Excerpt: ...s argue the SAXC essentially repeats the allegations of the original cross‐complaint and the FAXC and such allegations are insufficient to constitute a cause of action as to the first to sixth, the eighth to fourteenth, and sixteenth causes of action. Each of the causes of action are challenged under Code of Civil Procedure section 430.10(e) for failure to state facts sufficient to constitute a cause of action and for uncertainty under Code of ...

Excerpt: ...ng pregnant. Plaintiff filed this action on February 10, 2021, alleging various FEHA causes of action, declaratory relief and wrongful termination. On May 13, 2021, Defendant filed an Answer alleging twenty‐ seven affirmative defenses. On September 22, 2022, the Court denied Defendant's Motion to Compel Arbitration. At that time, trial was set for January 20, 2023. Trial is now set for February 3, 2023. On December 14, 2022, Defendant brought a...

Excerpt: ... amount owed under the management agreement. The parties entered into a settlement agreement to resolve their disputes regarding the unpaid amount owed under the management contract. Plaintiff contends that Defendants breached the settlement agreement and owe Plaintiff $233,000.00. The complaint asserts a cause of action for breach of contract and fraud. Defendants were served via substitution of service through a school receptionist on 8/25/21 (...

Excerpt: ... he was not personally served as indicated by the proof of service. Further, that the address at which service was indicated is his mother's residence, not his, and that on the date of service the property was not occupied, but his brother would periodically stop by to collect the mail and check on the house. Defendant moves pursuant to CCP §473(b) to set aside default based on mistake, inadvertence, surprise, or excusable neglect. In opposition...

Excerpt: ...o amend as to the causes of action for equitable indemnity, declaratory relief, and third‐party tort of another. FNBA was granted a 30‐day leave to amend its pleading. In accordance with the Court's order, on October 17, 2022, FNBA filed its SACC, alleging the three causes of action for (1) equitable indemnity, (2) declaratory relief, and (3) third party tort of another. FNBA is a defendant in the underlying action filed by homeowners for FNB...

Excerpt: ...dants move to compel arbitration based on the Retail Installment Sales Contract (RISC) and the FAA applies. They argue that the equitable estoppel doctrine and Felisilda apply. They contend Plaintiff's claims are inextricably intertwined with the RISC because a plaintiff must have purchased a new motor vehicle to have a Song Beverly claim. They contend that the RISC has an express warranty as an additional provision. Defense argues they are a thi...

Excerpt: ...vided. He owes Home Care $48,197.03. The complaint asserts the following causes of action: (1) breach of written contract, (2) common count for work and services performed, and (3) common count for closed book account. Scruton has filed a cross‐complaint against Home Care. In his original cross‐ complaint he alleged that he could not be released from his rehabilitation center without proof of 24‐ hour care. Home Care represented that it cou...

Excerpt: .... (Complaint, ¶8.) On March 25, 2022, Defendant posted a negative review about Plaintiff's workmanship on the Better Business Bureau website. (See Complaint, ¶20.) Plaintiff alleges that the review is blatantly false, but that Defendant posted this information in order to extort Plaintiffs to make repairs to her kitchen and specifically to her backsplash that Plaintiffs was not responsible for. (Id., ¶21, 22.). Plaintiff sent Defendant a deman...

Excerpt: ...��Beverly Act, 2) Breach of Express Warranty Under the Song‐Beverly Act, and 3) Fraudulent Concealment. Demurrer: Defendant General Motors demurs to the 3rd cause of action for fraudulent concealment on the grounds that the claim is barred by the statute of limitations and/or the economic loss rule and/or fails to state facts sufficient to state a cause of action. Defendants asserts that the three‐ year statute of limitations for fraud bars P...

Excerpt: ...judicial notice of the tentative ruling on the last demurrer. Court filings are judicially noticeable (Evid. Code, § 452, subd. (c)), the document is relevant to the current procedural posture of the case. Request is granted. Petitioners request judicial notice of a redline comparison of the TAP and 4AP, an easement dead, ordinance no. 734, a letter used by HOAs to certify results of votes about STR issues, and some legislative history behind CC...

Excerpt: ...executed an Employment Agreement which includes a provision entitled “Agreement to Arbitrate Disputes” (the “March 2001 Arbitration Agreement”). (Id. at ¶¶ 6–7. Ex. A.) On May 16, 2001, upon Plaintiff's initial start date, Plaintiff again executed an Employment Agreement which includes a provision entitled “Agreement to Arbitrate Disputes” (the “May 2001 Arbitration Agreement”). (Id. at ¶ 9, Ex. B.) The May 2001 Arbitration A...

Excerpt: ...om her position for being pregnant. Plaintiff filed this action on February 10, 2021, alleging various FEHA causes of action, declaratory relief and wrongful termination. On May 13, 2021, Defendant filed an Answer alleging twenty‐seven affirmative defenses. On September 22, 2022, the Court denied Defendant's Motion to Compel Arbitration. Trial is presently set for January 20, 2023. Defendant now brings a Motion to for Leave to File Amended Answ...

Excerpt: ...ants. According to Plaintiff, some of the responses were evasive, incomplete, and missing responsive documents. On September 15, 2022, Defendants served their responses to the SROGs and RFPs. On October 18, 2022, after receiving Defendants' responses, Plaintiff's counsel called Defendant's counsel to meet and confer. During the meet and confer, the parties agreed to extend further responses by two weeks, setting a deadline of November 1, 2022. (N...

Excerpt: ...e of a party, without having served a valid objection, fails to appear for examination, to proceed with it or to produce for inspection any document described in the deposition notice. Before filing either a motion to compel, the moving party is required to make a reasonable and good faith effort to meet and confer in an attempt to informally resolve the issues. (See CCP §§ 2016.040 and 2025.480.) Defendant is requesting the Court to order Plai...

Excerpt: ...before filing a Demurrer or Motion to Strike “the moving party shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. On November 22, 2022, Defendants' counsel, Gabriel Benrubi submitted a declaration, stating t...

Excerpt: ...ls Co. (1981) 123 Cal.App.3d 593, 604.) “In short, the ruling on a demurrer determines a legal issue on the basis of assumed facts, i.e., all those material, issuable facts properly pleaded in the complaint, regardless of whether they ultimately prove to be true.” (State of California ex rel. Bowen v. Bank of America Corp. (2005) 126 Cal. App. 4th 225, 240.) However, a demurrer does not admit contentions, deductions or conclusions of fact or ...

Excerpt: ... and to avoid the substantial danger of inconsistent adjudications. (Todd‐Stenberg v. Daikon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978‐979.) The moving party needs to show that the issues in each case are basically the same and that economy and convenience would be served by consolidation. (Ibid.) Consolidation is proper where there is no risk of undue confusion and prejudice. (Id. at 980.) The exercise of a court's discretion wit...

Excerpt: ...rivacy and other constitutional rights. (Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 343.)1 In addition, and ostensibly for the same purpose, the court in its order must set forth certain details of the examination: “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope and nature of the...

Excerpt: ... complete defense to that cause of action. (C.C.P. §437c(p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once such a showing has been made, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The opposing party may not rely upon the allegat...

Excerpt: ...te to imposition of the sanction: (1) there must be a failure to comply with a valid discovery order and (2) the failure must be willful.” (Kayne v. The Grande Holdings Limited (2011) 198 Cal.App.4th 1470, 1474.) The court has the authority to impose a broad range of sanctions for misuse of the discovery process. “Terminating sanctions have been held to be an abuse of discretion unless the party's violation of the procedural rule was willful ...

Excerpt: ...ading” and “strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Motions to strike can be used to attack the entire pleading, or any part thereof. (Code Civ. Proc., § 435; Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 40.) As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or...

Excerpt: ...evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125. The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. C...

Excerpt: ...dified if the requirements of Civil Code § 1698 are met. Relevant here, Civil Code § 1698(b) provides: “A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties.” “An executed contract is one, the object of which is fully performed.” (Civil Code § 1661.) Where there is an oral agreement to reduce the rent, “[i]n so far as the payments of rent made under the oral agree...

Excerpt: ...0.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal. 3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and...

Excerpt: ...ng party on September 08, 2022, which indicates that the moving party has met and conferred by telephone at least five days before the date a responsive pleading was due, this requirement has been satisfied. Analysis I. Legal Standard. A party against whom a cross‐complaint has been filed may object by demurrer to the pleading. (Code Civ. Proc., § 430.10.) A demurrer lies where the pleading does not state facts sufficient to constitute a cause...