Excerpt: ... award of reasonable attorneys' fees and costs pursuant to Civil Code section 1717, as they are authorized by the Promissory Note at issue in this case. Plaintiff asserts that the Court executed a Judgment in favor of Plaintiff on September 12, 2023; that on March 21 , 2024, its prior motion for attorney's fees was denied without prejudice to Plaintiff re -filing the motion; that the instant motion is timely per the Court's order as it was re -�...

Excerpt: ...lack of staffin g.” He wants to “add additional causes of action and clarify others.” Counsel for the defendants are adamantly opposed to any further leave to amend. They submitted comprehensive declarations that demonstrated that the plaintiff's counsel has not active ly participated in this action, and that this has cost their clients substantial fees and costs. Plaintiff is a gastroenterologist with clinical privileges at the surgicenter...

Excerpt: ...n the demurrer , the court “treats the demurrer as admitting all material facts properly pleaded.” "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 goo d against a demurrer." (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38.) Breach Of Implied Warranties – 1st Cause of Action Plaintiff bases...

Excerpt: ... Jared Peterson, ¶¶45.) This is not an adequate meet and confer. The requirements set forth in the Code of Civil Procedure are not suggestive. Counsel are ADMONISHED to comply with all requirements set forth in the applicable codes and case law, in the future. Despite the la ck of meet and confer, the Court will address the merits of the demurrer. Defendants contend that the FAC which asserts a single cause of action for negligence/premises lia...

Excerpt: ...pe here] [Type here] [Type here] [Type here] [Type here] [Type here] As an initial matter, the Court notes that both parties refer to the Section 17200 cause of action as the eighth cause of action, when it is the ninth cause of action in the FAC. Third Cause of Action for Actual F raud Every element of the cause of action for fraud must be alleged in full, factually and specifically. The policy of liberal construction of pleading will not be in...

Excerpt: ...mages to the plainti ff.” Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (2011). “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor's conduct.” Yari v. Producers Guild of Am., Inc., 161 Cal. App. 4th 172, 182 (2008). Here, the allegations do not sufficiently allege the existen...

Excerpt: ...� 1794.) Civil Code § 1794 (d) requires the attorney fees to be based on “actual time expended” and to have been “reasonably incurred.” The lodestar adjustment method requires the trial court first to determine a lodestar figure based on actual time spent and reasonable hourly compensation for each attorney. (Robertson, 144 Cal.App.4th at 819, citing Serrano v. Priest (1977) 20 Cal.3d 25, 48–49.) For Song–Beverly Consumer Warranty Ac...

Excerpt: ...ing to take an oral deposition of a person who is under the jurisdiction of the court shall give written notice of the deposition. (See Code Civ. Proc., § 2025.220, subd. (a).) “If, after service of a deposition notice, a party to the action or an officer, director , managing agent, or employee of a party, or a person designated by an organization . . ., without having served a valid objection under Section 2025.410, fails to appear for examin...

Excerpt: ...ts On Aug ust 25, 2023, Plaintiff Christopher Wood filed this action. [ROA #2]. On January 31, 2024, Plaintiff Christopher Wood filed the operative First Amended Complaint (“FAC”) against Defendants Christopher Calafiore, CRC Construction & Consulting, Christopher P arr, and Lighthouse Escrow, Inc. [ROA #58]. The FAC alleges causes of action for: • C/A 1: Declaratory Relief (against CRC, Calafiore) • C/A 2: Breach of Written Contract ...

Excerpt: ...Proc. § 1033.5(a)(10)(A), attorney's fees authorized by contract are allowable as costs under CCP § 1032. The “prevailing party” is the party with a net monetary recovery or for whom judgment is entered, or the party who recovers “greater relief” on the contract claim. Code Civ. Proc. § 1032(a)(4); Civil Code § 1717(b)(1). Here, the lease Plaintiff sued on contained an attorneys' fees provision that encompassed the claims for money ma...

Excerpt: ...“The motio n provided for in this section may be made only after one of the following conditions has occurred: … (2) If the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired.” (Code Civ. Proc., § 438, subd. (f)(2).) “The motion provided for in this section may be made even though either of the following conditions exist...

Excerpt: ...elevant is sufficient. Plaintiff's evidentiary objections nos. 2, 3, 4, 5, 7, 11, 12, 13, 15, 16 are sustained; the remaining are overruled. Under Code Civ. Proc. § 437, a party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirm...

Excerpt: ...ED in part and DENIED in part. Subject to the limitations identified below, Defendant shall produce its PMQ(s) for deposition to testify to Category Nos. 1 -5, 10 -12, 14, 19- 21, and 23 at a mutually agreeable time and place on or before July 12, 2024. The remainder of the motion is denied. Any party may obtain discovery by taking in California the oral deposition of any person, including any party to the action. (See Code Civ. Proc., § 2025.0...

Excerpt: ...al notice of Rainbow's motion for summary judgment and SB Financial's Opposition to that motion. The Court grants the request. (Evid. Code § 452(d).) 2) Sufficiency of Notice Code Civ. Proc., § 877.6(a) provides: (1) Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co -obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plain...

Excerpt: ...representation that the party lacks the ability to comply with the demand,” or “[a]n objection to the particular demand.” (Code Civ. Proc., § 2031.210(a).) A statement that the party will comply with the request “shall state that the production, inspection, copying, testin g, or sampling, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the pos...

Excerpt: ...d by a cop y of the answer or other pleading proposed to be filed therein2, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (C ode Civ. Proc., § 473, subd. (b).) The court has wide discretion to grant relief under the statute authorizing relief from a proceeding taken against a party through his or her m...

Excerpt: ...e is containe d in an adhesion contract, that clause in an adhesion contract is enforceable even though the defendant did not actually read it [Citation] as long as the clause provided adequate notice to the defendant that he was agreeing to the jurisdiction cited in th e contract. [Citation.] However, when the clause does not give adequate notice to the defendant that he is agreeing to the jurisdiction cited in the contract, the requisite mutual...

Excerpt: ...ssion to e ither: (1) answer the substance of the requested admission or (2) set forth an objection to the request. Unless a request is wholly objectionable, the party may object to only the part of the request that is objectionable but must answer the remainder. (Co de Civ. Proc. § 2033.230, subd. (a).) The propounding party may move for an order compelling a further response if it contends that an answer to a particular request is evasive or i...

Excerpt: ...s. 128 -139, and FROGG no. 17.1 are sealed. [ROA # 1195 -1202] The Court Clerk is instructed to remove ROA # 1203 from the public docket, and Defendant is directed to file a corrected version of same, but which redacts the confidential information identified in Plaintiff' s Motion. The Court seals the portions of ROA # 1203 that describe or summarize the contents of Exhibits 10, 11, and 15 to the Kelly Declaration. In addition, Exhibits 1, 2, ...

Excerpt: ...he use and e njoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).) “The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.” (Code Civ....

Excerpt: ...en the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt. . .” (Code Civ. Proc. § 1211, subd. (a).) “[T]he affidavit by which a contempt proceeding is instituted, in order to sufficiently support an adjudication of contempt, must state facts constituting the offense, otherwise the court is without...

Excerpt: ... 2) Demurrer to Amended Complaint Defendant moves for an order sustaining the Demurrer to the first cause of action for breach of contract, second cause of action for accounting, and third cause of action for unfair business practices in the Third Amended Complaint pursuant to Code of Civil Procedure section 430.41. 1) Breach of contract: Plaintiff alleges that the parties agreed orally to extend the agreement. Plaintiff has alleged the terms of...

Excerpt: ...ant's d emurrer to the Third Amended Complaint without leave to amend. [ROA 214] A notice of ruling attaching the Minute Order from the Court's ruling was filed by Defendant and served upon Plaintiff on November 29, 2023. [ROA No. 218] A signed order of the same was entered by Court on December 8, 2023. [ROA No. 178] On December 19, 2023, Plaintiff filed her Fourth Amended Complaint, again naming Moving Defendant as a party, in violation of the...

Excerpt: ...leged in the c omplaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452 states, “In the construction of a pleading, for the purpose of determining its effect, its alleg ations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1...

Excerpt: ...e.) But since a similar situation happened last time, the court will rule on the merits. First COA: - Fraud claims must be pleaded with particularity. - “[A] duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.” - Here, although the FACC does not specifically allege that Bianco owed Franklin a duty to discl...