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