Excerpt: ...s. & Prof. Code § 17200 et seq.). The elements of a claim for usury are: “(1) [t]he transaction must be a loan or forbearance; (2) the interest to be paid must exceed the statutory maximum; (3) the loan and interest must be absolutely repayable by the borrower; and (4) the lender must have a willful intent to enter into a usurious transaction.” (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 798.) Defendant seeks summary judgment on the ground ...

Excerpt: ...nd with respect to Plaintiff's second cause of action for violation of Civil Code § 2924(a)(1) and tenth cause of action for Interpleader based upon Plaintiff's stating that she will not pursue the claim. The Court notes that Plaintiff could have save the Court and the parties time and resources if she had made this agreement during the meet‐and‐confer process. The demurrer is also SUSTAINED without leave to amend as to the seventh cause of ...

Excerpt: ...ice of the Summons and Supplemental Complaint on the grounds that Plaintiff did not seek leave to file the Supplemental Complaint pursuant to CCP § 472. Alternatively, Defendant requests that the Court set aside the default entered against Defendant pursuant to the Court's equitable powers. Defendant does not provide recognized grounds for quashing service of the summons. Indeed, Defendant provides no authority suggesting that service of a summo...

Excerpt: ...Proc. Sect. 430.10(e). The Complaint alleges Fay violated several HBOR (Homeowner's Bill of Rights) statutes, which are all deficient in some respect. The Court grants leave to amend so that Plaintiffs may attempt to remedy the defects. Civ. Code Sects. 2923.7 (single point of contact) and 2924.9 (requiring written notice to borrower explaining foreclosure prevention alternatives) do not apply to all mortgages and deeds of trust. Pursuant to Sect...

Excerpt: ...nauthorized access to his account and theft of his personal identifying information. Plaintiff does not dispute that he and Robinhood entered a binding arbitration agreement, or that Robinhood has demanded arbitration of Plaintiff's claims. Rather, Plaintiff contends that his claims do not fall within the scope of the arbitration agreement. According to Plaintiff, his claims “involve Robinhood's security of its consumer's accounts and Robinhood...

Excerpt: ...r California law because it is based on the trivial defect doctrine. However, there appears to be a split of authority as to whether the trivial defect doctrine is an aspect of the duty of care or an affirmative defense. (See Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11; cf. Ursino v. Big Boy Rests. (1987) 192 Cal.App.3d 394.) As such, Plaintiff has not established that Defendants may not assert the trivial defect doctrine a...

Excerpt: ...tten contract without either attaching the written contract or alleging its material terms. See Otworth v. S. Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459 (where breach of written contract is alleged, the agreement must either be attached and incorporated by reference, or its material terms must be set forth in the pleading); Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307 (same). Here, the Complaint alleges the parties ...

Excerpt: ...nt is not entitled to relief under Code of Civil Procedure section 473, subdivision (d) because Defendant cannot establish that the judgment is void without relying on extrinsic evidence— i.e., the truth of matters asserted in Plaintiff A.J.E. Investment Group, LLC's memorandum and declaration offered in support of its motion for summary judgment. (See Def.'s Request for Judicial Notice (RFJN), Exs. 3 and 7.) “In determining whether an order ...

Excerpt: ... § 437c, subd. (p)(1).) If the moving plaintiff satisfies this initial burden, the burden shifts to the defendant to set forth “specific facts” showing that a triable issue of material fact exists as to a cause of action or a defense. (Ibid.) Having reviewed the record, the Court finds that Plaintiff met its initial burden under Code of Civil Procedure section 437c, subdivision (p)(1) of establishing each element of its causes of action for ...

Excerpt: ...4 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) Defendant contends her demurrer should be sustained because Plaintiff's Complaint does not allege ...

Excerpt: ...orney and counsel for defendant are to APPEAR so that testimony can be provided under oath. Zoom appearances are acceptable. The parties have not complied with the Court's order denying, without prejudice, Motion to Approve PAGA Settlement and Dismissal of PAGA Action. The Court expressly required that Plaintiff posit his own declaration in support of a renewed motion and append the Confidential Settlement Agreement and Release that settled his n...

Excerpt: ...nts that they are willing to participate in ADR and are agreeable to the same ADR procedure. If so, the court may order the case referred to the court's ADR Analyst. Local Rule 3.904 further states that if a case is at issue and all counsel and self‐represented parties have indicated in their CMC statements that they are willing to participate in ADR and willing to proceed to the same ADR process, the case will be referred to the ADR department...

Excerpt: ...ty located at 567 Price Street in Daly City (“property”). The First Amended Complaint (“FAC”) alleges claims for partition and quiet title. A trial was held before Judge Buchwald, and a Statement of Decision issued on December 19, 2016. (See Sabharwal Decl., Exh. A, Statement of Decision (“SOD”).) The SOD states that the parties stipulated at trial that bank mortgage payments were paid directly to the bank by checks from Plaintiff in ...

Excerpt: ...022. Plaintiff's objections 1 through 12 to Declaration of Joshi are overruled. The motion for summary judgment filed by Plaintiff Northern California Collection Service, Inc. is GRANTED. Plaintiff's moving evidence establishes all of the elements of the Complaint, thereby meeting Plaintiff's burden. (Code of Civ. Proc. § 437c, subd. (p)(1).) The burden shifts to Defendant Darius K. Joshi to offer admissible evidence to establish that a triable ...

Excerpt: ...ted below, Defendant Tesla Energy Operations, Inc.'s Demurrer to Plaintiff's 3‐18‐22 First Amended Complaint (FAC), which is addressed only to the FAC's Second Cause of Action (alleging a violation of Bus. & Prof. Code Section 17200), is OVERRULED. Code Civ. Proc. Section 430.10(e), (f). The Section 17200 claim is not clearly time‐ barred on the face of the pleading. The Court previously granted (in part) Tesla's Motion for Judgment on the ...

Excerpt: ...ordered EXPUNGED. A court must expunge a lis pendens if the pleading on which the lis pendens is based does not contain a real property claim. (Code of Civ. Proc. (“C.C.P.”) § 405.31.) A party possesses a real property claim where the cause of action in a pleading would, if meritorious, affect "title to, or the right to possession of, specific real property." (Code Civ. Proc. § 405.4.) Defendant argues that the First Amended Complaint (“F...

Excerpt: ...quests is DENIED for the reasons set forth below. At the IDC held in this matter on February 24, 2022, the parties agreed that Defendant would serve unverified responses to Plaintiffs' discovery requests, and make an application for appointment of a GAL by March 18. The parties also agreed that Defendant would serve verifications within two weeks following the appointment of the GAL. Defendant provided supplemental unverified responses to the dis...

Excerpt: ...ntract, false claims, and unfair competition. On June 14, 2021, VLS filed its own cross‐complaint against the City for breach of contract, breach of the implied covenant of good faith and fair dealing, and claims arising under section 1983 of title 42 of the United States Code. I. BACKGROUND On December 19, 2017, after a competitive bidding process, the City awarded VLS a contract for construction of the Five Cities Lift Station, and modificati...

Excerpt: ...Partners, LLC dba Half Moon Bay Golf Links (Defendant) claims $3,619.40 in deposition costs, but has only established that it is entitled to $3,537.65, as evidenced by the invoices. (See Streza Decl., ex. B [pp. 007 to 009].) Defendant does not adequately explain the discrepancy between the invoices and the amount claimed in its Memorandum of Costs (Costs Memo). Plaintiffs have withdrawn their objections to the invoiced amount. The Court therefor...

Excerpt: ... moving party on a motion to strike attempt to speak with the party who filed the pleading. Simply exchanging emails is not enough. In this case, the declaration of counsel for Defendant does not clearly indicate whether counsel made any attempt to speak to counsel for Plaintiff. Nonetheless, the Court will consider the merits of the Motion to Strike in the interests of moving this case forward and in light of its tentative ruling below—which d...

Excerpt: ...s that the moving party on a demurrer attempt to speak with the party who filed the pleading. Simply exchanging emails is not enough. In this case, the declaration of counsel for Defendant does not clearly indicate whether counsel made any attempt to speak to counsel for Plaintiff. Nonetheless, the Court will consider the merits of the Demurrer in the interests of moving this case forward and in light of its tentative ruling below—which overrul...

Excerpt: ...al. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567, 571.) Plaintiff Carol and Charles Oushani (Plaintiffs) allege common counts for “money had...

Excerpt: ...at he Plaintiff will prevail on the claim for punitive damages under Section 3294. Section 3294 requires proof of malice, oppression or fraud by clear and convincing evidence. As noted by the Opposition, this request appears to be premature given the preliminary nature of discovery taken in this case so far. Plaintiff presents no deposition testimony of any party, and no deposition testimony of any witnesses. In the moving declaration of counsel,...

Excerpt: ...rs, which is 123 pages with Exhibits A through J. In violation of CRC Rule 3.1110(f) and Local Rules, the document exhibits ARE NOT BOOKMARKED. Failure to do so in the future, will result in the filed documents being stricken! The matters is in dispute appear to be Requests for Production Nos. 8 and 36. The privilege log was not presented, and thus is not in dispute. A constitutional right to financial privacy is asserted by Malaspina, but was no...

Excerpt: ...13:11; 16:10‐13. The terms are not irrelevant, false or improper. Code of Civil Procedure § 436(a). The terms are relevant to the claim for punitive damages. Taylor v. Superior Court (1979) 24 Cal.3d 890, 895 (“conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.”). DENIED as to the request to strike attorneys' fees under Civil Code § 1942.4. See Snatchko v. Westfield LLC ...