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: ... theory of liability. (South Bay Chevrolet v. Gen. Motors Acceptance Corp. (1999) 72 Cal.App.4th 861.) Plaintiff alleges that Tesla has committed unfair and unlawful business practices in refusing to provide Plaintiff with all of the data that has been gathered by the Vehicle's onboard diagnostic and data gathering equipment upon Plaintiff's request. (Compl., ¶¶ 41-43.) Plaintiff concedes that she does not assert a claim under the fraudulent pr...

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...

Excerpt: ...ial burden, the burden shifts to the defendant to show a triable issue as to one or more material facts or a defense thereto. The defendant may not rely on the mere allegations or denials of its pleadings, but must set forth the specific facts showing a triable issue exists. (Aguilar, 25 Cal.4th at 849.) A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conf...

Excerpt: ...g requirements of California Rules of Court, Rule 2.108(1). The standard governing motions for summary judgment is settled. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an ...

Excerpt: ...(Code Civ. Proc., § 437c (q)). Probate Code section 16061.7 provides that “A trustee shall serve a notification by the trustee as described in this section in the following events: (1) When a revocable trust or any portion thereof becomes irrevocable because of the death of one or more of the settlors of the trust, or because, by the express terms of the trust, the trust becomes irrevocable within one year of the death of a settlor because of ...

Excerpt: ...ate facts which “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 641.) The elements for a claim for promissory fraud are: (i) misrepresentation; (ii) knowledge of falsity; (iii) intent to induce reliance; (iv) actual and justifiable reliance to Plaintiff's detriment; and (v) damages as a result. (Id., at p. 638.) Here, Plaintiff fails to allege detrimental r...

Excerpt: ...e case. Even if there was, Defendant showed a legitimate, nondiscriminatory reason for the termination. (UMF 1 to 26). DENIED. There were triable issues of Nos. 16, 21, 24 & 25. There is a factual dispute whether Plaintiff was terminated, because of poor performance or assisting wife due to her illness. Arguable, Defendants terminated Plaintiff as a result of “distraction.” Issue No. 2: The Second Cause of Action for Failure to Reasonably Acc...

Excerpt: ...rse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” (Code Civ. Proc., § 473(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. (Id.) Plaintiff Hagendorf amended his Complain...

Excerpt: ...false representations. Cote is awarded attorney's fees and costs in the total amount of $1,710.00. Code of Civil Procedure section 425.16 provides: “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 motion to strike, unless the cou...

Excerpt: ...se of action. See Kraner v. Halsey (1889) 82 Cal. 209, 212. Current case law takes a different approach. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. The failure to plead the dates of the tort does not require that the Demurrer be sustained. St...

Excerpt: ...n Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321. “The moving party has ‘the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.'” ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020. Reasonable Billing Rate: “The reasonable hourly rate is that prevailing in the community for similar work.” PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095. “The tr...

Excerpt: ... fatal to his breach of contract cause of action.” Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402. “The elements of a cause of action for breach of contract are: ‘(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.'” Coles v. Glaser (2016) 2 Cal.App.5th 384, 391. Plaintiff has alleged facts to set forth the elements of br...

Excerpt: ...tion that a settlor should pay less in settlement than he would if he were found liable after a trial; (5) the financial conditions and insurance policy limits of settling defendants; (6) the existence of collusion, fraud or tortious conduct aimed to injure the interests of nonsettling defendants. (Tech-Bilt, 38 Cal.3d at 499-500.) The settlement must be assessed based on the information available at the time of settlement. (Id. at 499.) By defin...

Excerpt: ...ss-Complainants did not seek leave to file a cross-complaint against moving Cross-Defendant Paul Copenbarger. Copenbarger provides evidence that the only cross- claims discussed at the August 2019 status conference were indemnity claims against NHV, VMG, and D'Alessio. (Alston Decl. ¶ 2.) Nevertheless, the court's minute order does not limit leave to amend to only those cross-claims discussed. Although Cross-Complainant Artz was no longer party ...

Excerpt: ...of Costs on 12/6/2019. Defendants originally attempted to file the motion on 12/26/2019, which would have been timely (taking into account the extra 5 days granted for service by mail). But the clerk rejected that filing because counsel's name did not match the name originally on file for defense counsel. Defendants then filed a Notice of Firm Name Change on 12/30/2019 and filed this motion the same day. (Muench Dec.) Defendants' counsel addresse...

Excerpt: ... action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.'” Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968. Causation: “On causation, the plaintiff must establish ‘it is more probable than not the neg...

Excerpt: ...6) 48 Cal.App.4th 976, 978–79.) Each case presents its own facts and circumstances, but the court will usually consider the following: (1) timeliness of the motion: i.e., whether granting consolidation would delay the trial of any of the cases involved, or whether discovery in one or more of the cases has proceeded without all parties present; (2) complexity: i.e., whether joining the actions involved would make the trial too confusing or compl...

Excerpt: ...as to the medical diagnosis and prognosis of any party.” (Code Civ. Proc. § 36.5.) The attorney's declaration can consist entirely of hearsay and conclusions. (Fox v. Sup.Ct. (Metalclad Insulation LLC) (2018) 21 Cal.App.5th 529, 534.) Thus, the objections are overruled. Code Civ. Proc. § 36(a), permits a party who is over 70 years of age to petition the court for trial preference, which the court must grant if it makes both of the following f...

Excerpt: ... (Aguilar).) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, ...

Excerpt: ...substantial compliance with the response obligations set forth in 2030.210-2030.240. Further, Defendant has made a showing that the failure to respond was due to mistake, inadvertence, and excusable neglect arising from the health issues of former counsel, Concolino. (See Decl., ¶¶ 1-8; Crumpton Decl., ¶¶ 1-6.) Motion No. 2: The Motion by Plaintiff Eric J. Hardeman to Compel Responses to Request for Production of Documents by Defendant Rock A...

Excerpt: ...ces as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” There are two types of cross-complaints: compulsory cross-complaints and permissive cross-complaints. A compulsory cross-complaint is a cross-complaint that is asserted against the plaintiff and related to the subject matter of the complaint. (Code Civ. Proc., § 426.30.) A cross-...

Excerpt: ... Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 877; Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 794.) The issue is whether these facts constitute a prima facie case or defense as a matter of law. (Moore v. San Francisco (1970) 5 Cal.App.3d 728, 733; Fountain Valley Chateau Blanc Homeowner's Ass'n v. Department of Veterans Affairs (1998) 67 C...

Excerpt: ...ely or improbable, the allegations 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...

Excerpt: ...isted in Plaintiff's Notice of Motion is denied without prejudice to Plaintiff refiling timely separate motions to quash each subpoena and paying resultant filing fees. Plaintiff's motion concerns a subpoena duces tecum (“Subpoena”) issued by counsel for Stater Bros. on October 9, 2019, and served on deponent Hoag Hospital Irvine - Records. (Ng Decl., Ex. 2.) The Subpoena requests: “[a]ny and all medical records, charts, files, doctors' not...

Excerpt: ...lantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If ...

Excerpt: ...f, even if plaintiff's cause of action is improperly titled, or an improper remedy is stated. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, and Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547.) Seventeenth Cause of Action (Declaratory Relief). The elements of a cause of action for declaratory relief are: (i) a proper subject for declaratory relief per Code of Civil Procedure Section 1060; (ii) ...

Excerpt: ...e interests of justice support doing so. Defendants Spertus, Landes & Umhoffer, LLP and James Spertus' Motion to Compel Arbitration, however, limits the court's subject matter jurisdiction. Once a motion to compel is made, a court has jurisdiction to determine that (1) there is a valid agreement to arbitrate; (2) one party is refusing to arbitrate; and (3) the lawsuit must be stayed and the dispute ordered into arbitration. (Office & Professional...

Excerpt: ...shall provide responses, without objections, to Plaintiff's Form Interrogatories One within 15 days of service of Notice of Ruling. The Motion by Plaintiff Eric J. Hardeman to Compel Responses to Request for Production of Documents by Defendant Rock Advantage, Inc. is GRANTED. As a result of Defendant Rock Advantage, Inc.'s failure to serve timely responses, Defendant has “waive[d] any objection to the demand, including one based on privilege o...

Excerpt: ...tention,” or “retained limit,” generally refers to the amount of a loss or liability that the insured agrees to bear before coverage can arise under the policy. Although a self-insured retention ordinarily differs from a deductible in some respects, the term “self-insured retention” or “retained limit” in an insurance policy can reasonably connote to the insured no more than what is expressly stated in the policy. In other words, th...

Excerpt: ...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 need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (Civ. Proc. Co...

Excerpt: ... removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” Therefore, the ambiguously written cause must be construed against the drafter. Under the American rule, each party to a lawsuit ordinarily pays its own attorney fees. . . . Code of Civil Procedure section 1021, which codifies this rule, provides: ‘Except as attorney's fees are specifically pr...

Excerpt: ...as granted as to half of the factual allegation paragraphs and two of the three causes of action that Defendants sought to strike. As such, Defendants are entitled to an award of fees. Mandatory attorney's fees awarded under Section 425.16, subdivision (c), are those fees that the court deems reasonable. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132.) It is Defendants' burden of proof to show the fees it incurred and that the fees were reasonab...

Excerpt: ...mitations, Plaintiff raises various tolling arguments. Statute of Limitations. First, Plaintiff contends that the claims are tolled by the discovery rule. “Although a cause of action generally accrues, triggering the statute of limitations, when it is complete with all of its elements, accrual is postponed until a plaintiff discovers, or has reason to discover, the cause of action.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 147...

Excerpt: ...Cal.App.4th 471, 485 (when considering a demurrer, trial court may take judicial notice of answers to requests for admission.).) Defendants argue that the First Amended Complaint (“FAC”) is a sham pleading because the original Complaint alleged that Defendants' statements regarding imminence were fraudulent, but the FAC now claims Plaintiff actually agreed with the decision to delay the liquidity event, contradicting his prior pleading. The s...

Excerpt: ...ng for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff's complaint, as “the pleadings set the boundaries of the issues to be resolved at summary judgment.” (Oakland Raiders v. National Footb...

Excerpt: ...nt bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment...

Excerpt: ...default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.'” Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385–386. If Plaintiff had not taken Defendant's default, then the Court ...

Excerpt: ...0) 184 Cal.App.4th 1422, 1428.) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Id. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. (Higgins v. Del Faro (1981) 123 CA3d 558, 564- 565.) Cabrillo seeks leave to amend the Cross-Complaint to add causes of action for breach of implied duty to perform ...

Excerpt: ...agraph 10 permitted limited discovery. Interrogatories was limited to identification of witness. Request for Production was limited to 25 requests. Depositions consisted of two eight-hour depositions of fact witnesses and one two eight-hour deposition of expert witnesses. Upon request of the parties, the arbitrator had authority to allow additional discovery. “The arbitration will be administered by the American Arbitration Association (‘AAA'...

Excerpt: ...framework for evaluating potential invasions of privacy, explaining: “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Id. at 552). “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party se...

Excerpt: ...at p. 2.) Instead, Defendant offered to supplement responses on the condition that Plaintiff respond to a settlement offer by the next business day. (Id.) Plaintiff's decision not to accept that conditional offer does not evidence a failure to meet and confer in good faith. Code of Civil Procedure section 2033.220 provides that should the responding party give lack of information or knowledge as a reason for failure to admit all or part of an RFA...

Excerpt: ... bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment i...

Excerpt: ... Richfield Co. (2001) 25 Cal.4th 826, 850-51.) If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc., § 437c(p)(2); Aguilar, 25 Cal.4th ...

Excerpt: ... beyond a broken contractual promise,” in order to recover tort damages]; see also Aas v. Superior Court (2000) 24 Cal.4th 627, 632 [economic loss rule bars an action in tort for purely economic losses in the absence of personal injury or damage to property other than the product itself], superseded by statute in construction defect actions as stated in Burch v. Superior Court (2014) 223 Cal.App.4th 1411, 1417; KB Home v. Superior Court (2003) ...

Excerpt: ...cate any intent to seek relief pursuant to this provision. Applying the 3-year statute of limitation, the Complaint makes clear Plaintiffs were entitled to a reconveyance on or about July of 2015. (See ¶14 of the Complaint). While Plaintiffs' Opposition asserts the claim did not accrue until 2019, when Plaintiffs incurred legal costs in pursuing this action, the Complaint alleges the Deed of Trust damaged Plaintiffs by impairing the “vendibili...

Excerpt: ...ply with Corporations Code section 2105, the court sustained the demurrers of Defendants DynaPass, Inc. (“DynaPass”) and Miguel Medina (“Medina”) (together, “Defendants”) on the basis that Plaintiffs lacked capacity to maintain the instant action. (Id.) On May 13, 2019, Plaintiffs filed their Fourth Amended Complaint (“4AC”). Defendants demur to the 4AC, inter alia, on the grounds that Plaintiffs lack capacity to sue. California l...

Excerpt: ...more favorable judgment or settlement in the action in which the malpractice allegedly occurred. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) The “but for” test of causation applies to a legal malpractice claim re settlement of litigation. (Id. at 1242.) The plaintiff need not prove causation with absolute certainty: he can present evidence “which affords a reasonable basis for the conclusion that it is more likely than not that the condu...

Excerpt: ...ements with the public policy favoring equitable sharing of costs among tortfeasors. To accomplish this, the settlement must be within the “reasonable range” (within the “ballpark”) of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) The California Supreme Court in Tech-Bilt v. Woodward-Clyde & Assoc., 38 Cal.3d 488 (1985), set forth the fact...

Excerpt: ...�1237. Tolling of Statute of Limitations: In the FAC, the new Paragraphs 41 to 47 set forth Plaintiff's health history. Plaintiff has Type I Diabetes, urea toxicity and numerous other symptoms. He underwent dialysis, which lead to dialysis dementia. He developed fading eyesight and decline in short term memory. Plaintiff contended that he was incapable of caring for his property, transact business and understand the effects of his action. Code Ci...

Excerpt: ...iff's cause of action is improperly titled, or an improper remedy is stated. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, and Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547.) Seventeenth Cause of Action (Declaratory Relief). The elements of a cause of action for declaratory relief are: (i) a proper subject for declaratory relief per Code of Civil Procedure Section 1060; (ii) the existence of ...

Excerpt: ..., LLC v. Goldman (2011) 51 Cal.4th 811, 821; see also Singarella v. City of Boston, 173 N.E.2d 290,291 (Mass.1961).) Further, it is well established “that a supplemental agreement either adding to or varying the terms of the original contract, so as to impose new and onerous burdens upon one of the parties, requires a consideration to support it.” (Krobitzsch v. Middleton (1946) 72 Cal.App.2d 804, 808.) An obligation already owed by the promi...

Excerpt: ...e convenient forum. (See Code Civ. Proc., § 410.30, subd. (a).) A nonresident Plaintiff's choice of forum is entitled to “due deference” under all circumstances, but not a “strong presumption” of appropriateness. (National Football League v. Fireman's Fund Insurance Company (2013) 216 Cal.App.4th 902, 929- 930.) When Defendant seeks a dismissal of the action, Defendant must establish that this forum is a “seriously inconvenient” foru...

Excerpt: ...idence of malice, oppression or fraud warranting punitive damages; (2) Defendants are entitled to Summary Adjudication as to Plaintiffs' request for punitive damages as to their Second Cause of Action for Violation of Civil Code Section 1942 as Plaintiffs have not provided clear and convincing evidence of malice, oppression or fraud warranting punitive damages; (3) Defendants are entitled to Summary Adjudication as to Plaintiffs' request for puni...

Excerpt: ...vil Procedure section 437c, subdivision (d) requires that the parties set forth admissible evidence, though any objections based on failure to comply with this subdivision if not made at hearing are deemed waived. (Code Civ. Proc., § 437c(d).) A Plaintiff moving for summary judgment satisfies his or her initial burden by showing that each element of the cause of action in question has been “proved,” and hence that there is no defense thereto...

Excerpt: ...limitations given that Cross- Complainant Bhandari waited approximately 30 months after the lawsuit was filed to file the Cross-Complaint against Howard. A claim for equitable or partial or comparative indemnity does not accrue, and the statute of limitations does not commence to run, until the indemnity claimant has suffered an actual monetary loss through the payment of a judgment or settlement [not at the time plaintiff's injury was inflicted]...

Excerpt: ... a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” The request is denied. To support punitive damages, the Complaint must allege facts of Defendant's oppression, fraud, or malice. (Civ. Code § 3294(a).) “Malice” is defined as conduct which is intended by the Defendant to cause injury to the Plaintiff or despicable conduct which is carried on by the Defendant with a willful an...

Excerpt: ..., Defendant American Multifamily, Inc. (“AMF”) has demonstrated the existence of a written arbitration agreement and that Plaintiff HMS Drywall and Painting, LLC (“HMS”) 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.) The arbitration agreement is contained in the “Subcontract” between AMF and HMS, dated November 8, 2017. (Kim Decl.; Ex. A.) The ...

Excerpt: ...endant argues that the first six causes of action – Intentional Misrepresentati o Misrepresentation of Fact, Violation of Corporations Code § 25401, Violation of P e NIED.— are time-barred. The first two causes of action are for misrepresentation, to which a three year st a Civ. Proc. § 338(d).) For the third cause of action for violation of Corporations C o limitations is “five years after the act or transaction constituting the violatio...

Excerpt: ...hts ‘only by judicial process, of who has the right to possession, orderly procedure a require that the actual possession shall not be disturbe process.'” Spinks v. Equity Residential Briarwood Apar t 1004, 1038. Plaintiff has adequately alleged that Defe n Second Cause of Action for Intentional infliction o to allege Intentional Infliction of Emotional Distress, D e outrageously. ‘Conduct to be outrageous must be so e x that usually tolera...

Excerpt: ...vided no evidence that its Board of Directors compli (Id.) Article VI required that plans and specifications s h location be submitted to and approved in writing by th e Decl., ¶ 5, Ex. 2, Art. VI.) The court also found that Pl a law and that the interim harm from the issuance or no n burdens Plaintiff and Defendant equally. (ROA No. 44, 4 The Association has now complied with CC&R Article V I H-I.) The Association has also submitted evidence th...

Excerpt: ...s the prevailing party. The Logans did not dispute this finding. Statutory Right to Attorney Fees: Civ. Code, § 5975 (c) provides, “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs.” Under Civ. Code, § 1717, attorney fees are also recoverable. The Logans did not dispute that attorney fees were recoverable. Lodestar Calculation of Attorney Fees: Civ. Code, § 5975 (c)...

Excerpt: ...by the evidence. Requests for Judicial Notice: All Requests for Judicial Notice is GRANTED. Defendant ITCA's Objections to Evidence: Nos. 1 to 5: Overruled. Costs: In both motions, defendants sought to recover costs incurred in defending this action. However, on July 22, 2019, the Court entered an Order pursuant to the parties' stipulation. ITCA was awarded $8,042.75. The Tuckers were awarded $14,158.06. This Order foreclosures further litigation...

Excerpt: ...t may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” In deciding whether to consolidate cases, the court can consider such factor as timeliness of the motion, complexity of the cases, and prejudice. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter 2018) ¶ 12:362.) Here, Defendants move to consolidate Newport Harbor Offices & Marina ...

Excerpt: ... application, claiming it was mailed to the wrong address. Plaintiff was directed to mail the application to the New York office. (SAC, ¶ 5.) Plaintiff alleges that the document returning the application was not on formal government paper and does not include a signature or date. (SAC, ¶ 5.) Plaintiff mailed the application to the New York office as directed, but it was returned. Plaintiff was directed to mail the application to the Sheffield o...

Excerpt: ...rty's attorney spent on the case and multiplies that number by the reasonable hourly compensation of each attorney. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998; see also Environmental Protection Info. Ctr. v. California Dep't of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 248.) The court may rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate. (Heritage Pac. Fin., LLC...

Excerpt: ... circled the word “and” or word “or.” Since there was no instruction for the jury to do so, this position is unreasonable. Defendants Erwin have the obligation to structure the Verdict Form to reveal this finding. Defendants Erwin failed to alert the Court of any alleged ambiguity before the jury was excused. The failure to this ambiguity timely forfeited the issue. “Potentially defective special verdicts are subject to ‘a multilayere...

Excerpt: ...ocedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]' [Citation.] Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway (2001) 94 Cal.App...

Excerpt: ...2 fn. 5.) Here, the claims in the Complaint are transitory. Indeed, Plaintiff does not appear to dispute this point. Where an action is transitory, the general rule is that the action is to be tried in the county of defendant's residence. (Code Civ. Proc. § 395(a).) With respect to actions for breach of contract, such actions are triable in the county where defendant resides or where the contract was entered into or where it was to be performed ...

Excerpt: ... or her identity. Where it is clear to the court that discovery of the defendant's identity is necessary to pursue the plaintiff's claim, the court may refuse to quash a third-party subpoena if the plaintiff succeeds in setting forth evidence that a libelous statement has been made. When there is a factual and legal basis for believing libel may have occurred, the writer's message will not be protected by the First Amendment. . . . Accordingly, a...

Excerpt: ...been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. (Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal. 2d 210, 220-221; Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal. 4th 245, 255.) Here, in response to RFA 1, ZOI responded, “Denied.” But in response to Form Interrogatory 17.1 relating to that interrogatory, ZOI wrote, “No admissions were made.” This is improper. In the ...

Excerpt: ...ntrol of any dog shall cause or permit, either willfully or through failure to exercise due care or control, the dog to be upon any private property unless such dog is contained or restrained thereon by a fence, wall, substantial chain, leash not exceeding six feet in length, other appropriate physical restraint, or is under the charge of a person competent to exercise care, custody, and control over such dog. (b) No person owning or having charg...

Excerpt: ...available i n obligation not arising from contract.” (See Civ. Code, § recover punitive damages, a plaintiff must plead malic e Code, § 3294(a).) The statute defines malice as “cond defendant to cause injury to the plaintiff or despicable c defendant with a willful and conscious disregard of the Code, § 3294(c)(1).) A Complaint must allege specific factual allegations to s damages. (See, e.g., Anschutz Entertainment Group, I Cal.App.4th 59...

Excerpt: ... (15) days. Defendants are correct that Equitable Estoppel is no a valid stand - theory of [equitable] estoppel is invoked as a defensive matter to alleging or relying upon some fact or theory that would otherwise from the party asserting estoppel.'” Ryder v. Lightstorm Entertain m Cal.App.4th 1064, 1075. (Emphasis original). Ironically, Judge Sherman referred to Promissory Estoppel when t granted. “Courts ‘look past the form of the pleadin...

Excerpt: ...is ordered to provide further responses to R e 51 and 52 in a manner that is consistent with this Cou r Plaintiff to give notice. Motion Re Special Interrogatories. Plaintiff Anna A Responses to Special Interrogatories is GRANTED in pa Plaintiff's Separate Statement does not comply with Ca Rule 3.1345(c)(4). The Rule requires that the Separat e of all definitions “required to understand each discover y it.” Here, each of the Special Interroga...

Excerpt: ...al. App. 3d 452, 458–459. Here, FAXC alleges a breach of a written contract that w 2016. However, the FAXC fails to attach and incorpor a verbatim. Accordingly, the Demurrer to the First Caus e Contract is sustained with leave to amend. Second Cause of Action for Breach of Implied Covenan t Dealing. The prerequisite for any action for breach of t and fair dealing is the existence of a contractual relatio the covenant is an implied term in the c...

Excerpt: ...., Inc. v. Superior Cou r For corporate entities with few shareholders where the directly impact both the corporation and the other sha r direct and derivative actions are often blurred. As a re direct shareholder action, or given direct shareholder r e when it was equitable to do so. (See Jara v. Suprema Cal.App.4th 1238, 1253-1260.) Zhang contends that Avery lacks standing to sue indivi d incidental to the alleged injury to Veydra LLC, and thu ...