Excerpt: ...a fraud cause of action. See Oakland Raiders v. Nat'l Football League (2005) 131 Cal.App.4th 621, 629 (“[T]he pleadings set the boundaries of the issues to be resolved at summary judgment.”). The Court recognizes Plaintiff has filed a motion seeking leave to amend the Complaint, for the purpose of asserting a fraud cause of action. Nonetheless, GM cites no authority indicating the Court may summarily adjudicate a potential cause of action tha...

Excerpt: ...ct is SUSTAINED WITH LEAVE TO AMEND to allege facts sufficient to support a contract between the parties. Plaintiff alleges in her complaint that an oral agreement was made between her and Defendants. Plaintiff has failed to allege the element of consideration. “The statutory presumption of consideration . . . does not, of course, apply to an oral contract. In an action on such an agreement, the essential element of consideration must normally ...

Excerpt: ..., rather than mandatory. For venue to “lie” in a certain place means that venue is proper or sustainable in that place. Under this definition, the forum selection clause states that all disputes shall be proper or sustainable in Florida. “Shall lie” does not mean “must be filed” or “must be prosecuted.” Thus, the forum selection clause does not mean that all disputes must be filed or tried in Florida to the exclusion of any other ...

Excerpt: ...ion 473.5 is DENIED. A court may only set aside a default under CCP § 473.5 if the cross‐defendant did not receive “actual notice” in time to defend the action. The evidence shows that SVP received actual notice of the summons and cross‐complaint on June 10, 2019, more than 30 days before default was entered. (See Todd Yancey's Declaration.) SVP's Motion to Set Aside Entry of Default under CCP section 473 is DENIED. The Court recognizes ...

Excerpt: ...gly, Defendant's demurrer is sustained pursuant to Cal. Code of Civ. Proc. § 430.10(f). Additionally, Pursuant to 47 U.S.C. § 230, Defendant is immune from liability for tort claims arising from information provided by another information content provider. See Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 802–803. Accordingly, to the extent Plaintiffs' claims are based on “hate speech and racially charged bullying commen...

Excerpt: ...for Judicial Notice is GRANTED; however, the Court does not take judicial notice of the truth of any factual assertions in these documents. (See Arce v. Kaiser Health Foundation Plan, Inc. (2010) 181 Cal.App.4th 471, 483 [court takes judicial notice of documents as records of any court of this state, but does not take judicial notice of the truth of any factual assertions in these documents].) As to the demurrer, the Court notes that this demurre...

Excerpt: ...19 per Code Civ. Proc. § 418.10, is GRANTED‐ IN‐PART and DENIED‐IN‐PART. As to all Plaintiffs, the Motion to Dismiss is DENIED. The Motion to Stay is GRANTED‐IN‐PART, as set forth below. As to Plaintiffs Strahan and Manno, the Motion to Stay pending resolution of the Indiana Action (Genesys Telecommunications Laboratories, Inc. v. Talkdesk, Inc. et. al., Case No. 1:19‐CV00695‐TWP‐DML) is GRANTED. Both Strahan and Manno signed e...

Excerpt: ... as is involved in a California action, the California court has the discretion but not the obligation to stay the state court action. Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800, 804. Given the Court's ruling on Genesys' Motion to Stay per Code Civ. Proc. § 418.10, as to Plaintiffs Strahan and Manno, this motion is DENIED AS MOOT. As to Plaintiffs TalkDesk and Hertel, the motion is also DENIED. Genesys argues ...

Excerpt: ...mba (“Plaintiff”) is DENIED. Defendants move for summary judgment on the ground that no triable issue of material fact exists as to whether Defendants had notice of a dangerous condition and whether the alleged dangerous condition caused Plaintiff's fall. As the moving party, Defendants have the initial burden to show that either (1) one or more elements of Plaintiff's causes of action cannot be established, or (2) that there is a complete de...

Excerpt: ...and are hearsay. The Declaration of Tom Scherer para. 4 does refer to an agreement, but does not attach the agreement or authenticate Exhibit 9 to the Miller deposition. The Court SUSTAINS Plaintiff's objection numbers 18 and 19 to the Declaration of Scherer paragraph 8 at 3:22 – 4:1 as lacking foundation and failing to show personal knowledge and the reference to a document is hearsay. The Court does not rule on Plaintiff's remaining objection...

Excerpt: ...stated claims, even though Plaintiff alleges other common count claims in the Complaint. Therefore, Plaintiff has failed to meet its initial burden of establishing that it is entitled to summary judgment. However, the Motion for Summary Adjudication to the open book account and account stated claims is GRANTED. Plaintiff presents evidence to establish all the elements of both its open book account and account stated claims. (See Plaintiff's State...

Excerpt: ...ment/discrimination/retaliation” based upon Defendants' contention that Plaintiff incorrectly named himself and Broadmoor in his administrative complaint, the parties are to appear (telephonic appearances are acceptable but not preferred) to further argue the issue. The Court invites further citation to authority. If counsel is going to cite to new authority, counsel shall, before the hearing provide opposing counsel with the citations of that ...

Excerpt: ...ement (see Code Civ. Proc. § 437c(b)(3)), the Court finds that Plaintiff has not met his initial burden under § 437c, and thus the motion must be denied. In this case, Plaintiff and Defendant were are former spouses. Prior to their marriage, Plaintiff's mother loaned the couple $100,000 to purchase a home. Plaintiff claims that the parties executed a note for the loan, which note Defendant denies signing. The parties forgot about the note for o...

Excerpt: ...Defendants' Evidence as to Exhibits A, B, G are OVERRULED. Plaintiffs' objections to Exhibits J and K are SUSTAINED based on hearsay. The standards for summary judgment are well‐known and the Court will not repeat them here. BACKGROUND FACTS It is undisputed that on May 31, 2013, Plaintiffs purchased a BMW from defendant Peter Pan Motors, Inc. UMF No. 1. Thereafter, on November 3, 2015, the National Highway Traffic Safety Administration (“NHT...

Excerpt: ...s that this is actually the Second Amended Complaint. Nevertheless, since the parties refer to it as the Fourth Amended Complaint, the court likewise refers to this pleading as the Fourth Amended Complaint (“FOAC”). (2) Defendant requests judicial notice of the following documents filed in this action: (a) the FOAC; (b) the Order on the Demurrer to Complaint; (c) the Order on the Demurrer to the First Amended Complaint; and (d) the First Amen...

Excerpt: ...nd failing to cap the gas pipe that led to the dryer was not the legal cause of the explosion and fire that injured plaintiffs. See defendants MPA at 8:1‐3. On October 30, 2019 plaintiffs filed a statement indicating they do not oppose the motion. The unopposed motion is granted. Defendants have met their moving burden under CCP §437c(p)(2). The declaration of mechanical engineer Steve Virostek states that, in his professional opinion, the lea...

Excerpt: ...pel Further Responses to Request for Production Number 53 and Request for Sanctions against Plaintiff Proud Thai Massage LLC (“Plaintiff”) is GRANTED in part. Defendant demonstrates good cause for the production of the QuickBooks. TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448. Plaintiff, through the declarations of Alexander Mayer and Amira Sharon, demonstrates that the QuickBooks contain confidential information no...

Excerpt: ...des the threshold issue of the arbitration agreement's enforceability, and the scope of the issues to be arbitrated. However, parties may delegate resolution of those threshold issues to an arbitrator as long as the parties' agreement “clearly and unmistakably” delegates that authority to an arbitrator, and the delegation clause is not invalid on state law grounds such as fraud, duress or unconscionability. Pinela v. Neiman Marcus Group, Inc....

Excerpt: ...October 28, 2019. The principal amount of Judgment shall be $21,750.00. B. Prejudgment Interest Defendants defaulted on the $5,250 payment that was due September 1, 2019. For the September 2019 payment Defendants paid $2,500 on October 4, 2019. Plaintiff subsequently agreed to accept $1,000 per week. Defendants made two $1,000 payments. The next payment was due October 28, 2019, but Defendants made no more payments. An “Event of Default” occu...

Excerpt: ...udication, a plaintiff has met its burden of showing that there is no defense to a cause of action if that party has proved each element of a cause of action to entitle the party to judgment on the cause of action. (C.C.P. § 437c(p)(1).) Once the plaintiff has met its burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) Plaintiff prese...

Excerpt: ... Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Courts apply such a liberal policy at any stage of the proceedings, up to and including trial. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) If the motion to amend is timely made and granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal results in a party being deprived of the right to assert a meritorious cause of...

Excerpt: ...ls as a matter of law because negligence per se is an evidentiary presumption and not a separate cause of action; 2. Plaintiffs' Cause of Action Nos. 3 and 4 predicated on violations Placer County Building Code, Article 15.12 et seq., fail as a matter of law because Article 15.12 was unenforceable at the time of the incident; 3. Even if Plaintiffs' negligence claims survive Article 15.12's unenforceability, Plaintiffs lack sufficient evidence to ...

Excerpt: ...ot allege any property damage or personal injury. Demurrer to the second cause of action (breach of contract) is SUSTAINED with leave to amend. First, the pleading identifies two contracts in paragraph 6, but nothing in the pleading alleges whether either contract was oral, written, or implied. Second, the pleading does not allege the contractual obligations that were breached; it does not allege the terms of the contract either in haec verba or ...

Excerpt: ...ART. Cross‐Defendants establish that the subpoena served by Cross‐ Complainants Omer Tamturk and the Erler Family Trust (“Cross‐Complainants”) on Stefan Financial, includes documents that contain Cross‐Defendants' personal financial information and tax returns. (See Stefan Decl.) The California Constitution, Article I, section 1 protects a person's financial privacy. See also Britt v. Superior Court (1978) 20 Cal.3d 844; Cobb v. Sup. ...

Excerpt: ...ND. The complaint is based on Defendant's alleged representation that it would try to gain US Customs approval for the same 5.92 percent customs rate for SINO‐MAPLE, but failed to do so. Nothing in this claim suggests that the acts were fraudulent, unlawful, or unfair (as that term is used in the UCL), including there is no allegation of any law that was violated. Plaintiff's conclusory allegation in paragraph 69 are insufficient. Defendant's a...

Excerpt: ... fraud, oppression or malice by Defendant to support punitive damages. The Court rules on the motion as follows: Defendant's unopposed motion for judicial notice is GRANTED. Plaintiff's objection to Defendant's Exhibit L is SUSTAINED based upon hearsay, lack of personal knowledge and authentication. Plaintiff alleges that Defendant failed to: (1) warn about permanent collagen destruction; (2) properly train purchasers; and (3) advise that the dev...

Excerpt: ...nd (d), Defendant should be compelled to provide facts supporting its denial of Plaintiffs' requests to admit that Defendant's agents had not determined that Plaintiff's conduct had met the definition of “cause” as set forth in the parties' employment agreements. Plaintiff acknowledges that Defendant has responded that its denial is based on its in‐ house counsel's determination that Plaintiff “was not forthcoming about the veracity of th...

Excerpt: ...nd attached Exh. A.) California law favors arbitration. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) Plaintiff Mark Smoot (“Plaintiff”) argues that the arbitration provision in the offer letter is unenforceable because it is unconscionable. The party opposing arbitration has the burden of proving that the arbitration provision is unconscionable. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 7...

Excerpt: ...arties' briefing and finds that the 11‐08‐19 Watanabe declaration sufficiently demonstrates the default occurred because Tesla's in‐house counsel mistakenly/inadvertently failed to promptly assign the matter to local litigation counsel. The Court strongly favors resolving cases on their merits. The 08‐ 19‐19 default should be and HEREBY IS SET ASIDE. Where relief is based on attorney fault, §473(b) requires the Court to direct the atto...

Excerpt: ... Code Civil Procedure §437c. The Motion for Summary Judgment and Summary Adjudication of the Loves' claims is DENIED as moot, in light of the voluntary dismissal of the Loves' Cross‐Complaint on 12/11/19. Sereno has established each of the elements of its cause of action for breach of contract. The Loves agreed to pay Sereno 5% of the purchase price of the subject property if buyers completed the transaction or were prevented from doing so by ...

Excerpt: ... and did not cause Plaintiff's injuries. The Court denied Defendants' motion on June 24, 2019. (See June 24, 2019 Minute Order, of which the Court takes judicial notice on its own motion.) Now, in this motion, Defendants once again assert that they complied with the applicable standard of care and did not cause Plaintiff's injuries. However, Defendants have not presented any newly discovered facts or circumstances, or law, that support reconsider...

Excerpt: .... §430.10(e). The Fourth Cause of Action sufficiently alleges the elements of fraud by intentional misrepresentation. See CACI 1900; FAC, ¶¶40‐49. Defendants appear to argue they cannot or should not be held liable for their alleged false representations because they signed the 2016 forms in their capacity as purported Director or Partners of the LLC. Even if this argument otherwise had merit, it fails here because, as alleged, the LLC disso...

Excerpt: ...o Strike Punitive Damages decided. Code Civ. Proc. §1281.4. The Court finds that resolution of this issue will not frustrate the arbitrator's jurisdiction since WIN is not a party to the arbitration and whether WIN faces exposure for punitive damages will not impact any issue in the arbitration. However, the pending punitive damages' exposure to WIN, which is not covered by insurance, does have a substantial impact on WIN. Therefore, the Court l...

Excerpt: ...c. Code § 438(h). 1 st COA – Breach of Express Warranty Defendant contends Plaintiffs have failed to assert a cause of action for breach of express warranty because Plaintiffs have not alleged the “latent defect” in the timing chain system manifested itself during the five‐year express warranty period. According to Defendant, “the warranty expired over six months before Plaintiffs filed their First Amended Complaint on January 18, 2019...

Excerpt: ...nce and breach of fiduciary duty is based on the claim that Defendants did not owe her a duty because she was not a named beneficiary of the CWK trust. According to Defendants, “Because Plaintiff fails to allege any facts qualifying her as an expressly designated recipient of any provision in the CWK Trust gifting her the bequest she now seeks (i.e., a provision in the CWK Trust shielding her from tax liability), the Defendant Attorneys owed he...

Excerpt: ...t. The parties to this case are involved in two simultaneously‐pending cases, apparently involving the same subject matter—this case and another in Wisconsin. See Matrix's 7‐ 2‐19 Motion, Ex. A (attaching Complaint filed in Wisconsin Circuit Court, captioned Matrix IT Medical Tracking Systems, Inc. v. Time Traveller, Inc. and Vitaly Golomb, Case No. 2019CV000968). In the present motion to stay, Matrix seeks to stay this case in favor of t...

Excerpt: ...gust 29, 2019 declaration in support of motion to amend complaint, ¶¶13, 15. This confirms Lyft's electronic records which show that Plaintiff consented to Lyft's terms on more than one occasion; and is sufficient to establish that the electronic signature affixed to these consents is attributable to Plaintiff, and that a valid contract to arbitrate was created. Plaintiff further admits that he did not opt out of these previous arbitration agre...

Excerpt: ...fore, Plaintiff has failed to meet its initial burden of establishing that it is entitled to summary judgment. However, the Motion for Summary Adjudication to the open book account and account stated claims is GRANTED. Plaintiff presents evidence to establish all the elements of both its open book account and account stated claims. (See Plaintiff's Statement of Undisputed Facts nos. 1, 3, 4, 6‐8, 10‐13, and 15‐17.) Defendant failed to oppos...

Excerpt: ...” As a result, the motion to tax costs for CCP § 638 trial fees is GRANTED in the amount of $39,444.00. Trial Technology Support Services Defendant contends that Plaintiff's costs for trial technology support services are not allowable under CCP 1033.5(c)(4) because they were not “reasonably necessary to the conduct of the litigation.” As the party opposing costs, Defendant bears the burden of demonstrating that the costs were not reasonab...

Excerpt: ..., 2019) No. 19‐CV‐00114‐YGR, 2019 WL 2423375, at *3, 4.) All four causes of action are based on the allegation that Defendant censored or interfered with Plaintiff's speech. (SAC para. 37, 40, 43, 45, 49, 52.) Since all claims treat Defendant as a publisher of content provided by another information provider (Plaintiff), the CDA immunizes Defendant from liability as to all claims. Plaintiff argues that his first and second causes of action ...

Excerpt: ...othy Anderson and Elizabeth Cullinan (collectively “Cross‐Defendants”) to the Cross‐Complaint of Defendant/Cross‐ Complainant Florence Fang (“Cross‐Complainant”) is ruled on as follows: (1) The Town of Hillsborough's Demurrer to the First Cause of Action for Violation of the Fair Housing Act is SUSTAINED WITH LEAVE TO AMEND for Cross‐Complainant to cite the specific statute under which she is bringing this claim. (2) Cross‐Def...

Excerpt: ...for sanctions, filed 8‐8‐19, is GRANTED‐IN‐PART, as set forth below. The motion to compel the deposition of AAC's person most knowledgeable (PMK) is GRANTED‐IN‐PART. The motion has merit, for multiple reasons. First, the Court already denied AAC's “Motion for Temporary Stay, to Quash, and to Continue the Date of the Deposition,” in which AAC made the same argument that it simply re‐hashes here. See 7‐24‐19 Minute Order. ACC ...

Excerpt: ...izable claim to an easement on Defendant's property. Defendant separates her arguments with respect to the individual and entity Plaintiffs, based on her claim that the 1907 subdivision map is referenced in the deed to 655 Miramar Dr., Parcel 1, the adjacent property owned by entity Plaintiff TEG Partners, LLC, but that the 1907 map is not referenced in the deed to 18 Terrace Avenue, the nonadjacent property owned by the individual Plaintiffs. Al...

Excerpt: ...e record that the judgment should not have been entered; however, a judgment valid on its face but void for improper service is governed by analogy to Code of Civil Procedure section 473.5 and therefore relief in the same action must be sought no later than 2 years after entry of the default judgment. (See Rogers v Silverman (1989) 216 Cal.App.3d 1114, 1121‐1122.) Defendant contends here that the judgment is void because she was not properly se...

Excerpt: ... to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). A defendant has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause(s) of action cannot be established, or there is a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). On summary judgment or adjudication, the court considers all of th...

Excerpt: ...defaulted under the terms of the Settlement Agreement and that the Settlement Agreement provides for entry of judgment, it is unclear whether the Court may enter judgment at this time. A partition complaint shall set forth “[a]ll interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that plaintiff reasonably believes will be materially affected by the action, whether the n...

Excerpt: ... et. seq.; Armendariz v. Foundation Health Psychcare Services Inc. 24 Cal.4th 83, 97 (2000) (“California law, like federal law, favors enforcement of valid arbitration agreements.”); Cione v. Foresters Equity Services, Inc. 58 Cal.App.4th 625, 642 (1998) (a heavy presumption weighs in favor of enforcing arbitration agreements). Although arbitration is a matter of contract, non‐signatories to arbitration agreements may be bound by an agreeme...

Excerpt: ...redited) 06‐10‐19 Cross‐Complaint (XC) is OVERRULED. Code Civ. Proc. §430.10(e). A demurrer is used to challenge defects that appear on the face of the pleading, or from matters outside the pleading, that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. All properly pleaded facts are assumed true. Chavez v. Indymac Mortg. Servs. (2013) 219 Cal.App.4th 1052, 1057. In ruling on a demurrer, the trial court is required to ...

Excerpt: ...settling party DKS on January 25, 2019, which was prior to this Application being filed on April 10, 2019. Upon dismissal, the court lost jurisdiction over DKS. (See Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 425 (voluntary dismissal deprives court of subject matter and personal jurisdiction).) “Where the plaintiff has filed a voluntary dismissal of an action …, the court is without jurisdiction to act further …, and any subsequent order...

Excerpt: ...ion against it because it has no duties to third parties under Bus. & Prof. Code § 24074. This argument, however, was squarely rejected in Cohn v. Gramercy Escrow Co., 65 Cal. App. 3d 884, 892–93 (Ct. App. 1977). In that case, which relied on decisions in Grover Escrow Corp. v. Gole, 71 Cal.2d 61 (1969) and Doyle v. Coughlin 37 Cal.App.3d 911 (Ct. App. 1974), the court held as follows: The provisions of [Section 24074] are mandatory and as suc...