Excerpt: ...ailure to obtain a loan. Additionally, defendants seek summary adjudication of plaintiff's request for lost profits. Plaintiff's Evidentiary Objections Smith Declaration: Objection 1 OVERRULED, Objection 2 SUSTAINED (lack of foundation), objection 3 SUSTAINED (lack of foundation,) objection 4 OVERRULED, objection 5 OVERRULED, objection 6 SUSTAINED (lack of foundation), objection 7 OVERRULED. Mass Declaration: Objection 1 OVERRULED. Cal. Bus. & Pr...

Excerpt: ...e project's length and cost and his intent to supervise the project. The Bakers also allege Houck's work was defective. Houck demurs to the fraud causes of action and moves to strike the requests for attorney's fees and punitive damages. Fraud and Negligent Misrepresentation To prevail on a claim for promissory fraud, a plaintiff must provide evidence showing the promisor did not intend to perform at the time the promise was made. Tenzer v. Super...

Excerpt: ...ancel within the agreed-upon time and seeks damages. Sassine and Pham's cross-complaint alleges Novel falsely representing the contract would only be binding if insurance covered the repairs. They also allege emotional distress because Novel falsely reported a debt to a recovery agency and forged Sassine's signature on the proposed agreement. Novel demurs. Intentional Infliction of Emotional Distress A cause of action for intentional infliction o...

Excerpt: ... toper form. Plaintiffs bring contract‐based causes of action and claims for negligence, negligent misrepresentation, breach of fiduciary duty and unfair business practices under §17200. Defendant Pacific Union International, plaintiffs' broker, demurs to the causes of action for breach of fiduciary duty, negligence, negligent misrepresentation, and unfair business practices. Defendants Brian Farmer and The Farmer Limited Partnership demur to ...

Excerpt: ... Defendant moves to bifurcate trial, with the statute of limitations defense and nature of defendant's representation in Beebe to be decided at an initial phase, and the substantive merits of plaintiff's claims to be tried subsequently. A trial court may, upon its own motion or a party's motion, proceed to trial on the statute of limitations before trying any other issue of the case. Cal. Code of Civ. Proc. §597. Cal. Code of Civ. Proc. §1048(b...

Excerpt: ...roperly joined for the sole purpose of having the action venued in Los Angeles County and seeks to transfer to Kern County, where the treatment occurred and where defendant Bacon resides. The superior court in the county where defendants or some of them reside at the commencement of the action is the proper court for trial. In a personal injury case, the county where the injury occurs is also a potential proper venue for trial. Cal. Code of Civ. ...

Excerpt: ...y. Temporary injunctive relief is proper where “irreparable injury is threatened, and preservation of the status quo is proper and equitable under the circumstances.” Cal. Code of Civ. Proc. §527, Chrysler Credit Corp. v. Waegele (1972) 29 Cal.App.3d 681, 686. To obtain an injunction in these circumstances, a court must evaluate the likelihood plaintiff will prevail on the merits at trial and compare its conclusion to the interim harm plaint...

Excerpt: ... Department (“Department”), Los Angeles County Sheriff Alex Villanueva, Los Angeles County Counsel Mary Wickham, and Los Angeles County Director of Personnel Lisa M. Garrett (collectively “Respondents”) “to act in compliance with their ministerial duty under the … Settlement Agreement [executed with Petitioner Lopez] to reinstate [Petitioner Lopez] to employment with the County and to provide [Petitioner] with all emoluments of employ...

Excerpt: ...v. Proc. §473(b), a court may set aside a default taken through “mistake, inadvertence, surprise, or excusable neglect.” When a defendant challenges the court's personal jurisdiction due to alleged improper service, the plaintiff has the burden of proof to show effective service. Summers v. McClanahan (2006). A summons and complaint must be served within three years after the date the action is commenced. Cal. Code of Civ. Proc. §583.210. P...

Excerpt: ...l Parties' Anti-SLAPP Motion to Strike Pursuant to CCP Section 425.16 Respondent Shirley Weber, in her official capacity as Secretary of State of the State of California (“Respondent”) demurs to the petition for writ of mandate of Petitioners Hollywood Park Casino Company, LLC, and Cal-Pac Rancho Cordova, LLC (“Petitioners”) for failure to state a cause of action and on the grounds that Los Angeles Superior Court has no jurisdiction over ...

Excerpt: ...lement and granted Coastline's motion to enforce. Boyce moved out on January 25, 2022, after multiple delays by Boyce and multiple requests by Boyce that the court forestall the move-out date. Coastline seeks to recover fees and costs in connection with efforts to enforce the settlement. On February 16, 2022, the court heard an OSC re: contempt arising out of Boyce's failure to timely vacate, which it took under submission. The settlement agreeme...

Excerpt: ...siness and Professions Code §7159 states a homeowner must be provided with a three-day right to cancel any agreement for performance of home improvement by a contractor. Defendants argue they exercised their statutory right to cancel within the three-day period. Plaintiff alleges defendants did not timely cancel. Complaint ¶13-14. This allegation must be treated as true for purpose of pleading. However, when an exhibit contradicts the allegatio...

Excerpt: ...hat resulted in criminal prosecution of plaintiff's former employer's CEO. Plaintiff alleges defendant's background report violated federal and state law regarding consumer reporting and moves for summary adjudication on three statutory causes of action. Failure to Comply with Cal. Civ. Code §1786.28(a) The California Investigative Consumer Reporting Agencies Act (Cal. Code of Civ. Proc. §1786(a)) requires consumer reporting agencies to identif...

Excerpt: ...aza Del Rey (2014) 223 Cal.App.4th 221, 232-233. A mere contractual right to payment, without more, is insufficient to establish a plaintiff's “ownership” or “possession” of money, and therefore cannot serve as the basis for a conversion claim. Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 452. Rickel admittedly no longer has an ownership interest in the company, alleging only a contractual right to a percentage of profits und...

Excerpt: ...Demurrer Some courts have held that California does not recognize a distinct cause of action for gross negligence. Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856. Defendants argue there is no distinct cause of action for gross negligence. The opposition does not meaningfully address this argument, instead arguing the second amended complaint states a viable cause of action for simple negligence. SUSTAINED. Motion to Strike Defendants argue p...

Excerpt: ...Defendants move for summary adjudication of claims arising out of wind damage, fraud and elder abuse and move for terminating sanctions for failure to comply with discovery orders. Motion for Summary Adjudication Breach of Contract—Wind Claim Contractual limitation provisions in insurance policies requiring suits to be brought within one year are generally enforceable. Lawrence v. Western Mutual Ins. Co. (1988) 204 Cal.App.3d 565, 571. The cont...

Excerpt: ...ers argue was a gift/loan. Kawauchi alleges cross-defendants failed to pay him. Kawauchi served discovery (RFP, special rogs, form rogs) on all cross- defendants and moves to compel further responses. The scope of discovery is broad, but not unlimited, and parties to litigation are entitled to production of all information “reasonably calculated to lead to the discovery of admissible evidence.” Cal. Code of Civ. Proc. §2017.010. A party seek...

Excerpt: ...omeowners association is responsible for “repairing, replacing, and maintaining the common area” of a common interest development unless otherwise stated in the development's CC&Rs. When an ambiguous contract is the basis of a contract, on demurrer the court accepts plaintiff's interpretation of the ambiguous term unless that interpretation is clearly wrong. Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. De...

Excerpt: ...epresented patio space would be available. Plaintiffs expended significant funds before learning the patio was not available and sue for fraud and promissory estoppel. On January 21, 2022 the court denied defendants' motion for summary judgment, but did not rule on the motion for summary adjudication as to punitive damages, continuing the hearing on that issue to March 14, 2022. Plaintiffs move for leave to file a fourth amended complaint. Puniti...

Excerpt: ...-1 Apex Plumbing, JMI Steel, and Flexi-Tech, Inc. settled for $400,000, $280,000, and $650,000, respectively. Each moves for determination of good faith settlement. Good Faith Settlement “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co- obligors . . . shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more all...

Excerpt: ...ment and plaintiff's Interest Letter. Moving defendants Hibberd, Hammond and various Emerald Lake funds are nonsignatories but argue they can enforce the arbitration provision. When an arbitration agreement involves interstate commerce, the question of arbitrability is governed by federal law. 9 U.S.C. §2, Allied-Bruce Terminix Cos., Inc. v. Dobson (1995) 513 U.S. 265, 281. There is a liberal federal policy favoring arbitration, requiring arbitr...

Excerpt: ...on January 28, 2022 and denied cross-defendant Weber's motion to strike the cross-complaint. Defendant moves for reconsideration, arguing the court's denial of Weber's motion to strike proves his defense of unclean hands. A motion for reconsideration can be made on the basis of new or different facts, circumstances or law and must be made within ten days after service of written notice of entry of the motion whose reconsideration is sought. Cal. ...

Excerpt: ...iness. Ghod's former fiancé and business partner Pink cross-complained. Cross-defendants Ghods and Phalavian move for summary judgment on Pink's cross-complaint, stating they cannot determine whether the initial cross-complaint or first amended cross- complaint is operative, as the first amended cross-complaint was untimely and contained allegations that fell outside the scope of the court's leave to amend. As cross-defendants point out, an amen...

Excerpt: ...pleadings. A motion for judgment on the pleadings is made on the same grounds as a general demurrer and will be granted if the complaint on its face fails to state a cause of action. Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342. Fraud – Intentional Misrepresentation, Negligent Misrepresentation, Concealment, Constructive Fraud, False Promise A fraud cause of action must be pleaded specifically; general or conclusory a...

Excerpt: ...ted these amounts. IKP claims Stein is not entitled to these amounts. The court reviewed the briefs. Motion to Strike Hom Declaration IKP moves to strike defense counsel Hom's declaration, arguing it exceeds the court's request for two pages of briefing. The declaration falls outside the scope of the court's request for briefing, so is stricken. Client Income In support of his claim for $16,974.00 in client income collected after he left the firm...

Excerpt: ...rded because plaintiff is not a prevailing party, and no judgment has been entered. The right to recover costs is statutory. Davis v. KGO-T.V., Inc. (1998) 17 Cal.App.4th 436, 439. Under CA. Rule of Court 3.1700, a prevailing party may claim prejudgment costs 15 days after the date of service of a notice of entry of judgment. A monetary sanction order is immediately enforceable through execution of judgment laws. Newland Superior Court (1995) 40 ...

Excerpt: ...ALRR) represented defendant Angeles in connection with a Civil Wage and Penalty Assessment issued by the Department of Labor Standards Enforcement in 2018. Angeles argues AALR&R had access to confidential information during its prior representation, which could used to defendant's disadvantage and seeks to have AALR&R disqualified. An attorney's former client may move to have the attorney disqualified from representing an adverse party if there i...

Excerpt: ...en plaintiffs purchased a nearby property, which they allege includes the landing. Kaplans cross-complained alleging adverse possession and various tort causes of action, including negligent misrepresentation, false advertising and breach of fiduciary duty. On November 30, 2021 the court sustained a demurrer to the first amended cross- complaint with ten days leave to amend. Cross-defendants now demur to the third through eighth causes of action ...

Excerpt: ...dant Angeles in connection with a Civil Wage and Penalty Assessment issued by the Department of Labor Standards Enforcement in 2018. Angeles argues AALR&R had access to confidential information during its prior representation, which could used to defendant's disadvantage and seeks to have AALR&R disqualified. An attorney's former client may move to have the attorney disqualified from representing an adverse party if there is a “substantial rela...

Excerpt: ...ty of care. Plaintiffs served defendant the City of Beverly Hills with a deposition notice on December 20, 2021. The initial notice sought documents from the last five years, specifically records of automobile accidents, drunk driving, and reckless driving incidents throughout Beverly Hills. Plaintiffs requested documents evidencing “statistics and trends which the Beverly Hills Police Department utilized to help prevent/deter crime in Beverly ...

Excerpt: ...arate breached the subcontract. The arbitrator's final award found against plaintiff's cross-claim. Defendant Metson was plaintiff's counsel for part of the arbitration. Plaintiff alleges defendant's professional negligence caused its loss at arbitration as well as causing plaintiff to incur extra fees when defendant's successor counsel worked to “clean up” defendant's errors. Defendant moves for summary judgment on the grounds that defendant...

Excerpt: ...ndant the City of Beverly Hills with a deposition notice on December 20, 2021. The initial notice sought documents from the last five years, specifically records of automobile accidents, drunk driving, and reckless driving incidents throughout Beverly Hills. Plaintiffs requested documents evidencing “statistics and trends which the Beverly Hills Police Department utilized to help prevent/deter crime in Beverly Hills.” Defendants' Motion Exhib...

Excerpt: ...ta and/or collateral estoppel, the summons and complaint must be quashed. Issue preclusion or collateral estoppel applies when (1) the issue is identical to one decided in the former proceeding, (2) the issue was actually litigated, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a ...

Excerpt: ...before trial. If an offer made by a defendant is not accepted, and plaintiff fails to obtain a more favorable judgment or award, plaintiff shall not recover postoffer costs and shall pay defendant's costs from the time of the offer. Additionally, if an offer made by defendant is not accepted and plaintiff fails to obtain a more favorable judgment, the court may, in its discretion, require the plaintiff to pay a reasonable sum to cover postoffer c...

Excerpt: ...ne month. Nelson Decl. ¶4. Plaintiffs did not respond in time. The parties later stipulated plaintiffs would respond to discovery by August 25, 2021, but plaintiffs failed to do so. At a September 15, 2021 Informal Status Conference, plaintiffs' counsel agreed to serve responses by September 22, 2021. Plaintiffs failed to do so. Defendants moved to compel on November 5, 2021, and the motion was granted, requiring production and payment of sancti...

Excerpt: ... 16, 2021 defendant served 81 special interrogatories. Plaintiff seeks a protective order withdrawing the interrogatories or reducing them to 35. A party may propound no more than 35 special interrogatories without a declaration stating that a greater number is warranted due to the complexity of the issues, the financial burden of conducting an oral deposition or the expedience of using this method to provide the responding party the opportunity ...

Excerpt: ...All OVERRULED. No Objections from Defendant. Motion for Summary Judgment A plaintiff moving for summary judgment must establish all elements of a cause of action but is not required to disprove any affirmative defense asserted by the defendant. WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532. Lease agreements are governed by ordinary rules of contract interpretation. Golden W. Baseball Co. v. City of Anaheim (1994) 25 Cal....

Excerpt: ...The arbitrator's final award found against plaintiff's cross-claim. Defendant Metson was plaintiff's counsel for part of the arbitration. Plaintiff alleges defendant's professional negligence caused its loss at arbitration as well as causing plaintiff to incur extra fees when defendant's successor counsel worked to “clean up” defendant's errors. Defendant moves for summary judgment on the grounds that defendant's alleged negligence did not ca...

Excerpt: ...an anti‐SLAPP motion, arguing plaintiff's complaint arises out of protected activity ‐‐ his pursuit of a civil harassment restraining order against MR. 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 constitutiona...

Excerpt: ...ed supplemental briefing as to whether a non-stockholder can be held liable as a corporation's alter ego and whether plaintiffs provided adequate evidence of an inequitable result. The court will adhere to its tentative ruling. As plaintiffs argue, alter ego liability is an equitable doctrine based on the facts and circumstances of each case. To apply a rigid stock ownership requirement, when other alter ego factors are present, would defeat the ...

Excerpt: ...igence The elements of a cause of action for negligence are (1) duty, (2) breach, (3) proximate cause, and (4) damages. Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 195. Defendants argue the complaint does not adequately allege defendants were aware of the uninhabitable conditions before plaintiffs vacated. Defendants argue that absent such allegations, there can be no breach. The complaint alleges plaintiffs alerted defendants to the conditio...

Excerpt: ...On October 29, 2021 the court denied defendant's motion for summary judgment on the grounds that it did not include a separate statement and its supporting evidence was unauthenticated. Defendant Taylor again moves for summary judgment. Weber moves to strike defendant Burch's cross-complaint. Motion for Summary Judgment Every MSJ must be accompanied with a “separate statement setting forth plainly and concisely all material facts that the movin...

Excerpt: ...raud and slander claims are subject to a three-year statute of limitations. Cal. Code of Civ. Proc. §338(d). A statute of limitations begins to run when the plaintiff suspects or should suspect that it has been wronged. Stalberg v. Western Title Ins. Co. (1994) 27 Cal.App.4th 925. Constructive notice of an interest in real property is imparted to subsequent buyers by the recording and proper indexing of an instrument in the public records. First...

Excerpt: ... §17529.5, California's “anti-spam” statute. The court sustained a demurrer to the first amended complaint on October 22, 2021. Defendant now demurs to the second amended complaint. The anti-spam statute prohibits commercial e-mail advertisement that “contains or is accompanied by a third-party's domain name without the permission of the third party,” “contains or is accompanied by falsified, misrepresented, or forged header informatio...

Excerpt: ... records. Plaintiff alleges defendants' answers to his second amended complaint are conclusory and fail to state facts sufficient to constitute a defense. Demurrers A demurrer to an answer is proper if it does not “state facts sufficient to constitute a defense[.]” Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879- 880. Common-law defenses and claims can be pleaded generally. FPI Development Inc. v. Nakashima (1...

Excerpt: ...cility, Spine Restoration. Defendant alleges Dr. Hopkins failed to produce requested documents and provided vague and evasive responses and seeks to compel another deposition. A motion to compel a further deposition must be filed within 60 days of the completion of the record. Cal. Code of Civ. Proc. §2025.480(b). If a deponent fails to answer a question or produce a document under the deponent's control that is specified in the deposition notic...

Excerpt: ...bring a direct action against management for decreased stock value; the corporation itself must bring the action, or a derivative suit on behalf of the company. Schuster v. Gardner (2005) 127 Cal.App.4th 305, 312. When business partners incorporate, they become shareholders unless the corporate form is disregarded. Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1161. Defendant demurs to the cause of action for breach of fiduciary ...

Excerpt: ...ents. Defendants demur to plaintiff's causes of action for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and violation of Bus & Profs. Code §17200. Breach of Fiduciary Duty A fiduciary relationship is either imposed by law or created by agreement. Maglica v. Maglica (1998) 66 Cal.App.4th 442, 447, Gab Bus. Servs. v. Lindsey & Newsom Claim Servs. (2000) 83 Cal.App.4th 409, 416. The essential elements of a fiduciary relat...

Excerpt: ... the properties. The Association moves for summary judgment, arguing the evidence shows they did not restrict plaintiff's use of the street, did not direct the Meehans to obstruct plaintiff's access and had no affirmative duty to remedy the alleged nuisance. Evidentiary Objections: Defendant's Objections OVERRULED. Motion for Summary Judgment A court determining a summary judgment motion applies a three-step process: (1) identifying issues framed...

Excerpt: ...ail store but alleges that use was prohibited by local zoning rules. Plaintiff alleges Coldwell negligently or fraudulently failed to inform him that his intended use of the property was illegal. Pink, plaintiff Ghods's ex-fiance and former business partner, cross-complained, with similar allegations of professional negligence, breach of fiduciary duty and constructive fraud against Coldwell and its agents. On September 22, 2021 the court sustain...

Excerpt: ...nd operate residential properties. All were managed by defendant G.H. Cooper Properties (GHCP). Plaintiffs are members of the GHCP LLCs and parties to their operating agreements. Defendant Grayson was GHCP's attorney and, from June 2013 through June 2016, its CEO and director. He was not a member of GHCP or any of the GHCP LLCs. In 2018, GHCP filed for bankruptcy. Plaintiffs allege Grayson deliberately mismanaged GHCP, using LLC funds for his own...

Excerpt: ...nd operate residential properties. All were managed by defendant G.H. Cooper Properties (GHCP). Plaintiffs are members of the GHCP LLCs and parties to their operating agreements. Defendant Grayson was GHCP's attorney and, from June 2013 through June 2016, its CEO and director. He was not a member of GHCP or any of the GHCP LLCs. In 2018, GHCP filed for bankruptcy. Plaintiffs allege Grayson deliberately mismanaged GHCP, using LLC funds for his own...

Excerpt: ...n Drive, the road separating their properties. The Association moves for summary judgment, arguing the evidence shows they did not restrict plaintiff's use of Horizon Drive, did not direct the Meehans to obstruct plaintiff's access and had no affirmative duty to remedy the alleged nuisance. Evidentiary Objections: Defendant's Objections OVERRULED. Motion for Summary Judgment A court determining a summary judgment motion applies a three-step proce...

Excerpt: ...ross-defendants demur and move to strike the request for punitive damages. Negligence When the negligent performance of a contract amounts to nothing more than a failure to perform the express terms of the contract, the claim is one for contract breach, not negligence. North American Chemical Co. v. Superior Court (1997) 53 Cal.App.4th 186, 195. However, a negligent failure to perform contractual duties with “care, skill, reasonable expedience,...

Excerpt: ...ing. Defendant demurs to the first amended complaint. No opposition was filed. Breach of Contract The elements of breach of contract are (1) contract, (2) performance by plaintiff, (3) breach, and (4) damage. Lortz v. Connell (1969) 273 Cal.App.2d 286, 290. Defendant argues plaintiff has not adequately alleged performance or breach. The complaint alleges plaintiff “performed all acts, conditions, covenants, promises and other obligations requir...

Excerpt: ...SLAPP statute. Courts resolving an anti-SLAPP motion under Cal. Civ. Code §425.16 must follow a two-step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In the first step (“prong one”), the court determines whether the conduct underlying the plaintiff's cause of action arises from the defendant's constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. This is a threshold issue—i...

Excerpt: ... complainant Tahmineh also alleges assault and battery against cross-defendant Amin, who is alleged to have forcibly kissed her and touched her breasts without consent. Cross-defendants demur to the first amended complaint. Demurrer The elements of a breach of contract action are (1) contract between the parties, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damages. Coles v. Glaser (2016) 2 Cal.App.5th...

Excerpt: ... amended complaint. Breach of Contract A contract for the sale of real property, or an agreement authorizing an agent or broker to purchase or sell real estate, must be in writing. Cal. Civ. Code §1622. Defendants argue the breach of contract claim is defective because it alleges an agreement authorizing an agent to sell real estate but does not allege the agreement was written. While the FAC includes a copy of the parties' “Revocable Living T...

Excerpt: ...order regarding cross-complainant Maree, Inc.'s requests for production of documents. Breach of contract/quasi-contract An unsigned invoice cannot, in and of itself, create a contract when it is not part of an existing agreement. Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1501. A written contract can be alleged by attaching it to the complaint in its entirety or by alleging its legal effect. E.g. Gilmore v. The Lycoming Fire Ins. Co....

Excerpt: ...funds for personal expenses, selectively enforced CC&Rs against her, wrongfully took her property and threatened to report her to the Department of Children and Family Services if she did not pay monies due to the HOA. Defendants Wortman and Bennett filed common-law motions for judgment on the pleadings to plaintiff's third amended complaint. A motion for judgment on the pleadings may be made at any time prior to trial or at trial. Martinez v. Sa...

Excerpt: ...perty and purchased the property in reliance on that representation. The Cohen plaintiffs purchased a nearby property, which they allege includes the landing. The Kaplans cross-complained, alleging adverse possession of the landing, negligent misrepresentation, false advertising and breach of fiduciary duty against Sotheby's, its agents and the sellers. Sotheby's defendants demur on statute of limitations grounds and move to strike punitive damag...

Excerpt: ... contracts agreeing to pay La Peer's usual, customary and reasonable rates for services, then breached by paying the rate allowed under plans for out‐of‐ network care. Amgen moves for summary judgment or adjudication. Evidentiary Objections Defendant's Objections 1, 2 SUSTAINED (lack of foundation); 3 (speculation); 7 (speculation, opinion); 9 (legal conclusion). Other objections OVERRULED. A court determining a summary judgment motion applie...

Excerpt: ...hrough fifth causes of action of Drori's FACC. Second Cause of Action for Failure to Pay Earned Compensation To prevail on a claim for unpaid wages, the complaint must show (1) plaintiff performed work for which they were not properly compensated, or (2) the employer suffered or permitted the work. Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 584-585. Under Cal. Lab. Code §558.1, an employer or their agent can be liable for violations o...

Excerpt: ...ation on statute of limitations grounds and seek attorney's fees and costs under the retainer agreement between RC3 and Mashian Law Group. Cal. Civ. Code §1717 allows a prevailing party to recover fees if the contract so provides. Attorney's fees are recoverable by a nonsignatory when a signatory sues under a contract with an attorney's fees provision as if defendant were a party. Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 819. If...

Excerpt: ...ode of Civ. Proc. §337(a). Partial payment extends the statute of limitations. E.g., Martindell v. Bodrero (1967) 256 Cal. App. 2d 56, 59-60. On demurrer, a court treats plaintiff's interpretation of a contract as correct unless the pleading is “clearly erroneous.” Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. The FAC alleges a contractual deadline of February 26, 2015 for repayment. FAC ¶12. Defendant a...

Excerpt: ...1 and 2 to the Law declaration SUSTAINED (lack of foundation, hearsay), other objections to Law declaration OVERRULED. Other objections OVERRULED. There is a liberal federal policy favoring arbitration, requiring courts to resolve doubts in favor of arbitration. AT&T Mobility, LLC v. Concepcion (2011) 563 U.S. 333, 339; AT&T Tech., Inc. v. Comm Workers of Am. (1986) 475 U.S. 643, 650. A similar policy has been expressed by California courts. Haye...

Excerpt: ...eges various causes of action and seeks to revoke his guarantee of rent. The court previously sustained a demurrer with leave to amend. James demurs to the first amended complaint. First Cause of Action Breach of Contract An agreement that by its terms “is not to be performed within a year from the making thereof” is subject to the statute of frauds and must be written. Cal. Civ. Code §1624(a)(1). If an oral agreement contains an indefinite ...

Excerpt: ...ndant's motion to compel but delayed ruling pending plaintiff's motion to amend the complaint. There is a strong public policy in favor of allowing amendments to pleading. Mesler v. Bragg Mgmt. Co. (1985) 39 Cal.3d 290, 296. Generally, unless there is prejudice to the opposing party or unreasonable delay, it is an abuse of discretion to deny leave to amend. A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1068. Under Broughton-Cruz, cla...

Excerpt: ... defective. Fleetwood agreed to provide plaintiff with $11,260.38 worth of product and moves for a determination of good faith settlement. “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co- obligors . . . shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors[.]” Cal. Code ...

Excerpt: ...advertisement that “contains or is accompanied by a third-party's domain name without the permission of the third party,” “contains or is accompanied by falsified, misrepresented, or forged header information,” or “has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.” Cal. Bus. & Prof. Cod...

Excerpt: ...., who found plaintiff breached the agreement's confidentiality provision. Judge Chernow awarded fees and costs and ordered plaintiff to “decline to make any public statements making such disclosures to confirming the amounts (sic) set for (sic) in the settlement agreement[,]” and “preclude[ing her] from making any publication of her story.” Petition pg. 6. Plaintiff petitions to vacate or modify the award, arguing it violates Cal. Code o...

Excerpt: ...ndant demurs. No opposition has been filed. This matter was continued from September 10, 2021 to allow plaintiff to obtain new counsel. The court has not been notified that plaintiff has retained counsel. No opposition has been filed. Breach of Contract The elements of breach of contract are (1) existence of a contract, (2) performance by plaintiff, (3) breach and (4) damage. Lortz v. Connell (1969) 273 Cal.App.2d 286, 290. Defendant argues plain...

Excerpt: ...emurrer is sustained with leave to amend, the leave to amend is interpreted to mean leave to address issues identified by the demurrer or issues identified by the court in sustaining the demurrer. Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015. Defendants move to strike plaintiff's claims under the sixth, eighth and fourteenth amendment on the grounds they are outside the scope of the court's grant of leave to amend. Plaintiff's first a...

Excerpt: ...dgment does not need to disprove any defense asserted by the defendant. All plaintiff need do is prove each element of the cause of action. WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532. A cause of action for breach of contract is subject to a four-year statute of limitations. Cal. Code of Civ. Proc. §360. The statute of limitations for a breach of contract action accrues at the time of breach, whether or not damages ha...

Excerpt: ...l Management Services. Defendant Spielberg allegedly promised Neuro a 50% ownership interest in TMS in exchange for an $80,000 investment and $10,000 loan. Plaintiff alleges it transferred the money but never received the ownership interest. Spielberg also allegedly promised to remove a “buy-back” provision from TMS's operating agreement but failed to do so. Defendants demur to the first amended complaint (FAC) and move to strike the request ...

Excerpt: ...tiff sues for malicious prosecution, false arrest, intentional infliction of emotional distress and negligence. Defendants Amex and Geary's move to compel arbitration pursuant to plaintiff's cardmember agreement. The Federal Arbitration Act applies to any transaction affecting interstate commerce. Allied- Bruce Terminix Cos., Inc. v. Dobson (1995) 513 U.S. 265, 277. Under the FAA, arbitration must be compelled where a valid agreement to arbitrate...

Excerpt: ...d a demurrer to the FAC with leave to amend as to the concealment and breach of implied covenant of good faith and fair dealing claims. Defendants now demur to those causes of action in the second amended complaint (SAC). A cause of action for fraud must be pleaded with specific facts showing “how, when, where, to whom, and by what means” the alleged misrepresentation was made. Hills Transp. Co. v. Southwest Forest Industries, Inc. (1968) 266...

Excerpt: ...ng the non-compete and non-disclosure agreements void. Defendants move for summary judgment or summary adjudication. Plaintiff's evidentiary objections OVERRULED. Motion for Summary Judgment/Adjudication Defendant moving for summary judgment or adjudication has the initial burden to show one or more elements of a cause of action cannot be established. If defendant makes that showing, the burden shifts to plaintiff to show a triable issue of fact....

Excerpt: ...on plaintiff's alleged defamation in 2010. Defendants filed requests for production and special interrogatories seeking documents and communications by plaintiff regarding Calvert. Plaintiff did not produce responses, arguing relevance and/or unduly burdensome. After an IDC, the court requested briefing. Any party may obtain discovery regarding any matter that is not privileged, “if the matter either is itself admissible in evidence or appears ...

Excerpt: ... to settle for $25,000. Roofing subcontractor DBR Premium and general contractor HMJ Construction oppose. KJE Motion for Approval “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co- obligors . . . shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors[.]” Cal. Code of Civ. P...

Excerpt: ...� 12c, 1005(b)) OK OPPOSITION: Filed on July 12, 2021 [X] Late [ ] None REPLY: Filed on July 22, 2021 [ ] Late [ ] None ANALYSIS: I. Background On January 20, 2021, Arbitrator Jay R. Davis with the American Arbitration Association (the “Arbitrator”) issued an award in favor of Santander Consumer USA, Inc. (“Santander”) and Petitioner Sullivan Motor Cars, LLC dba Toyota Santa Monica (“Petitioner”) and against Respondent Zoe Muntaner (�...

Excerpt: ...TIVE RULING: Plaintiff Metropolitan Property and Casualty Insurance Company's (1) Motion to Compel Answers to Form Interrogatories and (2) Motion to Deem Admitted the First Set of Request for Admissions are GRANTED. Defendant Jesus Antonio Delgado is ordered to serve verified responses without objections to the Form Interrogatories within thirty (30) days of notice of this order. Plaintiff's requests for sanctions are also GRANTED in the amount o...

Excerpt: ...rer at least five (5) days before the next scheduled hearing. SERVICE: [X] Proof of Service Timely Filed (CRC, rule 3.1300) OK [X] Correct Address (CCP §§ 1013, 1013a) OK [X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK OPPOSITION: None filed as of September 24, 2021 [ ] Late [X] None REPLY: None filed as of September 24, 2021 [ ] Late [X] None ANALYSIS: I. Background On June 23, 2021, self-represented Roger Y. Ryu (“Plaintiff”) filed...

Excerpt: ... judicial notice. Cal. Code of Civ. Proc. §430.30. A recorded deed is an official act of the California executive branch, subject to judicial notice. Cal. Evid. Code §§452(c); Ragland v. U.S. Bank National Ass'n. (2012) 209 Cal.App.4th 182, 194. An owner's right to enforce documents governing a common interest community is “‘inextricable' from their ownership of their property and cannot be assigned to non-owners without also transferring ...

Excerpt: ...o invest in the tech company Palantir. A dispute arose between Davis and Rickel, culminating in Rickel's removal from the business. Davis and Rickel entered into a handwritten settlement agreement in 2014 under which Rickel gave up his interest in DTA in exchange for a share of profits from one or all affiliated entities. Rickel alleges the agreement entitles him to profits from all deals with all DTA-affiliated entities; Davis argues it applies ...

Excerpt: ...tion and punitive damages. A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damage or one or more issues of duty. Cal. Code of Civ. Proc. §437c. A defendant moving for summary adjudication has the initial burden to show one or more elements of a cause of action cannot be established or an affirmative defense exists. If defendant makes that show...

Excerpt: ...ustained defendants' demurrer with leave to amend. Defendants now demur to the first amended complaint. Open Book Accounts A book account is a “detailed statement which constitutes the principal record” of transactions between the parties. Eloquence Corporation v. Home Consignment Center (2020) 49 Cal.App.5th 644, 666. An action to recover on a book account consisting of one or more entries is subject to a four-year statute of limitations. Ca...

Excerpt: ... the court lacked jurisdiction and move to set aside the default and quash service. A court may, on motion of an injured party, may set aside any void judgment or order. Cal. Code of Civ. Proc. §473(d). A default void for lack of personal jurisdiction can be challenged under §473(d). Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1250. To exercise personal jurisdiction over a nonresident defendant, plaintiff has the burden to show d...

Excerpt: ...reached a confidential settlement with the Tork Law defendants, who move for determination of good faith settlement. Defendant Ghodadra opposes. “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co- obligors . . . shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors[.]” Cal....

Excerpt: ...int Dume Tennis Association (PDTA), own property as tenants in common. The Bernsteins allege PDTA's bylaws give members a right of first refusal or purchase option if another member decides to sell their interest or if the PDTA decides to sell the entire property. The Bernsteins allege the individual cross-defendants refused to acknowledge the purchase option, deceived them as to the content of an amendment to the bylaws and induced a sale of the...

Excerpt: ...o decay due to missing bark and failed to properly trim its roots. Arborists moves for summary judgment. Evidentiary Objections Plaintiffs' Objections OVERRULED. Defendant's Objections OVERRULED. Summary Judgment Standard Absent a duty of care, no negligence cause can lie. Ky. Fried Chicken of Cal. v. Superior Ct. (1997) 14 Cal.4th 814, 819. Generally, there is no duty to correct or warn of dangerous conditions without the right to control the pr...

Excerpt: ...r mortgage agreement with 1126 Chantilly's predecessor, and the foreclosure sale was conducted under false pretenses. The Tallaricos filed a prior wrongful foreclosure case arising out of the same facts (case no. 20SMCV00959), which they dismissed. 1126 Chantilly Road and Allstar Financial Services move to compel arbitration. Under Cal. Code of Civ. Proc. §1281.2, a court orders parties to arbitrate if “it determines that an agreement to arbit...

Excerpt: ...ns Recreation and Conservation Authority, which own property in and adjacent to Sycamore Park community, move for summary judgment or adjudication. Evidentiary Objections Defendants' Objections: All objections to Boss declaration (Objections 1-35) SUSTAINED for improper legal opinion from expert witness. Objection 37 SUSTAINED for speculation, other objections OVERRULED. Plaintiffs' Objections: Objection 1 SUSTAINED (improper opinion). Objection ...

Excerpt: ...on to Vacate Sister-State Judgment on Judgment by Confession is GRANTED. Background On April 21, 2021, Judgment Creditor Queen Funding, LLC (“Judgment Creditor”) filed an “Application for Entry of Judgment on Sister-State Judgment” as to Judgment Debtors National Progressive Inc. dba Best-1 Trucking Service and Tony Taofu Hsu (collectively, “Judgment Debtors”). On April 21, 2021, “Judgment Pursuant to Code of Civil Procedure Section...

Excerpt: ...t administrative remedies and statute of limitations grounds. Defendant Dina also moves to quash the summons. A defendant establishes their initial burden on summary adjudication by showing evidence to negate an essential element of a cause of action, demonstrate plaintiff does not have or cannot obtain needed evidence or establishes a complete defense. Cal. Code of Civ. Proc. §437c(c), Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. On...

Excerpt: ...ants, who represent the LA County Department of Public Health and the City of West Hollywood, arbitrarily designated the patio as “indoor dining,” fining plaintiffs and closing the patio. Plaintiff alleges violation of Fourth and Fourteenth Amendment rights and sues under 42 U.S.C. §1983. Plaintiff also alleges defendant Cosylion engaged in harassment, issuing noise violation citations. Defendants County of Los Angeles, City of West Hollywoo...

Excerpt: ..., arguing failure to exhaust administrative remedies and statute of limitations grounds. Defendant Dina also moves to quash the summons. A defendant establishes their initial burden on summary adjudication by showing evidence to negate an essential element of a cause of action, demonstrate plaintiff does not have or cannot obtain needed evidence or establishes a complete defense. Cal. Code of Civ. Proc. §437c(c), Aguilar v. Atlantic Richfield Co...

Excerpt: ...A motion for judgment on the pleadings (MJP) is essentially the same as a demurrer but may be filed after an answer. Smiley v. Citibank (1995) 11 Cal.4th 138, 145-146. When analyzing an MJP the court treats all factual allegations as true and based on the face of the pleading or judicially noticeable facts determines whether the pleading states a valid cause of action. Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339. Breach of Contract General...

Excerpt: ...t of an attachment may only issue in actions on a claim for money based on contract where the amount owed exceeds $500 and is “fixed or readily ascertainable” by reference to the contract. A writ of attachment may not issue against a claim secured by real property and may only issue against a natural person when the claim arises out of the conduct of a “trade, business, or profession.” Cal. Code of Civ. Proc. §483.010. A writ of attachme...

Excerpt: ... name, preventing him from collecting against defendant's contractor's bond. Corbin demurs. Evidentiary Objections Plaintiff's objection SUSTAINED (improper, non-judicially noticeable declaration in support of demurrer.) Defendant Corbin states an identical action (Case No. SC121863) brought by the Ridgeways against B & R Air Conditioning, Inc. was dismissed after default was set aside and plaintiff failed to file an amended complaint. Request fo...