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...