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...