Excerpt: ...s v. Goel (2005) 35 Cal.4th 1094.) Upon further reconsideration, the Court grants Defendant's motion to vacate the default entered on August 21, 2018. Code of Civil Procedure § 425.11(c) provides that "the plaintiff shall serve the statement [of damages] on the defendant before a default may be taken." In this case, plaintiff entered default on August 21, 2018 and filed the statement of damages on April 23, 2019. The statement of dam...

Excerpt: ...signed to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by e...

Excerpt: ... to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be s...

Excerpt: ...atory 9: Granted. In answering an interrogatory, defendant has a duty to make a reasonable search for the information if she doesn't know the answer. A reasonable search of FINRA online records would have revealed the answer to this interrogatory. Interrogatory 10: Granted. Defendant did not answer the interrogatory as to whether she was a party to the arbitration. The answer would be, "Yes," "No," or "I don't know....

Excerpt: ...termination is denied, and Defendants' application for a good faith settlement determination is granted. Mr. Perez has agreed to pay $15,000 to Plaintiff Nicholas Renault, the entire amount of his available liability insurance coverage, and his declaration shows that he has exceedingly modest assets and is effectively judgment proof. (Perez Decl. 3‐6; see Dole Food Co., Inc. v. Superior Court (2015) 242 Cal.App.4th 894, 909 [relevant consid...

Excerpt: ...t alleged conduct that is extreme and outrageous as a matter of law. The trial court may determine whether a defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery for IIED. (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.) Without allegations of conduct that goes far beyond the annoyance and inconvenience of deceptive car towing, the FAC does not form the basis for an IIED claim. (See Davidson...

Excerpt: ...hip Interest and Partnership Agreement ("MIPA") is denied. Defendants fail to maintain their initial summary judgment burden. Defendants do not show that they breached the MIPA on November 30, 2012 and Plaintiff filed this action in an untimely fashion more than four years later. The parties originally contemplated that the first part of the MIPA would close "on or around" November 30, 2012. The record demonstrates that the partie...

Excerpt: ...TED's Motion For Preliminary Approval Of Class Action Settlement And Conditional Certification Of Class For Settlement Purposes. Plaintiffs' motion for preliminary approval of class action settlement and conditional certification of class for settlement purposes is denied without prejudice to a further evidentiary showing. In addition, a hearing is required to address a number of issues raised by the motion. In order to determine whether ...

Excerpt: ...y, Inc. owes an immediate duty to defend Eric Smith's complaint. There is no dispute that the parties entered into the Vendor Master Agreement that incorporated the indemnification covenant. Best Buy's failure to submit a signed copy of the agreement does not show a lack of mutual consent. The Vendor Master Agreement does not include language that it would become operative only when signed by the parties. "The cases are legion to the ...

Excerpt: ...harm. Petitioner fails to show that Respondent's refusal to grant discretionary review of the Rasmusson's building permit was an abuse of discretion. Respondent has broad discretion in determining whether to grant discretionary review. (See Guinnane v. San Francisco City Planning Com., (1989) 209 Cal.App.3d 732, 740; Ideal Boat & Camper Storage v. City of Alameda (2012) 208 Cal.App.4th 301, 317.) Respondent's guidelines provide that d...

Excerpt: ...aim for waiting time penalties is preempted. Section 301 of the Labor Management Relations Act (LMRA) preempts a state law claim if the claim requires the interpretation of terms in a collective bargaining agreement (CBA). (29 U.S.C. § 185; Melendez v. San Francisco Baseball Associates LLC (2019) 7 Cal.5th 1, 7-8.) Courts use a two-part test to analyze whether a state law claim is preempted, asking (1) whether the claim arises from independent s...

Excerpt: ...her summary judgment burden. First, claim/issue preclusion does not apply to this case. The probate proceeding did not decide whether decedent was the victim of fraud or elder abuse. (See Estate of Dito (2011) 198 Cal.App.4th 791, 802, 805 [petition asserting claim of financial elder abuse was not barred by res judicata where it raised a different primary right from that considered in the prior probate proceeding].) Further, Defendant does not ad...

Excerpt: ... undertaken "in a transaction intended to result or that results in the sale or lease of goods or services to any consumer." (Civ. Code § 1770.) The CLRA defines "[s]ervices" as "work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods." (Id. § 1761(b).) It defines "goods" as "tangible chattels bought or leased for use p...

Excerpt: ...9;s motion pursuant to Code of Civil Procedure § 473.5 fails because the default was not entered as a result of a lack of "actual notice." The record demonstrates that Defendant was properly served with the summons and complaint on November 29, 2018, and had notice of the action prior to entry of the default. (Locht Decl. 3, 6; Jawandha Decl. 4, 5 & Ex. A.) Further, he was represented by counsel, who was notified that his default would b...

Excerpt: ...e as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed vi...

Excerpt: ...ause Defendant misrepresented that Beth Bresnahan (former director of Massachusetts lottery) and Joey Krup (manager of Pantera Fund) were advisors to Defendant. The complaint alleges that the misrepresentations were on defendant's website and its online "White Paper." The complaint even attaches actual copies of the alleged misrepresentations. The Court fails to see what further facts need to be alleged to support the claim. (See West...

Excerpt: ...2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may...

Excerpt: ...laintiff, are insufficient to state a cognizable claim for punitive damages under the foregoing standard. Further, recovery of punitive damages in a dog-bite case appears to the Court to be inconsistent with California law, which imposes strict liability on an animal owner that causes personal injuries, but only for damages, not for punitive damages. (See Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115-1116 ["A common law strict liability cause...

Excerpt: ...ntiff Qian & Nemecek LLP dissolved on October 15, 2014, but remained in winding up status when it obtained the default judgment. (Nemecek Decl. 6, 7, 15 & Ex. B.) While in dissolution, the partnership could pursue its debt against Defendant, which is a routine and necessary part of winding up the business of a partnership. (California Practice Guide-Pass -Through Entities <0015000b0044000c000f00 000c0003003e00050024[ person winding up a partnersh...

Excerpt: ...is granted. The assertion by Plaintiff Allyson McGee that she does not recall reading or signing the Terms and Conditions and the arbitration agreement contained therein is not a basis to avoid enforcing the agreement. (See Cox v. Bonni (2018) 30 Cal.App.5th 287, 301 ["when a person with capacity of reading and understanding an instrument signs it, he may not, in the absence of fraud, imposition or excusable neglect, avoid its terms on the gr...

Excerpt: ...lement is denied without prejudice to its renewal upon a proper evidentiary showing. Although Rescue Roofing asserts this is a "no‐liability" case and that "none of Plaintiffs' alleged damages implicate Rescue's narrow scope of work," it has not presented any admissible evidence that would enable the Court to determine "a rough approximation of plaintiffs' total recovery and the settlor's proportionate liabil...

Excerpt: ...his actions created a substantial risk of tremendous harm to others. (See Civ. Code § 3294.) The evidence discloses that: Defendant had been driving for 17 hours prior to the accident (Richholt Decl., 2); Defendant was involved in an accident approximately two hours before hitting Plaintiff because Defendant "[t]ook [his] eyes off the road" while driving on the freeway at a high rate of speed (Kumar Depo., 44:5; Ex. E‐1); after the fir...

Excerpt: ...tion to vacate default and default judgment is denied. First, the motion is untimely. Code of Civil Procedure § 473.5 provides that the motion must be "filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered." In this case, the notice o...

Excerpt: ...Of Form Interrogatories, First Set Of Requests For Production Of Docs, And First Set Of Special Interrogatories To Pltf And X‐Deft Kevin Dorgan Pro Tem Judge Bruce Highman, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be...

Excerpt: ... Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to...

Excerpt: ... Insurance Company (PART 1 OF 2) Defendant Arup North America Ltd.'s ("Arup") motion for summary adjudication on its second cause of action for declaratory relief in its second amended cross-complaint against American Zurich Insurance Company and Zurich American Insurance Company ("Zurich") is granted. Zurich owes a duty to defend Arup in the underlying Millennium Tower property damage cases. Arup purchased general liability i...

Excerpt: ...ot Be Held In Contempt Of The Judgment Entered July 10, 2018 Plaintiffs J. Garcia Carrion, SA (JGC) and CIV USA's motion for an order for Defendants Vincent Friend and Kathleen Friend to show cause why they should not be held in contempt of the judgment entered July 10, 2018 is denied. A determination that a person is guilty of contempt under Code of Civil Procedure sections 1209(a)(5) and 1218 requires a showing "beyond a reasonable doub...

Excerpt: ...s related to the decedent, Myrtis Irving. (See Code Civ. Proc., §§ 2025.450, 2025.480.) According to the motion, Irving served the credit union with the subpoena on August 21, 2018, and the credit union has failed to produce the requested documents. (See Motion, pp. 2:1, 4:12-13.) In support of the motion, James A. McElroy avers the "credit union was properly served (see attached) with [the subpoena]." (Decl. 3:13.) Neither the motion n...

Excerpt: ...e of action in which Plaintiff is acting as a private attorney general and is seeking solely civil penalties. As such, under controlling law, Plaintiff's PAGA claims are not subject to arbitration or waiver pursuant to a predispute arbitration agreement. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 382‐383; Betancourt v. Prudential Overall Supply (2017) 9 Cal.App.5th 439, 445‐446; Esparza v. KS Industries, L.P. ...

Excerpt: ...ed on March 11, 2015, and a default judgment was entered on March 26, 2015. A motion to set aside a default judgment brought under Code of Civil Procedure Section 473(b) must be filed within six months. (Code Civ. Proc. § 473(b).) "The six‐month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six‐month period." (Arumbula v. Union Carbide Corp. (...

Excerpt: ...laint is overruled in its entirety. The breach of oral agreement cause of action alleges sufficient facts and is not uncertain. (See Amended Cross‐Complaint, 8‐11 and 28‐29.) BAGS alleges that CIE provided non‐conforming goods and services and given this stage of the litigation, CIE can reasonably respond to the amended complaint. The fraud/misrepresentation claims are well‐pleaded. BAGS identifies Carlos Amin as the person who made the...

Excerpt: ...efraud, and intentional infliction of emotional distress is denied. Golden Gate Tow has not met its burden under the first prong of the anti-SLAPP analysis. In order for a claim to be subject to the anti-SLAPP statute, the claim must arise from any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body. (Code Civ. Proc. § 425.16(e)(2); Rand Resources, LLC v. City of Carson (2019) 6 ...

Excerpt: ...re, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same ...

Excerpt: ...'s motion for an order determining restitution pursuant to Defendant FCA US LLC's § 998 offer is granted in the amount of $28,003.83. Pursuant to Civil Code § 1793.2(d)(2)(C), the mileage offset is to be determined on the basis of "the number of miles traveled by the new motor vehicle prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correcti...

Excerpt: ...igned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by em...

Excerpt: ...tion of the claim asserted in Plaintiff Zainali "Zain" Jaffer's complaint is granted and the action is stayed pending conclusion of the arbitration proceedings. The court exercises its discretion to review evidence submitted with Vungle's reply brief. Plaintiff may respond at the hearing, including with submission of additional evidence. (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1056-1059...

Excerpt: ...ortions of the records to be sealed; the overriding interest supports sealing those records; a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; the proposed sealing is narrowly tailored; and no less restrictive means exist to achieve the overriding interest. Any party who contests a tentative ruling must send an email to [email protected] with a copy to all other parties by 4pm st...

Excerpt: ...'s complaint is sustained without leave to amend as to the second and fourth causes of action for fraud. "[E]ven though the plaintiff alleges false representations on the part of the physician or fraudulent concealment, our courts have always treated the action as one for malpractice." (Tell v. Taylor (1961) 191 Cal.App.2d 266, 271.) Based on the conduct alleged in the complaint, this claim is more properly stated as one for medical m...

Excerpt: ...practices in violation of Business and Professions Code section 17200 et seq. fails because Cross-Complainants lack standing to bring such a claim. Standing to bring an Unfair Competition Law claim is limited to "any person who has suffered injury in fact and has lost money or property as a result of a violation of this chapter." (Bus. & Prof. Code § 17204; Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321.) First, Cross-Complai...

Excerpt: ...a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same auth...

Excerpt: ...ord, enumerated by the Register of Actions," be sealed. However, Defendant fails to show that any of the criteria set forth in Rule 2.550(d) of the California Rules of Court are met as to any individual record in the court file, much less the entire file. In particular, she fails even to articulate any overriding privacy or other interest in any record filed in this case that overcomes the right of public access to the Court's records. De...

Excerpt: ...e Wright, and Tom Bowen's motion to compel arbitration of the claims asserted in plaintiff Milton Boone Birdsell's complaint is granted and the action is stayed pending conclusion of the arbitration proceedings. The court exercises its discretion to review evidence submitted with Defendants' reply brief. Plaintiff may respond at the hearing, including with submission of additional evidence. (Espejo v. Southern California Permanente Me...

Excerpt: ...ns and second amended complaint is granted. Service of summons may be quashed if service was improper and the Court therefore lacks jurisdiction of the defendant. (Code Civ. Proc. § 418.10; Fuss v. City of Los Angeles (1958) 162 Cal.App.2d 643, 646‐647.) Although the Proof of Service submitted as Exhibit B to the Declaration of Ryan Whyte shows that the registered process server declares under penalty of perjury that he personally served Mr. D...

Excerpt: ...ontacts with California for purposes of its exercising specific jurisdiction over it for Cross- Complainant Bagatelos Glass Systems, Inc.'s claims. ESWindows directed its activities to the forum state by contracting with or at least performing a major part of the contract with Bagatelos. In particular, ESWindows provided the $1,500,938 written quote to Bagatelos "for ESWindows LLC to supply" the window and curtain wall systems (Rodrig...

Excerpt: ... default is denied. Mandatory relief is not available under the attorney affidavit of fault provision of Code of Civil Procedure Section 473(b) because Defendant has not submitted "an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect." (Code Civ. Proc. § 473(b).) Defendant does not contend that its default was taken as a result of the mistake, inadvertence, surprise, or neglect of counsel,...

Excerpt: ...native forum because Uber is subject to the personal jurisdiction of Washington courts, none of Plaintiffs' claims would be barred by the statute of limitations, and Washington can provide an adequate remedy for Plaintiffs' claims. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 752; Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700, 710.) Plaintiff Gorne's jurisdictional ties to California are irrelevant. As a non-California resident, his...

Excerpt: ...rements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telep...

Excerpt: ...tions under Code of Civil Procedure sections 128.5 and 128.7 is denied, and the Court declines Mr. Smith's invitation to reconsider the order on its own motion pursuant to Le Francois v. Goel (2005) 35 Cal.4th 1094. None of the purported new evidence Mr. Smith seeks to present affects the basis for the Court's original ruling, i.e., that a self‐represented litigant may not recover an award of attorneys' fees or other expenses as san...

Excerpt: ... GRANTED. The case regards the break-up of a law firm owned by brothers Daniel and Jonathan Bornstein. Six cases regarding several of the same parties and the same core disputes are already pending in Alameda County, where many of the parties and witnesses live. Moreover, the Alameda County court is no doubt well-versed in the facts underlying the case from years of adjudicating the Bornsteins' disputes. Thus, the "convenience of witnesse...

Excerpt: ... Cal.App.3d 703, 710.) But the evidence shows Nemedez is a Nevada resident and that the accident occurred in Reno. (Nemedez Dec. 1‐5.) Plaintiff fails to demonstrate that Nemedez consented to California jurisdiction. Plaintiff's reliance on an Uber form "Software License and Online Services Agreement" fails to show consent in several ways. First, that agreement issued in 2014, there is no evidence Nemedez was subject to it and plain...