Excerpt: ...SLAPP statute. Courts resolving an anti-SLAPP motion under Cal. Civ. Code §425.16 must follow a two-step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In the first step (“prong one”), the court determines whether the conduct underlying the plaintiff's cause of action arises from the defendant's constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. This is a threshold issue—i...

Excerpt: ... complainant Tahmineh also alleges assault and battery against cross-defendant Amin, who is alleged to have forcibly kissed her and touched her breasts without consent. Cross-defendants demur to the first amended complaint. Demurrer The elements of a breach of contract action are (1) contract between the parties, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damages. Coles v. Glaser (2016) 2 Cal.App.5th...

Excerpt: ... amended complaint. Breach of Contract A contract for the sale of real property, or an agreement authorizing an agent or broker to purchase or sell real estate, must be in writing. Cal. Civ. Code §1622. Defendants argue the breach of contract claim is defective because it alleges an agreement authorizing an agent to sell real estate but does not allege the agreement was written. While the FAC includes a copy of the parties' “Revocable Living T...

Excerpt: ...order regarding cross-complainant Maree, Inc.'s requests for production of documents. Breach of contract/quasi-contract An unsigned invoice cannot, in and of itself, create a contract when it is not part of an existing agreement. Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1501. A written contract can be alleged by attaching it to the complaint in its entirety or by alleging its legal effect. E.g. Gilmore v. The Lycoming Fire Ins. Co....

Excerpt: ...funds for personal expenses, selectively enforced CC&Rs against her, wrongfully took her property and threatened to report her to the Department of Children and Family Services if she did not pay monies due to the HOA. Defendants Wortman and Bennett filed common-law motions for judgment on the pleadings to plaintiff's third amended complaint. A motion for judgment on the pleadings may be made at any time prior to trial or at trial. Martinez v. Sa...

Excerpt: ...perty and purchased the property in reliance on that representation. The Cohen plaintiffs purchased a nearby property, which they allege includes the landing. The Kaplans cross-complained, alleging adverse possession of the landing, negligent misrepresentation, false advertising and breach of fiduciary duty against Sotheby's, its agents and the sellers. Sotheby's defendants demur on statute of limitations grounds and move to strike punitive damag...

Excerpt: ... contracts agreeing to pay La Peer's usual, customary and reasonable rates for services, then breached by paying the rate allowed under plans for out‐of‐ network care. Amgen moves for summary judgment or adjudication. Evidentiary Objections Defendant's Objections 1, 2 SUSTAINED (lack of foundation); 3 (speculation); 7 (speculation, opinion); 9 (legal conclusion). Other objections OVERRULED. A court determining a summary judgment motion applie...

Excerpt: ...hrough fifth causes of action of Drori's FACC. Second Cause of Action for Failure to Pay Earned Compensation To prevail on a claim for unpaid wages, the complaint must show (1) plaintiff performed work for which they were not properly compensated, or (2) the employer suffered or permitted the work. Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 584-585. Under Cal. Lab. Code §558.1, an employer or their agent can be liable for violations o...

Excerpt: ...ation on statute of limitations grounds and seek attorney's fees and costs under the retainer agreement between RC3 and Mashian Law Group. Cal. Civ. Code §1717 allows a prevailing party to recover fees if the contract so provides. Attorney's fees are recoverable by a nonsignatory when a signatory sues under a contract with an attorney's fees provision as if defendant were a party. Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 819. If...

Excerpt: ...ode of Civ. Proc. §337(a). Partial payment extends the statute of limitations. E.g., Martindell v. Bodrero (1967) 256 Cal. App. 2d 56, 59-60. On demurrer, a court treats plaintiff's interpretation of a contract as correct unless the pleading is “clearly erroneous.” Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. The FAC alleges a contractual deadline of February 26, 2015 for repayment. FAC ¶12. Defendant a...

Excerpt: ...1 and 2 to the Law declaration SUSTAINED (lack of foundation, hearsay), other objections to Law declaration OVERRULED. Other objections OVERRULED. There is a liberal federal policy favoring arbitration, requiring courts to resolve doubts in favor of arbitration. AT&T Mobility, LLC v. Concepcion (2011) 563 U.S. 333, 339; AT&T Tech., Inc. v. Comm Workers of Am. (1986) 475 U.S. 643, 650. A similar policy has been expressed by California courts. Haye...

Excerpt: ...eges various causes of action and seeks to revoke his guarantee of rent. The court previously sustained a demurrer with leave to amend. James demurs to the first amended complaint. First Cause of Action Breach of Contract An agreement that by its terms “is not to be performed within a year from the making thereof” is subject to the statute of frauds and must be written. Cal. Civ. Code §1624(a)(1). If an oral agreement contains an indefinite ...

Excerpt: ...ndant's motion to compel but delayed ruling pending plaintiff's motion to amend the complaint. There is a strong public policy in favor of allowing amendments to pleading. Mesler v. Bragg Mgmt. Co. (1985) 39 Cal.3d 290, 296. Generally, unless there is prejudice to the opposing party or unreasonable delay, it is an abuse of discretion to deny leave to amend. A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1068. Under Broughton-Cruz, cla...

Excerpt: ... defective. Fleetwood agreed to provide plaintiff with $11,260.38 worth of product and moves for a determination of good faith settlement. “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co- obligors . . . shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors[.]” Cal. Code ...

Excerpt: ...advertisement that “contains or is accompanied by a third-party's domain name without the permission of the third party,” “contains or is accompanied by falsified, misrepresented, or forged header information,” or “has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.” Cal. Bus. & Prof. Cod...

Excerpt: ...., who found plaintiff breached the agreement's confidentiality provision. Judge Chernow awarded fees and costs and ordered plaintiff to “decline to make any public statements making such disclosures to confirming the amounts (sic) set for (sic) in the settlement agreement[,]” and “preclude[ing her] from making any publication of her story.” Petition pg. 6. Plaintiff petitions to vacate or modify the award, arguing it violates Cal. Code o...

Excerpt: ...ndant demurs. No opposition has been filed. This matter was continued from September 10, 2021 to allow plaintiff to obtain new counsel. The court has not been notified that plaintiff has retained counsel. No opposition has been filed. Breach of Contract The elements of breach of contract are (1) existence of a contract, (2) performance by plaintiff, (3) breach and (4) damage. Lortz v. Connell (1969) 273 Cal.App.2d 286, 290. Defendant argues plain...

Excerpt: ...emurrer is sustained with leave to amend, the leave to amend is interpreted to mean leave to address issues identified by the demurrer or issues identified by the court in sustaining the demurrer. Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015. Defendants move to strike plaintiff's claims under the sixth, eighth and fourteenth amendment on the grounds they are outside the scope of the court's grant of leave to amend. Plaintiff's first a...

Excerpt: ...dgment does not need to disprove any defense asserted by the defendant. All plaintiff need do is prove each element of the cause of action. WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532. A cause of action for breach of contract is subject to a four-year statute of limitations. Cal. Code of Civ. Proc. §360. The statute of limitations for a breach of contract action accrues at the time of breach, whether or not damages ha...

Excerpt: ...tiff sues for malicious prosecution, false arrest, intentional infliction of emotional distress and negligence. Defendants Amex and Geary's move to compel arbitration pursuant to plaintiff's cardmember agreement. The Federal Arbitration Act applies to any transaction affecting interstate commerce. Allied- Bruce Terminix Cos., Inc. v. Dobson (1995) 513 U.S. 265, 277. Under the FAA, arbitration must be compelled where a valid agreement to arbitrate...

Excerpt: ...l Management Services. Defendant Spielberg allegedly promised Neuro a 50% ownership interest in TMS in exchange for an $80,000 investment and $10,000 loan. Plaintiff alleges it transferred the money but never received the ownership interest. Spielberg also allegedly promised to remove a “buy-back” provision from TMS's operating agreement but failed to do so. Defendants demur to the first amended complaint (FAC) and move to strike the request ...

Excerpt: ...d a demurrer to the FAC with leave to amend as to the concealment and breach of implied covenant of good faith and fair dealing claims. Defendants now demur to those causes of action in the second amended complaint (SAC). A cause of action for fraud must be pleaded with specific facts showing “how, when, where, to whom, and by what means” the alleged misrepresentation was made. Hills Transp. Co. v. Southwest Forest Industries, Inc. (1968) 266...

Excerpt: ...ng the non-compete and non-disclosure agreements void. Defendants move for summary judgment or summary adjudication. Plaintiff's evidentiary objections OVERRULED. Motion for Summary Judgment/Adjudication Defendant moving for summary judgment or adjudication has the initial burden to show one or more elements of a cause of action cannot be established. If defendant makes that showing, the burden shifts to plaintiff to show a triable issue of fact....

Excerpt: ...on plaintiff's alleged defamation in 2010. Defendants filed requests for production and special interrogatories seeking documents and communications by plaintiff regarding Calvert. Plaintiff did not produce responses, arguing relevance and/or unduly burdensome. After an IDC, the court requested briefing. Any party may obtain discovery regarding any matter that is not privileged, “if the matter either is itself admissible in evidence or appears ...

Excerpt: ... to settle for $25,000. Roofing subcontractor DBR Premium and general contractor HMJ Construction oppose. KJE Motion for Approval “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co- obligors . . . shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors[.]” Cal. Code of Civ. P...