Excerpt: ... BNSF's Separate Statement Facts Nos. 1, 3, and 5; Plaintiff's response; Plaintiff's Additional Facts Nos. 6-9; and the evidence cited in support. See particularly the declaration of Christian Akina at paragraphs 5-6 and 15-18.) The Court rejects BNSF's argument that the Court must strike the declaration of Christian Akina. Preliminarily, the Court does not understand the reference to "Local Rule 180(e)" in BNSF's reply brief at page 2:21. But in...

Excerpt: ... premises. (See Third Amended Complaint, paragraph 26.) Plaintiff further alleges that Pettner was acting in the course and scope of his employment as Sutter's designated "bouncer" when he committed his alleged assault and battery on Plaintiff. (See Third Amended Complaint, paragraphs 52 and 65.) Plaintiff's allegations, if true (and the Court must presume them to be true in ruling on this demurrer) support a claim for assault and battery against...

Excerpt: ...T as to Items Nos. 2, 7-8, 11-14, and 18-22, in light of the Court's ruling on Defendant's demurrer, also heard this date. The Motion is GRANTED as to Items Nos. 3 and 9 in the Notice of Motion, WITH LEAVE TO AMEND to allege facts (as opposed to conclusory allegations) demonstrating that Defendant acted with malice, fraud, or oppression. The Motion is GRANTED as to Items Nos. 4-6 in the Notice of Motion. Plaintiff alleges that Defendant negligent...

Excerpt: ... and engaged in a good faith interactive process to do so. (See Defendants' Separate Statement Facts ("SSF") Nos. 25-28, 31, 34, 36-37, 39, and 41-42; Plaintiff's response; Plaintiff's Additional Facts ("AF") Nos. 31-33, 39-43, 47, 50, and 57-59; and the evidence cited in support.) A to Plaintiff's Third Cause of Action for Disability Discrimination, the motion is DENIED. Plaintiff's evidence creates a triable issue of material fact as to whether...

Excerpt: ...ity that it will prevail on its claims against Defendant Justin Briggs for, inter alia, misappropriation, conversion, and intentional interference with prospective economic relations. Specifically, SP's evidence establishes that SP was incorporated by its President and CEO Craig Miller on September 13, 2013. (See the Declaration of Adrian Driscoll, Exhibit B.) Briggs was an employee and Vice President of Business Development for SP. (See Miller's...

Excerpt: ... 144, 160.) As the Complaint is presently pled, Plaintiff fails to allege any facts suggesting that the incident giving rise to this case was anything more than the negligent operation of a motor vehicle. The demurrer to the Third Cause of Action for Negligent Infliction of Emotional Distress is SUSTAINED, WITHOUT LEAVE TO AMEND. Negligent infliction of emotional distress is not an independent tort, but rather is the tort of negligence. (See Zava...

Excerpt: ...by the District on September 7, 2017, effective July 10, 2017, but that she had a statutory right to preference over new applicants to be rehired to her former position. Plaintiff alleges that between 2017 and April 15, 2019, the District hired several new employees as administrative assistants rather than hiring Plaintiff for one of those positions. (See First Amended Complaint, paragraphs 15-19.) On May 4, 2021, the Court sustained the District...

Excerpt: ...ond Cause of Action for Battery is OVERRULED. Plaintiffs' allegations, if true, adequately support a claim for battery. Although Plaintiffs did not allege a claim for battery until their Third Amended Complaint filed February 19, 2021 (more than two years after decedent's death), Plaintiff alleges they did not discover Sutter's alleged wrongful conduct until after this lawsuit was filed (on December 6, 2019) and they reviewed decedent's medical r...

Excerpt: ...from its original hearing date of August 26, 2021 so that it would be heard after Defendants' motion to vacate the defaults entered against Jimin and William Corporation, Ji Min Chen, and Wendy Lai Wah Hui, which motion was granted on September 16, 2021. But in continuing the hearing on this application, the Court did not grant Defendants leave to file a second, "supplemental" opposition to this application. Plaintiff's claim against Defendants i...

Excerpt: ...tiffs further alleges that Sarwary has (1) cancelled the utility and security accounts, causing the Center to pay additional charges to reconnect the services, and (2) misrepresented to the cemeteries that he (Sarwary) alone as the right to those plots, which are worth thousands of dollars. Those facts, if true, adequately support the Center's claim for interference with contractual relations. The demurrer to the Second Cause of Action for Trespa...

Excerpt: ...by the District on September 7, 2017, effective July 10, 2017, but that she had a statutory right to preference over new applicants to be rehired to her former position. Plaintiff alleges that between 2017 and April 15, 2019, the District hired several new employees as administrative assistants rather than hiring Plaintiff for one of those positions. (See First Amended Complaint, paragraphs 15-19.) On May 4, 2021, the Court sustained the District...

Excerpt: ...from its original hearing date of August 26, 2021 so that it would be heard after Defendants' motion to vacate the defaults entered against Jimin and William Corporation, Ji Min Chen, and Wendy Lai Wah Hui, which motion was granted on September 16, 2021. But in continuing the hearing on this application, the Court did not grant Defendants leave to file a second, "supplemental" opposition to this application. Plaintiff's claim against Defendants i...

Excerpt: ...led in this case), they understood from communications with Plaintiff's agents that Plaintiff had not yet filed a lawsuit and would only do so if the parties could not otherwise resolve the matter. (See the emails from Plaintiff's agents attached to the declaration of Jim Min Chen.) Those emails can reasonably be understood as indicating that Plaintiff had not yet filed the lawsuit, which was false. In addition, Plaintiff presents no evidence tha...

Excerpt: ...e El Escorial Owners' Assn. v. DLC Plasterers Inc. (2007) 154 Cal.App.4th 1337, 1348-1349.) The demurrer to the Seventh Cause of Action for Intentional Infliction of Emotional Distress is OVERRULED. Plaintiffs allege that they reached a written agreement with Defendants authorizing Defendants to engage in construction activities using the airspace above Plaintiffs' property, pursuant to which Defendants could move the swing radius of cranes in th...

Excerpt: ...de a request for judicial notice as to any of the facts appearing in those documents as required by California Rules of Court, Rule 3.1113(l). Therefore, the Court did not consider any of those documents in ruling on this motion. The Court disregards DBank's alleged failure to meet and confer prior to filing this motion, because that would not be a ground to deny the motion. (See Code of Civil Procedure § 439(a)(4).) Although this motion was sch...

Excerpt: ...Dock and trespassed onto his boat. As Plaintiff was chasing the intruders off his boat, he tore his Achilles tendon. Plaintiff seeks to hold the City liable for his injury pursuant to Government Code sections 840 - 840.6. In order to hold the City liable for the acts of its employees pursuant to Government Code sections 840 - 840.6, Plaintiff must show, inter alia, that the property on which he was injured was in a dangerous condition at the time...

Excerpt: ....2 of the Settlement Agreement that remains unpaid. The Kairos Parties" (including Steven Marks) are jointly and severally liable for the remaining $25,000 payment, as they are jointly and severally liable for all payments under Section 2.2. The judgment will also require the Kairos Parties to turn over to Turner the intellectual property of the business, consisting of training videos and credentials to the business accounts. (See Section 2.8 of ...

Excerpt: ...laintiff is alleging here.) If, on the other hand, Plaintiff alleges that she entered a separate contract with Defendant in which Defendant agreed to "facilitate" debt protection insurance for Plaintiff, Plaintiff must clearly allege whether that contract was written, oral, or implied in fact, as well as the terms of that contract and how Defendant breached it. The demurrer to the Second Cause of Action for Fraud is SUSTAINED, WITH LEAVE TO AMEND...

Excerpt: ...to recover a higher amount of damages at trial, the $96,475.04 in unpaid rent is a fixed and readily ascertainable amount. Plaintiff's evidence establishes the probable validity of its claim that Defendants owe $96.475.04 in unpaid rent for the nine month period from April through December, 2020. Nine months of rent (at $13,537.91 per month), less the $25,366.15 in rent that Defendants claim they paid for the period between September 4, 2020 and ...

Excerpt: ... 1 and October 4 because it is now clearly impossible for Plaintiff to vacate the premises by June 1, 2021 as she had agreed in paragraph 4 of the parties' Stipulation for Possession, which is attached to and incorporated into the parties' Settlement Agreement. The Court takes no position on whether any other occupants of the premises (if there are any other such occupants) must vacate the premises. However, Plaintiff herself must vacate the prem...

Excerpt: ...personal injuries, "any defendant may demand one physical examination of the plaintiff". In her opposition, Plaintiff characterizes 3N's demand for physical examination as a demand for a "second physical examination", because a different defendant (Eleven Western Builders Inc.) previously conducted a physical examination of Plaintiff on August 20, 2020. Plaintiff's characterization, however, is incorrect because 3N has not previously conducted an...

Excerpt: ...ause of Action for Breach of Contract is premised on a claim that he is a third-party beneficiary of a contract between Defendant and Alameda Health System. The undisputed facts establish that Plaintiff is not a third-party beneficiary of that contract. (See Defendant's Separate Statement Facts ("SSF") Nos. 1-4 and the evidence cited in support, particularly Exhibit A to the declaration of Grace Kroeger, at page 9 section 17.) In addition, even i...

Excerpt: ...Amended Complaint paragraphs 5 and 9.) Plaintiff alleges that during that time period, he had 62 prescriptions handled by Le. (See First Amended Complaint, paragraph 12.) Plaintiff also alleges that Defendant made a single prescription error on August 15, 2007, which he settled through a small claims case (see First Amended Complaint, paragraph 7); he does not allege that Defendant has made any prescriptions errors since that date. Plaintiff admi...

Excerpt: ...r, Plaintiffs fail to allege facts suggesting that Tesla owned, operated, used, or drove the subject vehicle at the time of the accident. The First Amended Complaint alleges that Defendants Romeo Lagman Yalung (hereinafter "Yalung") and Vilima Yalung, not Tesla, owned the subject vehicle at the time of the accident. (See First Amended Complaint, paragraphs 4-5.) The First Amended Complaint alleges that at the time of the accident, the subject veh...

Excerpt: ...nia Rules of Court, Rule 3.1350(b). In addition, the only fact set forth in the City's Separate Statement addressing Plaintiff's individual causes of action is that "a driveway apron is not a sidewalk". (See The City's Separate Statement Facts ("SSF") Nos. 60-64.) That purported fact does not negate any of Plaintiff's causes of action. Plaintiff's decedent Donna Howell died after tripping and falling in a "driveway apron" adjacent to property loc...