Excerpt: ... Defendant moves to strike the references to Government Code section 815.6 and to Article I, section 28 subd(c) (the California Safe Schools Act) in the FAC. First, Plaintiff concedes that the Safe Schools Act does not create a private right of action. Accordingly, the reference to Article I, section 28(c) is hereby STRICKEN from the FAC. Next, as to the reference to Government Code section 815.6 at page 4:24-25 in the FAC, the Court finds that t...

Excerpt: ...nded Complaint, paragraphs 30 and 32), but they did not file this action until more than eight years later, on November 13, 2019. In order to toll the statute of limitations based on delayed discovery, Plaintiffs would have to specifically plead facts demonstrating the time and manner of discovery of Defendant's alleged fraud and their inability to have made that discovery earlier despite reasonable diligence. (See Fox v. Ethicon Endo-Surgery Inc...

Excerpt: ...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.) The court may consider all material f...

Excerpt: ...mily 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.) The court may con...

Excerpt: ...facts that go beyond those facts supporting his first cause of action for breach of contract. See CACI No. 325; and Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885 (gravamen of breach of implied covenant is different than gravamen for breach of contract). Defendant's demurrer to Plaintiff's third cause of action for conversion is SUSTAINED WITH LEAVE TO AMEND. Plaintiff's statement of a cause of action for...

Excerpt: ...resent motion to disqualify under Rules of Professional Conduct, Rules Nos. 1.9, 1.10 and Code of Civil Procedure section 128(a)(5.) "A court's authority to disqualify a lawyer in a pending proceeding derives from its inherent power to regulate the conduct of court officers, including attorneys, in furtherance of the sound administration of justice." (City of San Diego v. Superior Court (2018) 30 Cal. App. 5th 457, 469.) Although the right to cou...

Excerpt: ...contradict his deposition testimony that the Disclosure Notice Plaintiff produced in discovery is the same Disclosure Notice he viewed but admittedly did not actually read on 10/11/2016. The Court has reviewed each party's supplemental briefing submitted in late August and early September 2020. The new evidence shows that neither Defendant nor its third-party vendor HireRight, LLC possess screenshots that would contradict Plaintiff's deposition t...

Excerpt: ... action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded." (CCP § 426.30(a).) "A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his ...

Excerpt: ... case. (See e.g., Clark v. American Residential Services LLC (2009) 175 Cal.App.4th 785, 804-807.) The Court requests that Plaintiff's declaration be filed with the Court and a courtesy copy sent by email to Dept. 19 at least five (5) court days before the continued 10/7/2020 hearing date. Except for Plaintiff's failure to submit a declaration evidencing her participation in the action as set forth above, the Court is inclined to grant the Motion...

Excerpt: ...) 20 Cal. App. 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 i...

Excerpt: ...perty for religious purposes, and that therefore the property taxes imposed on that real property by the County of Alameda are unconstitutional and they are exempt from paying the assessed taxes. Plaintiffs have an adequate remedy for any claim that they were improperly assessed real property taxes in the form of a tax refund action pursuant to Revenue & Taxation Code § 5140 et seq. Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal...

Excerpt: ...ed preliminary injunction standard for pre- judgment relief under which the court evaluates the two interrelated factors of (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm the plaintiff may suffer if the injunction is denied as compared to the harm that the defendant may suffer if the injunction is granted. (Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 338-...

Excerpt: ...ART WITH LEAVE TO AMEND and WITHOUT LEAVE TO AMEND as set forth in detail below. Defendant may file an amended pleading consistent with this Tentative Ruling no later than Friday, September 25, 2020. Plaintiff's and the Other Cross-Defendants' Motion for Sanctions re: Third Amended Cross-Complaint pursuant to CCP § 128.5 (the "Sanctions Motion") is DENIED. The Court further ORDERS Defendant to file a Notice of Related Cases in the present case a...

Excerpt: ... Supply, Inc. is a roofing company incorporated in 2007. Defendants Chang Ho Ahn and Young S. Ahn are the owners of Premier Roofing Supply. The individual defendants more recently formed Pacific Equipment and Supply, Inc. to engage in the business of distributing or reselling Plaintiff's ladder lifts in the United States pursuant to the parties' distribution agreement. The Court is familiar with Plaintiff's claims and allegations. On December 12,...

Excerpt: ...ssistance of deaf and hard-of-hearing persons. DCARA provides social services, independent living skills, employment training, job placement, interpreting and text translation. There are approximately 10,000 deaf and hard-of- hearing individuals in the Bay Area who receive services from DCARA. Plaintiff has approximately 40 to 45 employees. The facts presented by Plaintiff and Defendants are largely consistent. In February 2019, DCARA Board Presi...

Excerpt: ...has been served may move for an order that the initial answer to that interrogatory be deemed binding on the responding party for the purpose of the pending action." (C.C.P. § 2030.310 subs. (b).) Further, under subsection (c), the court is required to grant the motion if it determines that: "(1)?The initial failure of the responding party to answer the interrogatory correctly has substantially prejudiced the party who propounded the interrogato...

Excerpt: ...A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "There is a triable issue of material fact if, an...

Excerpt: ...l and preclude evidence of Defendant's profits or financial condition until after a jury returns a verdict for plaintiff and finds that defendant is guilty of malice, oppression, or fraud upon the application by Defendant requesting bifurcation. (Civil Code §3294.) The court therefore GRANTS IN PART defendant's motion and ORDERS that the parties are precluded from entering evidence of Defendant's profits or financial condition until after a jury...

Excerpt: ...ember 15, 2020 at 9:00 a.m. in Dept. 19. If any party wishes to contest the tentative ruling, NO LATER than 4:00 PM ONE (1) COURT DAYS prior to the current 9/2/2020 hearing date (exclude Saturday, Sunday and national holidays) 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, pas...

Excerpt: ...y sanction[.]" (CCP § 2033.280(b).) "The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220." (CCP § 2033.280(c).) "It is mandatory that the court impose a monetary sanction . . . on the party or attorney, or both, whose failure to s...

Excerpt: ...s to strike Plaintiff Keashalia Pierce's prayer for punitive damages. Plaintiff was a tenant residing in an apartment owned by Defendants. In her Complaint, Plaintiff asserts Defendants engaged in a "pattern of harassment and intimidation" towards Plaintiff after she complained about multiple habitability issues in her apartment. (Compl., para. 9.) On a motion to strike pursuant to C.C.P. sec. 436, the Court "may," but is not required to, "[s]tri...

Excerpt: ...there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2).) Once the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that defense. In doing so, the plaintiff cannot rely on the mere allegations or denial of his pleadings, "but, instead, shall set forth the specific facts showing that a triable issue of material fact exists...." (Bay Area Ra...

Excerpt: ...resolve the matter without having to resort to filing a cross-complaint. Defendant asserts that liability and the facts as to how the subject accident occurred and the fault of the parties involved are still contested. Defendant states that due to alleged obstruction by Plaintiff State Farm Mutual Automobile Insurance Company, and due to previously unknown facts, Defendant only now has grounds to file a cross- complaint. This Motion is unopposed....

Excerpt: ...Court. Plaintiff is advised to comply with all applicable Rules of Court and the Code of Civil Procedure in all future filings. STANDARD OF LAW "The court may, upon a motion . . . or at any time in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of thi...

Excerpt: ... DISCOVERY REGARDING PATTERN OR PRACTICE OF FAILING TO INVESTIGATE AND DISCIPLINE RACIAL SLURS Plaintiff has alleged generally that Tesla has a pattern or practice in the Fremont Plan of failing to investigate and discipline racial slurs. (Complaint, para 13) Tesla seeks to limit discovery by asserting that it complies with the law. A party cannot refuse to provide discovery based on its assertion that the case has no merit. Discovery permits the...