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