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: ...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: ...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: ...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: ...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: ... 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: ...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...