Excerpt: ...tium moves for summary adjudication of the first cause of action (breach of contract) and second cause of action (breach of guaranty). Plaintiff fails to meet its initial burden, i.e., Plaintiff fails to establish its damages. Specifically, Plaintiff represents that as of December 10, 2019, the amount of $209,860.10 is due and owing from Defendants to Ascentium under the CSA. (See PSS ¶ 9.) This statement is supported by the Declaration of Jerry...

Excerpt: ...issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be g...

Excerpt: ...dent. Defendant cites Mendoza v. City of Los Angeles (1998) 66 Cal.App.4 th 1333 for this proposition. However, that case was not a demurrer case, and actually went to a jury. That case involved an off-duty police officer who fatally shot his fiancé. The Court of Appeal stated, “Mendoza was both off duty and in Hawthorne, outside the jurisdiction of the Department, when he shot Clementina during a domestic dispute. The act was unrelated to his...

Excerpt: ...y 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.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 ju...

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: ...ed, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to o...

Excerpt: ...ons. Section 877.6 applies to a settlement between a plaintiff and an alleged tortfeasor or obligor under a contract in an action in which the tortfeasor is an alleged joint tortfeasor with another or the obligor is a co-obligor under the same contract with another. Cal. Code Civ. Proc. § 877.6(a)(1). Section 877.6 allows a settling defendant to obtain a determination that his settlement is in good faith, and thus to bar an action for equitable ...

Excerpt: ...alnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 40 [beneficiary may substitute trustee through its agent].) These exhibits trump inconsistent, conclusory allegations to the contrary. (See Holland v. Morse Diesel International (2001) 86 Cal.App.4th 1443, 1447; see also Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) 2nd-3rd causes of action, Civ. Code §§ 2923.5, 2923.55, 2924.17. The complai...

Excerpt: ...ng unit,” and not a “transient” hotel occupant. (See Civ. Code, § 1940, subds. (a), (b).) 2nd cause of action, battery. The complaint fails to state facts sufficient to constitute this cause of action. It fails to allege facts showing defendant's intent to offend. (See Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645.) A demurrer does not admit the truth of “conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 4th...

Excerpt: ...ely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky ...

Excerpt: ...e elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) A Marvin claim is a claim to enforce a contract that is either express (that is, written or oral) or implied in fact (that is, “manifested by [the parties'] ...

Excerpt: ... To state a claim for negligence, plaintiff must allege that: (i) defendants had a legal duty to use due care; (i) a breach of such legal duty; and (iii) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Here, the FAC fails to identify any duty of care or breach. Instead, the First Cause of Action attempts to characterize the various alleged contractual and intentional to...

Excerpt: ...l meet and confer in compliance with §430.41(a). Defendant to give notice. 1st COA: Demurrers are sustained. The nature of the relation between the mobilehome owner and the park owner, or the prospective homeowner and the park owner, is one of landlord tenant, or landlord and prospective tenant. (See Civ. Code § 798.2, .4, .8, .9; Cacho v. Boudreau (2007) 40 Cal.4th 341, 349; Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230, 249-51....

Excerpt: ...ho would be most competent to testify” to its financial condition. (Civ. Code § 3295(c).) Beyond the foregoing, no pretrial discovery by plaintiff is permitted without a court order; and such order can be granted only if the court finds there is a “substantial probability that the plaintiff will prevail” on his or her claim for punitive damages. (Civ. Code § 3295(c); Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1565.) Typically, to obtain suc...

Excerpt: .... Specifically, the parties may file a Supplemental MPA (and declaration(s)) in support of the Motion, a Supplemental Opposition (and declaration(s)), and a Supplemental Reply – all within the time periods prescribed by the Code based on the new hearing date. However, any supplemental MPA and opposition shall not exceed 7 pages, and the supplemental reply shall not exceed 4 pages. There is no precise yardstick for measuring “good faith” of ...

Excerpt: ...ccord Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) That second path to summary adjudication requires plaintiff to show 2 things: (1) defendant does not possess the evidence, and (2) defendant cannot reasonably obtain it. Plaintiff met the first requirement. It offered defendant Community Care Rehab Center LLC's “factually devoid” discovery responses, showing defendant does not possess evidence needed to support its defenses. (Union Bank ...

Excerpt: ...ed are premised on its contention that under the written terms of the retainer agreement it is entitled to 33.3% of $250,000. But the facts established by Plaintiff's own evidence is that Rawag discharged Plaintiff before the settlement was agreed to and before the settlements were paid. [Smaili Decl, ¶¶ 12- 16.] By the terms of the retainer agreement – which on the face of the agreement appear to survive the handwritten emendations – as th...

Excerpt: ...ission Hospital Medical Center (“Mission”); (2) Manor Care of Fountain Valley (Manor”); (3) Memorial Care Saddleback Memorial Medical Center (“Saddleback”); (4) Orange Coast Memorial Medical Center (“OCMMC”); and (5) Hector Ramirez, M.D. For Nos. 1-4, Defendants issued separate subpoenas for: (a) Medical Records; (b) Radiology Records; and (c) Billing Records, for a total of 13 subpoenas at issue here. Both motions reflect that effo...

Excerpt: ...d Gonzalez and Good Affair's reply may not have been properly served on The Irvine Company, LLC. Unless the Irvine Company objects to improper service of the Reply and seeks to continue the hearing for that reason, the Court denies the motion for the reasons set forth below. Anthony and Jamie (collectively, “The Romeos”) commenced this action on 10/5/2018 (“Romeo Action”). The Romeos' complaint alleges three causes of action against Good ...

Excerpt: ... §1033.5), the verified memorandum of costs is prima facie evidence of their propriety. The burden then rests with the party seeking to tax costs to show they were improper, unreasonable or unnecessary. Benach v. County of Los Angeles (2007) 149 Cal.App.4 th 836, 856. If the party seeking to tax costs makes a proper objection to an item in the cost bill (as determined after the trial court reviews the submissions), the burden then shifts back to...

Excerpt: ...ny (not Teresa) initiated a contractual arbitration with JAMS pursuant Para 20.1 of the Future Fins LLC Operating Agreement. The only signatories to that operating agreement, and thus the contractual arbitration provision, were Odyssey and Wesrae. Nevertheless, Tony joined as a claimant, and named Vincent, Skaist/SYCR, Marinescu, Wesrae and Vincent's ex-wife. Vincent and Westrae filed a counter-claim in arbitration, while Skaist and SYCR declined...

Excerpt: ...in the body of the answer, it stated: “Defendant Matt Kolta, an individual, hereby answers Plaintiff's (“Plaintiff”) complaint.” Matt Kolta is not a named defendant in this action. Furthermore, almost all of the affirmative defenses refer to “Defendants”. The ninth, eleventh, and twelfth affirmative defenses refer to a “Defendant Satish.” Satish is also not a named defendant in this action. Most importantly, Mina Kolta is not iden...

Excerpt: ...for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Aguilar v. Atlantic 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 p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elem...

Excerpt: ...rsion of any revised papers, including the Notice of Class Action Settlement (Class Notice). The pages of the Class Notice must be numbered. Section D(1) of the Class Notice should include an estimate of the Net Settlement Amount to be paid to the class, based on the Maximum Settlement Amount and the proposed deductions. The motion fails to provide the class members' estimated individual recovery under the proposed settlement, including the estim...

Excerpt: ...$200 each to plaintiffs Anacia Garcia- Ruiz, Anthony Bai, Anthony Stafford, Aree Said, Daniel Morones, Elisha Fiel, Jimmy Flores, Joanna Marin, Myron Galsim, Norman Garcia, Richard Carlson, Ryan Chan, Tu Bui, John Brian Jensen, Pauline Osofsky and Amal Radwan. There was nothing noteworthy about plaintiffs' attorneys' services to justify an award greater than 1/3 of the gross settlement amount. The court also notes that in the Motion for Prelimina...