Excerpt: ...te where the pleading is defective as a matter of law, and the defect cannot be cured by further amendment. Id., at §6:646. However, unless the defect is fatal, the court should not consider the merits of the proposed pleading in deciding whether to grant leave to amend. Id., at §6:644. ...

Excerpt: ...hat burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. “Th...

Excerpt: ...yment actions done in furtherance of a supervisor's managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias.” The Miller court therefore concluded that “official employment actions constituted the evidentiary basis of the harassment cause of action, because the supervisor used those official actions as his means of conveying his offensive message�...

Excerpt: ...de a rough approximation of the plaintiff's total recovery. Additionally, the City has failed to present evidentiary support for its claim that it has no liability because it does not own or control the area on Bean Creek Road where the slide occurred. While the City refers to the declaration of Taylor Bateman as support for this claim, this declaration has not been filed. ...

Excerpt: ...has met its threshold burden of proof that Cross‐Complainants cannot establish their claims that the grab bar was defectively designed or negligently manufactured; or that any alleged defect in the grab bar was a substantial factor in causing Plaintiff to fall. Wingit has done so through the factually devoid discovery responses of these Cross‐Claimants, and by the following evidence : (1) the declaration of Sal Siston, president of Wingit, wh...

Excerpt: ...��; and “all reference to allegations concerning the POBRA”. (Notice of Motion, 2:3‐7). The County asserts that a February 14, 2019 letter from Thornton Kontz, as attorney for the Commission, is “the sole basis” for Petitioner's second cause of action for traditional mandamus and his claim of POBBRA violations. It asserts that this letter constitutes protected activity, because it is a communication made in connection with an official p...

Excerpt: ...ey's MPA as to Portola 5:15‐16, 13:18‐21). Summary adjudication must completely dispose of the cause of action to which it is directed. CCP §437c(f)(1). The prayer on the Fourth Cause of Action for Breach of Written Contract to Defend seeks compensatory damages and attorneys' fees, expert costs, and other litigation costs. The prayer on the Eleventh Cause of Action for Declaratory Relief for Duty to Defend seeks a judicial declaration as to ...

Excerpt: ... records pertaining to matters encompassed by this Agreement with the right to make copies of any or all thereof”. The court further finds that Plaintiff has demonstrated resulting prejudice if injunctive relief is not granted, as it will be unable to meet its reporting obligations and prepare its audit and tax returns. Defendant is ordered to provide the tenant files and financial records it maintained for CFSC within 20 days from this order. ...

Excerpt: ...ant's RJN Exh. 17 pg.262:27 & 263:4‐5 and Exhibit 18 pg. 266 ¶ C) (Branson v. SunDiamond Growers, (1994) 24 Cal. App. 4th 327, 340; Ghalehtak v. Fay Servicing, LLC, (2018) 304 F. Supp. 3d 877, 885; Dunkin v. Boskey, (2000) 82 Cal. App. 4th 171, 181.) In addition, pursuant to the Settlement and Release Agreement signed on 7/20/15 by the Court on behalf of Plaintiffs, Plaintiffs released all claims against Deutsche Bank and Ocwen. (Defendants' R...

Excerpt: ...equired by CCP §472 to obtain leave to amend before filing the SAC which again named STCA. Since STCA had been dismissed, it was a new party for purposes of serving the SAC. Plaintiff was therefore required to serve a summons along with the SAC, and to serve the SAC in compliance CCP §415.10 et seq. CRC 2.25, authorizes electronic service under certain circumstances, but only as to documents which may be served “by mail, overnight delivery or...

Excerpt: ...rovision set forth in Health & Safety Code § §25366(a), which is a defense to this cause of action. Since the defense appears on the face of the TAC, Plaintiff must plead around this defense by alleging the absence of the second condition for non‐retroactivity—that the acts of the Defendants were in violation of existing state or federal laws at the time they occurred. The court in Orange City Water Dist.v Sabic Plastics (2017) 14 Cal. App....

Excerpt: ...existence of a valid arbitration agreement. (see copy of the Purchase Agreement attached to the Brokerage's Petition to Compel Arbitration as Exh. A and also attached as Plaintiff's exhibit A in support of motion for leave to file FACf.). Plaintiffs have not met their burden of proving by a preponderance of the evidence that there is a possibility of conflicting rulings on a common issue of law or fact. Therefore arbitration is ordered among the ...

Excerpt: ...hase of the 17 year old truck. The letter demanded the return of the purchase price and unspecified costs incurred to repair the truck. The demand threatened to file an attached administrative complaint with the DMV, which contained several false statements: that a Carfax report demonstrated that there were six previous owners, when it reported five owners prior to Mr. Piccuta's purchase in January 2014; and that it had been stolen in 2005 and re...

Excerpt: ...ement, the choice of law provision in the Agreement governs the procedural aspects of the arbitration, not whether the Agreement is enforceable. (See, Rosenthal v. Great Western Fin. Securities Corp., (1996) 14 Cal. 4th 394, 409). As to whether the arbitration agreement is a contract of adhesion or unconscionable, much of the contract here complies with Civ. Proc § 1295 and Cal Health & Safety Code § 1599.81, and therefore most of the arbitrati...

Excerpt: ...esponses to Special Interrogatories from Neidin Henard • To Compel Responses to Requests for Production from Neidin Henard The motions to compel responses to Form Interrogatories, Special Interrogatories and Requests for Production from Plaintiffs Joseph and Neidin Henard, and the motion to deem Requests for Admission propounded on Plaintiff Joseph Henard admitted, are GRANTED. Although Plaintiffs served responses to this discovery after this m...

Excerpt: ...ruck. The letter demanded the return of the purchase price and unspecified costs incurred to repair the truck. The demand threatened to file an attached administrative complaint with the DMV, which contained several false statements: that a Carfax report demonstrated that there were six previous owners, when it reported five owners prior to Mr. Piccuta's purchase in January 2014; and that it had been stolen in 2005 and recovered by the police in ...

Excerpt: ... burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Cal Code Civ Proc § 437c(p)(2)) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof…If there is a single su...

Excerpt: ...hed by presenting undisputed facts that prove the contrary of Plaintiff's allegations, as a matter of law. See Weil & Brown, California Procedure Before Trial (TRG), §10:241. In support of their motion Defendants have relied on the testimony of Jared Mitchell as to his conduct before the accident in engaging his left turn signal and checking for traffic before making the left turn into the North driveway of Doc Auto [SSUF 47 ‐67]; the testimon...

Excerpt: ...not patiently listen to flimsy excuses and the claim of ignorance of the law.” (Gillingham v. Lawrence (1909) 11 Cal.App. 231, 234.) Defendant's claim that he did not receive notice of the motions to compel and motion for terminating sanctions is disingenuous given his appearance, and argument in opposition, at all court hearings herein. Defendant had many opportunities to comply with the court's orders and repeatedly chose not to despite havin...

Excerpt: ...ummary adjudication as the Fifth cause of action for violation of CA Business and Professions Code § 17200 is granted. First of all, defendant has not filed an opposition separate statement complying with CCP section 437 c (b)(3), therefore opposition separate statement is stricken for that reason. Moreover even if the Opposition were considered, CA Bus & Prof Code § 10130 states that it is unlawful for any person to act as a real estate broker...

Excerpt: ...ons as arbitrator: Hon. Christopher Cottle (ret.); Hon. Irwin Joseph (ret.); David Hamerslough, Esq.; Hon. Robert Baines (ret); and Hon. James Emerson (ret.). However, the Court invites Defendants to provide five names of proposed arbitrators for consideration by the Court at the time of the hearing of this Petition. The Court will then develop a final list of nominees from the names submitted by both parties. Pursuant to CCP § 1281.6, the parti...

Excerpt: ...not patiently listen to flimsy excuses and the claim of ignorance of the law.” (Gillingham v. Lawrence (1909) 11 Cal.App. 231, 234.) Defendant's claim that he did not receive notice of the motions to compel and motion for terminating sanctions is disingenuous given his appearance, and argument in opposition, at all court hearings herein. Defendant had many opportunities to comply with the court's orders and repeatedly chose not to despite havin...

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Excerpt: ...ERS II, LLC The motion for judgment on the pleadings as to the Third Amended Complaint is GRANTED. Leave to amend is denied in the exercise of the Court's discretion and pursuant to CCP §430.41(e). A bona fide purchaser (“BFP”) for value who acquires its interest in real property without notice of another's asserted rights in the property takes the property free of such unknown rights. A party's status as a BFP renders the foreclosure sa...

Excerpt: ...ff failure to properly serve the 30 day notice. While Plaintiff asserts that the court ignored “inherently ‘incredible' (sic) evidence”, and denied Plaintiff's motion to strike irrelevant evidence, the court does not consider evidence in ruling on a demurrer, and may only look to the four corners of the complaint. The court's ruling was based on the 30 day notice, attached as an exhibit to the FAC, which demonstrated on its face that servic...