Excerpt: ...t the complaint “arises from” defendant's constitutionally-protected free speech or petition activity. (Code Civ. Proc. §425.16(b); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) Once the defendant makes such prima facie showing, then the burden shifts to the plaintiff to establish a “probability” of prevailing o...

Excerpt: ...ling), the Demurrer is SUSTAINED without leave to amend. Defendants argue Plaintiff cannot state a viable COA for breach of implied covenant of good faith and fair dealing because Plaintiff has not alleged facts showing his own performance or excuse for nonperformance. Plaintiff does not rebut this argument, thereby conceding the same. In addition, Plaintiff's COA is based on the allegation that the loan modification applications were improperly ...

Excerpt: ...lect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six...

Excerpt: ...ufficiently established a probability of prevailing on the merits of its claims. This litigation arose following the default by Defendant American Life Capital, LLC (“ALC”) on a multi-million dollar loan secured loan made by Plaintiff to Defendant ALC in 2012. (See Complaint; see also Rivin Decl., ¶ 2.) Here, Plaintiff correctly notes this Court already found Plaintiff was likely to succeed on the merits of its claims when it granted Plainti...

Excerpt: .... (Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938-939; Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439.) In addition, “[t]he doctrine [of unjust enrichment] applies where plaintiffs, while having no enforceable contract, nonetheless have conferred a benefit on defendant which defendant has knowingly accepted under circumstances that make it inequitable for the defendant to retain the benefit without paying for its value. The...

Excerpt: ...n matter”) bars Cross-Complainants from obtaining the same easements the Sloan plaintiffs obtained. However, there is no prior judgment against Cross-Complainants in favor of Cross- Defendant finding the Cross-Complainants do not have an easement, i.e., the prior judgments made no determination of whether Cross-Complainants have easements. (See Cross-Defendant's RFJN, Exh. 1.) Because the issue of Cross-Complainants' easement rights was not pre...

Excerpt: ...l investigation and analysis of the Electrical System Defect plaguing Plaintiff's vehicle and establishing Defendant knew of such defect and knew it could not repair it, but failed to repurchase the vehicle. Although Plaintiff is correct that Defendant did not substantiate its object based on burden, information regarding other customers' vehicles and bulletins and recalls that do not apply to Plaintiff's vehicle are not relevant to the issues in...

Excerpt: ... section 473.5, but provides no argument for this proposition. On the other hand, defendant cites to Stevenson v. Turner (1979) 94 Cal.App.3d 315 and Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, for the proposition that when the default is void, defendant can seek relief to set the default aside at any time. Defendant appears to argue the default is void on its face, in which case the motion may be made at any time. (Schwab, supra, 114 C...

Excerpt: ...of the documentation within five business days of receipt. In its initial acknowledgment of receipt of the loan modification application, the mortgage servicer shall include the following information: (1) A description of the loan modification process, including an estimate of when a decision on the loan modification will be made after a complete application has been submitted by the borrower and the length of time the borrower will have to consi...

Excerpt: ...utions in connection with a public issue,” and specifically constitutes “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law. (Code Civ. Proc., § 425.16(e)(2).) Statements and writings made “in connection with” judicial proceedings are covered by section 425.16. (Briggs v. Eden Council for ...

Excerpt: ...rsy” and is claiming anxiety, insomnia, and post-traumatic stress disorder as a result of the automobile accident that is the subject of her complaint. Defendant provides specific facts showing that its request to conduct a psychiatric examination is directly relevant to plaintiff's mental distress claims. Plaintiff is to submit to an independent psychiatric examination with Dr. James High within the next 30 days, as follows: Dr. James High, M....

Excerpt: ...tionate liability; fails to inform the Court how the $200k settlement to the minor Plaintiffs will be allocated; and fails to provide any evidence of JASMINE's financial condition and insurance policy limits. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488,499.) The Motion states generally that the parties considered the approximation of Plaintiff's recovery as well as JASMINE's proportionate liability and insurance coverage issu...

Excerpt: ... deem plaintiffs to have abandoned the issue.”].) Here, based on the above, it appears Cross-Complainant has conceded MP's arguments; however, as this is Cross- Complainant's first attempt at pleading his claims, the Court will SUSTAIN the Demurrer, in whole, with 15 days leave to amend. (2) Motion to Strike is MOOT. RFJN is granted to the extent the documents exist, but not to the truth of the contents therein. Counsel is reminded to engage in...

Excerpt: ... assert the 1 st and 2nd COAs because these claims allege violations of Labor Code section 3820(b)(3), not Insurance Code section 1871.7(a), and under the labor code provision, only the district attorney has standing to assert same. Not so. The 1 st COA alleges Defendants violated Insurance Code section 1871.7(a) because they “employed James, along with other Sales and Marketing Representatives specifically to procure clients or patients to obt...

Excerpt: ...ivate conversations with Abrica on her cell phone without Abrica's knowledge or consent in violation of the CIPA. (See Cross-Complainants' Separate Statement (“PSS”) ¶¶ 3-19.) Cross-Defendant, in opposition, contends her recording of Abrica was not unlawful because she made the recording for the purposes of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of a felony invol...

Excerpt: ... is objecting to her own deposition testimony, the objection is overruled. 2. 2 -6 = Overruled. Defendant's Evidentiary Objections: 1-4, 10-16, 18-24 = Overruled 5-9, 17 = Sustained Motion for Summary Adjudication Issue 1: Plaintiffs first COA (retaliation in violation of Labor Code § 1102.5) Allegations in the Complaint: The Complaint alleges Plaintiff harbored a reasonable belief that reducing and eliminating training in Quality and Safety, am...

Excerpt: ...ence to show damages are not adequate or that Defendant is likely to use or disseminate the information/records at issue here? This Court notes this case is six (6) years old. There is no showing that since Defendant obtained the information/records here she has continued to use this information to Plaintiffs' detriment. Plaintiffs do not identify any RFJN document which establishes the Bankruptcy Court specifically found Defendant is likely to u...

Excerpt: ...ttached as Exhibit A to the Declaration of Don McCarroll. Section 10 of the Employment Agreement is the arbitration provision, which states: (a) Any controversy between Employer and Employee involving the consideration or application of any of the terms, provisions, or conditions of this agreement shall on the written request of either party served on the other be submitted to arbitration. Arbitration shall comply with and be governed by the prov...

Excerpt: ...relevant allegations are as follows:  “On or about May 31, 2016 defendant KATIE NAPIER consumed a grossly excess [sic] amount of alcoholic beverages to the point that she became excessively intoxicated despite knowing that she would need to operate a motor vehicle later on that evening. Even though defendant KATIE NAPIER knew she was drunk and should not be driving a motor vehicle…defendant KATIE NAPIER decided to knowingly operate her Mot...

Excerpt: ...Exhibit 2 to Declaration of Scott Moore filed on 9-19-18. (Salvaty v. Falcon Cable TV(1985) 165 Cal. App. 3d 798, 800 – when a complainant references an agreement in the complaint and gives no indication why judicial notice would be improper, the court may take judicial notice of the complete document; San Francisco Unif. Sch. Dist. ex rel. Contreras v. Laidlaw Transit, Inc. (2010) 182 Cal. App. 4th 438, 444 n.5 – Courts have taken judicial n...

Excerpt: ...To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal. App. 4th 49, 62.) Whether a duty of care exists is a question of law to be determined on a case-by-case basis. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 4...

Excerpt: ...acts” and “uncertainty,” as against each Affirmative Defense. Nonetheless, as the Notice references the “[F]irst through Fifteenth Affirmative Defenses,” the Court will interpret the Notice as demurring to each individual Affirmative Defense. Next, pursuant to Code of Civil Procedure section 430.20, a party may Demurrer to an Answer, where the Answer “does not state facts sufficient to constitute a defense” or “is uncertain.” (S...

Excerpt: ...ntial Listing Agreement, which states: “Broker agrees to exercise reasonable effort and due diligence to achieve the purposes of this Agreement.” (See ¶7(a) of Exhibit A to FAC). Additionally, Plaintiff cites to the Disclosure attached as Exhibit B of the FAC, which states: “A Seller's agent…has the following affirmative obligations: To the Seller: A Fiduciary duty of utmost care, integrity, honesty and loyalty in dealings with the Selle...

Excerpt: ...ies listed on Annex A shall take all appropriate actions to dismiss their monetary claims against the Debtors with prejudice within such time frame.” (See Notice filed January 17, 2018; See also Exhibit 5 of RJN [underlining added].) Included within Annex A is an express reference to this case and the statement: “The parties' proofs of claim were expunged by Court order [Docket 4328 and 5892].” (See Exhibit 5 of RFJN, Item No. 6 in Annex A)...

Excerpt: ...may be proper, may allow the amendment of any pleading or pretrial conference order.” Similarly, per Code of Civil Procedure section 473(a), a court may, in its discretion and in the furtherance of justice, allow a party to amend any pleading. A motion for leave to amend is proper and should be granted if said motion is timely made and the granting of that motion will not prejudice the opposing party. (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 52...