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...