Excerpt: ...red moving Defendant Bowers Termite. [SAC, ¶ 20 and Ex. 3.] Plaintiffs allege that the “motivating purpose” of the contract between Defendants and Bowers was to inspect the house (and either remedy pests or confirm none) for the close of escrow and that Bowers knew this. The inspection contract was for the intended benefit of Plaintiffs in their purchase of the home. [SAC, ¶¶ 21, 22.] A written contract may be pleaded either by its terms�...

Excerpt: ...ul eviction in ¶77, and in the Prayer of the FAC. The Motion is GRANTED. A nuisance may be either a negligent or an intentional tort, and if the latter, then exemplary damages may be recoverable. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903). Thus, when the facts warrant, exemplary or punitive damages may be recovered in a nuisance case. (Hutcherson v. Alexander (1968) 264 Cal. App. 2d 126.) The damages recoverable for wrongful eviction, act...

Excerpt: ... order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States. This is consistent with CCP section 128(3), which confirms the court has broad discretion to “provide for the orderly conduct of proceedings before i...

Excerpt: ...a prior hearing on the Motion on May 17, 2021. The Court continued the hearing, ordering the parties to submit further briefing regarding whether the procedural provisions of the Federal Arbitration Act (FAA) or California Arbitration Act (CAA) apply to the motion. See ROA #77. Defendants timely filed their supplemental brief on 6/14/21 addressing that issue. ROA 79. Plaintiff's supplemental briefing was due on 6/28/21 (see ROA #77), but the Cour...

Excerpt: ...order will effectuate a “stay” of the production until further order of the Court. A motion to quash production of documents at a deposition must be accompanied by a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled. (See CRC 3.1345(a)(5).) As an initial matter, the Court notes that Plaintiffs refer to and attempt to incorporate a declaration ...

Excerpt: ...rder to meet and confer. Goldstein 10/11/2021 Decl., ¶ 3. Evans' unopposed request for judicial notice is denied. The Court may take judicial notice of admissions “when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court…The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the...

Excerpt: ... on the Demurrer to the FAC. They ask this both in the Moving and Reply papers. It is unnecessary to ask the Court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 9.53.1a.) Thus, these requests are denied. Merits 1. Fraud –false promise– OVERRULED Plainti...

Excerpt: ...or eighth causes of action or her request for punitive damages. DEMURRER On demurrer, a complaint must be liberally construed. (Code Civ. Proc. § 452; Stevens v. Superior Court (1999) 75 Cal. App. 4 th 594, 601.) All material facts properly pleaded, and reasonable inferences drawn from them, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4 th 962, 966-67.) A pleading is adequate if it contains a reasonably precise stat...

Excerpt: ...rs to the second through sixth causes of action in the FAC. Demurring Parties also seek an order striking the prayer for punitive damages, punitive damages allegations, and the sixth cause of action from Plaintiff's FAC. Once again, the Court notes as an initial matter four procedural issues posed by the parties' papers: First, Demurring Parties' proofs of service for the demurrer, motion to strike, and respective replies did not comply with Code...

Excerpt: ...and (3) a motion to compel Defendant to serve further responses to Plaintiffs' Special Interrogatories, Set One, 1-13, 15-27, and 30-42. The Court rules on each motion separately, below. Motion to Compel Compliance Asan initial matter, the Court notes the potential inconsistency between Plaintiff's request to compel Defendant to comply with its original responses to the RFPs at the same time she demands different responses in place of the origina...

Excerpt: ... did not file a reply. Subject to any objection by Defendants to the untimely opposition, the Court will exercise its discretion and consider Plaintiff's untimely opposition and objection. Defendant shall advise the Court at the hearing whether it waives the untimely opposition, or whether it seeks to have the hearing continued so that it may have the opportunity to file a reply. Plaintiff's objection to the demurrer on the ground the demurrer is...

Excerpt: ... An agreement to comply must be rather specific as to what is agreed to. It must state that the production and inspection will be allowed (in whole or in part); and that the documents or things in the demanded category that are in the responding party's possession, custody, or control will be produced. (Id. § 2031.220.) On receipt of the response, the demanding party may move to compel further response if any of the following apply: (1) a statem...

Excerpt: ...poration (“GH Holdings”), Graham Hershman (“Hershman”), Michael Payne (“Payne”), Helmut Horn (“Horn”), CHRG Perillo, LLC (“CHRG Perillo”), CHRG Holdings, LLC (“CHRG Holdings”), CHRG Manager, LLC (“CHRG Manager”), T. Chadwick Lund (“Lund”), and Joseph Perillo (“Perillo”) (collectively, “Specially Appearing Defendants”) each seek an order quashing the service of summons on him (or it) for lack of personal jur...

Excerpt: ...orandum of Costs; and (4) A Motion by SG and Thomas Rowley to strike the Verio Defendants' Memorandum of Costs and to strike or tax Eric and Bridee Schrier's Memorandum of Costs. The Court's rulings on each motion are set forth below. Motion #1: Motion by Verio Defendants for Attorneys' Fees The Verio Defendants seek an award of attorney's fees pursuant to Civil Code Section 3426.4, contending that (1) they are the prevailing parties on SG's sixt...

Excerpt: ...tion, to moving party's Supplemental Interrogatories; (2) serve initial responses, without objection, to moving party's Supplemental Inspection Demand; and (3) appear for her deposition. Plaintiff did not oppose any of the Motions. All three Motions are granted. Sanctions are awarded against Plaintiff Erin Seiss in the sum of $246 on each of the three motions, for a total of $738 in sanctions – payable to moving party within thirty (30) days. M...

Excerpt: ...hat there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff. Code Civ. Proc. §437c(f)(1). “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or ...

Excerpt: ...leave to amend. The demurrers by Zohair Shah to the fraud and negligent misrepresentation claims, are overruled. Applicable Law “As with all fraud claims, the necessary elements of a concealment/suppression claim consist of ‘(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.'” H...

Excerpt: ...out leave to amend. The Jungs and California Mortuary filed their Cross-Complaint against Sunnyside Cremation and Funeral Inc. and its shareholder Kwang-II An asserting eight causes of action: 1. financial elder abuse 2. elder abuse 3. intentional interference with prospective contractual relations 4. negligent interference with prospective contractual relations 5. unjust enrichment 6. money had and received 7. conversion 8. unfair competition (R...

Excerpt: ...Plaintiff has not shown the arbitration provision to be unconscionable. The general rule is that “one must be a party to an arbitration agreement to be bound by it or invoke it.” DMS Servs., Inc. v. Superior Court (2012) 205 Cal.App.4th 1346, 1352 (internal quotes and citation omitted). Courts have recognized limited exceptions to this general rule: “there are six theories by which a nonsignatory may be bound to arbitrate: (a) incorporation...

Excerpt: ...etermining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) A demurrer “admit[s] all the properly pleaded material facts” and “even the most improbable alleged facts...

Excerpt: ...r covenant; breach of any duty owed by the Company or to the Company by you; disclosure of trade secrets or proprietary information; improper use of Company property or equipment; personal or physical or emotional injury; fraud; misrepresentation, defamation, or any other tort claims; wages or other compensation due; penalties, benefits; reimbursement of expenses; discrimination or harassment, including but not limited to discrimination or harass...

Excerpt: ...th 1282, 1287, 44 CR2d 335, 337 (citing text) (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 107 CR2d 841); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 CA4th 383, 388, 112 CR3d 40, 44.) This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more l...

Excerpt: ...on of these disputes. Motion, 3:12- 13; Denis Decl., ¶ 6. At the 2/2/2021 Status Conference, Plaintiffs represented to the Court that the parties were preparing a stipulation for binding arbitration and the Court ordered Plaintiffs to submit the parties' Stipulation for Binding Arbitration forthwith. The Court did not order the parties to stipulate to arbitrate the dispute. If an action was not commenced in the proper court, a party may move to ...

Excerpt: ... on reply. Defendant's motion to strike is denied. Defendant's motion for protective order is denied. Plaintiff is awarded sanctions of $2,750 against Defendant, payable by Defendant within 30 days. Code Civ. Proc. §20025.420(h). Demurrer First Cause of Action for Wrongful Termination in Violation of Lab. Code §6311 In his moving papers, Defendant's only arguments for his demurrer to Plaintiff's first cause of action are that she did not allege...

Excerpt: ...s to Form Interrogatories, Set 3, From Plaintiff Rachel Garcia (“Plaintiff”), is granted. Defendant moves for an order compelling Plaintiff to provide a further response to Special Interrogatory No. 17.1, with respect to Request for Admissions Nos. 42, 44, 45, and 54. By the requests, Defendant sought admissions regarding the first time Plaintiff told a medical provider she was experiencing back pain. Plaintiff's responses were incomplete wit...