Excerpt: ...All Saintsidence") opposes the present motion on several grounds, which the court will address below. JURISDICTION First, All Saintsidence challenges this court's jurisdiction to hear the present motion based on All Saintsidence's Notice of Appeal of the court's denial of its Petition to Compel Arbitration. While the filing of an appeal divests the trial court's jurisdiction, however, the stay only applies to the issues and parties embraced by th...

Excerpt: ...ily 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 cons...

Excerpt: ...t does not specify, with sufficient particularity, whether the contract is written or oral and the terms of the agreement. The allegations constituting a defendant's breach of a contractual duty "must be pleaded with specificity." (Baldwin v. AAA N. Cal., Nev. & Utah Ins. Exch. (2016) 1 Cal.App.5th 545, 550; Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal.App.4th 1, 5.) The court agrees that Biotree HealthCare Partners Limited, Biotree Harm...

Excerpt: ... conclusory grounds for striking the sections of the complaint. Second, as to the request to strike the prayer for punitive damages and injunctive relief the court finds that the allegations in the complaint support a claim for punitive damages given the allegations that Defendant's practice is to confuse tenants and circumvent tenant protections by sending an "explanation letter" that does not comply with Civil Code section 1950.5 and improperly...

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: ..., 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. Kirwan (1985) 39 Cal.3...

Excerpt: ... 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 cross-complainant moves for summary adjudication, it is the cro...

Excerpt: ...nd that the court lacks jurisdiction because Plaintiff has failed to timely comply with the Government Claims Act. First, Defendant argues that Plaintiff has not alleged compliance, exhaustion of remedies under the grievance process set forth in the collective bargaining agreements between OUSD and the two applicable unions, United Administrators of Oakland Schools ("UAOS") and the Oakland School Employees Association/Service Employees Internatio...

Excerpt: ... (c).) 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...

Excerpt: ...history and background of the case given the many demurrers and motions brought before the court. The length of the motion renders the motion unmanageable and the court is required to spend significant time trying to decern the necessary information from the superfluous. "There is nothing novel in the concept that a trial court has the power to exercise a reasonable control over all proceedings connected with the litigation before it. Such power ...

Excerpt: ...urden of proving by a preponderance of the evidence any fact necessary to its defense. [Citations] The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination." Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842. While Defendant presents evidence that Plaintiff agreed to Defendan...

Excerpt: ... 362, 42.) "To this end, the provision 'is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit.'" (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22, citing Wilkerson v. Sullivan, supra, 99 Cal.App.4th 443, 446.) Section 425.16 is interpreted to allow awards of only such fees as the court deems...

Excerpt: ...e demurrer to the Second Cause of Action for unjust enrichment is SUSTAINED WITH LEAVE TO AMEND. Legal Standard for Demurrer A general demurrer tests the sufficiency of the complaint, i.e., whether it states facts sufficient 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 con...

Excerpt: ...ivil Procedure (C.C.P.) section 425.16 involves two steps. In the first step, the defendant has the burden to demonstrate that the challenged claims against defendant arise "from any act of that person in furtherance of the person's right of petition or free speech ... in connection with a public issue." (C.C.P. § 425.16(b)(1).) Such protected acts are further defined in section 425.16(e). "If the defendant makes the required showing, the burden...

Excerpt: ... 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.) The court m...

Excerpt: ...review of the Second Amended Complaint, that Plaintiff has adequately pleaded facts that demonstrate that the School District took affirmative actions, such as providing places for the abuse to occur, for covering up the abuse and for allowing the teacher to resign instead of being fired. (Second Amended Complaint at ¶¶ 24, 25, 31, 34, 36, 37, 92, 100, 101, 107, 108, 117, 118 121, 126, 127.) The court finds that these allegations are sufficient...

Excerpt: ...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 conduct "intended by...

Excerpt: ...tion of John Vodnick at Exhibit 1.) Further, if the computer at issue is the property of Saybrook and not TCS Education System and Plaintiff is aware of this fact, then the appropriate party to serve the request to is Saybrook. Additionally, as defendant Nathan Long, although the opposition discusses his response, both the notice of the motion and discovery requests are not directed to defendant Nathan Long, therefore the court does not rule on a...

Excerpt: ...68 (POC Response Re February 17, 2021 Wong Deposition), 181 (MHC Response re February 10, 2021, Taetz Deposition) and Request No. 181 (MHC Response re February 10, 2021, Taetz Deposition), and Request No. 199 (MHC Response re February 17, 2021 Wong Deposition), as follows: 1. As to Requests Nos. 163, 168, 181, and 198, Defendants' are to produce texts, emails or other form of electronic communication sent to either Mr. Wong or Ms. Taetz during th...

Excerpt: ...a matter of law. (Code Civ. Proc. § 437c, subd. (c).) 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. ...

Excerpt: ...rom (1) the sexual assault witnesses, and (2) the Fremont Administrator (sic). (Plaintiffs' MPA in Opposition to Defendants Motion for Protective Order, at 2:2-7.) Based on this understanding, the court rules as follows: 1. Defendant's Motion for Protective Order is DENIED as to all witnesses to the alleged sexual assaults and all witnesses who reported incidents of sexual assault to the Parkview staff. The court begins its analysis by noting tha...

Excerpt: ...ny a petition to compel arbitration on the ground of waiver, waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof." Saint Agnes Medical Center v. PacifiCare of California (2003) 8 Cal.Rptr.3d 517, 31 Cal.4th 1187, 82 P.3d 727, citing Christensen v. Dewor Developments (1983) 33 Cal.3d 778, 782. The present action was filed on July 20, 2020. Defendant filed its answer to the complaint on O...

Excerpt: ...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, and only if, t...

Excerpt: ...rom (1) the sexual assault witnesses, and (2) the Fremont Administrator (sic). (Plaintiffs' MPA in Opposition to Defendants Motion for Protective Order, at 2:2-7.) Based on this understanding, the court rules as follows: 1. Defendant's Motion for Protective Order is DENIED as to all witnesses to the alleged sexual assaults and all witnesses who reported incidents of sexual assault to the Parkview staff. The court begins its analysis by noting tha...

Excerpt: ... 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.) The court m...

Excerpt: ...ue to the late delivery of portions of premises has already been ruled on by the Court in its order overruling 2050 Williams Street's demurrer to the First Amended Complaint, which addressed the interpretation of section 8.7 and 8.8 of the lease agreement addressing insurance and indemnity obligations. Cross-Defendant argues that section 8.7 and 8.8 do not apply to the present lawsuit because that portion of the lease only relates to damages and ...

Excerpt: ...bson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625; CRC 317(d).) In a demand for production of documents, "the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) [a] statement of compliance with the demand is incomplete[;] (2) [a] representation of inability to comply is inadequate, incomplete, or evasive[;] [and/or] (3) [a]n objection in the response...

Excerpt: ...ments that make the title void or voidable and that are not deducible from the record, such as a grantor's incapacity to contract, fraud in procuring a transfer, forgery, or lack of delivery. (12 Witkin, Summary of California Law, section 338 p.390 (11th Ed. 2017.) In order to claim the benefit of the recording laws, the claimant must be a bona fide purchaser or mortgagee, or a judgment creditor without notice, and the burden of proving bona fide...

Excerpt: ...nt dispute lies within the scope of the agreement to arbitrate. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960.) Plaintiff Henkes acknowledges that he entered into the 2/12/17 Employee Transfer Agreement. (Henkes Dec., par 2.) The agreement he entered into with Tesla has an arbitration clause. The arbitration clause covers "any and all disputes, claims, or causes of action, in law or equity, arising from or relating to [Henkes's] emp...

Excerpt: ...shed preliminary injunction standard for pre- judgment relief. On a motion for preliminary injunction 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. (2...

Excerpt: ...bson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625; CRC 317(d).) In a demand for production of documents, "the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) [a] statement of compliance with the demand is incomplete[;] (2) [a] representation of inability to comply is inadequate, incomplete, or evasive[;] [and/or] (3) [a]n objection in the response...

Excerpt: ...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 conduct "intended by...

Excerpt: ... 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.) The court m...

Excerpt: ...nzino v. Washington Outpatient Surgery Center, LLC (RG20067286) is decided. The Court also has discretion to stay a case in its entirety in the interest of justice. (CCP §§ 128(a), 187; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758 ["The case management tools available to trial courts [includes] the inherent authority to stay an action when appropriate"]; Bailey v. Fosca Oil Co., (1963) 216 Cal.App.2d 813,...

Excerpt: ... LAW "[T]he court, upon motion reasonably made by [a party] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders." (CCP § 1987.1(a).) "In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the righ...

Excerpt: ...erned about the untimeliness of the papers filed in opposition to the motion, the Court exercises its discretion to consider the late-filed papers. (See Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625).) STANDARD OF LAW "[T]he court, upon motion reasonably made by [a party] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, includi...

Excerpt: ...d Demo's request for attorney's fees, not on the grounds that the fees incurred were unreasonable, but that Defendants were not entitled to fees related to Plaintiff's appeal of the anti- SLAPP motion. First, Plaintiff appears to argue that because the Court of Appeal did not specifically mention in their order that Defendants were entitled to fees and therefore the recovery of fees are precluded. Based on the case law, this is not an accurate re...

Excerpt: ...ndant Loh. The declarations provided Peter Catalanotti and Michael Shepherd and Jessica M. Takano show hours billed at a "reasonable rate" but do not reflect the amounts actually billed to the client/insurer. PREVAILING PARTY In an action to enforce a contract authorizing an award of fees and costs to one party, the party "prevailing on the contract" is entitled to reasonable fees. (Civ. Code § 1717.) Here, the language of the lease agreement th...

Excerpt: ...ows: The motion is DENIED. Legal Standard for Summary Adjudication "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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, o...

Excerpt: ...he sufficiency of the complaint, i.e., whether it states facts sufficient 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, r...

Excerpt: ...�§473.5, 473(b), (d).) Accordingly, the entry of default entered on June 19, 2020 against Defendants Biotree HealthCare Partners Limited, Biotree Harmony Limited, Hao Zhou is hereby SET ASIDE. Defendants shall file their proposed answer and cross-complaint in the form attached as Exhibit 1 to the Declaration of Bing Zang Ryan in support of Defendants' Reply. The answer and cross-complaint shall be filed by February 19, 2021 and served forthwith....

Excerpt: ...ed an extremely lengthy separate statement identifying 80 undisputed material facts in support of its motion for summary adjudication for two causes of action. After reviewing the "material facts" the court finds that the majority of the material facts are not in fact "material facts" but rather facts that are irrelevant. Given the number of facts, the court is unable to easily determine the material facts, as is the purpose of the separate state...

Excerpt: ...d 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 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 ...

Excerpt: ...tion 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. (Aubry v. Tri-City Hosp. Dis...

Excerpt: ... the Adult Protective Services is part. The court did not receive an opposition on behalf of the Long Term Care Ombudsman of the County of Alameda but the interests and law appear to be applicable to both entities. Given that the motion was brought as one motion as to both subpoenas, the court will consider the two subpoenas together. Second, Welfare & Institutions Code section 9275 deems the investigation materials as confidential. (Ombudsman Se...

Excerpt: ... at the rate charged by the parties. Additionally, Defendant, specifically counsel Peter Catalanotti and Michael Shepherd, are to provide a declaration providing a summary of the fees that are attributable only to Defendant Loh (as opposed to split or apportioned fully to Loh even though work was performed on behalf of both Wellington Properties and Loh, such as for depositions or court appearances) at the various hourly rates at the different fi...

Excerpt: ...es related to Plaintiff's appeal of the anti- SLAPP motion. First, Plaintiff appears to argue that because the Court of Appeal did not specifically mention in their order that Defendants were entitled to fees and therefore the recovery of fees are precluded. Based on the case law, this is not an accurate reading of the law. (C.C.P. § 425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 [ "[A]ny SLAPP defendant who brings a successful motion ...

Excerpt: ... 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 granting this preference." (CCP § 36(e).) MOTION FOR PREFERENCE Plaintiff...

Excerpt: ... to substitute Loranie Francis, a personal representative for the Estate of Mary Virgis Thomason given the death of Ms. Thomason. (See Lazar v Estate of Lazar (1962) 208 Cal.App.2d 554, 561.) The court on its own motion take judicial notice of the orders and determination of Ms. Francis as the executor and personal representative for Mary Virgis Thomason in probate action: The Estate of Mary Virgis Thomason, Alameda County Superior Court Case No....

Excerpt: ...o Code of Civil Procedure (C.C.P.) section 425.16 involves two steps. In the first step, the defendant has the burden to demonstrate that the challenged claims against defendant arise "from any act of that person in furtherance of the person's right of petition or free speech ... in connection with a public issue." (C.C.P. § 425.16(b)(1).) Such protected acts are further defined in section 425.16(e). "If the defendant makes the required showing,...