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: ...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: ...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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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: ... 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: ...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: ...‐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: ... 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: ...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: ...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: ...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: ...��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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ....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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...

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: ... 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: ...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...