Excerpt: ...mplaint. Cross-Defendant contends the 2nd cause of action for equal protection is "entirely redundant" of the ISt cause of action for breach of fiduciary duty and thus fails to state facts sufficient to state a cause of action. Cross-Defendant contends that the 1st cause of action for breach of fiduciary duty alleges that ASSOCIATION failed to consider their application for the stairway in "good faith, with due care and in accordance with law and...

Excerpt: .... Objections to Declaration of Paul McBride Objection Nos. 1- 45 - OVERRULED. As an initial matter, the Court notes that Defendants have failed to file a separate statement. Per section 437c(b)(3), an opposition "shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed." "Failure to comply with...

Excerpt: ...ed Petition for Writ of Mandate is DENIED. In this action, Plaintiff seeks a writ of mandate to compel Respondent to disclose documents withheld in response to her California Public Records Act (CPRA) request. The CPRA must "be broadly construed if it furthers the people's right of access and narrowly construed if it limits the right of access." (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 750-751.) "All public records are subject to ...

Excerpt: ...tors: (1) the likelihood that the moving party will prevail on the merits, and (2) whether the harm the moving party will likely suffer if the motion is denied outweighs the harm the opposing party is likely to suffer if the motion is granted. (Ketchens v. Reiner (1987) 194 cal.App.3d 470, 474.) "These two showings operate on a sliding scale: '[T Jhe more likely it is that [the party seeking the injunction] will ultimately prevail, the less sever...

Excerpt: ...s true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) "[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory." (Durell v. Sharp Healthcare (2010) 183 cal.App.4th 1350, 1358.) The allegations in the Complaint are uncertain as to who made the alleged offer and who accepted the alleged offer to support the existence of a contract. In addition, the alle...

Excerpt: ...Court finds that Defendant is not entitled to enforce the identified Retail Sales Installment Contract pursuant to equitable estoppel and, consequently, Defendant failed to meet its burden to establish an applicable arbitration agreement. Preliminarily, both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement, before arbitration can be compelled. (See g U.S.C. 52 and code Civ. Proc...

Excerpt: ... amount of $4,000 pursuant to Code of Civil Procedure section 128.5. Code of Civil Procedure section 128.5 states: (a) A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings ...

Excerpt: ...Complaint and Proof of Service that was served on Defendant (the "Served SAC"), but declines to take judicial notice of the truth of statements therein. Merits "A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint . . are taken. Unless it does so, it may be disregarded." (Code Civ. Proc. 430.60.) In addition, "Ce]ach ground of demurrer must be in a separate paragraph and must state whether it applies t...

Excerpt: ...vided, however, that failure on the part of any person filing any demurrer to prosecute the same may be construed as a waiver of such demurrer, except as otherwise provided in Section 430.80 of this code.” Code of Civil Procedure section 592 states, in relevant part: “In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or...

Excerpt: ... the meet and confer requirement prior to filing the Demurrer. The hearing was continued from January 24, 2023 to allow the parties to properly meet and confer. The Court notes that, per the Case Management Statement filed on March 27, 2023, the parties met and conferred at length on March 20. Thus, the Court finds that the meet and confer requirement has been satisfied. Negligence The elements of a negligence cause of action are a legal duty owe...

Excerpt: ...ims are barred based on the Assumption of Risk Agreement executed by Plaintiff and Mr. Shoar as Plaintiff waived and released any claims against it. “To be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that party's own negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly...

Excerpt: ...; and Special Interrogatories, Set One. For the reasons set forth below, the Motions are GRANTED in part and DENIED in part. Inspection Demands TF has supplemented its responses to Nos. 1-5, 7-11, and 14-16. The Motion as to these demands is MOOT. The only remaining demands at issue are Nos. 6 and 13. TMI has supplemented its responses to Nos. 1-5 and 7-11. The Motion as to these demands is MOOT. The only remaining demands as to TMI at issue are ...

Excerpt: ... and for sanctions of $4375 against defendant and its counsel of record, Michael J. Sexton. (ROA 66) Plaintiff Cynthia Brammer moves to compel further deposition testimony from defendant's PMQ in response to Testimonial Categories 6, 7, 8, 12, 13, 14, 15, 17, 1 g and 20, and for sanctions in the amount of $4375 against defendant and its counsel, Michael J. Sexton, for the expenses of bringing this motion. (ROA 82) Plaintiff Cynthia Brammer moves ...

Excerpt: ...ment between the parties, Plaintiff is entitled to attorney fees. (Civ. Code, S 1794, subd. (d); ROA 77, Declaration of Soheyl Tahsildoost, II 4, Ex. C, "Settlement Agreement and Release," page 2 of 7 [emphasis added].) The August 18, 2022 settlement agreement between the parties states: "The parties agree that Plaintiff is the prevailing party, for purposes of a motion for attorney's fees, and Defendant shall pay Plaintiff's attorney's fees, cos...

Excerpt: ...s an initial matter, the Court notes Plaintiffs' Opposition was not served on Moving Defendant. The proof of service attached to the Opposition shows service was made only on Defendant Chris Guerra. Thus, the Court has not considered the Opposition for purposes of this ruling. The Complaint alleges Defendant Marina Ponce owned and/or managed the premises and that Defendants Michael Guerra, Chris Guerra, and Moving Defendant owned, managed or acte...

Excerpt: ...s. The Court rules as follows: Issue No. 1: Plaintiff's cause of action for retaliation in violation of the California Fair Employment and Housing Act ("FEHA") fails as a matter of law because Plaintiff did not engage in any protected activity, and there is no causal link between any protected activity by Plaintiff and Plaintiff's termination, Defendant had legitimate, non-discriminatory reasons for any alleged adverse employment actions, and suc...

Excerpt: ...al of Defendant Estate of Michael Lutton (the "Lutton Estate") as a Defendant; (2) the replacement of Defendant Ronald Soderling ("Mr. Soderling") as a party with Mr. Soderling's Estate (the "Soderling Estate"); (3) the addition of The Emond-Soderling Family Foundation (the "Soderling Foundation") as a defendant; (4) the addition of Mr. Daniel Winton ("Mr. Winton") as a defendant; (5) the addition of Aaron McKown ("Mr. McKown") as a defendant; (6...

Excerpt: ...equirement. A party filing a demurrer is required to meet and confer in person or by telephone with the party who filed the pleading subject to the demurrer and file a declaration stating how the meet and confer took place, pursuant to Code of Civil Procedure Section 430.41. Defense counsel talked with Plaintiffs' counsel about the issues raised in this Demurrer on February 22, 2023. (Supplemental Declaration of J. John Oh, 2-3.) "A cause of acti...

Excerpt: ...ing, using, concealing, encumbering, pledging, conveying, hypothecating, transferring, distributing, or otherwise disposing of any funds or proceeds or any right, title, or interest therein from or of (a) any sale, conveyance, or transfer of any right, title, or interest in or to 570 Glenneyre, including any sale conducted in connection with the enforcement or execution of any judgment against any of the Defendants, (b) any loan or financing secu...

Excerpt: ...appear for the court-ordered depositions scheduled for August 2, and August 3, 2022, and fees and costs associated with drafting the instant motion. Code of Civil Procedure section 2025.440 states, in relevant part: "If a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in Section 2020.240. (Code Civ. Proc. 2025.440...

Excerpt: ...djudication is sought, as required by CRC 3.1350(b). Rather, the notice confusingly indicates that Defendants seek summary judgment, or in the alternative, summary adjudication under Code of Civil Procedure section 437c “on the ground that . . . Plaintiff . . . failed to state facts sufficient to constitute a cause which relief may be granted (Code of Civil Procedure §430.10(e)). This action has no merit and there is no triable issue of materi...

Excerpt: ...erits to the Opposition. The Court finds any objection to the late filing has been waived and will exercise its discretion to consider the Opposition. Code of Civil Procedure section 2033.280(b) provides that, when a party fails to serve a timely response to requests for admission, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as wel...

Excerpt: ...ts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A).) In the Motion, Plaintiff asks the court to make two findings on the pleadings: (1) the height restriction does not run with the land and (2) the height restriction is not enforceable as an equitable servitude. Plaintiff cites to Civil Code section 1462 for its contention that the height restriction does not run with the land because it is a burd...

Excerpt: ... Jones (“Jones”) and 150 Newport Center Drive LLC (“150 NCD”) (collectively, “Plaintiffs”), or alternatively, for summary adjudication, as to the 1 st, 2 nd, 3 rd, 4 th, 5 th, 6 th, 7 th, and 8 th causes of action alleged in the First Amended Complaint (“FAC”), as well as summary adjudication on behalf of Mr. Soderling, as an individual, as to Plaintiffs' claims for punitive damages. The motion is GRANTED, in part; DENIED, in part...

Excerpt: ... the amount of $1,100.00 pursuant to Code of Civil Procedure section 664.6. Code of Civil Procedure section 664.6(a) states: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain...

Excerpt: ...ssary to the conduct of the litigation rather than merely convenient or beneficial to its preparation and shall be reasonable in amount. (Id. § 1033.5(c)(2)-(3).) Items not mentioned in section 1033.5 and items assessed upon application may be allowed or denied in the court's discretion. (Id. § 1033.5(c)(4).) “If the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein...

Excerpt: ...Design Sciences Corp. v. Superior Court (2004) 121 Cal.App.4 th 1100, 1106.) Under Code of Civil Procedure section 483.010, attachment may be issued only if the claim sued upon is: (1) a claim for money based on a contract (express or implied); (2) the claim is for a fixed or readily ascertainable amount not less than $500, exclusive of costs, interest and attorney's fees; (3) the claim is not secured by real property (or was originally so secure...

Excerpt: ... First Amended Petition for Writ of Mandate is DENIED. In this action, Plaintiff seeks a writ of mandate to compel Respondent to disclose documents withheld in response to her California Public Records Act (CPRA) request. The CPRA must “be broadly construed if it furthers the people's right of access and narrowly construed if it limits the right of access.” (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 750-751.) “All public recor...

Excerpt: ...rd Decl. ¶¶3-4, 7.) The request does not satisfy the requirements of Code of Civil Procedure section 437c(h). No explanation has been provided as to how the identification of the documents is essential to opposing the motion. Further, no timeline has been given as to when the discovery is expected; nor has counsel described any specific steps or procedures he intends to use to obtain the discovery. The court also preliminarily notes that Defend...

Excerpt: ...Design Sciences Corp. v. Superior Court (2004) 121 Cal.App.4 th 1100, 1106.) Under Code of Civil Procedure section 483.010, attachment may be issued only if the claim sued upon is: (1) a claim for money based on a contract (express or implied); (2) the claim is for a fixed or readily ascertainable amount not less than $500, exclusive of costs, interest and attorney's fees; (3) the claim is not secured by real property (or was originally so secure...

Excerpt: ...omplaint on the grounds a valid agreement to arbitrate exists between them and there are no defenses to its enforcement. Whether the parties delegated the issue of arbitration to the arbitrator? Defendants contend the Court lacks jurisdiction to decide any issues concerning arbitration including the issue of arbitrability because the Employment Arbitration Policy (“Arbitration Agreement”) includes an express delegation clause. (See Arbitratio...

Excerpt: ...cted activity under the statute and Plaintiff cannot demonstrate a probability of prevailing. Code of Civil Procedure section 425.16 provides in relevant part: “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 or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the Court de...

Excerpt: ... subdivision (a)(1) provides in pertinent part that: “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the ca...

Excerpt: ...otion is GRANTED but REDUCED. Civil Code section 1717: If neither party achieves a complete victory on all the contract claims, it is within the trial court's discretion to determine which party “prevailed” on the contract. (Scott Co. of Calif. v. Blount, Inc., (1999) 20 Cal.4th 1103, 1109; De La Cuesta v. Benham (2011) 193 Cal.App.4th 1287, 1294; Jackson v. Homeowners Ass'n Monte Vista Estates-East (2001) 93 Cal.App,4th 773, 786-789] In deci...

Excerpt: ...son for deposition on December 29, 2022. Accordingly, the Court DENIES the motion to compel an in-person deposition of Plaintiff as MOOT. The issue of sanctions remains. Defendant seeks monetary sanctions in the amount of $11,885 pursuant to Code of Civil Procedure sections 2025.450, 2023.030, and 2023.010. Plaintiff contends Plaintiff acted with substantial justification and the amount of sanctions sought is exorbitant and excessive. “The cour...

Excerpt: ...mount of $55,169; a multiplier of 0.3 for a fee enhancement of $16,550.70, for a total amount of $71,719.70 in fees. Entitlement to Fees Civil Code section 1794, provides, in relevant part: “[i]f the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determine...

Excerpt: ...failed to report to meeting”; that “male employees displayed insubordination and disrespect for Knott because she is a woman”; refused to take instructions from Plaintiff; made “vocal and aggressive communications in public forms (e.g., Slack), about Knott, her work, and her job duties”; male employees including BAINE “argued with Knott, set demands, and disregarded her opinions and instructions”; BAINE criticized Plaintiff's work a...

Excerpt: ...l, LLC's (“Engaged”) filed a Notice of Joinder in Motion to Dismiss. The forum selection clause at issue is mandatory and Plaintiff, as the party opposing the enforcement of the forum selection clause, has not met its burden of proof to show that enforcement would be unfair or unreasonable. (See Korman v. Princess Cruise Lines, Ltd. (2019) 32 Cal.App.5th 215, 216; CQL Original Prod., Inc. v. Nat'l Hockey League Players' Assn. (1995) 39 Cal.Ap...

Excerpt: ...ts to the conclusion that a “worker” is an individual person and does not extend to an entity. (See e.g., Waithaka v. Amazon.com, Inc. (1st Cir. 2020) 966 F.3d 10, 20, cert. denied (2021) 141 S.Ct. 2794, reh'g denied (2021) 141 S.Ct. 2886 [explaining the categories of “people” who are exempt under FAA]; Lenz v. Yellow Transp., Inc. (8th Cir. 2005) 431 F.3d 348, 352 [establishing a factor test to determine whether an employee is so closely...

Excerpt: ...ected activity]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66–67 If the defendant carries its burden, the plaintiff must then demonstrate the claims have at least “minimal merit.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Baral v. Schnitt (2016) 1 Cal.5th 376, 384 Further, under Baral, where the relief is sought on both protected and unprotected spe...

Excerpt: ...t cause of action or defense. [Citations.]” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 926 (Caloroso).) “The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.]” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “It is well established in California that although a store owner is not an insurer of the safet...

Excerpt: ...i, ¶ 4.) Though this effort does not satisfy the meet and confer requirements set forth in the Code of Civil Procedure, the Court will exercise its discretion to consider the merits of the Demurrer, as Defendant's counsel attempted to meet and confer and those attempts were ignored. Merits Defendant argues the sole cause of action for Fraudulent Transfer under the Uniform Voidable Transactions Act fails because Plaintiff does not allege Defendan...

Excerpt: ...e or order of court.” (Code Civ. Proc, § 436.) Furthermore, as with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records). (Code Civ. Proc, § 437.) Punitive Damages: MP seeks to strike the punitive damages allegations from the FAXC. A claim for punitive damages must be supported by specific factual allega...

Excerpt: ...tion on January 26, 2022. (ROA 93.) The Court notes Plaintiff filed a second Opposition, as well as Objections to Evidence, on November 2, 2022. Not only are Plaintiff's filings untimely, due to the November 11 holiday, but the Court did not grant Plaintiff leave to file any new opposition papers to the Motion. Thus, the Court will not consider the second Opposition or Objections to Evidence. Repeated Litigation under CCP § 391(b)(2): A litigant...

Excerpt: ...both the Demurrer and Motion to Strike. Thus, any objection by Pfizer has been effectively waived and Pfizer has not been prejudiced. Request for Judicial Notice: Pfizer requests judicial notice of the following: (1) The Inflectra label and medication guide in place since April 2016; and (2) The FDA's website regarding Tumor Necrosis Factor blockers. The Request for Judicial Notice as to Exhibit 2 (the FDA's website regarding Tumor Necrosis Facto...

Excerpt: ...and confer as required by Code of Civil Procedure section 430.41. (ROA # 258.) While the demurring parties filed a proof of service as required by the September 27, 2022 Minute Order, demurring parties failed to file a supplemental declaration regarding their further meet and confer efforts. Therefore, the demurring parties failed to follow the court's order. The court rules as follows on the Demurrer to the First Amended Complaint: • The Court...

Excerpt: ...of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 657.) Defendants both failed to timely oppose the Motion to Vacate. Their failure to oppose the motion may be treated as an abandonment of any opposition to the issues raised in the moving pape...

Excerpt: ...SA claims the parties intended to pursue a joint venture together to acquire and develop two or more gold mines located in Inyo County, California. (FAC, ¶ 19.) In exchange for BSA's expertise and labor pursuant to the joint venture, Hagestad agreed BSA would receive a percentage of ownership of the joint venture's gold mines and profits, including a 30 percent interest in both the Keystone and Radcliffe gold mines and a 15 percent carried inter...

Excerpt: ...on of public property. 4. Plaintiffs cannot establish the elements to support their negligence claim. 5. Plaintiffs cannot establish the elements to support a violation of the California Public Records Act (Government Code Section 6250, et seq.) Motion is DENIED in its entirety. Initially, the Court notes a staggering amount of documents were filed as to this motion. (3,450 pages). Each Plaintiff (Bardales and Kneeshaw) has filed their own opposi...

Excerpt: ...ble issues: (1) Whether an equitable servitude exists over Defendant Garruba's property that prohibits structures and vegetation over 17 feet high, and, if so, whether Plaintiff Buck can enforce the equitable servitude; and (2) Whether Plaintiff Buck can enforce a height restriction condition of approval imposed by the City of San Clemente on the Broadmoor project, including homes on Calle Delicada. Plaintiff cites Code of Civil Procedure section...