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: ...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...