Excerpt: ...tion of the court over him or her. [¶] (2) To stay or dismiss the action on the ground of inconvenient forum. [¶] (3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 ... of Title 8.” The Proofs of Service indicate that mailing took place on February 19, 2020. (ROA Nos. 24 and 25.) Accordingly, service was complete on February 29, 2020 (Code Civ. Proc., § 415.20(b) [substitute service is complete 10 days after the d...

Excerpt: ...lifornia Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74. Plaintiff alleged that severe winds caused water to enter his building. TDIC allegedly breached the contract by refusing to pay the claim. TDIC allegedly engaged in improper claims handling, which violated the implied covenant of good faith and fair dealing. In the declaratory relief cause of action, Plaintiff contended that his loss was covered under the policy. First Party Claim: Pl...

Excerpt: ... or denied, or what counts or claims are directed against him or her. (Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4 th 612, 616.) The Complaint sufficiently indicates what issues must be admitted or denied by Defendants. Defendants also argue that the breach of contract claim fails because the lease attached to the Complaint is not signed by Defendants and so the breach of lease claim fails under the statute of frauds. While the Lea...

Excerpt: ...ew to substantial justice. (Code Civ. Proc. § 452; Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:197 (2019).) Defendants argue that Plaintiff's theory of negligent hiring and training does not constitute the malice or oppression necessary for punitive damages. But corporations may be held liable for punitive damages if there is “evidence that the employer authorized or ratified a malicious act, personally committed such an act...

Excerpt: ...epair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.” “[S]tatutory causes of action must be pleaded with particularity.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790. Plaintiff failed to allege what service literature and replacement parts were unavailable. Fourth Cause of Action for Breach of Express Warranty: The Demurrer addressed the Fourth Cause o...

Excerpt: ...legations made must be accepted as true for the purpose of ruling on the demurrer. (See 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. (See Day v. Sharp (1975) 50 Cal.3d 904, 914, and Sosinsky v. Grant (...

Excerpt: ...e years, Plaintiff stated that his present address is “unknown at this time” and he provided a previous address used since 2019, but no other previous addresses. This response is incomplete. If Plaintiff does not have sufficient personal knowledge sufficient to respond fully to an interrogatory, Code Civ. Proc § 2030.220(c) provides the information that must be provided in that instance. Plaintiff's response does not comply with Section 2030...

Excerpt: ...tions. Plaintiff submits sufficient evidence of a reasonable and good faith attempt to informally resolve the issues presented in this motion. (Code Civ. Proc., §§ 2016.040, 2030.310(b).) Before filing the motion on 05/05/2020, Plaintiff sent two meet and confer letters. The first letter does not constitute a good faith or reasonable attempt to meet and confer, as it was sent to defense counsel at an email address other than the one on file wit...

Excerpt: ...p.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 not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.)...

Excerpt: ...ble or unfair, and the party opposing enforcement of the clause ordinary bears the burden of proving why it should not be enforced. (See Handoush v. Lease Finance Group LLC (2019) 41 Cal.App.5th 729, 734.) Nevertheless, where a non-signatory seeks to enforce a contractual forum selection clause, that non-signatory bears the burden of proving that “ ‘the performance [it] seeks was actually promised.'” (Bancomer, S.A. v. Super. Ct. (1996) 44 ...

Excerpt: ...ed under modern discovery procedures.'” A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5 th 677, 695. On 7/25/16, Belle Rose Industries LLC and Dennis Clark entered into three Promissory Notes. Exhibit 1 was for $80,000 for 5258 E, Village Road in Long Beach. Exhibits was for $50,000 for 16520 Casimir in Torrance. Exhibit 3 was for $175,000 for 832-834 Freeman Avenue in Long Beach. To the extent the allegations of the FAC dif...

Excerpt: ...t order may be issued; the probable validity of the claim; and that the attachment is not sought for any other purpose than to secure recovery on the claim. (Code Civ. Proc., § 484.090.) The claim sued upon must be based on contract, of a fixed or readily ascertainable amount not less than $500, be unsecured or secured by personal property, and where the defendant is an individual, be a commercial claim. (Code Civ. Proc. § 483.010.) The court h...

Excerpt: ...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 not been...

Excerpt: ...ompetent evidence of service of process on the Moving Defendants. A defendant may move to quash service of the summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., § 418.10(a).) “When a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove . . . the facts requisite to an effective service.” (Summers v. McClanahan (20...

Excerpt: ...ial Notice: Defendants request for judicial notice of CDC San Francisco LLC v. Webcor Construction L.P., A156669 is GRANTED. This case is currently waiting for a hearing date for oral argument in the Court of Appeal, District 1, Division 1. Defendants have not disclosed the significance of this pending appeal. Leave to Amend: “Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial...

Excerpt: ...Ascent”) has demonstrated the existence of a written arbitration agreement and that Cross-Complainant Linde Construction, Inc. (“Linde”) has refused to arbitrate by commencing this action in court (see Hyundai Amco America, Inc. v. S3H, Inc. (2014) 232 Cal.App.4th 572, 577) and by failing to respond to Ascent's demands to arbitrate. (Brown Decl., ¶¶ 2-4). The arbitration agreement is contained in the Subcontract Agreement between Ascent a...

Excerpt: ...ions, 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 the complaint” are subject to demurrer) (internal quotation marks omitted).) Plaintiff argues that Cambridge's 3rd, 4th, 5th, 10th, 14th, 35th, and 36th affirmative defenses were asserted pursuant to various MICRA and health care provider provisions and are only apply available to licensed health care prov...

Excerpt: ...ed the existence of enforceable settlement agreement that was signed by the parties pending litigation. Plaintiff and Defendant executed a Settlement Agreement and Mutual Release of Claims (the “Settlement Agreement”) on January 17, 2020. (Bidgoli Decl., ¶ 3, Ex. 1.) Pursuant to the Settlement Agreement, Defendant was required to make regular monthly payments. The agreement provides that in the event Defendant fails to make the required paym...

Excerpt: ...production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. Subdivision (b) provides that any motion to compel deposition “shall be accompanied . . . by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” There is no meet and confer requirement where the deponent fails to attend and produce documents described in the n...

Excerpt: ...declines to make any further determinations concerning the amounts owed or any apportioning of defense costs. (Crawford v. Weather Shield Mfg. Inc. (2008) 44 Cal.4th 541, 565, fn. 12). Code of Civil Procedure section 2778 establishes rules for the interpretation of indemnity contracts “unless a contrary intention appears.” (Code Civ. Proc., § 2778; Crawford, 44 Cal.4th at 553.) Section 2778(4) specifies that the indemnitor is bound “to def...

Excerpt: ...iff or despicable conduct which is carried on by the Defendant with a willful and conscious disregard of the rights or safety of others.” In 1987, the Legislature amended the statute to add a criterion for “unintentional malice” which requires a plaintiff to prove that the conscious disregard displayed by the defendant was “despicable” and “willful.” It also elevated the standard of proof to clear and convincing evidence. (See Civil...

Excerpt: ... (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. . . . ‘Promissory fraud' is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” Lazar v. Superior Court (1996) 12 Cal.4th 63...

Excerpt: ...llegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2. The Demurrer for uncertainty is sustained, because the role of the numerous defendants is unclear. Fourth Cause of Action for Unfair Business Practices: “A plaintiff alleging unfair business practices u...

Excerpt: ... Business & Professions Code § 17200), eighth (Declaratory Relief) and ninth (Injunctive Relief) Causes of Action. First Cause of Action – Employment Discrimination. To allege disability discrimination, the plaintiff initially has the burden to state a prima facie case by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (...

Excerpt: ...eposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) The service of a deposition notice is effective to require any deponent who is a party to the action to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying. (Id.; Code Civ. Proc., § 2025.280(a).) If, after service of a deposition notice, a party to the action, without h...