Excerpt: ...under Civil Code § 1717(b)(2), there is generally no “prevailing party” when an action on a contract is voluntarily dismissed. “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” Civ. Code, § 1717(b)(2). The statute is based on public policy to encourage plaintiffs to discontinue nonmeritorious litigation rather than continue...

Excerpt: ...st for Judicial Notice is GRANTED. Evid. Code Sect. 452(d). Defendants Kieran Treacy, Kelly Treacy, and Treacy Group, LLC's Demurrer to the SAC's First and Second Causes of Action (alleging breach of contract and breach of the implied covenant of good faith and fair dealing), is OVERRULED. Code Civ. Proc. Sect. 430.10(e). The Court previously sustained these three Defendants' Demurrer to these two causes of action in the original Complaint (see 6...

Excerpt: ...olution of the preliminary injunction is automatically stayed pending Defendant's appeal of the preliminary injunction pursuant to Cal. Code of Civ. Proc. § 916(a), citing Varian Med. Sys., Inc. v. Delfino (2005) 35 Cal. 4th 180, 189‐ 90. Defendant argues that the Court retains jurisdiction of the issue because the order issuing the preliminary injunction is void for lack of requiring an undertaking pursuant to Cal. Code of Civ. Proc. § 529, ...

Excerpt: ...specific. 2. The Court exercises its discretion to not rule on Objections numbers 2, 3, and 8 because evidence relating to standard of care is not material to ruling on this motion. (Code of Civ. Proc. § 437c, subd. (q).) 3. Objections numbers 4, 5, 6, and 7, are sustained for lack of foundation. In addition, the opinions in paragraphs 4, 5, 6, and 7 lack a reasoned explanation for Dr. Light's opinions. (See Fernandez v. Alexander (2019) 31 Cal....

Excerpt: ...on. (Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191.) In contrast, an undertaking is required in order to stay operation of a prohibitory injunction. (Id.) “California has had the rule that an appeal automatically stays mandatory injunctions for more than 100 years.” (Agric. Lab. Bd. v. Superior Ct. (1983) 149 Cal. App. 3d 709, 716.) “A prohibitory injunction remains in full force pending such an appeal, and the court below may enf...

Excerpt: ...tion for summary judgment. (See Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) Plaintiff Joan K. Levin (“Plaintiff”) owned property located at 100 Palmetto Avenue in Pacifica (“property”) for nearly forty years until she sold it to Western Edge Projects, LLC (“Western”) on January 11, 2016. (Amended Complaint (“AC”) ¶ 8.) Plaintiff agreed to a seller finance or carry back loan of $1.9 mi...

Excerpt: ...he time of the foreclosure.” (MPA, p.1.) Indeed, according to the declaration of Eric Houser, Defendant's counsel, “Rushmore stopped servicing the loan months before the foreclosure sale.” Houser Decl., ¶ 2. However, Rushmore is identified as the loan servicer in the Notice of Default and Election to Sell Under Deed of Trust recorded on August 19, 2021, attached to Defendant's request for judicial notice. The Notice contains a declaration,...

Excerpt: ...ice of the Summons and Supplemental Complaint on the grounds that Plaintiff did not seek leave to file the Supplemental Complaint pursuant to CCP § 472. Alternatively, Defendant requests that the Court set aside the default entered against Defendant pursuant to the Court's equitable powers. Defendant does not provide recognized grounds for quashing service of the summons. Indeed, Defendant provides no authority suggesting that service of a summo...

Excerpt: ...Proc. Sect. 430.10(e). The Complaint alleges Fay violated several HBOR (Homeowner's Bill of Rights) statutes, which are all deficient in some respect. The Court grants leave to amend so that Plaintiffs may attempt to remedy the defects. Civ. Code Sects. 2923.7 (single point of contact) and 2924.9 (requiring written notice to borrower explaining foreclosure prevention alternatives) do not apply to all mortgages and deeds of trust. Pursuant to Sect...

Excerpt: ...ordered EXPUNGED. A court must expunge a lis pendens if the pleading on which the lis pendens is based does not contain a real property claim. (Code of Civ. Proc. (“C.C.P.”) § 405.31.) A party possesses a real property claim where the cause of action in a pleading would, if meritorious, affect "title to, or the right to possession of, specific real property." (Code Civ. Proc. § 405.4.) Defendant argues that the First Amended Complaint (“F...

Excerpt: ...de Civ. Proc. Sect. 430.10(e). Groeneweg's Demurrer does not dispute whether the Complaint sufficiently alleges a fiduciary duty owed to Plaintiff. (See Mot. at 10) (Groeneweg stating: “although not at issue for purposes of demurrer, Plaintiff will be unable to prove that Groeneweg owed any fiduciary duty to Plaintiff. Although Plaintiff may have sufficiently pled the existence of such a [fiduciary] relationship, the true facts show that Groene...

Excerpt: ...at a claim for contractual indemnity requires that a judgment in an earlier action be entered in order for indemnity to apply. Since the Complaint does not allege that a judgment in the Asian Square Action has been entered, the claim for express indemnity is premature. Plaintiffs do not dispute this. Instead, Plaintiffs argue that the “hold harmless” obligation in MSA paragraph 1.7(a) is something different from indemnity ‐‐ that “hold ...

Excerpt: ...ntiff's Complaint alleges causes of action for breach of contract and common counts based on: (1) an open book, (2) an account stated, (3) money had and received, (4) goods sold and delivered, (5) money lent, and (6) money paid. However, Plaintiff's MPA in support of the motion for summary judgment attempts to demonstrate that Plaintiff has established claims for breach of contract, an open book, and an account stated. (MPA, p.3‐6) Accordingly,...

Excerpt: ...ft, Inc.), and which seeks monetary sanctions against Dmarcian, is GRANTED‐IN‐ PART and DENIED‐IN‐PART, as set forth below. Code Civ. Proc. Sect. 1987.1. Plaintiff argues the two subpoenas are overbroad because they seek documents that are irrelevant, privileged and/or subject to privacy rights. Plaintiff does not argue undue burden. Dmarcian argues the requested documents are directly relevant to Plaintiff's asserted claims and Dmarcian'...

Excerpt: ... of Pendency of Action is ordered EXPUNGED. A court must expunge a lis pendens if the pleading on which the lis pendens is based does not contain a real property claim. (Code of Civ. Proc. (“C.C.P.”) § 405.31.) A party possesses a real property claim where the cause of action in a pleading would, if meritorious, affect "title to, or the right to possession of, specific real property." (Code Civ. Proc. § 405.4.) Defendant argues that the Fir...

Excerpt: ...RANTED. Code Civ. Proc. Sect. 340.1(m)‐(o). On May 9, 2022, the Court heard oral argument pertaining to this motion and continued the hearing to permit the parties to submit supplemental briefing on the issues presented. Having reviewed the entirety of the record, including the supplemental briefs dated 5‐20‐22, 5‐27‐22, and 6‐1‐22, and the Certificates of Corroborative Fact lodged with the Court under seal on 3‐1‐22, the Court ...

Excerpt: ...paid, an open book, and an account stated. To prevail on a cause of action for breach of contract, Plaintiff must prove (1) the contract, (2) Plaintiff's performance of the contract or excuse for nonperformance, (3) Defendant's breach, and (4) resulting damage to Plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; CACI 303) Plaintiff has provided evidence establishing each of these elements through the declaration of Evelyn J. Sican...

Excerpt: ...aintiffs' motion does not include a copy of the proposed Fifth Amended Complaint. The supporting declaration states that redlined and clean copies of the proposed pleading are attached as Exhibits A and B, but neither of those exhibits is attached to the declaration. Further, Rule 3.1324(a) requires that the motion must state what allegations are proposed to be deleted or added. The motion fails to comply with this requirement. The moving Points ...

Excerpt: ...filed on September 6, 2018. Since that date, Plaintiff has not filed a proof of service establishing that the summons and complaint were served on Defendants. When the summons and complaint is not served within the three‐year period, CCP § 583.250 provides that the court shall dismiss the action. This requirement is mandatory and is not subject to extension, excuse or exception except as expressly provided by statute. Plaintiff bears the burde...

Excerpt: ...ollows: The Motion for Summary Judgment is DENIED. The Motion addresses only the open book account and account stated claims, even though Plaintiff alleges other common count claims in the Complaint. Therefore, Plaintiff fails to meet its initial burden of establishing that it is entitled to summary judgment. However, the Motion for Summary Adjudication to the open book account claim is GRANTED. Plaintiff presents evidence to establish all the el...

Excerpt: ...ary judgment shall be granted when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Code Civ. Proc. Sect. 437c(c). A defendant has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established, or there is a complete defense to that cause of...

Excerpt: ...on). The first cause of action alleges that Defendant made statements to Peters, which induced Peters to not pay Plaintiff, which forced Plaintiff to sue Peters. Since the Complaint does not allege any representation made to Plaintiff, the Complaint does not allege a claim for intentional misrepresentation. However, a Complaint may survive a motion for judgment on the pleadings if it alleges any cause of action, despite the title of the claim. He...

Excerpt: ...an be granted. The gravamen of Plaintiff's Complaint arises out of an alleged August 21, 2014 overcharge on Plaintiff's real estate loan from Defendant Bank of America. Complaint, ¶¶ 5‐14. Each cause of action relates to that event and is supported only by those factual allegations. Although the first cause of action alleges that the breach of contract began on a date to be determined after February 15, 2019, this conflicts with the prior all...

Excerpt: ... Serramonte (“Defendant”) for Failure to Arbitrate, is DENIED. On November 21, 2019, the parties entered into a “Stipulation To Submit This Matter To Binding Arbitration” (“Stipulation”). (Liberty Decl., Exh. 1.) The Stipulation was approved by the Court on November 22, 2019 (“Order”). (Ibid.) Plaintiff brings this Motion contending that Defendant failed to participate in binding arbitration pursuant to the Stipulation and Order. ...

Excerpt: ...tract Plaintiff alleges that Defendant “breached the contract in violation of Section 4 Subsection 2 of the Terms of Use, Section 12 Subsection 2 of the Advertising Policies, and Section 7 Subsection e of the Facebook Platform Terms by cancelling Plaintiff's account when Plaintiff had done nothing to merit such cancellation.” SAC, ¶12. Section 4 Subsection 2 of the Terms of Use provides, in relevant part: If we determine that you have clearl...