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: ...; 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: ...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: ...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: ...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: ... 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. 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: ...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: ... 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...