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: ...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: ...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: ...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: ... 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: ...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...