Excerpt: ...able injury. See Jessen v. Keystone Savings and Loan Assoc. (1983) 142 Cal. App. 3d 454, 459. If plaintiff fails to establish either element, a preliminary injunction should be denied. Id. Even if the Court were to assume, for purposes of argument, that Plaintiff had demonstrated a likelihood of prevailing on the merits, Plaintiff here has made no showing that it will be harmed – much less that it will suffer irreparable injury – if the chall...

Excerpt: ...riefing and continued the hearing. The Court incorporates its 1/29/18 Minute Order by reference. The sole remaining issue is whether the Court can consider extrinsic evidence to interpret the location of easements set forth in the parties' Settlement Agreement (the “Agreement”). Shortly after the parties signed the Agreement, Plaintiff filed a “Notice of Settlement of Entire Case.” Now, however, obviously suffering from a case of buyer's ...

Excerpt: ... in California and Nevada that permit out of state depositions. There is no authority for the relief requested in this Motion. Plaintiff to give notice. ...

Excerpt: ...acie showing is one that is sufficient to support the position of the party in question.” Id. at p. 851. A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. Code Civ. Proc., § 437c, subd. (p)(2). The scope of this burden is determined by the allegations of the plaintiff's complain...

Excerpt: ... but not the truth of statements of fact recited within the documents. Evid. Code § 452(h); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1116-1118, as modified (July 24, 2007). By her First Amended Complaint, Plaintiff asserts a single cause of action for rescission based on alleged violations of the federal Truth in Lending Act and Regulation Z. Although Plaintiff alleges “DiTech did not supply the fol...

Excerpt: ... to amend. The demurrer to the sixth cause of action for civil conspiracy is overruled. 4th, 5th COA – Fraud and Negligent Misrepresentation To state a claim for fraud or negligent misrepresentation, a plaintiff must allege, among other things, that the defendant represented to plaintiff that a fact was true and defendant's representation was false. CACI no. 1900; Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166 (in...

Excerpt: ... economic advantage in the Fourth Amended Complaint filed by Plaintiffs Michael P. Schaefer and MPSCHAEFER, LLC. The Court notes that although Mater Dei High School is a moving party on the Demurrer, it is not a Defendant named in the sixth cause of action. Tortious Interference with Prospective Economic Advantage Defendants correctly argue that, to state a claim for intentional interference with prospective economic relations, Plaintiff must all...

Excerpt: ... ruling, or his Complaint will be dismissed.” Plaintiff did not appear at the hearing on 1/29/18. Therefore, the Court ordered Defendants to give Notice of the Ruling. There is no evidence, however, that either Defendant gave notice to Plaintiff as they were ordered to do. Defendants must file a Proof of Service prior to the hearing on 3/26/18 showing that they properly served notice of the Court's 1/29/18 Minute Order on Plaintiff. If Defendan...

Excerpt: ...� 2924(a)(6) Plaintiff alleges that Defendant violated Civ. Code § 2924(a)(b) because it really did not have standing to foreclose due to the late assignment of the deed of trust to a trust that allegedly closed in 2006. The doctrine of res judicata, whether it applies as a total bar to further litigation or as collateral estoppel, rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on ...

Excerpt: ...claim that is not asserted in the Complaint. The facts giving rise to the claim, i.e., the payments totaling $255,000, occurred after Plaintiff filed the initial Complaint. The Complaint frames the issues. Plaintiff did not file an amended or supplemental pleading before bringing this Application. Defendant is ordered to give notice. ...

Excerpt: ...) 242 Cal.App.4th 651, 660 (trial court erred by using contents of judicially noticeable complaints to resolve disputed issue on demurrer). The deposition testimony of Plaintiff and Mr. Lee is not the equivalent of the unequivocal written discovery responses that were subject to judicial notice in Bockrath v. Aldrich Chem. Co., Inc. (1999) 21 Cal.4th 71. Defendant generally demurred on several grounds. The Court rejected Defendant's arguments tha...

Excerpt: ...ugh M is granted pursuant Evidence Code §§ 452(c), (d), and (h). 1st cause of action for violation of the HBOR Civil Code Section 2923.6, part of the Homeowners Bill of Rights (HBOR), helps restrict a practice commonly known as “dual tracking,” whereby financial institutions pursue foreclosure while evaluating a borrower's loan modification application at the same time. See Jolley v. Chase Home Finance, LLC (2013) Cal.App.4th 872, 904. Sect...

Excerpt: ... the loan transaction does not exceed the scope of its conventional role as a mere lender of money.'" (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal. App. 4th 49, 63.) Thus, a lender does not owe a borrower a common law duty to offer, consider or approve a loan modification, or to offer the borrower alternatives to foreclosure, or to handle the loan in such a way to prevent foreclosure and forfeiture of property. This Court recognizes tha...

Excerpt: ...s are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. CRC 3.1324(a). A separate declaration must accompany the motion and must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made e...

Excerpt: ...an agreement can be reached that resolves the objections to be raised in the motion...” and file a declaration with their moving papers, pursuant to Code Civ. Proc. § 435.5(a)(3). The statute became effective on 1/1/2018 and therefore was in effect prior to the filing of Defendants' motion. On or before April 10, 2018, Defendants shall efile and serve a declaration that complies in full with Section 435.5(a)(3), confirming that they have met a...

Excerpt: ...ppression, fraud, or malice. Here, Plaintiff alleges Defendants failed to pay it the funds owed per the lien; but Plaintiff fails to allege any facts supporting circumstances of malice, fraud, or oppression. See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation] Not only must there be circumstances of oppression, f...

Excerpt: ...S should withhold those documents. The Court is not persuaded by either argument. Most of the requests are so broad that the records sought will likely reveal the identity, diagnosis, prognosis, or treatment of a patient. Further, a “warning” that no private documents are sought is insufficient to protect the serious privacy interests involved here. Moreover, in the face of a serious privacy concern, discovery will not be ordered if the infor...

Excerpt: ... declaration stating that the moving party contacted the deponent to inquire about the nonappearance.” Code Civ. Proc. § 2025.450(b)(2). The record reflects that, on 11/2/17 (the same day Hayden answered and cross- complained), Plaintiff served a notice for the deposition of Defendant to take place on 11/13/17. Defendant's counsel emailed in response on 11/2/17, stating that he was unavailable on that date and asking Plaintiff to propose 4 or ...

Excerpt: ...ntrue or misleading advertising.” In the First Amended Complaint (“FAC”), the unfair and/or unlawful conduct alleged by Plaintiffs as the basis of this cause of action was the claimed violations of the HBOR. The only difference in the SAC is that Plaintiff removed the citations to the Civil Code sections comprising the HBOR. However, the wrongful conduct Plaintiff alleges continues to be the conduct that (according to Plaintiffs' prior alle...

Excerpt: ... who frequented the gym. Plaintiff's allegations do not state facts sufficient to state a punitive damages claim as a matter of law because there are no facts to show that 24 Hour Fitness was completely aware of the possible consequences of allowing Bisping in the gym (i.e. that Defendant would attack someone outside of a sanctioned professional match). Further, a “should have known” standard is insufficient for punitive damages. The mere car...

Excerpt: ... overruled in their entirety. Defendants contend the statements at issue (that Plaintiff's employees are “thieves, crooks and liars” and Plaintiff is “going bankrupt” or “going out of business”) were “made in connection with litigation” and “are simply recharacterizations of (or otherwise plainly refer to) SG's allegations against the Verio Defendants in the SG Action.” (Mot. at 16-17.) Plaintiff denies the statements about �...

Excerpt: ...e claim, causes of action, or issues on which it is moving. CRC 3.1350. The court has no power to adjudicate others. Maryland Cas. Co. v. Reeder(1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498. According to their noticed issue no. 1, Defendants seek summary adjudication of Plaintiff's “claim for personal injury damages.” Defendant do not identify any specific cause of action by number...

Excerpt: ... American Title Guar. Corp. (1963) 59 Cal.2d 618, 620. (“In the absence of some special agreement, statutory provision, or exceptional circumstances, attorney's fees are to be paid by the party employing the attorney.”) Plaintiff argues that based on Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4 th 979, its fees are recoverable as a result of its fraud claims. The issue in Robinson Helicopter was whether the economic loss rule a...

Excerpt: ...� 3426– 3426.10; Cacique, Inc. v. Robert Reiser & Co., Inc. (9th Cir. 1999) 169 F.3d 619, 624 (applying Calif. law); Accuimage Diagnostics Corp. v. Terarecon, Inc.(ND CA 2003) 260 F. Supp. 2d 941, 953–54 (applying Calif. law). The CUTSA, at §3426.7(b), preempts common law claims that are “based on the same nucleus of facts as the misappropriation of trade secrets claim for relief.” K.C. Multimedia, Inc. v. Bank of America Technology & Op...

Excerpt: ...o an employee's right to bring a civil action for unpaid wages and overtime show that an employee may sue the Individual Defendants under Labor Code §558.1. The Labor Commissioner's jurisdiction over wage claims is not exclusive; actions may be brought by either the Labor Commissioner or the employee. See Labor Code §1194. Section 558.1 was added to the Labor Code as part of SB 558. This bill made amendments to a number of provisions. These ame...