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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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...