Excerpt: ... the hole (Exh ibit E) but provides no measurements of how big it is, its placement in the backyard, or the layout of the backyard. While the hole appears large in the picture, it is unclear whether this evidence alone meets the Defendant's initial burden. Additionally, a triable issue of material fact exists regarding whether the open and obvious exception applies. Open and obvious does not negate duty if it is foreseeable based on necessity or ...

Excerpt: ...re of Person . DENY Defendant Kevin Carpenter's Motion for Summary Adjudication as to the Second Cause of Action for Violation of Fourth Amendment Rights – Excessive Force and Punitive Damages Claim against Defendant Kevin Carpenter. SUSTAIN Defendants' Evidentiary Ob jections as to Exhibit D and Gibson Decl. ¶¶ 3, 6 and 22; OVERRULE as to Gibson Decl. ¶¶ 7, 8, 12 –18, 19 and 21. SET OSC on April 15, 2024, re: Plaintiff's failure to file...

Excerpt: ... appears that conduct that occurred before Plaintiff filed for bankruptcy can make her a borrower under Civil Code § 2920.5(c). See Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 297- 299. First Cause of Action for Violation of Civil Code § 2923.5 (A)( 2). This section requires a mortgage servicer to contact a borrower to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure before...

Excerpt: ...nding the NOD . (Def.'s RJN 4.) Plaintiffs cannot establish “an illegal, fraudulent or willfully oppressive sale,” since the foreclosure sale never took place. Plaintiffs nonetheless argue that their wrongful foreclosure cause of action is valid because it is based on F MC's alleged failure to comply with the HBOR provisions identified in the FAC (i.e., Civ. Code §§ 2923.4, 2923.5, 2923.7, 3273.01 et seq.). (See FAC ¶¶ 45– 60.) However...

Excerpt: ...rd Donahue, MAI, FRICS setting forth the basis of the appraisal calculation and setting the appraisal at $40,400. Construction of the Project is scheduled to commence on or about April 8, 2024. Any delay in possession will derail the sequence of construction and rel ocation of public improvements that must be completed to benefit residents and businesses in the City. (Moreno Reply Decl., ¶¶ 4 & 5.) The construction involves the relocation of s...

Excerpt: ...warranty data compiled from GM's network of dealers; testing conducted by GM in response to these complaints; as well as warranty repair and part replacements data received by GM from its network of dealers (¶¶ 64 –66, 68– 71, 73); that, despite such knowledge, Defendant continued to conceal and failed to disclose the Transmission Defect to its consumers (¶¶ 68, 71 –72, 75– 76); and that had Plaintiffs known that the subject vehicle w...

Excerpt: .... Binuya suffered a massive blood loss and had to be transported to the hospital. There must be more than the failure to provide proper medical services to describe a caretaking or custodial relationship. “[C]laims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and caregivers that abuse elders and that may or may not, incidentally, also be health care provid...

Excerpt: ...g to revoke access to Los Corralitos Road and by erecting fences to block access to the Property. (SAC, ¶¶ 71 -73.) Plaintiffs further allege that Defendants' intentional acts have dissuaded buyers from purchasing the Property, that Defendants are attempting to “extort” a low price for the Property from the Lopezes and that Defendants' devaluation scheme has resulted in a total loss to the Lopezes of $1,275,000. (SAC, ¶¶ 74 -81.) However,...

Excerpt: ...f action —there appears to be no adverse employment action. Burger King argues that establishing that Evelyn could not hire, train, fire, and did not set Plaintiff's schedule establishes that Evelyn was not a supervisor under Government Code § 12926(t). However, t his assertion lacks merit. Under Government Code § 12926(t) it provides several categories of conduct that meets the definition of supervisor. Those categories are: (1) having the...

Excerpt: ...that the Defend ants contacted her “sometime after October 25, 2023, and prior to their due date to respond to the complaint . . . to confirm that I was handing the response to the complaint pursuant to their insurance policy with Generali Global assistance,” but that def ault was entered before the insurance carrier could fully assess coverage and retain defense counsel. (Rivas Dec., ¶¶ 4, 5.) There is no declaration by any of the defenda...

Excerpt: ...laint. Dis crimination (1st cause of action): Plaintiff alleges she was constructively terminated from her position. Constructive termination occurs when an employer engages in conduct that effectively forces the employee to resign, i.e., “that the employer either in tentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would real...

Excerpt: ...e has an ownership interest in Information Technology, and licenses the trade secret to White Bu
¯alo, who in turn, granted Plainti
¯ the exclusive license to the trade secret. (Rozo Decl. ¶3.) Plainti
¯ argues that a sublicense has standing based on Civil Code §3426.1 which deÞnes misappropriation as: “(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper m...

Excerpt: ...First Amended CrossComplaint, ¶ 7.) The contract was allegedly entered into at someplace other than Superior's “appropriate trade premises” – Juan and Maria's home. (Id. at ¶ 18.) Based on the agreement attached to the Þrst amended cross-complaint, it appears that the amount of the agreement was more than $25. Due to this, it appears for pleading purposes, Civil Code § 1689.7 appears applicable. Civil Code § 1689.13 applies where a con...

Excerpt: ... for elder abuse. Plainti
¯ was 87-years old at the time of his residence at Defendant's facility. (FAC, ¶ 1.) On May 22, 2022, Plainti
¯ was admitted to the hospital at which Defendant took on a custodial relationship. (Id at ¶ 11.) Plainti
¯ alleges that Defendant's sta
¯ failed to properly monitor and assess his skin condition, failed to reposition his legs, failed to provide wound care or notify a physician when his skin deteriorated an...

Excerpt: ...dustry standards. (Id. at ¶ 57.) Dealer allegedly breached this duty by failing to properly store, prepare and repair the vehicle in accordance with industry standards. (Id. at ¶ 58.) With respect to damages, Plainti
¯ allege, in a conclusory way, that Dealer's “negligent breach of its duties” proximately caused their damages. (Id. at ¶ 59.) Plainti
¯s fails to otherwise plead the nature or extent of what their damages are. (Id.) Therefo...

Excerpt: ....) It was not sent to Defendant's “clerk, secretary, auditor, or governing body” and it was not sent to Defendant's principal o
¯ice. Instead, the address to which the claim was sent was a private residence. (See, Decl. of Deena O. Zaki at ¶¶ 3-4, Exs. B & C; Decl. of Kim Bentrum [“Bentrum Decl.”] at ¶ 7.] Therefore, the claim was defective. Additionally, it is undisputed that Defendant never received this claim. (Bentrum Decl. at ¶�...

Excerpt: ...ns at the time the notice was written and assumed Likun as an employee, when she was not an employee. (Cross-Compl. 9, 87—88.) Therefore, together with the other allegations, Cross-Defendants do not meet their burden in showng that the Cross-complaint fails to state sufficient facts for the RICO cause of action. Second Cause of Action: Concealment: The Cross-complaint sufficiently alleges that CrossDefendants never disclosed the status of their...

Excerpt: ...or before 30 days before trial, and discovery motions to be heard 15 days before trial. A contnuance or postponement of trial does not reopen discovery proceedings. (CCP 52024.020(b). ) Parties may stipulate to extend the time. (CCP 52024.050.) The initial trial date of 11/17/23 governs the discovery cut-off date. Plaintiff contends this is not a discovery motion. The court disagrees. This is a motion to de- designate under the protective order�...

Excerpt: ...u have to follow the law. Like it or not, the answer to this question is zero because we didn't put that evidence before pu. But that's how this verdict form should be answered based upon the evidence and the law in this case." (Ex. 2 Transcript, p. 86.) And, "l acknowledge we didn't prove any of the damages on the 30-day claim. That should be answered zero." (Ex. 3 Transcript, p. 10.) "'In the trial of a cause the admissions of counsel, as to ma...

Excerpt: ...e arch to minimize the amount of anesthesia needed; (2) failing to use the correct type of anesthesia, using too much anesthesia, and not adequately considering interactions with Decedent's medications; and (3) failing to timely call 911 to address Decedent's life-threatening change in condition following treatment. (Torbiner Decl. at 10-17). This, along with his opinion that these breaches were a substantial factor in Decedent's death, are suffi...

Excerpt: ..., and excerpted quotes from, documents not attached as exhibits to the complaint].) SUSTAIN Defendants' Evidentiary Objections. SUSTAIN Defendants' Demurrer to the First Cause of Action for Financial Elder Abuse without leave to amend. DENY Defendants' Motion to Strike as MOOT. The TAC allegations do not support Plaintiff's contention that Defendants knew or should have known that preparing the quitclaim deed, at the request of Bernice's financia...

Excerpt: ...nt. 5. GRANT the motion for summary adjudication as to the 2nd, 3rd and 4th causes of action. However, the court allowed the parties to file further briefing as to the 1st and 5th causes of action, and as to evidentiary objection no. 23. OVERRULE Objection No. 23. There are two layers of hearsay covered by this Objection—the statement from Shaw to Sanford, and the statement from Sanford to Plaintiff. Neither Shaw nor Sanford were named as defen...

Excerpt: ...vded the paperwork, i.e., Conditions Addendum and gift affdavits, needed for originating the mortgage loan for the purchase of the property. Defendant Parks never met or spoke with Plaintiff and did not partake in procuring Plaintiffs signatures on the gift affidavits to defraud or to exert an undue influence. Nor is it shown that Parks prepared the affidavits with an intent to aid James and Bunas in unduly influencing Plaintiff to sign the affid...

Excerpt: ...arassment claim. (FAC, 915(e).) However, courts have held that, "[h]arassment... consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management." (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 55.) Moreover, harassment does not include personnel management duties such as "hiring and firing, job or project assignments, office or work staton assignments, promotion or demotion, ...

Excerpt: ...rrantor" and that HMA violated that Song Beverly Act by failing to conform the Vehicle to the express written warranties within a reasonable number of attempts (Comp.,'1 12, 15), Plaintiff does not actually allege that HMA provided any express warrantes to Plaintiff covering the Vehicle. There are no facts showing the warranty period. Nor does the Complaint allege any specific nonconformity. The Complaint provides conclusory allegations only that...