Excerpt: ...ars of litigation and one month before the upcoming trial. Civ. Code, § 1717 (b) (2) provides that “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” The Supreme Court construed Civ. Code, § 1717 (b) (2) “as overriding or nullifying conflicting contractual provisions, such as provisions expressly allowing recovery of attorney ...

Excerpt: ...ng Common Interest Development Act does not define “prevailing party,” it is well established that the analysis of who is a prevailing party under the Act focuses on who prevailed on a practical level by achieving its main litigation objections. Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 590. The parties do not dispute that Plaintiffs are the prevailing party in this action or that the Court's judgment was based on the C...

Excerpt: ... that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs….Reasonable attorney's fees shall be fixed by the court, and shall be an elemen...

Excerpt: ... OVERRULED. Special demurrers based on uncertainty are rarely sustained – only where the complaint is so bad that defendant cannot reasonably respond— i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) However, a demurrer for uncertainty may lie if the failure to label the parties an...

Excerpt: ...duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095. Here, the FAC pleads that Nabavian, as an insurance professional, owed a duty to Plaintiff to fulfill promises made and services contracted for by Plaintiff; that Nabavian breached its duty by failing to obtain fire insurance as...

Excerpt: ...9 and served on January 24, 2019 3. Substitution of Attorney filed on July 5, 2019 in the matter of Kamell v. Del Taco, LLC, Court of Appeal for the Fourth District, Case No. G057498 Demurrer Standards While a demurrer admits all material facts properly pleaded (Blank v. Kirwan (1985) 39 Cal.3d 311, 318), the complaint may be read as containing judicially noticeable facts even when the pleading contains express contrary allegations. (Jocer Enterp...

Excerpt: ...] Here, while Defendant argues some uncertainty exists as to Complaint¶¶4, 17, Defendant has not suggested that this uncertainty is so pervasive as to prevent him from knowing what counts are alleged against him, nor could he make such an argument. It is clear that the gravamen of the Complaint is a failure by Defendant to repay a loan. Any ambiguity in relation to ¶¶14, 17 can be cleared up through discovery. Tentative Ruling: The Demurrer b...

Excerpt: ...forming those duties and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” Exempt executive employees' duties involve “the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision.” (Cal. Code Regs., tit. 8, § 11070, subd. 1(A)(1)(a).) Exempt administrative employees' duties involve “non-manual work directly related to man...

Excerpt: ...n are: (i) Duty; (ii) Breach; (iii) Proximate or legal cause of injury to Plaintiff resulting from the breach; and (iv) Damage to Plaintiff. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 [disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5]. (i) Duty. This element is adequately pled in ¶¶ 55-58 of the FAC, wherein it is alleged that defendants were acting as licensed real estate salesperso...

Excerpt: ...n subdivision (b) of Section 1005. … (2) In the alternative, a settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order. … Within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal service, a nonsettling party may file a notice of motion to contest the good faith of the settlement....

Excerpt: ...).) There is no prior discovery order compelling plaintiff Katherine White (hereinafter, plaintiff) to provide further responses to defendant's discovery requests in this case, much less one defendant has shown that plaintiff has willfully failed to obey. Defendant has further failed to demonstrate any exceptional circumstances or egregious discovery abuses warranting nonmonetary discovery sanctions in the first instance, i.e., without a prior di...

Excerpt: ... this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, however, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851.) The moving party's papers are to b...

Excerpt: ... 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." (Code Civ. Proc., § 2030.300(a).) “The statute does not require any showing of good cause for the serving and filing of interrogatories. Thus, th...

Excerpt: ... effective decision making by the court, the parties, and counsel.” (Cal. Rules of Ct., Rule 3.400(a).) “With or without a hearing, the court may decide on its own motion, or on a noticed motion by any party, that a civil action is a complex case or that an action previously declared to be a complex case is not a complex case.” (Cal. Rules of Ct., Rule 3.403(b).) Rule 3.400(b) provides: In deciding whether an action is a complex case under ...

Excerpt: ...en acted upon by the board, or has been deemed to have been rejected by the board…” Additionally, pursuant to Government Code §911.2(a), a claim for death or personal injury shall be presented “not later than six months after the accrual of the cause of action.” When a claim that is required by Government Code §911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a w...

Excerpt: ...ty and has been acted upon by the board, or has been deemed to have been rejected by the board…” Additionally, pursuant to Government Code §911.2(a), a claim for death or personal injury shall be presented “not later than six months after the accrual of the cause of action.” When a claim that is required by Government Code §911.2 to be presented not later than six months after the accrual of the cause of action is not presented within t...

Excerpt: ...nd that leave to file the proposed SAC should be granted as they are not adding additional causes of action but are adding allegations to recoup the damages incurred as a result of the removal of drainage systems, as well as allegations relating to Defendants' continued trespassing, which would be adjudicated during Phase 2 of the trial. Plaintiffs allege that the proposed amendments relate to conduct and damages that occurred after Phase 1 of th...

Excerpt: ... from Defendant, Erik Matsuno (“Defendant”) to Plaintiff's Special Interrogatories, Set One, (“SPROG”) Nos. 1 to 70, and awarding monetary sanctions in the amount of $2,242.50 against Defendant and his counsel of record, Niral Patel. Plaintiff contends that Defendant's responses to the SPROG are deficient and evasive; that the objection that SPROG, Nos. 1, 10, 11, 12, and 13, are unintelligible due to the definition of “INCIDENT” is w...

Excerpt: ... 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 necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other doc...

Excerpt: ...INS the objection to the last sentence based on lack of personal knowledge but OVERRULES the objection as to the first two sentences. For Objection No. 9, the Court SUSTAINS as to “I know from my review of the case file that the main insurance adjuster assigned by Allstate to work on this case file, Mr. Eric Trinidad, disappeared for several weeks during the pendency of this case.” And OVERRULES the Objection to the remainder. The Court OVERR...

Excerpt: ...enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. . Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.” Further, Code of Civil Proce...

Excerpt: ...in ten days of service of notice of this order. Defendants' request for judicial notice of the Declaration of Plaintiff's owner, Hyung Kim, is DENIED. “The declaration of an adverse party is not a proper subject for judicial notice.” (Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192.) 1st COA - Misappropriation of Trade Secrets: Plaintiff alleges that it employed Defendant Yoo as a Sales and Delivery Manager...

Excerpt: ...Attorney's Fees, and Unfair Competition. Defendant argues that the FAC fails to allege facts sufficient to constitute any of these causes of action against it. Defendant also moves to strike Plaintiffs' prayer for punitive damages and attorney's fees, on the ground that they are unsupported by Plaintiffs' allegations, as well as Exhibits 2 and 4 of the FAC. DEMURRER First Cause of Action for Breach of Contract Defendant argues the Breach of Contr...

Excerpt: ...a complete defense.” (Id.) The Court assumes “the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Id.) “A demurrer must dispose of an entire cause of action to be sustained.” (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 119.) “As a general rule in testing a pleading against a demurrer t...

Excerpt: ...e out of the employment context. Apex Energetics and I each agree that any claim, dispute, and/or controversy that either I may have against Apex Energetics (or the owners, directors, officers, managers, employees, agents, and parties affiliated with their employee benefit and health plans) … arising from, related to, or having any relationship or connection whatsoever with my … employment by, or other association with Apex Energetics shall b...