Excerpt: ...seized and held until final adjudication at trial." (Lorber Indus. v. Turbulence, Inc. (1985) 175 Cal. App. 3d 532, 535.) Plaintiff seeks a writ of attachment and rightto attach order. A writ of attachment may issued if 1) the claim is for money; 2) based upon a contract; 3) where the amount is readily ascertainable amount not less than five hundred dollars. (Civ. Proc. Code S 483.010(a).) A right to attach order ("RTAO") shall be issued if the c...

Excerpt: ... this ruling. As a preliminary ma
©er, the Court notes that an Opposi
Ÿon was belatedly submi
©ed at almost midnight on Friday, 9/29/23, although it was due on 9/21/23. The Court has thus declined to consider the un
Ÿmely Opposi
Ÿon. On the merits, the primary argument presented in the Demurrer is that each of the claims is
Ÿme-barred, as based on alleged errors or misrepresenta
Ÿons that occurred in mid-2017, which was more than 5 years ...

Excerpt: ...3d 311, 318.) Cause of Action 2: Breach of Contract To allege a claim for breach of contract plaintiff must plead: (1) the existence of a contract; (2) the plaintiff's performance or excuse for nonperformance; (3) the defendant's breach; (4) resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman, (2011) 51 Cal. 4th 811, 821.) Defendant asserts that though the lease agreement is attached to the complaint, it fails to connect the la...

Excerpt: ...or the delay in that counsel was unaware Indigenous People's Day, now in its second year, was a court holiday. The court will therefore consider Plaintiff's oppositions. Defendant's request to take judicial notice ("RTJN") of the Retailer Services Agreement and amendment thereto ("RSA" together) between Defendant and Hitmobile, lnc„ dba T-Mobile ("HIT") is DENIED. Defendant requests the court take notice of the RSA pursuant to Evid. Code S 452(...

Excerpt: ... the cases Parman cites to support her motion inwlved summary judgment proceedings. In addition, none of the cited cases held that where the claims in a declaratory relief action would necessarily be decided in a previously filed underlying action, the declaratory relief action is invalid as a matter of law. Instead, all the cited cases acknowledge the general principle that it is within the court's discretion to refuse to entertain a declaratory...

Excerpt: ... of Randy Mize. In June, 2023 Judge Washington commenced the application process to seek appointment as the Public Defender. On August 3, 2023, Judge Washington was informed that, after consultation with San Diego County Counsel, the County believed that he was ineligible to be appointed as Public Defender, because he had not been a practicing attorney for the year immediately proceeding appointment. (Washington Declaration, 10.) Govt. Cade 52770...

Excerpt: ...r sampling has been directed shall separately to each item or category of item by any of the follovnng: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with th...

Excerpt: ...350(b). It also fails to cogently identify each of the issues to be so adjudicated. The Motion is thus effectively one for summary judgment against Plaintiffs. As noted in the 6/1/23 ruling, Plaintiffs were granted a continuance for this hearing, based on their claim that additional evidence was essential to their Opposition. The Court thus permitted supplemental briefing to "be confined to any new evidence obtained and its significance here." Th...

Excerpt: ...t that might eventually form part of the plaintiffs prtnf need not be alleged." (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 851, 872.) uncertainty: A demurrer for uncertainty under Code of Civil Procedure 430.10(f) will be sustained only where the complaint is so pled that a defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are ...

Excerpt: ...ntentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to the fifth cause of action for Negligent Infliction of Emotional Distress ("NIED"). The NIED claim in the TAC is unchanged from the SAC or FAC. Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct is possible by limiting the right to recover for negligently caused emotional distress to p...

Excerpt: ...ruth of contentions, deductions, or conclusions of fact or aw (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendants demurs to the sixth and seventh causes of action in the SAC. Cause of Action 6: Fraud Plaintiff's fraud cause of action requires allegations showing: 1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) actual and justifiable reliance; and (5) resulting damage. (Chapman v. Skype Inc. (2013) 220 Cal....

Excerpt: ...vides: "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney s fees based on 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." To recover attorney's fees, a preva-ling party bears the ...

Excerpt: ...ion with the Demurrer, which reflects an attempt to present new evidence and argument, was untimely. The Court has thus elected not to consider it here. The Demurrer fails on the merits in any event. It is premised on the argument that the Seventh Cause of Acton fails as a matter of law because B&P Code S 6148(d) states an applicable exception, and that the appellate opinion issued on 11/20/20 found the exception applicable here. But while that e...

Excerpt: ...by February 1, 2022. As responses were served by email on February 2, 2022, they were a day late and Defendant's objections were waived. Defendant asserts the responses were timely but provides no argument or support for that assertion anv,'here in the papers. As to the Interrogatories, interrogatory responses "shall be as complete and straightforward as the information reasonably available to the responding party permits." (Ccyde Civ. Proc., S 2...

Excerpt: ...ant to Code Civ. Proc. S 2023.030, the court may issue terminating, evidentiary, issue, and/or monetary sanctions against a party engaging in conduct that is a misuse of the discovery process. Pursuant to section 2023.010, misuse of the discovery process includes: a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. b) Using a dis...

Excerpt: ...Court will exercise its discretion to consider the opposition. Defendant is admonished to abide by all filing deadlines for all future filings with this Court. Interrogatory responses "shall be as complete and straightforward as the information reasonably available to the responding party permits." (Code Civ. Proc., S 2030.220, subd. (a).) "If an interrogatory cannot be answered completely, it shall be answered to the extent possible." (ld., subd...

Excerpt: ...protected speech or petitioning; and 2) lack even minimal merit. (Navellier v. Sletten (2002) 29 C4th 82, 88-89 ("Navellier"); Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733.) "Only a cause of action that satisfies both prongs of the ant-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal. 4th at 89.) "As us...

Excerpt: ... has been palpably and manifestly abused. The policy of the law is that controversies should be heard and disposed of on their merits." (Berman v. Klassman (1972) 17 Cal. App. 3d 909.) "'Section 473 of the Code of Civil Procedure is a remedial provision, and is to liberally construed so as to dispose of all cases upon their substantial merits and to give to the party claiming in good faith to have a substantial defense to the action an opportunit...

Excerpt: ...late, on October 16, 2023. The opposing papers do not set forth good cause for the tardiness, nor is there any explanation whatsoever for counsel's neglect. (See Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625, disapproved on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019.) The Court thus exercises its discretion to refuse to consider the late filed paper. (Cal. R. Ct. Rule 3.131W(d).) The Court finds good...

Excerpt: ...ppears that when Mr. Park entered an appearance at the ex parte on 10/2/23 and filed an opposition to the ex parte on 9/29/23, he did so only on behalf of the individual defendants, Hyejin Yu and Michaela Kim. Accordingly, the motion is DENIED as to Liberte Hair Salon. With regard to the request for a preliminary injunction, "[t]he general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of t...

Excerpt: ...urt can take judicial notce of the records in the pending action, or in any other action pending in the same court or any other court of record in the U.S. (Evid. Code 5452(d)) Accordingly, the Request for Judicial Notce is GRANTED. DEMURRER A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 4W.) "Because a demurrer ...

Excerpt: ... straightforward as the information reasonably available to the respond-ng party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent (c) If the responding party does not have personal knowledge sufficient to fully to an interrogatory, that party shall so state, but shall make a reasonable and gtncl faith effort to obtain the information by inquiry to other natural persons or organizations, except whe...

Excerpt: ...baseless and pursued in bad faith, with defendant Interpersonal Management ("1M") to be awarded the same sum, jointly and severally, per its separate motion filed on the same statutory claim. The Lanham Act at 15 U.S.C. 1117(a) provides in pertinent part: "The court in exceptional cases may award reasonable attorney fees to the prevailing party." The parties do not dispute that those "exceptional circumstances" can be found when the non-prevailin...

Excerpt: ...l.) It is unclear from the Complaint how Defendant made harmful or offensive contact with Plaintiff's person. The demurrer to the first cause of action is thus SUSTAINED with 20 days leave to amend. Third Cause of Acton — IIED: Plaintiff fails to plead extreme and outrageous conduct directed at Plaintiff. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; Chang v. Lederman (2009) 172 Cal.App.4th 67, 86.) The allegations that Defendant fa...

Excerpt: ...obable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 cal.3d 904, 914; sosinsky v. Grant...

Excerpt: ...Jacobson Declaration, objections to 7b, 7f, and 9 are SUSTAINED. The remainder are overruled. This action concerns a single cause of action for professional negligence. "The elements of a cause of action for legal malpractice are (1) the existence of an attorney-client relationship or other basis for duty; (2) a negligent act or omission; (3) causation; and (4) damages." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 863.) "'Proof of legal...

Excerpt: ...ecovering damages from the hirer of the contractor for workplace injuries. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) An exception to the Privette doctrine was set forth in Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 and is based on the concept of negligent exercise of retained control. "[A1 hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained con...

Excerpt: ...d a series of Case Management Conferences were held and on 10/28/22, the case was set for a Court Trial on 4/15/24. All discovery and motions, including experts, are therefore tied to the new trial date of 4/15/24. Noor Must Serve Proper Verifications The "verification" used by Noor appears to be a form used by counsel to cover several types of litigation and documents where the user just has to check the boxes. For example, the form has a place ...

Excerpt: ... was given only to file a FAC against Tara Materials, Inc. (ROA 90) At the 2/2/23 hearing on the Motion to Quash, the matter was fully briefed, oral argument held, and the matter submitted. The Court then issued a final order quashing service based on a lack of personal jurisdiction over Mr. Twite as asserted in the Motion. This second action against Mr. Twite on the same claim is barred by res judicata. Direct estoppel arises when there is a sec...

Excerpt: ...ent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party." (Civ. Proc. Code S 2030.220.) For moving to compel further responses (in relevant part): "(a...

Excerpt: ...gligence. As OCSSA is a public entity, liability for negligence must be authorized by statute. (Branch v. State of Cal. ex. rel. Department of Transportation (1984) 159 Cal.App.3d 340, 343; Gov. Code S 815.) Plaintiff's complaint alleges three statutory bases for OCSSA's liability—Government Code sections 815.2, 815.4, and vicarious liability for the acts or omissions of its employee or independent contractor under sections 815.2 and 815.4, and...

Excerpt: ...ppearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent c...

Excerpt: ... of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) If the defendant meets his burden, then the plaintiff must show the "challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiffs showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment." (Bara', supra, 1 Cal.5th at 396.) The ...

Excerpt: ...ence may be drawn from various sources, but the evidence relied upon must "speak to the court's concern whether the person in question is able to meaningfully take part in the proceedings." [Citation.] California law adopts a broad view of relevance, and a state court of appeal has emphasized a trial judge's "duty...to clearly bring out the facts." ' " (ld.) "The role of the guardian ad litem is to protect the incompetent person's rights in the a...

Excerpt: ...nc. v. Cnty. of San Mateo (1995) 12 Cal. 4th 1110, 1117—18; Prue v. Brady Co./san Diego (2015) 242 Cal. App. 4th 1357, 1384-85.) The court finds the Complaint fails to state suffcient facts to constitute Plaintiff's three current causes of action ("COA") under the Song- Beverly Act ("Act") as the vehicle in question (used 2018 Chevrolet Camaro with VIN: IGIFB3DX4J0131584 ("Vehicle")) was purchased used. The Act applies only to purchases of new ...

Excerpt: ...e injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued. [Citation.) Weighing these factors lies within the broad discretion of the superior court." (Smith v. Adventist Health Sys./W. (2010) 182 Cal. App. 4th 729, 749.) Symple asserts that it is likely to succeed on its two causes of action for Misappropriation of Trade Secrets and Unfair Competition. under the California ...

Excerpt: ...rly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 952, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) uncertainty A demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) will be sustained only where the complaint is so poorly pled that a defendant cannot reasonably respond—i.e., he or she cannot re...

Excerpt: ....) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.). Cause of Acton On...

Excerpt: ...68, fn. 1, citing Evid. Code, 5452, sbud. (c).) "Except as otherwise provided by statute...[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Gov. Code, 5815.) "In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and ...

Excerpt: ... demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint byway of fact or theory of recovery. (Palm Springs Villas II Homeowners Inc. v. Parth (2016) 248 Cal.App.4th 268, 290) Here, Plaintiff's Second Cause of Acton for Negligent Maintenance is duplicative to her Eighth Cause of Action for Negligence. Both causes of action allege problems with waterproofing, mailbox, lockin...

Excerpt: ...clude “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or the unavailability of a party, counsel, or expert due to death, illness or other excusable circumstance. The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a cont...

Excerpt: ...f California, Inc. (1993) 14 Cal. App. 4th 612, 616.) Here, the causes of action pled against Cross- Defendant are not so unclear as to render them indecipherable. Accordingly, the demurrer based on uncertainty is OVERRRULED. First Cause of Action - Negligence Cross-Defendant again contends the negligence cause of action is barred by the Economic Loss Rule, as this action is purely a contractual dispute. The economic loss rule ordinarily prevents...

Excerpt: ...raw v. Cal. Physicians' Service (2000) 81 Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (G...

Excerpt: .... U.S. Bank Nat'l Ass'n (2012) 209 Cal.App.4th 182, 199.) The court's sole function on a motion for summary judgment is issue-finding, not issue- determination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” (C.C.P. § 437c(c) (emphasis added); see Zavala v. Arce (1997) 58 Cal.App.4th 915, 926 (citing text); Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 (c...

Excerpt: ...es agreeing to produce (“Motion 2” below); (3) Plaintiff's Motion to Compel Further Responses to Requests for Admission (“RFAs”) Set One, for RFA 14 and to deem the RFAs admitted (“Motion 3” below); (4) Plaintiff's Motion to Compel Further Responses to Special Interrogatories (“SROGs”) Set One, for SROG Nos. 1-6, 21-24, 30-31, 33, 36, and 37-41 (“Motion 4” below); and (5) Plaintiff's Motion to Compel Further Responses to Form ...

Excerpt: ...Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 5...

Excerpt: ... of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  If the defendant meets his burden, then the plaintiff must show the “challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a fav...

Excerpt: ...a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  If the defendant meets his burden, then the plaintiff must show the “challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.”  (Bara...

Excerpt: ... Elder Abuse. (Opp at 1:12-13) Plaintiffs also concede the propriety of Carol Wilson's demurrer to the SAC. Accordingly, the demurrer is SUSTAINED as to the 2nd and 4th causes of action and as to the claims made against Carol Wilson. The remaining issue in the demurrer is the Negligence cause of action asserted by Thomas and Jailyn Kramer (“Plaintiffs”) against the HOA. The issue is whether the Plaintiffs as tenants have standing to assert th...

Excerpt: ...e, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (199...