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: ...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: ...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...