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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...ble issues: (1) Whether an equitable servitude exists over Defendant Garruba's property that prohibits structures and vegetation over 17 feet high, and, if so, whether Plaintiff Buck can enforce the equitable servitude; and (2) Whether Plaintiff Buck can enforce a height restriction condition of approval imposed by the City of San Clemente on the Broadmoor project, including homes on Calle Delicada. Plaintiff cites Code of Civil Procedure section...

Excerpt: ...itations.]” (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.” P e r e z v . G o l d e n E m p i r e T r a nsportation Transit District (2012) 209 Cal.App.4th 1228, 1238...

Excerpt: ...ed 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 purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” P e r e z v . G o l d e n E m p i r e T r ...

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: ..., 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.�...

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: ...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: ...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: ...f Richard Salinas [“Salinas Decl.”] Exh. A [Settlement Agreement] at §5). In addition, the parties expressly stipulated the Court retains jurisdiction pursuant to CCP section 664.6, “even after dismissal of the action.” (Stipulation dated September 11, 2020 [ROA No. 76]). The Court issued an order consistent with that stipulation on January 29, 2021. (ROA No. 102). Thus, based on the above, the Court concludes it has jurisdiction to hear...

Excerpt: ...” (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 495, review denied (Nov. 24, 2020).) “However, there are several exceptions that allow a nonsignatory to invoke an agreement to arbitrate.” (Ibid.; citing JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1236-1237].) “The doctrine of equitable estoppel is one of the exceptions.” (Ibid.) “Under the doctrine of equitable estoppel, as applied in both federal and Califor...

Excerpt: ...ontract he (“Contract”) and the Contract contains an arbitration provision in paragraph 22B thereof which covers the claims asserted against him. (See Smith Decl., ¶ 2, Exh. 1, at paragraph 22B.) Although the Contract states it is entered into Plaintiff KYLE as “Buyer” and Defendant PEPIN as “Seller” and is executed by Plaintiff Maloney as KYLE's Manager, the Verified First Amended Complaint (“FAC”) alleges that Plaintiff MALONEY...

Excerpt: ...will not be substantially prejudiced in maintaining that party's action or defense on the merits. (c) The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following: (1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission. (2) An order that the costs of any additional discovery ...

Excerpt: ...USD”) and Rancho Santiago Community College District (“RSCCD”; together with SAUSD, the “Defendants”) for an alleged sexual assault that occurred on or about 2/14/19 on one of RSCCD's campuses, Middle College High School (“MCHS”), which is on the campus of Santa Ana College (“SAC”). One of the community college students, Cross-Defendant Kenji Kina, allegedly sexually assaulted Plaintiff. Evidentiary Objections The Court declines...

Excerpt: ...legations Plaintiffs propose to add to cure the defects noted below. 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 therein) or from matters outside the pleading which are judicially noticeable under Evidence Code...

Excerpt: ...he function of a demurrer is limited to testing the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4 th 968, 994). Consequently, in reviewing a Demurrer, “a court cannot consider…the substance of declarations, matter not subject to judicial notice, or documents judicially noticed but not accepted for the truth of their contents.” (Id.). Stated more simply, “[i]t is ‘black-letter law' a demurrer test...