Excerpt: ...t making a prima facie showing that plaintiff cannot establish at least one element of any cause of action, or there is a complete defense to the cause of action. Code of Civil Procedure section 437c(f)(1), (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A defendant can show that an element cannot be established only if its undisputed facts negate plaintiff's allegations as a matter of law and would make it impossible for plain...

Excerpt: ...ure section 128.7. Defendant seeks an order that 1) Plaintiffs not seek further merits-based relief until completing the class notice and opt-out procedures; 2) Plaintiffs submit a proposed class notice; and 3) Plaintiffs and their counsel pay costs of this motion and the opposition to the failed motion for summary adjudication. It contends that Plaintiffs clearly failed to meet their burden on the motion for summary adjudication and that Plainti...

Excerpt: ...y, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense. Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596. Normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice to another party. Hirsa v. Superior Court (Vickers) (1981) 118 Cal.App.3d 486, 490. Prejudice ex...

Excerpt: ... for a demurrer are set forth in Code of Civil Procedure section 430.10. The grounds, as alphabetically identified in the statute, are: (a) the court lacks subject-matter jurisdiction; (b) the person filing the complaint lacks legal capacity to sue; (c) another action pending between the same parties on the same cause of action; (d) defect or misjoinder of parties; (e) the pleading fails to state facts sufficient to constitute a cause of action; ...

Excerpt: ...same cause of action, the prior judgment is a complete bar. Edmonds v. Glenn-Colusa Irr. Dist. (1933) 217 Cal. 436, 445; see also 7 Witkin, Cal. Proc. (5th Ed. 2008), Judgment, sections 334-335, 402. The doctrine applies only between the same parties or where there is “substantial identity” of the parties. Code of Civil Procedure sections 1908, 1910; French v. Rishell (1953) 40 Cal.2d 477, 481; see also, 7 Witkin, Cal. Proc. (5th Ed. 2008) Ju...

Excerpt: ...arty” may seek adjudication of one or more causes of action, affirmative defenses, claims for damages, or issues of duty if the party contends that the cause of action has no merit or that there is no defense to the cause of action, or that an affirmative defense has no merit, or that there is no merit to a claim for damages “as specified in” Civil Code section 3294, or that a party did or did not owe a duty. Code of Civil Procedure section...

Excerpt: ...ivil Procedure section 526(a)(2); Korean Philadelphia Presbyterian Church v. Cal. Presbytery (2000) 77 Cal.App.4th 1069, 1084. The requirement that the injury be “imminent” simply means that the party to be enjoined is, or realistically is likely to, engage in the prohibited action. Korean Philadelphia Presbyterian Church, supra. The irreparable injury will exist if the party seeking the injunction will be seriously injured in a way that late...

Excerpt: ...uit but not of the Settlement. Upon further review of the Declaration of Attorney John Scheppach, the Court is satisfied notice of the settlement was provided to LWDA. Motion is GRANTED. The determination granting the motion and final approval of the Settlement will include the request for attorneys' fees and costs, payment of administrator expenses, and enhancement for named class Member Andrew Pomele, all made as part of this motion. The Court ...

Excerpt: ...right of reentry during the unexpired term of the original lease. See, Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 492, fn.2; Cobb v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, 352; Hartman Ranch Co. v. Associated Oil Co. (1937) 10 Cal.2d 232, 242-243. Assignment or a novation transferring all rights and obligations of the original tenant to a new tenant by agreement between the landlord, o...

Excerpt: ...” The written version of the settlement, a written copy of which Defendant provides in the moving papers, is signed November 28, 2017 and likewise expressly states that the Court is to “maintain jurisdiction in order to enforce the terms of this Agreement.” Settlement section 4.16. When a party seeks to enforce a stipulated settlement entered in writing or orally before the court, the court “may enter judgment pursuant to the terms of the...

Excerpt: ... or there is a complete defense to every cause of action. Code of Civil Procedure section 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A defendant shows that an element cannot be established only if its undisputed facts negate plaintiff's allegations as a matter of law and would make it impossible for plaintiff to show a prima facie case. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597. Once the moving party has met its...

Excerpt: ...wed for loan modification, inducing them to act in reliance on this representation, to Plaintiffs' detriment. AmeriHome argues that Plaintiffs fail to plead this with requisite particularity and Plaintiffs fail to plead the elements of misrepresentation. The elements for negligent misrepresentation are similar to fraud, but without the same level of intent and knowledge: 1) misrepresentation; 2) of a material fact; 3) no reasonable ground for bel...

Excerpt: ...r than the enhanced remedies for elder abuse, solely based on the requirements of Code of Civil Procedure section 425.13. Plaintiff may resolve this issue by seeking to comply with Code of Civil Procedure section 425.13. Requests for judicial notice is denied as to the purported correspondence from the demurrer facilitator but granted as to the documents on file in the Court's record. Demurrer Second Cause of Action: Elder Abuse Welfare and Insti...

Excerpt: ...stice. Collins v. State of California (2004) 121 Cal.App.4th 1112, 1123; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems (1999) 20 Cal.4th 1135, 1145. As stated in Collins, supra, at 1124, [u]ltimately, disqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. The paramount concern must be to preserve public trust ...

Excerpt: ...which support factual assertions which he admits are undisputed and true, such as, e.g., the Ivancovich Declaration, Ex. D. Most of the objections are based on Plaintiff's primary argument that the witness, Ivancovich, is not a custodian or other properly qualified to as a witness, and lacks personal knowledge needed, to authenticate Defendant's records, a core part of Defendant's evidence, and that she lacks personal knowledge of the events she ...

Excerpt: ...tect the constitutional right of petition and free speech and it protects a broad variety of conduct which subdivisions (b)(1) and (e) define as being any “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue.” See also Braun v. Chronicle Pub. Co. (1997) 52 Cal.App.4th 1036, 1044-1045. Subdivision (b)(1) states that the special motion to strike a...

Excerpt: ...or the evidence excluded based on these objections but is based on the assumption that no objections have been sustained. Any “party” may move for summary adjudication. Code of Civil Procedure section 437c(a), (f). For summary adjudication, the “party” may seek adjudication of one or more causes of action, affirmative defenses, claims for damages, or issues of duty if the party contends that the cause of action has no merit or that there ...

Excerpt: ...�abuse of an elder or a dependent adult” as including “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” The Supreme Court in Delaney v. Baker (1999) 20 Cal.4th 23, at 31-32, ruled that elder abuse under Welfare and Institutions Code section 15657 requires a culpability greater than mere negligence and is limited to acts of egregious a...

Excerpt: ...will consolidate the two actions. The parties have, despite the time for further briefing specifically for this purpose, provided the Court with no authority directly and specifically applicable to the key issues raised here, and the Court has not been able to find any. The laws governing care facilities and residential leases do not appear to apply to landlords of those licensees operating the facilities and they also contemplate unlawful detain...

Excerpt: ...oving party has the burden of demonstrating that plaintiff cannot establish at least one element of each cause of action at issue, each claim for punitive damages, an affirmative defense, or each issue of duty addressed in the motion, or there is a complete defense to each cause of action addressed. Code of Civil Procedure section 437c(f)(1), (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A defendant can show that an element c...

Excerpt: ...le in the court's record. Demurrer Second Cause of Action: Elder Abuse Welfare and Institutions Code section 15610.07 defines “abuse of an elder or a dependent adult” as including “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” The Supreme Court in Delaney v. Baker (1999) 20 Cal.4th 23, at 31-32, ruled that elder abuse under Code ...

Excerpt: ...ties as defendants, not subject to the judgment, should Plaintiff demonstrate proper authority and evidence demonstrating to the Court that it may do so and that to do so would be proper. Generally, a court's power to amend the judgment is very limited unless the error in the judgment was “clerical.” Code of Civil Procedure section 473(d); 7 Witkin, Cal.Proc. (5th Ed.2008) Judgment §§67-70. The court “may ... correct clerical mistakes in ...

Excerpt: ...d actual or constructive notice of the condition in time sufficient to have taken preventative measures. See Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439-440. “The existence of a dangerous condition is ordinarily a question of fact but ‘can be decided as a matter of law if reasonable minds can come to only one conclusion.' ” Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347; quoted also in Mixon v. State of Californi...

Excerpt: ...ersuasive and is also persuaded by the circumstances and explanations that at no time did Plaintiffs bring this action for any improper purpose but instead brought it solely in an effort to obtain exactly what they ask for, reimbursement for their alleged expenses. Requests for judicial notice GRANTED with the exception of Defendant's Exhibit B. This is not from a court record and does not appear judicially noticeable. The Court accordingly DENIE...

Excerpt: ...ions and, specifically, the purported copy of the loan agreement which Plaintiff attached to the complaint. These show, in brief, that Beyond the Glory Sports Bar & Grill, Inc. (“the Bar”) entered into the loan agreement, Defendant Monica Lynch (“Monica”), the only Defendant who has not defaulted, signed the agreement and personally as personal guarantor of the Bar's debt, the money was provided to Defendants pursuant to the agreement, De...