Excerpt: ...ode, §§ 2698 et seq.) Lainez opposes both the demurrer and the motion to strike. DEMURRER - LEGAL STANDARDS The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpret...

Excerpt: ...n." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) Defendant is a public entity and "A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute." (Govt Code 815.) Claims against public entities be specifically pleaded regarding the relevant statute or regulation. (Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 292-293.) Claims against public entities must ...

Excerpt: ...Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) ...

Excerpt: ...zed facts stating viable negligence theories against Defendant pursuant to, at a minimum, Government Code §§ 815.2 and 820, Civil Code § 2100 and Vehicle Code § 17001. (See e.g., Acosta v. Southern Calif. Rapid Transit Dist. (1970) 2 Cal.3d 19, 27.) If Defendant is truly in doubt regarding the statutory basis for Plaintiff's claims herein, Defendant may serve written discovery requests regarding this question. Defendant may file and serve an ...

Excerpt: ...pra, 39 Cal.3d at p. 318, Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The trial court may consider matters of which it may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) When ruling on a demurrer, it is improper for the court to consider extrinsic evidence. (See, e.g., Ion Equip. Corp. v. Nelson (1980) 110 Cal.App...

Excerpt: ...d support a claim for vicarious liability under the remaining negligence cause of action. (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 879.) Finally, the Court sua sponte ORDERS STRICKEN the words "section 835 encompassing" at pp. 18:14-16 in ¶ 84 of the TAC, as filed on 7/29/2021. Gov't Code 835 creates public entity liability for injury caused by dangerous conditions of public property, a cause of action which the...

Excerpt: ...ruling will automatically become the Court's final order on Friday, August 20, 2021 unless, by no later than 4:00 p.m. on Thursday, August 19, 2021, a party to the action notifies both (1) the Court by emailing [email protected], and (2) all opposing counsel or self-represented parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requeste...

Excerpt: ...at consultation, Defendant prepared three documents that Nellie executed. First, Nellie resigned as Trustee of The Nellie Wong Bertucci 2013 Revocable Trust ("the Trust") and had Plaintiff appointed as Successor Trustee; in addition, the Trust was changed from a revocable trust to an irrevocable trust. Second, Nellie transferred the Trust's interest in real property located at 315 Montcalm Street, San Francisco to Plaintiff. Third, Nellie revoked...

Excerpt: ...st of up to $566,666 (33%), costs of up to $30,000, a service award of $10.000 for the class representative, a PAGA payment of $150,000 (net of $112,500), and settlement administration costs of up to $21,000. After these expenses, the class would get approximately $960,000. The average payout per class member would be approximately $365.00. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class cert...

Excerpt: ...,000. The settlement agreement states there will be attorneys' fees and cost of up to $500,000 (33%), costs of up to $30,000, a service award of $10.000 for the class representative, and settlement administration costs of up to $15,000. After these expenses, the class would get $945,000. The average payout per class member would be approximately $785.00. The proposed class notice form and procedure are adequate. The proposed class is appropriate ...

Excerpt: ...liminary injunction. The Court granted Plaintiff's Ex Parte Application and issued a Temporary Restraining Order against Defendants Youland, Inc., Lin Jia (aka Richard Jia) and Peer Street, Inc. on June 28, 2021. The Court granted the application in order to protect Plaintiff from having the property sold at a trustee's sale on July 1, 2021. The Court cannot grant the requested injunction because Plaintiff subsequently dismissed Peer Street, Inc....

Excerpt: ...on and discipline. ... Limiting disclosure of third party complaints, investigations, and discipline to the persons who consent to the disclosure and production of their complaints also addresses the burden issue. The results of the opt-in waiver for complaints of race harassment will define the files to be reviewed, which then limits the burden on Tesla of locating the relevant files." On 4/9/21, the court granted in part Tesla's motion to not c...

Excerpt: ... merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs." (CCP § 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." (Id.) MOTION FOR SUMMARY ADJUDICATION Honeywe...

Excerpt: ...eading" for failing to admit liability. The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (C.C.P. §437.) Plaintiffs' requests for judicial notice are denied. The Court is not required to take judicial notice of the statements in counsel's declaration or any of the alleged "facts and propositions" or other matters in the request for jud...

Excerpt: ...ation - Abuse of Administrative Process". In addition, Karnstein moves to strike six other portions of the Cross-Complaint, as indicated in Items Nos. 1-6 in Karnstein's Notice of Motion. In ruling on a Special Motion to Strike, the Court engages in a two-step process. (See Equilon Enterprises v. Consumer Cause Inc. (2002) 29 Cal.4th 53, 67.) First, the Court decides whether the moving party has made a threshold showing that the challenged cause ...

Excerpt: ...personal injuries, "any defendant may demand one physical examination of the plaintiff". In her opposition, Plaintiff characterizes 3N's demand for physical examination as a demand for a "second physical examination", because a different defendant (Eleven Western Builders Inc.) previously conducted a physical examination of Plaintiff on August 20, 2020. Plaintiff's characterization, however, is incorrect because 3N has not previously conducted an...

Excerpt: ...here was a water incident at the property. The water damage was covered by the policy. Plaintiff promptly notified defendant. On 4/20/20, defendant assigned an adjuster to the claim. On 4/24/20, the adjuster inspected the property. On 4/28/20, the claim settled for approximately $20,000. The adjuster told plaintiff she needed to complete remediation within 30 days. On 5/30/20, plaintiff invoked insurance arbitration. As a result of COIVID complic...

Excerpt: ...st the Defendants 1) Invasion of Privacy, 2) Violation of Penal Code 632, 637.2, 3) Negligence, 4) Violation of Oakland Tenant Protection Ordinance, 5) Breach of covenant of quiet enjoyment; 6) IIED, 7) NIED, 8) Violation of Civil Code 1965, 9) Violation of statutory duties and 10) Trespass. Defendants seeks summary judgment, or in the alternative, summary adjudication of "several of the causes of action alleged against it pursuant to Code of Civ...

Excerpt: ...ause of Action for Breach of Contract is premised on a claim that he is a third-party beneficiary of a contract between Defendant and Alameda Health System. The undisputed facts establish that Plaintiff is not a third-party beneficiary of that contract. (See Defendant's Separate Statement Facts ("SSF") Nos. 1-4 and the evidence cited in support, particularly Exhibit A to the declaration of Grace Kroeger, at page 9 section 17.) In addition, even i...

Excerpt: ...Amended Complaint paragraphs 5 and 9.) Plaintiff alleges that during that time period, he had 62 prescriptions handled by Le. (See First Amended Complaint, paragraph 12.) Plaintiff also alleges that Defendant made a single prescription error on August 15, 2007, which he settled through a small claims case (see First Amended Complaint, paragraph 7); he does not allege that Defendant has made any prescriptions errors since that date. Plaintiff admi...

Excerpt: ...r, Plaintiffs fail to allege facts suggesting that Tesla owned, operated, used, or drove the subject vehicle at the time of the accident. The First Amended Complaint alleges that Defendants Romeo Lagman Yalung (hereinafter "Yalung") and Vilima Yalung, not Tesla, owned the subject vehicle at the time of the accident. (See First Amended Complaint, paragraphs 4-5.) The First Amended Complaint alleges that at the time of the accident, the subject veh...

Excerpt: ...to all defendants. DEMURRER BASED ON APPLICABILITY AND CONSTITUTIONALITY OF C.C.P. 340.1 Defendant Oakland Unified School District ("District") and the individual defendants Ronald Solis, and Katherine McLane, demurrer to Plaintiff's First Amended Complaint on the grounds that expanded statute of limitations does not apply to situations where the repeated sexual assault was perpetrated by students and not "an employee, volunteer, representative, ...

Excerpt: ...at Defendants Polaris Industries, Inc., Volvo Penta of the Americas, LLC and Larson Marine, Inc. are liable because the boat failed to conform to the conditions of the express and implied warranties for the performance of the vessel. Plaintiff alleges generally that the boat failed to perform in the manner that a reasonable consumer would expect it to perform. Plaintiff alleges that he took the boat to Larson Marine, Inc. and the authorized repai...

Excerpt: ...stop paying the Reynolds and destruction of paper data by getting "rid of all the stuff in the warehouse." (See Landerholm Declaration in Support of the People's Motion for Terminating Sanction for Spoliation and Failure to Obey Discovery Order ("Landerholm Decl.") at ¶ 83.) On the other, the information on the DMS software could apparently be accessed (Landerholm Decl. at Exh. MM)-it has not been destroyed-and the warehouse remains open with do...

Excerpt: ...Agency pursuant to the Labor Code Privat Attorneys General Act of 2004 ("PAGA") (Lab. Code, §§ 2698 et seq.). Although filed in the Superior Court for the City and County of San Francisco, it is currently part of a coordinated proceeding, Mercy Housing Wage and Hour Cases (Judicial Council Coordination Proceeding No. 5015). The coordinated action currently includes one other case, Freeman v. Mercy Services Corp., (Super. Ct. for Sacramento Cty....

Excerpt: ..."A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or th...

Excerpt: ...ded Complaint. The Court sustained both earlier filed demurrers with leave to amend. The Court agrees with Defendant's contention that Plaintiff still has not complied with his obligation to plead specific facts supporting each element of the Fourth and Fifth Causes of Action. See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; and Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. The Court, however, does not believe th...

Excerpt: ...IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Friday, August 13, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Network, password # 5102676935. If a hearing is requested, the Court will advise the parties of the manner in which the hearing wil...

Excerpt: ... and rest periods that Safeway knew or reasonably should have known about. The Court also finds that the TAC is adequately pleaded with respect to its class action claims. Safeway shall file and serve an Answer to the TAC no later than Friday, September 3, 2021. This Order is WITHOUT PREJUDICE to Safeway's right to bring a properly noticed Motion for Judgment on the Pleadings with respect to any of the TAC's individual causes of action, should Sa...

Excerpt: ...st of up to $612,000 (35%), costs of up to $30,000, a service award of $7,500 for each of the three class representatives, a net PAGA payment of $18,750, and settlement administration costs of up to $17,000. After these expenses of approximately $699,250, the class would get $1.050,750. The average payout per class member would be $1,263. The proposed class notice form and procedure are adequate. The proposed class is appropriate for class certif...

Excerpt: ...pp. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the plead...

Excerpt: ...eeks to abate both cases under CCP 430.10(c) on the ground that there is another cause of action pending between the same parties on the same cause of action. NATURE OF CLAIMS UNDER PAGA The LWDA is the real party in interest in both the Archuletta case and the Aguilar case. Plaintiffs who assert claims under PAGA are asserting claims on behalf of the State of California's Labor Workforce Development Agency. "An employee plaintiff suing ... under...

Excerpt: ...r the [PAGA] does so as the proxy or agent of the state's labor law enforcement agencies." (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381.) (See also ZB, N.A. v. Superior Court of San Diego County (2019) 2019 WL 4309684 at *4; Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 671.) A person asserting a claim on behalf of the LWDA under PAGA must obtain court approval for any settlement. Labor Code 2699(l)(2) states...

Excerpt: ...ake any supplemental filings at least 5 court days before the hearing. LWDA/PAGA RELEASE The settlement agreement does not expressly release the claims of the LWDA that were asserted in the case. The briefing suggests that the parties intend to release the claims of the LWDA for penalties. The parties might want to amend the agreement in this regard. The settlement agreement states that the "released claims" includes a release of claims for penal...

Excerpt: ...cie case of discrimination. The burden then shifts to defendant to demonstrate a legitimate, nondiscriminatory reason for its employment decision. If the defendant does so, the plaintiff must show, by a preponderance of the evidence, that the legitimate reasons offered by the defendant are a pretext for discrimination. (See, e.g., Arteaga v. Brink's Inc. (2008) 163 Cal.App.4th 327, 342- 343.) The plaintiff cannot meet that burden simply by showin...

Excerpt: ...� 437c(a)(1).) "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damage...

Excerpt: ...ties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (CCP § 36(d).) "Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by...

Excerpt: ...8. On 7/8/21. the United States District Court for the Southern District of California granted defendant's motion to compel arbitration. (Slade v. Empire Today, LLC (S.D. Cal., 2021) 2021 WL 2864813.) On 11/20/20, Plaintiff filed this putative class action against Defendant alleging violations of the disclosure provisions of the Fair Credit Reporting Act related to background checks in connection with employment. Defendant removed that case to th...

Excerpt: ...gnature on the arbitration agreement pursuant to Civil Code § 1633.9. (See Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1062.) Significantly, Plaintiff has submitted no evidence denying that he electronically signed the employment offer letter containing the arbitration agreement and that he agreed to those terms. Once a defendant has alleged the existence of an arbitration agreement, the burden shifts to t...

Excerpt: ...ed, code-compliant responses to Requests for Admissions, Set One, Nos. 2, 3, and 6. By that same day, Defendants shall serve verified further responses, without objections, to Form Interrogatories General, Set Two, No. 17.1.; Special Interrogatories, Set One, Nos. 13-19 and 22-27; and Requests for Production of Documents, Set Two, Nos. 59-65, 70, 72-74, 78-81, 85, and 88. By that same date, Defendants shall produce the documents responsive to tho...

Excerpt: ...opportunity to purchase the property. Mother and Father had two daughters - Plaintiff Lian and Defendant Leshing. Leshing has her own daughter - defendant Granddaughter Tao Yu. Daughter Lian asserts that in 1993 she gave money to Mother for the purchase of the property, that Mother bought the property, and that Mother held the property in trust for Daughter Lian. (Lian Supp Dec, para 23-28, 35.) Daughter Lian has not produced a written trust docu...

Excerpt: ...nia Rules of Court, Rule 3.1350(b). In addition, the only fact set forth in the City's Separate Statement addressing Plaintiff's individual causes of action is that "a driveway apron is not a sidewalk". (See The City's Separate Statement Facts ("SSF") Nos. 60-64.) That purported fact does not negate any of Plaintiff's causes of action. Plaintiff's decedent Donna Howell died after tripping and falling in a "driveway apron" adjacent to property loc...

Excerpt: ... Street, in Oakland, at approximately 12:00 a.m., on January 20, 2019. Plaintiff Coleman, who entered the intersection with the traffic light green, was struck by a white Ford F-150 owned by and registered to Defendants. The driver of the pickup truck got out of the cab and fled on foot before emergency personnel arrived on scene. Defendants concede for purposes of this motion that the driver of the pickup truck was their former employee, Dominiq...

Excerpt: ...ose the leaks, their intent that Plaintiffs rely on their failure to disclose the leaks, and the materiality of the nondisclosure causing Plaintiffs to suffer damages. If Defendants contend the subject property did not in fact suffer from water leaks, or that they were unaware of that fact, or that Plaintiffs knew of or could reasonably have discovered the water leaks, they can present evidence in support of those contentions at a later stage of ...

Excerpt: ...ublease Agreement, pursuant to CCP § 430.10(e), is OVERRULED. Although the Court generally considers only the facts alleged in the First Amended Complaint, it is permitted to review exhibits attached to the pleading. See Stella v. Asset Mgmt. Consultants, Inc. (2017) 8 Cal.App.5th 181, 193-194; and Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 Cal.App.5th 1131, 1145-1146. The Court has reviewed section 15 of the Sublease Agreement (Exhibit A) a...

Excerpt: ...e of the hearing. If not timely contested, and the tentative ruling will become the final order of the Court. The Court provides the following analysis to direct discussions at the hearing. The Court is inclined to deny the motion. The issue regarding which Quikserve seeks a judicial declaration - that the 10-Day Notice to Pay Rent or Quit (the "Notice") served on Quikserve on 6/18/2021 by plaintiff Hart Pacific Commons Block 5 Owner, LLC ("Landl...

Excerpt: ... are co- owners of the subject property. In this motion, Tinsley seeks judgment on the pleadings on the grounds that Glaude is not an owner of the subject real property. The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice. (See Code of Civil Procedure section 438(d).) Here, there are no facts alleged in Glaude's Amended ...

Excerpt: ...79th Avenue, in Oakland (rental property). The Court is very familiar with Plaintiff's allegations and contentions. There have been many motions filed in this case since Plaintiff filed her initial Complaint on November 5, 2020. The subject Verified Second Amended Complaint includes six causes of action. Plaintiff asserts these causes of action against Defendant Nelson: (1) First Cause of Action for Financial Elder Abuse; and (2) Fifth Cause of A...

Excerpt: ...ubject to the arbitration agreement. Further, Plaintiff has not met her "heavy burden" of proof to show that Alere has waived its right to compel arbitration by its prior actions in this lawsuit. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Friday, August 6, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any reque...

Excerpt: ... will be enforceable unless the degree of substantive unconscionability is high." (Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704.) Although the at-issue arbitration agreements contain terms that have some degree of substantive unconscionability, the degree of substantive unconscionability is not high enough to overcome the "strong public policy in favor of arbitration." Further, purportedly objectionable terms ca...

Excerpt: ...cts were entered, and at the time the work based on those contracts was performed, PCR did not possess a valid contractor's license. (See the Declaration of Howard Patterson at paragraphs 3-4 and 17.) However, Defendant and Cross-Complainant Howard Patterson did have a valid contractor's license during those time periods, and his name and contractor's license number are prominently disclosed on both the preconstruction and construction contacts. ...

Excerpt: ... no later than 4:00 p.m. on Monday, August 9, 2021, a party to the action notifies both (1) the Court by emailing [email protected], and (2) all opposing counsel or self-represented parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requested, the hearing will be conducted on Wednesday, August 11, 2021 at 1:30 p.m. or at a subsequent da...

Excerpt: ...nction preventing a nonjudicial foreclosure sale by Defendant Cenlar Capital Corporation. (See Order of March 16, 2020.) That injunction and the passage of time have together mooted some of her original claims under HBOR. The HBOR provides that, before a foreclosure sale has been finalized, a borrower may bring suit to enjoin a lender's material violation of certain specified protections. (Civ. Code, § 2924.12, subd. (a)(1) [providing for pre-fo...

Excerpt: ...that Plaintiff's motion for attorney's fees was timely filed on April 2, 2021. See Rules of Court 3.1702(b)(1) and 8.104(a)(1)(C). In this case, the Alameda County Superior Court clerk did not serve Plaintiff's attorneys with notice that the Court entered the judgment on October 5, 2020. Attorney Tara Cooper does not appear on the clerk's mailing list. Attorney Eduardo Martorell does appear on the mailing list, but the address used by the clerk w...

Excerpt: ...00 p.m. on Monday, August 9, 2021, a party to the action notifies both (1) the Court by emailing [email protected], and (2) all opposing counsel or self-represented parties, that the party is contesting this tentative ruling. The clerk shall provide the hearing date and time, and call information. If a hearing is requested, the hearing will be conducted on Wednesday, August 11, 2021 at 1:30 p.m. or at a subsequent date and time set b...

Excerpt: ... records related to the Defendant's status as sole proprietors of the New Breach Company from 2014 to the present. In responding to the Request No. 6, Defendants indicated that they would produce the documents. Plaintiffs argue that the production is incomplete because Defendants have not produced their tax returns including Schedule C. Tax returns are generally considered privileged from disclosure. (Webb v. Standard Oil Co. (1957) 49 Cal.2d 509...

Excerpt: ... will be enforceable unless the degree of substantive unconscionability is high." (Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704.) Although the at-issue arbitration agreements contain terms that have some degree of substantive unconscionability, the degree of substantive unconscionability is not high enough to overcome the "strong public policy in favor of arbitration." Further, purportedly objectionable terms ca...

Excerpt: ...ubject to the arbitration agreement. Further, Plaintiff has not met her "heavy burden" of proof to show that Alere has waived its right to compel arbitration by its prior actions in this lawsuit. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Friday, August 6, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any reque...

Excerpt: ...e of the hearing. If not timely contested, and the tentative ruling will become the final order of the Court. The Court provides the following analysis to direct discussions at the hearing. The Court is inclined to deny the motion. The issue regarding which Quikserve seeks a judicial declaration - that the 10-Day Notice to Pay Rent or Quit (the "Notice") served on Quikserve on 6/18/2021 by plaintiff Hart Pacific Commons Block 5 Owner, LLC ("Landl...

Excerpt: ... of $448,000.00 from Bank of America on January 17, 2007. On September 19, 2012, Bank of America assigned its interest in the Deed of Trust to E*Trade Bank. On December 8, 2014, E*Trade Bank assigned its interest in the Deed of Trust to Bayview Loan Servicing, LLC. Bayview Loan Servicing, LLC later changed its corporate name to Community Loan Servicing, LLC. Plaintiff alleges that he defaulted on his mortgage payments prior to September 30, 2016....

Excerpt: ...e Third Cause of Action of the FAC pleads four distinct fraud-based causes of action: intentional misrepresentation; fraudulent concealment; conspiracy to commit intentional misrepresentation; and conspiracy to commit fraudulent concealment. Defendant Avon demurs to this cause of action arguing that the FAC conclusory allegations are insufficient to state a cause of action for fraud. "A demurrer tests the legal sufficiency of the factual allegati...

Excerpt: ...grant if the court makes both of the following findings: (1) [t]he party has a substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "In its discretion, the court may [] grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the par...

Excerpt: ... records related to the Defendant's status as sole proprietors of the New Breach Company from 2014 to the present. In responding to the Request No. 6, Defendants indicated that they would produce the documents. Plaintiffs argue that the production is incomplete because Defendants have not produced their tax returns including Schedule C. Tax returns are generally considered privileged from disclosure. (Webb v. Standard Oil Co. (1957) 49 Cal.2d 509...

Excerpt: ...if the court makes both of the following findings: (1) [t]he party has a substantial interest in the action as a whole[;] [and] (2) [t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "In its discretion, the court may [] grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties s...

Excerpt: ...et had advance knowledge of Hwang's alleged unfitness and employed her with a conscious disregard of the rights of others, or authorized or ratified her alleged wrongful conduct. Plaintiffs' boilerplate, conclusory allegations in First Amended Complaint paragraph 5 are insufficient. The motion is GRANTED as to Items Nos. 2-3 in Defendants' Notice of Motion (the prayers for rescission and attorneys' fees), as unopposed by Plaintiffs. (See oppositi...

Excerpt: ...er a new trial date has been set." (Code Civ. Proc., § 2024.050, subd. (a).) When ruling on such a motion, the Court considers any relevant facts, including but not limited to (1) the necessity of, and the reasons for, the requested discovery, (2) the diligence of the party seeking the extension and the reasons why discovery was not completed earlier, (3) the likelihood that hearing the motion will result in delay of trial, (4) the length of tim...

Excerpt: ...fosys in March 2017 as an Associate Engagement Manager at an initial salary of $140,000 per year. Plaintiff was also entitled to receive an annual bonus equal to thirty percent (30%) of her salary. Although Plaintiff's offer letter instructed her to report to the Infosys office in Newark, in Alameda County, she alleges in the Complaint that she worked in the Infosys office on the Apple campus in Palo Alto. Plaintiff alleges in the Complaint that ...

Excerpt: ...otion for judgment on the pleadings, as well as the supplemental briefs filed on July 29 and July 30. Plaintiff's Second Amended Complaint alleges, against the District and Does 2-20, a Fifth Cause of Action for Sexual Battery, Sixth Cause of Action for Sexual Harassment, Seventh Cause of Action for Gender Violence, Eighth Cause of Action for Violation of the Tom Bane Civil Rights Act, and Ninth Cause of Action for Violation of the Ralph Civil Ri...

Excerpt: ...ose the leaks, their intent that Plaintiffs rely on their failure to disclose the leaks, and the materiality of the nondisclosure causing Plaintiffs to suffer damages. If Defendants contend the subject property did not in fact suffer from water leaks, or that they were unaware of that fact, or that Plaintiffs knew of or could reasonably have discovered the water leaks, they can present evidence in support of those contentions at a later stage of ...

Excerpt: ...s sale has been completed, Civil Code § 2923.5 provides relief. (See Stebley v. Litton Loan Servicing LLP (2011) 202 Cal.App.4th 522, 526.) The demurrer to the Second Cause of Action for Violation of Civil Code § 2924(a)(1) is SUSTAINED, WITHOUT LEAVE TO AMEND. Exhibits H and I to the Complaint demonstrate that the Notice of Default was recorded by Entra Default Solutions LLC, the trustee of the subject deed of trust. The demurrer to the Third ...

Excerpt: ....] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A special demurrer for uncertainty is strictly construed because ambiguities of pleading can be resolved through modern discovery procedures. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for unc...

Excerpt: ...ial date in this action. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, August 3, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans Network, password # 5102676935. If a hearing is requested, the Court will advise the parties of the manner...

Excerpt: ...iewed the substance of the First Amended Complaint attached to the Declaration of Defendant's attorney, Ryan M. Duffy, the Court finds that there are significant deficiencies that must be addressed before the demurrer can be heard. First, the First Amended Complaint, which is erroneously captioned as the "Complaint," is deficient on its face. Plaintiff's First Cause of Action, which is one of the claims subject to the demurrer, is not properly ca...

Excerpt: ...to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (...

Excerpt: ...v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 537, cited by Plaintiff, the plaintiff's insurance policy had a specific provision requiring payment of interest on the amount due. Plaintiff has identified no similar provision in his insurance policy with Defendant. Plaintiff's allegation that the California Fair Claim Practices Act purportedly required that payment be made to him within the time limit set forth in his demands, and ...

Excerpt: ...dent in which plaintiff David Jackson ("Plaintiff") alleges a electrically-operated shade fell off a wall-mounting and injured him. IF ANY PARTY WISHES TO CONTEST THIS TENTATIVE RULING, NO LATER than 4:00 PM on Tuesday, August 3, 2021, the contesting party must email [email protected] and provide notice to all counsel of the intent to contest the tentative order. Any requested hearing will most likely be conducted using the Blue Jeans...

Excerpt: ... approached Plaintiff from behind, placed his hand on hers and firmly pressed his groin into her buttocks such that she could feel his penis. Plaintiff alleges that Tesla knew of the Team Leader's propensity for sexual harassment of young female employees but Tesla nevertheless assigned plaintiff to work with thisTeam Leader. Plaintiff alleges that Tesla threatened that if closed circuit footage did not support her claims against the Team leader ...

Excerpt: ...ged injuries Romero has put at issue in this case) from January 7, 2017 to the present. The subpoenas to Highland Hospital, Sutter Eden Medical Center Tiburcio Health Center, and Pathways to Wellness attached as Exhibits C-D and F-G to Pitts' declaration (seeking medical records as to Plaintiff Maria Jimenez) are modified as follows. The deponents shall produce all records pertaining to injuries to Plaintiff's face, including her nose and eyes, a...

Excerpt: ...19, 2021. Having now reviewed the substance of the First Amended Complaint attached to the Declaration of Defendant's attorney, Ryan M. Duffy, the Court finds that there are significant deficiencies that must be addressed before the motion to strike can be heard. First, the First Amended Complaint, which is erroneously captioned as the "Complaint," is deficient on its face. Plaintiff's First Cause of Action, which is one of the claims subject to ...

Excerpt: ... a protected activity, i.e., an act in furtherance of a person's right of free speech in connection with a public issue. (See Code of Civil Procedure § 425.16(b)(1).) Second, if such a showing is made, the Court determines whether the opposing party has demonstrated a probability of prevailing on the claim. The opposing party demonstrates this by showing the challenged pleading is legally sufficient and supported by a sufficient prima facie show...

Excerpt: ... and production of documents requested in the Notice of Deposition, the Court ORDERS THE PARTIES TO APPEAR at the hearing set for Wednesday, August 4, 2021 at 1:30 p.m. in Dept. 514. MOTION TO COMPEL STATEMENT OF DAMAGES AND RFA RESPONSES, ETC. County submits evidence that it duly served plaintiff Yolanda Harris ("Plaintiff") with the RFAs and the Form Rogs on 4/30/2021 by regular mail. (Moving Pardo Dec. ¶ 3 and Exhs. B and C.) Therefore, Plain...

Excerpt: ...t (1998) 67 Cal.App.4th 1253, 1255.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as ...

Excerpt: ...("SAC") alleges wage and hour violations on behalf of herself and a parent class of "all individuals who are or were employed by Defendant as non-exempt employees in California during the Class Period" of February 5, 2017, to present, as well as a subclass of all non-exempt employees who were not subject to a collective bargaining agreement ("CBA") with Defendant during the Class Period ("Non-Union Subclass"). (SAC, ¶ 2-3.) The class action clai...

Excerpt: ...fs also attached two-hundred-and-ninety-five (295) pages of exhibits, including the lease agreements, to the Complaint. On April 23, 2021, Defendants filed their Verified Answer to the Verified Complaint and the subject Cross- Complaint for Fraud and Breach of the Implied Covenant of Good Faith and Fair Dealing. The claims in the Cross-Complaint are based on the statements made by Cross-Defendants' representatives Rich Robbins and Chris Barlow du...

Excerpt: ...) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may consider all material facts pleaded in the...

Excerpt: ...ars the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showi...

Excerpt: ...Civ. Proc., § 430.10, subd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kir...

Excerpt: ...th EBMUD. (See First Amended Complaint, paragraph 62.) The alleged actions by EBMUD that give rise to the Second Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing are not the same actions that give rise to the First Cause of Action for Breach of Contract. (Compare First Amended Complaint paragraphs 57 and 62.) In addition, a claim for breach of the implied covenant of good faith and fair dealing need not be based o...

Excerpt: ...nt must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may consider all material facts pleaded in the complaint and those arising by reasonab...

Excerpt: ...Complaint when the case was still pending in the Tuolumne County Superior Court because Plaintiff states in the first paragraph that counsel for Dr. Gwalani and Dr. Abeles gave her some guidance about the appropriate manner of pleading causes of action. Based on its review of the First Amended Complaint and Defendant's memorandum of points and authorities, the Court agrees with Defendant's assertion that Plaintiff has not alleged sufficient facts...

Excerpt: ... to determine whether Lambert was a managing agent of Defendant during COVID, that is also irrelevant to Plaintiff's claims because she was fired eight months prior to the spread of COVID in the U.S. As to Question No. 2, the motion is GRANTED. Lambert is the Service Line Leader of the Emergency Room at Kaiser Antioch. The size and dollar amount of the emergency department's annual budget is relevant to whether Lambert can be considered a managin...

Excerpt: ...rated his vehicle, causing it to collide with Plaintiff near the intersection of Industrial Parkway SW and Addison Way, at approximately 8:15 a.m., on September 13, 2019. Plaintiff alleges that he was riding his 2002 Suzuki motorcycle when the accident occurred. Plaintiff alleges that he sustained serious bodily injuries and sustained financial loss as a result of the accident. The allegations and claims in the Complaint determine the scope of re...

Excerpt: ...ther, despite their allegations, trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is proper only when "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civil Procedure ["CCP"] § 437c(c).) When a defe...

Excerpt: ... approached Plaintiff from behind, placed his hand on hers and firmly pressed his groin into her buttocks such that she could feel his penis. Plaintiff alleges that Tesla knew of the Team Leader's propensity for sexual harassment of young female employees but Tesla nevertheless assigned plaintiff to work with thisTeam Leader. Plaintiff alleges that Tesla threatened that if closed circuit footage did not support her claims against the Team leader ...

Excerpt: ... 29 Cal.4th 262, 273.) Therefore, the ruling on this motion depends entirely on Plaintiff's showing that one or more of the Defendants is subject to jurisdiction in California. Jurisdiction may be either general, or specific and limited. (See, e.g. Vons Companies Inc. v. Seabest Foods Inc. (1996) 14 Cal.4th 434, 445.) A nonresident defendant is subject to general jurisdiction if its contacts with the forum state are "substantial . . . continuous ...

Excerpt: ...ndant's motion to July 30, 2021 to give defense counsel time to seek relief from Judge Davila in the Northern District of California for plaintiff's apparent violation of his orders in the Brown and Waters cases by prosecuting this action. The court anticipated that counsel (both plaintiffs' and defendant's) would provide this court with updates on their efforts to seek relief from Judge Davila; but none have been presented. The Court has reviewe...

Excerpt: ... both in the products liability cause of action and in the claim for exemplary damages, referring to the Doe defendants generally as Defendants along with the other named defendants. In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory eleme...

Excerpt: ...September 25, 2019. See Labor Code § 2699. Plaintiff alleges in the Complaint that Defendant engages in the following practices that violate the Labor Code: (1) Defendant fails to authorize and permit its non-exempt security officers to take meal and rest breaks; (2) Defendant fails to pay its non-exempt security officers at a premium rate for working through their meal and rest breaks; (3) Defendant fails to provide its non-exempt security offi...

Excerpt: ...of the arbitration provision, they have submitted no evidence supporting those assertions. Statements in an opposition brief unsupported by any evidence are not a valid basis for denying a motion. Based on the evidence filed in connection with this motion (all of which was submitted by Tesla), the Court determines that Tesla has proved by a preponderance of the evidence the existence of the parties' arbitration agreement. The burden therefore shi...

Excerpt: ...arties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is proper only when "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civil...