Excerpt: ...ly the legal sufficiency of the 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...

Excerpt: ...eclines to do so in this instance. New matters cannot be raised for the first time in a reply brief. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 641). The elements of fraud are (1) misrepresentation (false representation, concealment or nondisclosure) (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal....

Excerpt: ...ROA 51.) In St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1194 (internal quotation marks omitted), citing to Code of Civil Procedure 1281, the California Supreme Court described arbitration agreements: …[a] written agreement to submit to arbitration ... a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. Section 1281.2 provides...

Excerpt: ...fice of Cantrell, Green, Pekich, Cruz & McCourt (2001) 91 Cal.App.4th 875, 882 (“Lockley”) (internal quotation marks omitted), the appellate court provided an overview of judicial notice: Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. [Citation.] The...

Excerpt: ...d), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to t...

Excerpt: ... production (ROA 24) from Plaintiff Eduardo Anaya and Plaintiff Danny Melendez (collectively, hereinafter, “Plaintiffs”). For the following reasons, the motions to compel responses to form and special interrogatories, and to compel production are each GRANTED. Discovery, Generally In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (“Sinaiko”) (internal quotation marks omitted), the app...

Excerpt: ...ement agreement, to reinstatement of a default judgment entered in connection with another matter. Plaintiffs also ask for injunctive relief and attorneys' fees. In 2016, Plaintiffs brought a defamation suit against Cyrkin in OSCS, Case No. 2016- 00848867. (Deedle Dec. ¶ 2.) On 10-12-17, Plaintiffs obtained a default judgment against Cyrkin in that matter, in the amount of $250.545. (UMF 1; Deedle Dec., ¶ 4, Exhibit 1.) On 8-22-18, almost a yea...

Excerpt: ...tated by § 425.16(b). “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) A defendant has the initial burden of demonstrating that the suit arises from conduct descr...

Excerpt: ...he motion for summary judgment of Defendant Walt Disney Parks and Resorts U.S. Inc. (“Disney”). On 7/26/21, the Court granted Disney's dispositive motion, and granted Plaintiff's application to file documents under seal. However, upon further review the Court has determined that the order sealing the records was improper. The subject documents were designated as “confidential” by counsel for Disney pursuant to a “Stipulated Protective O...

Excerpt: ...)(A) and CRC, Rule 3.1702, Defendant Pellecome LLC seeks attorneys' fees of $321,898.50 as the prevailing party in this action. “California generally follows what is commonly referred to as the ‘American Rule,' which provides that each party to a lawsuit must ordinarily pay his or her own attorney fees. However, the Legislature has established a variety of exceptions to the American Rule by enacting numerous statutes that authorize or mandate...

Excerpt: ...ust”) demur to the first and third causes of action of Plaintiffs' Complaint. For the following reasons, the demurrers are SUSTAINED. “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges o...

Excerpt: ... ROA No. 180, raises 12 issues for summary adjudication. The court will address the issues or summary adjudication in the order as presented in the Notice. Plaintiff's (Kevin Iwanaga) Evidentiary Objections filed on 5-18-21 under ROA No. 258: The court SUSTAINS Objection No. 8 and OVERRULES the remaining objections. Defendants' Objections to the Declaration of Carrie Weeks filed on 5-27-21 under ROA No. 292: The court declines to rule on the obje...

Excerpt: ...Civil Procedure section 576 provides, “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” “It is well established that ‘California courts “have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where ...

Excerpt: ...California State Automobile Association (Ladas) (1993) 19 Cal.App.4 th 761, 773-774, states, “ ‘[S]ection 1033.5, enacted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action. [Citation.]' [Citation.] An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably n...

Excerpt: ... order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for the revocation of the agreement.” Toal v. Tardif (2009) 178 Cal.App.4 th 1208, 1219, provides, “In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, ...

Excerpt: ...ployee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testim...

Excerpt: ...vertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.' [Citation.] [¶] If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and ...

Excerpt: ...996) 14 Cal.4th 434, 444.) Due process requires that a defendant have certain minimum contacts with the forum state such that exercising jurisdiction does not offend “traditional notions of fair play and substantial justice.” (International Shoe Co. v. Washington (1945) 326 U.S. 310, 316.) This ensures that a defendant has “fair warning” of possibly being subjected to jurisdiction in the forum state. (Anglo Irish Bank Corp., PLC v. Superi...

Excerpt: ... on the Demurrer to the FAC. They ask this both in the Moving and Reply papers. It is unnecessary to ask the Court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 9.53.1a.) Thus, these requests are denied. Merits 1. Fraud –false promise– OVERRULED Plainti...

Excerpt: ...se declarations were filed after the Reply. The general rule of motion practice is that court will not consider late evidence. Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537. This case presents a complex fact pattern. After Plaintiff Stephany Zamora invested $100,000 in a record label and band, she filed this action to recover this sum. This suit is complicated by Plaintiff's adult daughter's involvement in the band. Defendant Vanessa Carlisle...

Excerpt: ...or eighth causes of action or her request for punitive damages. DEMURRER On demurrer, a complaint must be liberally construed. (Code Civ. Proc. § 452; Stevens v. Superior Court (1999) 75 Cal. App. 4 th 594, 601.) All material facts properly pleaded, and reasonable inferences drawn from them, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4 th 962, 966-67.) A pleading is adequate if it contains a reasonably precise stat...

Excerpt: ...he requirement is not grounds to overrule or sustain a demurrer. (Id., subd. (a)(4).) The Court will address the merits, discussed below. First Cause of Action – Breach of Contract: “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman...

Excerpt: ...rs to the second through sixth causes of action in the FAC. Demurring Parties also seek an order striking the prayer for punitive damages, punitive damages allegations, and the sixth cause of action from Plaintiff's FAC. Once again, the Court notes as an initial matter four procedural issues posed by the parties' papers: First, Demurring Parties' proofs of service for the demurrer, motion to strike, and respective replies did not comply with Code...

Excerpt: ...e petition was served, and this deadline may be extended by agreement of the parties, or for good cause by order of the court. CCP § 1285.6 sets forth the requirements of the contents of a response to a petition. Unless already included in the petition, the response must include the substance of or a copy of the arbitration agreement unless respondent disputes its existence, the names of the arbitrators and the written opinion, if any, of the ar...

Excerpt: ... within the time allowed by the court and either party moves for dismissal. Dismissal is not mandatory, and the decision whether to dismiss is within the trial court's sound discretion. (Harlan v. Dept. of Transportation (2005) 132 Cal.App.4th 868, 874; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.) But any dismissal under this section shall be with prejudice. (Cano v. Glover (2006) 143 Cal.App.4th 326, 331.) Califo...