed to result in cooperation and failed, to date, to result in defendants working to correct the mix up. [SAC, ¶¶ 3, 27]...

Excerpt: ...y dismissed from this action without prejudice. (See court's August 21, 2018 order.) The proposed First Amended Complaint includes additional allegations to support that Grecu is the alter ego of Defendant Interstates Vanlines, LLC (“IVL”). However, the court, in ruling on Grecu's prior motion to quash/dismiss for lack of personal jurisdiction, found that Plaintiff failed to meet her burden of establishing by a preponderance of the evidence t...

Excerpt: ...Complaint (TACC) alleging, inter alia, fraud and extortion, is DENIED. Code Civ. Proc. § 437c. Goguen's alternative Motion for Summary Adjudication (see 11‐21‐18 Notice of Motion, identifying Issues Nos. 1‐4), is also DENIED, for the reasons explained below. As a preliminary matter, Goguen's Reply brief argues that because Baptiste's 1‐25‐19 responsive Separate Statement does not cite to any evidence, as a matter of law, it cannot rais...

Excerpt: ...covery requests that may not impinge on Defendant's 5th Amendment right against self‐incrimination, the court finds no benefit in permitting only some limited discovery to proceed against Defendant Li. The piecemeal determination of which particular discovery requests or categories of information are discoverable will necessarily result in additional expenditure of judicial resources, as well as the resources of both parties. Further, the near ...

Excerpt: ...parties. The Motion to Compel the Request for Production of Documents in the Notice of Deposition is DENIED as to Request nos. 1 and 2, except as to copies of checks to or from Defendant, McDonald's Restaurants, and Travel Faire, Inc. that Plaintiff has agreed to produce. The requests for the remaining checks and deposits are denied because Defendant failed to provide a separate statement in compliance with CRC Rule 3.1345(a)(5). These requests a...

Excerpt: ... Release of All Claims,” Plaintiff appears to be entitled to a judgment in the amount of $50,000.00. Plaintiff, however, seeks only $33,333.64. Defendants contend their performance under the agreement is excused because Plaintiff materially breached the settlement agreement as a result of the fact that “Plaintiff's fiduciary simply had Plaintiff rubber stamp [the declaration identified in the agreement], which Plaintiff neither read for under...

Excerpt: ... the forum state is such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. State of Wash. (1945) 326 US 310, 316. Jurisdiction is proper where the contacts proximately result from actions by the defendant himself or herself that create a substantial connection with the form state. Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 475. California has the br...

Excerpt: ...ry, Plaintiffs fail to establish that Defendant HOLTZMAN both purposefully availed himself of forum benefits with respect to the matter in controversy, and that the controversy is related to or arises out of Defendant's contacts with California. Accordingly, the motion to quash is GRANTED. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediatel...

Excerpt: ...ry Adjudication is DENIED. Based on the declarations of the parties, a genuine dispute of material fact exists with regard to the impact of the dispute between the LLC members on Plaintiff's membership interest such that dissolution would be reasonably necessary to protect the rights or interests of Plaintiff. A genuine dispute of material fact also exists with respect to whether management of the LLC is subject to internal dissention such that d...

Excerpt: ...ell as third party privacy rights. (See Defendant's Exh. A; see also Board of Trustees v. Sup. Ct. (1981) 119 Cal.App.3d 516, 528‐530 (disapproved on other grounds in Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 557).) Privacy rights are not absolute, but rather the court must balance whether such privacy rights are outweighed by the relevance of the information sought to the subject matter in the pending action. Discovery will not be ordered if ...

Excerpt: ...reement to extend the 90‐day period for initiating an action to enforce the lien, Respondent failed to file an action in this court prior to the agreed upon deadline of February 15, 2019. As a result, the lien is unenforceable. Cal. Civ. Code § 8460; CCP § 392; Automatic Sprinkler Corp. v. S. Cal. Edison Co., 216 Cal. App. 3d 627, 634–35 (Ct. App. 1989). Respondent's opposition to the Petition relies on authority holding that “the grant o...

Excerpt: ... of Court. Plaintiff shall comply with the California Rules of Court in all other respects. Plaintiff bears the burden of pleading and proving timely filing of a sufficient complaint with the DFEH and obtaining a right‐to‐sue notice. See Holland v. Union Pac. R.R. Co., 154 CA4th at 945; Jumaane v. City of Los Angeles (2015) 241 CA4th 1390, 1402; Kim v. Konad USA Distribution, Inc., 226 CA4th at 1345‐1346. Plaintiffs' complaint appears to at...

Excerpt: ...eccato and Beatrice Ceccato (“Ceccatos”) for Reconsideration of the March 1, 2019 Order (filed on March 5, 2019) Granting the Application of Cross‐Defendants Mansa Construction Corporation dba Era Green Banker Realty, Stanley Lo, and Mirna Gonzales (“Cross‐Defendants”) for Determination of Good Faith Settlement (hereinafter “Order”), the court rules as follows: By order of the Presiding Judge, this matter is assigned for hearing t...

Excerpt: ...e of limitations had not yet run at the time of the filing of the complaint on July 27, 2016. The first amended complaint adequately identifies which of the Plaintiffs were minors at the time of the decedent's death. With respect to the adult Plaintiffs, Defendants have the burden of proving that Plaintiffs discovered or should have discovered the facts alleged to constitute Defendants' wrongdoing more than one year prior to filing this action. S...

Excerpt: ... its claim to possession of the collateral identified in the 3‐28‐19 Declaration of Karen Tennant. The evidence indicates Defendant breached the parties' “Master Promissory Note and Security Agreement” (Note) by failing to make the required payments, giving Plaintiff the right to take immediate possession of the collateral. Defendant has not opposed the application. Because Defendant appears to owe more on the Note than the collateral's c...

Excerpt: ...LC did not seek leave to amend First American's answer, and First American is not seeking leave to amend Elevation's pleadings. Nonetheless, considering that there is no opposition to the request, First American's request is GRANTED to the extent it seeks leave to file its proposed amended answer. First American shall file and serve the amended answer within 10 days of this order. First American's request to bifurcate the trial, which is also not...

Excerpt: ... Cal.App.3d 327, 335 [“the prevailing view is that it is only in the truly exceptional case involving a single, simple issue with minimal evidentiary support that a court will consider the merits of a motion unaccompanied by a separate statement”].) The Complaint alleges three causes of action to which Plaintiff is seeking summary judgment. Plaintiff's Memorandum of Points and Authorities discusses the elements of each cause of action, but th...

Excerpt: ...r Summary Judgment is DENIED. The Complaint seeks both possession of the property and damages. West Ridge's moving papers state that “[fo]r purposes of this motion, Plaintiff has reserved its claim for money damages.” However, Plaintiff has not dismissed, or stated its willingness to dismiss from this case, its damages claim. The moving papers do not establish the amount of damages owed. Further, Plaintiff's proposed Order and proposed Judgme...

Excerpt: ...t Grand Century Secured Investments, LLC. Peak Foreclosure Services, Inc. and DOES 1‐50),” and not specifically against Defendant Migdal. However, paragraphs 55‐57 specifically refer to Defendant Migdal, and make allegations against him. Additionally, Plaintiff's prayer for relief requests relief against all Defendants, including Migdal, as to all causes of action. Also, as Defendants have pointed out, Plaintiff has alleged that Defendant M...

Excerpt: ...efendant Migdal. However, paragraphs 55‐57 specifically refer to Defendant Migdal, and make allegations against him. Additionally, Plaintiff's prayer for relief requests relief against all Defendants, including Migdal, as to all causes of action. Also, as Defendants have pointed out, Plaintiff has alleged that Defendant Migdal is Defendant Grand Century. Therefore, on the face of the pleading, Defendant Migdal has standing to contest the Fourth...

Excerpt: ... seek documents regarding any loans or loan applications with respect to the property at issue. Defendants have asserted that such documents are privileged pursuant to their constitutional right to privacy, and that the documents are therefore not discoverable. According to Plaintiff, the documents are “directly relevant to Defendants' efforts to obtain financing to pay their outstanding balance to NOLAN. Indeed, it was the promise of financing...

Excerpt: ...ue. A. Rough approximation of plaintiffs' recovery and settlor's proportionate liability. “The ultimate determinant of good faith is whether the settlement is grossly disproportionate to what a reasonable person at the time of settlement would estimate the settlor's liability to be.” (City of Grand Terrace v. Sup.Ct. (1987) 192 Cal.App.3d 1251, 1262.) That the settlement was 1.16 percent of the claimed damages does not, by itself,...

Excerpt: ...‐531589. A Tentative Statement of Decision was issued in case PRO‐ 122577 on December 17, 2018. Objections to that Tentative Statement of Decision were overruled and a Final Statement of Decision was issued on March 14, 2019. The only reason that a Judgment has not yet been entered in Case PRO‐122577 pursuant to the terms of the Final Statement of Decision is that the attorneys who represent Carleen Whittelsey in Case PRO‐122577, the same...

Excerpt: ...of Labor v. Chimes District of Columbia, Inc., U.S. District Court for the District of Maryland, Case No. 1:15‐cv‐03315‐RDB (“Chimes”). That case has since concluded. Thus, the stated basis for the stay no longer exists. Heffernan argues another recently‐filed case against Plaintiff militates in favor of extending the stay, namely, Abraha, et. al. v. Colonial Parking, Inc., U.S. District Court for the District of Columbia, Case No. 16...

Excerpt: ... to “indulge every intendment to give effect to such proceedings.” Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9. Defendants have established the existence of an arbitration agreement, and there is no basis to deny enforcement of the agreement under CCP § 1281.2. Plaintiffs contend Defendants' motion should be denied because (1) Defendants failed to present competent evidence showing the existence of valid arbitration agreements, and (2) ...

Excerpt: ...licies favor of arbitration and, courts are to “indulge every intendment to give effect to such proceedings.” Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9. Defendants have established the existence of an arbitration agreement, and there is no basis to deny enforcement of the agreement under CCP § 1281.2. Plaintiffs contend Defendants' motion should be denied because (1) Defendants failed to present competent evidence showing the existenc...

Excerpt: ...nts have submitted 19 exhibits, consuming approximately 400 pages. Plaintiffs have submitted 13 exhibits across more than 200 pages. Both parties failed to comply with the Rules of Court that require exhibits to be tabbed. (CRC Rule 3.1110(f)(3). Rules of Court have the force of law to the extent that they are not inconsistent with legislative enactments and constitutional provisions. (In re Richard S. (1991) 54 Cal. 3d 857, 863.) By failing to c...

Excerpt: ...gations that have been voluntarily assumed.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Cross‐Defendant Salamakhin has purposefully availed himself of the benefits of the laws of the state of California and created sufficient minimum contacts with the state of California to support personal jurisdiction of this Court by sending a debt collection letter to Cross‐ Complainant which is the subject of the allegations in the First...

Excerpt: ...��Car, Inc. (“Defendant”) on non‐party Hertz Corporation (“Hertz”). Plaintiff argues that Defendant failed to obtain a commission to conduct an out‐of‐state deposition. Specifically, Plaintiff contends that Hertz is a Delaware corporation with its principal place of business in Florida, and thus a commission is required to depose Hertz. Plaintiff has not provided any evidence in support of this contention though. Moreover, Defendant...

Excerpt: ...entry of the order. Interrogatory No. 19 asks Defendant/Cross‐ Complainant Dellanini to identify each instance in which he solicited work for himself or on behalf of TCS while he was employed by Preferred. The request appears to be directed at a core issue in this case – whether Dellanini improperly competed with Preferred for commercial cleaning jobs. Although Dellanini asserted a number of boilerplate objections to the request, the primary ...

Excerpt: ...ning unusual maintenance and consultant's fees, and the prayer for professional and technical fees, is GRANTED WITHOUT LEAVE TO AMEND. Plaintiff fails to oppose the motion as to these fees, and thus has not established she will be able to amend to allege facts to support she may recover these fees. The Motion to Strike paragraph 50 and the prayer for exemplary and punitive damages is GRANTED WITH LEAVE TO AMEND. As pled, Plaintiff fails to allege...

Excerpt: ...udgment in the amount of $10,000, less any amounts which BRUCE TASSI has paid (Defendants TASSI, INC. and BRUCE TASSI assert that $6,000 was paid on March 27, 2019, but provide no evidence of that fact and admit that the payment was late). Plaintiff is also entitled to $1,500 in attorneys' fees, $60 in costs for the cost of the motion, and pre‐judgment interest. Even though Plaintiff has not submitted facts, such as his counsel's hourly rate or...

Excerpt: ...elements of a breach of contract claim are: (1) the existence of the contract; (2) plaintiff's performance or excuse for failing to perform; (3) the defendant's breach; and (4) plaintiff's damages. (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243.) This claim alleges that Plaintiff and Defendant Palermo entered into an oral and written contract. (Complaint ¶ 52.) Plaintiff fails to allege sufficient facts to support either an...

Excerpt: ...he offer. (See Meissner v. Paulson (1989) 212 Cal.App.3d 785, 791.) Defendants' offer does not identify which Plaintiff to whom it is made. To the extent Defendants intended the offer to be made to Plaintiffs UHI and Lavine jointly, it is ineffective. Either Plaintiff's or both Plaintiffs' failure to accept the offer does not support a motion for post‐offer costs under Code of Civil Procedure section 998. If the tentative ruling is uncontested,...

Excerpt: ... unless it finds that an objection to the request was sustained, the admission was of no substantial importance, the responding party had reasonable ground to believe that the party would prevail on the matter, or there was a good reason for the failure to admit. (Id. sect. 2033.420, subd. (b).) The moving party is only entitled to the reasonable expenses, including attorneys' fees “incurred in making the proof, i.e., proving the matters denied...

Excerpt: ...to the credentialing of Scott Chang, MD is GRANTED and the deponent shall appear for deposition within 15 days of the date of the service of notice of ruling. Plaintiff's motion to compel production of documents is DENIED without prejudice. CCP § 2025.410 provides, in pertinent part, as follows: (a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity un...

Excerpt: ...ot required when the claim arises from an allegation that the foreclosing defendant failed to comply with the requirement of contacting the borrower before recording Notice of Default. (Mabry v. Superior Court (2010) 185 Cal. App. 4th 208, 225–26.) The basis of Plaintiff's claim is the allegation that Defendants did not contact him before initiating foreclosure proceedings. (Complaint para. 16.) Since the complaint is based on the allegation of...

Excerpt: ...ought, the Memorandum of Points & Authorities argues that the Court may dismiss or strike the Complaint when it fails to allege facts sufficient to state a cause of action against a particular defendant, or where there is a lack of subject matter jurisdiction, citing Code Civ. Proc. §§ 437c – 439. These are the Code sections pertaining to motions for summary judgment and motions for judgment on the pleadings. As the moving papers do not inclu...

Excerpt: ...means to protect the privacy interest. Absent sealing, the private information would be publicly available. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for petitioner County of San Mateo shall prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who hav...

Excerpt: ...rt finds the New Hampshire forum selection clause in the parties' arbitration agreement is unconscionable, and thus unenforceable. The remainder of the parties' arbitration agreement, however, is valid and unenforceable. As set forth in Defendant's moving papers and not disputed by Plaintiff, California, New Hampshire, and federal law all favor the enforceability of arbitration agreements. See, e.g., California Arbitration Act (“CAA”), codifi...

Excerpt: ... as a matter of law. Code Civ. Proc. § 437c(c). Specifically, Defendant is unable to establish the assumption of risk doctrine as a complete defense to Plaintiff's First cause of action for negligence. Defendant contends that her admitted conduct of cutting across the jumping lanes in the warm‐up arena, approaching Plaintiff from behind without warning, and bringing her horse into close proximity with Plaintiff's horse was within the range of ...

Excerpt: ...ummary adjudication. A summary judgment may be granted where it is shown that either the action has no merit, or that there is no defense to the action or proceeding. (Code of Civ. Proc. § 437c(a).) The court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code of Civ. Proc. § 437c(c).) Thus, if one single material fact is d...

Excerpt: ....2 in that the Motion alleges the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy. The Court therefore will treat the Motion as a petition to compel arbitration and motion to stay the action pending arbitration. The Court finds that an agreement to arbitrate exists based on the parties' agreement that the credit agreement underling this action contains an arbitrat...

Excerpt: ... client in the same “or a substantially related matter” if the lawyer received information from the prospective client “that could be significantly harmful to that person in the matter.” (Rules of Prof. Conduct, Rule 1.18(b), (c).) Here, Plaintiff does not sufficiently demonstrate that the alleged confidential information shared with Perkins Coie during a May 4, 2017 telephone conversation involves the same or “substantially related mat...

Excerpt: ...efects, however, as there are more significant reasons the motion must be denied. The request for relief under Code Civ. Proc. § 663 lacks merit. Plaintiff seeks relief from an Order sustaining a Demurrer. As noted in the Opposition and not addressed in any Reply, a motion to vacate judgment under § 663, subdivision (1) may only be brought when the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts f...

Excerpt: ...nd claims was, and still is, the rightful owner of the membership interest in 1893, and was and still is, entitled to the possession of the following personal property: the membership interest in 1893.” [4ACC, ¶ 68] Under this cause of action, the complaint further alleges the Ceccatos intended to “convert 1893's membership interest for themselves.” [4ACC, ¶ 70] The complaint states, “As a direct and proximate result of Ceccato and Mont...

Excerpt: ... party in interest, it does not have standing to seek costs. Because the named Defendant is deceased, counsel cannot act on his behalf to seek costs. As the moving papers note, it is wellestablished that “The authority of an attorney necessarily ceases with the death of the client, for no one can act for a dead man. After the death of the client, his attorney therefore becomes a stranger to the proceedings.” Swartfager v. Wells, 53 Cal.App.2d...

Excerpt: ...low, the Court cannot resolve these disputed issues as a matter of law. First, the record contains sufficient evidence of negligence to withstand summary judgment/adjudication. The underlying facts appear largely undisputed. Defendants represented Plaintiffs/sellers in two 2012 real estate transactions, the first of which fell through. In the first transaction (involving potential buyer McLaughlin), Defendants received and reviewed a preliminary ...

Excerpt: ... petitioning activity. Plaintiff's complaint alleges an unlawful detainer cause of action based on failure to pay rent and failure to cure following notice of default. Defendant's declaration asserts that “this lawsuit is a retaliatory eviction lawsuit for expressing my First Amendment right for free speech in connection with the public interest after I called the police and reported Mr. Victor Scheff for yelling into my face from a close dista...

Excerpt: ...CrossComplainant McLean's contention, the mandatory provision of § 473(b) does not require a showing of excusable neglect. Further, even had there been no attorney declaration, Abaunza's own neglect/failure to timely respond to the Cross‐Complaint after his attorney withdrew was excusable. After Mr. Hecht substituted out of the case on 10‐25‐18, Abaunza obtained new counsel within about four months, who promptly sought relief from the defa...

Excerpt: ...h, fifth, and sixth causes of action on the ground that the Court previously issued a tentative ruling in a different action is overruled. A tentative ruling is not a ruling. Plaintiffs dismissed the prior action before the Court ruled on the demurrer. Demurrer to the first cause of action (breach of contract) is sustained with leave to amend. The claim alleges that “Defendants failed to perform its duties” and “cancelled Plaintiff's loan m...

Excerpt: ...ablishing that plaintiff is entitled to the relief sought. Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255. In establishing a claim for punitive damages, plaintiff must show by “clear and convincing” evidence that the defendant is guilty of oppression, fraud or malice. Civil Code § 3294(a). Plaintiffs fail to do so here, and fail to demonstrate how they may amend their Complaint to properly state a punitive damages claim. Accordin...

Excerpt: ...tiff has failed to set forth specific facts demonstrating malice or oppression by Defendant, as those terms are defined in Civ. Code § 3294. Further, although Plaintiff has attempted to add allegations relating to Defendants' ratification of the actions of their employees, Plaintiff has nonetheless failed to set forth specific facts demonstrating authorization of wrongful conduct or advance knowledge of the likelihood of wrongful conduct by Defe...

Excerpt: ...e, however, involved a dispute over the petitioner's claim to an easement. No easement is at issue in this case. Plaintiff does not allege that Defendant has presented any right to possession or title to Plaintiff's property. Plaintiff's first amended complaint asserts that “Defendant's conduct will eventually interfere with Plaintiff's possession of the Scott Property through the imposition of a servient easement in favor of Defendants across ...

Excerpt: ...es only that he is not seeking compensation “at this time.” Defendant shall supplement his response to indicate whether he incurred any injuries or damage, and describe the injuries or damage, regardless of whether he is seeking compensation at this time. Form Interrogatory 115.2. Granted. Even without discovery, Defendant highly likely has knowledge of some facts to support his general denial and affirmative defenses. Signing a paper filed w...

Excerpt: ...d. SUSTAINED WITH LEAVE TO AMEND as to the Seventh cause of action for intentional infliction of emotional distress. A cause of action for intentional infliction of emotional distress requires (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. Heller v. P...

Excerpt: ...not provided a copy of the stipulated judgment with the moving papers. Further, Defendant has not provided a proposed order. Most significantly, however, Defendant provides no authority for the relief that he seeks; i.e. enforcement of a non‐money judgment. The court notes that lack of compliance with a non‐money judgment is generally enforced through contempt proceedings. CCP § 1209(a)(5). Further, the court notes that the merits of Defenda...

Excerpt: ...conduct business in California under that name. It has no bearing on whether Plaintiff has capacity to sue or defend, nor does it bear on whether Plaintiff was the legal owner of the vehicle. B. Plaintiff Fails to Show Probable Validity of Its Claim. To obtain writ of possession, the applicant must show that he or she (1) has the right to immediate possession of tangible personal property; and (2) the property is being wrongfully withheld by defe...

Excerpt: ... incur legal expenses in his defense, the Court finds the evidence here insufficient to justify a fee award. Lopes argues he was falsely accused of threatening to kill Petitioner and ultimately “prevailed on the merits.” The Minute Order for the 02‐15‐19 hearing indicates that no one (no party and no attorney) showed up for the hearing. Thus, the Temporary Restraining Order (TRO) dissolved because no one appeared – not because of any va...

Excerpt: ...eir capacity as cross‐defendants. However, the court's records reflect that Cross‐Defendants' defaults have been entered. Furthermore, Sha has not provided evidence sufficient to establish that the underlying discovery was properly served on Cross‐ Defendants. The declaration of Carmen Aviles merely states she served the discovery on July 19, 2018. No further information is provided such as method or location of service. If the tentative ru...

Excerpt: ...ion on the grounds that “Plaintiff has undergone three major surgeries relating to Crohn's and cancer, with a fourth surgery currently scheduled and longterm health issues leading up to these surgeries that indeed not only made it “‘impractical,' but ‘impossible,' to file an at‐ issue to proceed with this case at this time.” Notably, Plaintiff's “declaration” is not made under penalty of perjury and, therefore, does not constitute...