Excerpt: ...ob, she accepted the arbitration agreement. In addition, she electronically signed the agreement. Full Agreement: In the moving papers, there was a clerical error, where the portions of the pages of the agreement were cut off. Upon notification of the defect, Defendants corrected it by filing a Notice of Errata on December 10, 2019. There is no showing that Plaintiff was prejudiced by the clerical error. The agreement had been sent to Plaintiff's...

Excerpt: ... case shall be allowed to recover a sum equal to the aggregate amount of costs and expenses, “including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Code Civ. Proc., § 1794(d).) The plain wording of the statute requires the trial court to base the fee award on actual time expended on the case, as long ...

Excerpt: ...ency 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 allege...

Excerpt: ...Plaintiff's unit, as such defendants knew Plaintiff was suffering yet failed to relocate her, failed to timely and properly treat, failed to abate the bed bug infestation, in acting in this manner Defendant intended to cause or at the very least with reckless disregard of the high probability that plaintiff would suffer emotional distress.” (Paragraph 130, page 22, lines 18-23). These allegations satisfy the requirement that Plaintiff allege De...

Excerpt: ...nd make inconsistent allegations.” Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402. A complaint may plead inconsistent causes of action. . . . [U]nless the alternate pleadings contain antagonistic statements, the statement of facts sufficient to constitute a cause of action in one count is not a bar to the maintenance of a separately stated count in the same pleading based upon inconsistent allegations.” Steiner v. Rowley (...

Excerpt: ...74, 1384, the court held that “the American Motorcycle indemnity action and the plaintiff's tort action are not on the same cause of action. The identity of two causes of action is determined by a comparison of the facts alleged which show the nature of the invasion of plaintiff's primary right.” These were different causes of action. “[T]he analysis focuses on identifying a primary right of the plaintiff and the defendant's breach of a cor...

Excerpt: ...lid, doe not state sufficient facts to constitute a cause of action, and is uncertain, vague, and ambiguous. MCWE's notice and demurrer state that MCWE demurs pursuant to 430.10, but that section applies only to complaints and cross-complaints. Because Newport Harbor Offices & Marina, LLC, (“NHOM”) addresses the merits of a demurrer as if brought pursuant to the correct code section 430.20, NHOM waives any objections on proper notice. There a...

Excerpt: ...nal distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) “A defendant's conduct is said to be ‘outrageous' when it is so “ ‘ “extreme as to exceed all bounds of that usually tolerated in a civilized community.” ' ” [Citation.]” (Ibid.) And the defendant...

Excerpt: ...aims in connection with the foreclosure. Where a borrower moves to set aside a trustee's sale on the ground the sale is voidable due to irregularities in the sale notice or procedure, the borrower must offer to tender the full amount owed on the debt. (Kalnoki v. First Am. Trustee Servicing Solutions, LLC (2017) 5 Cal.App.5th 23, 47 (citing Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112).) Plaintiff alleges Defendants foreclosed when they ...

Excerpt: ...ling on the Motion for Joinder and, as necessary, the Motion to Stay. Motion for Joinder. The unopposed Motion by Defendants/Cross-Complainants/Cross-Defendants Genie Industries, Inc., and Terex Corporation (“Joining Parties”) to Join in the Motion for Stay of Proceedings filed by Defendants/Cross-Complainants/Cross-Defendants Golden Rain Foundation of Laguna Woods, Third Laguna Hills Mutual, United Laguna Woods Mutual is GRANTED. The motion ...

Excerpt: ...ender if that person authorized the order or is otherwise bound by it under the law of agency. (b) If a bank and its customer have agreed that the authenticity of payment orders issued to the bank in the name of the customer as sender will be verified pursuant to a security procedure, a payment order received by the receiving bank is effective as the order of the customer, whether or not authorized, if (i) the security procedure is a commercially...

Excerpt: ... of the cause of action at issue has been proved, and as a result, there is no defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) The elements of a cause of action for breach of contract are: (i) the existence of a contract; (ii) the plaintiff's performance or excuse for nonperformance; (iii) the defendant's breach; and (iv) damage to the plaintiff resulting from the breach. (Oasis West Realty, LLC v....

Excerpt: ...��Attorney Rader”). Attorney Rader is attorney of record for Plaintiff Abernethy. Attorney Rader is not attorney of record for the Law Offices of Hagendorf & Abernethy (the “Partnership”), Rader has been filing papers on behalf of the Partnership since 08/2019. Standing. A complaining party who files a Motion to Disqualify is required to have standing.” (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 352.) Where a Motion for Disqualification ...

Excerpt: ... prevailing party must be (1) incurred by that party, whether or not paid; (2) ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation'; and (3) reasonable in amount.” Charton v. Harkey (2016) 247 Cal.App.4th 730, 739. Item No. 1—Filing and Motion Fees: $6,706.08. Plaintiff agreed to reduce the costs by $124.00. Code Civ. Proc., § 1033.5 (a) (1) provides that Filing, motion, and...

Excerpt: ...uash. Plaintiff also argues that Defendant did not meet and confer prior to filing this motion. While a motion to enforce a subpoena over a consumer's objections requires prior meet and confer efforts, it does not appear that a consumer's motion to quash does. (Code Civ. Proc. § 1985.3(g).) The subpoena seeks the following two categories of documents from Citibank and Financial Partners Credit Union: 1) Any and all documents, inclusive of cashed...

Excerpt: ...tes “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” Standing: Plaintiffs filed objection to ...

Excerpt: ...all “set[] forth plainly and concisely all material facts that the moving party contends are undisputed.” CRC 3.1350, subdivision (d)(3) requires that a Separate Statement of Undisputed Material Facts be in a two-column format that states each undisputed material fact in the first column, followed by the evidence that establishes those undisputed facts in that same column. Citation to that supporting evidence must include reference to the exh...

Excerpt: ...en a reasonable time to correct the deficiency, and [4] resulting damages.” Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297. Although Plaintiff alleged that she complained about the bed bugs, she failed to allege that Defendant was given a reasonable time to correct the problem. The pleading should be amended to complete these allegations. Sixth Cause of Action for Battery. “The essential elements of a cause of action ...

Excerpt: ...Cal.3d 311, 318.) A Demurrer may be based on, among other grounds, failure to state sufficient facts to constitute a cause of action, uncertainty, and misjoinder. (Code Civ. Proc., § 430.10, subds. (d), (e), (f).) The examination of the complaint is “guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.] However, it doe...

Excerpt: ... waived its right to compel arbitration. Significant delay alone does not constitute waiver and waiver will only be found when the moving party has taken substantial advantage of the judicial process or engaged in bad faith. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4 th 348, 3760377; Khalatian v. Prime Time Shuttle , Inc. (2015) 237 Cal.App.4 th 651. Although there has been some delay in bringing this motion, there is no evid...

Excerpt: ...moving papers purport to be on behalf of PDSRET and Artz as trustee of PDSRET, the Court will consider the papers to be filed and arguments made by Artz as Trustee of PDSRET. This Court exercises its discretion to consider this motion, though filed more than 60 days of service of the operative complaint (the “FAC”). (Code Civ. Proc., § 425.16, subd. (f).) Code of Civil Procedure Section 425.16 provides in relevant part: “A cause of action ...

Excerpt: ...d gives statement to an insurance carrier “'for the sole purpose of defending' against claims, are protected by the attorney-client privilege. The fact that litigation was only a threat on the horizon and that attorneys had not yet been selected to try to avert or meet that threat does not convert the purpose of the transmission. To hold otherwise might merely encourage insurance companies to bring in their attorneys at early stages in the clai...

Excerpt: ...0. The responses do not set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. (Code Civ. Proc., § 2031.230.) As to the remaining RFPs, Defendants contend that Plaintiff's motion to compel further responses to her RFPs should be denied because (1) Plaintiff has already received these documents from Dr. Mitchell; (2) any documen...

Excerpt: ...y valid claim entitling plaintiff to relief, 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. Hence, under a general demurrer, plaintiff's complaint must fail to state a valid cause of action for the demurrer to be sustained. A Demurrer for uncertainty, ho...

Excerpt: ... is unnecessary for the court to examine the defendant's opposing evidence, and the motion must be denied. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal. App. 4th 454, 468.) Once the plaintiff has met its initial 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 ...

Excerpt: ...(2017) 12 Cal.App.5th 1043, 1051. Fair Trial: “To overcome the validity of an administrative decision, a petitioner must show the agency acted without or in excess of jurisdiction, did not afford a fair trial, or prejudicially abused its discretion.” Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1463. In order to resolve Petitioner's contention that the administrative hearing did not afford due process, the ...

Excerpt: ...e substanda r subdivision. (1) In appointing a receiver, the court sha l been afforded a reasonable opportunity to correct the c violation. [¶] ... [¶] ... “(11) The prevailing party in an action pursuant to this reasonable attorney's fees and court costs as may be f i Another provision that applies is Health and Safety Co d that, once the trial court “finds that a building is in a c o endangers the health and safety of residents,” it sha...

Excerpt: ...e, according to the exhibits attached to the Petition of (1) a list of the names and addresses of each m (2) the name and address of Adelanto's manag e (3) Adelanto's federal, state, and local income t a fiscal years, (4) Adelanto's operating agreement, (5) Adelanto's articles of incorporation, (6) Adelanto's financial statements, and (7) Adelanto's books and records as they relate current and past four fiscal years. (Amended Petition, Ex. 1 at p...

Excerpt: ...des parties with expansive discover y contrary court order, a civil litigant's right to discovery Court (2017) 3 Cal.5th 531, 551.) “[A]ny party may o b matter, not privileged, that is relevant to the subject m action ... if the matter either is itself admissible in evid calculated to lead to the discovery of admissible evide n 2017.010; see Davies v. Superior Court (1984) 36 Cal. limited to admissible evidence”].) The statutory phras e than ...

Excerpt: ...010) 191 Cal.App.4th 53, 63.) The motion, however, is not intended to be used as a “procedural ‘line item veto' for the civil defendant.” (PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682-83.) To plead a claim to recover punitive damages, a Plaintiff must allege specified facts showing malice, oppression, or fraud. (Civ. Code, § 3294(a).) While punitive damages can be available in a negligence action, causing an accident while un...

Excerpt: ...o evidence to justify its objection based on undue burden or oppression. If Defendant GM LLC possesses any responsive, non-privileged documents, Defendant must produce them. Requests for Production Nos. 30-33 seek documents related to similar complaints and repairs relating to, as well as repurchases of, the 2015 Chevrolet Cruze. This is reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Defenda...

Excerpt: ...en shifts the Plaintiff establish, by means of competent and admissible evidence, that a triable issue of material fact still remains. (Code Civ. Proc., § 437c, subd. (p)(2); Id. at 850–851.) In her First Amended Complaint, Plaintiff alleges that Defendant provided unsafe chairs at Haskett Public Library. Plaintiff also alleges that Defendant failed to keep the premises clean and safe by providing unsafe seating equipment. Prior to filing a cl...

Excerpt: ...lvement in the day to day operation, management or business of AG Seal Beach, LLC. The Court, for good cause shown, may make any order that justice requires to protect any party “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) A Protective Order prohibiting the deposition of a corporate officer at the apex of the corporate hierarchy may be granted absent a reasonable i...

Excerpt: ...elevant, false, improper, or not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. Defendant's Motion to Strike paragraph 46 also is denied. To properly allege entitlement to punitive damages, there must be circumstances of oppression, fraud or malice, and facts must be alleged in the pleading to support such a claim. (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166.) Plaintiffs' First Amended...

Excerpt: ...The act of willfully becoming intoxicated and operating a motor vehicle can reasonably be held to reflect a conscious disregard for the safety of others. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895-96.) However, Plaintiff must show that Defendant's conduct “was such as to amount to a conscious disregard of the safety of and probable injury to other persons.” (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 87.) Plaintiff here pleads that Defend...

Excerpt: ...de of the landlord's property managers. . . . Because section 789.3 does not apply to persons other than landlords, we can see no basis for holding the managers liable.” Otanez v. Blue Skies Mobile Home Park (1991) 1 Cal.App.4th 1521, 1526. Since the statute only applies to the landlord, the Demurrer should be sustained with leave to amend. Second Cause of Action for Intentional infliction of Emotional Distress: “In order to allege Intentiona...

Excerpt: ...s a change in the obligations of a party by a subsequent mutual agreement of the parties. . . . A contract in writing may be modified by a contract in writing. (Civ. Code, § 1698, subd. (a).)” West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 798. UMF 14: “On April 1, 2016, Adam Reifman, Director of Guest Experience at RMC, confirmed in writing that ‘Eric . . . said he is more than happy to extend the deadline out so you can ma...

Excerpt: ...claration in compliance with Code of Civil Procedure Section 435.5. Pursuant to Code of Civil Procedure Section 436 the court may strike out “any irrelevant, false, or improper matter inserted in any pleading.” The motion, however, is not intended to be used as a “procedural ‘line item veto' for the civil defendant.” (PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682-83.) Punitive damages are available in actions “for breach ...

Excerpt: .... To state a cause of action for legal malpractice, Plaintiff must allege: (i) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (ii) a breach of that duty; (iii) a proximate causal connection between the breach and the resulting injury; and (iv) actual loss or damage resulting from the attorney's negligence. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179.) A...

Excerpt: ...t concedes that the Motions are now moot as to every request discussed in the Motions except those Requests for Production (“RFP”) relating to the text messages between Plaintiff and his wife. Specifically, Defendant argues that RFP Nos. 9, 16-19, and 36 are still in dispute and, therefore, each will be discussed below. RFP No. 9: All WRITINGS in the form of the written communications exchanged between YOU and Reno Carothers in the 30 days pr...

Excerpt: ...a notice designating record on appeal. Appellants sought to include in the reporter's transcripts two oral proceedings that were held before JAMS, rather than the Superior Court. On November 13, 2018, the clerk mailed out a “Notice of Inability to Provide Reporter's Transcript” (“Notice”) as to these two proceedings because the proceedings were not proceedings in the trial court and thus do not fall within the provisions of rule 8.130. (S...

Excerpt: ... prevailed on this claim, as Plaintiff's Summary Judgment motion was granted on August 13, 2018. Plaintiff is therefore entitled to its attorney fees. Plaintiff is awarded $17,334.50, consisting of all $16,787 requested by Plaintiff in addition to 1.5 hours for travel and appearance for hearing on this motion at $325 per hour and the $60 filing fee. Plaintiff to give notice. ...

Excerpt: ...otion to Strike is MOOT. Defendants' Request for Judicial Notice is Granted. (Evid. Code § 452 (d), (h).) A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4 th 968, 994....

Excerpt: ...189 Cal.App.3d 91, 94.) The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff's performance or excuse for nonperformance; (iii) Defendant's breach; and (iv) damage to Plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman(2011) 51 Cal.4th 811.) Here, the Complaint does not allege facts supporting the existence of a contract between Plaintiff O'Keefe and Defendant Brower. In fact, th...

Excerpt: ...th 15 days leave to amend. Code of Civil Procedure Section 1060 provides that: “Any person interested under . . . a contract . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross- complaint . . . for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the . . . co...

Excerpt: ... show their burden that there are any triable issues of material fact. At Common Law, Plaintiffs Did Not Have Right To View: “[U]nder California law, a landowner has no right to an unobstructed view over adjoining property . . . . ‘As a general rule, a landowner has no natural right to air, light or an unobstructed view and the law is reluctant to imply such a right. [Citations.] Such a right may be created by private parties through the gran...

Excerpt: ... question of law. (Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424, 431.) “A valid . . . contract must be enforced according to its terms.” (Kalai v. Gray(2003) 109 Cal.App.4th 768, 777.) “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” (Civ. Code § 1638.) “The whole of a contract is to be taken together, so as to give effect to every part, if reason...

Excerpt: ...gment, the prevailing party shall be entitled to recover all attorney fees, and all other fees and all costs incurred in such proceeding or action.” In this case, Plaintiffs' claims are based on allegations that during the couple's marriage, Defendant Stephen had wrongfully converted Plaintiff Wendy's separate property into community property. Plaintiff attacked the distribution of assets upon dissolution, and by extension, the Judgment of Diss...

Excerpt: ...) 43 Cal.3d 833, 841-842; Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014, 1017.) Plaintiff's Complaint alleges that while a resident of Defendants' facility, Decedent, “an eighty-five-year-old Oxygen-Dependent woman with a colostomy bag, suffered preventable hypoxemia and hypotension that was left untreated, unaddressed, and allowed to worsen by Defendants” during Decedent's approximately eleven days' residency in the facility. (Comp...

Excerpt: ...Davidson (2007) 147 Cal.App.4 th 461, 472-473); Obj. no. 5 to ¶11 (page/line 5:14-19) is sustained on the grounds of legal conclusion (see Towns v. Davidson, supra, at 472-473); and Obj. no. 7 to ¶13 (page/line 5:25-6:10) is sustained only as to the statements at page/line 5:25-6:3 on the grounds of legal conclusion (see Towns v. Davidson, supra, at 472- 473). The remainder of the evidentiary objections are overruled. Defendant H2O's evidentiar...