Excerpt: ...outhern Sierra Council Boy Scouts of America (2004) 117 Cal.App.4th 743, 746-748 and the cases cited therein.) In particular, the right to fair procedure applies where the private entity has substantial power that significantly impairs the affected individuals' ability to work in a particular field or profession. (Id.) The plaintiff need not establish that the private entity has monopolistic control over, or the right to completely terminate, the...

Excerpt: ...omplaint, paragraphs 13-30, and Exhibit A thereto.) The agreement provided that RG was to be paid a management fee, quarterly in advance, in an amount equal to 3% of the value of Defendant's account with RG "as of the last day of the previous calendar quarter". (See Third Amended Complaint, paragraph 31.) The management fee was "payable upon presentation of the Fee Statement". (See Agreement, Exhibit B, paragraph 1.) Plaintiffs later orally agree...

Excerpt: ...or Breach of Fiduciary Duty is SUSTAINED, WITH LEAVE TO AMEND to clearly allege facts demonstrating when and how Plaintiffs discovered the facts giving rise to this claim, so as to toll the statute of limitations based on delayed discovery. Plaintiffs' claim appears to be based on a grant deed forged on July 17, 2015 and on false promises made by Srinivas on October 23, 2016 (see Complaint paragraphs 14-17 and 24), and this action was not filed u...

Excerpt: ...4).) The demurrer to the First Cause of Action for Comparative Equitable Indemnity is SUSTAINED, WITHOUT LEAVE TO AMEND. Li seeks comparative equitable indemnity for any liability that may be imposed on Li as a result of the matters alleged in Plaintiff Valerie Meadows' Complaint or Poon's Cross-Complaint. (See Li's Cross- Complaint, paragraph 11.) But Meadows has not sued Li, so it is literally impossible that that any liability will be imposed ...

Excerpt: ...s motion for summary judgment. The Court did not read or consider the two state trial court orders cited in SDG's objection because those orders are not binding on this Court. SDG was the developer and general contractor of a residential subdivision near (but not in) the City of Lafayette. GTS was a trucking service hired by the project's subcontractor for excavation services to deliver gravel and other materials to the construction site. (See SD...

Excerpt: ... First Amended Complaint, paragraphs 8-9.) Plaintiff alleges that the Preliminary Title Report failed to disclose that there was a lien on the subject property, and as a result Plaintiff's attempt to subsequently resell the subject property to an unidentified buyer fell through. (See First Amended Complaint, paragraph 11.) Although Plaintiff was eventually able to resell the subject property to a different buyer, the sale price was less that Plai...

Excerpt: ...ff can establish some ground to revoke or invalidate it. Plaintiff contends the arbitration agreement is invalid on the basis of unconscionability. The Court determines Plaintiff has not demonstrated unconscionability that would support invalidating the arbitration agreement. In order to invalidate the arbitration agreement on the grounds of unconscionability, Plaintiff must demonstrate that the agreement is both procedurally and substantively un...

Excerpt: ...tatement Facts ("SSF"), Issue 1, Nos. 1-3 and the evidence cited in support.) Delgado was injured when RJP employee Wilfredo Serrano-Juarez ("Juarez") dropped a wood plank that fell down an elevator shaft and hit Delgado. (See SSF Issue 2, Nos. 7-8 and the evidence cited in support. Although Plaintiffs purport to dispute SSF Nos. 7-8, they cite no admissible evidence that creates any dispute.) Delgado sues LHC for premises liability and negligenc...

Excerpt: ...waived any habitability claims based on the Stipulation re Dismissal/Judgment entered on March 6, 2019 in Case No. HG19-003601 (attached as Exhibit 1 to Defendants' Request for Judicial Notice.) First, Plaintiff Elijah Wilson was not a party to the Stipulation. Second, in the Stipulation Plaintiff Colette Luckie agreed to "waive claims which are known of and exist at this time as of the signing of this Stipulation." The claims asserted in this la...

Excerpt: ...ntract, they agreed that "any dispute arising out of the performance of this agreement shall be submitted to binding arbitration". All three of Plaintiffs' causes of action asserted in this case (for breach of contract, common counts, and an unspecified fraudulent concealment) arise out of the performance of Plaintiffs' contract with Defendant. The Court rejects Plaintiffs' argument that the petition must be denied for failing to "sufficiently de...

Excerpt: ...Procedures (Civil Code § 1798.81(5)(b) is SUSTAINED, WITHOUT LEAVE TO AMEND. Civil Code § 1798.81.5 does not apply to providers of health care like Sutter. (See Civil Code § 1798.81.5(e).) The demurer to the Fourth Cause of Action for Invasion of Privacy is SUSTAINED, WITH LEAVE TO AMEND to allege, if possible, facts demonstrating "public" disclosure of Plaintiff's private facts. (See, e.g., Moreno v. Hartford Sentinel Inc. (2009) 172 Cal.App....

Excerpt: ..., 141, 142, 145 and 146", those paragraphs are not subject to a demurrer. A demurrer cannot be granted as to a portion of a cause of action. (See Daniels v. Select Portfolio Servicing Inc. (2016) 246 Cal.App.4th 1150, 1167.) Those paragraphs could have been, but were not, addressed in PMG's motion to strike. (Id.) PMG's demurrer to the Eighth Cause of Action for Negligent Infliction of Emotional Distress is SUSTAINED, WITHOUT LEAVE TO AMEND, as e...

Excerpt: ...erse employment action such as termination; and 3) that his disclosure was a contributing factor in the decision to discharge him. (See CACI No. 4601.) Plaintiff's evidence, if credited, reflects that he engaged in several communications that qualify as protected disclosures, including in August or September 2015 (see Plaintiff's deposition, pages 41-48 and 60-61); in June 2016 (see Defendant's Separate Statement Fact ("SSF") No. 35); and in July...

Excerpt: ...t ("FACC") of Nhan Van Pham ("Nhan") and Hai Thanh Pham aka Ricky Hai Pham ("Ricky"). The Court declines to separately rule on each of the 25 issues set forth in GM's Notice of Motion but will instead address each cause of action addressed in GM's motion. As to GM's First Cause of Action for Quiet Title in the SAC, GM's motion is DENIED. The undisputed facts establish that, as of November 2017, GM was the owner of the real property that is the su...

Excerpt: ...lation allowing Nhan and Le to file the SACC, but they did not subsequently do so. Nhan and Le are directed to file their SACC with the Court no later than October 8, 2020. Christina seeks summary adjudication as to (1) certain causes of action alleged in her First Amended Complaint ("FAC"), and (2) each cause of action alleged in the SACC. Rather than ruling separately on each of the 15 issues set forth in Christina's Notice of Motion, the Court...

Excerpt: ... filed late. If the City failed to file a timely response to Plaintiffs' Petition, Plaintiff's remedy was to seek entry of the City's default. It is too late to do that now. In addition, failure to meet and confer prior to filing a demurer is NOT a basis to overrule it. (See Code of Civil Procedure § 430.41(a)(4).) Plaintiff Glen Stevick owns real property located at 1722Walnut Street in Berkeley. In 2017, Plaintiff replaced an accessory structu...

Excerpt: ...he Court itself dismissed this action, with prejudice, on March 8, 2019. This issue therefore appears to be moot. Second, Defendant contends that Plaintiff has failed to release the lien on her property. The evidence submitted by Plaintiff demonstrates that the lien was released on December 2, 2019. Third, Defendant contends that Plaintiff has failed to properly account for and apply Defendant's settlement payments. The Court could not find any e...

Excerpt: ...r Premises Liability. Second, Plaintiffs must allege facts, if possible, taking their claims outside the immunity provided by Government Code section 845. As presently pled, Plaintiffs' claim is based entirely on BART's failure to provide police protection in response to a report Plaintiffs made on BART's "watch App" about a "violent, disruptive homeless person" on the BART train on which Plaintiffs were riding. Absent any additional facts pled, ...

Excerpt: ...cated at 328 Lenox Avenue, Oakland. Beacon produced responsive documents, but they were redacted. Beacon indicated that the documents were redacted to remove private financial information and information not related to the subject real property. In his declaration filed August 6, 2020, at paragraphs 6a - 6tt, defense counsel James Patrick explains the basis for each redaction as to each document produced by Beacon, identified by bates number. Bas...

Excerpt: ...t property was suitable for renovation but failed to determine that the living space above the garage was not legally permitted, which materially affected the condition of the real property. (See Complaint, paragraphs 66-68 and 71-74.) Plaintiff's Complaint alleges four causes of action against Excel, for breach of fiduciary duty; vicarious liability; negligent hiring, retention, and supervision; and negligence. Although those causes of action ap...

Excerpt: ...cated at 328 Lenox Avenue, Oakland. Beacon produced responsive documents, but they were redacted. Beacon indicated that the documents were redacted to remove private financial information and information not related to the subject real property. In his declaration filed August 6, 2020, at paragraphs 6a - 6tt, defense counsel James Patrick explains the basis for each redaction as to each document produced by Beacon, identified by bates number. Bas...

Excerpt: ...nded Complaint, paragraphs 30 and 32), but they did not file this action until more than eight years later, on November 13, 2019. In order to toll the statute of limitations based on delayed discovery, Plaintiffs would have to specifically plead facts demonstrating the time and manner of discovery of Defendant's alleged fraud and their inability to have made that discovery earlier despite reasonable diligence. (See Fox v. Ethicon Endo-Surgery Inc...

Excerpt: ...n with a public issue. (See Code of Civil Procedure § 425.16(b)(1).) Second, if such a showing is made, the Court determines whether Plaintiff has demonstrated a probability of prevailing on the claim. Plaintiff demonstrates this by showing the Complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by Plaintiff is credited. (Vogel v. Felice (2005) 127 C...

Excerpt: ...with a public issue. (See Code of Civil Procedure § 425.16(b)(1).) Second, if such a showing is made, the Court determines whether Plaintiff has demonstrated a probability of prevailing on the claim. Plaintiff demonstrates this by showing the Complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by Plaintiff is credited. (Vogel v. Felice (2005) 127 Cal...

Excerpt: ...ases this argument on section 2 of the Stipulation, which provides "In the event the Scheer Law Group does not send the funds and instead interpleads the funds, this agreement will be null and void." Beoris contends that the funds were indeed interpleaded with the Court, citing page 2 of a "Judgment and Order Following Hearing on Petition to Distribute Surplus Funds" entered March 16, 2018 in consolidated Case No. HG17-881430 (hereinafter, "the J...

Excerpt: ...is apartment, which he did that same day. (See Third Amended Complaint, paragraphs 10-11.) Plaintiff's Third Cause of Action alleges a violation of Oakland Municipal Code § 8.22.360(A). That section provides that a landlord may not recover possession of a rental unit in Oakland unless the landlord is able to establish one of a number of specified conditions. One such condition, and the one that is relevant here, is if the landlord seeks to make ...

Excerpt: ...ncluding claims for discrimination and harassment. The causes of action that Plaintiff asserts in this action (for discrimination and harassment based on race and for intentional and negligent infliction of emotional distress) all relate to his employment and are subject to the agreement. To the extent that Plaintiff opposes this motion pursuant to Code of Civil Procedure § 1281.2(c) because he has also asserted claims against Defendants CEVA Lo...

Excerpt: ... inter alia, his employment, client assignments, and/or termination, including claims for discrimination and harassment. The causes of action Plaintiff asserts in this action (for discrimination and harassment based on race and for intentional and negligent infliction of emotional distress) all relate to his employment and are subject to the agreement. CEVA and Tesla are not signatories to Plaintiff's arbitration agreement with Randstad. However,...

Excerpt: ...s not relevant to this case.) As the first step of that process, the employee must attempt to resolve any dispute on an informal basis through Fidelity's "management channels". If that effort fails, any disputes must be submitted for non-binding mediation conducted and administered by the American Arbitration Association ("AAA") under its Employment Mediation Rules. If the dispute is not resolved by mediation, either party may submit the demand f...

Excerpt: ...int, paragraphs 8-9.) Plaintiff alleges that the Preliminary Title Report failed to disclose that there was a lien on the subject property, and as a result Plaintiff's attempt to subsequently resell the subject property to an unidentified buyer fell through. (See First Amended Complaint, paragraph 11.) Although Plaintiff was eventually able to resell the subject property to a different buyer, the sale price was less that Plaintiff would have obta...

Excerpt: ...er abuse (by either neglect or abandonment), or that any of these individuals engaged in any conduct that caused decedent Eugenie VanMiller's death. The demurrer by SLHC to the First Cause of Action for Elder Abuse is SUSTAINED, WITHOUT LEAVE TO AMEND. An elder abuse claim is a statutory cause of action and it must be pled with particularity. (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) Plaintiff has attem...

Excerpt: ... 22, 2015. (See Second Amended Complaint, paragraphs 24-25 and 44.) RG alleges that it was to be paid a 2% transaction fee for those services. (See Second Amended Complaint, paragraph 27.) RG has been unable to locate the investment advisor agreement that it allegedly entered with Defendant, and it has attached as Exhibit A to its Second Amended Complaint "the form of agreement" that it purportedly entered with Defendant. (See Second Amended Comp...

Excerpt: ...ong Kun Choe ("Choe") for damages suffered as a result of a fire starting on the roof of the church building in which Plaintiffs lived. In one of the four consolidated cases, RG19-036589, Choe sued Tae Son Lee ("Lee"), the CEO and President of BRS and WRC, for equitable indemnity, defamation, fraud, and intentional infliction of emotional distress. In his First Cause of Action for Equitable Indemnity, Choe alleges that he had no role in performin...

Excerpt: ...rrently occupy the premises. (See, generally, Defendants' Separate Statement Facts Nos. 1-8 and the evidence cited in support. Although Plaintiff purports to dispute some of those facts, she cites no evidence supporting any actual dispute.) Plaintiff contends that she wants to move her father into one of the two units in the duplex, and continue renting the other unit. Her Complaint alleges a single cause of action, for declaratory relief. In her...

Excerpt: ...n that Plaintiff had filed on July 21, 2016. The statute of limitations on a plaintiff's claims begins to run when the plaintiff learns, or should have learned, facts essential to her claim. (See Fox v. Ethicon Endo-Surgery Inc. (2005) 35 Cal.4th 797, 807.) Whether the plaintiff has exercised reasonable diligence in discovering her claims against the defendant is a question for the trier of fact. (See Leaf v. City of San Mateo (1980) 104 Cal.App....

Excerpt: ...pplication on October 22, 2019. (See Second Amended Complaint, paragraphs 24-25.) The documents attached as Exhibit G to the Second Amended Complaint could be interpreted as supporting Plaintiff's allegations, because they include a fax over sheet dated October 16, 2019, and another fax cover sheet dated October 22, 2019 that indicates "I am resending". What documents Plaintiff submitted to Bayview, when she sent them, and whether the documents t...

Excerpt: ...m of $128,217.77 that Plaintiff contends rightfully belongs to himself, and not to Commonwealth, and (2) for declaration of the rights and duties of the parties regarding that sum. If successful, therefore, this action would result in the payment to Plaintiff of that sum from the unidentified escrow firm that was holding that sum at the time this action was filed. Defendant argues that this action is barred by failure to comply with the claims pr...

Excerpt: ... for relief. Hyppa has now filed yet another motion again seeking judgment on the pleadings as to the fourth prayer for relief, i.e., seeking a declaration that Beoris never assumed the liabilities of Anthony Caravalho or the NTFVA LLC concerning Hyppa's retainer agreement. First, the Court determines that this motion for judgment on the pleadings is an improper motion for reconsideration of the Court's prior March 12, 2020 order, unsupported by ...

Excerpt: ... controlled the manner and means of his work such that Defendants can be liable as his employer or joint employer. Third Amended Complaint paragraphs 14 and 52 are overly conclusory and insufficient. The Demurrer to the Sixth Cause of Action for Intentional Infliction of Emotional Distress is OVERRULED. Plaintiff alleges that Defendants arranged for his termination under false pretenses in retaliation for his complaints about their fraudulent Med...

Excerpt: ...e Second Amended Complaint appears to be inconsistent; compare paragraphs 10 and 21.) Plaintiffs allege that they vacated their apartment either because of damage from the fire or because they were told to do so by Defendant Tony Rishell. (Again, the Second Amended Complaint is inconsistent; compare paragraphs 10, 21, and 54, which alleges that the fire rendered Plaintiffs' apartment uninhabitable.) Plaintiffs' Third Cause of Action attempts to a...

Excerpt: ... title on a parcel of real property that Plaintiff purchased from an unidentified third party. Plaintiff alleges that Defendant failed to disclose that there was a lien on the subject property, and as a result Plaintiff's attempt to subsequently resell the subject property to an unidentified buyer fell through. Although Plaintiff was eventually able to resell the subject property to a different buyer, the sale price was less that Plaintiff would ...

Excerpt: ...es Barbeque when Plaintiff filed this case, based on their filings with the California Secretary of State which Plaintiff could have discovered had she conducted an inquiry, and (2) they will suffer "specific prejudice" if the Doe Amendment is not quashed, based on the former trial date of May 11, 2020 which has now been vacated. As to Jernegans' first argument, a Doe Amendment is proper if the plaintiff is actually ignorant of the Doe defendant'...

Excerpt: ...tion as to this same claim unless AHS can establish newly discovered facts or circumstances or a change in law supporting its argument. (See Code of Civil Procedure § 437c(f)(2).) AHS fails to do so. AHS's only proffered evidence that Plaintiff is not paid less than his similarly situated coworkers of a different race is the declarations of AHS employees Lisa Marie May and Carlos Martinez. (See AHS's Separate Statement of Facts ("SSF") Nos. 4-7....

Excerpt: ...AHS's HR "Business Partner" Joan Davis admonished JA that he needed to act professionally, and no further such incidents occurred. (See JA's Separate Statement of Facts ("SSF") Nos. 1-9 and the evidence cited in support.) In order to prevail on a claim for sexual harassment, Plaintiff must demonstrate that he was subjected to unwelcome sexual advances, conduct, or comments that were made or committed "because of sex" and sufficiently severe and p...

Excerpt: ...426.50.) The burden is on the party opposing the motion to demonstrate that the party seeking leave to file the compulsory cross-complaint has acted in bad faith; late filing of the motion is an insufficient basis on which to deny the motion. (See Silver Orgs. Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-101.) Here, Liberty has demonstrated some "other cause" for failure to file its proposed cross-complaint against Plaintiff Boscacci Inc. dba Amp E...

Excerpt: ... Instead, Plaintiff alleges that the Gabapentin merely masked the pain and did not treat his injuries. Only after reducing his Gabapentin intake in November 2017, and subsequently being assessed by a neurologist on March 30, 2018 did Plaintiff realize the extent and cause of his injuries. Plaintiff then filed this action on September 5, 2018. Although Plaintiff has labeled his claim against Piedmont Gardens as one for "fraud", his claim is based ...

Excerpt: ... is now moot. Defense counsel appeared at the October 3, 2019 hearing on the motion to compel, and expressly stated that he was not contesting the tentative ruling on that discovery motion. According to his declaration, defense counsel was aware of the hearing on no later than September 30, 2019, but he had failed to timely check the Court's tentative ruling (which was issued on October 2, 2019); this conduct does not constitute excusable neglect...

Excerpt: ... that Defendant RGIS LLC was precluded from prosecuting legal actions in federal courts and in other states) was beyond the jurisdiction of this Court to grant; and (3) Plaintiff WIS International Inc. did not show that it lost money or property as a result of Defendant's actions so as to provide standing to assert a claim under Business & Professions Code § 17200 et seq. At the first hearing of this motion on February 27, Plaintiffs' counsel in...

Excerpt: ... opposing counsel and email the Court at [email protected] no later than 48 hours prior to the hearing date informing the Court if they will contest the Court's tentative ruling and providing their email addresses. The subject line of the email must list the case name and number and the department number where the matter is set. Hearings on matters that are properly contested will take place via a medium the court will identify. Th...

Excerpt: ...s of Action are based on a garage that Defendants allegedly maintain over a portion of the parties' shared easement, which Plaintiffs allege impedes their use of the easement. Those facts, if true, support Plaintiffs' Second, Third, Fourth, and Seventh Causes of Action. There are no facts pled in the First Amended Complaint, and no facts appearing in the documents for which Defendants request judicial notice, establishing that Defendant Kumiko Uy...

Excerpt: ...ion 685.070(b). Second, none of the costs claimed in the cost memorandum are the types of recoverable costs specified in Code of Civil Procedure section 685.070(a). The Court observes that the $199.50 amount of costs sought in the cost memorandum was dwarfed by the amount of fees both counsel presumably incurred arguing over the validity of the $199.50 cost request. Parties must notify opposing counsel and email the Court at [email protected]...

Excerpt: ...ms, of his injuries. Therefore, Plaintiff's claim against Piedmont Gardens is subject to Code of Civil Procedure § 425.13. (See Davis v. Superior Court (1994) 27 Cal.App.4th 623, 629.) Plaintiff's failure to comply with § 425.13 bars his claim for punitive damages. The Court observes that it already struck Plaintiff's claim for punitive damages from his Second Amended Complaint, without leave to amend, on November 18, 2019. Paragraph 14(a)(2) o...

Excerpt: ...rneys' fees only where the action confers a significant benefit on the general public or a large class of persons. Here, Plaintiff is suing to recover monetary damages for injuries she suffered when her foot slipped between the BART platform and a train. If successful, this action would benefit Plaintiff only; it would not confer any benefit on the general public or a large class of persons. Plaintiff's request for sanctions for opposing this mot...

Excerpt: ...led to pay Plaintiff 3% of the net proceeds of the purchase, as required by section 3 of the Agreement. Preliminarily, the Court rejects Defendant's argument that Plaintiff's claim in this case is governed by Delaware law. The Agreement itself provides (at section 5(h)) that it is governed by the laws of the State of California. California law reflects a strong public policy of favoring enforcement of freely negotiated choice of law clauses. (See...

Excerpt: ...because members of the LLC do not have any interest in the LLC's property; (3) for a declaration that Hyppa never provided any legal services to Beoris; and (4) for a declaration that Beoris never assumed the liabilities of Anthony Caravalho or the NTFVA LLC concerning Hyppa's retainer agreement. (Some, but not all, of the terms contained in the Prayer are defined in the body of the First Amended Complaint.) Hyppa's motion is GRANTED as to Beoris...

Excerpt: ... subject real property as being located at 435 Creighton Way in Oakland. The Court therefore assumes that the reference to the property located at 135 Lichen Court in Fremont in First Amended Complaint paragraph 1 is a typographical error. Ocwen's demurrer to the First Cause of Action for Violation of Civil Code § 2924.11 is SUSTAINED, WITHOUT LEAVE TO AMEND. Plaintiffs allege that the Ocwen violated § 2924.11 by conducting a trustee's sale on ...

Excerpt: ...o pay Plaintiffs for services performed; and (3) identify the dates on which Plaintiffs performed services for Defendant for which they were not paid. In the absence of such information, the Court cannot determine whether this cause of action is timebarred, and more specifically whether the contracts were allegedly breached prior to Plaintiffs' submission of their June 11, 2019 invoice. In addition, only by reviewing those contracts can the Court...

Excerpt: ...nte $12,500, and Kante would have the right to an additional $14,209.41 through an assignment and lien on Ali's share of any proceeds recovered by Ali "from any and all claims against Mid-Century Insurance, State Farm Insurance, Kevin Dawson or any other entity or person concerning [Ali's] claims concerning or relating to" Ali's house located at 7757 Hanson Drive, Oakland. Kante subsequently filed two motions to enforce the settlement agreement i...

Excerpt: ... Defendants argue that the default judgment against them is void because, at the time Plaintiffs filed their application for default judgment on March 14, 2019, Defendants former counsel Mark Gallagher had already been suspended from the practice of law on January 18, 2019. This argument is misplaced, because by the time Mr. Gallagher had been suspended from the practice of law, the defaults of WWJ and AWB had already been entered (on December 14...

Excerpt: ...e and scope. The Court finds these objections to be valid. Though the scope of discovery is broad, ICT has not sufficiently demonstrated how this Interrogatory seeks information that may lead to the discovery of admissible evidence. The reasons for compelling a further response, set forth in the separate statement, do not include facts showing the potential relevance of each and every one of Plaintiff's customers over a fifteen year period of tim...

Excerpt: ...ants", plural, did. Plaintiffs' failure to allege what each of the moving Defendants did or differentiate between them makes her claims against each of them uncertain. Second, as to Plaintiff's First Cause of Action for Elder Abuse, Plaintiff must clearly allege facts demonstrating that the moving Defendants had the responsibility for for meeting the basic needs of decedent, and that they denied or withheld goods or services necessary to meet the...

Excerpt: ... September 6, 2016, and that during that transportation he was not certain whether the pain he was experiencing was caused by Falck's manner of transportation or by his injuries from his prior car accident. But this is not a "new" fact, because Plaintiff has been aware of his automobile accident since August 24, 2016. Plaintiff could have - but did not - clarify his understanding of the injuries he suffered, and when learned of them, in his origi...

Excerpt: ...nnot be completed while the unit is occupied, if the landlord has obtained all necessary permits prior to giving the tenants notice to vacate and thereafter makes the repairs without unnecessary delay. Plaintiffs fail to allege facts implicating § 8.22.260(a)(10). They did not vacate their apartment as a result of a notice to vacate after Defendants had obtained permits to make repairs. Rather, they vacated their apartment as a result of a fire....

Excerpt: ...er, the "complete loan modification" attached as Exhibit G to the First Amended Complaint contains documents dated October 22, 2019, only two days prior to the trustee's sale. (See, e.g., page 7 of Exhibit G.) Civil Code § 2923.6 does not preclude a trustee's sale unless the complete application is submitted at least five business days prior to the scheduled trustee's sale. (See § 2923.6(c).) Plaintiff is given leave to amend to explain the dis...

Excerpt: ...the mandatory provision of Code of Civil Procedure section 473(b) based on her attorneys' affidavit of fault. That provision of section 473(b) applies only to defaults, default judgments, and dismissals (i.e., "the withdrawal of an application for judicial relief by the party seeking such relief, or the removal of the application by the court.") (See Las Vegas Land & Development Co. LLC v. Wilkie Way LLC (2013) 219 Cal.App.4th 1086, 1091.) Here, ...

Excerpt: ...njamin Fang) is largely inadmissible. Mr. Fang demonstrates no personal knowledge of Plaintiff's transaction with Tesla and cannot competently testify that Plaintiff signed (electronically or otherwise) the arbitration agreement attached to Plaintiff's First Amended Complaint. Instead, Mr. Fang testifies about what Plaintiff "would have been asked to sign", and concludes that because what is purportedly Plaintiff's signature appears in some blank...

Excerpt: ....5th 198, 209-210.) Plaintiff Performance Max Inc. ("PMI") fails to do so here. Personal jurisdiction may be either general or specific. (See ViaView, supra, 1 Cal.App.5th at 209.) A nonresident is subject to general jurisdiction in the forum if its contacts in the forum are substantial, continuous, and systemic. (Id.) The Amended Declaration of Tae Yoo submitted with PIQ's initial reply papers demonstrates that PIQ does not have substantial, con...

Excerpt: ... located on University Avenue in Berkeley, and that those business were disrupted by construction work that Brown did on a building adjacent to Plaintiff's business, causing economic losses. Plaintiff's First Amended Complaint, the operative pleading in this case, alleges three causes of action against Brown, for Negligent Interference with Prospective Economic Relations, Nuisance, and Exemplary Damages. The Court will accept, for the purposes of...

Excerpt: ...EAVE TO AMEND. Plaintiff alleges that while she was at a Kaiser facility for a medical appointment, she was sexually assaulted by Defendant Efrain Castanon, a medical assistant. Based on the allegations in the First Amended Complaint, TPMG is not vicariously liable for its employee Castanon's sexual battery as a matter of law because his actions were beyond the scope of his employment. (See, e.g., Lisa M. v. Henry Mayo Newhall Memorial Hospital (...

Excerpt: ... Son Lee, et al. (RG19-036589) for all purposes. These four cases clearly involve common questions of law and fact. Indeed, the central issue in the third case mentioned above (Choe v. Lee), like the other three cases, is who (if anyone) is to blame for damages caused by the fire at the church. Choe's contention that he did not work on the church roof at the time of the fire is directly related to the claims that will be tried in the other three ...

Excerpt: ...1285.2(a)(4), in two ways. First, BAD argues that the arbitrators exceeded their power by awarding RGW for costs to complete "balance of 24 inch CIDH Piles", because (1) RGW had been the subcontractor listed to perform that work on Bid Item 111 and (2) Caltrans had determined on August 25, 2017 that RGW violated Public Contracts Code sections 4100 et seq. by substituting another contractor to do that work without Caltrans approval. Although Caltr...

Excerpt: ... any defendant, cross- complainant, intervenor, or cross-defendant has asserted any claims against the Owner Defendants, so that aspect of the motion is moot. In addition, the register of actions for this case does not reflect that Plaintiff filed any response whatsoever to the 42 facts in the Owner Defendants' Separate Statement. Instead, Plaintiff's opposition Separate Statement contains 25 completely new facts. Plaintiff's failure to respond t...

Excerpt: ...App.4th 763, 772.) Plaintiff's arguments about whether the agreement complied with the requirements of the Rees-Levering Automobile Sales Finance Act (Civil Code § 2981 et seq.), and whether the arbitration provision is enforceable under the Federal Magnusson Moss Warranty Act (15 USC § 2301 et seq.) appear to be misplaced, because Plaintiff has not alleged any claims under either of those statutory schemes. Rather, the only claims Plaintiff ha...

Excerpt: ...aragraph 6, that Ali would pay Kante $12,500, and Kante would have the right to an additional $14,209.41 through an assignment and lien on Ali's share of any proceeds recovered by Ali "from any and all claims against Mid-Century Insurance, State Farm Insurance, Kevin Dawson or any other entity or person concerning [Ali's] claims concerning or relating to" Ali's house located at 7757 Hanson Drive, Oakland. Kante subsequently filed two motions to e...

Excerpt: ...nstrate any delay in prosecution by Plaintiffs. Assuming arguendo that the Court has the "inherent authority" to dismiss a case for other reasons, in the absence of a motion based on established statutory procedures such as, e.g., a motion for summary judgment or demurrer, the Court declines to exercise that inherent authority in this case. Even if the Court were inclined to exercise its inherent authority to consider dismissing this case in the ...

Excerpt: ...ersonal representative of the Estate of Eugenie VanMiller, or both. If Plaintiff is asserting her negligence claim as a survival claim on behalf of the Estate of Eugenie VanMiller, Plaintiff must comply with Code of Civil Procedure section 377.32. Likewise, if she is asserting her elder abuse claims on behalf of the Estate of Eugenie VanMiller pursuant to Welfare & Institutions Code section 15657.2(d)(1), she must expressly allege that she is the...

Excerpt: ...2010) 48 Cal.4th 788, 797.) Defendant's Request for Judicial Notice demonstrates that Plaintiffs have filed three prior actions alleging some impropriety with nonjudicial foreclosure proceedings against the real property that is the subject of this action, and that those actions have all been decided adversely to Plaintiffs. (See Defendants' Request for Judicial Notice Exhibits 2, 4, 6, 10, and 20.) The Court observes, however, that Defendants di...

Excerpt: ...ce IQ LLC, "PIQ") to Quash Service of Summons and Complaint for Lack of Personal Jurisdiction is GRANTED. On a challenge to personal jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the evidence, a factual basis justifying the exercise of jurisdiction. (See ViaView Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 209-210.) Plaintiff Performance Max Inc. ("PMI") fails to do so here. Personal jurisdiction ...

Excerpt: ...gment on the ground that the area where Plaintiff tripped constituted a trivial defect as a matter of law. The Court determines that Defendants have not carried their initial burden under Code of Civil Procedure section 437c(p)(2) of demonstrating that the defect that allegedly caused Plaintiff?s accident was trivial as a matter of law. It is well established that a walkway height differential of .75 inches or less, in the absence of any circumst...

Excerpt: ...ion for Intentional Infliction of Emotional Distress. Plaintiff alleges facts supporting this claim that, if true, demonstrate that BMC engaged in extreme and outrageous conduct. That conduct includes, inter alia, billing Plaintiff for services never authorized by her or performed by BMC, attempting to seize Plaintiff's boat via a mechanic's lien for services never authorized or performed, and damaging the boat in an amount exceeding $35,000 whil...

Excerpt: ... Act, Penal Code sections 11225 et seq. (See Plaintiffs' Separate Statement Facts ("SSF") Nos. 25-78.) However, the Court cannot grant summary adjudication as to liability only, where issues pertaining the calculation of damages or the other relief or remedies as to which Plaintiffs may be entitled remain to be determined. (See, e.g., Department of Industrial Relations v. UI Video Stores Inc. (1997) 55 Cal.App.4th 1084, 1097.) In Plaintiffs' Seco...

Excerpt: ...ct with Johnson or performing work under that contract. Johnson contends that, although failure to comply with § 413 does not make the parties' contract "illegal" it does make the contract unenforceable. Johnson cites no language in § 413, and no published case, that supports her position, although she does cite a 19 year old case filed in San Diego Superior Court in which a judge reached that conclusion. In the absence of any directly applicab...

Excerpt: ...agree that you will resolve all matters in dispute between you and TWG by binding arbitration, under the JAMS Employment Rules, then in effect, which are available at www.jamsadr.com or from Human Resources upon request." The claims that Plaintiff agreed to arbitrate included, but were not limited to, "violations of federal, state or local laws." Plaintiff's claims against Defendant in this action are matters in dispute between them, arising dire...

Excerpt: ... the ongoing Cal-OSHA investigation into decedent's accident, and the stated intent of various percipient witnesses (including Donaciano Caswell, guardian ad litem for minor Plaintiffs Santiago Torres-Alvarez and Sebastian Torres-Alvarez) to assert the Fifth Amendment right against self-incrimination and refuse to testify about the accident. The interests of justice also require staying this action because Doanciano Caswell, the guardian ad litem...

Excerpt: ... the state court located in Oakland County, Michigan or the U.S. District Court for the Eastern District, Southern Division of Michigan. RGIS seeks to either dismiss this action or stay it pending resolution of this dispute in a court specified in the Agreement's forum selection clause. A forum selection clause is presumed valid and will be enforced unless the plaintiff shows that enforcement of the clause would be unreasonable under the circumst...

Excerpt: ...ing summary adjudication as to Plaintiffs' claim for punitive damages - Triple A's Motion is DENIED. In its Issue Three, Triple A asserts that there is no evidence of malice, fraud, oppression, or despicable conduct by Triple A. The Court determines that Triple A has not met its initial burden under Code of Civil Procedure § 437c(p)(2) of demonstrating that one or more elements of Plaintiffs' claim for punitive damages against Triple A cannot be...

Excerpt: ...ound (the use of which allegedly exposed Plaintiffs' decedent to asbestos supplied by UCC) had 11 other suppliers of asbestos besides USG, and that UCC removed asbestos from its joint compound by 1975. As for Plaintiffs' purportedly devoid discovery responses, the Court determines that Plaintiffs' responses to UCC's Special Interrogatories are not so factually devoid as to demonstrate that Plaintiffs do not have or cannot reasonably obtain eviden...

Excerpt: ...r negligence per se. (See, e.g., Perlin v. Fountain View Management Inc. (2008) 163 Cal.App.4th 657, 662, 664-666.) The construes Plaintiff's failure to address this issue in his opposition brief as conceding the validity of Defendants' argument as to paragraph 53. Paragraphs 63 and Prayer paragraph 8 seek an injunction requiring Defendants to provide additional training and staffing at their facility. But injunctive relief should not be issued i...

Excerpt: ....5th 198, 209-210.) Plaintiff Performance Max Inc. ("PMI") fails to do so here. Personal jurisdiction may be either general or specific. (See ViaView, supra, 1 Cal.App.5th at 209.) A nonresident is subject to general jurisdiction in the forum if its contacts in the forum are substantial, continuous, and systemic. (Id.) The Amended Declaration of Tae Yoo submitted with PIQ's reply papers demonstrates that PIQ does not have substantial, continuous,...

Excerpt: ...edical Board of California website indicating that six doctors who were witnesses to Plaintiff's medical treatment at Sutter have offices located in Santa Rosa in Sonoma County. However, Sutter submits no evidence demonstrating where those doctors live. Absent such evidence, the Court cannot presume that it would be inconvenient for those doctors to testify at trial in this case in Alameda County. Sutter's argument that it cannot contact those do...

Excerpt: ...arate Statement of Facts ("SSF") Nos. 7-8.) Plaintiff's claim against Grubb is premised on Grubb's alleged failure to ensure that appropriate carbon monoxide detectors were properly installed on the subject property. (See SSF No. 16.) As a result of that alleged failure, Plaintiff's decedent, who was a tenant of Kwong, died of carbon monoxide poisoning. (See SSF Nos. 1-4 and 9-14.) The Court determines that as a matter of law under the facts of t...

Excerpt: ...produced to Bautista's counsel until April 1, 2019. However, that document does not change the result of the Court's ruling on Bautista's prior motion for summary judgment, which was denied on November 29, 2018. It is not reasonably disputed that Bautista sold the subject property to Cindy Kwong and Tony Wong (in their capacities as Trustees of the Wong/Kwong Family Trust, collectively "Kwong") on October 23, 2015, over a year before decedent's d...

Excerpt: ..., that (1) he was a member of a protected class, (2) he was qualified for the position he sought or competently performing the position he held; (3) he suffered an adverse employment action, and (3) some circumstance suggesting a discriminatory motive. (See, e.g. Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.) Assuming arguendo that Plaintiff has submitted evidence as to elements (1)-(3) of his claim, supra, he has not submitted admissi...

Excerpt: ... Each of the three causes of action is apparently alleged against each of the three named defendants. Plaintiff's claims against the Hospital apparently arise from some unspecified action occurring on September 6, 2016, when unspecified Defendants (presumably including the Hospital) "discharged, transferred, loaded, secured, transported, monitored, unloaded and assessed" Plaintiff during his transfer from the Hospital to Piedmont Gardens. This va...

Excerpt: ...d Piedmont Gardens SNF. Each of the three causes of action is apparently alleged against each of the three named defendants. However, nowhere in the First Amended Complaint does Plaintiff allege what Falck did, or did not do, that led to Plaintiff suing Falck. The Court infers from the briefs filed in support of and in opposition to this demurrer that Falck operates a medical transportation services company and was involved in transporting Plaint...

Excerpt: .... In addition, Plaintiff's entire argument (Plaintiff not having filed a memorandum of points and authorities in support of her application) appears to be based on the contention that the real property that is the subject of this action was never validly transferred to her, because the grant deed transferring title to her was not signed by the actual property owner. If the subject property was never validly transferred to Plaintiff, she has no st...

Excerpt: ...oyer. This Court has no jurisdiction over Plaintiff's claim asserted in this case. The Workers' Compensation Appeals Board has exclusive jurisdiction over any matter concerning the recovery of workers' compensation benefits. (See Labor Code section 5300(a).) Any challenge to a decision by the Workers' Compensation Appeals Board must be brought before the California Court of Appeal or the California Supreme Court. (See Labor Code section 5955 and ...

Excerpt: ...n particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense."].) Plaintiff argues that if the court permits defendants leave to amend , then the court should permit plaintiff to supplement a claim in the complaint. (Oppo filed 5/30.) CCP 473(a) permits amendments "on terms as may be just." The court is inclined to grant the motion of defendants to file ...