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: ...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: ... 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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ..., 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: ...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: ...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: ...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...