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: ... 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: ...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: ...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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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...