Excerpt: ...ual capacity, has no interest in that contract and thus is not an appropriate defendant on this claim. The motion is DENIED as to the Second Cause of Action for Alter Ego Liability. The County adequately alleges the factual basis for its contention that Wool is the alter ego of CMC. (See Complaint, paragraphs 46-48.) Whether those allegations are true, and whether they are supported by any evidence, is an issue to be determined at a later stage o...

Excerpt: ...t those findings "signified a material weakness," and that omitting them would lead to a material misstatement in Defendant's financial statements and thus would violate the law. (See Complaint, paragraphs 22 and 24-25.) Shortly after submitting the audit report, Plaintiff was notified on September 22, 2016 that his position would be eliminated effective December 31, 2016, and he was in fact officially terminated on January 3, 2017. (See Complain...

Excerpt: ... Civil Procedure section 1008(a).) Safeway argues that the "new or different facts or circumstances" on which this motion is based is that Plaintiff Cheryl Demello ("Plaintiff") introduced "additional new evidence" at the December 20, 2019 hearing on Safeway's motion for summary judgment. This assertion is incorrect. Plaintiff did not introduce any new evidence at the December 20, 2019 hearing, nor did she "present the full length of the video." ...

Excerpt: ...y with Health & Safety Code § 1363.1(b). The Court rejects Plaintiffs' argument and determines that the arbitration notice in the enrollment form signed by Plaintiff Gabriella Ilinestky was "prominently displayed" in compliance with § 1363.1(b). The arbitration notice consists of 191 words of text immediately preceding Ms. Ilinestky's signature, under a boldfaced heading entitled "KAISER FOUNDATION HEALTH PLAN, INC., ARBITRATION AGREEMENT," sep...

Excerpt: ...ings against Kaiser based on the claims asserted in this lawsuit in June 2018, a year before filing the lawsuit. (See the declaration of Peter Sekelick, paragraphs 3-4 and Exhibits J-L thereto.) Plaintiff has therefore waived any objections to having these claims resolved in arbitration. (See, e.g., Kemper v. Schardt (1983) 143 Cal.App.3d 557, 561.) Plaintiff's Kaiser membership agreement requires him to arbitrate any claims arising from or relat...

Excerpt: ...argue that the decision in Brawley v. J.C. Interiors (2008) 161 Cal.App.4th 1126 is inapplicable to the judgment entered in this case on September 17, 2019. However, the Court is currently inclined to deny U Unlimited's request to vacate its order issued on November 30, 2019 granting, in part, the motion by Jeffrey Spahn and Paul Bontekoe (collectively, "Homeowners") to set aside judgment and enter new judgment. The Court determines that the Braw...

Excerpt: ...mployers of driver Jose Bonilla Valladares, who allegedly hit and killed Plaintiffs' decedent as she was crossing the street. The Court declines to overrule the demurrer on the basis that it was purportedly filed one day late. The demurrers to the First Cause of Action for Negligence and the Second Cause of Action for Negligence Per Se are SUSTAINED, WITH LEAVE TO AMEND to allege facts demonstrating (1) how AmeriSourse Bergen (sued as Doe 1) bear...

Excerpt: ...rprise, and/or excusable neglect. Specifically, Plaintiff's evidence shows that neither he nor his counsel had any reason to suspect that Defendant Anna Gee was acting within the course and scope of her employment at the time of Plaintiff's accident until they were informed of this possibility on March 6, 2019. Plaintiff presented his government claim to the County on April 3, 2019 and his application to present a late claim on July 12, 2019, app...

Excerpt: ...t in obtaining a loan from HPF. (See Cross-Complaint, paragraphs 23-27 and 47.) This purported representation was not false, because HPF did in fact extend the loan to Shivers. Likewise, Shivers fail to show how HPF's purported representation that HPF's loan would pay off the Ocwen loan, with any remaining proceeds going to Shivers, was false. (See Cross-Complaint, paragraph 91.) Moreover, Shivers cannot claim that they were not advised of the ob...

Excerpt: ...Intentional Infliction of Emotional Distress; the Fourteenth Cause of Action for Negligent Infliction of Emotional Distress; the Fifteenth Cause of Action for Declaratory Relief; and the Sixteenth Cause of Action for Fraudulent Conveyance. The basis for Piterman's motion is Section 11/5/1 of the Operating Agreement for KD Pebble LLC ("the Agreement"), which provides that any action to resolve any claim arising out of or related to the Agreement s...

Excerpt: ... only, as unopposed. (See opposition brief at page 8:1-6.) The demurrers to the First Cause of Action for Breach of Settlement Agreement, the Second Cause of Action for Violation of Business & Professions Code § 17500, the Third Cause of Action for Violation of Business & Professions Code § 17200, the Fifth Cause of Action for Fraud, the Eighth Cause of Action for Declaratory Relief are all OVERRULED. As to each of these claims, DCG argues that...

Excerpt: ...at customer left the meat department at 12:12 p.m., and Plaintiff slipped in the sugar 22 seconds later. (See Safeway's Separate Statement Facts ("SSF") Nos. 3-6 and the evidence cited in support.) Where, as here, a plaintiff relies on a property owner's failure to correct a dangerous condition to prove the owner's negligence, the plaintiff has the burden of showing the owner had notice of the defect in sufficient time to correct it. (See, e.g., ...

Excerpt: ...pervision), the Fourth Cause of Action for Violation of Code of Civil Procedure § 1159 (Forcible Entry), the Fifth Cause of Action for Trespass, and the Sixth Cause of Action for Nuisance are all SUSTAINED, WITHOUT LEAVE TO AMEND. Each of these causes of action is premised on the theory that Plaintiff Jamal Mansuri ("Plaintiff") had a leasehold interest in the business he operated at the El Cerrito Plaza BART station. But as Plaintiff's counsel ...

Excerpt: ...RULED. The Court agrees with the VC Stockholders that Plaintiffs have not alleged facts demonstrating that the VC Stockholders owed any fiduciary duty to the shareholders of Art.com, Inc. ("ART"). But Plaintiffs have alleged facts that, if true, may support a claim that the VC Stockholders aided and abetted in a breach of fiduciary duties by ART's board of directors. Under Delaware law, minority shareholders (as are each of the VC Stockholders) g...

Excerpt: ... ("Leonard"). (See Second Amended Complaint, paragraph 12.) However, Plaintiff alleges that he did not intend to transfer title to the subject property to Larry, Mark, and Leonard at the time he executed the grant deed. (Id.) Instead, Plaintiff believed that in order to validly transfer title, the grant deed would first have to be recorded, and Plaintiff instructed Larry not to record the grant deed. (Id. at paragraphs 12-14.) Plaintiff later exe...

Excerpt: ...sser performed his work on the project from an elevated platform 10 feet above the floor, which could only be accessed by a scissor lift or a ladder that was tied with a strap to a metal column adjacent to the platform. On the day of his injury, Paul Esser was attempting to descend from the platform on the ladder when the strap broke and the ladder slid, causing him to fall and break his ankle. (See, generally, Flying Moose, LLC's Separate Statem...

Excerpt: ...red while driving at the intersection of Laurel Creek Drive and Foothill Drive in Pleasanton when she was hit by a car driven by Defendant Elijah Henry ("Henry"). (See the City's Separate Statement Facts ("SSF") Nos. 15-20 and the evidence cited in support.) A few minutes before the accident, Henry had been inside his car at the Laurel Creek Staging Area when he saw a police patrol car, driven by City of Pleasanton Police Office Matthew Harvey ("...

Excerpt: ...ter. Plaintiff has objected to the video and screenshots based on lack of foundation and proper authentication. That objection appears to be meritorious. Safeway's counsel Kerri Johnson fails to establish any personal knowledge that the video and screenshots attached to her declaration accurately reflect the accident scene at the time indicated. The fact that the video and screenshots were produced in discovery is not sufficient to support their ...

Excerpt: ...me Property Purchase Agreements and Joint Escrow Instructions ("the Agreements") with Defendants, both dated December 11, 2017, for the purchase of real property located at 1241 International Boulevard and 1301 International Boulevard in Oakland. The parties soon became embroiled in a dispute concerning whether Plaintiffs had made their initial contract deposits in a timely fashion. Defendants attempted to cancel the escrows for both properties, ...

Excerpt: ... Plaintiff alleges that Fischer was his realtor in that transaction. On February 27, 2017, Plaintiff signed an Exclusive Buyer Representation Agreement ("the Agreement") that provides, at Section 9(B), that it "shall be governed by and interpreted in accordance with the laws and in the courts of the state of Tennessee." Although a forum selection clause does not, ipso facto, defeat jurisdiction, it is one factor to consider in determining whether...

Excerpt: ... of contract. Therefore, Spanier is entitled to his attorneys' fees for defeating that claim. (See, e.g., Santisas v. Goodin (1998) 17 Cal.4th 599, 611.) The Court determines that U Unlimited is the prevailing party on the contract for the reasons discussed in the Court's order on the motion by Homeowners to set aside judgment and enter new judgment, also heard this date. The parties' contract (at section VII) provided for attorneys' fees to the ...

Excerpt: ...nd signed by the Court did not waive their right to file a motion to amend the judgment. Homeowners seek to set aside the judgment entered on September 17, 2019 and enter a new judgment that is modified in the following respects. First, Homeowners seek to reduce the amount of the judgment awarded to U Unlimited from $245,998.26 to $149,115.70, to account for the judgment of $96,882.56 that Homeowners were awarded against U Unlimited. Second, Home...

Excerpt: .... Reddy is trustee of a business that owns and manages apartment buildings in Berkeley, including two located at 2070 and 2076 University Avenue. On July 3, 2019, Jiboku posted a review of an apartment at 2076 University Avenue on Yelp in which he criticized how the apartment buildings at both 2070 and 2076 University Avenue were managed. As part of his posting, Jiboku also stated, "The main thought I will always be haunted by, is that, the real ...

Excerpt: ...liens by Plaintiffs Amamgbo & Associates, Emeziem & Others, and Daniel Donner (collectively "Plaintiffs") in an underlying personal injury lawsuit in Contra Costa County Superior Court, which motion was granted. Following the court's order granting the motion in the underlying personal injury case, Defendants disbursed the settlement funds in compliance with that order, without paying any money to Plaintiffs pursuant to their liens. Subsequently,...

Excerpt: ...by ATS, acting as the collection agency for FCOA, that they owed fees in the amount of $1,378.39. On September 24, 2014, FCOA recorded a Notice of Delinquent Assessment ("the lien notice") in that amount on Plaintiffs' real property. On November 6, 2014, Plaintiffs sent a letter to FCOA and ATS disputing that they owed FCOA the amount indicated on the lien notice. In 2017, FCOA filed a small claims lawsuit against Plaintiffs to collect the debt i...

Excerpt: ...que Martinez ("Martinez") in a personal injury case he filed in Contra Costa County ("the Contra Costa case") in 2011; Defendants Eric Williams and MacMorris & Carbone were retained by CSAA Insurance Group as attorneys for Ennis Mayberry, the defendant in the Contra Costa case. Later that year, Morgan became attorney of record for Martinez, and Plaintiffs filed a notice of lien in that case. Sometime thereafter, counsel in the Contra Costa case r...

Excerpt: ...rds do not reflect that attorney Huma Ellahie has ever represented Defendant Ariba Investments LLC, which was defaulted on March 25, 2017 without having made an appearance in this case. Huma Ellahie's law firm, Ellahie & Farooqui LLP, was at one point the attorney for Defendant Shariq Mirza, but he has represented himself since September 21, 2017, when a substitution of attorney was filed and served on Plaintiff's counsel. Second, the Stipulation...

Excerpt: ...egligent Hiring, Training, and Supervision, and (5) Conspiracy. Then, following the prayer for relief and several pages of proofs of service, there is a Judicial Council form Complaint "Second" Cause of Action for "Intentional Tort," and a Judicial Council form Complaint "First" Cause of Action for "General Negligence." For purposes of clarity, the Court will refer to the cause of action for "Intentional Tort" as Plaintiff's Sixth Cause of Action...

Excerpt: ... course and scope of their employment, would give rise to a claim against those employees for the tragic incident on July 22, 2018 if those employees were private persons. (See Government Code § 820.) A private person is normally not liable for failing to take affirmative steps to prevent an injury to another person. (See, e.g., Zelig v. City of Los Angeles (2002) 27 Cal.4th 1112, 1128-1129.) In addition, Plaintiffs have not alleged a reasonably...

Excerpt: ...ht to trial within five years after the action is commenced against the defendant. ( CCP 583.310) TThe purpose of the rule requiring that plaintiffs act diligently to bring actions to trial within five years is to promote the trial of cases before evidence is lost or destroyed, or the memory of witnesses becomes dimmed, and to protect defendants from being subjected to the annoyance of an unmeritorious action remaining undecided for an indefinite...

Excerpt: ....) The demurrer to "Count Three - Dangerous Condition of Public Property" (paragraph Prem.L-4) is OVERRULED. Plaintiff adequately alleges facts supporting a claim that the intersection where the accident occurred constituted a dangerous condition of public property, i.e., a physical characteristic of the intersection created a substantial risk of injury to those traveling through the intersection, even when exercising due care and acting in a rea...

Excerpt: ...over his costs of proving the matters that are the subject of those Requests for Admissions unless, inter alia, Plaintiffs establish that (1) the admissions sought were of no substantial importance; (2) Plaintiffs had reasonable ground to belief they would prevail on the matter; or (3) there was other good cause for Plaintiffs' failure to admit those Requests for Admission. (See Code of Civil Procedure section 2033.420(b).) The Court determines t...

Excerpt: ...egligent Hiring, Training, and Supervision, and (5) Conspiracy. Then, following the prayer for relief and several pages of proofs of service, there is a Judicial Council form Complaint "Second" Cause of Action for "Intentional Tort," and a Judicial Council form Complaint "First" Cause of Action for "General Negligence." For purposes of clarity, the Court will refer to the cause of action for "Intentional Tort" as Plaintiff's Sixth Cause of Action...

Excerpt: ...t file their Answer until April 30, 2019. The deadlines for responding to a validation or reverse validation action as provided in Code of Civil Procedure sections 861.1, 862 and 869 function as a statute of limitations, and if an interested party does not appear during the prescribed time, he or she loses the opportunity to challenge or support the government's action. (See City of San Diego v. San Diegans for Open Government (2016) 3 Cal.app.5t...

Excerpt: ...tial Information and Inventions Assignment Agreement. (See, e.g., Angelica Textile Services Inc. v. Park (2013) 220 Cal.App.4th 495, 507-508.) In addition, for purposes of this motion, Plaintiff need not establish that there is a probability it will ultimately prevail on the merits of its claims in this case. Rather, Plaintiff must establish that there is a likelihood that Defendant's computer media contain discoverable evidence relevant to Plain...

Excerpt: ...ted pursuant to Measure AA. Measure AA imposes a parcel tax for 30 years to fund educational programs. As a parcel tax, Measure AA potentially falls under California Constitution Article XIII A § 4, Article XIII C § 2(d), and Article XIII D § 3(2), each of which requires a two- thirds vote prior to imposing such a tax. Measure AA, however, was place on the ballot as a result of citizen's initiative, "The Children's Initiative of 2018." In the ...

Excerpt: ...nuary 1, 2019. Plaintiff alleges Defendant failed to do so. Plaintiff further alleges he was damaged by Defendant's failure to remove the wood and mulch by January 1, 2019 because Plaintiff has been sued by the property owner for failure to remove all items from the leased property (including the wood and mulch) upon termination of the lease, resulting in Plaintiff having to incur the costs of defending that action. (See Second Amended Complaint,...

Excerpt: ...s motion. (See Code of Civil Procedure section 439(a)(4).) Plaintiffs' motion is GRANTED, WITH LEAVE TO AMEND for Defendant to allege facts in support of its First, Second, Fourth, Fifth, Seventh, Eighth, and Tenth Affirmative Defenses. Defendant's statement at page 6:3-8 of its opposition brief that it has alleged various facts in support of these defenses is incorrect. Defendant has argued in its opposition brief that either Plaintiffs or other...

Excerpt: ...perty") to herself and Tinsley as joint tenants. Glaude alleges that thereafter, Senora Glaude executed the Senora Glaude Trust, in which she transferred her interest in the property to herself as trustee of the Trust. Glaude alleges that Tinsley falsely claimed that Tinsley had 100% ownership of property in bankruptcy proceedings filed in 2010, and that the property was released from the bankruptcy stay in May 2013. Glaude alleges that after Sen...

Excerpt: ...ng the resolution of this action, is ruled upon as follows: The motion for an order to conduct an inspection and appraisal of the property pursuant to Code of Civil Procedure section 742 is GRANTED. Plaintiff has shown good cause to enter the building to determine the current status of the property and to facilitate an application for a refinance loan in order to prevent foreclosure of the property, and also to inspect the grounds and common area...

Excerpt: ...it was recorded, and that he did not intend to transfer title to the subject property simply by executing the grant deed. In addition, in amending, Plaintiff must allege a factual basis for naming Ernest Hester as a defendant in this case. As the First Amended Complaint is currently pled, there are no facts suggesting any wrongdoing or other actionable conduct by Ernest Hester. Finally, Plaintiff should attach copies of each of the instruments th...

Excerpt: ...roduct (i.e., the house built on Lot 34 in the "Patina Development") that the doctrine of strict liability is meant to protect. Rather, Plaintiff was an employee of Pulte's contractor Blue Mountain Construction Service, Inc. and was injured while in the course and scope of that employment. (See Second Amended Complaint, page 5:8-9.) Plaintiff's work on the house on Lot 34 therefore constitutes the production, and not the use, of the product for w...

Excerpt: ...reasonable value" of the necessary medical services rendered to Defendants' insureds, which Plaintiff contends is $2,693,096.80 more than Defendants have already paid. Plaintiff, however, fails to allege that the parties ever agreed that Defendants would pay the additional $2,693,096.80 that Plaintiff seeks, or that the parties ever had a meeting of the minds as to the "reasonable" value of Plaintiff's services. The amount that Defendants would p...

Excerpt: ...evidence. Although Plaintiff contends that the 16.5% Note is completely irrelevant to the agreements for which she is suing Defendants (i.e., the stock redemption agreement and the subordinated promissory note), the evidence suggests that Plaintiff and Color Spot Holdings, Inc. ("Color Spot") considered all three agreements to be related. (See, e.g., Exhibit 6 to the declaration of Stephen Squillario.) The requested documents related to the 16..5...

Excerpt: ...ding to bring this action because they did not present a pre-lawsuit demand on these claims and they have not alleged with sufficient particularity facts demonstrating demand futility. The demurrer on this ground is OVERRULED. Plaintiffs have adequately alleged facts creating a reasonable doubt that the Individual Defendants were disinterested and independent on the subject of the Walmart transaction. (See Second Amended Complaint, paragraph 38.)...

Excerpt: ... Cross-Defendants Triangle, Dean Boik, and Paul Lemley are each seeking summary adjudication. Therefore, the Court will rule on this motion as to each of these three Cross-Defendants. As to Issues Nos. 1-10 in Triangle's Notice of Motion, the motion is DENIED. Issues Nos. 1-10 do not satisfy the requirements of Code of Civil Procedure § 437c(f)(1) because none of them completely disposes of an entire cause of action. The purported misrepresentat...

Excerpt: ...iccinini Trust utd March 18, 2002 and Louis J. Giraudo, in his capacity as Trustee of the Robert M. Piccinini Trust ("Defendants"), but allowed Plaintiffs the opportunity to file a motion to reopen evidence regarding damages. At the hearing on Plaintiff's ex parte application, the court indicated it was interested in the question of whether the court should reopen evidence on the limited issue of whether the March 31, 2015 valuation of the Piccin...

Excerpt: ...une 14, 2019, Crossroads filed this renewed motion for summary adjudication pursuant to Code of Civil Procedure § 1008(b). The only "new" fact identified in the moving papers is that on May 20, 2019, Crossroads took the deposition of Brianne Pitchford, designated by Triangle as its person most qualified on some topic not disclosed in the moving papers. (See the Declaration of Nathan Verbiscar-Brown at paragraphs 34 and 47-48.) At her deposition,...

Excerpt: ...ent occurred, and there was no overhead street lighting at that location as a result of the construction project. (See Plaintiff's Additional Facts ("AF") Nos. 1-5 and the evidence cited in support.) Plaintiff had to maneuver his bicycle to avoid being hit by a car, and in doing so, Plaintiff hit a partially-filled trench and was thrown from his bicycle. (See AF Nos. 6-8 and the evidence in support.) Prior to the construction project, Portola Ave...

Excerpt: ...omotive Imports of CA, LLC ("Plaintiff"). A fraud claim must be pled with particularity, including who, when, where, to whom, and by what means any misrepresentations were tendered. (See, e.g., Robinson Helicopter Co. Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) Plaintiff fails to allege who made the alleged misrepresentations on which it relied, when, and by what means. (See First Amended Complaint, paragraph 26.) In addition, as the First Am...

Excerpt: ...nd that is owned by Matthew, and on which Samuel resided at the time of the incident. Garcia, a professional but unlicensed landscaper who was hired by Samuel to cut branches from a redwood tree on the premises, was working on that job when a branch on which he was standing broke, causing Garcia to fall and injure himself. (See, generally, Defendants' Separate Statement Facts ("SSF") Nos. 11-33 and the evidence cited in support.) Plaintiffs' evid...

Excerpt: ... which is set forth in Triangle's Separate Statement. As to privilege log documents nos. 2-5, Triangle's motion is GRANTED. The Court determines that Crossroads has waived any attorney-client privilege or attorney work product privilege as to those documents by disclosing a significant part of the communications to Triangle. (See Evidence Code section 912(a); see also Jones v. Superior Court (1981) 119 Cal.App.3d 534-547 and National Steel Produc...

Excerpt: ...demnity granted by Section 31. Deacon's Cross-Complaint against MCP clearly constitutes an action to enforce the indemnity provisions of Section 31 of the Agreement. Although Section 31.2(d) specifically provides that MCP is to reimburse Deacon for all legal expenses incurred in enforcing the Agreement's indemnity provision, as a matter of law Section 31.2(d) must be interpreted as awarding legal expenses to whichever party prevails in an action ...

Excerpt: ...ry duty to her, but intentionally failed to disclose that Plaintiff's understanding of her reverse mortgage was erroneous, resulting in Plaintiff selling the subject property to Kendall to Plaintiff's detriment. (See Fourth Amended Complaint, paragraphs 9, 20-23(a), and 33.) Plaintiff's Second Cause of Action for "Constructive Trust on Real Property Based on Unilateral Mistake" is adequately pled, including Plaintiff's mistake, Defendant Julie Ke...

Excerpt: ...uately allege the terms of the purported oral contract or identify how Defendant breached the purported oral contract. To the contrary, the First Amended Complaint appears to allege that both the written and oral contract had the same terms, which makes one of those contracts superfluous. (See First Amended Complaint, paragraph 17.) Second, Plaintiff fails to adequately allege how Plaintiff has been damaged, and in what amount, by Defendant's pur...

Excerpt: ...d on property owned by Remitz. Plaintiff alleges that Remitz should have known of the dog's dangerous propensities and of the dog's ability to escape from Remitz's property as a result of an inadequately maintained fence surrounding the property. A duty of care may not be imposed on a landlord for injuries caused by a tenant's dog without proof that the landlord had actual knowledge of the dog's dangerous propensities. (See Yuzon v. Collins (2004...

Excerpt: ...d each time they are repeated, resulting in 147 facts. In the present order, the Court will refer to Defendants' Separate Statement Facts ("SSF") Nos. 1-58, 77, 88, 101, 139, and 147, not the various other renumbering of SSF Nos. 1-58 that appear throughout the Separate Statement. Defendants seek summary judgment or, alternatively, summary adjudication as to four issues. Defendants do not directly correlate these four issues with any of the five ...

Excerpt: ...m Plaintiff's assignors Ferguson Perforating Company ("Ferguson") and PDM Steel Service Centers, Inc. ("PDM"). Primus submits no evidence disputing Plaintiff's evidence that Primus entered contracts with Ferguson and PDM and is in default on those contracts, and indeed Primus admits that it is in default on the PDM contract in the principal amount of $41,043.46. In granting the writ of attachment, the Court accepts Primus' evidence and reduces th...

Excerpt: ...oved to his left and tripped over a concrete "bench" adjacent to the walkway. The bench is 18" wide and rises approximately 15" above the walkway exiting the multipurpose room. The floor on the other side of the bench is approximately 24" lower than the floor on which Plaintiff was walking, which means that the height differential between the top of the bench and floor onto which Plaintiff fell is approximately 39". (See, generally, the District'...

Excerpt: ...IN PART as to the subpoena served on Plaintiff's former employer Digilant, Inc. Preliminarily, the Court rejects Defendant's argument that this motion should be denied because Plaintiff's privacy rights are adequately protected by the parties' stipulated protective order. A stipulated protective order addressing the disclosure of confidential information to nonparties does not cure any impermissible invasion into Plaintiff's right to privacy. (Se...

Excerpt: ...aintiffs and Cross-Defendants Morgan and Smith for the claims asserted by Morgan and Smith in their Complaint, then Morgan and Smith should be required to indemnify the Visiting Angels for any sums the Visiting Angels are ordered to pay Morgan and Smith. This claim is completely circular and unsupported by any legal authority cited by the Visiting Angels. The Demurrer to the Second Cause of Action for Implied Contractual Indemnity is SUSTAINED, W...

Excerpt: ...ent, pursuant to Government Code § 815.2, and (2) the District's failure to discharge mandatory duties pursuant to Government Code § 815.6. The Tenth Cause of Action alleges, again, that the District is liable for the actions of unspecified employees working within the scope of their employment pursuant to Government Code § 815.2. The Tenth Cause of Action appears to be entirely duplicative of the same claim made in the Ninth Cause of Action a...

Excerpt: ...to have judgment entered against it if it defaults on the agreement, nor does it clearly indicate the amount that any such judgment would be. Therefore, it does not appear that the Stipulated Settlement Agreement is subject to enforcement pursuant to section 664.6. Third, Plaintiff does not indicate the amount of the judgment sought. The Stipulated Settlement Agreement indicates that Defendant is in arrears on "COP Costs" in the amount of $125,00...

Excerpt: ...er where service of summons is invalid because the plaintiff has not complied with the requirements for naming a Doe defendant pursuant to Code of Civil Procedure section 474. (See Fireman's Fund Ins Co. v. Sparks Construction Inc. (2004) 114 Cal.App.4th 1135, 1144-1145.) A Doe amendment is only proper if the plaintiff is actually ignorant of the facts giving rise to a cause of action against the Doe defendant at the time the complaint is filed. ...

Excerpt: ...ivil Procedure § 437c(f)(1). The undisputed facts establish that Pulte and BMC entered a National Master Supply and Work Agreement ("the Agreement") that requires the "supplier" (BMC) to defend Pulte from all claims arising from or in connection with BMC's "performance of its Work and/or obligations under this Agreement." (See Section 23.1 of the Agreement, quoted in Pulte's Separate Statement of Facts ("SSF") No. 11.) Although BMC purports to d...

Excerpt: ...ction. The Court exercises its discretion to permit Plaintiffs to allege a claim against Accurate Adjustments for "general negligence." The Motion is GRANTED as to the language "the court should consider during trail [sic] if the defendant actions between criminal assault and not just assault in causing apprehension and contact with the plaintiff" in the second paragraph of the Third Cause of Action. Accurate Adjustments shall file and serve its ...

Excerpt: ...omply with Corporations Code section 2203(a). That is not a basis to overrule a demurrer, and in any event the Court already rejected this argument on June 26, 2019. The Court also rejects Plaintiffs' apparent argument that the demurrer should be overruled based on the failure of Capital One to meet and confer prior to filing the demurrer. That is not a basis to overrule a demurrer. (See Code of Civil Procedure section 430.41(a)(4).) The Demurrer...

Excerpt: ...m Plaintiff's assignors Ferguson Perforating Company ("Ferguson") and PDM Steel Service Centers, Inc. ("PDM"). Primus submits no evidence disputing Plaintiff's evidence that Primus entered contracts with Ferguson and PDM and is in default on those contracts, and indeed Primus admits that it is in default on the PDM contract in the principal amount of $41,043.46. In granting the writ of attachment, the Court accepts Primus' evidence and reduces th...

Excerpt: ...erform necessary environmental remediation of the site. As a result, Plaintiff alleges that petroleum has contaminated the soil and groundwater on Defendants' property and that contamination has migrated onto Plaintiff's adjoining property. Plaintiff alleges causes of action for trespass, nuisance, negligence, breach of contract, declaratory relief, and unfair business practices. Defendants demur to the Sixth Cause of Action for Unfair Business P...

Excerpt: ...aived any such claims in the "Stipulation re: Dismissal/Judgment" filed on that date in Alameda County Superior Court Case No. RG16-827749, which contained a Civil Code section 1542 waiver releasing any known or unknown claims against Bay Property Group or its attorneys (including Daniel Bornstein). The vast majority of the allegations in Plaintiff's Complaint involve events occurring prior to October 17, 2016. Plaintiff has waived any claims bas...

Excerpt: ...ading. Therefore, the Court deems the City's demurrer as directed to Plaintiff's First Amended Complaint. Plaintiff has adequately pled her First Cause of Action for Dangerous Condition of Public Property pursuant to Government Code section 835 et seq. Specifically, Plaintiff has alleged the dangerous condition that caused her accident (an uplifted sidewalk with a crack in the concrete where it meets the curb, causing a trip and fall hazard); tha...

Excerpt: ... damaged by that misrepresentation. Although Plaintiffs allege SMA had a statutory or contractual duty to disclose that it had purchased Plaintiffs' loan and to provide Plaintiffs with periodic statements and repayment information, they fail to cite any legal authority supporting a common law duty to disclose any of that information that would give rise to a claim for fraud by concealment. In addition, as to Plaintiffs' allegations concerning (1)...

Excerpt: ...sible evidence demonstrating that it made a disclosure of its intent to require all disputes to be resolved by binding arbitration in compliance with Health & Safety Code § 1363.1. Kaiser's only evidence that it purportedly made that disclosure is the declaration of James Larreta-Moylan, but Mr. Larreta-Moylan admits that Kaiser had not been able to locate any screen-prints showing the actual, entire Conditions of Acceptance/Arbitration Agreemen...

Excerpt: ...2019, the Court granted Crossroads' motion for summary adjudication as to Triangle's quantum meruit claim based on what was essentially a pleading technicality, i.e., that Triangle's Second Amended Complaint failed to expressly allege the quantum meruit claim as an alternative claim in the event that the parties' contract was legally unenforceable. Triangle's proposed Third Amended Complaint corrects that error. (See proposed Third Amended Compla...

Excerpt: ...rst, a claim against a public entity for failure to discharge a mandatory duty must be based on an "enactment." (See Government Code § 815.6.) The NPDES permit attached as Exhibit A to the First Amended Complaint is not an "enactment" as defined by Government Code § 810.6. Although 40 CFR §122.41 is an "enactment," it does not set forth a mandatory duty on which a claim for failure to discharge mandatory duty can be based. Rather, 40 CFR § 12...

Excerpt: ..., WITH LEAVE TO AMEND to allege facts demonstrating that Mapu Tupou's September 10, 2018 telephone call was authorized or ratified by a managing agent of SMA. (See Civil Code § 3294(b).) The Motion is GRANTED as to paragraph 188, WITHOUT LEAVE TO AMEND. Noncontractual damages (such as tort damages and punitive damages) are not available for breach of the implied covenant of good faith and fair dealing outside the insured-insurer relationship. (S...

Excerpt: ...sible evidence demonstrating that it made a disclosure of its intent to require all disputes to be resolved by binding arbitration in compliance with Health & Safety Code § 1363.1. Kaiser's only evidence that it purportedly made that disclosure is the declaration of James Larreta-Moylan, but Mr. Larreta-Moylan admits that Kaiser had not been able to locate any screen-prints showing the actual, entire Conditions of Acceptance/Arbitration Agreemen...

Excerpt: ... damaged by that misrepresentation. Although Plaintiffs allege SMA had a statutory or contractual duty to disclose that it had purchased Plaintiffs' loan and to provide Plaintiffs with periodic statements and repayment information, they fail to cite any legal authority supporting a common law duty to disclose any of that information that would give rise to a claim for fraud by concealment. In addition, as to Plaintiffs' allegations concerning (1)...

Excerpt: ...t file their Answer until April 30, 2019. The deadlines for responding to a validation or reverse validation action as provided in Code of Civil Procedure sections 861.1, 862 and 869 function as a statute of limitations, and if an interested party does not appear during the prescribed time, he or she loses the opportunity to challenge or support the government's action. (See City of San Diego v. San Diegans for Open Government (2016) 3 Cal.app.5t...

Excerpt: ...old showing that the challenged cause of action is one arising from a protected activity, i.e., an act in furtherance of a person's right of free speech in connection with a public issue. (See Code of Civil Procedure § 425.16(b)(1).) Second, if such a showing is made, the Court determines whether the plaintiff or cross-complainant has demonstrated a probability of prevailing on the claim. The plaintiff or cross- complainant demonstrates this by ...

Excerpt: ...onclusion based solely on the facts alleged in the Complaint and facts of which the Court is required to take judicial notice. Res judicata applies where the claim in the present action is identical to the claim litigated in the prior proceeding; there was a final judgment on the merits in the prior proceeding, and the party against whom the doctrine is being asserted is a party to the prior proceeding. (See, e.g., Consumer Advocacy Group Inc. v....

Excerpt: ...ative Fault, the Fifth Cause of Action for Contribution, and the Sixth Cause of Action for Declaratory Relief, as unopposed. (See Cross-Complainants' opposition brief at page 1:16-18.) As to the First Cause of Action for Express Contractual Indemnity, the Motion for Summary Adjudication is GRANTED. Deacon and LaPlante seek equitable indemnity for the injuries claimed by Plaintiff Calvin Wallace ("Plaintiff") pursuant to a Standard Form Subcontrac...

Excerpt: ...Plaintiffs appear to allege that Franklin violated these statutory provisions by (1) recording a Notice of Default and Substitution of Trustee pursuant to a "fraudulent and forged Deed of Trust" based on a misrepresentation that it had a beneficial interest in the notes secured by the subject Deed of Trust (see Second Amended Complaint, paragraphs 50-53 and 62), and (2) failing to contact Plaintiffs prior to recording a Notice of Default, purport...

Excerpt: ...ceived by Plaintiff on April 25, 2019. In any future discovery motions filed in this case, Plaintiff should include the discovery, and the opposing party's responses, with the moving papers. Plaintiff argues that DeSilva Gates has waived all objections to Request for Production of Documents, Set Three because those responses were not timely served. The Court is unable to reach that conclusion, because neither Plaintiff nor DeSilva Gates has submi...

Excerpt: ...rate Statement filed by Defendant and Cross- Complainant Irvington Baptist Church dba Crossroads Church of Fremont ("Crossroads"). More specifically, while the text of Special Interrogatories, Set Three, Nos. 1 and 2 is the same in both Separate Statements, the text of Special Interrogatories, Set Three, Nos. 3-22 is different (and Crossroads does not address Special Interrogatories, Set Three, Nos. 23-31 in its Response Separate Statement.) Neit...

Excerpt: ...nuing the trial date.) Crossroads has not shown good cause to reopen discovery as to the financial condition of Plaintiff and Cross-Defendant Triangle Associates Inc. ("Triangle"), pursuant to Code of Civil Procedure section 2024.050(b). Specifically, Crossroads has not demonstrated why it could not have sought discovery of this information prior to the discovery cutoff. Crossroads has asserted claims against Triangle for fraud since it filed its...

Excerpt: ... failed to take any appropriate action to remedy the danger posed by those trees. One of those trees then fell on the roof of the home of Plaintiff's insured, causing damage of at least $761,000. If those allegations are true (as the Court must accept when ruling on a demurrer), Plaintiff has adequately alleged claims for negligence, nuisance, trespass, and equitable subrogation. Any evidence supporting Plaintiff's claims (including, e.g., eviden...

Excerpt: ...no recommendations for future treatment (see Plaintiff's deposition at pages 91 and 93-94; (2) Plaintiff's failure to mention any ongoing problems with his ribs at his first independent medical examination by Dr. Mathias Masem on December 15, 2018 (see Dr. Masem's deposition at pages 17-18 and 20-21); and (3) Plaintiff's production of a report by Dr. Jacob Rosenberg dated March 18, 2019 indicating (on page 6) that Plaintiff's "most significant fu...

Excerpt: ...ilure to comply with its obligations under § 1793.2(a)(3) was willful. KMA's motion to strike Plaintiffs' prayer for punitive damages is DENIED. KMA argues that Plaintiffs cannot recover punitive damages on their claims for violation of the Song-Beverly Consumer Warranty Act because Civil Code § 1794 does not expressly state that punitive damages are available for those claims. However, KMA fails to cite any case law holding that punitive damag...

Excerpt: ...failure to comply with § 1793.2(a)(3). (See First Amended Complaint, paragraphs 61-62.) Whether those allegations are true or not cannot be determined in ruling on this demurrer, but instead must be determined at a later stage of this case. The Demurer to the Fourth Cause of Action for Violation of Civil Code § 1791.2 and § 1794 is OVERRULED, for the same reason KMA's demurrer to this cause of action was previously overruled on March 8, 2019. ...

Excerpt: ... Plaintiff alleges that its landlord "was threatening to charge Plaintiff $400,000.00 to clean up the Property." (See Complaint, paragraph 12.) But Plaintiff does not allege that its landlord in fact charged Plaintiff $400,000, or any other amount, as a result of Defendant's alleged failure to fulfill its obligations under the parties' contract, or any other facts demonstrating how Plaintiff has been damaged by that breach. The Demurrer to the Se...

Excerpt: ...vil Procedure section 2020.420.) In addition, to the extent that Mr. Richards is willing to assume responsibility for copying the responsive documents, any copying would have to take place at Mulch Master's business address, not at the office of Plaintiff's counsel. (See The Rutter Group's Civil Procedure Before Trial section 8:547.2.) Plaintiff has also failed to demonstrate good cause for production of the documents requested in the subpoena (w...

Excerpt: ...s directed to serve its verified supplemental responses no later than May 28, 2019. If, after reviewing those verified supplemental responses, Plaintiffs believe they are inadequate, counsel for Plaintiffs and Defendant are ordered to meet and confer, in person, to attempt to resolve any disputes about those responses. If counsel are unable to informally resolve any disputes about the supplemental responses, they are directed to file a Joint Stat...