Excerpt: ...o "state by affidavit ... what new or different facts, circumstances, or law are claimed to be shown." (C.C.P. § 1008(a).) The burden under section 1008 "is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it earlier." (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 21...

Excerpt: ...Plaintiff incurred in seeking the TRO; an "overpayment" by Plaintiffs to satisfy the loan at issue; and punitive damages. The FAC does not contain any enumerated causes of action and the caption reads only "First Amended Complaint for Damages." Based on the substantive allegations, the Complaint appears to be for breach of the covenant of good faith and fair dealing, and Defendants have construed it as such. LEGAL STANDARD "A demurrer tests the l...

Excerpt: ...he complaint[;] [or] (ii) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant." (CCP § 438(c)(1)(B).) "A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP § 437c(a)(1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue ...

Excerpt: ...-General (Set One), Form Interrogatories-Employment (Set One), and Special Interrogatories (Set One) as to Cal FMC, Plaintiffs' Request for Order Awarding Monetary Sanctions Against Cal FMC in the Sum of $810.00, Plaintiffs' Motion to Deem the Truth of Matters Specified in Requests for Admission, Set No. One, Admitted and Conclusively Established as to Cal FMC, and Plaintiffs' Request for Order Awarding Monetary Sanctions Against Cal FMC in the S...

Excerpt: ...ther 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, and only if, the evidence would allow a reasonable tri...

Excerpt: ...mishandling" certain incidents, which Plaintiff characterizes as "false statements of fact". (See Complaint, paragraph 43.) As currently pled, the Complaint fails to adequately allege a claim for defamation. First, whether Plaintiff "mishandled" certain incidents is not a statement of fact that gives rise to a claim for defamation, but rather is a nonactionable opinion. (See, e.g., Campanelli v. Regents of the University of California (1996) 44 C...

Excerpt: ...ly move out leased premises when asked to by the Shius. The Shius allege that this promise (made on behalf of himself and Nguyen, see Cross-Complaint paragraph 5) was false, because Dagron and Nguyen had no intention of vacating the premises upon the Shius' request. Dagron and Nguyen argue that their alleged promise to vacate the leased premises is void and unenforceable pursuant to Civil Code § 1953(a)(3)-(4) unless they received the notices re...

Excerpt: ...nt no later than fifteen (15) days from the date of this Order. STANDARD OF LAW "A party may move for judgment on the pleadings." (CCP § 438(b)(1).) A defendant may make such a motion only if "either of the following conditions exist: (i) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint[;] [or] (ii) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant...

Excerpt: ... and shall include all of the following: (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best k...

Excerpt: ...AW "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 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.) Courts "construe the complaint 'liberally ... with a view to substantial justice between the parties[.]'" (Id.) "[I]f a plaintiff pleads a claim that fails to...

Excerpt: ...oss-Defendant breached two separate oral agreements. The First Cause of Action is based on Cross-Defendant's alleged breach of the 2017 agreement described as the "Purchase Agreement" in the Third Amended Cross-Complaint. The terms of the Purchase Agreement are set forth in paragraph 9 of the Third Amended Cross-Complaint. In paragraph 10, Cross- Complainant alleges that he incurred certain material expenses through the removal of tenants and the...

Excerpt: ... follows: The motion for summary judgment is DENIED. The motion for summary adjudication is DENIED. Legal Standard for Summary Judgment A motion for summary judgment shall be granted if all the papers submitted show that 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 Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or ...

Excerpt: ...ED IN PART. BACKGROUND Plaintiff Nezar AlSayyad, who is a U.S. Citizen, but from Egypt, was a professor of Architecture and City and Regional Planning Department at UCB. In March of 2016, one of Plaintiff's female Ph.D students made a complaint for sexual harassment accusing him of among other things placing his hand on her thigh while in his car. The Regents initiated an investigation, a three-person faculty subcommittee of the UC Berkeley Privi...

Excerpt: ... number. Hearings on matters that are properly contested will take place via a medium the court will identify. The Court will email the parties on properly contested matters notifying them of the date and time the oral argument will take place and providing instructions on how to participate in the hearing. Please be advised that due to limited video access, the oral argument may be at a later date and time than that previously calendared. Oral a...

Excerpt: ...lini and Keith Bardellini. Plaintiff's Separate Statement repeatedly cites "Bardellini Declaration", without indicating to which of the two Bardellini declarations Plaintiff refers. The declaration of Keith Bardellini simply attaches a copy of Plaintiff's Complaint and of Requests for Admissions, Set One that were propounded on EDP. Nothing in Keith Bardellini's declaration establishes that EDP has breached any contract with Plaintiff. In David B...

Excerpt: ...o complete. Plaintiffs Precious Owens, Bonnie Brook, and Rosalyn Reed began renting apartments in the building between the time when Defendants learned of the need for the reconstruction project and the time when work on the project began in a way visible to a potential renter visiting the building. When plaintiffs entered into or renewed their leases, they each signed an "Avenue 64 Construction Addendum." (UMF 3 (Owens); UMF 8 (Brook); UMF 13 (R...

Excerpt: ...lish a foundation for the expert opinion he purports to render. Plaintiff Richardo Ocampo ("Mr. Ocampo") has been diagnosed with malignant mesothelioma. He alleges that he was exposed to respirable asbestos while he worked in the presence of Defendant's employees as they disturbed asbestos- containing materials at the Synertek building in Santa Cruz during the 1980's. STANDARD OF LAW "When an application for an order has been made to a judge, or ...

Excerpt: ... of the court's challenges in filing documents given the COVID-19 related restrictions on staff. The court continues the motion so that counsel can file, or re-file, the supporting documents. PLEASE NOTE: Department 21 is currently hearing properly contested law and motion matters on Wednesdays at 9:00 a.m. Parties must notify opposing counsel and email the Clerk of Department 21 by no later than 48 hours prior to the assigned hearing date inform...

Excerpt: ... he had the right to do, or forcing him to do something he was not legally required to do. (See, e.g., King v. State of California (2015) 242 Cal.App.4th 265, 294.) Plaintiff alleges that BART violated Civil Code § 52.1 by intimidating him to vacate his business between June 14 and June 19, 2019, by means of threats that he would be arrested if he did not leave his business premises. But Plaintiff admits that BART mailed a letter of termination ...

Excerpt: ...runs through roughly the middle of the driveway. Plaintiffs allege that in 2015, Defendants constructed porches and porch steps that block part of the driveway, prohibits access to Plaintiffs' garages in the rear of the building. Plaintiffs also allege that Defendants blocked the use of the driveway by depositing construction debris there. Plaintiffs contend Defendants' tenants have used the shared driveway as a "patio" by placing tables and chai...

Excerpt: ...m of $128,217.77 that Plaintiff contends rightfully belongs to himself, and not to Commonwealth, and (2) for declaration of the rights and duties of the parties regarding that sum. If successful, therefore, this action would result in the payment to Plaintiff of that sum from the unidentified escrow firm that was holding that sum at the time this action was filed. Defendant argues that this action is barred by failure to comply with the claims pr...

Excerpt: ...PRA case was based on Govt Code 6254.5, which is part of the CPRA, instead of on Evid Code 912, which is part of the more generally applicable Evidence Code. It should not have been a surprise that the court relied on a section in the CPRA when considering a claim for waiver under the CPRA. Plaintiff had the opportunity to address the analysis at the hearing. The trial court's conclusion is not a new fact. (Corns v. Miller (1986) 181 Cal.App.3d 1...

Excerpt: ...own has a law suit pending in the Eastern District of California that arises out of the same subject matter as this action. (See RJN Exhs. P, Q, R, S and T.) CONTRACT BASED CLAIMS Defendant' Demurrer to the First and Third Cause of Action is SUSTAINED with leave to amend. The gravamen of these two claims is that Wells Fargo had a contractual obligations to provide Plaintiff with notice before accelerating the remaining balance on the home loan an...

Excerpt: ...pplication on October 22, 2019. (See Second Amended Complaint, paragraphs 24-25.) The documents attached as Exhibit G to the Second Amended Complaint could be interpreted as supporting Plaintiff's allegations, because they include a fax over sheet dated October 16, 2019, and another fax cover sheet dated October 22, 2019 that indicates "I am resending". What documents Plaintiff submitted to Bayview, when she sent them, and whether the documents t...

Excerpt: ...ed to respond. IT IS ORDERED THAT Plaintiff's claims against GLP Defendants are STAYED pending completion of arbitration. (CCP § 1281.4.) Plaintiff's claims against the remaining defendants, SW Smyth LLP, Andrew E. Smyth Attorney at Law and S.B.S. Trust Deed Network are not stayed by this Order. STANDARD OF LAW "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a ...