Excerpt: ...ntrary to the weight of the evidence. The evidence shows that Mendoza agreed to submit to a breath test but failed to complete the test when, on each of three attempts, he refused to place his lips completely over the mouthpiece, causing an error. (See Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 875 [compliance with the implied consent law consists of completing, not merely attempting the test offered].) Mendoza's failure to c...

Excerpt: ...its initial burden. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 [a defendant moving for summary judgment "bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto."].) Morrow‐Meadows has not established there are no triable issues of fact as to whether it is liable to Plaintiff. Morrow‐Meadows owed a duty of care to Plai...

Excerpt: ...nt is denied. Although Plaintiff did not timely serve the second amended complaint in compliance with the court's order, Defendants did not seek entry of judgment pursuant to Code Civ. Proc., § 581(f)(2) before Plaintiff served the second amended complaint. Further, Defendants do not show that they met and conferred with Plaintiff before filing their motion to strike, as required by Code Civ. Proc., § 435.5. Any party who contests a tentative r...

Excerpt: ...brief. As the court previously noted, petitioner had the information that it needed to assert this issue prior to filing his moving papers, but he failed to do so. The reply brief was not rebutting an argument that respondent raised. Petitioner therefore waived the matter. Petitioner's citation to and reliance on an unpublished Court of Appeal decision is improper. (Cal. R. Ct. 8.1115(a).) The court rejects Petitioner's res judicata argument, whi...

Excerpt: ...ecember 30, 2019, Line 1, PLAINTIFF FRED LARSEN Motion To Compel Defendant Top Dog Pet Care LLC (Dba Top Dog Sf) To Produce Its Person(S) Most Qualified And Custodian Of Records To Appear For Deposition And Production Of Documents And Request For Monetary Sanctions. 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 m...

Excerpt: ..., PETER YORKE, SHAUN SAMUELS Motion In Support Of Motion To Compel Deposition Of Person Most Knowledgeable Of Defendant And Cross‐Complainant Confluent Medical Technologies, Inc.; Memorandum Of Points And Authories; Declaration Of Kirk B. Freeman; Request For Judicial Notice Plaintiff Endovention, Inc.'s motion to compel deposition of person most knowledgeable of Defendant and Cross‐Complainant Confluent Medical Technologies, Inc. is granted ...

Excerpt: ...roceeding." Plaintiff's request for the court to exercise "discretion" under § 1032(a)(4) is misplaced. A prevailing party includes a "defendant in whose favor a dismissal is entered" such as Defendant in this matter, in whose favor judgment was entered on November 20, following its successful motion for summary judgment. (Code Civ. Proc. § 1032(a)(4).) A court may not consider the paying party's financial resources or inability to pay. (See Ne...

Excerpt: ... 430.10(e).) "Res judicata bars a cause of action that was or could have been litigated in a prior proceeding if: '(1) the present action is on the same cause of action as the prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the parties in the present action or parties in privity with them were parties to the prior proceeding. [Citation.]'" (Federal Home Loan Bank of San Francisco v. Countrywide Finan...

Excerpt: ...ntiffs and Vantage Maintenance. (See Code Civ. Proc., § 452; Compl., 2, 5, 9, 11.) Vantage Maintenance argues the allegations use boilerplate language, but at the outset of litigation, the amount of specificity in Plaintiffs' complaint adequately gives the Defendants notice of the issues. (See, e.g., Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 451.) Similarly, at the pleading stage, Plaintiffs do not have to specifically name whic...

Excerpt: ...at Daniel Akhromtsev has been using CHH's funds to make questionable expenditures, including monthly car payments, credit card payments, gasoline, grocery shopping, dining, food delivery, and other personal expenses; and generally that Defendants have been managing CHH without the full knowledge or consent of Plaintiffs, although CHH's operating agreement provides that it "shall be controlled by its Members, acting unanimously." Defendants summar...

Excerpt: ... loan agreement contains a mandatory forum selection clause, selecting San Francisco County for all disputes. (Compl., Ex. A, 6.) Thus, Defendant has contracted away his right to choose the forum. (Berg v. MTC Electronics Tch. (1998) 61 Cal.App.4th 349, 358 ["The factors that apply generally to a forum non conveniens motion do not control in a case involving a mandatory forum selection clause."]; Cal-State Bus. Prod. & Servs. (1993) 12 Cal.App.4t...

Excerpt: ...re Sanctions. Plaintiff's motion to seal is denied. Both parties' requests for sanctions are denied. "Unless confidentiality is required by law, court records are presumed to be open." (Cal. Rules of Court, Rule 2.550(c).) Records may be sealed only if the court "expressly finds" that "(1) There exists an overriding interest that overcomes the right of public access to the record; [] (2) The overriding interest supports sealing the record; [] (3)...

Excerpt: ... And Or Vacate Judgment Of Dismissal Of Action With Prejudice, After Sustaining Of Demurrer To Complaint Without Leave To Amend And Order Granting Defendants Demurrer To Complaint, If Entered. (Part 2 Of 2 For Tentative Ruling). After the six-month period for statutory relief has passed, the court may still grant relief on equitable grounds, including extrinsic fraud or mistake. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47.) There ...

Excerpt: ...To Impose Monetary Sanctions On Defendants Patrick Foy, Franklin Loffer, Np Sand And Sea Partners, Llc, Nphss, Llc, And North Point Ocean Partners, Llc Pro Tem Judge Robert Kane, 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 ma...

Excerpt: ...ative mandamus in Superior Court. (See, e.g., Delta Dental Plan of California v. Banasky (1994) 27 Cal.App.4th 1598, 1605‐1608.) However, Defendant has not conclusively established that such a claim is the only cause of action that Dr. Khehra may bring following the termination of her membership or contract, or that all of her causes of action solely constitute challenges to such termination. (See, e.g., Economy v. Sutter East Bay Hospitals (20...

Excerpt: ...ys General Act of 2004 (PAGA) for civil penalties for Defendants' alleged violations of the California Labor Code governing, among other things, provision of meal and rest breaks, payment of wages, provision of itemized wage statements, and indemnification of expenditures. Claims under PAGA are not arbitrable. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 384 ["where, as here, an employment agreement compels the waiver o...

Excerpt: ...quests For Admissions, Admitted Pro Tem Judge Scott Borrowman, 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 ...

Excerpt: .... Plaintiff has maintained its burden of production on each of its claims for breach of contract and common counts based upon the declaration of Plaintiff's qualified witness, Jarrad M. Emamian. The Court overrules Defendant's objections to the Emamian declaration. Mr. Emamian properly lays a foundation to testify regarding the Bank's business records, which meet the business records exception of Evidence Code, § 1271. (Emamian Decl., 1‐5; Peo...

Excerpt: ...ide the scope of the arbitration clause in the Operating Agreement, which provides that "any dispute arising out of this Agreement shall be arbitrated under the terms of this clause." This clause is limited in scope to disputes relating to the interpretation and performance of the Operating Agreement. (See Rice v. Downs (2016) 248 Cal.App.4th 175, 187.) Plaintiff's "Complaint for Breach of Written Loan Agreement" does not allege any breach of the...

Excerpt: ...ction for declaratory and injunctive relief is sustained without leave to amend. (See Code Civ. Proc., § 1061 ["The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances."] The gravamen of the third cause of action contests respondent Regents' conduct during the course of the substitution administrative hearing. (Complai...

Excerpt: ...staining without leave to amend Defendants' demurrer to the petition for writ of mandate and complaint for injunctive and declaratory relief, the Court entered judgment against Petitioners, and directed that they "shall take nothing by reason of their complaint" and that the action be dismissed with prejudice. Petitioners are not entitled to attorneys' fees under the Ralph M. Brown Act. Government Code section 54960.5 authorizes a court to award ...

Excerpt: ... Enforce Protective Order, And Stay Discovery Pro Tem Judge Aaron Minnis, 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 proc...

Excerpt: ...tion for breach of contract alleged by Solvd, sustained without leave to amend as to the sixth cause of action for violation of Penal Code 496, and overruled as to all other causes of action. The breach of contract claim alleged by Solvd, a non‐party to the contract, lacks ultimate facts to support Solvd's ability to sue as a successor. There is no allegation why Solvd is a successor to QaProsoft. The second through fourth causes of action for ...

Excerpt: ...IA MATURIN'S Motion To Compel Deposition Attendance Of Defendant General Motors Llcs Person(S) Most Knowledgeable And Custodian(S) Of Records; And Request For Sanctions Pro Tem Judge Scott Borrowman, 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 agreei...

Excerpt: ... leave to amend. Ms. Bell alleges that the City is directly and vicariously liable for the negligent training, hiring, and disciplining of its officers. The City has no direct liability for negligent hiring and supervision. (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 252 ["We find no relevant case law approving a claim for direct liability based on a public entity's allegedly negligent hiring and supervision practices."]; Munoz...

Excerpt: ...duty and the eighth cause of action for fraud in the cross-complaint filed by Robert and Nili Poynter is overruled as to all three causes of action. The cross-complaint does not show that the negligent misrepresentation and fraud claims are necessarily barred by the statute of limitations. Assuming the limitations period began to run in April 2016, the cross- complaint was filed within three years of the filing of this lawsuit. (ZF Micro Devices,...

Excerpt: ...ed 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 email...

Excerpt: ...gainst it in the first amended complaint filed by plaintiff Coby Velasquez is granted without prejudice to Mr. Velasquez's right to file a motion seeking leave to amend to allege punitive damages allegations against Ridge Tool if and when Mr. Velasquez discovers or otherwise learns of and is able to plead facts supporting punitive damages liability against Ridge Tool. No opposition filed and good cause shown. Mr. Velasquez has not alleged suffici...

Excerpt: ... DEFENDANT DONG FU's Motion To Sanction Demas Yan, Tina Yan, And Mark Lapham And To Set Aside And Void (1)Judgment Of January 14, 2015 And (2) Acknowledgment Of Assignment Of Judgment Of August 5, 2019 And To Deem Or Declare Demas Yan And Tina Yan To Be Alter Ego Of Legal Recovery, LLC. Defendant Dong Xing Fu's motion to sanction Demas Yan, Tina Yan and Mark Lapham, to set aside the judgment of January 14, 2015 and the assignment of that judgment...

Excerpt: ... ends of justice would be promoted by the change." The burden is on the party seeking a change of venue to prove 1) that the convenience of witnesses and 2) that the ends of justice will be promoted by a change. (Corfee v. Southern California Edison Co. (1962) 202 Cal.App.2d 473, 477.) To show the convenience of witnesses, the moving party "must do through affidavits which contain something more than generalities and conclusions. Affidavits or de...

Excerpt: ...t possess, and cannot reasonably obtain, needed evidence that he was exposed to asbestos‐containing products or materials attributable to Defendant. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Defendant failed to ask follow up questions about Bob Johnson, who Plaintiff testified made purchases with him at the Pacific Coast Building Supply Store. (Triplett Declaration, Ex. B at 667; Scheiding v. Dinwiddie Constr. Co. (1999) 6...

Excerpt: ...unty Superior Court. Defendant Julie Anne Mesman's motion to change venue is denied. Defendant's motion to change venue under Code Civ. Proc. § 397(a)'s mandatory grounds is denied. On a motion to change venue, the burden is on the moving party to show (1) that venue is proper in a different county than the one in which the lawsuit was filed and (2) that venue is improper in the current county under any applicable theory. (La Mirada Community Ho...

Excerpt: ...omplaints were untimely. "Substantial evidence" is defined as evidence of "ponderable legal significance?reasonable in nature, credible, and of solid value?[and] relevant evidence that a reasonable mind might accept as adequate to support a conclusion." (Young v. Gannon (2002) 97 Cal.App.4th 209, 225.) The parties agree that "[u]nder the City's internal complaint procedures, complaints of discrimination must be filed within 180 calendar days of t...

Excerpt: ...oss‐complaint is granted on the following specified conditions which Geo‐Cell must agree to either orally at the hearing or in writing sent to counsel for cross‐defendant Maxxon Corporation prior to the hearing. The conditions that Geo‐ Cell must agree to are: 1) Geo‐Cell must serve verified code‐compliant responses without objection other than privilege no later than December 16, 2019 to the following deem‐served discovery: a) stat...

Excerpt: ...[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service." (Ellard v. Conway (2001) 94 Cal.App.4th ...

Excerpt: ...ely concede that they have failed to exhaust administrative remedies. (See Contractors' State License Board v. Sup. Ct. (2018) 28 Cal.App.5th 771, 778‐79.) Plaintiffs nonetheless urge me to bypass the administrative proceedings using a "public policy exception" that appellate courts sometimes invoke, usually without calling it that. However, I believe a factual record developed in the administrative proceedings would be beneficial to reasoned a...

Excerpt: ... all overruled: 1: A "plaintiff may plead the legal effect of the contract rather than its precise language." (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) Moreover, defendants claim no lack of clarity regarding the contract. (Id.) 2: Alter ego is adequately pled against the individual defendants. (Cmplt. 2:19-3:19.) 3: Promissory fraud is adequately pled; e.g., the complaint alleges that defendant...

Excerpt: ...s 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 authority as a Superior Court Judge. If a party a...

Excerpt: ...es In Support; Declaration Of Timothy H. Stearns; Proposed Order Defendant Mary Franus' amended motion for an award of mandatory attorney's fees and costs is granted in part. Ms. Franus is awarded $10,044.54 in fees and costs, the amount she sought in her initial motion. It is undisputed that, by her attorney, Ms. Franus agreed not to pursue further efforts to seek fees and costs for the services rendered in her successful anti‐SLAPP mo...

Excerpt: ...n for attorneys' fee per CCP 425.16 is denied. The unsuccessful arguments made by defendant Twitter, Inc. why the claims alleged by plaintiffs were not covered by the public interest exception to the activity protected by the anti‐SLAPP statute were neither totally and completely without merit nor solely intended to delay this case. Twitter's arguments fall well within the broad range of permissible and non‐ sanctionable arguments tha...

Excerpt: ... Hall is granted. The Supreme Court of New York is the proper forum, at least in the first instance, for the adjudication of Ms. Hall's claims against Mr. Rosen. Mr. Rosen was appointed as an assignee per a New York statutory scheme and the New York court has supervisory authority over Mr. Rosen, which includes the authority to impose personal liability against Mr. Rosen for his conduct relating to his role as assignee. While California has a...

Excerpt: ... case is stayed pending the conclusion of arbitration proceedings on all of the claims filed by plaintiff Rachel Moore other than her PAGA claim. Ms. Moore's PAGA claim is not subject to arbitration per the California Supreme Court's decision in Iskanian. Considered singly or collectively, none of the litigation conduct of the moving defendants constitutes a waiver of their right to arbitrate the claims of plaintiff Rachel Moore nor has M...

Excerpt: ...ded Notice Of Hearing On General And Special Demurrers To Plaintiffs Superseding Third Amended Complaint Defendants Station House C1, LLC, VC Multifamily Portfolio Venture GP, LLC and VC Fund C-1, LLC's demurrer to the first, second and fourth causes of action in the superseding third amended complaint filed by plaintiff Mint Collection - 410-418 Jessie Street Condominium Owners' Association is sustained without leave to amend as to all t...

Excerpt: ...nsel for defendants Eric Smith and Berman Skin Institute Medical Group, Inc. prior to the hearing. The conditions that Mr. Perez must agree to are: 1) after the first amended complaint is filed, defendants may withdraw their current motion for summary judgment and file one or more motions for summary judgment and/or adjudication on 30 days instead of 75 days' notice; 2) Mr. Perez must serve verified code‐compliant responses without objectio...

Excerpt: ...nia 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 authority as a Superior Cou...

Excerpt: ...y with the money deposited into Wells Fargo Bank accounts xxxxxx4046 and xxxxxx4826 until entry of final judgment in this action is granted. The motion is unopposed and Thermo Energy has shown that it is likely to prevail on the merits of its fraud claims against Doe defendants based on evidence that Thermo Energy has been the victim of a fraudulent phishing scheme. (Collard Decl. Exh. A‐ E 12). Thermo Energy has also shown that it is likely to...

Excerpt: ...ONG's Motion For Reconsideration And Revocation Of Order Granting Motion To Set Aside Default And Default Judgment. Plaintiffs' motion for reconsideration and revocation of order granting motion to set aside default and default judgment is DENIED. Plaintiffs lacked reasonable diligence in adducing their "new evidence," which was in any event duplicative of an insurer's declination they apparently already knew about. Further, a...

Excerpt: ...2019, 2018, Line 17, DEFENDANT THE CANADA LIFE ASSURANCE COMPANY, COMPUTER SCIENCES CORPORATION, SWISS RE LIFE & HEALTH AMERICA, INC. MOTION FOR SUMMARY JUDGMENT Or In The Alternative, Summary Adjudication Of Issues.(part 1 of 2) Defendant Canada Life Assurance Company's motion for summary adjudication is denied as to issues 1, 2, and 3. There are triable issues of material fact regarding whether Canada Life breached the contract, breached th...

Excerpt: ...is necessary for his support. Woo fails to cite a statutory basis to exempt the excess and fails to meet his burden under CCP 704.080(e)(4). If Woo is relying on the necessary for support exemption of CCP 706.051(b), that exemption does not apply as this case does not involve an earnings withholding order. Any party who contests a tentative ruling must send an email to [email protected] with a copy to all other parties by 4pm stating, wit...

Excerpt: ...e Section 437c. Plaintiff The People of the State of California, by and through the Commissioner of Business Oversight's motion for summary judgment is GRANTED. Defendant Douglas R. Hanson does not dispute that the court had the authority to amend the duties of the Special Master and the interlocutory judgment and to issue the stay on the litigation against the LLCs. Moreover, the court has inherent power to amend existing orders and to issue...