Summons and Complaint February 18, 2020 (2024)

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Sandra Kloncz, Probate Document

Aug 06, 2024 |Closed |Probate Document |Probate Document |02-24-383

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Amanda Lindberg vs Alex Ludwig, Mortgage Electronic Registration Systems, Inc.

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ESA Suites - Minneapolis - Fridley vs Corrie Mitchell

Aug 06, 2024 |Open |Eviction (UD) |Eviction (UD) |02-CV-24-4531

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Citibank, N.A. vs Zlamyamen Satia

Aug 05, 2024 |Mueller, Kevin J. |Consumer Credit Contract |Consumer Credit Contract |02-CV-24-4431

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Cavalry SPV I, LLC vs Bao Xiong

Aug 07, 2024 |Open |Conciliation |Conciliation |02-CO-24-2440

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Discover Bank vs Ivan A Kravtsov

Aug 05, 2024 |Mueller, Kevin J. |Default Judgment |Default Judgment |02-CV-24-4426

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LVNV FUNDING LLC vs Tara Nedegaard

Aug 08, 2024 |Open |Conciliation |Conciliation |02-CO-24-2456

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Midland Credit Management, Inc vs Raquel Peterson

Aug 09, 2024 |Open |Conciliation |Conciliation |02-CO-24-2484

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MIDLAND CREDIT MANAGEMENT, INC. vs Machelle V Nadeau

Aug 05, 2024 |Open |Transcript Judgment |Transcript Judgment |02-CV-24-4468

Ruling

ANTHONY ALADJANIAN VS JAGUAR LAND ROVER NORTH AMERICA, LLC, ET AL.

Aug 08, 2024 |24STCV02266

Case Number: 24STCV02266 Hearing Date: August 8, 2024 Dept: 14 #11 Instant Pleading Plaintiff moves to compel JLRNAs responses to Requests for Production, Set One. JLRNA moves for relief from wavier of objections. Decision Plaintiffs motion is DENIED. Plaintiffs request for sanctions is GRANTED in the reduced amount of $658.30 (one hour of attorney time and filing fees). To be paid within 30 days of notice of Court's ruling. JLRNAs motion for relief from waiver of objections is GRANTED. Instant Pleading Plaintiff moves to redeem the requests for admissions propounded on JLRNA admitted. JLRNA moves for relief from wavier of objections. DecisionPlaintiffs motion is DENIED. Plaintiffs request for sanctions is GRANTED.in the reduced amount of $658.30 (one hour of attorney time and filing fees). To be paid within 30 days of notice of Court's ruling. JLRNAs motion for relief from waiver of objections is GRANTED.

Ruling

Marco Corona vs General Motors, LLC

Aug 08, 2024 |23CV01898

23CV01898CORONA v. GENERAL MOTORS PLAINTIFF’S MOTION TO COMPEL REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE The motion is granted in part. Defendant shall provide code-compliant further verified responses and responsivedocuments for request nos. 7, 10, 16-18, 24, 28-30, 47, 87, 89, 90, 92-97, 101, 102, 109, and 110within 21 days of the hearing pursuant to the terms of the parties’ Stipulated Protective Order.Defendant’s further responses shall identify which documents are responsive to which requests.If any documents are withheld pursuant to any privilege, defendant shall also serve a privilegelog. In the event of future discovery motions brought against defendant, the court willseriously consider the imposition of monetary sanctions against defendant and/or counsel, suasponte even if not requested by plaintiff. The court declines to rule on plaintiff’s objections to the Declaration of Sandra Habibsince they are not dispositive to the ruling on this motion.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 4 of 4

Ruling

TBK BANK, SSB VS LITTLE FAT TRUCKING, A CALIFORNIA CORPORATION, ET AL.

Aug 08, 2024 |23PSCV01243

Case Number: 23PSCV01243 Hearing Date: August 8, 2024 Dept: G Plaintiff TBK Bank, SSBs Application for Default Judgment Respondent: NO OPPOSITION TENTATIVE RULING Plaintiff TBK Bank, SSBs Application for Default Judgment is GRANTED in the reduced amount of $2,135,814.76. BACKGROUND This is a breach of contract action. In 2021, Plaintiff TBK Bank, SSB (TBK Bank) entered into five secured loan agreements with Defendant Little Fat Trucking in which TBK Bank agreed to loan a total amount of $2,334,846.71, including $669,132.00 in March 2021, $650,933.45 in April 2021, $80,520.00 in August 2021, $483,717.26 in September 2021, and $450,544.00 in November 2021. In support of the loan agreements, Defendant Xing Wang executed a personal guaranty. In February 2023, Little Fat Trucking allegedly defaulted on its obligations and now owes a total amount of $1,923,248.81, including $573,298.67 on the first loan, $554,039.61 on the second loan, $58,699.55 on the third loan, $348,374.61 on the fourth loan, and $388,836.37 on the fifth loan. On April 26, 2023, TBK Bank filed a complaint against Little Fat Trucking, Wang, Fanuga Express, December World Inc. (December World), WBD Trucking Inc. (WBD Trucking), Flying Space, WL Trucking Inc. (WL Trucking), and ZYG World Inc. (ZYG World), alleging the following causes of action: (1) breach of contract against Little Fat Trucking, (2) breach of contract against Wang, and (3) claim and delivery. On May 12, 2023, the Court granted TBK Banks application for a temporary restraining order and writ of possession against Fanuga Express, Little Fat Trucking, December World, WL Trucking, and ZYG World. On June 17, 2023, TBK Banks process server served December World with substitute service in Yucaipa. On June 20, 2023, TBK Banks process server served ZYG World with substitute service in Chino Hills. On October 4, 2023, the Court entered default against December World and ZYG World after they failed to file a timely answer. On January 22, 2024, TBK Bank dismissed WBD Trucking and Flying Space from the present action. In February 2024, TBK Bank served Little Fat Trucking, Wang, Fanuga Express, December World, ZYG World, and WL Trucking by publication. On April 18, 2024, the Court entered default against Little Fat Trucking, Wang, Fanuga Express, and WL Trucking after they failed to file a timely answer. On June 13, 2024, TBK Bank submitted the present application for default judgment. A case management conference and OSC Re: Default/Default Judgment is set for July 18, 2024. LEGAL STANDARD Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear. A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursem*nts; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court 3.1800.) ANALYSIS TBK Bank seeks default judgment against Little Fat Trucking and Wang in the total amount of $2,366,963.29, including $1,923,248.81 in damages, $410,679.50 in interest, $25,306.57 in attorney fees, and $7,728.41 in costs. TBK Bank also seeks a judgment of possession against all defendants as to one 2022 Peterbilt Model 579, two 2022 Freightliner PT126SLP tractors, one 2019 Freightliner PT126SLP tractor, and one 2020 Kenworth T680. While the court finds TBK Bank has submitted sufficient evidence, the court GRANTS TBK Banks application with the following modifications. First, while TBK Bank requests $25,306.57 in attorney fees, the court calculates reasonable attorney fees as $21,122.49 pursuant to Local Rule 3.214 ($2,890 + $18,232.49 (1% of amount over $100,000 or $1,823,248.81) = $21,122.49). Second, while TBK Bank requests interest calculated at 18% per year, the Complaint only requests an interest rate of 7.45% per year. (Complaint, ¶ 59, 64.) Because a party may not obtain damages in a default judgment that exceed the amount requested in the complaint, the Court will limit interest to the rate requested in the Complaint and calculates interest at a rate of 7.45% from April 7, 2023, to July 18, 2024 for a total of $183,715.05. (Greenup v. Rodman (1986) 42 Cal.3d 822, 826.) Accordingly, court GRANTS TBK Banks application in the reduced amount of $2,135,814.76. CONCLUSION Based on the foregoing, TBK Banks application for default judgment is GRANTED in the reduced amount of $2,135,814.76.

Ruling

MILLER, RICK vs OGRADY, SUSAN

Aug 07, 2024 |CV-23-006807

CV-23-006807 – MILLER, RICK vs OGRADY, SUSAN – Defendant’s Motion for Attorneys’ Fees Based Upon Contract [CCP 1032, 1033.5] – HEARING REQUIRED.The Court is likely to grant the motion at least in part and has factual questions about the other cases and possible apportionment.

Ruling

MEAD vs KOZICK, et al.

Aug 07, 2024 |Unlimited Civil (Fraud (no contract)) |23CV002274

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV002274: MEAD vs KOZICK, et al. 08/08/2024 Hearing on Motion to Compel Responses to Requests for Production of Documents in Department 54Tentative RulingPlaintiff Robert M. Mead’s (“Plaintiff”) motion to compel further responses to Request forProduction of Documents, set one (“RFPs”) is granted as follows.BackgroundThis action involves Plaintiff’s multiple allegations against several defendants arising out of thesale, installation, and alleged injury resulting from Plaintiff’s purchase of a wood stove fireplaceinsert. Plaintiff, in pro per, filed this action on May 10, 2023, alleging various causes of action,including: misrepresentation, breach of express and implied warranties, failure to warn, andproducts liability.This motion concerns Defendants FPI Fireplace Products International LTD andFireplace Products US INC.’s (collectively “Defendants”)[1] May 8, 2024 furtherresponses to Plaintiff’s RFPs. It is the second motion to compel concerning Defendants’responses to the RFPs.On December 13, 2023, Plaintiff served the RFPs on Defendants. Defendants served responsesthereto on February 1, 2024, which consisted solely of objections, including objections based onattorney-client privilege, confidentiality, and trade secrets.Plaintiff moved to compel “verified responses, without objection, to the Requests for Productionof Documents, Set One,” on the grounds “that [Defendants’] objections to the productionresponse [were] without merit, evasive or not in compliance with procedure for withholdingdocuments.” (Not. of Mot. & Mot. 1:27-2:7, Feb. 28, 2024.) Plaintiff also asked for $2,422.50 insanctions.Defendants did not file an opposition. Rather, they filed an “Objection,” which said only thatthey were meeting and conferring with Plaintiff regarding production of the subject documents.(Obj., Apr. 5, 2024.) In the April 18, 2024 Minute Order granting Plaintiff’s motion, the Courtstated: “There’s no authority for Defendants’ objection, and if Defendants contend thatresponsive documents are confidential, it is their burden to move for a protective order.” (MinuteOrder Apr. 18, 2024, at p. 2.) The Court then found the motion to be substantively unopposedand therefore a concession on the merits.Accordingly, the Court granted Plaintiff’s motion but denied sanctions since the motion wassubstantively unopposed. The Court ordered “Defendants [to] serve verified furtherresponses by no later than May 8, 2024.” (Ibid.) Page 1 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV002274: MEAD vs KOZICK, et al. 08/08/2024 Hearing on Motion to Compel Responses to Requests for Production of Documents in Department 54On May 8, 2024, Defendants served unverified responses to the RFPs along with 25 pages ofunidentified documents and a statement of intention to seek a protective order. (Mead Decl. ISOMot. ¶ 10, Ex. F.) The further responses contain objections.DiscussionPlaintiff now “move[s] for an order to compel [Defendants] to serve verified responses, withoutobjection to the [RFPs] and/or sanctions.” (Not. of Mot. & Mot. (“Mot.”) 1:23-2:2.) Plaintiffargues that Defendants “failed to comply with the Court’s Order of April 18, 2024, and theirresponse simply repeat[s] their prior objections.” (Id. at 2:3-7.) Plaintiff requests monetarysanctions in a “reasonable . . . amount” including “the [$60.00] cost of the motion filing fee.” (Id.at 2:8-10; Mead Decl. ISO Mot. ¶ 13.)Defendants oppose the motion, rejoining that they “at all times [have] substantially complied andprovided responses to the discovery including appropriate objections.” (Opp’n 2:1-2.)Defendants contend that the Court “did not order further responses without objections[,]” and ifthe responses were not verified, it was an oversight by counsel which will be remedied by thetime of the hearing. (See, e.g., Defs.’ Resp. to Pl.’s Separate Statement 3:8-15.)The primary dispute raised by Plaintiff’s motion is whether Defendants were permitted to assertobjections in their further responses to the RFPs.On this issue, the Court finds that the objections Defendants asserted with its initial responses tothe RFPs were implicitly overruled when the Court granted Plaintiff’s first motion to compel.Defendants’ initial responses to the RFPs consisted only of objections, and the notice of motionfor Plaintiff’s first motion to compel stated: “The motion will be made on the grounds that[Defendants’] objections to the production response are without merit, evasive or not incompliance with procedure for withholding documents.” (Not. of Mot. & Mot. 2:4-7, Feb. 28,2024.) Further, Plaintiff’s separate statement filed in support of the first motion to compelspecifically addressed Defendants’ objections. The Court granted the first motion and orderedDefendants to serve further verified responses. That order implicitly overruled Defendants’objections; no other basis to grant Plaintiff’s motion existed.For the stated reasons, Plaintiff’s motion is granted. Defendants must serve further, verifiedresponses to the RFPs without objections no later than September 6, 2024, or by a later dateagreed to by the parties in writing.Plaintiff’s request for monetary sanctions is granted in the amount of $60.00, which representsPlaintiff’s filing fee incurred in filing the motion. The monetary sanctions are imposed jointlyand severally against Defendants and their counsel. They shall be paid to Plaintiff no later thanSeptember 6, 2024. Page 2 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV002274: MEAD vs KOZICK, et al. 08/08/2024 Hearing on Motion to Compel Responses to Requests for Production of Documents in Department 54This minute order is effective immediately. No formal order or other notice is required. (CodeCiv. Proc. § 1019.5; Cal. Rules Court, rule 3.1312.)[1] The Court refers to these defendants collectively as “Defendants” for ease ofreference, recognizing that there are additional defendants named in this case.NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf. Page 3 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV002274: MEAD vs KOZICK, et al. 08/08/2024 Hearing on Motion to Compel Responses to Requests for Production of Documents in Department 54A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 4 of 4

Ruling

CATHERINE ELIZABETH GRAHAM VS WESTERN UNIVERSITY OF HEALTH SCIENCES,

Aug 07, 2024 |24STCV11955

Case Number: 24STCV11955 Hearing Date: August 7, 2024 Dept: 54 Superior Court of California County of Los Angeles Catherine Elizabeth Graham, Plaintiff, Case No.: 24STCV11955 vs. Tentative Ruling Western University of Health Sciences, Defendant. Hearing Date: August 7, 2024 Department 54, Judge Maurice A. Leiter Demurrer to Complaint Moving Party: Western University of Health Sciences Responding Party: Plaintiff Catherine Elizabeth Graham T/R: DEFENDANTS DEMURRER IS SUSTAINED WITH 30 DAYS LEAVE TO AMEND. THE MOTION TO STRIKE IS DENIED. DEFENDANT TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. The Court considers the moving papers, opposition, and reply. BACKGROUND On February 1, 2023, Plaintiff Catherine Elizabeth Graham filed a complaint against Defendant Western University of Health Sciences, alleging these causes of action: 1. Fraud: Suppression Of Fact 2. Strict Liability a. Count 1: Ultrahazardous Activity b. Count 2: Nuisance 3. Breach Of Contract 4. Negligence c. Count 1: Negligence Per Se d. Count 2: Res Ipsa Loquitur e. Count 3: Professional Negligence f. Count 4: Negligent Supervision And Performance Of Services 5. Intentional Infliction Of Emotional Distress g. Count 1: Harassment h. Count 2: Trespass To Chattels i. Count 3: Invasion Of Privacy: Misappropriation 6. Products Liability: Conversion On June 12, 2024, Defendant filed a demurrer to the complaint with motion to strike. On July 1, 2024, Plaintiff filed a notice of supplement to the complaint[1]. On July 30, 2024, Plaintiff filed an opposition. On July 26, 2024, Defendant filed a reply. SUMMARY OF ALLEGATIONS Plaintiff applied to Western University of Health Sciences in the 2017-2018 application cycle, having graduated from UCLA and UC Irvine with three majors, a minor, and a masters degree. In the fall of 2018, Plaintiff encountered a grade discrepancy due to conflicting instructions from Naida Jakirlic, College of Optometry instructor, and Tobias Boehm, College of Dental Medicine instructor, leading to a formal grade appeal in April 2019. (Compl. ¶¶ 14-15.) She alleges that in retaliation for her grade appeal, she was placed on academic probation by Ida Chung in May 2019, which she claims was unjust. (Compl. ¶¶ 16-17.) Upon resuming classes in the fall, she faced additional tensions and allegations of unprofessionalism, leading to further academic probation and eventually her dismissal in January 2020 after a Student Performance Committee hearing. (Compl. ¶¶ 18-23.) In February 2020, Plaintiff met with Elizabeth Hoppe, Dean of the College of Optometry, and Andrea Quezada, where she was pressured to either repeat the second year or withdraw. She alleges that this was part of continued harassment and discrimination due to her affiliation with ophthalmology and her ambitions. (Compl. ¶¶ 24-27.) Upon reapplying, Plaintiffs request to resume her studies was denied by Hoppe, who claimed the decision was made by the Admissions Committee. She further alleges covert involvement by Hoppe in subsequent meetings and continued harassment. (Compl. ¶¶ 32-39.) In August 2021, Plaintiff reported a violation of the Family Education Rights and Privacy Act (FERPA) and stalking by Hoppe to the Office of the Provost, David Baron, who acknowledged her intent to transfer. (Compl. ¶¶ 40-41.) Plaintiff alleges that from August 2021 to June 2022, WesternU operated under a cult-like covert culture, engaging in harassment, unauthorized use of her data, and false advertising practices. (Compl. ¶¶ 42-57.) In May 2022, she filed multiple Title IX complaints and reported various incidents, including unauthorized processing of her information by Andrea Quezada and cyber law violations to the Board of Trustees. (Compl. ¶¶ 85-86.) She continued to face retaliation, including being locked out of university facilities and having her withdrawal mishandled. (Compl. ¶¶ 87-98.) In September 2022, she notified the Office of the Attorney General about her complaints, alleging ongoing issues and seeking redress. (Compl. ¶¶ 99-100.) ANALYSIS A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it. (CCP § 430.50(a).) A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist.¿(1996) 50 Cal. App. 4th 726, 732.) The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.) A. First Cause of Action for Fraud The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638.) [F]raud must be pled specifically; general and conclusory allegations do not suffice. . . .This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. (Lazar, supra, 12 Cal. 4th at 645 [internal quotation marks and ellipses omitted].) The law holds plaintiffs to a higher stand where there is a corporate defendant. In that case plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Id. at p. 645; See also Wald v. TruSpeed Motorcars, LLC (2010) 184 Cal.App.4th 378 [applying the heightened corporate pleading standing to an LLC].) Plaintiff alleges that WesternU failed to inform prospective applicants, including herself, about the existence of a covert entity and culture at WesternU and defects in the universitys design and leadership, which would lead to harassment of students pursuing academic rather than cult objectives. (Compl., ¶ 106.) Plaintiff also claims that WesternU representatives provided misleading information that obscured an accurate evaluation of the programs offered. (Compl., ¶¶ 103, 105-106.) The claim is unclear; Plaintiff does not specify whether the claim is for fraudulent concealment, intentional misrepresentation, or both. Plaintiffs allegations also lack the necessary specificity regarding what facts were misrepresented or concealed, by whom, and when. Nor does Plaintiff show Defendant has a duty to disclose details about the enthusiasm of its administration and alumni. Even if the Supplement to Complaint were properly before the Court, Plaintiff does not plead sufficient facts concerning what was allegedly misrepresented, when or by whom. Nor does Plaintiff show a duty to disclose the purportedly withheld facts. B. Second Cause of Action for Strict Liability (Ultrahazardous Activity; Nuisance) Under California law, an activity is considered ultrahazardous if it necessarily involves a risk of serious harm that cannot be eliminated by the exercise of utmost care and is not a matter of common usage. (Lipson v. Super. Ct., (1982) 31 Cal.3d 362; Luthringer v. Moore (1948) 31 Cal.2d 489, 498.) According to California Civil Code § 3479, a nuisance is defined as anything injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property. A public nuisance affects an entire community or a considerable number of persons, while a private nuisance affects an individual's use and enjoyment of their land. (Cal. Civ. Code §§ 3480, 3481.) Defendant argues that the operation of a university with a culture of encouraging a lifelong association with the school does not meet the criteria for ultrahazardous activity, as it does not inherently involve a risk of harm to persons or property that cannot be mitigated through due care. Defendant also contends there is no legal authority to support Plaintiffs allegation that emails, regardless of their frequency, can interfere with the use and enjoyment of land. And Defendant argues that Plaintiff has not demonstrated an injury different from that of the public, as required to maintain a claim for public nuisance. (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal. App. 3d 116, 124.) The Court agrees with Defendants arguments. Plaintiff concedes that her commercial stock at the University of California, Berkeley, and her website Review of Optology, do not involve ultrahazardous activity or nuisance. (Supplement to Complaint, p. 6.) Plaintiff provides no facts showing that the ultrahazardous activities described in her Complaint originated at Western University of Health Sciences. (Supplement to Complaint, p. 14.) As to nuisance, frequent and numerous communications sent to Plaintiffs WesternU email address are insufficient to state a claim. C. Third Cause of Action for Breach of Contract To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Plaintiff fails to allege a specific contractual promise. Courts have recognized the relationship between a student and an educational institution as contractual but have been reluctant to strictly apply contract law to general promises or expectations. (Kashmiri v. Regents of University of California (2007) 156 Cal. App. 4th 809, 824-26.) To state a claim for breach of contract, Plaintiff must point to an identifiable contractual promise that Defendant failed to honor. (Ross v. Creighton University, 957 F.2d 410, 416-17 (7th Cir. 1992).) Plaintiff has not pointed to any express promise made to her by WesternU. Instead, she relies on provisions of the University Catalog and Enrollment Agreement, by which she agreed to abide by WesternUs policies and procedures as outlined in the catalog and WesternUs policies on Network Acceptable Use, Non-discrimination, Anti-Harassment and Anti-Retaliation, Title IX, Tuition Refund, and the Standards of Academic Integrity, Professionalism and Student Conduct. Plaintiff acknowledges that these policies are broad (Compl., ¶¶146, 159) and admits that she was advised in her Application Agreement that"[t]he only document that can be relied upon is the University Catalog for general information purposes, and this document is subject to change at any time. (Compl., ¶27 and Ex. 2, Par. 8.) The catalog itself states that it does not constitute a contract, or terms or conditions of contract between the student, staff, and/or faculty and Western University of Health Sciences. (Compl., ¶142.) Plaintiff has not alleged any promises that would constitute an implied-in-fact contract. None of the statements cited by Plaintiff, such as WesternUs statement in the Network Acceptable Use Policy that it will take appropriate, necessary steps to ensure its ongoing compliance with all State and Federal law, or the statement in the Non-discrimination, Anti-Harassment and Anti-Retaliation Policy that WesternU recognizes that unlawful treatment and harassment, on the basis of an individual's protected characteristic (or status), is a form of discrimination, are specific promises. These are general declarations of the schools values, procedures, and compliance with applicable laws. D. Fourth Cause of Action for Negligence The elements for negligence cause of action are duty, breach, causation and damages. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)¿ Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are limits to the generality with which a plaintiff is permitted to state his cause of action, and the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendants negligence has caused him injury. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527 [Internal quotations and ellipses omitted].) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 [internal brackets omitted].) Defendant asserts that negligence per se is an evidentiary doctrine, not a separate cause of action, which creates a rebuttable presumption of negligence if certain elements are met: violation of a statute, causation of injury, the statutes purpose to prevent such injury, and protection of the injured party by the statute. Even if the presumption applies, Plaintiff still must plead all elements of a negligence cause of action, including the existence of a legal duty of care owed by WesternU. Defendant argues that universities do not have a special relationship with students that imposes an affirmative duty to protect students from harm, except in specific academic settings where physical safety is at issue. (Regents of Univ. of California v. Superior Ct. (2018) 4 Cal. 5th 607, 624-25.) Plaintiff does not allege any foreseeable threat of violence or actual violence in a curricular setting. Nor does Plaintiff dispute that negligence per se is not a separate cause of action. And Plaintiff does not address her failure to allege facts establishing a legal duty of care. Similarly, res ipsa loquitor creates an inference of negligence in certain cases and affects the burden of producing evidence, but it is not a cause of action imposing liability in the absence of negligence. The presumption only addresses causation, and Plaintiff still must plead all other elements of a negligence cause of action, which she has not done. Finally, the elements of a professional negligence cause of action include a duty to use professional skill, breach of that duty, causation, and resulting injury. Defendant argues that WesternU is not a professional but an institution of higher learning and a corporation, and thus cannot be held liable for professional negligence. Plaintiff concedes that WesternU, as defined in the pleadings, is not a person or a professional. (Supplement to Complaint, p. 21). WesternU cannot be liable for professional negligence. (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1509.) E. Fifth Cause of Action for IIED To state a claim for IIED, plaintiff must allege (1) defendants outrageous conduct; (2) intentional or reckless causing of emotional distress; (3) severe emotional distress resulting from the defendants conduct; and (4) causation. (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) Conduct is outrageous if it is of such substantial quantity or enduring quality that an individual in civilized society should not be expected to endure it. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227; see also Cochran v. Cochran (1998) 65 Cal App.4th 488, 494 [stating that the conduct must be so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious. . .].) The pleading must include specific facts that establish severe emotional distress resulting from [a] defendant's conduct. (Michaelian v. State Comp. Ins. Fund (Michaelian) (1996) 50 Cal.App.4th 1093, 1114; see, e.g., Hailey v. California Physicians Service (2007) 158 Cal.App.4th 452, 474-77 (finding facts supporting IIED claim where plaintiff plead resulting depression, anxiety, and physical illness, which manifested as vomiting, stomach cramps, and diarrhea].) The conduct described, such as communicating about academic performance and processing a withdrawal application, does not meet the threshold for extreme and outrageous conduct. Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities are insufficient. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) Regarding harassment, Plaintiff alleges under CCP § 527.6 that she was subjected to excessive communications, coerced into unpaid work, had her commercial interactions disrupted, and had her likeness appropriated. But section 527.6 provides only for a temporary restraining order and injunction against harassment, not monetary damages or other relief sought by Plaintiff. For trespass to chattels, Plaintiff claims that WesternU intruded on her personal computers and networks. Under California law, this requires showing intentional and unauthorized interference with personal property that proximately causes injury. Plaintiff does not allege that the intrusion caused any harm or impairment to her computer systems. As to invasion of privacy: misappropriation, Plaintiff alleges that WesternU posted her photograph on the College of Optometrys Facebook page without permission, identifying her as a member of the class of 2024. The elements of this claim include using the plaintiffs likeness without permission, gaining a commercial benefit or advantage, causing harm, and the use of likeness being a substantial factor in causing harm. (CACI No. 1803; Gionfriddo v. Major League Baseball (2021) 94 Cal. App. 4th 400, 409 (2001).) Plaintiff does not allege that WesternU gained a commercial benefit from using her likeness, which is an essential element of the claim. F. Sixth Cause of Action for Conversion Conversion is the wrongful exercise of dominion over the property of another. (Lee v. Hanley (2015) 61 Cal. 4th 1225 (quotations omitted).) To establish a claim for conversion, a plaintiff must plead: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. (Id. (quotations omitted).) Plaintiffs sixth cause of action for products liability and conversion fails to state a claim. In a products liability case, recovery can be sought based on defects in a product under theories of both negligence and strict liability. (Johnson v. United States Steel Corporation (2015) 240 Cal. App. 4th 22, 30-31 (2015).) Plaintiff does not allege that her academic transcript, which she describes as a unique product, was defective. Instead, she claims that WesternU converted her transcript by fraudulently changing her failing grades for the Spring 2022 semester to W, making the transcript invalid and useless as a reflection of her academic record (Compl., ¶201.) There are no facts to allege conversion, which requires interference with tangible property. Plaintiffs academic transcript is considered information and not tangible property. The failure to accurately reflect her failing grades cannot support a cause of action for conversion. G. Motion to Strike Defendants motion to strike is denied as moot. [1] To the extent Plaintiff wishes to file an amended complaint and name additional parties, she has failed to make a proper motion for leave to amend her complaint. (Code Civ. Pro. §473(a)(1); Cal. Rules of Court, rule 3.1324(a).) Her allegations against those individuals are not before the court.

Ruling

FCS059237 - SUNDT CONSTRUCTION INC V N. CALIFORNIA OFFICE (DMS

Aug 10, 2024 |FCS059237

FCS059237Motion to Compel ArbitrationTENTATIVE RULINGThe Court (Department Seven) self recuses pursuant to CCP Section 170.1(b)(6)(iii).Pursuant to the direction of Judge Stephen Gizzi, Supervising Judge of the CivilDivision, the matter is reassigned and continued to August 1, 2024 at 9:30 a.m.,Department Three.

Ruling

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Aug 08, 2024 |18CV-02285

18CV-02285 OP Development, Inc., et al. v. Scotty PereiraMotion to Extend Attachment on PropertyThe unopposed Motion to Extend Writ of Attachment on Property is GRANTED and thecurrent writ of attachment is extended one year to August 23, 2025.

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