Excerpt: ...reement”) which is submitted to the Court by the moving party as purporting to contain the arbitration provision upon which the moving party relies identifies the buyer as “5 Star Housing LLC.” In addition, the name of the defendant in the Verified Complaint is “5 Star Housing LLC.” As such, is it unclear if there is a typographical error in the motion or if the motion was actually intended to be brought by “5 Star Housjng LLC.” The...

Excerpt: ...by Plaintiff in opposing an appeal of Defendant David Ellis (“Ellis”) (the “Second Fees Motion”), and that when the motion was filed, Bostwick believed in good faith that his declaration supporting the motion provided sufficient information to calculate fees under the Lodestar method because it stated the number of hours counsel worked on tasks related to the appeal and stated the hourly rate for each attorney who performed the work. Plai...

Excerpt: ...ons.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rul...

Excerpt: ...tute a cause of action. (Code Civ. Proc. § 430.10(e).) The allegations in the complaint as a whole must be reviewed to determine whether a set of alleged facts constitutes a cause of action. (People v. Superior Court (Cahuenga's the Spot) (2015) 234 Cal.App.4th 1360, 1376.) A complaint need only meet fact-pleading requirements, which requires a statement of facts constituting a cause of action in ordinary and concise language, and should allege ...

Excerpt: ...e affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the compl...

Excerpt: ...de all of the following: [¶] (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any. [¶] (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the tit...

Excerpt: ...a court order compelling the parties to arbitrate a dispute covered by the agreement. (Code Civ. Proc., § 1281.2.) “The trial court may resolve motions to compel arbitration in summary proceedings, in which ‘[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact n...

Excerpt: ... also provides that the motion may be made before entry of judgment, and that after judgment has been entered, the public entity may only seek its fees and costs through a malicious prosecution action. On June 7, 2022, the court ordered summary judgment in favor of the County and against the plaintiff. A formal judgment has not yet been entered. Thus, the motion for attorney fees and costs is timely. The defendant's request for judicial notice of...

Excerpt: ...ed. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the ...

Excerpt: ...es out of obligations of a written agreement, namely, the Operating Agreement for a limited liability company known as 17848 Sky Park Circle LLC (“Skypark”), and that Defendants cannot be liable for any of the causes of action as Defendants are not parties to the Operating Agreement and did not sign the Operating Agreement. Defendants also assert that the Operating Agreement that is attached as Exhibit A to the Complaint contains an integrati...

Excerpt: ...e Nero is allegedly PNR's “alter ego.” The Court declines to consider the opposition by Respondent PNR Marketing Solutions, LLC (“PNR”), because there is no dispute that PNR is currently a “suspended” entity; and, there is no evidence that it has been “revived.” (See Rev. & Tax. Code, § 23301; Casiopea Bovet, LLC v. Chiang (2017) 12 Cal.App.5th 656, 662.) Nevertheless, the Court considers the opposing papers to the extent they we...

Excerpt: ...ettlement agreement', to avoid use of limited Court time and resources. As to the Settlement 1. All of the PAGA Notices to the LWDA should be submitted to the Court. 2. Are there any related or overlapping matters that may be affected by this Settlement? 3. There are 1,655 former employees. How are the waiting time penalties being taken into account in the calculation of the Individual Settlement Payments? 4. Why are the Individual PAGA Payments ...

Excerpt: ...ettlement agreement', to avoid use of limited Court time and resources. As to the Settlement 1. All references to Labor Code § 510 must be removed from the Releases since overtime violations are not alleged in the operative First Amended Complaint or PAGA Notice. 2. Are there any related or overlapping matters that may be affected by this Settlement? It is unclear if the Jackson Declaration's reference to Daniel Carillo was in error or if it is ...

Excerpt: ...on for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc. §437c(f)(1).) A moving plaintiff meets his or her “burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc. § 437c(p)(...

Excerpt: ...t Defendants, including BofA, negligently owned, operated and maintained the premises where the Incident occurred in a dangerous and defective condition by designing, creating, building, maintaining, and controlling the walkway area where the Incident occurred “in such a manner as to create a dangerous condition for users including having a potential tripping and/or fall hazard as well as a variance offset in the walkway that was more than triv...

Excerpt: ...aintiff's objections to the declaration of Defendant Waki, filed under ROA 376, are overruled. Defendants' objections to Plaintiff's declaration are sustained as to the legal conclusion in paragraph 2 that Plaintiff was an independent contractor, and the remaining objections are overruled. “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment a...

Excerpt: ... considered to be an arbitration agreement subject to the statutory contractual arbitration law. [Citation.] Those statutory provisions represent a comprehensive statutory scheme for the arbitration of disputes. As such, the Legislature's use of the word “shall” in the statutory provisions which we now discuss makes them mandatory, not precatory. [Citation.]” (Louise Gardens of Encino Homeowners' Assn., Inc. v. Truck Ins. Exch., Inc. (2000)...

Excerpt: ...lantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) A plaintiff moving for summary judgment satisfies his or her initial burden by showing with competent evidence that each element of the cause of action in question has been “proved,” and hence that there is no defense thereto. (See ibid.) Once the moving party meets that burden...

Excerpt: ...that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff nee...

Excerpt: ...��in person or by telephone” with the party that filed the offending pleading. (Code Civ. Proc. §§ 430.41, 435.5; Palmer Dec.) 2. General Principles on a Demurrer A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated...

Excerpt: ...ms that any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete. [¶] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. [¶] (3) An objection to an interrogatory is without merit or too general. (b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section ...

Excerpt: ...nce Randazzo, Thu Nguyen, Michael Waisgerber, Kate Charles, Dorothy Villa, John Rhinehart, and Sue Creamer) Evidentiary Objections filed on 9-28-22 under ROA No. 403: Defendants object to the supplemental declaration of Ben-Thomas Hamilton, filed on 9-14-22 under ROA No. 368, the second supplemental declaration of Ben- Thomas Hamilton, filed on 9-16-22 under ROA No. 373, and Plaintiffs' Supplemental Memorandum of Points and Authorities on 9-14-22...

Excerpt: ...e court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, the court examines each jurisdiction's interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists. Third, if the court finds that there is a true conflict, it carefully eval...

Excerpt: ...on of public property. 4. Plaintiffs cannot establish the elements to support their negligence claim. 5. Plaintiffs cannot establish the elements to support a violation of the California Public Records Act (Government Code Section 6250, et seq.) Motion is DENIED in its entirety. Initially, the Court notes a staggering amount of documents were filed as to this motion. (3,450 pages). Each Plaintiff (Bardales and Kneeshaw) has filed their own opposi...

Excerpt: ..., provides, “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.�...