Excerpt: ...�Alternatively, the party may affirm the contract, treating it as repudiated, and recover damages for breach of contract . . . .� Id. �The court does not rescind contracts but only affords relief based on a party's rescission. Both the grounds for rescission and the means by which parties may rescind their contract are governed by statute. � Id. �The steps to rescind a contract are set forth in section 1691[.] Id. The statutory grounds fo...

Excerpt: ...eral or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the tri...

Excerpt: ...e matter proceed, Plaintiff�s unopposed Motion for Judgment on the Pleadings is granted. In considering a motion for judgment on the pleadings, courts consider whether properly pled factual allegations, assumed to be true and liberally construed, are sufficient to constitute a cause of action. Stone Street Capital, LLC v. Cal. State Lottery Com'n (2008) 165 Cal.App.4th 109, 116; Fire Ins. Exchange v. Sup. Ct. (2004) 116 Cal. App. 4th 446, 452-5...

Excerpt: ...ute is permissive, the court determines that an order allowing attorney�s fees and costs is appropriate for this case. �The determination of what constitutes a reasonable fee generally �begins with the �lodestar,� i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate�.�� �[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on facto...

Excerpt: ...ep analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 28...

Excerpt: ...ep analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 289, 2...

Excerpt: ...mental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.� Id. �Although in extreme cases a court has the authority to order a terminating sanction as a first measure . . . , a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ...

Excerpt: ... fees to the prevailing party. �The determination of what constitutes a reasonable fee generally �begins with the �lodestar,� i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate�.�� �[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved...

Excerpt: ...pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., �� 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint [or answer], as it stands, unconnected with extraneous matters, states a cause of action [or defense].'� Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. Accord McKenney...

Excerpt: ...erma v. County of Orange (2004) 120 Cal. App. 4th 709, 715; Frazee v. Seely (2002) 95 Cal. App. 4th 627, 635 (�Because the Legislature has provided for the fairly lenient granting of continuances to oppose summary judgment motions, and the premature grant of summary judgment may infringe upon the right to a jury trial, under these facts the court abused its discretion by failing to grant the request.�) In the present case, attorney Paul has p...

Excerpt: ...of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.�). Thus, the claim is not adequately pled. As to the fifth cause of action �pursuant to section 815.2 of the Government Code, the law was settled by Van Kempen v. Hayward Area Park etc...

Excerpt: ...bar to claims re express indemnity agreements); Weil & Brown, Cal. Prac. Guide: Civ. Pro Before Trial (The Rutter Group 2010) ��12:910 and 12:925. Judges� have limited discretion in ruling upon a motion for good faith settlement, and the rulings must be made �in view of the equitable goals of the statute, in conformity with the spirit of the law and in a manner that serves the interests of justice�, and must serve the goals of �encour...

Excerpt: ...continuing or recurring obligation: �When an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period.� (Hogar Dulce Hogar v. Community Development Commission (2003) 110 Cal.App.4th 1288, 1295, 2 Cal.Rptr.3d 497.) Because each new breach of such an obligation provides all the elements of a claim�wrongdoing, harm, and causation (Pooshs v. Philip Morris...

Excerpt: ...s. Defendants did not assert arbitration as a defense in their May 2019 answer; defense counsel has made statements as recent as 4 September 2019 about their desire to litigate the matter through trial; defendants delayed their demand for arbitration for months after plaintiff�s March 2019 complaint and defendants� May 2019 answer without any persuasive justification as to why the demand was not made earlier; defendants have fully participate...

Excerpt: ... a wrongful use or with an intent to defraud, or both.� Wood v. Santa Monica Escrow Co. (2007) 151 Cal. App. 4th 1186, 1189. Plaintiff has not clearly set forth these required elements. While it appears that Plaintiff may be contending that Defendant wrongfully took real property belonging to decedent, there are no clear allegations as to what real property was taken or how there was a wrongful use or intent to defraud. Plaintiff must clearly s...

Excerpt: ...�� Code Civ. Proc., � 438. �Under general rules of civil procedure, an answer must contain �[t]he general or specific denial of the material allegations of the complaint controverted by the defendant� and �[a] statement of any new matter constituting a defense.� (Code Civ. Proc., � 431.30, subd. (b)(1) & (2).)� Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812. � � The phrase �new matter� refers to ...

Excerpt: ...)). It may be an abuse of discretion to grant relief under Code of Civil Procedure Section 473 where there is unexplained delay of over three months before moving for relief. Huh v. Wang (2008) 158 Cal.App.4th 1406, 1421 n.4. Here, default was entered in this case on December 5, 2018, and the present motion was not filed until September 17, 2019. The six month requirement was not met. As such, the motion is untimely. Additionally, on the merits, ...

Excerpt: ...enerally Cal. Practice Guide: A.D.R. (The Rutter Group 2012) �5:83-5:84. Here, the court finds the arbitration agreement to be both procedurally and substantively conscionable. As to Plaintiff�s procedural unconscionability arguments, "a compulsory predispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a 'take it or leave it' basis." Lagatree v. Luce, Forward, Hami...

Excerpt: ... hostile to the true owner; d. under claim of right; and e. for the statutory period of five years. Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045. Here, Plaintiff has adequately alleged each and every element. The use alleged is �parking.� Nowhere in the first amended complaint does Plaintiff seek ownership or exclusive rights, which would be a claim for adverse possession. Plaintiff seeks only a non-exclusive prescriptive ease...

Excerpt: ...how evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the moving party showed facts justifying a judgment in movant's favor; and (3) determine whether ...

Excerpt: ... is a permissive cross-complaint, governed by Code of Civil Procedure section 428.50(c) which states: �A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.�� Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864. It is also governed by Code of Civil Procedure sect...

Excerpt: .... Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045. Here, Plaintiff has adequately alleged each and every element. The use alleged is �parking.� Nowhere in the first amended complaint does Plaintiff seek ownership or exclusive rights, which would be a claim for adverse possession. Here, however, Plaintiff seeks only a non-exclusive prescriptive easement for ingress, egress, and parking. As such, the first amended complaint is adeq...

Excerpt: ...iness and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed written consent. �After termination of a lawyer-client relationship, the lawyer owes two duties to a former client. The lawyer may not (i) do anything that will injuriously affect the former client in any matter in which the lawyer represented the former client, or (ii) at any time use against...

Excerpt: ...a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. A...

Excerpt: ... allowing leave to amend. McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78; Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2010), �7:130 (citing Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). Because defendant has failed to show the court that the pleading can be amended successfully, leave to amend is denied. Plaintiff is entitled to judgment of $12,528.61 in principal, plus costs and attorney�s ...