Excerpt: ...ly the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have...

Excerpt: .... 2 on February 16, 2021. Plaintiff filed two other Doe amendments the same day, naming Los Angeles SMSA Limited Partnership as Doe No. 3 and Bechtel Corporation as Doe No. 4. The court (Judge Bauer) overruled the American Tower defendants' objections to plaintiff's Doe amendments in a May 20, 2021 order. The court has nevertheless read and considered the American Tower defendants' objections in connection with its consideration of the instant mo...

Excerpt: ...en of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff ne...

Excerpt: ...ctual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferre...

Excerpt: ...ended cross- complaint. For the following reasons, (1) Scricca's demurrer to the second cause of action is overruled; (2) Elias's and Eldessouky's demurrers to the second cause of action are sustained; (3) Elias's and Eldessouky's demurrers to the third cause of action are sustained; and (4) Eldessouky's demurrer to the fourth cause of action is sustained. In ruling on a demurrer, a court must accept as true all allegations of fact contained in t...

Excerpt: ...Opposition. Burden of Proof: Code Civ. Proc., § 437c (p) (2) provides that “A defendant or cross- defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts t...

Excerpt: ...f Directors (the “Director Defendants”) and the CCCA as nominal defendant. Plaintiff alleges the Director Defendants violated the CCCA's CC&Rs when they approved a revised fine and fee schedule for CCCA members who fail to timely construct custom homes in the Crystal Cove community. Specifically, the Director Defendants adopted a fine policy that potentially imposes a $10,000 per month fine for custom lot owners who fail to construct a reside...

Excerpt: .../05/19. The court's detailed order explains the reasons for that ruling. See id. Despite that order, Plaintiff has re-alleged the first, second, and third causes of action in his Second Amended Complaint. No applicable legal authority permits Plaintiff to do so on this record. Defendant's motion to strike the first, second, and third causes of action in Plaintiff's Second Amended Complaint is granted. Cal. Civ. Proc. Code § 436 (court may strike...

Excerpt: ... (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of th...

Excerpt: ...nk v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the suffi...

Excerpt: ...rtition and sale of a residential property known as 108 27 th Street, Newport Beach, California (the Newport Property). Complaint ¶ 5. On September 21, 2020, Rod filed a cross-complaint against Randy alleging fraud, negligent misrepresentation, breach of fiduciary duty, and unjust enrichment. Rod also seeks an accounting. Rod alleges that Randy mismanaged and engaged in malfeasance regarding the Newport Property and a limited liability company (...

Excerpt: ...mary adjudication of Plaintiff's claim for intentional infliction of emotional distress is granted. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter...

Excerpt: ...e issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. Cal. Civ. Proc. Code § 484.090(a)(1)-(4). A court may order the issuance of a writ of attachment only if the plaintiff's claim has probable v...

Excerpt: ...ntiff's sale of Defendant's products. Plaintiff alleges that these complaints caused Amazon to suspend Plaintiff's Amazon seller's account, but that Defendant ultimately asked Amazon to withdraw Defendant's complaints against Plaintiff because Plaintiff and Defendant had resolved their dispute. Plaintiff alleges that its Amazon seller's account was suspended from June 13, 2019 to July 4, 2019. Plaintiff alleges that Defendant's complaints against...

Excerpt: ...lenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider fact...

Excerpt: ...iciency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleg...

Excerpt: ...n-profit organization that has twenty-five full-time members and provides assistance to disabled veterans and their widows and families. Plaintiffs allege that on January 29, 2019, Defendant, an attorney and Association donor, sent an email to Plaintiffs and four other individuals in which Defendant made statements Plaintiffs contend were false and defamatory. Plaintiffs allege that they had never heard of Defendant or had any contact with him be...

Excerpt: ...n report has been prepared on the surveillance. Defendant objected to both of these interrogatories on attorney-client privilege and attorney work product grounds. Plaintiff contends that Suezaki v. Superior Court (1962) 58 Cal.2d 166, requires Defendant to produce any materials responsive to these interrogatories. Suezaki explained that the absolute work product protection of any writing reflecting an attorney's impressions, conclusions, opinion...

Excerpt: ... is no defense' thereto. [Citation.]” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Cal. Code Civ. Proc. § 437c(p)(1). “Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant . . . may not rely upon the mere allegations or denials of its pleadings to show that a triab...

Excerpt: ...e for summary judgment or, in the alternative, summary adjudication against Plaintiff Vicki Markham's Complaint. Plaintiff alleges one cause of action for dental malpractice. Plaintiff did not file an opposition. For the following reasons, Defendants' motion is granted. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demon...

Excerpt: ..., Inc., Life Care Centers of America, Inc., and Forrest L. Preston (together, “the Life Care Defendants”) oppose, which they are permitted to do. See Columbus Line, Inc. v. Gray Line Sight-Seeing Cos. Associated, Inc. (1981) 120 Cal.App.3d 622, 630-31. For the following reasons, Mission Hospital's motion is granted. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to ne...

Excerpt: ...and all cell phones in YOUR possession, custody or control that you [sic] have ever used to communicate with anyone since July 14, 2015 through the present.” Plaintiff testified at her deposition that Defendant Grueser bought her an iPhone 6 Plus and that she used that phone to communicate with Grueser at the time of her sexual relationship with Grueser. Wojcik Decl. Ex. B (Ramirez 09/27/19 Depo. at 171:5- 23). Plaintiff testified she gave that...

Excerpt: ...l allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred fr...

Excerpt: ...e affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the com...

Excerpt: ... contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because...