Excerpt: ... (6) Gender Violence and Sexual Assault, (7) Fraud, and (8) Sexual Harassment. AC does NOT demurrer to Plaintiff's Ninth Cause of Action for Negligent Hiring, Supervision, and Retention, or her Tenth Cause of Action for General Negligence. Plaintiff's causes of action arise from her alleged molestation by Defendant Leslie David Smith on occasions when Smith was supposed to be giving Plaintiff massages. Plaintiff admits that Smith's actions did no...

Excerpt: ...on agreement, and (3) Plaintiff worked for Defendant for at least one year. A claim for breach of covenant of good faith and fair dealing presupposes the existence of a valid, enforceable contract between the parties. Where the terms of an agreement are left for future determination, no contract exists until that determination is made. Here, it is questionable whether a purported agreement that Plaintiff would be given an option to purchase stock...

Excerpt: ...or otherwise . . . between you and us or our employees, agents, successor or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) . . . " Hyundai, alleged to be the manufacturer or distributor of Plaintiff's vehicle (see Complaint, paragraph 9), is not a...

Excerpt: ... 8-31.) Although SLG argues that the opinions of Hansen are "not based on reliable information", SLG has not filed any evidentiary objections to Hansen's declaration in compliance with California Rules of Court, Rule 3.1354. In its reply brief, SLG repeatedly refers to statements by Plaintiff Chris Malki as "untruths", "self-serving", "falsehoods", or "lies". Summary judgment cannot be granted or denied based on the credibility (or alleged lack t...

Excerpt: ...C case) and/or prior to February 1, 2017 (based on the statute of limitations set forth in Business & Professions Code § 17208.) Defendant cites no legal authority that a motion to strike may be used to compel the Court to rewrite (rather than eliminate outright) various allegations in the challenged pleading. But in any event, Defendant argues that any claims for damages Plaintiff is asserting based on the period predating January 9, 2018 is ba...

Excerpt: ... MERS' reply was due. In addition, Plaintiff has not filed proof of service of her opposition, so the Court has no evidence that the opposition was ever served on MERS. Plaintiff is advised that the Court may choose to disregard any future late papers she files in this case. (See California Rules of Court, Rule 3.1300(d).) The motion is GRANTED as to the First Cause of Action for Wrongful Foreclosure, WITH LEAVE TO AMEND. The Court accepts as tru...

Excerpt: ...at follow, the Court determines that is not the case here. First, the Labor Commissioner's decision would only become final if it was not appealed within 10 days after service of notice of that decision. (See Labor Code § 98.2(a) and (d).) But Defendant filed an appeal of the Labor Commissioner's Decision on June 2, 2020. (See Defendant's Request for Judicial Notice, Exhibit D.) In light of the COVID Implementation Orders issued by Alameda Count...

Excerpt: ...R-2216862 is the reservation number for SLC's motion for summary judgment, not for either of the two motions to seal that appear on the calendar for September 1. R-2185440, which appears on SLC's August 26, 2021 response to Plaintiff's motion, does not appear connected to any of the motions to seal. In addition, Plaintiffs filed a motion to seal (using R- 2285104) on August 17, and a "supplemental motion to seal" using that same reservation numbe...

Excerpt: ...stop paying the Reynolds and destruction of paper data by getting "rid of all the stuff in the warehouse." (See Landerholm Declaration in Support of the People's Motion for Terminating Sanction for Spoliation and Failure to Obey Discovery Order ("Landerholm Decl.") at ¶ 83.) On the other, the information on the DMS software could apparently be accessed (Landerholm Decl. at Exh. MM)-it has not been destroyed-and the warehouse remains open with do...

Excerpt: ...cts were entered, and at the time the work based on those contracts was performed, PCR did not possess a valid contractor's license. (See the Declaration of Howard Patterson at paragraphs 3-4 and 17.) However, Defendant and Cross-Complainant Howard Patterson did have a valid contractor's license during those time periods, and his name and contractor's license number are prominently disclosed on both the preconstruction and construction contacts. ...

Excerpt: ... are co- owners of the subject property. In this motion, Tinsley seeks judgment on the pleadings on the grounds that Glaude is not an owner of the subject real property. The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice. (See Code of Civil Procedure section 438(d).) Here, there are no facts alleged in Glaude's Amended ...

Excerpt: ...v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 537, cited by Plaintiff, the plaintiff's insurance policy had a specific provision requiring payment of interest on the amount due. Plaintiff has identified no similar provision in his insurance policy with Defendant. Plaintiff's allegation that the California Fair Claim Practices Act purportedly required that payment be made to him within the time limit set forth in his demands, and ...

Excerpt: ...ged injuries Romero has put at issue in this case) from January 7, 2017 to the present. The subpoenas to Highland Hospital, Sutter Eden Medical Center Tiburcio Health Center, and Pathways to Wellness attached as Exhibits C-D and F-G to Pitts' declaration (seeking medical records as to Plaintiff Maria Jimenez) are modified as follows. The deponents shall produce all records pertaining to injuries to Plaintiff's face, including her nose and eyes, a...

Excerpt: ... 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 opposing party has demonstrated a probability of prevailing on the claim. The opposing party demonstrates this by showing the challenged pleading is legally sufficient and supported by a sufficient prima facie show...

Excerpt: ...ocedure section 128.5. In their briefing on the motion for judgment on the pleadings, neither side was able to cite a published case squarely on point as to whether a product that did not itself contain a chemical regulated by Proposition 65, but that could foreseeably be used with a substance containing such a chemical, was subject to Proposition 65. In the absence of any such directly applicable legal authority, the Court does not find that Pla...

Excerpt: ...oner argues that he did not refuse to complete a chemical breath test; instead, he was simply "unable" to complete it. For the purposes of this writ, that distinction makes no difference. Vehicle Code section 13353(a) provides for a one year license suspension for any driver who either refuses to submit to a chemical test or who "fails to complete" it. It is undisputed that Petitioner failed to complete the breath test. (See Garcia v. Department ...

Excerpt: ...causes cancer or reproductive toxicity or that they necessarily emanate any such chemicals. Rather, Plaintiff alleges that Defendant's products, if used with marijuana, produce marijuana smoke, which is a carcinogen regulated by Proposition 65. Plaintiff does not allege that the Defendant's products can only be used with marijuana, or that their use with other substances emanates any carcinogen subject to Proposition 65. Plaintiff cites no case h...

Excerpt: ...e 17, 2021, Plaintiffs' counsel filed this motion seeking relief from the summary judgment order and the judgment pursuant to Code of Civil Procedure section 473(b). Plaintiffs' counsel asserts that on April 6, 2021, he began to experience severe flu symptoms that lasted for "several days", and as a result he was unable to check the Court's tentative ruling on Defendant's motion for summary judgment, contest the tentative ruling, or appear at the...

Excerpt: ...ions. Such discovery may include the thoroughness of the SLC's investigation into the claims against Art.com and the reasonableness of its conclusions. (See, e.g., Kaplan v. Wyatt (Del.Ch. 1984) 484 A.2d 501, 510 and Kahn v. Kolberg Kravis Roberts & Co. LP (Del. 2011) 23 A.3d 831, 836-837, 842.) As to Plaintiffs' request for a further response to Deposition Question No. 1 (as set forth in Plaintiffs' Separate Statement), Plaintiffs' motion is DEN...

Excerpt: ...ents by misrepresenting that if she stopped making her payments, she could apply for and receive a fixed interest rate loan modification. As a result, Plaintiff was induced to default on her loan and now faces nonjudicial foreclosure. (See Plaintiff's Additional Facts ("AF") Nos. 5-7 and the evidence cited in support, including Plaintiff's declaration at paragraph 8.) Plaintiff's declaration does not consist of "mere speculation and conjecture", ...

Excerpt: ...leges that Defendants "knew or should have known that she was a subtenant and approved and or ratified the sublease agreement", but she does not allege that Defendants authorized Plaintiff's subtenancy in writing. Plaintiff alleges that Defendants have interfered with her purported right to possession of the subject property in four ways. First, Defendants and/or their agents harassed Plaintiff by demanding that she pay rent, calling her a "crook...

Excerpt: ...at no such cause of action is recognized under California law. In fact, California law does recognize a cause of action for breach of mandatory duty pursuant to Government Code § 815.6, and it has three required elements. (See, e.g., Guzman v. County of Monterey (2009) 178 Cal.App.4th 983, 991.) First, the statute or enactment on which the cause of action is based must require that a particular action be taken and include specific rules and guid...

Excerpt: ...tional compensation to which it was not entitled. Although the parties' contract included a procedure by which Flatiron could pursue claims for additional compensation, the implied covenant of good faith and fair dealing imposes on each party the duty to assert its contractual rights fairly and in good faith. (See, e.g., Careau & Co. v. Security Pacific Business Credit Inc. (1990) 222 Cal.App.3d 1371, 1393 and Carma Developers (Cal.) Inc. v. Mara...

Excerpt: ...ese causes of action were alleged in Plaintiff's Second Amended Complaint, and Defendants could have - but did not - demurrer to these causes of action in the Second Amended Complaint. Defendants therefore cannot demurrer to these causes of action, for the first time, in the Third Amended Complaint. The demurrers to the Fifth Cause of Action for "Commission of Primary Contravention of the Racketeer Influenced and Corrupt Organization Act (RICO) (...

Excerpt: ...and § 820 as the statutory basis for their negligence claims against NH, AC, and Brar. Defendants contend that as a matter of law, they owe no duty under either § 815.2 or § 820 to nonstudents. Based on the facts alleged in the Complaint, the Court cannot make that determination in this case. Plaintiffs allege they were assaulted by Defendants D.S. and T.S. on the grounds of James Logan High School while there to report bullying Plaintiff Esme...

Excerpt: ...bited subletting or assigning the premises without first obtaining MB's prior written consent, (2) prohibited using the premises to illegally cultivate controlled substances, and (3) required GZ to pay for electricity and waste management services. The demurrer to the Second Cause of Action for Common Counts is SUSTAINED, WITH LEAVE TO AMEND to allege facts demonstrating why GZ owes MB $350,000, and how that amount was determined. The demurrer to...

Excerpt: ...Amended Complaint in consolidated Case No. RG19-0044357 is DENIED. Those two cases have been consolidated for all purposes, and therefore it makes no difference whatsoever whether the claims are asserted in a cross- complaint or in the present First Amended Complaint. The motion is DENIED as to Item No. 2 in the Notice of Motion. MB adequately alleges facts that, if true, may support a finding that GZ is the alter ego of Skye. Whether those facts...

Excerpt: ...ught pursuant to Code of Civil Procedure section 410.30(a), Anand fails to submit admissible evidence demonstrating that all named defendants, including Anand, are subject to jurisdiction in the courts of India and that the claims asserted in this case are not barred by any statute of limitations there. (See, e.g., Aghaian v. Minassian (2015) 234 Cal.App.4th 427, 431.) To the extent this motion is based on the convenience of witnesses pursuant to...

Excerpt: ...Specifically, Plaintiff consulted with Palmer concerning a "Repurchase Notice" Plaintiff received from Color Spot Holdings Inc. ("CSH"), in which CSH indicated its intent to exercise its contractual right to purchase all of Plaintiff's shares of stock in CSH. After consulting with Palmer, Plaintiff and CSH entered a Stock Redemption Agreement and a Subordinated Promissory Note, both dated October 14, 2011, which together formed an integrated agre...

Excerpt: ...fety of students and invited guests on school premises. Plaintiffs do not oppose the motion to strike, except for the reference to Education Code § 32282 in Complaint paragraph 66. Whether a statute creates a mandatory duty for a public entity is a question of law for the Court. (See De Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 257.) A statute is deemed to impose a mandatory duty on a public entity only if it affirmatively requi...

Excerpt: ...rmation from its opponent prior to subpoenaing those documents from a nonparty. None of the federal district court cases cited on page 4-5 of Twitter's opposition brief are binding on California state courts. However, this motion is denied without prejudice because Plaintiff has not made a prima facie showing in support of her claim that parties' settlement agreement has been breached, as required by, e.g., Glassdoor Inc. v. Superior Court (2017)...

Excerpt: ...scharging Reyes from liability. Because Reyes' alleged liability to Plaintiff arose on July 8, 2019, nearly a year prior to Reyes' bankruptcy filing, Plaintiff's claims in this case fall within the scope of the bankruptcy court's discharge order. (See In re Gibson (Bank. N.D. Tex. 2002) 308 B.R. 763, 766-768.) The bankruptcy court's discharge order therefore discharged Reyes from any liability for Plaintiff's claims and precludes Plaintiff from p...

Excerpt: ...es arising from or related to this Agreement or to the Resident's residency, care or services at the Community whether made against Owner or Morningstar or any other individual or entity". Plaintiff's claims asserted in this case fall within the scope of that agreement. Plaintiff raises several arguments as to why she believes her claims asserted in this case cannot be compelled to arbitration. First, she argues that the Agreement does not contai...

Excerpt: ...d while carrying construction materials for his employer, United Mechanical Inc. ("UMI"), in "Modular D", a structure adjacent to the construction site that UMI used for office space while working on WT's construction project for Stanford. (See WT's Separate Statement Fact ("SSF") Nos. 5-7 and 10-11 and the evidence cited in support.) The prime contract between WT and Stanford, in section 1.1, defined "Site" as the real property on which the proj...

Excerpt: ...laintiff alleges that he asked for information concerning (1) whether the property had undergone recent repairs, and (2) "a request for disclosure of all material facts or defects." Plaintiff does not allege that Caliber failed to disclose the recent repairs the property had undergone. Plaintiff does allege that Caliber failed to disclose that the property has previously had severe water intrusion, but he does not allege that Caliber was or shoul...

Excerpt: ...t, as well as to Plaintiff's claim for punitive damages. Defendants' motion is GRANTED as to Plaintiff's First Cause of Action for Disability Discrimination. In order to establish a prima facie case of disability discrimination, Plaintiff must show (1) that he suffers from a disability, (2) he is capable of performing the essential functions of his job with or without a reasonable accommodation; and (3) he was subjected to an adverse employment a...

Excerpt: ...ons of the proposed Third Amended Complaint reveals (at least) the following differences in the pleadings. First, Exhibit E contains a Second Cause of Action for Battery; Exhibit F does not. Second, the paragraph numbering from paragraph 30 onwards is significantly different. Third, the cause of action for Violation of PAGA (which is the Thirteenth Cause of Action in Exhibit E and the Twelfth Cause of Action in Exhibit F) contain different text, ...

Excerpt: ...r action she filed on December 27, 2021. However, there are no facts appearing on the face of the Complaint indicating that Yang's unlawful detainer complaint had any effect on Plaintiff's decision to vacate the premises (nor, for that matter, does the Complaint contain any allegations indicating that Plaintiffs were even aware of the unlawful detainer complaint or or any prior 3 day notice to quit when they vacated the premises on December 31, 2...

Excerpt: ...to recover for injury to his land caused by a person not authorized to occupy the premises. (See Smith v. Cap Concrete Inc. (1982) 133 Cal.App.3d 769, 774.) Tinsley alleges he owns the subject property and Glaude occupies it without any right to do so. (See Second Amended Complaint, paragraphs 6, 10-13, and 21.) In addition, these causes of action are not timebarred by any statute of limitations, because Tinsley has alleged a continuing trespass ...

Excerpt: ..., leading to an infestation of cockroaches. Whether those allegations are true cannot be determined in ruling on this demurrer. However, BSR has not adequately alleged how they have suffered any cognizable damage as a result of the Tenants' conduct. For example, has BSR had to incur any extra costs to address the alleged cockroach infestation? Has BSR lost any tenants due to the cockroach infestation? BSR is given leave to amend to clearly allege...

Excerpt: ...ails. Plaintiffs' motion to compel further production of documents In Response to Request No. 22 is GRANTED. PHH stated in its opposition that the Plaintiffs are trying "to force the search and production of e-mails for the 400 users identified in PHH's comments log over a three-year period between 2017 and 2020 that were not involved in reviewing and denying the September 2018 Loan Modification Agreement. These 400 users do not have any connecti...

Excerpt: ... ruling on this motion. WT contracted with Stanford to construct a building for the Stanford School of Medicine. (See WT's Separate Statement Fact ("SSF") No. 2 and the evidence cited in support.) WT, in turn, contracted with Plaintiff's employer, United Mechanical Inc. ("UMI") to perform mechanical and plumbing work on the project. (See SSF No. 3 and the evidence cited in support.) The subcontract between WT and UMI provided that UMI shall have ...

Excerpt: ...e suffered by Plaintiffs. (See Rezke's Separate Statement of Facts ("SSF") Nos. 6-7, 9, 11-12, 14, 28-29, 32, and 36; Plaintiffs' response; and the evidence cited in support. See particularly the declaration of Plaintiff Derrick Gaines at paragraphs 4-10, the declaration of Plaintiff Jennifer Gaines at paragraphs 3-14, and the declaration of David Levin at paragraph 2. See also Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922, holding that th...

Excerpt: ...aintiffs. As to Plaintiffs' First Cause of Action for "Race Discrimination - Disparate Treatment", BART's motion is GRANTED as to each of the four Plaintiffs (Nebiyat Arega, Terry Carney, Darian Caston, and Erik Freeman.) For the purposes of this motion, the Court will assume that Plaintiffs have established a prima facie case of race discrimination, because they are members of a protected class and did not receive a promotion to the Cash Handler...

Excerpt: ...owledges, that is NOT a basis to overrule a demurrer. (See Code of Civil Procedure section 430.41(a)(4).) Plaintiffs cite cases holding that a person or entity providing security services for a business operator, like ANS, owes a duty of care to the business's customers to protect them while they are on the business premises. (See, e.g., Marois v. Royal Investigation & Patrol Inc. (1984) 162 Cal.App.3d 193, 200.) That duty may extend to land adja...

Excerpt: ...ganeh's cancellation of instrument cause of action in his First Amended Cross- Complaint in Case No. RG19-017769. This consolidated action involves, in significant part, a dispute over ownership of real property located at 2524 65th Avenue, Oakland, which Ochoa purchased in 2003. (See RYeganeh's Separate Statement of Facts ("SSF") No. 1 and the evidence cited in support.) On April 30, 2012, the subject property was sold at a trustee's sale. Altho...

Excerpt: ... CACI No. 325 and the cases cited in support.) The Court rejects Flatiron's argument that the Second Cause of Action is based on the same conduct as the First Cause of Action for Breach of Contract. Second Amended Complaint paragraph 43 alleges that Flatiron breached the implied covenant by "repeatedly asserting unsupported claims for additional compensation to which it was not entitled." That allegation does not appear anywhere in the First Caus...

Excerpt: ...had a legitimate, nondiscriminatory reason for the adverse employment action taken against the plaintiff. If the employer does so, the burden shifts back to the plaintiff to present evidence that the employer's proffered reason for the adverse employment action is a pretext for discrimination. (See, e.g., Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354-356.) To establish a prima facie case of employment discrimination, Plaintiff must pres...

Excerpt: ...ntion of the Racketeer Influenced and Corrupt Organization Act (RICO) (18 U.SC. § 1962)", the Sixth Cause of Action for "Aiding and Abetting the Primary Contravention of the Racketeer Influenced and Corrupt Organization Act (RICO) (18 U.SC. § 1962)", the Seventh Cause of Action for "the Racketeer Influenced and Corrupt Organization Act (RICO) (18 U.SC. § 1962) (Respondeat Superior/Derivative Liability)", and the Eighth Cause of Action for "Con...

Excerpt: ...e its contractual right to purchase all of Plaintiff's shares of stock in CSH. After consulting with Palmer, Plaintiff and CSH entered a Stock Redemption Agreement and a Subordinated Promissory Note, both dated October 14, 2011, which together formed an integrated agreement. Under this integrated agreement, Plaintiff agreed to sell all her shares of CSH stock to CSH in exchange for a promissory note in the amount of $3,061.250.28. The note was du...

Excerpt: ...plication for entry of judgment pursuant to the terms of the Stipulation, which the Court granted on December 17, 2020. Defendant seeks to vacate the December 17, 2020 judgment on the grounds that the Stipulation is unconscionable. In order to invalidate an agreement on the grounds of unconscionability, Defendant must show that the agreement is both procedurally and substantively unconscionable. (See Armendariz v. Foundation Health Psychare Servi...

Excerpt: ... on this motion to strike, whether the facts alleged by Plaintiffs in their Amendment to the 2nd Amended Complaint are true. (See Code of Civil Procedure section 437.) If Defendants contend that Plaintiffs do not have standing to bring this action under Code of Civil Procedure section 377.11, they may present evidence in support of that position at a later stage of this case. The Court rejects Defendants' argument that it must grant this motion b...

Excerpt: ...uty was to travel to the homes of AIP's clients and provide therapy services. (See SSF Nos. 3 and 8 and the evidence cited in support.) In addition to being paid for time spent providing therapy services to AIP's clients, Sciutto was paid for nonbillable (i.e., administrative) work, travel time between client locations, and mileage for travel to the client's residences. (See SSF Nos. 6 and 9 and the evidence cited in support.) On the day of Plain...

Excerpt: ...at evidence of communications made during the course of the DRA Process is not precluded by § 1119 et seq. A mediation is a process in which a neutral person facilitates communications between disputants to assist them in reaching a mutually acceptable agreement. (See Evidence Code § 1115(a).) A mediation generally takes one of two forms. In a classic mediation, the mediator meets directly with the parties to facilitate negotiation. (See, e.g.,...

Excerpt: ...have recorded the deed of trust that give rise to Larry Hester's slander of title claim or to have committed any other act that constitutes slander of title. The demurrer by FNTC is OVERRULED. Larry Hester alleges that FNTC recorded a deed of trust executed by Michael Hester as trustor in favor of Ryan Alexander as beneficiary, knowing that Michael Hester had no interest in the subject real property that would allow such a recording. (See First A...

Excerpt: ...s; (3) requests for admissions propounded on the SLC; and (4) depositions of SLC members Matt Niehaus and Spenser Wells, and thee Art.com officers or directors (Dan Mariott, David Quinlivan, and Michael Hogan). When, in a corporate derivative lawsuit, the corporation's SLC files a motion to dismiss the claims (or analogously, a motion for summary judgment), the court applies a two-step test to the motion. (See, e.g., Zapata Corporation v. Maldona...

Excerpt: ... suffered. (See, e.g., CACI No. 400.) Plaintiff has not presented any evidence of the amount of damages, if any, he has suffered as a result of the accident. (See Plaintiff's Separate Statement and the evidence submitted in support.) Plaintiff's failure to present any evidence on a necessary element of his cause of action for negligence precludes the Court from granting his motion for summary judgment. (See Code of Civil Procedure section 437c(p)...

Excerpt: ... "the Trust"). Plaintiffs and Cross-Defendants Calvin Howard and Howard's Earth Boring Services Inc. ("HEBS") do not appear to expressly deny that the Trust is the current title owner of the subject property. Rather, Howard and HEBS contend that the subject property is subject to a pre- existing "Lease Agreement with Option to Purchase Real Estate" ("the RCJ Lease") entered February 1, 2019 between the prior owner of the subject property, Flynn R...

Excerpt: ... pursuant to Code of Civil Procedure § 1094.5, to reverse the July 14, 2020 decision by the Regents' Committee on Privilege & Tenure to deny Petitioner's grievance of his involuntary paid leave pending the investigation. Administrative mandate pursuant to § 1094.5 is available only if the challenged decision resulted from a proceeding in which (1) a hearing is required to be given, (2) evidence is required to be taken, and (3) discretion in the...

Excerpt: ... Kaiser's San Leandro facility at 10:57 a.m.; he was admitted to the emergency room at 11:06 a.m.; he was first seen by a nurse at 11:29 a.m.; and he was first seen by a doctor at 12:04 p.m. (i.e., 67 minutes after he first arrived at the Kaiser facility.) Plaintiffs allege Mr. Arcamone was thereafter given various medical tests later that day, but they were not given or reviewed as promptly as Plaintiffs considered necessary, resulting in perman...

Excerpt: ...at evidence of communications made during the course of the DRA Process is not precluded by § 1119 et seq. A mediation is a process in which a neutral person facilitates communications between disputants to assist them in reaching a mutually acceptable agreement. (See Evidence Code § 1115(a).) A mediation generally takes one of two forms. In a classic mediation, the mediator meets directly with the parties to facilitate negotiation. (See, e.g.,...

Excerpt: ...t school district. Saavedra allegedly told Ostash that Plaintiff was put on administrative leave pending a District investigation that Plaintiff (1) failed to report a sexual assault, (2) created an unsafe environment for students, and (3) lied to a student. As a result, Ostash rescinded a job offer to Plaintiff. The District argues that Saavedra's alleged statement was true, because Plaintiff was put on leave pending a District investigation. Ho...

Excerpt: ... right (north) on Shattuck Avenue. (Id.) Plaintiff was alongside a car driven by Defendant Eduardo Bolivar, which was stopped at a red light. (See AF No. 31 and the evidence in support.) Plaintiff's bicycle was located a few feet to the right of Bolivar's car, closer to the back of his car than the front. (See AF No. 35 and the evidence in support.) When the light turned green, Bolivar began a right turn onto Shattuck, directly into the path of P...

Excerpt: ...69, 774.) Tinsley alleges he owns the subject property and Glaude occupies it without any right to do so. (See Second Amended Complaint, paragraphs 6, 10-13, and 21.) In addition, these causes of action are not timebarred by any statute of limitations, because Tinsley has alleged a continuing trespass by Glaude that persists to this day. (See Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 592-593.) Tinsley's Third C...

Excerpt: ...es, or is doing business, or is situated." Code of Civil Procedure § 394 applies equally to cross-complaints by a city. (See Metropolitan Transit System v. Superior Court (2007) 153 Cal.App.4th 293.) Here, it is undisputed that Flatiron is not a resident and is not "situated" in Alameda County. Flatiron is therefore entitled to transfer venue unless it is "doing business" in Alameda County, as that term is interpreted in the case law addressing ...

Excerpt: ...44, 352.) In ruling on a Special Motion to Strike, the Court engages in a two-step process. (See Equilon Enterprises v. Consumer Cause Inc. (2002) 29 Cal.4th 53, 67.) First, the Court decides whether Defendant has made a threshold 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...

Excerpt: ... Here, the declaration of Shick's Executive Vice President and Chief Financial Officer Blake Day establishes that Shick is a Delaware corporation with its principal place of business in Missouri, and that it has no physical presence or staff in California. Plaintiff has not submitted any evidence disputing that information. But Plaintiff's basis for asserting jurisdiction in California over Shick is not Schick's general contacts with California, ...

Excerpt: ... lawsuit. Plaintiffs have separately sued Defendants in this case. Defendants served Plaintiff Richard Gray with a deposition notice seeking Gray's attendance at deposition and production of all settlement agreements Plaintiffs entered with Karl Storz Endoscopy-America Inc. and/or Karl Storz GMBH & Co. KG in LASC Case No. YCO71502. The deposition was scheduled for July 22, 2020, but was later rescheduled for September 15. Plaintiffs have never se...

Excerpt: ...es, or is doing business, or is situated." Code of Civil Procedure § 394 applies equally to cross-complaints by a city. (See Metropolitan Transit System v. Superior Court (2007) 153 Cal.App.4th 293.) Here, it is undisputed that Flatiron is not a resident and is not "situated" in Alameda County. Flatiron is therefore entitled to transfer venue unless it is "doing business" in Alameda County, as that term is interpreted in the case law addressing ...

Excerpt: ... Plaintiffs' argument that the motion should be denied on the basis that it is untimely. Although this case was filed on May 18, 2020, litigation of the case has been delayed by the COVID pandemic; Plaintiffs did not file their First Amended Complaint until after this motion was filed. The Court is not inclined to find that DE is entitled to intervention as a matter of right pursuant to Code of Civil Procedure section 387(d)(1)(B). In order to de...

Excerpt: ...o requests and order that Defendants be required to issue a notice to their primary business contacts or customers containing a fair summary of the Court's decision. In determining whether to grant a preliminary injunction, the Court considers two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive r...

Excerpt: ...al defect". The sham pleading doctrine precludes a party from filing an amended complaint that attempts to avoid the defects of the prior complaint by either omitting facts that made the previous complaint defective or adding facts inconsistent with those in the prior pleading. (See, e.g. Zakk v. Diesel (2019) 33 Cal.App.5th 431, 447.) The sham pleading doctrine can apply not only to amended pleading filed in the same action, but also to the firs...

Excerpt: ...Liability, and (3) Premises Liability. In her products liability claim, Plaintiff alleges that her injuries were caused by the lotion, oil, and nail polish Defendant used during the manicure, pedicure, and massage. In her premises liability claim, Plaintiff alleges that Defendant's massage chair was defective in some unspecified way and caused her to suffer unspecified injuries. Prior to filing this action, Plaintiff (along with Nana Du, who is n...

Excerpt: ... the clerk's office forthwith so that they become part of the official record for this case. As to Defendants Patrick Sanchez, Ray Rodriguez, Elisa Martinez, Lucia Gutierrez, Bowen Zhang, and Phuong Nguyen, Plaintiff fails to allege any defamatory statements made by any of these individuals. Plaintiff's claim against the District and Defendant Jessica Saavedra (Director of Human Resources for the District) is based on three types of communication...

Excerpt: ...ire Second Amended Complaint based on lack of standing is SUSTAINED, WITH LEAVE TO AMEND. Pursuant to Welfare and Institutions Code § 15657.3(d), the right to bring this action belongs to the Special Administrator of the Estate of decedent Hortense McClenaghan, whom all parties agree is Duane Leonard. If Mr. Leonard declines to pursue this action, then the other persons described in § 15657.3(d)(1)(A)-(C) have standing to do so. Although Plaint...

Excerpt: ...2017. The second dispute is a legal malpractice case that Cantor filed for Malki against The Shepard Law Group ("SLG") on January 2, 2018 (i.e., the lead case in this consolidated action.) Court records reflect that Cantor continued to represent Malki in that action until he filed a substitution of attorney on October 12, 2018. Cantor's motion for summary judgment is based on a single legal argument, i.e., that any malpractice claim based on Cant...

Excerpt: ...131 and the declaration of Plaintiff's expert witness Dr. Fedora Jacobsen, paragraphs 14-16.) The motion is GRANTED as to Plaintiff's Second Cause of Action for Negligent Hiring, Employment, and Training, as unopposed. (See opposition brief at page 8.) The motion is DENIED as the Third Cause of Action for Negligent Supervision. Again, there is a triable issue of material fact as to whether the Hospital negligently supervised its staff and patient...

Excerpt: ... original hearing date of September 23. If RS failed to timely file and serve a responsive pleading, Plaintiff's remedy was to seek entry of RS's default; it is too late to do that now. Moreover, Plaintiff has not shown any prejudice from a purported one court day delay in service of the moving papers. The demurrers to the First Cause of Action for Action for Assault and the Fourth Cause of Action for Negligent Retention and Supervision are OVERR...

Excerpt: ...amone only. The demurrer to the Third Cause of Action for Dependent Adult Abuse is SUSTAINED, WITHOUT LEAVE TO AMEND. Plaintiffs allege Kaiser failed to promptly diagnose Nicholas Arcamone as suffering from a stroke and effectively treat him for that condition. Plaintiffs allege Mr. Arcamone arrived at Kaiser's San Leandro facility at 10:57 a.m.; he was admitted to the emergency room at 11:06 a.m.; he was first seen by a nurse at 11:29 a.m.; and ...

Excerpt: ...ation. (See, e.g., Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) However, Defendant's objections based on the constitutional right to privacy are potentially meritorious. Defendant's employees who have made complaints of disability discrimination have a constitutional right to privacy in their personnel information. (See Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652.) Life Technologies was disapproved by Willi...

Excerpt: ... granted overweight vehicle permit applications for trucks with two tires per axle, rather than four. (See, e.g., First Amended Complaint, paragraph 16 and Prayer for Relief, paragraph 2.) City Ordinance 11568, § 2 at page 2, provides that the City Chief of Police or his/her designee has the authority to issue or withhold permits for overweight vehicles for good cause, which includes a determination by the Chief of Police or his/her designee tha...

Excerpt: ...Code of Civil Procedure section 430.41(a)(4).) The demurrer to the First Cause of Action for Fraud is SUSTAINED, WITH LEAVE TO AMEND. A fraud claim must be pled with particularity, including how, when, where, and by what means the misrepresentations were tendered. (See, e.g., Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) Here, Plaintiff alleges that in August 2016, Defendant M. Subhani made some rather vague representations that ...

Excerpt: ... In 2018, Plaintiffs applied for a loan modification with Ocwen and were approved for a Trial Payment Plan ("TPP"). Plaintiffs allege they made all payments required under the TPP. After the successful completion of the TPP, Ocwen sent Plaintiffs a permanent Loan Modification Agreement ("LMA") which Plaintiffs signed and returned to Ocwen, on two separate occasions. (See Complaint, paragraphs 20-23 and 26.) However, Ocwen thereafter claimed it th...

Excerpt: ...perty for religious purposes, and that therefore the property taxes imposed on that real property by the County of Alameda are unconstitutional and they are exempt from paying the assessed taxes. Plaintiffs have an adequate remedy for any claim that they were improperly assessed real property taxes in the form of a tax refund action pursuant to Revenue & Taxation Code § 5140 et seq. Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal...

Excerpt: ...p.4th 221, 233.) A mere contractual right of payment, without more, will not suffice. (Id.) Plaintiffs' conversion claim is based on the security deposit that Plaintiffs paid to Defendant Oakland Cannery Operations ("OCO"), which Plaintiffs contend OCO was required to refund upon termination of the lease. (See First Amended Complaint, paragraphs 82 and 95.) Plaintiffs do not allege that they had actual possession of the security deposit at the ti...

Excerpt: ...ary, and that he would now know whether it was necessary until Reyes' assistant completed his part of the investigation. (See Complaint, paragraph 54.) There are no further allegations concerning Officer Reyes. Although the body of Plaintiff's Complaint does not identify any causes of action, Plaintiff apparently contends that Reyes' conduct violates some unidentified provision of Welfare & Institutions Code section 15600. The only subdivision of...

Excerpt: ...cused Plaintiff "mishandling" two incidents (a sexual battery report by a student, and a disciplinary meeting with a special education student), and as a result Defendants placed Plaintiff on paid administrative leave from his job as principal at Newark Memorial High School. (See First Amended Complaint, paragraphs 14 and 28.) Defendants subsequently sought Plaintiff's termination due to various other incidents identified in First Amended Complai...

Excerpt: ... 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 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 (2...

Excerpt: ...intiff's handwritten account attached to that report is dated January 20, 2018, i.e., ten months before the accident occurred.) The resulting police report (which is dated February 19, 2019, by reviewer Michael Munoz) concludes that the police are "unable to determine fault; recommend both parties work with their insurance carrier." In his Complaint, Plaintiff alleges that the City's police officer "J. Breden" engaged in a negligent or intentiona...

Excerpt: ...aims and allegations from the First Amended Complaint. The remaining allegations in the First Amended Complaint fall into three categories of claims against Defendant. First, Plaintiff alleges that Defendant engaged in various misconduct in his capacity as an Alameda County district attorney between 2008 and 2010, including refusing to charge jail inmates who had attacked Plaintiff while incarcerated, purportedly allowing those attacks to occur, ...

Excerpt: ...ercation with a security agent at the bus station and that several City police officers were called to the station. After an investigation, the police declined to arrest Morales. Plaintiffs allege that by failing to arrest and/or disarm Morales, the City's police officers were a substantial factor in causing their decedent's death. Public entities are generally not liable for failing to protect individuals against crime. (See Zelig v. County of L...

Excerpt: ...re January 2020; to comply with the mandatory good cause determination requirement imposed by Ordinance 11568; and to prohibit issuance of any overweight permits that allow only two tires per axle. In determining whether to issue a preliminary injunction, the Court considers two interrelated factors; (1) the likelihood that the plaintiff will prevail on the merits of his case at trial, and (2) the interim harm that plaintiff is likely to sustain ...

Excerpt: ...Guild for which he is entitled to restitution (see Second Amended Complaint, paragraphs 80, 123, and 127), and he seeks an injunction preventing Defendants from continuing to (allegedly) misappropriate his intellectual property (see Second Amended Complaint, paragraphs 123 and 127.) Those allegations, if true, may support a claim for Unfair Business Practices. Such a claim can be based on a conduct that affects a single victim. (See The Rutter Gr...

Excerpt: ...y Exhibit B, referenced in Complaint paragraph 12, which is purportedly the Trailer Requirements currently posted on the City's website. The Court infers that Exhibit A to the Complaint may be the same document attached as Exhibit A to Plaintiff's Request for Judicial Notice, and that Exhibit B to the Complaint may be the same document attached as Exhibit 5 to the City's Request for Judicial Notice. Plaintiff alleges that the City has unlawfully ...

Excerpt: .... fka Art.com Inc. in which two additional directors were appointed and a Special Litigation Committee was formed. Plaintiffs have not followed the procedure contemplated by § 709, which requires the filing of an "action" by a shareholder who claims to have been denied the right to vote, and that upon the filing of such a "complaint", and before any further proceedings can be held, the court shall enter an order fixing the date for the hearing f...

Excerpt: ...therine Smith (collectively, "Defendants"), sued her former employer Shannon B. Jones Law Group Inc. ("SJLG") and Shannon Jones for various wage and hour related claims, as well as for constructive termination and other torts arising out of her employment. During the course of litigation of the prior case, Ms. Vella-Andrade turned over to her counsel LV approximately 27,000 pages of records she had collected during her employment at SJLG as poten...

Excerpt: ...dent directors of IW. At that same meeting, the Board approved the establishment of a Special Litigation Committee ("the SLC"), consisting of Niehaus and Wells, to investigate the claims made by Plaintiffs in this case. (See Exhibit A to the Supplemental Declaration of Aviva Gilbert.) The "general rule" under Delaware law (which both parties have agreed governs Plaintiffs' claims) is that "a stay must be granted when a special litigation committe...

Excerpt: ...to the extent that the First Cause of Action may be premised on Trinity's alleged failure to comply with Civil Code § 2923.6, § 2924.10, and § 2924.11 (see, e.g., Complaint at paragraphs 24-26), those statutory provisions apply only to first lien mortgages or deeds of trust. (See Civil Code § 2924.15.) The deed of trust that is the subject of this lawsuit secures a second loan, not a first lien. (See Complaint, paragraphs 5- 7; see also Trini...

Excerpt: ...therine Smith (collectively, "Defendants"), sued her former employer Shannon B. Jones Law Group Inc. ("SJLG") and Shannon Jones for various wage and hour related claims, as well as for constructive termination and other torts arising out of her employment. During the course of litigation of the prior case, Ms. Vella-Andrade turned over to her counsel LV approximately 27,000 pages of records she had collected during her employment at SJLG as poten...

Excerpt: ...amone's claim for loss of consortium, and (3) Plaintiff Bonnie Brown's claim for negligent infliction of emotional distress. Each of these claims should be pled in separate causes of action. Second, as to Bonnie Brown's claim for negligent infliction of emotional distress, Ms. Brown is given leave to amend to allege facts demonstrating how she was contemporaneously aware, at the time she observed her son's interactions with Kaiser's staff, that K...