Excerpt: ...th 83, 91. In her opposition brief, Plaintiff argues that the Agreement is unconscionable. For the Court to refuse to enforce an arbitration agreement on the grounds of unconscionability, the party opposing arbitration must demonstrate that the agreement is both procedurally and substantively unconscionable. (See Armendariz, supra, 24 Cal.4th at 114.) Procedural and substantive unconscionability are determined on a sliding scale; the greater degr...

Excerpt: ...se findings "signified a material weakness," and that omitting them would lead to a material misstatement in Defendant's financial statements and thus would violate the law. (See First Amended Complaint, paragraphs 19-20.) Shortly after submitting the audit report, Plaintiff was notified on September 22, 2016 that his position would be eliminated effective December 31, 2016, and he was in fact officially terminated on January 3, 2017. (See First ...

Excerpt: ...th 83, 91. In her opposition brief, Plaintiff argues that the Agreement is unconscionable. For the Court to refuse to enforce an arbitration agreement on the grounds of unconscionability, the party opposing arbitration must demonstrate that the agreement is both procedurally and substantively unconscionable. (See Armendariz, supra, 24 Cal.4th at 114.) Procedural and substantive unconscionability are determined on a sliding scale; the greater degr...

Excerpt: ...o his counsel and use them in this litigation. To the extent that Plaintiffs seek "clarification" as to Chodniewicz's right to review Art.com communications and documents, the Court determines that Plaintiffs are seeking an advisory opinion on an issue that is not yet ripe for adjudication. Plaintiffs have not provided any evidence that they have sought any such communications or documents through an authorized method of discovery, and that Defen...

Excerpt: ...to avoid it. In order to prevail on a claim against a public entity for a dangerous condition of property, a plaintiff must establish that the dangerous condition that caused her injury was either created by the public entity, or that the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the plaintiff's injury to have taken measures to prevent it. (See Government Code § 835 and § 835.2.) Plain...

Excerpt: ...se findings "signified a material weakness," and that omitting them would lead to a material misstatement in Defendant's financial statements and thus would violate the law. (See First Amended Complaint, paragraphs 19-20.) Shortly after submitting the audit report, Plaintiff was notified on September 22, 2016 that his position would be eliminated effective December 31, 2016, and he was in fact officially terminated on January 3, 2017. (See First ...

Excerpt: ...mishandling" certain incidents, which Plaintiff characterizes as "false statements of fact". (See Complaint, paragraph 43.) As currently pled, the Complaint fails to adequately allege a claim for defamation. First, whether Plaintiff "mishandled" certain incidents is not a statement of fact that gives rise to a claim for defamation, but rather is a nonactionable opinion. (See, e.g., Campanelli v. Regents of the University of California (1996) 44 C...

Excerpt: ...ion, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs....

Excerpt: ...the Commercial Property Purchase Agreement ("the Agreement") that is the subject of this action. However, there is a triable issue of material fact as to whether, prior to July 30, 2017, John Toki notified Plaintiff of his intent to rescind the Agreement, thereby preventing and excusing Plaintiff from performing his obligations under the Agreement. (See Plaintiff's declaration at paragraphs 3-5.) Second, John Toki argues that Plaintiff's claims a...

Excerpt: ...F") Nos. 1-7 and the evidence cited in support.) Defendant disputes SSF Nos. 3-5 and 7 because it contends its purchases were governed solely by the terms of its own purchase order, rather than by the terms of FPC's sales order. The terms and conditions of FPC's sales order provides, at paragraph 1, that in the event of any conflict or discrepancy or inconsistency between the terms and conditions of the sales order terms and conditions and the te...

Excerpt: ... Court decides whether the moving party 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 § 425.16(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 par...

Excerpt: ...mishandling" certain incidents, which Plaintiff characterizes as "false statements of fact". (See Complaint, paragraph 43.) As currently pled, the Complaint fails to adequately allege a claim for defamation. First, whether Plaintiff "mishandled" certain incidents is not a statement of fact that gives rise to a claim for defamation, but rather is a nonactionable opinion. (See, e.g., Campanelli v. Regents of the University of California (1996) 44 C...

Excerpt: ...ly move out leased premises when asked to by the Shius. The Shius allege that this promise (made on behalf of himself and Nguyen, see Cross-Complaint paragraph 5) was false, because Dagron and Nguyen had no intention of vacating the premises upon the Shius' request. Dagron and Nguyen argue that their alleged promise to vacate the leased premises is void and unenforceable pursuant to Civil Code § 1953(a)(3)-(4) unless they received the notices re...

Excerpt: ...lini and Keith Bardellini. Plaintiff's Separate Statement repeatedly cites "Bardellini Declaration", without indicating to which of the two Bardellini declarations Plaintiff refers. The declaration of Keith Bardellini simply attaches a copy of Plaintiff's Complaint and of Requests for Admissions, Set One that were propounded on EDP. Nothing in Keith Bardellini's declaration establishes that EDP has breached any contract with Plaintiff. In David B...

Excerpt: ... he had the right to do, or forcing him to do something he was not legally required to do. (See, e.g., King v. State of California (2015) 242 Cal.App.4th 265, 294.) Plaintiff alleges that BART violated Civil Code § 52.1 by intimidating him to vacate his business between June 14 and June 19, 2019, by means of threats that he would be arrested if he did not leave his business premises. But Plaintiff admits that BART mailed a letter of termination ...

Excerpt: ...lini and Keith Bardellini. Plaintiff's Separate Statement repeatedly cites "Bardellini Declaration", without indicating to which of the two Bardellini declarations Plaintiff refers. The declaration of Keith Bardellini simply attaches a copy of Plaintiff's Complaint and of Requests for Admissions, Set One that were propounded on EDP. Nothing in Keith Bardellini's declaration establishes that EDP has breached any contract with Plaintiff. In David B...

Excerpt: ...ntiffs' causes of action, i.e., decedent's death and the resulting financial and emotional harm to Plaintiffs, "was [allegedly] caused by conduct that was directly related to the rendition of professional services" by Defendant to decedent. (See, e.g., Central Pathology Service Medical Clinic Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.) Plaintiffs' claims, therefore, all arise out of the professional negligence of Defendants in their role a...

Excerpt: ...ee Third Amended Complaint Exhibit 2, Statement of Work ("SOW"), at Section 7.) The SOW can be extended only upon the execution of a Change Notice and the mutual agreement of both parties. (Id.) Plaintiff does not allege that the City failed to pay $110,000 for the work it performed pursuant to the SOW. Rather, Plaintiff alleges that it was requested to perform additional work for which it was not paid. In particular, Plaintiff alleges that on Ju...

Excerpt: ...nce documents protected Plaintiff's beneficial interest in the Guild and its affiliated entities equal to those of other Guild partners. That allegation adequately supports these claims. Whether each of those defendants actually made such representations is an evidentiary issue to be decided at a later stage of this case. The demurrer to the Fourth Cause of Action for Concealment is OVERRULED. Plaintiff alleges that defendants Miranda, Eagle, and...