Excerpt: ... Moving Parties claim summary adjudication is appropriate as to both cross-defendants, Antonio Medina and GNA on the first and fourth causes of action. Moving Parties argue the indemnity provisions of the contracts between Pelican and Responding Parties include RPs' duty to defend Pelican in this action. MPs imply they are entitled to collect the cost of their defense in this suit. It could very well be that Medina and GNA did owe MPs a duty to d...

Excerpt: ...ged. The Demurrer to the Sixth Cause of Action For Rescission is SUSTAINED without leave to amend, on the basis that rescission is a remedy not a free-standing cause of action. This is without prejudice to the pleading of the remedy of rescission in connection with an appropriate supporting cause of action. The Demurrers to the Eighth and Ninth Causes of Action For Concealment and Fraud are SUSTAINED with leave to amend, on the basis that the fac...

Excerpt: ... service filed on January 19, 2018, show the notice of hearing was served via substitute service, deemed effective as of January 18, 2018. (See Code Civ. Proc., § 415.20 [substitute service deemed complete on the 10th day after mailing].) The last day to timely notice the hearing was January 9, 2018. (Code Civ. Proc., § 1005, subd. (b).) Plaintiffs to give notice. Future Hearings: CMC: 4/10/18 8:30 am ...

Excerpt: ...Act) and breach of contract. In doing so, Plaintiff alleges unlawful acts that can serve as a basis for violations of section 17200. See Lueras v. BAC Home Loans Servicing(2013) 221 Cal.App.4th 49, 81. Indeed, Plaintiff specifically alleges that “[b]y violating the Act, Neff has engaged in unlawful activities, thereby satisfying the ‘unlawful prong' of the UCL [section 17200 et seq.].” FAC ¶ 38. Relying on Prudential Home Mortgage Co. v. S...

Excerpt: ...1) 91 Cal. App. 4th 875, 882. Defendants' Request for Judicial Notice: Granted as to taking judicial notice of the language of Judicial Council Form Interrogatory No. 4.1. See, Evidence Code § 452(h). Plaintiff's Objection to and Motion to Strike Motion for JNOV and Associated Documents: Plaintiff objected and moves to strike the following pleadings for failure to comply with the rules of court: (1) the declaration of Jenos-Heidari filed in supp...

Excerpt: ...C does allege facts to support its claim as to her “creditor” status. (FAC ¶¶ 9 & 10.) Nor is the TILA claim clearly time-barred. Buyers argue that even if she is a creditor, there is a 3-year limitation on the right to rescind. But a demurrer on statute of limitations grounds will not lie where the action is not necessarily barred – the defect must appear clearly and affirmatively upon the face of the complaint. (Lee v. Hanley(2015) 61 C...

Excerpt: ...eveal that an actual controversy exists between the parties.'” D. Cummins Corp. v. United States Fid. & Guar. Co. (2016) 246 Cal. App. 4th 1484, 1489. “[A] home loan borrower has standing to claim a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriving the foreclosing party of any legitimate authority to ...

Excerpt: ...ently in her position. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4 th 317, 355.) The complaint also fails to allege facts showing a discriminatory motive. (Id.) Rather, this is alleged as a conclusion only. (Complaint at Para. 10.) Statutory claims must be alleged with specificity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) The second cause of actio...

Excerpt: ...ued hearing. The court also ordered plaintiff to give notice. Nothing in the court file indicates that plaintiff gave notice, or met and conferred as ordered. Plaintiff's counsel is ordered to engage in the meet and confer required by Code of Civ. Proc. § 430.41 as to the issues raised by this demurrer, and to file and serve a declaration evidencing such efforts not less than nine court days before the continued hearing. Plaintiff to give notice...

Excerpt: ...ose employing broker is Lee Humphrey Durst. As a matter of law in CA, only a licensed real estate broker may receive the commissions in connection with real estate transactions; any other procedure is a violation of B&P 10138, and subjects Bianca Espinoza to discipline, including suspension and/or revocation of her license. (Miller & Starr, 2 CA Real Estate, Section 5:56.) Thus, all real estate commissions paid for her services as a real estate a...

Excerpt: ...the prevailing party, and award costs of suit and statutory attorney fees, at the conclusion of a litigation, after all the claims are resolved. [See CCP §1033.5(a)(10), (c)(5)); Cal.R.Ct. 3.1702(a),(b), 8.104(a); Civ. Trials & Evid. §§ 17:151-52, 17:166 (Rutter Group 2017); P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1052.] Here, the case is not over, and Plaintiff still has one undisposed-of ...

Excerpt: ...sn. v. Touchstone Ins. Servs.(1994) 27 Cal. App. 4th 1085, 1091. No party has filed Opposition to this motion. Regardless, the settlement by Cross-Defendant Lonerock, Inc. appears does not appear to be “so far 'out of the ballpark' in relation to these factors as to be inconsistent with the equitable objectives of the statute.'” Id. Liability of Lonerock, the general manager of the construction site, appears questionable. And the law concerni...

Excerpt: ...f action for Malicious Prosecution and new allegations regarding the express written release currently pled in the Cross Complaint. The court finds no prejudice to Cross Defendants resulting from Cross Complainant's delay from July to January in seeking this leave. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in...

Excerpt: ...potential prejudice to Defendants, trial is continued from 4/30/18 to 10/1/18 and the MSC is continued to 8/31/18. All other pretrial dates are continued consistent with the new trial date. Plaintiff to give notice. Motion to Compel Compliance with Business Records Subpoena The Motion by Defendant Fotona, LLC's (“Fotona”) to Compel Institute for Advanced Laser Dentistry's (“IALD”) compliance with business records subpoena is GRANTED in pa...

Excerpt: ...Defendants' demurrer is overruled. Plaintiff law firm alleges that a third party minor's father signed a contingency fee agreement with Plaintiff in February 2017. Plaintiff alleges that approximately two months later, Plaintiff was informed the third party had decided to retain another attorney to pursue her personal injury claims. Whether the third party's initial fee agreement with Plaintiff is valid is immaterial to Defendants' demurrer. In c...

Excerpt: ...o amend; 5 th cause of action [CC§2923 et seq]: Ruiz is not a borrower; Pltfs do not allege materiality of any purported violation; Has Trustee's deed been recorded? If not, Pltfs may only obtain an injunction; Sustain with 10 days leave to amend; 6 th cause of action [quiet title]: Pltfs have not paid the debt so this remedy is not available; Sustain with 10 days leave to amend; Strike Portions of Complaint Moot based on above. ...

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Excerpt: ...ook steps reasonably calculated to apprise Pltfs of the existence of the program at the time of warranty disputes; Deny. ...

Excerpt: ...nds of uncertainty; Pltf failed to allege facts showing that Deft published a defamatory statement of fact; Sustain with 10 days leave to amend; Strike Portions of Complaint Grant as to Item 1 [page 1, line 25 to page 2, line 2]; Grant as to Item 2 [page 2, lines 2-5] specifically the word ‘similarly'; Deny balance of Item 2; Deny as to Item 3 [page 3, lines 25-26]; Moot as to Item 4 [page 16, line 1]; Deny as to Item 5 [page 16, lines 3-4]; Gr...

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Excerpt: ...ests for mandatory injunctive relief that Plaintiff is simply not entitled to. With respect to request to prohibit Defendant from using corporate funds to pay its attorney fees, the harm lies in Defendant's favor. Essentially, Defendant Corporation may only appear by way of counsel (i.e., it cannot appear in pro per), and as a separate legal entity, it should be able to hire and pay for an attorney to defend itself from Plaintiff's lawsuit. At mi...

Excerpt: ...e judgment, dismissal, order, or proceedings was taken.” Here, a copy of the proposed answer was not attached to the application. Further, the Proof of Service does not comply with Code of Civil Procedure section 1013a, subdivision (a), because the affidavit did not contain “. . . the name and address of the person served as shown on the envelope . . . .” Defendant is to file a proper Proof of Service of the moving papers no later than Febr...

Excerpt: ...eglect.” “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citation.] In such situations ‘very slight evidence will be required to justify a court in setting aside thre default.' [Citation.]” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; see also, Fasuyi v. Permatex, Inc. (Fasuyi) (2008) 167 Cal.App.4 ...

Excerpt: ...es, “(a) If a deponent fails to . . . produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in . . . a deposition subpoena, the party seeking discovery may move the court for an order compelling that . . . production. [¶] (b) The motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declar...