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: ...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: ...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: ...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: ...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: ...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: ...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: .... 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: ... 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: ...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: ...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: ...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: ...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: ...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....