Excerpt: ... to pay rent under the guaranty agreement and defamed him by accusing him of domestic violence. Breach of Contract Under Cal. Civ. Code §2815, “a continuing guaranty may be revoked at any time by the guarantor, in respect to future transactions, unless there is a continuing consideration which he does not renounce.” A third party cannot enforce a contract, even if he is incidentally benefitted by it, unless it is “the intention of the part...

Excerpt: ...aintiff's rights,” unintentional harm can nonetheless constitute malice or oppression for the purposes of awarding punitive damages. Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.702, 716. The Amron defendants argue the FAC does not allege intentional conduct or aggravating circumstances or rise to the level of “despicable” conduct required for punitive damages. The FAC alleges defendants were aware their dog had a vicious nature and pr...

Excerpt: ...mith, signed an arbitration agreement on August 17, 2021 applying to any claim or controversy arising out of care at Terraza Court. Plaintiff Smith moves for trial priority; defendants move to compel arbitration. Trial Preference Under Cal. Code of Civil Procedure §36(a), a court will grant trial preference to a party to a civil action over 70 years old if the party has a substantial interest in the action, and the party's health is such that pr...

Excerpt: ...fired De Mill, then contracted directly with Wittrock to complete the work. Wittrock alleges it agreed to stay on the job if VBA paid outstanding amounts owed by De Mill; VBA allegedly failed to make required progress payments and denied existence of a direct contract with Wittrock. VBA demurs to the first amended cross-complaint. Standing/Licensing Under Cal. Code of Civ. Proc. §7031, a contractor cannot recover compensation for performance und...

Excerpt: ...lack of consent and (3) harm. CACI 1300. The battery claim is alleged against unnamed doe defendants. Defendants Giacomino Drago, Il Pastaio, FSC Corporation dba Il Pastaio, Celestino Drago and Steven Piano (collectively the restaurant defendants), previously named as Does 1-5, demur. The complaint does not clarify how any restaurant defendant is liable for battery. It lacks specific allegations that restaurant employee defendants shot plaintiffs...

Excerpt: ...ights,” unintentional harm can nonetheless constitute malice or oppression for the purposes of awarding punitive damages. Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.702, 716. The Amron defendants argue the FAC does not allege intentional conduct or aggravating circumstances or rise to the level of “despicable” conduct required for punitive damages. The FAC alleges defendants were aware their dog had a vicious nature and propensity to...

Excerpt: ...due June 5, 2023. Volkswagen responded two days late (June 7), with verifications sent June 10, 2023. Volkswagen moves for relief from its waiver of objections due to untimely discovery responses. A court may relieve a party from waiver of objections to discovery requests for failure to timely respond if the moving party shows responses were subsequently served, the responses are in substantial compliance with the statute, and the failure was the...

Excerpt: ... an option contract whereby Jones could purchase the property for $2,275,000. The initial version of the option included a copy of a form real estate purchase agreement (RPA) that would govern the sale following exercise of the purchase option. Later, the option was amended deleting the RPA and listing the terms of the purchase agreement. Plaintiffs allege they attempted to exercise their option on November 22, 2021, but Farmer refused to perform...

Excerpt: ...vements. Busiashvili cross-complained seeking an easement. She moves to amend, adding a claim for adverse possession. The case was filed January 30, 2019; trial is set for September 18, 2023. Courts are to liberally exercise discretion to allow amendments to pleadings at any time. Desny v. Wilder (1956) 46 Cal.2d 715, 751. Leave to amend may be denied when the party seeking amendment delayed without justification. Melican v. Regents of Univ. of C...

Excerpt: ...hich the court granted in part, reducing the fees to $18,298.00. On June 30, 2023 SCLU filed another memorandum of costs after judgment, seeking $55,862.55 in post-judgment attorney's fees. Vara moves to strike and/or tax. A trial court has discretion to disallow recovery of costs if it determines they lack sufficient evidentiary support or were incurred unnecessarily. See, e.g., Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th ...

Excerpt: ...ng plaintiff meets the initial burden if they present evidence proving each element of the cause of action. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A successor-in-interest to a beneficiary foreclosing on a deed of trust may prosecute an unlawful detainer. Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 Cal.5th 474, 483- 484. After default on a deed of trust, the trustee is to record a notice of default. Cal. Civ. Cod...

Excerpt: ...business for decades, contributing capital, participating in meetings and receiving distributions. The court uses first names of the various Harkham parties for ease of reference. Terry alleges Efrem and his son Aron deny his status as partner, refusing to distribute profits from the hotel's sale and preventing him from inspecting books and records. Terry also alleges Efrem and Aron engaged in self-dealing, taking out loans against the hotel for ...

Excerpt: ...ing Pacific Horizon's use of the disputed easement to ingress and egress. The Meehans seek attorney's fees of $137,456.28 under California Civil Code §1717 and Article 5, Section 5.1 of the CC&Rs. A court may not award fees for legal work unrelated to a cause of action for which fees are authorized. Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 130. When all causes of action rely on the same facts, fees need not be apportioned between ca...

Excerpt: ...vailability. Shamooil moves to compel. Under Cal. Code of Civ. Proc. §1281.2, a court shall order a controversy to be arbitrated if it determines that a valid agreement to arbitrate the controversy exists. Plaintiff properly noticed and served a petition to compel arbitration pursuant to the arbitration provision in her policy. Plaintiff abided by the provision's requirements, including demanding arbitration and proposing arbitrators. State Farm...

Excerpt: ...f emotional distress, retaliation and negligence, which were included in the initial complaint, not present in the first amended complaint (allegedly due to plaintiff's mistake), and subject to demurrer in the second amended complaint because the court did not give leave to restore them. Plaintiff seeks to add new causes of action for unfair business practices and wrongful discharge in violation of public policy and seeks punitive damages. Courts...

Excerpt: ...the request for punitive damages. Levy A demurrer can be sustained when matters contained in attached exhibits contradict the allegations in the complaint. Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505. Levy demurs, arguing he was merely a member of defendant HLI Holdings, LLC and cannot be liable for the entity's torts or contractual obligations. Levy argues the purchase agreement (FAC, exh. 1) shows he was not a party to the...

Excerpt: ...tir. 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 the business in exchange for a share of profits from “the fund's” future investments. On September 23, 2021 the court issued a ruling determining “the fund” referred only to DTS, not to all the Disruptive entities. Davis now mov...

Excerpt: ...r judgment on the pleadings, arguing the claims are time-barred. A motion for judgment on the pleadings is functionally identical to a demurrer and may be made on the grounds that a cause of action is barred by the statute of limitations. Cal. Code of Civ. Proc. §438(c)(2)(A), Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440. Breach of Note An action for failure to pay under a note payable on demand must be brought within six years of the...

Excerpt: ...laim. Caraballo and Athens demur breach of contract claim in the first amended complaint (FAC) and move to strike allegations Caraballo “defamed” plaintiff. Athens Demurrer The elements of a claim for breach of contract are (1) contract, (2) plaintiff's performance or excuse for nonperformance, (3) breach, and (4) damage. Otowroth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458. The FAC alleges either that all Los Angeles r...

Excerpt: ...l burden if they present evidence proving each element of the cause of action. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A successor-in-interest to a beneficiary foreclosing on a deed of trust may prosecute an unlawful detainer. Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 Cal.5th 474, 483- 484. After default on a deed of trust, the trustee is to record a notice of default. Cal. Civ. Code §2924. Three months after ...

Excerpt: ...ey's fees and costs. SM provides the lease and residential ledger reflecting lease payments made. SM Separate Statement 5-9. The declaration of general manager Nicole Brown states the ledger is kept in the ordinary course of business and is updated when a tenant makes a payment. Browne declaration ¶6. The ledger is admissible under the business records exception. The ledger and lease show the Ins failed to make required lease payments. This carr...

Excerpt: ...ld be stayed. The court allowed the parties to file additional briefing regarding applicability of Alberto v. Cambrian Homecare (2023) 91 Cal.App.5th 482, 486. In Alberto, the court held an arbitration agreement and confidentiality agreement should be read together since both were conditions of plaintiff's hiring and both governed disputes related to plaintiff's employment. The Alberto court held the confidentiality agreement was unconscionable f...

Excerpt: ...ove for summary adjudication of the Bus. and Profs. Code §7031 claim and adjudication of issues of duty connected to the breach of contract claim. Plaintiffs filed and withdrew a summary adjudication request as to treble damages. A plaintiff fulfills his or her initial burden on summary adjudication or judgment by proving each element of the relevant cause of action. Code of Civ. Proc. §437c(p)(1). The burden then shifts to defendant to show a ...

Excerpt: ...on her claims under the Unruh Civil Rights and Cal. Gov. Code §11135, arguing that UCLA's policy of allowing ‘incompletes' to remain visible on a student's transcript after a course has been completed disparately impacts disabled students. The Regents move for judgment on the pleadings on three of D.E.'s causes of action. Evidentiary Objections Objection 1 SUSTAINED (irrelevant, hearsay,) objections 2-3 OVERRULED, objections 4-5 SUSTAINED (hea...

Excerpt: ...oss- complainants received shares of Halo stock. Cross-complainants allege the sale was fraudulently induced, with Halo misrepresenting its financial status, connections in the industry and compliance with relevant laws. Halo demurs to the first amended cross-complaint. Cancelled Entity 7PG Upon the filing a certificate of cancellation by a limited liability company, the company's “powers, rights, and privileges shall cease.” Cal. Corp. Code ...