Excerpt: ...ence Code §452(d)). The second Request is DENIED as irrelevant. (See Zucchet v. Galardi (2014) 229 Cal.App.4 th 1466, 1474, fn. 5). “[A] written trial court ruling has no precedential value.” (Se Bolanos v. Superior Court (2008) 169 Cal.App.4 th 744, 761). As set forth in its Notice of Motion, the primary legal bases for Defendant's motion are CCP §128 and CCP §187. However, neither provision expressly permits a determination as to a Plain...

Excerpt: ...s the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or di...

Excerpt: ...rectly relevant to a cause of action or defense, i.e., that it is essential to determining the truth of the matters in dispute. (Britt v. Sup.Ct. (San Diego Unified Port Dist.)(1978) 20 Cal.3d 844, 859-862; Harris v. Sup.Ct. (Smets) (1992) 3 Cal.App.4th 661, 665 (citing text) (disapproved on other grounds in Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017) 3 Cal.5th 531, 557 & fn. 8).)” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial ...

Excerpt: ...ute's cost-shifting provisions.” (Id. at 142.) “[I]t is apparent that once the conditions of … section 998 are met, a defendant may be required to pay expert witness fees incurred during arbitration. . . There is nothing to suggest that the final phrase [of section 998(d)—'in addition to plaintiff's costs'— applies only to cases that go to trial but not to arbitration. Indeed, it is evident that the above statute uses the term ‘plaint...

Excerpt: ...ons, Defendants' demurrer is overruled. 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 only 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.4 th 1395, 1404-05. Questions of ...

Excerpt: ...rrington M.D., attorney Taylor Bentley drafted false documents offering to sell prospective investor Ahmed Ewais shares in GDBC. But the documents falsely stated that Khoury held a 15% interest in GDBC and falsely concealed Khalid Bin Jabor Al Thani's 40% interest in GDBC. Because the false offerings were illegal under Qataran law, Khoury was arrested and forced to pay $400,000 in bail money to get out of jail. The Weintraub Cross-Defendants argu...

Excerpt: ...nt due is fixed and readily ascertainable by a standard governing a contract sued upon, and other requirements. CCP §§ 483.010, 484.090. The Application papers did not have a brief to address the statutory criteria and show how they are each satisfied. Since this is considered to be a significant remedy and subject to strict construction (see Kemp Bros. Constr., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476; Pacific Decision Scien...

Excerpt: ...17200. The Demurrer is sustained without leave to amend as to claims for cancellation of instruments, wrongful foreclosure and quiet title. Wells Fargo's request for judicial notice of exhibits “A” through “G” is granted. Evid. Code §§ 452(c), (d), (h), 453. 1st COA – Negligent Misrepresentation The premise of this claim is “Defendants misrepresented to Plaintiffs [] that Plaintiffs had a qualified hardship, and that Plaintiffs woul...

Excerpt: .... 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 only 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.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Be...

Excerpt: ... complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only 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.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 ...

Excerpt: ... Amended Complaint. The notice is a nullity, and plaintiffs' subsequent attempt to file that amended pleading was also a nullity. Pursuant to CCP §472(a), “a party may amend its pleading once without leave of the court … before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date ...

Excerpt: ...sue, the Court here has considered the Demurrer on the merits. On the merits, the COA as pled is barred by the Economic Loss Rule. Under the Economic Loss Rule, where a purchaser's expectations are frustrated because the product is not working properly, his remedy is in contract alone, for he has suffered only “economic” losses. (State Ready Mix, Inc. v. Moffatt & Nichol (2015) 232 Cal.App.4th 1227, 1232; Robinson Helicopter Co., Inc. v. Dana...

Excerpt: ...ty against the LLC defendants, only box-checking. Checking too many boxes is a common occurrence with a Judicial Council form complaint, and risky in light of CCP §128.7. Nevertheless, it happens all the time. Plaintiff has checked every box under Para MV-2, which exposes the LLC defendants to direct liability for actually operating the subject vehicle, as well as negligently entrusting it to the defendant driver, negligently employing the defen...

Excerpt: ... and based on a settlement agreement entered into between Wells Fargo and Todd Fligner in November 2016 whereby the parties agreed that Todd Fligner would dismiss a pending case in consideration of Wells Fargo reviewing him for a loan modification. Wells Fargo contends that Plaintiffs cannot enforce the settlement agreement because the prior case was brought by Todd Fligner as an individual and the settlement was entered into by him and signed in...

Excerpt: ...states that each of the affirmative defenses fails to allege “facts sufficient to constitute a defense and [is] uncertain.” However, this defect was not raised by Defendant, and in the end, it does not impact the analysis. Where affirmative defenses are “proffered in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in t...

Excerpt: ... was negligent in the use or maintenance of the property; (3) Plaintiff was harmed; and (4) Defendant's negligence was a substantial factor in causing Plaintiff's harm. (See CACI 1000.) “Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted...

Excerpt: ...action for negligence per se is a cause of action of action for negligence, not negligence per se, and defendants acknowledge the allegations for a negligence cause of action are sufficient. The second cause of action for intentional infliction of emotional distress does not sufficiently plead facts showing that plaintiff suffered severe emotional distress. The third cause of action for negligent infliction of emotional distress is duplicative of...

Excerpt: ...esponses from a Plaintiff, which contradict the allegations of their Complaint, (see Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605), Plaintiff has sufficiently demonstrated the testimony at issue here, is reasonably subject to dispute. Consequently, judicial notice is not permissible pursuant to Evidence Code section 452(h). Plaintiff has submitted a Declaration from a geriatric psychiatrist, who testifies he �...

Excerpt: ...y is to give notice. Plaintiff Seeks a Mandatory Injunction: “[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties. (Code Civ. Proc., § 525; Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191 [10 Cal.Rptr. 356, 358 P.2d 684]; 6 Witkin, Cal. Procedure (3d ed. *447 1985) Provision...

Excerpt: ...ili) opposes this motion on the merits. Therefore, the court will resolve this motion on the merits. Code of Civil Procedure section 425.16, subdivision (b), states, in part, “(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special m...

Excerpt: ...equested a stay on the execution of said judgment. The motion was granted upon counsel's admission of fault under the mandatory mea culpa provision. Defendant did thereafter answer, but has yet to participate in the discovery process. This Court has not heard from defense counsel since the new year. On 03/11/19, this Court granted plaintiff's three motions seeking initial responses to written discovery (FRogs, SRogs, RPD), and one motion seeking ...

Excerpt: ... 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.4 th 445, 459.) Third Cause of Action (Violation Civil Code section 1793.2, subdivision (a)(3)): Plaintiff's FAC adequately alleges a cause of action for a violation of Civil Code section 179...

Excerpt: ...rrers on 2- 14-19. Therefore, the court will decide Defendant's Demurrer filed on 2-14-19 under Register of Action No. 121. The court takes off calendar Defendant's Demurrer filed on 2-14-19 under Register of Action No. 134. Defendant challenges the first cause of action (Dependent Adult Abuse) for failing to state facts sufficient to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subds. (e) and (f).) (Defendant's Notice of...

Excerpt: ...f not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . 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 (q), states, in part, “In granting or denying a motion for summary judgment or summ...

Excerpt: ...or causation with sufficient specificity. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [elements], 645 [specificity].) 5th-6th causes of action, fraud/negligent misrepresentation. The FAC fails to state facts sufficient to constitute these claims. It fails to allege a misrepresentation, plaintiff's reasonable reliance, or resulting damages with sufficient specificity. (See Lazar, supra, 12 Cal.4th at pp. 638, 645 [fraud]; see also Smal...