Excerpt: ...eave depends on whether the proposed crossclaims are compulsory or permissive. Crossclaims are compulsory for any “related cause of action,” meaning any that “arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (CCP § 426.10(c) [defining “related cause of action”]; see CCP § 426.30(a) [prohibiting other actions against plaintif...

Excerpt: ... the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors.” A determination of good faith “shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (CCP § 877.6(c).) CCP § 877.6(d) provides, “The party asserting the la...

Excerpt: ...tion 51(f) incorporates the Americans with Disabilities Act, for which the plaintiff “need not prove intentional discrimination.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 665.) Defendant argues the complaint fails under this theory because, without a nexus to a physical location, a website is not a “place of public accommodation” under the ADA. The second theory is for intentional discrimination under Civil Code §§ 51(b) and 52(...

Excerpt: ...and citations omitted.) “It has long been established that in ruling on a demurrer, the trial court is obligated to look past the form of a pleading to its substance. Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief.” (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908; accord Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 13...

Excerpt: ...ions 1-3, 5-11, 13-16, 18-21, 24, 25, 27, 28, 30, 32-34, 36-41, 46, and 47 are overruled. Summary Judgment or Adjudication Courts grant summary judgment or adjudication where no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.) Courts “liberally construe the evidence in support of the party opposing summary judgme...

Excerpt: ..., fka FSLA Holdings LLC (FSLA) to five of the causes of action in plaintiff Santos Laguna, S.A. DE C.V.'s (Santos) complaint. Defendants now demur to three of the eleven causes of action in plaintiff's first amended complaint (FAC) on the ground they fail to state facts sufficient to constitute a cause of action.[1] (Code Civ. Proc., § 430.10, subd. (e).) I. Fourth Cause of Action for Breach of the International Agreement Santos operates men's a...

Excerpt: ...der the Federal Arbitration Act, “any party arguing waiver of arbitration bears a heavy burden of proof. As such, a party seeking to prove waiver of a right to arbitration must demonstrate: (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.” (Martin v. Yasuda (9th Cir. 2016) 829 F.3d 1118, 1124 (Mar...

Excerpt: ... alleges five causes of action against defendant Regina Sadykova: 1) Electronic impersonation [Penal Code § 528.5] 2) Invasion of privacy 3) False light 4) Appropriation of name or likeness 5) Defamation Plaintiff alleges that on September 14, September 15, and December 23, 2020, defendant posted on Instagram in Russian referring to the parties' divorce proceedings in Russia and accusing plaintiff of bribing judges. (FAC, ¶¶ 10-12.) In Novembe...

Excerpt: ...of the proceeding, including during trial, when no prejudice to the opposing party is shown.” (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345 (P & D).) Courts have discretion to deny leave to amend when (a) the moving party has delayed bringing the proposed amendment; and (b) the delay in seeking leave to amend will cause prejudice to an opposing party. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Calif...

Excerpt: ...urisdiction' provides that where two (or more) courts possess concurrent subject matter jurisdiction over a cause, the court that first asserts jurisdiction assumes it to the exclusion of all others, thus rendering ‘concurrent' jurisdiction ‘exclusive' with the first court.” (Franklin & Franklin v. 7‐ Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1175 (Franklin).) “The rule is based upon the public policies of avoiding ...

Excerpt: ...n in the email accounts of plaintiff Lev Katsenelenson and his wife, Nicole Fu. In its request, defendant seeks to have an outside data-extraction consultant to forensically inspect, copy, and extract electronically stored information in: (1) the email from plaintiff to Crystal O'Brien dated March 20, 2018; and (2) the email from Nicole Fu to plaintiff dated November 12, 2020. (Okelberry Decl., Ex. E.) On December 21, 2020, Plaintiff responded on...

Excerpt: ...Buyer hereby expressly releases, remises, acquits and discharges each other and Company and its successors, parents, subsidiaries, affiliates, assigns as well as each of their respective owners, officers, directors, employees and agents (collectively “Releasees”) from and forever waive and relinquish, any and all claims, counterclaims, rights, set-offs, suits, damages (including, but not limited to, compensatory damages, tort damages, contrac...

Excerpt: ...a motion to compel the deposition of a party who fails to appear without having served a valid objection. Plaintiff served an objection with two grounds: (1) plaintiff and counsel were unavailable on the date defendant unilaterally selected without a good faith attempt to mutually schedule the date (citing Local Rule 3.A(e)(2)-(3)); and (2) a notice limiting questioning to the arbitration agreement violates Local Rule 3.A.(e)(1). (Harwin Decl., E...

Excerpt: ...ons. First, plaintiff failed to include an indispensable party. It is undisputed that Xceed Financial Credit Union has a security interest in the property based on a deed of trust from refinancing the property in 2014. (First Am. Comp., ¶¶ 9-10.) The only dispute is whether that means Xceed must be named as a defendant. Xceed is a necessary party. CCP § 872.510 provides, “The plaintiff shall join as defendants in the [partition] action all p...

Excerpt: ...Herman makes 14 objections to defendants' evidence. The declarations of Allen Todd Justice and Raymond Scott Coffman were both signed under penalty of perjury under the laws of the State of North Carolina in Charlotte, North Carolina. CCP § 2015.5(b) requires that a declaration executed outside of California specify that the declarant certifies under penalty of perjury under the laws of the State of California. The declarations and exhibits they...

Excerpt: ...decide whether to confirm the award regardless of whether defendants' motion was filed too soon because plaintiff filed a motion to vacate the award. CCP § 1286 provides, “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or ...

Excerpt: ...onscionability using a sliding scale. (Serafin v. Balco Properties Ltd., LLC (Serafin) (2015) 235 Cal.App.4th 165, 185.) Plaintiff shows some procedural unconscionability. “Procedural unconscionability focuses on oppression or surprise due to unequal bargaining power.” (Armendariz v. Foundation Health Psychcare Services, Inc. (Armendariz) (2000) 24 Cal.4th 83, 114, internal quotes omitted.) “Procedural unconscionability occurs when the stro...

Excerpt: ...011.” On January 26, 2021, the clerk again rejected plaintiff's application for renewal of judgment, stating, “There is only 1 Judgment on file. The last Application for and Renewal of Judgment filed on 3-7-11 shows both Debtors on 1 Application. You can add an attachment if the Judgment amounts for each Debtor differ.” On March 10, 2021—after the March 7 deadline—the clerk accepted plaintiff's final application for renewal and issued a...

Excerpt: ...te a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The TAC includes many legal conclusions and arguments. The court shall assume the ultimate facts alleged in the complaint are true, but shall not assume as true the TAC's contentions, deductions or conclusions of fact or law. (Nguyen v. Ford (2020) 49 Cal.App.5th 1, 11.) The TAC alleges two causes of action: (1) breach of contract and (2) tortious breach of the implied covenant of goo...

Excerpt: ...tiary Objections Defendants Venkat Devineni, Global Soft Technologies LLC, Nucleus Erudition and Research Corp., and Quantilus, Inc. make numerous objections throughout their separate statement of facts in opposition to the motion. California Rules of Court, rule 3.1354 requires evidentiary objections be filed separately and requires one of two formats for evidentiary objections and the proposed order on them. Rule 3.1354(b) provides: “All writ...

Excerpt: ...the “initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060 (Espejo).) Only after the opposing party “challenge[s] the validity of that signature” must the moving party “establish by a preponderance of the evidence that the signature was authentic.” (I...

Excerpt: ...and supplemental (17-24) declarations of Justine San Luis. All 24 objections are OVERRULED. Existence of Agreement The California Arbitration Act provides that courts shall grant motions to compel arbitration where the parties executed a valid written agreement to arbitrate. (CCP § 1281.2) The law favors enforcement of valid arbitration agreements. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) Defendants su...

Excerpt: ...allegations, affirmative defenses assert new allegations that would defeat the plaintiff's claims. (CCP § 431.30(b); FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383-385.) Affirmative defenses must not be pled as “terse legal conclusions,” but “rather … as facts averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” (In re Quantification Settlem...

Excerpt: ...ctric Co., Ltd. moves to dismiss for lack of personal jurisdiction. CCP § 418.10(a)(1) provides that a defendant (including a cross-defendant) may move “[t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” As stated in Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 797, “A state court's assertion of personal jurisdiction over a nonresident defendant who has not been serve...

Excerpt: ...een you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action. (Proudfoot Decl., Ex. A, p. 5.) Of plaintif...