Excerpt: ...ve decision denying Mr. Petty's application for industrial disability is set aside. Based on its independent review of the administrative record and weighing of the evidence, while affording a strong presumption of correctness to the administrative findings, the Court finds that the administrative determination as to disability and industrial causation is not supported by the weight of the evidence. (See Usher v. County of Monterey (1998) 65 ...

Excerpt: ...ue Pursuant To Code Of Civil Procedure. Defendants Dignity Health, U.S. HealthWorks Medical Group, Sheila Northcutt, P.T., and Lorraine Sunday, M.D.'s motion to change venue pursuant to Code of Civil Procedure section 397 is granted. While this Court's February 20, 2018 Order denied a previous motion to transfer venue under Code of Civil Procedure Section 395 because venue is proper in San Francisco County, that order specifically preserv...

Excerpt: ... denied without prejudice. As a threshold matter, Plaintiff incorrectly contends that PAGA requires judicial approval only of the penalties that are sought as part of a proposed settlement, but "does not require that a court approve any other elements of the proposed settlement, including the Plaintiff's individual settlement and the attorneys' fees and costs." (Mot. at 8.) Plaintiff mistakenly relies upon a prior version of Labor...

Excerpt: ...d County of San Francisco's motion for summary judgment is granted. The City is entitled to summary judgment on plaintiff's Fourth Amended Complaint and the City's Cross-Complaint. The July 16, 2014 settlement agreement between the parties is not a "regulatory contract," as the City never made a specific promise to accord plaintiff any sort of particular regulatory treatment. Plaintiff's argument that the City unconditiona...

Excerpt: ... granted in the total amount of $16,613.70. The award is made pursuant to Civil Code section 1717 and Section 9.400 of the Laws of the Benevolent and Protective Order of Elks of the United States. By amendment dated July 3, 2018, Respondent BPOE amended Section 9.400 to provide in pertinent part as follows: "In any action brought by the Benevolent and Protective Order of Elks of the United States of America against any Member, Lodge or State ...

Excerpt: ...ce Of Summons And To Dismiss Action For Lack Of In Personam Jurisdiction, Or, In The Alternative, To Dismiss Or Stay On Grounds Of Forum Non Conveniens. Defendant Meco Constructors, Inc.'s motion to quash is denied. Meco is subject to the California forum selection clause in paragraph 13 of the "TERMS AND CONDITIONS OF AGREEMENT." The Court overrules Meco's objections to the Whitehouse declaration. "He who takes the benefit mu...

Excerpt: ...otion to Set Aside Dismissal. However, Plaintiff failed to file a memorandum of points and authorities at that time, and at the February 7, 2019 hearing, the Court continued the motion to March 12, 2019. Plaintiff served notice of the new hearing date to Defendant. On March 12, 2019, one week before the continued hearing, Plaintiff filed its memorandum of points and authorities. The motion is now before the Court. Plaintiff asserts that it reache...

Excerpt: ... judgement pursuant to CCP § 473.5(a) is granted. Since any doubts as to the application of section 437 are resolved in favor of the party seeking relief, the court finds that defendant has shown it did not receive actual notice in time to defend and that lack of notice was not due to defendant's avoidance of service or excusable neglect. The declaration of Mr. Jiang states that no papers were received by Wuxi until the local court served pr...

Excerpt: ...gers 355 LLC dba Brass Tacks' motion for summary judgment is granted. Defendants' moving papers showed that Mr. Conway did not make any slanderous publication about Plaintiff Paul O'Grady drugging a female patron's drink at the Brass Tacks bar. Mr. Conway's Declaration, Kimberly Keating's deposition testimony, and Ryan Gilbert's Declaration included with the moving papers establish that Mr. Conway did not make the alle...

Excerpt: ...amended verified petition for writ of mandate for violation of Gov't Code § 3304(b) is sustained without leave to amend. (See Code Civ. Proc. § 430.10(e).) For purposes of this demurrer, the court will assume that the Chief's decision to file a disciplinary complaint against officer Kempinski is "punitive action" within the meaning of Gov't Code § 3304(b). (See Morgado v. CCSF (2017) 13 Cal.App.5th 1, 8.) Nevertheless, the ...

Excerpt: ...eciding this case. The demurrer of defendant City and County of San Francisco (erroneously sued as Zuckerberg San Francisco General Hospital) is sustained with 20 days' leave to amend. Plaintiff has leave to name the City as the proper party to this case rather than the hospital. (S.F. Charter Article 1, § 1.101; Article IV, § 4.110; S.F. Health Code, § 111.) The court rejects the City's remaining arguments. The City has failed to show...

Excerpt: ...o comply with the meet and confer requirements of CCP 430.41. The demurrer to the attorney malpractice (negligence) cause of action is overruled. Uchiyama cites the wrong statute of limitations as CCP 340.6 applies to the claim. Lopez sufficiently alleges discovery of the wrongdoing to render the cross‐complaint timely. (Amended Cross‐Complaint, 9‐11; see, e.g., Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 223‐225 [whe...

Excerpt: ...; of the Superior Court. Plaintiff fails to show that the "Central District" is San Mateo County. The fact that the contract specified San Mateo as the place of performance is distinct from the meaning of the venue selection clause. In addition, this "wrong court" motion is untimely and plaintiff waived the venue issue. Plaintiff chose San Francisco venue when it filed this action on March 29, 2018, and defendants did not move to ...

Excerpt: ...e No. CGC‐17‐557537 is granted. The cases are consolidated for all purposes with CGC‐ 17‐557537 as the lead case. The consolidated action is stayed pending the conclusion of the federal action between the parties in the Southern Disctrict of California, Case No. 3:16‐CV‐00704‐L‐JLB (S.D.Cal. filed March 23, 2016). Currently there are three pending actions between the parties dealing in whole or in part with the issues of the prese...

Excerpt: ...oncerning a living trust is the county where the principal place of administration of the trust is located. (Prob. Code § 17005(a)(1).) Plaintiff has failed to provide a declaration that establishes the principal place of administration of the trust, defined as "the usual place where the day‐to‐day activity of the trust is carried on by the trustee or its representative who is primarily responsible for the administration of the trust....

Excerpt: ... and Nadine Robbins‐Laurent's motion to compel arbitration is granted and the action is stayed pending the conclusion of arbitration proceedings of all causes of action stated in plaintiff Derrick Sutherland's complaint. Defendants have met their burden to show the existence of an agreement to arbitrate between Mr. Sutherland and BAART Programs, Inc. Plaintiff's arguments that although he signed the arbitration agreement, he did not...

Excerpt: ...s denied. Contrary to Defendants' contention, Plaintiffs James Austin and Raymond Schreiber's causes of action accrued, not when the Owner Move‐In Notice was provided to Plaintiffs, but upon discovery by Plaintiffs that Ms. Mwangi had ceased occupying the unit. Plaintiffs properly pled delayed discovery by showing that they were ignorant of the facts that suggested the eviction was noticed in bad faith until June 2016, when they learned...

Excerpt: ...undisputed evidence shows that defendant Hamner entered into the promissory notes and failed to make payment by the date of maturity. (Undisputed Facts 1‐8.) Defendant Hamner's fraud defense fails. First, the defense is not pleaded in his answer. "[A] defect in the answer may entitle the moving party plaintiff to a summary judgment if the only matter in dispute is a defense that has not been intelligibly asserted in the answer." (FP...

Excerpt: ... § 425.16(f) provides that "[t]he special motion may be filed within 60 days of the service of the complaint¿." The California Supreme Court has interpreted this provision to mean that "a defendant must move to strike a cause of action within 60 days of service of the earliest complaint that contains that cause of action." (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 640.) In this case, ...

Excerpt: ...ve damages allegations].) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements stated in the general punitive damages statute, Civil Code section 3294, including allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294(a).) "Malice" is defined as conduct "intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried...

Excerpt: ...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 the motion sign the stipulation, ...

Excerpt: ...judication originally came on for hearing on February 19, 2019. The motion seeks summary adjudication against defendant Ultratick, Inc. and does not seek relief against its manager Sean Sharma. The court tentatively took the motion off calendar because plaintiff filed a notice of settlement on January 14, 2019. Plaintiff and defendant's former counsel appeared at the hearing and explained that Mr. Sharma suddenly passed away before the settle...

Excerpt: ...ivil Procedure § 397(c) on the ground of inconvenience of witnesses and promotion of the interests of justice is denied. Defendant has not shown that the interests of justice will be served because of its delay in bringing the motion and the resulting prejudice to plaintiff from a likely further continuance of the trial date. Defendant filed its motion more than a year after it filed its answer, after the parties had already engaged in significa...

Excerpt: ...rly situated plaintiffs. Further, the settlement agreement provides that no portion of the settlement payments is to be paid to the LWDA, to similarly situated current and former employees, or to the PAGA representatives. Under the circumstances, is court approval of the settlement either authorized or appropriate under PAGA? 2. Should the settlement agreement be amended to expressly exclude from the definition of released Claims any representati...

Excerpt: ...I) and its attorney, David J. Cook, are denied. Because a self‐ represented litigant does not "incur" attorneys' fees, he or she may not recover an award of attorneys' fees as sanctions. (Musaelian v. Adams (2009) 45 Cal.4th 512, 520.) Further, Mr. Smith cannot recover expenses other than attorneys' fees as sanctions either, as "[a] party who acts on his or her own behalf does not thereby generate an expense that the par...

Excerpt: ...le issue of material fact regarding whether the City had actual and/or constructive notice of the bolts prior to the accident. (Peterson Dec., 3‐5; Mathias Depo., 12:16‐21; 13:22‐14:5.) On summary judgment, "[t]he evidence of the moving party should be strictly construed, and that of the opponent liberally construed, and any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.&#...

Excerpt: ...the Court's February 20, 2019 Order re Stewart Title of California Inc.'s Motion for Judgment on the Pleadings, which stated in pertinent part, "Motion is granted without leave to amend as to causes of action for breach of fiduciary duty and negligence. No opposition filed. Motion is GRANTED with leave to amend to allege a breach of contract cause of action only against the moving defendant. No other amendments allowed. . . . All amen...

Excerpt: ...without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. Counsel for ATI is required to prepare a proposed order in compliance with CRC 2.550(d) and (e) and must bring it to the hearing or email it to [email protected] prior to the hearing even if the tentative ruling is not contested.=(302/EPS) Case Number:CPF19516532Case Titl...

Excerpt: ...dent no longer employed Mr. Ryan when the e-mail package was delivered. (RT, 22:2- 24.) Since Mr. Buscarino and Ryan worked in the same position, he was competent to testify regarding who employed them. The Court further notes that petitioner does not highlight any evidence showing that Mr. Ryan can be considered respondent's agent for purposes of notice. As far as the Court can discern, the only evidence before the ALJ was Buscarino's te...

Excerpt: ... for implied covenant of good faith and fair dealing and is overruled as to the remaining causes of action. The Court has subject matter jurisdiction over the causes of action alleged in the FAC. The allegations on their face do not support defendant's challenge to the subject matter jurisdiction of the Court: Mr. Drenberg, a California resident, is suing on a contract that he allegedly entered into in California and performed partially in Ca...

Excerpt: ...tion under the Song-Beverly Act, plaintiff is entitled to recover "a sum equal to the aggregate amount of costs and expenses . . . determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Civ. Code § 1794(d).) Under the Song-Beverly Act, the Legislature intended the word "expenses" to cover items, such as expert fees, not included in the statutory ...

Excerpt: ...er for pretrial purposes or for trial to enhance trial court efficiency and to avoid the danger of inconsistent adjudications. Here, the two actions involve distinct claims against different defendants‐the first is no longer pending in that final judgment has already been entered, and the second has not yet proceeded to trial. Consolidation is not authorized or warranted under such circumstances. Plaintiff Julie Lee's motion for imposition ...

Excerpt: ... Code § 2699. In particular, the parties have not agreed to release or discharge any PAGA claims by any other individual, whether brought individually or on behalf of other aggrieved employees. The Court finds that the allocation of $15,000 in civil penalties to the settlement of plaintiff's PAGA claims, in relation to the settlement amount allocated to plaintiff's individual claims in the parties' confidential settlement agreement (...

Excerpt: ...ideration of the Court's January 29, 2019 Order denying his amended petition to compel arbitration is denied. Petitioner has failed to show any new or different facts, circumstances or law than those before the Court at the time of the original ruling. (Code Civ. Proc. § 1008(b).) Petitioner's motion is premised on an unsigned Memorandum of Understanding that was before the Court on the first motion (Sgromo Decl., Exh. 15), and it does n...

Excerpt: ... seek punitive damages if an employer fraudulently induces her to enter into an employment contract because by "pursuing a valid fraud action, a plaintiff advances the public interest in punishing intentional misrepresentations and in deterring such misrepresentations in the future." (Id. at 639.) Unlike Brewer v. Premier Golf Properties, LP (2008) 168 Cal.App.4th 1243, 1250, the complaint does not seek punitive damages based solely on a ...

Excerpt: ...ear 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 email. If no...

Excerpt: ...anting the motion of plaintiffs and judgment creditors Dale Duncan and Marta Mendoza's for the appointment of Kevin Whelan as receiver, plaintiffs' choice of receiver is entitled to great weight and there has been no showing sufficient to overcome the presumption that Mr. Whelan will faithfully comply with his oath and all court orders. Any party who contests a tentative ruling must send an email to [email protected] with a copy t...

Excerpt: ...Assurance Company To Produce Documents And Further Written Responses To Request For Production Of Documents, Set Two, Regarding Its In-House Doctor Carla Morton, M.D. Pro Tem Judge Jason Yurasek, 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 t...

Excerpt: ...ive damages prayer is GRANTED. Defendants shift the burden of production to plaintiff if they "present evidence that he does not possess, and cannot reasonably obtain, needed evidence ‐ as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854‐55.) Defendants have shown via plaintiff's discovery responses his lac...

Excerpt: ...iffs, Defendant ConocoPhillips failed to sustain its burden of demonstrating that Plaintiffs do not possess and cannot reasonably obtain evidence regarding Plaintiffs' cause of action for premises liability, Plaintiffs' cause of action for loss of consortium, and Plaintiffs' claim for punitive damages. (CCP § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 850‐51.) The burden of production "should not ...

Excerpt: ... Petition/Application To Compel Arbitration And Stay Civil Action. (part 1 of 2) Defendants Milestone Financial, LLC, Bear Bruin Ventures, Inc., William R. Stuart, Carolyn Stuart, and Zoe Hamilton's petition to compel arbitration and stay civil action is denied. Plaintiffs allege that they were fraudulently induced to enter into the original loan agreement and later loan modification agreements by Defendants' fraudulent misrepresentations...

Excerpt: ...i-SLAPP analysis because she has not met her threshold burden of show that her alleged denigration of Plaintiffs' dental practice constituted statements "made in a place open to the public or as public forum in connection within an issue of public interest" or "any other conduct in furtherance of the exercise of . . . the constitutional right of free speech in connection with a public issue or an issue of public interest." (Co...

Excerpt: ...avor of the earlier-filed action pending in Texas state court is denied. A trial court considering a forum non conveniens issue engages in a two-step process. The first step is to determine whether a suitable alternative forum exists. (National Football League v. Fireman's Fund Ins. Co. (2013) 216 Cal.App.4th 902, 917.) Where (as here) there is a suitable alternative forum, the court proceeds to the next step, consideration of the private int...

Excerpt: ...iled on October 24, 2016. Plaintiff failed to exercise reasonable diligence in the prosecution of this action. He did not serve defendant with the summons and complaint for over six months, causing the Court to issue an order to show cause. The delay was not attributable to settlement negotiations or discussions. Plaintiff was not reasonably diligent in either seeking or responding to discovery. Plaintiff failed timely to respond to proper discov...

Excerpt: ... declarations and documents filed by all three cross-defendants seeking good faith determinations in this case, particularly Plaintiff's interrogatory responses regarding the amount of their claimed damages and the report of Plaintiffs' expert Richard Avelar regarding the causes of the claimed damages and the costs to repair the identified water intrusion and associated damages. The discovery responses, expert report, and other declaratio...

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: ...er judgment confirming the award in favor of The Nobo, LLC and against Respondent Applepalm Enterprises, Inc. per Code of Civil Procedure section 1287.4. The scope of judicial review of arbitration awards is extremely narrow. An arbitrator's decision generally is not reviewable for errors of fact or law. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11; Branches Neighborhood Corp. v. Calatlantic Group, Inc. (2018) 26 Cal.App.5th 743, 750.) ...

Excerpt: ...s on both prongs of the anti- SLAPP motion analysis. First, Defendant has shown that the course of action challenged by Plaintiff arises from protected petitioning or free speech activity. As Plaintiff concedes in his opposition, his claims arise entirely from the allegedly false statement about his failure to pass the California Professional Responsibility Exam (CPRE) by February 15, 1993 as required by the State Bar and the resulting suspension...

Excerpt: ...te as a matter of law that it did not owe a duty of care to Mr. Roussos. Businesses, such as restaurants and bars, have an affirmative duty to take reasonable steps to secure their premises against reasonably foreseeable criminal acts of third parties. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) Under certain circumstances, this special-relationship-based duty may include a duty to provide security guards to protect the safety of pa...

Excerpt: ...s will not affect his ability to fairly and impartially decide this matter. Petitioner KHP III SF Sutter LLC's motion for an award of attorneys' fees under Code of Civil Procedure section 1021.5 is denied. While a taxpayer's due process right to appeal from a real property tax assessment undoubtedly is an important right affecting the public interest, the necessity and financial burden of private enforcement are not such as to make th...