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: .... 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: ...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: ...§ 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: ... 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...