Excerpt: ..., to lift the stay of proceed ings and return the matter to court. Under Cal. Code of Civ. Proc. §1284.3(b)(1), “[a]ll fees and costs charged to or assessed upon a consumer party by a private arbitration company in a consumer arbitration, exclusive of arbitrator fees, shall be waived for an indigent consumer.” Plaintiff cites Cinel v. Barna (2012) 206 Cal.App.4th 1382, arguing the case states an indigent party's arbitration fees are waived, ...

Excerpt: ...ancial discovery regarding Popeye and Weiss, supported by testimony given at the depositions of plaintiff, defendant and plaintiff's partner witness Markelian. Trial is scheduled for April 15, 2024, having been set on June 13, 2023. Civil Code 3295(c) states “No pretrial discovery by the plaintiff shall be permitted … unless the court enters an order permitting such discovery… However, the plaintiff may subpoena documents or witnesses to be...

Excerpt: ..., under which units in Doe's building would be converted from rentals to condominiums. Olson would purchase units, and Doe would choose one unit as her residence . Doe regularly used her condo for short term rentals through Airbnb, which she claims was permitted under her agreement with Olson. Doe alleges Olson and his friends harassed her, spreading defamatory rumors, spying on her, recording her without consent, tampering with her unit, intimid...

Excerpt: ...'s personal property valued at over $100,000. Defendant moves to strike plaintiff's request for punitive damages on the grounds that the allegations supporting the request are impermissibly vague and do not state sufficient facts to support the claim. Punitive damages are allowable only when plaintiff proves defendant has been guilty of oppression, fraud or malice. Cal. Civ. Code §3294(a). Facts giving rise to a claim for punitive damages must b...

Excerpt: ...the written a greement was orally modified in 2015, with UB to receive a monthly $300 fee. UB alleges 20% of net profits from the property's rental income would be calculated at the end of each year, with UB receiving the difference between that percentage and the $3,600 received in monthly payments. Defendants dispute the terms of the 2015 agreement, arguing UB is entitled only to a monthly $300 fee, not 20% of each year's net rent profits. UB a...

Excerpt: ...and mat erials. In 2005 the Wolfs signed a promissory note for $500,000 in favor of Jerry and Orit Kohen, secured by a deed of trust on the Wolfs' home. Between 2005 and 2015, Yaakov Wolf made payments toward satisfaction of the purported debt. In 2016, the Kohens assigned the note and deed of trust to defendant Haroni. The Kohens argue the Wolfs repeatedly drew on a line of credit created by the promissory note; the Wolfs argue Eisenberg drew on...

Excerpt: ...Cohens disagree that a settlement agreement was ever formed, as party Elaine Cohen failed to sign. Cross -defendants Paul and Elaine Cohen demur to the third cause of action for breach of a settlement agreement and seventh cause of action for estoppel. They also move to strike portions of the cross -complaint. The Kaplans request sanctions against Paul Cohen and his former counsel Bloch for falsely representing that Elaine Cohen signed the settle...

Excerpt: ...trike the complaint under the anti -SLAPP statute. Evidentiary Objections: OVERRULED. Courts resolving an anti -SLAPP motion under Cal. Civ. Code §425.16 follow a two- step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In prong one, the court determines whether the conduct underlying plaintiff's cause of action arises from defendant's constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 37...

Excerpt: ...raud, elder abuse, intentional infliction of emotional distress and negligent infliction of emotional distress. Defendant Wells Fargo demurs. Common Law Claims/UCC Division 11 of the California Uniform Commercial Code displaces common law claims where provisions of the article cover the “circumstances giving rise to the common law claims[.]” Zengen v. Comercia Bank (2007) 241 Cal.4 th 239, 251-253. Successive sections of Division 11 address t...

Excerpt: ...ants and/or is an alter ego of defendant Blaine Labs. On November 2, 2023 the court sustained Cabo's demurrer to the first amended complaint due to failure to adequately allege conspiracy or alter ego liability. He now demurs to the third amended complaint (TAC), arguing plaintiffs still have not adequately a lleged conspiracy or alter ego liability. Conspiracy allegations against Cabo have not been amended since the FAC. This is a tacit admissio...

Excerpt: ... declare Visconti a vexatious litigant and for an order requiring Visconti to post a security bond or dismiss her cross-complaint. Plaintiff provides a proof of service on Visconti, who is currently incarcerated, and Murphy, who was served on January 25, 2024, via US mail and electronic service. A trial court may order a party, the party's attorney or both to pay the reasonable expenses, including attorney's fees, incurred by another party as a r...

Excerpt: ...endant of the basis on which the plaintiff is seeking relief.” E.g. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. Uncertainty All causes of action in the FAC are alleged with a similar formula. All preceding paragraphs are re-alleged and incorporated. Then Doe states in a conclusory fashion that defendant engaged in conduct constituting the elements of the claim. This is insuffic ient to overcome demurrer. The court cannot determine whe...

Excerpt: ...ailable as construction expenses were incurred. Sunset was required to incur expenses out -of -pocket, which would then be reimbursed. Sunset states it could obtain reimbursement by requesting a draw, which would result in Lionscove sending an inspector to the property to determine how much of the construction fund should be disbursed. Sunset argues Lionscove acted in bad faith, stalling reimbursements, delaying inspections, and disbursing smalle...

Excerpt: ...videntiary Objections: Martin's objections OVERRULED. Under the “Sidewalk Accident Decision Doctrine,” a landowner's duty to repair and maintain an adjoining sidewalk is not owed to persons who use the sidewalk, unless the landowner causes the sidewalk's dangerous condition. Alpert v. Villa Romano Homeowners Assoc. (2000) 81 Cal.App.4th 1320, fn. 11. A property owner can be liable for “suffering the roots of his tree to cause, with his know...

Excerpt: ...project to remain unfinished and go substantially over budget. Defendants Bohrer and BCI demur. Breach of Contract (First CoA)/Disgorgement (Seventh CoA) On demurrer, facts contained in an exhibit attached to a complaint take precedence over and supersede any inconsistent or contrary allegations in the pleading. Jibilian v. Franchise Tax Bd. (2006) 136 Cal.App.4th 862, 864. BCI argues it is not a contracting party; the agreement attached to the c...

Excerpt: ... Olson, under which units in Doe's building would be converted from rentals to condominiums. Olson would purchase units, and Doe would choose one unit as her residence. Doe regularly used her condo for short term rentals through Airbnb, which she claims was permitted under her agreement with Olson. Doe alleges Olson and his friends harassed her, spreading defamatory rumors, spying on her, recording her without consent, tampering with her unit, in...

Excerpt: ...W and Kids both move for summary judgment/adjudication. Kids Artistic Sense MSJ Kids moves for summary judgment on the grounds that the notice to pay rent or quit is defective. It argues the notice failed to accurately state “the usual days and hours” Singleton would be available to receive rent payment. “A landlord must serve a tenan t with a valid three-day notice in order to prevail in an unlawful detainer action.” Bawa v. Terhune (201...

Excerpt: .... dba W.I. Simonson, Watkins, Bland and Vides move for judgment on the pleadings. Validity of Motion As a threshold matter, plaintiff argues the motion is void because it targets the complaint, which was superseded by the first amended complaint. The motion explicitly the “operative First Amended Complaint,” so targets the correct pleading. Conversion The elements of a cause of action for conversion are (1) plaintiff's ownership or right to p...

Excerpt: ...inetti Wang & Team LLP (ASWT) and Janet Janet & Suggs (JJS). After the underlying case settled, Pourat alleges Doe and the defendants failed to pay his fees. ASWT and managing partner Arias demur, stating they were not party to any fee sharing agreement with Pourat and are required by ethics rules to hold the disputed fees in trust until Pourat's fee dispute with Doe is resolved. Service and Filing of Demurrer Pourat argues the demurrer should be...

Excerpt: ...e covered under two separate policies. The guest house was insured under a policy issued by defendant California Fair Plan Association, which plaintiffs allege wrongfully denied the claim. Fair Plan demurs. One-Year Suit Provision Fair Plan argues the claims are time barred, as the policy states “[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” F...

Excerpt: ...ent Permit and the ten -foot setback requirement at the property boundary and interferes with Howarth's quiet enjoyment of his property. Finally, Howarth alleges Mardirossian failed to construct a solid masonry wall to mitigate noise from the tenn is court as required by the Coastal Development Permit. Mardirossian moves for summary judgment and/or adjudication. Evidentiary Objections Howarth Objections 1- 3 SUSTAINED (improper legal opinion); ob...

Excerpt: ...d on appeal. In this action, Yazdi sues patient Robles and dentists Baum and Mizrahi. Yazdi alleges Baum testified falsely at arbitration, and subsequent dental treatment by defendants Baum and Mizrahi caused or exacerbated Robles' injuries. On November 8, 2023 the court denied Baum's anti -SLAPP motion to the initial complaint and sustained his demurrer with leave to amend. Defendant Robles now files an anti -SLAPP motion and demurs, as do defen...

Excerpt: ...nding defendants waived their right to arbitrate due to unreasonable delay and substantial invocation of the litigation machinery. Defendants appealed, filing a notice of automatic stay pending appeal on December 11, 2023. Plaintiffs move for an order seeking to clarify that, pursuant to new legislation, no stay is in effect. Cal. Code of Civ. Proc. §1294, which effect January 1, 2024, states perfecting an appeal from an order denying a motion t...

Excerpt: ...has filed numerous small claims actions against Blue Shield, arguing it was underpaid for emergency services provided to Blue Shield members. Blue Shield seeks a court declaration stating its payment methodology is valid, resulting in payments to AOC equal to or exceeding fair market value, that AOC is not entitled to its full billed charges for services to Medicare members and Blue Shield is entitled to reimbursement for overpaid claims. Defenda...

Excerpt: ...d (2) what is the basis for Houck's claim to fees/costs. Cal. Code of Civ. Proc. §1032 provides the prevailing party entitled to recover costs. A prevailing party includes “the party with a net monetary recovery.” Cal. Code of Civ. Proc. §1032(a)(4). If no party prevailed according to the statute, the court “may allow costs or not and, if allowed, may apportion costs between the parties.” Id. In its judgment the court awarded Houck a pr...