Excerpt: ...may consider Plaintiff's non-opposition as an abandonment of any opposition to the arguments raised by Defendants in the motion to strike. Herzberg v. County of Plumas, 133 Cal. App. 4th 1, 20 (2005). Accordingly, the motion to strike is GRANTED WITHOUT LEAVE TO AMEND in its entirety. II. Demurrer to Complaint Defendants additionally filed a demurrer to the complaint, attacking the first cause of action for disability discrimination, second cau...

Excerpt: ...onship to another which induces justifiable reliance by the latter to his prejudice.' Actual reliance and causation of injury must be shown.'” Prakashpalan v. Engstrom, Lipscomb & Lack, 223 Cal. App. 4th 1105, 1131 (2014) (internal citations omitted). “[T]he elements of a repres entation and falsity, are absent from constructive fraud. The fraud consists of the breach of the fiduciary duty of disclosure of relevant matters arising from the ...

Excerpt: ...he breach of contract allegations against it versus Cross- Defendant Tierney is unclear. Cross -Complainant responds that Movant is liable based on the alter ego allegations contained at paragraph 5 of the Cross -Complaint. “In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personal...

Excerpt: ...plaint -inInt ervention by Intervenor Applied Risk Services, Inc., which provided workers compensation insurance to Plaintiff's employer. The Court declines to consider the opposition filed by Defendant The Irvine Company LLC, because Defendant does not have standing t o oppose the motion under Code of Civil Procedure section 437c(p)(2), which provides that the burden shifts to “the plaintiff or crosscomplainant” in opposing a motion for sum...

Excerpt: ...the grounds the Complaint fails to state facts sufficient to constitute a cause of action against Defendant and is “uncertain.” Defendant Endresen The Code provides that unless the grounds for a demurrer are distinctly specified, it may be disregarded. Code of Civil Procedure § 430.60. In the introduction to the points and authorities Defendants argue Endresen is not a proper party because there are no allegations he exceeded the scope of h...

Excerpt: ...rtgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.) Defendants demur to the breach of contract cause of action on the ground it is not sufficiently pled because Plaintiffs cannot allege their performance under the contract and fail to allege any damages resulting f rom any purported breach by Defendants since Plaintiffs were damaged by their own conduct and inability to meet their obligations under the loan received from Defendants. Here, the 4A...

Excerpt: ...parts in their context. If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. [¶] The courts of this state have long since depar ted from holding a plaintiff strictly to the form of action that has been pleaded and 5 instead have adopted the more flexible approach of examining the facts alleged to determine ...

Excerpt: ...rike shall meet and confer in person or by telephone with the party who filed the pleading being attacked to determine whether a resolution may be reached. Code Civ. Proc. §§ 430.41(a), 435.5(a). Here, counsel states he attempted to meet and confer with Plaintiff twice bef ore filing and Plaintiff did not respond. However, Plaintiff asserts in his own declaration that he attempted to call counsel twice to meet and confer and was informed that...

Excerpt: ...tine Tan (Ta n), mMax Communications, Inc., and mMax Communications Pte Ltd. (MCSG) (collectively, crosscomplainants) are granted 10 days leave to amend. Two sets of demurrers by the same set of crossdefendants. As an initial matter, cross -defendants appear to believ e that just because they have retained several different law firms to represent them in this action, they can bring two separate demurrers to the same pleading. No authority provid...

Excerpt: ...of $300 payabl e to Defendant no later than 30 days from the date of the service of notice of this order. California Rules of Court, rule 3.1348, subd. (a) [“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though . . . the requested discovery was provided to the moving party after the motion was filed.]. Moving Defendant to give notice. Motion to Compel Answers to Form Int...

Excerpt: ...ct. CCP §1974( d) says a prevailing buyer “shall recover . . . attorney's fees and costs based on the actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” [Emphas is added] However, CCP §1794(d) does not say the Court has to give Plaintiff's counsel everything they ask for. For claims under the Song -Beverly Act claims, a prevailing b...

Excerpt: ...eclaration that the defendant's conduct fell within the community standard of care, or did not cause or contribute to the injury, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984- 985.) Here, Defendants have met their initial burden. The expert opinion of Dr...

Excerpt: ... the allegation that, b etween March and November, the common area trash dumpsters “create a major nuisance as a source of fruit flies.” (TAC at ¶59) Plaintiff does not assert that the defendants put food or other items in the dumpsters which attracted fruit flies. Instead, pla intiff alleges that “defendants' efforts to abate the nuisance were completely inadequate.” (TAC at ¶66) This requires proof of negligence. “[T]hat proof of ...

Excerpt: ...erits.” A ssociation of 36 Irritated Residents v. Department of Conservation (2017) 11 Cal. App. 5th 1202, 1218. “Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity wi th them.” Ibid. “[I]f a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant ser...

Excerpt: ...e evidenc e/objections before the Court as contained in the papers, the Court rules as follows on Defendant's Evidentiary Objections to Exhibit 2, excerpts from Plaintiff's deposition transcript: Objection Nos. 1 -5: Sustained. Objection No. 6: Sustained in part and Overruled in part. Sustained as to “Several times at the movie theater.” To the extent DOE 2 is answering the preceding question at p. 73:21 -24 “the only time you ever heard hi...

Excerpt: ...mpts state law bears the burden of proving the FAA applies. (See Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 211.) Defendant bears the burden of proving the arbitration agreement is a “contract evidencing a transaction involving [interstate] commerce.” (9 U.S .C. § 2.) “Commerce,” for purposes of the FAA, generally includes employment contracts. (Circuit City v. Adams (2001) 532 U.S. 105, 113, 121) Priority submits evidence that...

Excerpt: ...on is requir ed. Personal service on a corporation is governed by CCP § 416.10, which states in part: A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods: (a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, incl...

Excerpt: ... to litigate their claims among themselves. (Hancock Oil Co. of Calif. v. Hopkins (1944) 24 Cal.2d 497, 508; City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122.) Interpleader is an equitable procedure through which those who face conflicting claims to mone y or property they hold but have no interest in (referred to as “stakeholders”) may compel the claimants to interplead and litigate their claims to the money or property among t...

Excerpt: ...ting defendant is e ntitled to be served by an amended complaint when the amendment is as to a matter of substance and not a mere matter of form. The reason for this rule is plain. A defendant is entitled to opportunity to be heard upon the allegations of the complaint on whi ch judgment is sought against him.' [Citations.] An amendment which significantly increases the amount of damages sought is an amendment of substance which must be served b...

Excerpt: ...tion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure § 436. An “irrelevant matter,” or “immaterial allegation,” means: (1) an allegation that is not essential to the statement...

Excerpt: ... this “procedur al limbo.” (Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, 634 (Gallo) [quoting legislative history].) The Legislature enacted section 1281.97 along with section 1281.98 and amended both sections in 2021. The former provision concerns fees due at the initiation of the arbitration. CCP § 1281.98 applies to fees and costs required during the arbitration to continue the proceeding. (Williams v. West Coast Hospitals, In...

Excerpt: ...d a valid objection under S ection 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, …the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production...” (Code Civ. Pro c., § 2025.450.) “[A]ny party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or i...

Excerpt: ...ation and Production of Documents, Set One to OSL (“Motion 1”); (2) Plaintiff's Motion to Compel Further Responses, etc., filed as ROA 49 on 1/18/24, concerning Plaintiff's Form Interrogatories, Set One to OSL (“Motion 2”); (3) Plaintiff's Motion to Compel Further Responses and Documents, etc., filed as ROA 123 on 2/8/24, concerning Plaintiff's Request for Identification and Production of Documents, Set One to OMG (“Motion 3”); and...

Excerpt: ...ight Writs of At tachment issued on January 17, 2024. “[A]lthough in a motion under section 485.240 the defendant is the moving party, the plaintiff nevertheless continues to have the burden of proving (1) that his claim is one upon which an attachment may be issued and (2 ) the probable vali dity of such claim, th e same burden h e must meet under sec tio n 484.090.” ( Loeb & L oeb v. Beverly Glen Music (1985) 166 Cal.App.3d 1110, 1116.) Def...

Excerpt: ... the event of a disagreement between Owners and in order to break a tie vote, the issue or issues, at the request of any party, shall be submitted to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA) before an ar bitrator selected from the panels of the arbitrators of the AAA. In the event of referral to arbitration, the Owner requesting arbitration shall remit the fee to initiate the ar...