Excerpt: ...he 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 sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains esse...

Excerpt: ...tion, are barred by the two-year statute of limitations for breach of contract, and are uncertain, vague, and ambiguous. Defendants also contend that the second cause of action for Fraud is not pled with the requisite specificity as it fails to allege the specific representations made by Defendants to Plaintiff, whether they were made orally or in writing, and where they were made, as well as fails to allege any facts showing that Plaintiff relie...

Excerpt: ...ended cross- complaint. For the following reasons, (1) Scricca's demurrer to the second cause of action is overruled; (2) Elias's and Eldessouky's demurrers to the second cause of action are sustained; (3) Elias's and Eldessouky's demurrers to the third cause of action are sustained; and (4) Eldessouky's demurrer to the fourth cause of action is sustained. In ruling on a demurrer, a court must accept as true all allegations of fact contained in t...

Excerpt: ...m they have the right to use Lot A as an access road to Stonehaven Drive, and that the city is frustrating that purpose. The plaintiffs claim that Lot A was never dedicated as open space but was set aside to prohibit the construction of residences on it. The city claims that Lot A was dedicated (and accepted) as open space and that an access road would be inconsistent with the 1987 approvals. The plaintiffs also claim they have an easement over i...

Excerpt: .... The FAC alleges that AmGUARD improperly denied coverage under its “all-risk” policy for alleged lost business income caused by the pandemic and related orders. The FAC alleges the following causes of action: 1. Breach of the implied covenant of good faith and fair dealing (against AmGUARD) 2. Breach of contract (against AmGUARD) 3. Negligence (against Western) The policies providing coverage from 3/30/19 to 3/30/20 and 3/30/20 to 3/30/21 ar...

Excerpt: ...ctual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 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 complaint unless they may be reasonably inferre...

Excerpt: ...cause of action for fraud is three years. The cause of action is not deemed accrued “until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (CCP § 338(d); (Kline v. Rutner (2001) 87 Cal.App.4th 1369, 1373.) Section 338(d) effectively codifies the delayed discovery rule in connection with actions for fraud. (Britton v. Girardi (2015) 235 Cal.App.4th 721, 733-734.) “The courts interpret discovery in thi...

Excerpt: ...hler (2010) 181 Cal.App.4th 1153, 1169.) Service on counsel of the OSC re Contempt is not sufficient. Cedars-Sinai makes it clear service on counsel is an exception to the general rule available only when the citee is intentionally avoiding service. (83 Cal.App.4th at 1286-87 [service must be made in the same manner as service for summons and unless the citee has been concealed from the court, personally service is required].) Consequently, the C...

Excerpt: ...Application was filed on June 29, 2021 and served by certified mail, return receipt requested. (See Application, Campo Decl., ¶¶ 6 and 7, Exh. A.) The Clerk of the Court filed and served notice that a Motion for Determination of Good Faith Settlement has been set for 9/9/21. (See ROA 58.) Defendant, Cross-Complainant, and Cross-Defendant Yuna Joo (“JOO”) filed her Opposition to the Application on August 26, 2021. JOO contends that her Oppos...

Excerpt: ...orandum of Costs; and (4) A Motion by SG and Thomas Rowley to strike the Verio Defendants' Memorandum of Costs and to strike or tax Eric and Bridee Schrier's Memorandum of Costs. The Court's rulings on each motion are set forth below. Motion #1: Motion by Verio Defendants for Attorneys' Fees The Verio Defendants seek an award of attorney's fees pursuant to Civil Code Section 3426.4, contending that (1) they are the prevailing parties on SG's sixt...

Excerpt: ...ion to Seal Financial Records is GRANTED in part. Defendant argues this Court ordered it to produce its financial records, but the Court did not make any such order. See ROA 64, Minute Order. This argument does not support sealing of any records. Defendant filed the Dabi Declaration under seal and seeks to keep confidential its profit and loss statements for fiscal years 2019-2020 and 2020-2021, which are attached as Exhibits A and B to the Dabi ...

Excerpt: ...ny California (or Georgia) cases that have so held. (The reference to Georgia is based on the court's understanding that the business is located in Georgia.) Because this is a motion for summary adjudication of issues, the court's role is limited to determining if there is a triable issue of material fact. Impossibility of performance is a legal excuse, and a valid defense, to a cause of action for breach of contract if there are facts to support...

Excerpt: ...en of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff ne...

Excerpt: ...ent West, LLC (which shows it's status is “suspended”) pursuant to Evidence Code section 452(c). The Court GRANTS Plaintiff's request for judicial notice of Exhibits 2 through 10 (A-1's Articles of Incorporation, A-1's Statement of Information, and MARIETTA'S Certificate of Organization, and Annual Registrations for MARIETTA for 2016-2021 only for the existence of these documents and their legal effect. but the court does not take judicial no...

Excerpt: ... deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010.)” Here, Defendant served Plaintiff (Law Offices of Mark B. Plummer) with “Defendant's Request for Admissions to Plaintiff Law Offices of Mark B. Plummer Set No. One” on 11-12-18. (Alai Decl., ¶ 2 Exhibits A and C.) The declaration from Defendant indicates that Plaintiff had not provided responses to this discovery request as of 3-15-19. ...

Excerpt: ... provides, in part, as follows: “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (a) The court may impose a monetary sanction ordering that one engaging in the ...

Excerpt: ...poration (“GH Holdings”), Graham Hershman (“Hershman”), Michael Payne (“Payne”), Helmut Horn (“Horn”), CHRG Perillo, LLC (“CHRG Perillo”), CHRG Holdings, LLC (“CHRG Holdings”), CHRG Manager, LLC (“CHRG Manager”), T. Chadwick Lund (“Lund”), and Joseph Perillo (“Perillo”) (collectively, “Specially Appearing Defendants”) each seek an order quashing the service of summons on him (or it) for lack of personal jur...

Excerpt: ... and improper matters inserted in Plaintiff's First Amended Complaint, and failing to comply with prior court ruling. • Paragraph 8, lines 25 to 26 “(which is evidence of pre-determination that she was going to be terminated/placed on the re-employment list)” as irrelevant, false, and improper matters inserted in Plaintiff's First Amended Complaint, and failing to comply with prior court ruling. The District's Request for Judicial Notice Th...

Excerpt: ...ply with CRC, Rule 3.1354. Procedural Defects: The Court notes Defendants' Notice of Motion and Response to Separate Statement fail to comply with California Rules of Court, Rule 3.1350(b) which states: “If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative ...

Excerpt: ...uest for amendment was not made earlier.” “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading….” (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Courts are bound to apply a policy of great liberality in permitting amendments to ...

Excerpt: ...any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time lim...

Excerpt: ...alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. . . . [¶] (b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counteraffidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing. [¶] (c) A determination by the court that the settlement was m...

Excerpt: ...ntiff's causes of action are uncertain as brought against KMA.” However, the “Demurrer” does not set for uncertainty as a ground for the demurrer, nor is this ground for demurrer discussed in the Memorandum. Thus, the Court treats this ground for demurrer as waived. (California Rules of Court, Rule 3.1113(a).) Third COA (Violation of Subdivision (A)(3) of Civil Code section 1793.2): The Complaint states facts sufficient to constitute this c...

Excerpt: ...int. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 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.4 th 1228, 1238, provide...

Excerpt: ...s objections to the declaration of Susan Brandt-Hawley are SUSTAINED on foundation grounds. The Court has not considered any exhibit to the Brandt-Hawley declaration. In addition, the Court has not considered the declaration of Philip D. Kohn to the extent it seeks to introduce new evidence on reply. This matter concerns the City's revised Historic Preservation Program, which amends portions of the City's general plan and zoning code. Specificall...