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: ...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: ...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 ...