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: ...ose the leaks, their intent that Plaintiffs rely on their failure to disclose the leaks, and the materiality of the nondisclosure causing Plaintiffs to suffer damages. If Defendants contend the subject property did not in fact suffer from water leaks, or that they were unaware of that fact, or that Plaintiffs knew of or could reasonably have discovered the water leaks, they can present evidence in support of those contentions at a later stage of ...

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...

Excerpt: ...et had advance knowledge of Hwang's alleged unfitness and employed her with a conscious disregard of the rights of others, or authorized or ratified her alleged wrongful conduct. Plaintiffs' boilerplate, conclusory allegations in First Amended Complaint paragraph 5 are insufficient. The motion is GRANTED as to Items Nos. 2-3 in Defendants' Notice of Motion (the prayers for rescission and attorneys' fees), as unopposed by Plaintiffs. (See oppositi...

Excerpt: ...otion for judgment on the pleadings, as well as the supplemental briefs filed on July 29 and July 30. Plaintiff's Second Amended Complaint alleges, against the District and Does 2-20, a Fifth Cause of Action for Sexual Battery, Sixth Cause of Action for Sexual Harassment, Seventh Cause of Action for Gender Violence, Eighth Cause of Action for Violation of the Tom Bane Civil Rights Act, and Ninth Cause of Action for Violation of the Ralph Civil Ri...

Excerpt: ...ose the leaks, their intent that Plaintiffs rely on their failure to disclose the leaks, and the materiality of the nondisclosure causing Plaintiffs to suffer damages. If Defendants contend the subject property did not in fact suffer from water leaks, or that they were unaware of that fact, or that Plaintiffs knew of or could reasonably have discovered the water leaks, they can present evidence in support of those contentions at a later stage of ...

Excerpt: ...s sale has been completed, Civil Code § 2923.5 provides relief. (See Stebley v. Litton Loan Servicing LLP (2011) 202 Cal.App.4th 522, 526.) The demurrer to the Second Cause of Action for Violation of Civil Code § 2924(a)(1) is SUSTAINED, WITHOUT LEAVE TO AMEND. Exhibits H and I to the Complaint demonstrate that the Notice of Default was recorded by Entra Default Solutions LLC, the trustee of the subject deed of trust. The demurrer to the Third ...

Excerpt: ...of the arbitration provision, they have submitted no evidence supporting those assertions. Statements in an opposition brief unsupported by any evidence are not a valid basis for denying a motion. Based on the evidence filed in connection with this motion (all of which was submitted by Tesla), the Court determines that Tesla has proved by a preponderance of the evidence the existence of the parties' arbitration agreement. The burden therefore shi...

Excerpt: ... Complaint is currently pled, Plaintiff alleges both that Pettner was acting in the course and scope of his employment for Sutter (see Second Amended Complaint, paragraphs 6 and 28) and that he was not acting in the course and scope of employment (see Second Amended Complaint, paragraphs 17 and 29.) Those directly contradictory allegations make the First Cause of Action (and indeed, the entire Second Amended Complaint) uncertain and ambiguous. In...

Excerpt: ... received notifications from the City of Oakland to repair the premises but failed to do so. (See Complaint paragraphs 38-42.) Those allegations, if true, adequately support these causes of action. The demurrer to the Fifth Cause of Action for Breach of Contract is SUSTAINED, WITH LEAVE TO AMEND to attach Plaintiff's written lease as an exhibit to the Complaint or to allege the term(s) of the lease that Defendants breached. In the absence of such...

Excerpt: ... L-2", this claim fails as a matter of law because the City is not liable for common law negligence. (See Government Code § 815(a).) As to "Count 2 - Willful Failure to Warn" in "Prem. L- 3", this claim fails because Plaintiff does not allege or present any evidence demonstrating that she was using the subject premises for recreational purposes, as required for liability under Civil Code § 846. As to "Count Three - Dangerous Condition of Public...

Excerpt: ...s so "frivolous" as to warrant the imposition of sanctions under Code of Civil Procedure section 128.5. As the Court indicated in its May 31, 2021 order, Plaintiff may potentially have claims against the Banks based on the 2014 settlement of one of his six prior cases against the Banks, but those claims were not alleged in his First Amended Complaint in this case and should be brought, if at all, in the action in which the settlement was reached....

Excerpt: ...ming arguendo that Puls' written lease contains such a provision, Plaintiffs allege that Manley occupied the subject premises beginning in 2014 with the knowledge and consent of the premises' prior owners. (See First Amended Complaint, paragraphs 2 and 38.) If true, those allegations may support a waiver of any alleged requirement of the prior premise owner to approve Manley's tenancy in writing. (See, e.g., Wind Dancer Production Group v. Walt D...

Excerpt: ...s that the confidentiality clause is substantively unconscionable, citing Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1065-1067. However, the reason the Ramos court found the confidentiality clause contained in that arbitration agreement to be substantively unconscionable was that it prevented the plaintiff from gathering evidence to present her case. Here, by contrast, the confidentiality clause in Aerotek's arbitration agreement provide...

Excerpt: ...ion is one arising from a protected activity, i.e., an act in furtherance of a person's right of free speech in connection with a public issue. (See Code of Civil Procedure § 425.16(b)(1).) Second, if such a showing is made, the Court determines whether the opposing party has demonstrated a probability of prevailing on the claim. The opposing party demonstrates this by showing the challenged pleading is legally sufficient and supported by a suff...

Excerpt: ...Oakland ("the City") asserts two causes of action against EBMUD, for nuisance and declaratory relief. Both causes of action are premised on the contention that EBMUD's placement of the metal trench plates on Richmond Boulevard "created a condition which interferes with the customary use, enjoyment, and free passage of the Street, and is a nuisance." (See Complaint, paragraph 10.) But the undisputed facts, as supported by admissible evidence, demo...

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

Excerpt: ... conduct and requiring them to take certain specified actions. This action arises from a dispute over control of the Mohammadia Islamic and Cultural Center ("the Center"), which owns and occupies real property located at 492 C Street, Hayward ("the Center's premises".) Sarwary, Hassanpour, and Basil claim to be officers of the Center and to serve on the Center's Board of Directors. Habib, et al. contend that a new election for the Center's Board ...

Excerpt: ...ohammad Aslam Habib and Mohammad Husain Nusratty have any standing to assert the First, Second, Third, and Fourth Causes of Action. The demurrer to the First Cause of Action for Conversion is SUSTAINED, WITHOUT LEAVE TO AMEND. Plaintiffs fail to allege facts demonstrating Defendants' conversion of funds belonging to the Mohammadia Islamic and Cultural Center ("the Center"). To the contrary, the First Amended Complaint alleges that the funds remai...

Excerpt: .... As Plaintiff was chasing the intruders off his boat, he tore his Achilles tendon. Plaintiff seeks to hold the City liable for his injury under several legal theories. The demurrer to the First Cause of Action for "Vicarious Liability of Public Entity for Negligent Acts or Omissions of its Employees Pursuant to Government Code Section 815.2" is SUSTAINED, WITH LEAVE TO AMEND. To the extent that Plaintiff seeks to hold the City liable for its emp...

Excerpt: ...se responses, the portion of this motion relating to these interrogatories has been MOOTED by the service of supplemental responses. The parties are directed to meet and confer, prior to bringing any further motions addressing this discovery. Insufficient efforts will result in orders requiring additional meet and confer conferences and a Joint Statement. Additionally, although not directly addressed by the parties, it appears the motion as been ...

Excerpt: ...ainst which of the two named Defendants (or both) each cause of action is directed. In addition, where (as here) a pleading "jumble[s] together" distinct theories of liability into the same cause of action, the pleading may be subject to a demurrer for uncertainty. (See The Rutter Group's California Practice Guide: Civil Procedure Before Trial section 8:104.) Plaintiff's Sixth Cause of Action, as currently, pled, appears to combine claims for dis...

Excerpt: ...nsequences" of its conduct and that it willfully and deliberately failed to avoid those consequences, as would be required to obtain an award of punitive damages based on purportedly reckless misconduct. (See, e.g., Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1160.) More specifically, Plaintiffs have not alleged facts demonstrating that it was probable that mandatory training for Uber drivers on state and local rules of the road would reduce or ...

Excerpt: ...o so led to Plaintiff being robbed and shot while making a delivery. However, Plaintiff was robbed and shot while making a delivery for Defendant Royal & Mitchell Logistics LLC dba Royal Greens ("RG"), not 3K. Plaintiff fails to allege why 3K is liable for RG's purported failure to verify its own customers. The alleged representation by an unnamed person working for 3K (presumably Stephen Carson) that "he" had a separate business that needed a dr...

Excerpt: ...eal property located at 936 Bayview Avenue in Oakland. Plaintiff alleges that the pending nonjudicial foreclosure is improper because he repaid the secured loan "years ago" and was told by one or more BNY executives, either in 2016 or in 2019 or both, that he no longer owed any money on the loan secured by the subject real property. (See First Amended Complaint, paragraphs 17, 19, 22, and 32.) This is the seventh action Plaintiff has filed since ...

Excerpt: ... (See Complaint paragraph 9.) Plaintiff alleges that during that time period, he had 62 prescriptions handled by Le. (See Complaint, paragraph 12.) Plaintiff alleges that Defendant made a prescription error on August 15, 2007, which he settled through a small claims case (see Complaint paragraph 7); he does not allege that Defendant has made any prescription errors since that date. Defendant's demurrers to the First Cause of Action for Invasion o...

Excerpt: ... on February 16, 2011. (See SA's Request for Judicial Notice, Exhibit 5.) SA claims that it then acquired the subject property from DBank on May 23, 2014. (See SA's Request for Judicial Notice, Exhibit 6.) SA seeks summary judgment in its favor against the Heredias. Alternatively, SA seeks summary adjudication of its causes of action against the Heredias for quiet title, trespass, ejectment, and unjust enrichment. The Court determines that SA has...

Excerpt: ...long with various other assets of decedent) upon his death. Plaintiffs allege that Srinivas misappropriated the subject real property by recording a grant deed on July 17, 2015 transferring title of the subject real property from decedent to decedent and Srinivas, husband and wife, as community property with a right of survivorship. On July 6, 2020, Plaintiffs recorded a lis pendens as to the subject real property. Srinivas seeks to expunge the l...

Excerpt: ...ding installation of public utilities, and Esau posted bonds with the City to secure construction of those improvements. To date, Esau has not yet installed the required public utilities. Plaintiffs have filed a verified Complaint against the City (not Esau) for Declaratory and Injunctive Relief. The Complaint seeks a declaration that the City is obligated to complete the public utility installations in the Subdivision that Esau was required to d...

Excerpt: ...ation. The Sixth Cause of Action does not arise out of or assert any claim in connection with the Teaspoon Franchise Agreement. Rather, it alleges that Defendant Amy Lai fraudulently induced Plaintiff Tony Zhang to enter various partnership agreements conveying shares of interest in Plaintiff Lake Merced International Inc. ("LMI"). None of those agreements appear to have any arbitration provision. The fact that LMI is a party to the Teaspoon Fran...

Excerpt: ...hat actually occurred. The Court can take judicial notice of statements made by Plaintiff in the prior civil harassment proceedings, but it cannot take judicial notice of the truth of any of those statements. (See, e.g., Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McMort (2001) 91 Cal.App.4th 875, 885-887 and the cases cited therein.) Defendant's motion to strike Plaintiff's Third and Fourth Causes of Action in their entirety is DENI...

Excerpt: ...long with various other assets of decedent) upon his death. Plaintiffs allege that Srinivas misappropriated the subject real property by recording a grant deed on July 17, 2015 transferring title of the subject real property from decedent to decedent and Srinivas, husband and wife, as community property with a right of survivorship. On July 6, 2020, Plaintiffs recorded a lis pendens as to the subject real property. Srinivas seeks to expunge the l...

Excerpt: ... on February 16, 2011. (See SA's Request for Judicial Notice, Exhibit 5.) SA claims that it then acquired the subject property from DBank on May 23, 2014. (See SA's Request for Judicial Notice, Exhibit 6.) SA seeks summary judgment in its favor against the Heredias. Alternatively, SA seeks summary adjudication of its causes of action against the Heredias for quiet title, trespass, ejectment, and unjust enrichment. The Court determines that SA has...

Excerpt: ...eg injuries that he had suffered earlier. Plaintiff's claim against PG, therefore, is essentially one for professional negligence. In a medical malpractice case such as this one, when a defendant moving for summary judgment supports its motion with an expert declaration that its conduct fell within the applicable standard of care, the motion must be granted unless the plaintiff comes forward with conflicting expert evidence. (See, e.g., Hanson v....

Excerpt: ...ceremony held in Plaintiff's backyard with the intent of disrupting it; (3) trespassed on Plaintiff's property and removed ornamental plants; (4) sprayed Plaintiff with a "substance with a foul smell" like urine while Plaintiff was seated in his backyard; and (5) on several other occasion, sprayed Plaintiff and his family with a garden hose while Plaintiff was seated in his backyard. (See Complaint, paragraphs 9-10, 12-16, 19, 21-22, and 24-26.) ...

Excerpt: ...lifornia. In Opposition to the Motion, Plaintiffs' evidence is too speculative to meet their burden to show triable issues of material fact regarding whether Mr. Sexton actually worked with pipe covered with Somastic when Defendant was the sole manufacturer. From 1946 to 1953, Defendant was the sole manufacturer and distributor in 11 western states including California of "Somastic" an anti-corrosive coating for steel pipe, which was made from a ...

Excerpt: ... for the majority of the material, nonparty witnesses in this case, trial in El Dorado County would be vastly more convenient than trial in Alameda County. WSR identifies 19 witnesses whom it intends to call for trial, each of whom has submitted declarations in support of this motion. Of those 19 witnesses, 10 are South Lake Tahoe police officers or officers with the El Dorado County Sheriff's office who were involved in the response to, and inve...

Excerpt: ...onomic relationship that Plaintiff contends he had with Apple Inc. ("Apple"). But the undisputed facts establish that any connection Plaintiff had with Apple was solely a result of his employment as a sales representative for Neopost. Apple's contract was with Neopost, not Plaintiff, and the only economic benefit Plaintiff achieved as a result of the contract between Apple and Neopost consisted of sales commissions paid by Neopost, not Apple. (Se...

Excerpt: ...nd they have advanced to the first trust deed payments to prevent foreclosure. That combined amount is approximately $100,000. The Court determines that an appropriate undertaking is based on (1) the $100,000 figure referenced above, at a legal rate of interest (10%) for a period of six months, with that amount subject to being increased if this case is not resolved within six months, and (2) the $2,700 that Defendants estimate they will incur in...

Excerpt: ...ed Third Amended Complaint", nunc pro tunc, will only serve to further confuse the Court's records for this case. Instead, Plaintiffs will be permitted to file a Fourth Amended Complaint, in substantially the same form as the pleading attached as Exhibit 1 to the declaration of Plaintiff's counsel, but changing the caption from "Corrected Third Amended Complaint" to "Fourth Amended Complaint". The Court determines that this motion, and the declar...

Excerpt: ...ents AHS may have made to the Department of Industrial Relations. Plaintiff's First Amended Complaint, however, continues to allege numerous facts that have little relevance to the causes of action that Plaintiff was given leave to allege, but instead appear to be related to causes of action for which the Court already sustained AHS's prior demurrer without leave to amend for the reasons stated in the Court's January 15, 2021 order. Primary among...

Excerpt: ...November 30, 2020. Although the November 30, 2020 trial date was also vacated, pursuant to the Court's order entered November 16, 2020, no language in the November 16, 2020 order indicated that discovery would remain open, or that the deadlines for any discovery motions were vacated or would be based on any subsequently set trial date. Therefore, the last day on which this motion could be heard, pursuant to Code of Civil Procedure section 2024.03...

Excerpt: ...hibited by another law". Code of Civil Procedure § 340.1(b)(1) became effective January 1, 2020. Plaintiff's claims accrued approximately 40 years ago. The Court determines that Plaintiff's request for treble damages, as against the District, is barred by Government Code § 818, as well as the presumption against retroactive application of new or revised statutes. Government Code § 818 provides that a public entity is not liable for punitive da...

Excerpt: ...21.) Plaintiffs later learned from decedent's former employer on May 25, 2018 that decedent's insurance and retirement benefits had already been disbursed. (See First Amended Complaint, paragraph 40.) In addition, the probate court's order on final distribution in decedent's probate case (Case No. RP17- 850469), which court records indicate was issued on September 26, 2018, contained no provision concerning decedent's insurance or retirement acco...

Excerpt: ...08) 164 Cal.App.4th 748, 759-762.) In addition, although the District argues that it has somehow relied to its detriment on language in a prior version of Government Code § 905(m) enacted in 2009, which exempted from claims filing requirements suits for childhood sexual abuse occurring after 2009 only, the District offers no explanation as to how it relied on that prior version of § 905(m). It is also unclear to the Court how the that premise c...

Excerpt: ...ach other and were "in part, acting within the scope and authority of such relationship". In paragraph 5 of Plaintiff's Second Amended Complaint, he alleged that Defendants "were, in part, acting within the scope and authority of such relationship, and in part, acting outside the scope and authority of such relationship". The purpose of the sham pleading doctrine is to prevent a plaintiff from omitting facts from an amended pleading that made a p...

Excerpt: ...acity. Any harm alleged was suffered by premises owner H. Marshall Properties LLC ("HM") and/or H.A. Marshall Investments Inc. ("HAM"), which operates a business at the premises, not Mr. Marshall (the CEO of HM and HAM) in his individual capacity. As to the Ninth Cause of Action for Intentional Infliction of Emotional Distress, Plaintiffs have not alleged any extreme and outrageous conduct by Defendants intended to cause Mr. Marshall severe emoti...

Excerpt: ...ion ("the inspection report"). The inspection report indicated that various parts of the car were "checked and ok at this time"; other parts "may require future attention"; and "operation of horn, interior lights exterior lamps, turn signals, hazard and brake lamps" was marked "requires immediate attention". (See FP's Separate Statement Facts ("SSF" Nos. 1-2 and 8 and the evidence cited in support.) The inspection report was based on a visual ins...

Excerpt: ...date, in the amount of $40,586. The arguments Defendant raises in this motion are essentially arguments that could have been raised at the outset of this case, in a demurrer. Defendant argues, inter alia, that (1) Plaintiff cannot maintain a claim for breach of contract as a third party beneficiary of the contract between Defendant and Alameda Health Systems, based on the express language of the contract itself; (2) Plaintiff has not alleged a vi...

Excerpt: ...nt a preliminary injunction, the court considers two interrelated factors: the likelihood that the plaintiff will prevail on the merits of his claims, and the relative interim harm to the parties form the issuance or nonissuance of the injunction. (See, e.g., Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449.) The court cannot issue a preliminary injunction unless it is reasonably probable that the plaintiff will prevail on the merits o...

Excerpt: ...ion as to one of the two units in the duplex, and (2) that Defendants cannot maintain residence at both units of the duplex, but instead must choose one or the other. On July 2, 2020, the Court granted Defendants' motion for summary judgment. In its order, the Court determined that (1) Plaintiff had not identified any provision of the lease as to which there was any controversy over the provision's construction or validity, and (2) that Plaintiff...

Excerpt: ... was already overruled. (See, e.g., Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97.) To the extent that the Bennett case conflicts with other cases allowing a party to demurrer to an amended pleading even after an earlier demurrer was overruled (see, e.g., Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 389), the Court elects to follow Bennett, not Pavicich. In particular, the Court already rejected Defendants' argument that this case is bar...

Excerpt: ...ion as to one of the two units in the duplex, and (2) that Defendants cannot maintain residence at both units of the duplex, but instead must choose one or the other. On July 2, 2020, the Court granted Defendants' motion for summary judgment. In its order, the Court determined that (1) Plaintiff had not identified any provision of the lease as to which there was any controversy over the provision's construction or validity, and (2) that Plaintiff...

Excerpt: ... being robbed and shot while making a delivery. However, Plaintiff was robbed and shot while making a delivery for Defendant Royal & Mitchell Logistics LLC dba Royal Greens ("RG"), not 3K. Plaintiff fails to allege why 3K is liable for RG's purported failure to verify RG's own customers. The demurrer to the Second Cause of Action for Negligent Infliction of Emotional Distress is SUSTAINED, WITHOUT LEAVE TO AMEND, as duplicative of the First Cause...

Excerpt: ... action adequately allege facts supporting 414LS's claims. 414LS sues Fields for breach of a Guaranty of Lease ("the Guaranty") in which Fields guaranteed the obligations of lessee Herban Industries LLC ("Herban"). The Guaranty executed by Fields guaranteed "each and every one of the terms, conditions, and covenants" to be performed by Herban under its lease with 414LS. The Guaranty further provided that terms of Herban's lease could be modified ...

Excerpt: ...red his driveway or towed his vehicle; rather, he appears to be alleging that some other individual(s) (not WE) did that. If Plaintiff believes that the person(s) who entered his driveway and towed his vehicle (e.g., Doe 1) were AHR employees acting within the course and scope of their employment, Plaintiff shall clearly allege that. As the Second Amended Complaint is currently pled, it is unclear whether Plaintiff is alleging that the actions of...

Excerpt: ...graph 10) by allowing a male individual, to whom MBB referred as her "son", to annoy Ona's other tenants by behaving in an intimidating and threatening manner. (See Second Amended Cross-Complaint, paragraph 9.) As a result of this alleged behavior, Ona claims to have incurred two types of damages which Ona seeks to recover from MBB. First, Ona seeks to recover the costs of repairing and renovating the apartments of other tenants who vacated the p...

Excerpt: ...Three - Dangerous Condition of Public Property" in Plaintiff's Second Cause of Action for Premises Liability, the City's motion is DENIED. In ruling on a motion for summary judgment, the Court strictly scrutinizes the moving party's evidence and resolves any evidentiary doubts or ambiguities in the opposing party's favor. (See, e.g., Johnson v. American Standard Inc. (2008) 43 Cal.4th 56, 64 and Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th...

Excerpt: ... award of attorneys' fees in this case. The Court rejects Plaintiff's argument in his opposition brief that Plaintiff could recover attorneys' fees against Defendant under the doctrine of the tort of another. The tort of another doctrine permits a plaintiff to recover attorneys' fees incurred where the tort of "another" requires the plaintiff to bring or defend an action against a "third person" to protect his interests. Here, Defendant is both t...

Excerpt: ...nt or admitted liability to Plaintiff. Second, Plaintiff must allege, if possible, that he justifiably relied on Defendant's alleged misrepresentation to his detriment. Plaintiff does not allege that Defendant made any misrepresentation to him; he alleges that she made a misrepresentation about the cause of the accident to her own insurance company. Plaintiff does not allege that he relied on Defendant's purported misrepresentation to her own ins...

Excerpt: ... is directed. The Court observes that the Complaint does not allege that Defendant Hakim Hassanpour engaged in any conduct giving rise to Plaintiffs' claims. The demurrer to the First Cause of Action for Conversion is SUSTAINED, WITH LEAVE TO AMEND to clearly identify the funds converted (including the amount), who converted them, and from whom the funds were converted. As the Complaint is currently pled, it appears that the funds at issue remain...

Excerpt: ...either of the attorney declarations purportedly authenticating those deposition transcripts was made under penalty of perjury. Therefore, neither attorney declaration complied with the requirements of Code of Civil Procedure section 2015.5, and the deposition excerpts were inadmissible. The Court does not find that the failure by Plaintiffs' counsel to prepare declarations that complied with the legal requirements of Code of Civil Procedure secti...

Excerpt: ...iff alleges that the pending nonjudicial foreclosure is improper because he repaid the secured loan "years ago", as was confirmed by a BNY executive in early 2016. (See Complaint, paragraph 31.) This case is the seventh action Plaintiff has filed since 2009 concerning title to the subject real property. The Court determines that Plaintiff's claims in this seventh action are barred by res judicata, based on the resolution of Alameda County Superio...

Excerpt: ... took off the safety sleeve and resumed work, at which point he was injured by a metal strip that scratched his wrist. Defendant's demurrer to Plaintiff's First Cause of Action for "Intentional Bodily Injury" is SUSTAINED, WITHOUT LEAVE TO AMEND. The First Cause of Action does not allege that Defendant engaged in any intentional conduct that caused Plaintiff to suffer a bodily injury. Rather, the First Cause of Action alleges that Plaintiff was i...

Excerpt: ...mposes a heightened duty of care on a common carrier, but only while passengers are in transit "and until they have safety departed the carrier's vehicle." (See McGettigan v. Bay Area Rapid Transit District (1997) 57 Cal.App.4th 1011, 1017.) Here, Plaintiffs allege that Plaintiff Alanah Alesanah was stabbed in the arm by a "disruptive" homeless man after disembarking from a BART train at the Coliseum station. BART is not liable under Civil Code �...

Excerpt: ...cy to Violate and Violation of Business & Professions Code § 17200" is SUSTAINED, WITH LEAVE TO AMEND. First, Plaintiffs must clearly allege facts demonstrating what role EBR al. had in the purported conspiracy. As the Third Cause of Action is currently pled, the only allegedly unlawful actions were committed by Dr. Peter Kiersetead and Dr. Michael Huyhn. (See Second Amended Complaint, paragraphs 52-53 and 56.) Plaintiffs fail to allege how any ...

Excerpt: ...d up the assault, "unless prohibited by another law". Code of Civil Procedure § 340.1(b)(1) became effective January 1, 2020. Plaintiffs' claims accrued in 2013. The Court determines that Plaintiffs' request for treble damages, as against the District, is barred by Government Code § 818, as well as the presumption against retroactive application of new or revised statutes. Government Code § 818 provides that a public entity is not liable for p...

Excerpt: ... of this lawsuit, the City implemented Director of Finance Ruling No. 34, which provided Plaintiff with the relief requested in its complaint. Prior to trial, the parties reached a settlement and filed a Joint Stipulation to Dismiss on April 15, 2020. The Stipulation provided that the Director of Finance Ruling No. 34 rendered this case moot, and Plaintiff would dismiss all causes of action. The Stipulation was silent as to whether Plaintiff inte...

Excerpt: ...based are the six depositions indicated on page 4 of Plaintiff's opening brief, all taken between August 11 and September 22, 2020. Four of those depositions were taken prior to Plaintiff's filing of his motion for leave to amend (on September 16, 2020), and all were completed prior to the hearing of the prior motion on October 8, 2020. Plaintiff fails to provide a satisfactory explanation for why the purported new evidence could not have been pr...

Excerpt: ...he "multiple tenants" who allegedly vacated the premises in response to threats and intimidation by MBB's "son". (See , e.g., Lewis Jorge Construction Management Inc. v. Pomona Unified School Dist. (2004) 34 Cal.4th 960, 975.) The demurrer to the Second Cause of Action for "Violation of Statutory Duty Under Civil Code section 1941.2" is SUSTAINED, WITHOUT LEAVE TO AMEND. Civil Code section 1941.2 provides that if a tenant fails to keep her leased...

Excerpt: ...tiff must allege facts demonstrating defendant's intentional acts that interfered with the plaintiff's contractual relationship, and that the defendant's acts were independently wrongful by some measure beyond the interference itself. (See Nelson v. Tucker Ellis LLP (2020) 48 Cal.App.5th 827, 839-842.) An act is independently wrongful if it is proscribed by some constitutional, regulatory, common law, or other determinable legal standard. (Id. at...

Excerpt: ...ched as Exhibit B to Elkins' Request for Judicial Notice. MyoScience has alleged two causes of action against Elkins, for (1) Disgorgement and (2) Declaratory Relief. MyoScience alleges that Elkins, who was a director of MyoScience between 2008 and 2013 (see Cross-Complaint, paragraph 8) breached a fiduciary duty owed to MyoScience by entering an Incentive Compensation Agreement ("the Agreement") with MyoScience's then CEO Clint Carnell on Januar...

Excerpt: ...es of action against the City for premises liability and general negligence. In this motion, the City argues it is not liable for Plaintiff's claim for dangerous condition of public property but does not address Plaintiff's claim for general negligence. The City first argues that Plaintiff's claim against the City is barred because it was not fairly reflected in her claim presented to the City on May 28, 2019. In her claim, Plaintiff indicated th...

Excerpt: ...e Third Amended Complaint filed October 14, 2020, alleges a single cause of action against the District and Lam, the Second Cause of Action for "Negligence of District Employees" pursuant to Government Code § 815.2 and § 820. The Court observes that Lam has not presented any arguments as to why he should not be personally liable for Howey's actions. Rather, the District and Lam make identical arguments as to why neither should be liable for How...

Excerpt: ...etaliating against an employee for, inter alia, disclosing information to a law enforcement agency or to a person with authority over the employee or authority to investigate the violation or noncompliance "if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation". Here, it is highly questionable whe...

Excerpt: ...hat a motion seeking sanctions under that statute be served at least 21 days before it is filed. Here, the proof of service for this motion indicates that it was served on October 6, 2020, and the motion was filed one day later, on October 7. In any event, the Court rejects Plaintiffs' argument that the District misstated the legal standards governing this case. School districts have a duty to protect students from foreseeable dangers, including ...

Excerpt: ...pping Association, et al. The First Amended Petition asserts two causes of action, for (1) Lack of Authority to Certify, and (2) Unconstitutional Special Statute. Petitioners' First Cause of Action for Lack of Authority to Certify alleges that the Governor was required to certify the Howard Terminal Project under AB 734 and the AB 900 Guidelines, and that to be valid the Governor's certification had to be made by December 31, 2019. AB 900 provide...