Excerpt: ...ndant demurs pursuant to Code of Civil Procedure § 430.10(e) on the grounds that Plaintiff fails to state facts sufficient to constitute a cause of action for unlawful detainer and pursuant to Code of Civil Procedure § 430.10(f) on the grounds that the complaint is uncertain. As a threshold matter, uncertainty is a disfavored ground for demurring to a complaint. See, e.g., Khoury v. Maly's of California (1993) 14 Cal.App.4th 612, 616; 1 Weil & ...

Excerpt: ... for breach of oral contract pled against Defendant Derek Beal, the demurrer is sustained with leave to amend. Defendant demurs to each component of the breach of oral contract claim. Since four oral agreements made between Derk and Derek are pled in one cause of action, if anyone is valid, the cause of action will survive since a party cannot demur to a part of a cause of action. See Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 99...

Excerpt: ... the FAC, however, statute of limitations is not a cause of action. Standard of Review A defendant meets its burden on a motion for summary judgment by showing either that plaintiff's claims have no merit or that there is a complete defense to the claims. (Code of Civil Procedure § 437c(p)(2).) A defendant can show this by providing factually devoid discovery responses from plaintiff or by providing admissible evidence that negates Plaintiff's c...

Excerpt: ...rrer is sustained without leave to amend, as to all causes of action set forth in the First Amended Complaint (“FAC”). Defendants shall prepare a proposed judgment of dismissal, separate from any formal order on the demurrer, and shall submit that judgment to plaintiff for approval as to form. The basis for this ruling is as follows. Plaintiff's deed of trust shows a maturity date of July 1, 2034. (FAC, Exh. “A”, p. 2; defendants' RJN, Ex...

Excerpt: ...he Second Amended Complaint (“SAC”) filed by Plaintiff Ali Rezapour and Plaintiff Aurora Rezapour (collectively, “Plaintiffs”). The SAC pleads causes of action for (1) declaratory judgment; (2) statutory violations (Civil Code § 2924(a)(6), § 2924.17, § 1227); (3) unlawful and attempted foreclosure; (4) cancelation of recorded documents; (5) unfair business practices in violation of Bus. & Prof. Code § 17200, et seq.; and (6) slander ...

Excerpt: ...all be filed and served no later than August 16, 2018. Code of Civil Procedure (“CCP”) § 473(a) gives the Court discretion in deciding whether to allow an amended pleading. There is “a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations]…” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) However, leave to amend can be denied where there is ...

Excerpt: ...to switch tactics and “add a summary adjudication claim” of the third cause of action for fraud or alternatively, have the court treat its motion as one for judgment on the pleadings with respect to fraud. With respect to the alternative request, this court has already ruled on the sufficiency of the pleadings, including the fraud cause of action. See Notice of Entry of Order [overruling Renee Hilliard, M.D.'s demurrer to all three causes of ...

Excerpt: ...timely. However, plaintiff is admonished that the court does not consider service by regular mail to be proper for Oppositions and Reply Briefs. (See CCP § 1005 (c).) In the future, plaintiff should also use more standard terminology in responding to demurrers and motions, labeling his opposing memorandum of points and authorities as an Opposition, not an Objection. This will aid the Clerk's Office in properly labeling it. Second Cause of Action...

Excerpt: ...by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or n...

Excerpt: ...ange its Order because Plaintiff has allegedly circumvented the stay against Merrill Lynch by seeking discovery, documents and depositions from it to prosecute the other named Defendants. See Willey Decl., paragraphs 5‐7 and Exhibits B, C and D. There is nothing wrong with this. First, the parties' agreement to stay the case did not, in any way, limit discovery. Merrill Lynch never raised the issue, and it did not request any limit CONTRA COSTA...

Excerpt: ...nst WCF is the fifth cause of action, for breach of the implied warranty of merchantability under Civil Code section 1791.1 and 1794. As against Ford, all of the causes of action pled in the complaint remain pending. As a second preliminary matter, the Court notes that the Slausons do not oppose the petition as CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 07/23/18 ‐ 14 ‐ it pertains to WCF. That is, the Slauso...

Excerpt: ...cient time to respond would be requiring an idle act creating further delay. The motion is not untimely because Local Rule 3.301(a)(2) provides that service of the Request for Assignment of Discovery Facilitator shall be deemed the proper filing of a Discovery Motion for purposes of the rule requiring that Discovery Motions be filed within forty‐five (45) days of service of the discovery responses. The Court finds that the local rule is not inc...

Excerpt: ...ly rent in the amount of $2883 payable on the 30th day of each month. The rent shall be paid to the law firm of McCarthy & Holthus, LLP, who shall hold all accumulating rent in its trust account, subject to further order of the Court. Upon entry of judgment in this action, the accumulated rent shall be paid to the prevailing party. Third, Plaintiff shall file and serve a declaration under penalty of perjury, every two months, confirming that all ...

Excerpt: ...ing documents on a “rolling” basis pursuant to the subpoena. The Court will consider Plaintiff's request for attorney's fees for the period prior to February 2018 which were necessitated by Merrill Lynch's initial delay in responding to the subpoena. Parties to appear to address attorney's fees. ...

Excerpt: ...ion of Business and Professions Code section 17200 et seq.). The Court addresses each cause of action separately below. Breach of Contract In light of the Court's ruling on Kessler's anti‐SLAPP motion, the Court need not, and therefore does not, address the demurrer to the breach of contract cause of action pled in Longmire's cross‐complaint. Fraud It appears that the cross‐complaint attempts to state a claim for fraud based on one or more ...

Excerpt: ...t petition before the Court by way of a noticed motion. The Court has considered carefully the material the parties have presented, and rules as follows. Background Work and Injury History Fernandez began working for Contra Costa County in either 1996 or 1998. (The briefing and the administrative record diverge on this date. For purposes of this ruling, the distinction is immaterial.) On three separate occasions, she was injured at work. In July ...

Excerpt: ...hed to Defendants' pleadings belies this argument, which the Court finds disingenuous. The email from Plaintiff dated May 10, 2018, (Exhibit D to the moving papers), unequivocally extends to May 18, 2018 Defendants time to respond to the Second Amended Complaint. The parties had been in the process of discussing the possible demurrer to the Second Amended Complaint. Plaintiff's “surprise attack” of filing the Request to Enter Default on May 1...

Excerpt: ...urt notes that Kessler filed a reply brief supporting the antiSLAPP motion on June 12, 2018. The reply was due to be filed on June 11, 2018. The Court strikes the late‐filed reply brief and declines to consider it. Section 425.16(f) As a preliminary matter, the Court rejects Longmire's position that CCP section 425.16(f) requires the Court to deny the motion. Section 425.16(f) imposes a requirement on the clerk of the court to schedule an anti�...

Excerpt: ...eir motion is not tabbed, in violation of Cal. Rules of Court, rule 3.1110, subd. (f). See also Local Rule 3.42, subd. (3). Defendants are directed to tab their exhibits in all future filings or risk monetary sanctions. Standard Code of Civil Procedure (“CCP”) §§ 437c(o)(1) and 437c(p)(2) provide the relevant legal standard for deciding the MSJ. Section 437c(o)(1) provides, in relevant part: A cause of action has no merit if one or more of ...

Excerpt: ...ovide a formal response to Plaintiffs' Second Request for Production of Documents which complies with the Code of Civil Procedure as previously ordered by the Court. A judge has broad discretion to impose sanctions for violations of court orders, including those intended to compel compliance with a party's disclosure and discovery obligations. The Court has the authority to impose more drastic sanctions, such as issue sanctions, evidence sanction...

Excerpt: ...uant to Code of Civil Procedure section 2016.040. Defendants and each of them shall have the right to take and complete Plaintiff's deposition. ...

Excerpt: ...ons WSI argues generally that Chevron has a time bar problem and that Chevron has not alleged sufficient facts to rely on the discovery rule. In the first instance, the demurrer does not identify which specific causes of action suffer from a limitations problem, or what the applicable statute(s) of limitations are. The Court is left to guess. On its own, this failure to support the contention that one or more of the causes of action is time‐bar...

Excerpt: ...s sale. No undertaking is required at this time, based on the information set forth in plaintiff's application for a fee waiver. (See, Code Civ. Proc., § 995.240 [undertaking may be waived for indigent party].) The purpose of this three‐month injunction is to allow the legal merits of plaintiff's complaint to be decided by demurrer. The Court finds a demurrer to be a more appropriate procedural vehicle for deciding that purely legal question. ...

Excerpt: ...n Loan Servicing, LLC (“Defendant” or “Shellpoint”). The Demurrer relates to the Second Amended Complaint (“SAC”) filed by Plaintiff Dean Oduah (“Plaintiff” or “Oduah”). The SAC pleads causes of action for (1) breach of contract; (2) promissory estoppel; (3) negligent failure to fulfill promise; (4) breach of contract & interference with 3rd party beneficiary contract; (5) negligent misrepresentation in loan modification; (6) ...

Excerpt: ...his is because California law has a strong preference for resolving disputes on their merits. Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696. The answer included with the moving papers is deemed filed and served on all parties who have appeared in this action as of the date of this order. The Court sets a case management conference for 9:00 a.m. in Department 15 on August 9, 2018. At that time, the parties should be prepared to set a tr...