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: ...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...