Excerpt: ... is granted. Plaintiffs establish that they are entitled to $177,321.88 in damages based upon defendant's breach of the settlement agreement. Plaintiffs establish a prima facie case for breach of contract and the court overrules defendant's evidentiary objections. Plaintiffs demonstrate personal knowledge regarding the matters in their declarations and the IRS documents are admissible as official acts. (Evid. Code, §§ 452(c) and 1280.) The part...

Excerpt: ...is denied. The motion for summary adjudication is denied as to the Labor Code claims, UCL claim, and breach of the Of Counsel contract claim (causes of action 1, 2, 3, 4, 5, 8, 9, and 10). There is a triable issue of material fact regarding whether the parties had an employment relationship until Mr. Murry's termination on April 10, 2017. On January 19, 2011, Mr. Murry began working for the Law Offices of John T. Hendricks (a sole proprietorship)...

Excerpt: ...for an order directing the filing of an undertaking pursuant to Code of Civil Procedure section 1030 is denied. Section 1030 provides: "When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees." Plaintiffs argue under Code ...

Excerpt: ... complaint. Plaintiff did not comply with the prefiling requirement of Code of Civil Procedure, § 425.13. However, such compliance is not necessary where a party pleads a viable elder abuse claim. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 ["Where the gravamen of an action is violation of the Elder Abuse Act, Central Pathology's rationale for applying section 425.13 to the common law intentional torts at issue in that ...

Excerpt: ...g that plaintiff was a victim of sexual battery and defendant is vicariously liable. (Amended Complaint, 16, 21, 23, 37, 38, 40, 41, 42, 44, 49, 63, 65, 68, 90, 94, 95, 96, 97, 99, 108, 109, 11, 114.) A factual issue remains whether plaintiff was sexually battered. Whether plaintiff lacks memory of the specifics of the incident is not dispositive, since it is conceivable that other evidence could support the claim. The allegation that plaintiff's...

Excerpt: ...ut 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 plaintiff is required to prepare a proposed order which states that the motion was not opposed 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:CGC19576379Ca...

Excerpt: ... Civ. Proc., § 430.10(e).) Although Plaintiff did not file and serve her opposition at least 9 court days prior to the hearing, as required, and the Court previously warned Plaintiff that failure to comply with the rules could be grounds for sustaining a demurrer without leave to amend and dismissing the action, the Court decides the demurrer on its merits. The demurrer as to the first cause of action for breach of contract is sustained without ...

Excerpt: ...eks discretionary relief from default on grounds of "mistake, inadvertence, surprise or excusable neglect." (Code Civ. Proc., § 473(b).) "In order to qualify for relief under section 473, the moving party must act diligently in seeking relief." (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.) If there is a substantial delay between discovery of the default and defendant's filing a motion for relief under § 473(b), defendant must show a re...

Excerpt: ...he implied covenant of good faith and fair dealing. Those claims refer to numerous alleged written and oral contracts, including (1) the June 8, 2015 Common Stock Purchase Agreement; (2) oral employment agreements; (3) oral and written agreements by Hemington to serve as Plaintiff's escrow agent; and (4) an October 12, 2017 written agreement between Defendant MacRegen, Inc. and Plaintiff. (FAC 14-16.) Despite this Court's prior order of June 19, ...

Excerpt: ...Or In The Alternative Summary Adjudication. Defendant State of California's motion for summary judgment is granted against Plaintiff and Cross‐Complainants Cory Lambert and HCC Cable Services. Defendant City and County of San Francisco's motion for summary judgment is granted against Cross‐Complainants Cory Lambert and HCC Cable Services. CCSF's motion against Plaintiff is moot, in light of the parties' notice of settlement. Government Code �...

Excerpt: ...ght of its inherent power to "amend and control its process and orders so as to make them conform to law and justice." (Code Civ. Proc. § 128(a)(8).) On June 2, 2016, this court granted a stay in this case pending final resolution of case No. C081016 in the Third District Court of Appeal. The Third District has finally resolved that appeal. On May 23, 2019, the Third District held that the June 25, 2013 judgment Plaintiff was seeking to appeal w...

Excerpt: ...l punitive damage 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 on by the defendant with a willful and conscious disregard for the rights or safety of others." (Civ. Code § 3294(c)(1).) Absent an intent to injure the plai...

Excerpt: ...Plaintiff has maintained its burden of production on each of its six breach of contract and common counts claims based upon plaintiff's deposition testimony and the declaration of plaintiff's qualified witness (Carol Rowe). The court overrules defendant's objections to the Rowe declaration. Ms. Rowe properly lays her foundation to testify regarding the business records that meet the business records exception of Evidence Code, § 1271. (Rowe Dec....

Excerpt: ... show that the concrete floor where plaintiff fell constituted a dangerous condition. There is no evidence that the floor was a dangerous condition when it was in its dry, unadulterated state. Plaintiff's expert (Zachary Moore) states that the floor had an average dry slip resistance of .73, which exceeds the industry standard of .5. (Moore Dec., 7‐8.) There is also no evidence that the floor was dangerously wet on the day of the occurrence. Mo...

Excerpt: ...tional path is part of the Bay Trail. (Breault Dec., 9-11.) Plaintiff's claim fails because Brisbane is entitled to trail immunity under Gov't Code § 831.4(b). The undisputed evidence shows that the injury occurred because a condition of the trail, i.e., a gap in the concrete, caused plaintiff to fall while he was using the trail to access a recreational or scenic area. (See pictures attached to Plaintiff's Exs. B and D.) Under the circumstances...

Excerpt: ...f has engaged in "bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay" (Code Civ. Proc. § 128.5(a)) is "measured by the objective reasonable attorney standard." (Mot. at 6.) Defendant is wrong. Section 128.5 was amended in 2017 to specifically overrule San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, which held that "an objective standard applies when determining whether ...

Excerpt: ...losure And Defendants Expert Micheal Flemming And For Monetary 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 agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the sti...

Excerpt: ...hip with Velofix Bay Area, which is alleged to have distributed or sold the bicycle. (Amended Complaint, 6‐10, 17; see Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1534 ["Beyond manufacturers, anyone identifiable as 'an integral part of the overall producing and marketing enterprise' is subject to strict liability"]; Bay Summit Community Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, 772‐773 [parties subject to stri...

Excerpt: ...e settlement agreement and enter judgment is denied. On its face, the motion seeks enforcement of an illegal penalty. A settlement agreement that allows a plaintiff to file a stipulation for entry of judgment upon default by the defendant will not be enforced if the amount of the judgment constitutes an unenforceable penalty because it bears no reasonable relationship to the range of actual damages the parties could have anticipated would flow fr...

Excerpt: ... Kamelia Begley (Continued From 10/17/19). Defendant Delta Dental of California's Motion for Summary Judgement is granted. Assuming Plaintiff Kamelia Begley has provided sufficient evidence to establish the prima facie elements of her discrimination and retaliation causes of action, the burden shifts to Defendant to show a legitimate, non‐discriminatory reason for Plaintiff's termination. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 8...

Excerpt: ...nt must set forth the elements stated in the general punitive damage 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 on by the defendant with a willful and conscious disregard for the rights or safety of others." (Civ. Code ...

Excerpt: ...gender/sexual orientation discrimination, retaliation, failure to maintain environment free of discrimination/harassment, and race discrimination all fail because plaintiffs cannot demonstrate an adverse employment action. Plaintiffs also fail to demonstrate harassment as they cite isolated and sporadic remarks. To establish a discrimination or retaliation claim, "[t]he employment action must be both detrimental and substantial." (Thomas v. Depar...

Excerpt: ...Court. (Local Rule 2.7(B).) As to Plaintiff's design defect claims, Defendant failed to demonstrate that it supplied a specific product to the Navy pursuant to a contract and specific MIL‐SPEC that required asbestos between January 1980 through October 14, 1982, as not all packing MIL‐SEPCS specified asbestos as a required ingredient. (Springs Declaration, Ex. H [MIL‐P‐ 17303C].) As to Plaintiff's failure to warn claims, Defendant failed ...

Excerpt: ...or failure to lodge courtesy copies with the Court. (Local Rule 2.7(B).) Defendant sustained its initial burden via the factually devoid prong of Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. Plaintiff's special interrogatory responses demonstrate that Plaintiff does not possess, and cannot reasonably obtain, evidence that Defendant acted with the requisite malice, fraud or oppression to warrant the imposition of punitive damages. (Exs...

Excerpt: ...Motion is granted as follows: Dr. Ranjithan shall answer questions regarding the 2008 MRI scans, and regarding whether before 2009 anyone had ever criticized his interpretation of a MRI. Dr. Ranjithan shall not be compelled to provide his present or after the fact opinions about the 2008 MRI scan. To clarify: the questions delineated on Plaintiff's Reply Memorandum 2:20‐3:23 are proper because they do not seek Defendant's present or aft...

Excerpt: ...' opposition inexplicably addresses a different case involving a defendant named Estevez who was allegedly driving drunk. (Opp. at 3, 4.) While Taylor v. Superior Court (1979) 24 Cal.3d 890 held that driving a vehicle while intoxicated may in appropriate circumstances evidence a conscious disregard of probable injury to others and be sufficient to warrant an award of punitive damages, there is no such allegation in the instant complaint. Chin...

Excerpt: ...Of Plaintiffs Motion To Compel Further Responses And Responsive <0048005100570056000300 00240051004700030029>or Sanctions HEARING REQUIRED. The LWDA letter and original complaint both treated DDI and LA Driver as a joint employer (both use the singular "Defendant"), but Plaintiffs now confirm they are not asserting a joint employer theory. (Reply at 8). The original complaint but not the LWDA letter use DDI "and/or" LA Drivers. Th...

Excerpt: ...Sixth, Seventh, Eighth, And Ninth Causes Of Action Of Plaintiffs First Amended Complaint Defendant San Francisco Housing Authority's motion for judgment on the pleadings is granted without leave to amend as to the sixth cause of action. "[U]nless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector." (Johnson v. Arvin‐Edison Water Storage Dist. (2009) 174 Cal....

Excerpt: ...on per Code of Civ. Proc., § 1094.5(h). To obtain such a stay, petitioner must demonstrate that the stay will not cause the public interest to suffer and the agency is unlikely to prevail on the merits. (See Board of Medical Quality Assur. v. Superior Court (1980) 114 Cal.App.3d 272, 276.) In this case, petitioner fails to meet either prong of this test. Given petitioner's history of substance abuse, petitioner fails to show that it would be...

Excerpt: ...Britz, Inc. v. Alfa- Laval Food & Dairy Co. (1995) 34 Cal.App.4th 1085, the court held that a successful party to arbitration is entitled to post-award, pre-judgment interest under Civil Code section 3287, subdivision (a). The Britz court held that a successful party to an arbitration is entitled to "recover damages certain" within the meaning of section 3287, subdivision (a) as of the date the arbitrator renders his or her award. (Id. at...

Excerpt: ...in Interest did not succeed on any significant issue in this litigation. (Cf. Save Our Heritage Organisation, 11 Cal.App.5th at 157 [project proponent successfully appealed judgment granting petition for writ of mandate which challenged city's approval of site development permit for park revitalization project]; Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal.App.3d 633, 635-637 [appellants filed initial comp...

Excerpt: ..., second, fourth, fifth and seventh causes of action are overruled. The demurrer to the third cause of action is sustained with 20 days leave to amend. The demurrer as to the first cause of action for negligent hiring, training, supervision, and/or retention is overruled. Liberally construing the complaint, Plaintiffs plead sufficient facts to establish a claim. (See Code Civ. Proc., § 452; 2d Am. Compl. 10, 11, 15, 26‐27.) Whether an employee...

Excerpt: ...complaint was filed on July 3, 2018. By order filed November 5, 2018, the Court sustained Defendant's unopposed demurrer to that complaint, which the Court found to be uncertain, ambiguous and unintelligible, and granted Plaintiff 10 days leave to amend. Plaintiff did not do so. By order filed November 29, 2018, the court granted Plaintiff 60 days leave to file a second amended complaint, due January 31, 2019. The order directed Plaintiff tha...

Excerpt: ... JUDGMENT. (part 1 of 2) Defendants' Cahill Contractors, Inc., 923 Folsom Acquisition, LLC, Align Real Estate, LLC and Pacific Structures, Inc.'s motion for summary judgment is granted. Plaintiff merely demonstrates "abstract negligence" and cannot establish causation as a matter of law. "In cases in which the specific conduct of third parties is brought to the attention of a defendant property owner sufficiently in advance of...

Excerpt: ...sities. (See Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115‐1116 ["If [defendant] knew or should have known of his dog's vicious propensities and failed to inform [plaintiff] of such facts, he could be found to have exposed [plaintiff kennel worker] to an unknown risk and thereby be held strictly liable at common law for her injuries. [Citations.] Under such circumstances, the defense of primary assumption of risk would not bar [plaintif...

Excerpt: ...ruled. Whether plaintiff can present clear and convincing evidence that Stanley intended for the funds and other property to go to plaintiff and whether the funds are sufficiently identifiable are factual issues that cannot be resolved on demurrer. The face of the complaint does not reveal that the claims are time‐barred. A demurrer can be used only to challenge defects that appear on the face of the complaint or matters outside the pleading th...

Excerpt: ...ouglas Bell does not possess and cannot reasonably obtain evidence that he was exposed to asbestos‐containing products or materials attributable to Defendant. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) Defendant does not address Plaintiff's interrogatory responses identifying witnesses Pat Tillman and Robert Lee, or his deposition testimony identifying classmates Pat Tillman, Brenda and Tom Mock, Mel Friedman, and Lee Boek. ...

Excerpt: ...Plaintiff's demand for "disgorgement" is an improper claim for relief under the UCL. "Under the UCL, an individual may recover profits unfairly obtained to the extent that these profits represent monies given to the defendant or benefits in which the plaintiff has an ownership interest." (Korea Supply Co. v. Lockheed Martin (2003) 29 Cal.4th 1134, 1148 [explaining that only "nonrestitutionary disgorgement of profits" i...

Excerpt: ...espondent received the complete record by August 6, 2019, but the date of receipt is not entirely clear. (AR, 64.) Petitioner argues that respondent's answer was filed more than 30 days later, was untimely under Code of Civ. Proc. 1089.5, and petitioner's allegations are therefore deemed admitted. The court rejects this argument. First, the argument was made for the first time in the reply papers and there was nothing that prevented petit...

Excerpt: ...ment was in writing with the parties' signatures. (See Code Civ. Proc., § 664.6.) A settlement agreement is interpreted according to the same principles as any other written agreement. (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1374 ["If the language of the agreement is clear and explicit and does not involve an absurdity, determination of the mutual intent of the parties and interpretation of the contract is to b...

Excerpt: ...claims, as it only limits Plaintiff's remedies, rather than disposing of an entire cause of action, as is required for summary adjudication. Under Cal. Civ. Proc. § 437c(f)(1), a "motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." The doctrines of after‐acquired evidence and unclean hands are "not complete defen...

Excerpt: ...ils to maintain its initial burden of production. The owner‐operator of an elevator is a common carrier and it owes a high duty of care to those that use the machine. (See Treadwell v. Whittier (1889) 80 Cal. 574, 600 [elevator owners "must adopt the most improved modes of construction and machinery in known use in the business, and if they do not, and injury occur, they will be held responsible."]; Brown v. George Pepperdine Foundation...

Excerpt: ...parent has pervasive control over subsidiary). (See DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1093-1094.) A plaintiff relying on one of these theories of liability must make a sufficient evidentiary showing-and not merely rely on its allegations-to establish jurisdiction. (See DVI, Inc., 104 Cal.App.4th at 1094.) Here, plaintiff relies on a single e-mail from insurance adjuster Jeffrey Kaiser. (Mannion Dec., Ex. 1.) Plaintiff notes...

Excerpt: ... argues it has never refused to arbitrate and that Defendant waived its right to compel arbitration. A party seeking to compel arbitration must "plead and prove a prior demand for arbitration under the parties' arbitration agreement and a refusal to arbitrate under the agreement." (Mansouri v. Sup.Ct. (Fleur Du Lac Estates Ass'n) (2010) 181 Cal.App.4th 633, 830.) However, in certain circumstances, the opposing party's refusal ...

Excerpt: ...ication as to SBS Corporation's cross‐complaint is denied. Five Star failed to maintain its initial burden of production. (See Code Civ. Proc. § 437c(p)(2).) The lynchpin of Five Star's motion is that it was performing its work in the kitchen area and the accident occurred at a different portion of the worksite. Five Star relies on 184:4‐7 of plaintiff's deposition to show that it was working in the kitchen. (Five Star's UMF ...

Excerpt: ...anted only if it completely disposes of a cause of action." A cause of action has no merit if "a defendant establishes an affirmative defense to that cause of action." (Code Civ. Proc. § 437c(o)(2).) A defendant has met that burden if she shows that "there is a complete defense to the cause of action." (Id. § 437c(p)(2).) Defendants here do not meet this burden. They bring their motion based on collateral estoppel, arguing t...

Excerpt: ...rry Odbert did not properly file or notice for hearing his purported cross‐petition to correct contractual arbitration award for hearing. However, it raises the same issues as those in his opposition to petitioner's motion, and is denied. Respondent fails to show that the arbitrator exceeded her powers within the meaning of Code Civ. Proc. §§ 1286.2(a)(4) or 1286.6(b). Even if the arbitrator misinterpreted the parties' agreement, to t...

Excerpt: ...s other than the alleged economic damage related to the purchase of the vehicle itself. Plaintiff fails to plead any facts showing that he was exposed to liability for personal damages independent of the economic loss. "The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise." (Robinson Helicop...

Excerpt: ...es County Superior Court and all transfer costs must be paid by plaintiff Nicole Tate‐ Naghi. Venue is presumptively proper in the county where any of the defendants resides. (CCP 395(a).) The first amended complaint alleges that all of the defendants reside in Los Angeles County. Ms. Tate‐ Naghi has alleged transitory causes of action for professional negligence and breach of fiduciary duty that do not involve the internal affairs of the tru...

Excerpt: ... 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 autho...