Excerpt: ...ate 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 the defendant to cause injury ...

Excerpt: ...ient 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 plead...

Excerpt: ... risk of complications from COVID-19 should be contract the virus, her in ability to see her doctor because of the COVID-19 pandemic, her inability to go to the gym or to receive massage therapy, and stress as grounds for seeking trial within 120 days. Plaintiff provides her own declaration regarding her health and a declaration from counsel setting forth the procedural history, a list of individuals for hi grist for COVID-19 from the Center for ...

Excerpt: ...for Production (Set One), which were due on August 23, 2019. (Declaration of Anthony Case at ¶ 4.) The court granted Defendant's motions to compel further responses and request for production of documents on February 28, 2020, ordered Plaintiffs to provide verified responses by March 6, 2020 and awarded monetary sanctions. (Declaration of Anthony Case at ¶ 10, Exhibit A.) Defendant attempted to meet and confer with Plaintiffs and received a cor...

Excerpt: ...he declaration of David Cumes M.D. in place of Dr. Eisenberg's declaration. The declaration, which does not state any of Dr. Cumes' qualifications or specialty and does not state that Dr. Cumes examined or evaluated Plaintiff. The declaration merely states that Dr. Cumes is a medical doctor and that Dr. Cumes "personal observation" on January 31, 2020 that "Dr. Krippner made me aware of his recent hospitalization...the chronic pain he suffers as ...

Excerpt: ...Plaintiff on February 18, 2020. The demurrer by Defendants Saybrook and TCS to the First Cause of Action for Breach of Contract, is SUSTAINED WITH LEAVE TO AMEND as to defendant Saybrook under C.C.P. 430.10(f) and WITH LEAVE TO AMEND as to defendant TCS under C.C.P. 430.10(e). First, after sustaining the first demurrer, Plaintiff still has not alleged facts that would make TCS liable for the breach of a contract that it is not a party to. Althoug...

Excerpt: ...en subpoenaed are third parties who were involved in the design and construction of the agricultural barn on Plaintiff's property. Plaintiff argues that the deposition of the eight witnesses would be unduly burdensome and expensive, as well as intrusive, which outweighs any potential relevancy of the information sought. Plaintiff argues that it is immaterial whether or not the Agricultural Barn was built for a different purpose because Defendant'...

Excerpt: ... argue that the present motion to compel is not justified because they agree to allow Defendant and his counsel conduct a site inspection, film the drone flight from the ground. However, Plaintiff does not appear to agree to allow Defendant's experts attend the site inspection and Plaintiff objects to a site inspection of the agricultural barn. The court finds that although Plaintiffs wish to limit the individuals who have access to the property,...

Excerpt: ...surveillance of any parties to this action. Plaintiff has objected to all of the discovery requests on the grounds that the requests are privileged as attorney work product, relying on Coito v. Superior Court (2012) 54 Cal.4th 480 ("Coito"). Even though Coito relates to witness statements taken by counsel, the court finds that the analysis is still the same regarding whether or not the requests ask for attorney work product. Defendant relies on S...

Excerpt: ...c., § 2031.060, subd. (b).) However, the party who is seeking the protective order must show good cause for issuance of the order by a preponderance of evidence. (Stadish v. Sup.Ct. (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130, 1145.) The court finds that Defendants presented good cause in support of their motion by a preponderance of the evidence. First, the court notes that Plaintiffs, in their opposition papers, have agreed to withdra...

Excerpt: ...ndant 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...

Excerpt: ...dant Amber Olson no longer lived in the Bay Area. (Declaration of James Yuanxin Li at ¶¶ 5, 9-10.) "If there is any situation in which strict compliance can reasonably be required, it is that of service by publication." (County of Riverside v. Sup.Ct. (Hill) (1997) 54 Cal.App.4th 443, 450; see also Katz v. Campbell Union High School Dist. (2006) 144 Cal.App.4th 1024, 1034. The basic test is whether the declaration shows plaintiff took "those st...

Excerpt: ...20 and California Education Code sections 44805, 44807, 48290, 49005(a) and 48900(2)(1) on the grounds that Plaintiff has not adequately alleged a statutory basis for its cause of action. In reviewing the sections cited by Plaintiff, the court agrees with Defendant that Plaintiff has not cited a statutory basis for her claim. The statutes referenced do not relate to the circumstances involved in the First Amended Complaint. The court provides Pla...

Excerpt: ... 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. (Id.) "There is a triable i...

Excerpt: ...n for fees. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1140-1141 [trial court "was not required to issue a statement of decision with regard to the fee award"]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294 ["we have discovered no case requiring a statement of decision on a motion for attorney fees"].) However, the court sets forth its reasoning for its ruling as follows. FACTS Petitioner and Gloria A filed the underlying petition for a writ of m...

Excerpt: ...dant Amber Olson no longer lived in the Bay Area. (Declaration of James Yuanxin Li at ¶¶ 5, 9-10.) "If there is any situation in which strict compliance can reasonably be required, it is that of service by publication." (County of Riverside v. Sup.Ct. (Hill) (1997) 54 Cal.App.4th 443, 450; see also Katz v. Campbell Union High School Dist. (2006) 144 Cal.App.4th 1024, 1034. The basic test is whether the declaration shows plaintiff took "those st...

Excerpt: ...es, 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, or both . . . ." (Code Civ. Proc. § 437c, subd. (f)(1).) A defendant may move for summary adjudication on a claim for punitive damages even if it does not dispose of an entire cause of action. (CCP § 437c(f)(1) ["A party may...

Excerpt: ...g discovery to be stayed. (Declaration of Andrew Collier at ¶8.) While the discovery stay was in effect, Plaintiff first served one general objection to eight separate discovery requests served by four separate defendants. (Declaration of Andrew Collier at ¶ 12, Exhibit 4.) Plaintiff's single objection did not identify the discovery requests by name or the defendants who served the requests, but rather referred to the discovery generally as "De...

Excerpt: ...ourt would like the parties to be prepared to argue the applicability of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 in light of controlling authority from the Court of Appeal. Defendant, who is moving for reconsideration of its Motion for Summary Judgment, is required to present evidence that reconsideration should be granted due to the existence of new or different facts, circumstances or law. See CCP § 1008(a). A motio...

Excerpt: ...as 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...

Excerpt: ... 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 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...

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: ... 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: ...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 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 pl...

Excerpt: ...ther trustee's sale, pending resolution of this case or further order of the court. In this action, Plaintiff alleges that he owns real property at 936 Bayview Avenue, Oakland, California. Plaintiff alleges that in 2001, he borrowed money secured by a deed of trust on the property. Plaintiff alleges that Defendant U.S. Bank is the assignee of the deed of trust, and U.S. Bank has hired Fay Servicing to service the loan. Plaintiff alleges that he d...

Excerpt: ...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 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 pl...

Excerpt: ...ty 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, or both . . . . A motion for summary adjudication shall be granted only if...

Excerpt: ...ution of the prior actions. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [no abuse of discretion to deny leave to amend where party fails to show how amendment is possible].) Plaintiff has not opposed the demurrer. Defendant argues that Plaintiff's causes of action are barred under res judicata based on Plaintiff's prior unsuccessful lawsuit related to the foreclosure proceedings, which was dismissed by the court at the demurrer stage, and Defen...

Excerpt: ...an Chase Bank, N.A. ("Defendant") to the First Amended Complaint filed on February 18, 2020, by Plaintiff Alma Valdez ("Plaintiff"), the court orders as follows: The demurrer 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-Ha...

Excerpt: ...operty placed, the court finds that Plaintiff should be obligated to pay the amount equal to six months' worth of payments on the loan based on the total amount Plaintiff would be obligated to pay if she were granted a HAMP modification at a fixed 2% interest rate for a 20 year term at $4,230.00 per month, for a total of $25,380. (See Declaration of Brook Anne Boiser at ¶ 16(d) in support of Wells Fargo's Evidence Re: Bond Amount.) If after six ...

Excerpt: ...ie 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 the defendant to cause injury to plaintiff, o...

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

Excerpt: ...ty 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, or both . . . . A motion for summary adjudication shall be granted only if...

Excerpt: ...§ 437c, subd. (c).) "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, or both . . . . A motion for summary adjudicati...

Excerpt: ...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 interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberal...

Excerpt: .... 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 may...

Excerpt: ...ee how an amendment would be possible given the resolution of the prior actions. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [no abuse of discretion to deny leave to amend where party fails to show how amendment is possible].) Plaintiff has not opposed the demurrer. Defendant argues that Plaintiff's causes of action are barred under res judicata based on Plaintiff's prior unsuccessful lawsuit related to the foreclosure proceedings, which was di...

Excerpt: ... 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. (Aubry v. Tri-Ci...

Excerpt: ...e court is to maintain the status quo until the arbitration is resolved. (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, [during arbitration "the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration"].) "In the absence of a stay, the continuation of the proceedings in the trial court disrupts the arbitration proceedings and can r...

Excerpt: ...nt evidence to support their assertions that the civil penalty assessed by the consent judgment is reasonable based on the criteria set forth in Health & Safety Code section 25249.7(b)(2). The court needs more information to determine the dollar value of the sales when determining whether the civil penalty is reasonable. The court will not approve a settlement and consent judgment when the information used to determine the reasonableness of the c...

Excerpt: ...te the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (Code Civ. Proc. § 1281.2.) There is no dispute that Plaintiff signed the purchase agreement that contained the provision to arbitrate, nor does he dispute that he did not follow the steps to opt out of the arbitration provision. Instead, Plaintiff challenges the e...

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...

Excerpt: ...trate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (Code Civ. Proc. § 1281.2.) AGREEMENT TO ARBITRATE Plaintiff disputes that there was an agreement to arbitrate. Plaintiff argues first that Defendant has not met its burden of proof to show that Plaintiff entered into an agreement to arbitrate. Second, Plaintiff...

Excerpt: ...1 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 com...

Excerpt: ...ary 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, the evidence wou...

Excerpt: ...for Unlawful Interference with Employment by Threats & Intimidation- Bane Civil Rights Act (Civil Code 52.1.) was granted in error because SSAT faced liability under respondeat superior, 2) the jury was not allowed to consider that Mr. Patalano called the police out to harass Plaintiff, 3) the special verdict form was defective because Question 1 of the special verdict form did not address whether SSAT could be liable not only for harassment by i...

Excerpt: ...auses of action (Bane Act), Plaintiff argues that the court made an error in law because it did not consider the issue of respondeat superior as to SSAT. However, Plaintiff did not establish who the individuals were who allegedly placed the May 7th hangman's noose, or any of the nooses. In reviewing the specific language of the Bane Act, the law references acts by a "person or persons" and appears to relate to the individual who makes the threat,...

Excerpt: ...re pending, which stayed discovery, and the stay imposed by the two Informal Discovery Conferences, that Defendant's motion is timely. (See: C.C.P. 425.16 subd. (g), 1013 subd. (a), Local Rule 3.31(4), 2016.080 subd. (b).) DISCOVERY NOT BARRED UNDER C.C.P. 916(a). "[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcem...

Excerpt: ...ritten "Settlement Agreement" filed with the court on February 2, 2017, which conditionally dismissed the case pursuant to the settlement, pursuant to C.C.P. 664.6. (See the Declaration of Keri L. Salet ("Salet Decl."), at ¶ 2, "Settlement Agreement" attached at Exh. A.) The court may enter a judgment pursuant to the terms of that agreement under C.C.P. § 664.6. Additionally, the Declaration of Keri L. Salet attached to the motion provides suff...