Excerpt: ...d to mediation and binding arbitration with Plaintiffs pursuant to the Residential Purchase Agreement and Joint Escrow Instructions (“PSA Agreement”). (Complaint, Ex. A, at ¶22) There is no dispute that the mediation and arbitration provision in the PSA Agreement covers Plaintiffs' claims and was signed by Plaintiffs and Defendant. (Id.) Thus, the burden shifts to Plaintiffs to demonstrate the arbitration agreement is not enforceable. (Buckh...

Excerpt: ...ants' evidence, Plaintiff concedes having signed the arbitration agreement and, in fact, authenticates a copy of the agreement himself. (¶21-¶22 of Dawson Declaration and Exhibit A thereto). Attached as Exhibit A to the Dawson Declaration is a “Dispute Resolution Agreement” wherein Plaintiff and Defendant Fletcher Jones Motor Cars, Inc. agreed “to utilize binding individual arbitration to resolve all disputes that might arise out of or be...

Excerpt: ...alifornia law – instead it has claimed only that “in the interests of judicial economy and to focus and streamline this matter” it “will not seek to enforce the restrictive covenants” at issue. (Chang Decl., Ex. 2.) That concession does not render the Motion moot. Nor does the evidence reflect that the Illinois action has been dismissed with prejudice, or that Affinitiv has stipulated that the provisions at issue are invalid under Calif...

Excerpt: ... A judgment in that action will not affect the present lawsuit. Thus, C.C.P. § 430.10(c) is inapplicable. In addition, Defendant failed to show that there is a defect or misjoinder of parties such that C.C.P. § 430.10(d) would apply. There are no allegations that a necessary party is missing or that plaintiff or defendant are improperly joined. Thus, C.C.P. § 430.10(d) is inapplicable. There is also no evidence that Plaintiff has engaged in an...

Excerpt: ...re granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695, internal citations and quotation marks omitted.) Also, “[a] demurrer for uncertainty shou...

Excerpt: ...judgment must “show” that either one or more elements of the “cause of action … cannot be established”, or there is a complete defense to that cause of action. (CCP § 437c(p)(2).) Once defendants meet this burden, the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense. If plaintiff is unable to do so, defendants are entitled to judgment as a matter ...

Excerpt: ...ed as a cross-defendant. (See TACC at 1:8 and p.6 and CRC 2.112.) The moving brief does not cite to any recognized statutory basis for demurring to miscellaneous allegations within a pleading. (See Dmrr p. 1, Moving Mem. p. 3-4 and compare CCP 430.10 and CRC 3.1320(a), Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274 (demurrer challenges a cause of action, not “portions”...

Excerpt: ...o judicial notice. See, CCP § 437, subd. (a). There is no request for judicial notice. Thus, the facts contained in the Opposition and supporting documents are disregarded to the extent that they go beyond the four corners of the FAC. Punitive Damages Pursuant to Civil Code § 3294(a), a plaintiff may seek punitive damages for “oppression, fraud, or malice.” Civil Code §3294(c) defines “malice” as conduct which is intended to cause inju...

Excerpt: ...�� produced, the record before the court does not establish that this disclosure was, or reasonably should have been, apparent to the attorney for Plaintiffs in the circumstances. This conclusion is based on many factors, including the very nature of the records requested in the subpoena (directly requesting the records produced), that the records were then released by a witness who is an attorney, that some information in the production reasonab...

Excerpt: ...court order to provide discovery.” CCP § 2023.030 subdivisions (a)-(c) authorizes the court to impose monetary, issue, or evidentiary sanctions against anyone engaging in conduct that is a misuse of the discovery process. CCP § 2023.030 subdivision (d) permits the court to impose a terminating sanction. CCP § 2023.030 subdivision (e) provides, “The court may impose a contempt sanction by an order treating the misuse of the discovery proces...

Excerpt: ... 2009, [defendant] promised [plaintiff], via e-mail and a telephone call, she would promptly prepare and deliver trust documents…”) and Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 838 (“Hospital has … clearly pled facts that show how the statements were made (directly to agents of Hospital through telephone calls and written letters faxed to Hospital)…”).) In other respects, the demurrer's a...

Excerpt: ...ier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.” (Id. at 574). “The defendant may assert the pending action as a bar either by demurrer, or, where fact issues must be resolved, by answer.” (Id.). “In either case, where the court determines there is another action raising substantially the same issues between the same parties, it is to enter the interlocutory judgm...

Excerpt: ... To be sure, fraudulent intent must often be established by circumstantial evidence…. if plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury.” (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31; see Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183.) However, this is generally a matter of proof and evidence...

Excerpt: ...ation of territorial market areas and to provide security and to clarify the relations between manufacturers and their nonemployee sales representatives. Civ. Code § 1738.10. “The Legislature intended [the Act] to safeguard only nonemployee ‘middle-men' sales representatives dealing with wholesale goods.” Reilly v. Inquest Tech., Inc. (2013) 218 Cal. App. 4th 536, 546. The Act “specifically exclude[s] from coverage salespersons and retai...

Excerpt: ...f. (¶21-¶22 of Dawson Declaration and Exhibit A thereto). Attached as Exhibit A to the Dawson Declaration is a “Dispute Resolution Agreement” wherein Plaintiff and Defendant Fletcher Jones Motor Cars, Inc. agreed “to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to [Plaintiff's] employment by the Dealership.” (See §1 of Exhibit A to the Dawson Declaration). Additionally,...

Excerpt: ...eas. Those are 1) How much money in lost earnings Plaintiff attributes to the underlying facts of this lawsuit; 2) How much money Plaintiff did not make because of the underlying facts of this lawsuit; 3) Instances of inappropriate sexual contact or conduct prior to Plaintiff dating Defendant; 4-6) If Plaintiff was inappropriately touched by a certain people; and 7-8) If Plaintiff has dated anyone since her relationship with Defendant. Further qu...

Excerpt: ...a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set fo...

Excerpt: ...s and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. . . . (b)(1) The court, upon notice and motion by a party, shall determine who is the party prevaili...

Excerpt: ...the second cause of action for Breach of Contract on the bases that it fails to state facts sufficient to constitute a cause of action, is uncertain, and it cannot be ascertained from the Complaint whether the contract is written, is oral, or is implied by conduct. Civ. Proc. Code § 430.10(e)-(g). A) COA #1 – Legal Malpractice “The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use ...

Excerpt: ...ourt order. In this case, and in response to Defendant's separate motions to compel Plaintiff to appear for an IME and for a third deposition session, the Court issued orders on 12/07/20 tentatively granting those motions, “unless and until plaintiff delivers to defendants a properly executed writing which tracks Code of Civil Procedure § 2032.320(c).” ROA # 201. At that time, Defendant had already noticed an IME for 12/15/20. Instead of exe...

Excerpt: ...in three or five years. (See Salinas v. Atchison, Topeka & Santa Fe Ry. Co. (1992) 5 Cal.App.4th 1, 9; Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 440; Dick v. Superior Court (1986) 185 Cal.App.3d 1159, 1164). The present case is not in such a situation. The present matter involves a lengthy course of business relations with a great deal of disputed discovery (including the two matters set for hearing today) and the likelihood...

Excerpt: ...t. As a preliminary matter, the Opposition requests a continuance to pursue additional discovery but fails to show that such a continuance is warranted here. The Opposition makes only a vague request for continuance at p. 21, to take the depositions “of Patty, Neil, and Oliver,” but fails to explain what such depositions would be expected to show, why they were essential to the opposition, and why they remained outstanding. And no supporting ...

Excerpt: ...te the issue of Plaintiff having a “life estate” in the Anaheim residence. A life estate is a greater bundle of rights than the mere right of possession. (See Miller & Starr, 4 Cal. Real Est. § 12:21 (4th ed.) and RJN Exhibits 2 and 3.) Therefore, the statutory demurrer, based on the DV action, is not well taken. With regard to the family court action, while the family court may be the proper setting to address disputes between the former sp...

Excerpt: ...o be reasonably susceptible to the meaning that Plaintiff seems to propose -- that sale of Defendant's interest in entities other than Neudesic LLC, triggers the additional payment rights to Plaintiff under the MA. This is because the additional payments rights were defined clearly to be due upon sale of the Retained Membership Interest in Neudesic LLC only, and not in other entities. (See Minute Order 10/26/20 p.2 and MA Recital ¶ 2, 6, 7, 2, 4...

Excerpt: ...al notice of a court record within this case (ROA 108). (ROA 211.) A trial court may take judicial notice of the existence of judicial opinions and court documents, along with truth of results reached in documents such as orders, statements of decision, and judgments, but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact. (People v. Harbolt...