Excerpt: ...sana L. White (collectively, the "Moving Defendants") to Plaintiffs' First Cause of Action for breach of contract and their Second Cause of Action for fraud. For the reasons set forth below, the Demurrer is SUSTAINED with 15 days leave to amend. Initially, the Court notes that Plaintiffs' opposition was due to be filed on 4/21/23. (Code Civ. Proc., 1005(b).) It was not filed until 4/25/23. (ROA 42.) In addition, the proof of service is deficient ...

Excerpt: ...leading a cause of action in a complaint. Thus, the defendant must plead ultimate facts, and when the facts must be pleaded with particularity in a complaint, it is equally necessary to plead them with particularity in an affirmative defense involving the issue. (5 Witkin, California Procedure (6th ed.), Pleading 5 1122; see also FPI Development, Inc. v. Nakashima (1991 231 cal. App. 3d 367, 384.) There are three grounds for a demurrer to an answ...

Excerpt: ...lison, Brandi Lee Callison, Jennifer Negrete, and Levi Sterling Callison, a minor, by and through his Guardian ad Litem, Caleb Callison CROA *23] is SUSTAINED with 15 days leave to amend. (2)Defendant Elizabeth Gothard's demurrer to the fifth cause of action for negligent misrepresentation in Plaintiffs' complaint [ROA #77] is SUSTAINED with 15 days leave to amend. (3)Defendant Jeffrey Gothard's demurrer to the fifth cause of action for negligent...

Excerpt: ... party who conducted the examination deliver a copy of the written report, the examinations, the findings and results of all tests, any diagnoses, prognoses, and conclusions of the examiner. (Code Civ. Proc., S 2032.610.) These reports are to be delivered within 30 days service of the demand, or within 15 days of trial, whichever is earlier. (Code Civ. Proc., S 2032.610(b).) If the party who examined the plaintiff fails to make a timely delivery ...

Excerpt: ...y judgment on Plaintiff's Complaint and summary judgment on Kharrat's Cross- Complaint. Accordingly, Market is ordered to pay an additional filing fee of $500 within 15 days. Market's Objections Nos. 5 and 6 to Balian's declaration are sustained. "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of...

Excerpt: ...the Song-Beverly Act may also recover reasonable attorney fees. Section 1794, subdivision (d) provides: "If 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, determined by the court to have been reasonably incurred by the buyer in connection with the commen...

Excerpt: ...ce may not be taken of any matter unless authorized by law." (ld. at 835.) The Court in Tenet noted that although letters were "referred to in the third amended complaint," judicial notice was nonetheless improper, as the letters did not qualify for judicial notice pursuant to Evidence Code 5451 or Evidence Code 5452. (ld. at 833 and 835.) "A matter ordinarily is subject to judicial notice only if the matter is reasonable beyond dispute." (ld. at...

Excerpt: ...anctions under CCP section 177.5. (Plaintiff's Notice of Motion also seeks some form of relief under CCP "section 1778," but the Court is unaware of any such statute.) More specifically, Plaintiff's Motion asks the Court to set an OSC re Contempt of the Temporary Restraining Order entered by the Court on January 12, 2023. Thus, the 4/24/2023 hearing on this Motion addresses only Plaintiffs' request for the Court to issue an OSC re Contempt; it is...

Excerpt: ...able Family Trust dated December 2, 1 ggl, as amended and completely restated April 6, Trustee"), moves for an order granting his motion for summary judgment on his Complaint, or, in the alternative, summary adjudication on his first cause of action for breach of note his and second cause of action for breach of guaranty. Legal Standard "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that t...

Excerpt: ... • the Fourth Cause of Action for violation of Bus. And Prof. Code 17200. For the reasons set forth below, the Motion for Judgment on the Pleadings (the "Motion") is DENIED as to the First Cause of Action and GRANTED as to the Second, Third, and Fourth Causes of Action. Request for Judicial Notice The Court GRANTS Defendant's request for judicial notice of Exhibits 1 and 4-9 pursuant to Evidence Code sections 452(c) and 452(h). Although the Cou...

Excerpt: ...h Demurrer To state a cause of action against a public entity, a plaintiff must plead: (1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measu...

Excerpt: ...ourt denies Defendant's request to judicially notice the Court's prior order granting Defendants Motion for Judgment on the Pleadings in this case. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. "CA]II 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 2021) 'l g.53.1a.) The Court can consider...

Excerpt: ...urrer is OVERRULED. Third Cause of Action for Marital Status Discrimination under FEHA "To succeed on a disparate treatment claim at trial, the plaintiff has the initial burden of establishing a prima facie case of discrimination, to wit, a set of circumstances that, if unexplained, permit an inference that it is more likely than not the employer intentionally treated the employee less favorably than others on prohibited grounds. Based on the inh...

Excerpt: ... the Unruh Act. "[W]here, as here, statutory remedies are invoked, the facts 'must be pleaded with particularity.' (Covenant Care, supra, 32 Cal.4th at p. 790, 11 Cal. Rptr.3d 222, 86 P.3d 290.)" Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 cal.App.4th 396, 410. Civil Code section 51, the Unruh Act, provides that "all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion...

Excerpt: ...express agreement between the parties. (D'Amico v. Board of Medical Examiners (1974) 11 cal.3d 1, 25; code Civ. Proc., SS 1021 and 1717.) Plaintiffs contend they are entitled to fees under the tort of another doctrine. The Court disagrees. The damages recoverable through "tort of another" are often referred to as an exception to the "American Rule," under which litigants are required to pay their own legal fees, absent an agreement to the contrar...

Excerpt: ...y Braking System. Complaint, II 59. In connection with that purchase, Plaintiff alleges he entered into a warranty contract with Nissan. ld. 8. Plaintiff alleges the Vehicle constitutes consumer goods under the Song-Beverly Consumer Warranty Act (the "Act"); Plaintiff is a buyer of consumer goods under the Act; and Defendant Nissan is a manufacturer and/or distributor under the Act. Complaint 64-67. Plaintiff further alleges the Vehicle has defec...

Excerpt: ... The Court notes that Plaintiff filed two Oppositions to the Motion to Stay but no Opposition to Motion to Strike. From this, it appears Plaintiff may have intended to — but inadvertently did not — file and serve his Opposition to the Motion to Strike. Plaintiff shall file and serve his opposition no later than April 7. Defendant's reply shall be filed and served pursuant to the Code of Civil Procedure ("CCP") section 10050). Motion to Stay P...

Excerpt: ...eard and disposed of on their merits"; and because Defendant contends both agreements are unconscionable, oppressive and unlawful. For the reasons set forth below, the Motion is DENIED. As an initial matter, the Court notes that judgment in this case has not yet been entered in favor of Plaintiff Ryan Kim. On 6/29/22, the Court granted Plaintiff's Motion to enter judgment against Defendant under CCP section 664.6 based on the Stipulated Judgment....

Excerpt: ..., the Motion is GRANTED; the action is stayed pending conclusion of the arbitration proceedings; and an ADR Review hearing is set for October 30, 2023, at 9:00 a.m. in Department C31. Section 1281.2 of the Code of Civil Procedure CCCP") provides, inter alia: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, th...

Excerpt: ...rety. B. Demurrer The Court sustains Defendants' Demurrer to the first and third causes of action — for negligence and false imprisonment - in Plaintiff's Complaint. The Demurrer is overruled as to the second cause of action for battery. As an initial matter, Plaintiff filed her Opposition brief just four court days before the hearing. This violates Code of Civil Procedure CCCP") section1005(b), which provides that all opposition papers "shall ...

Excerpt: ...ing six causes of action against Defendant: 1) Breach of Declaration, 2) Violation of Civil Code S4775(a), 3) Violation of the covenant of good faith and fair dealing, 4) Breach of fiduciary duty, 5) Negligence, and 6) Declaratory relief. At issue on this Demurrer are the Third through Sixth causes of action. Plaintiff alleges she owns property within the Association. Complaint YIYI, 2. Defendant and Plaintiff "are subject to a certain First Amen...

Excerpt: ...he demurrer for uncertainty is overruled. First Cause of Action for breach of partnership aqreement The elements of a cause of action for breach of a partnership agreement are: (1) the partnership agreement; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) the resulting damages to plaintiff. (Jones v. Goodman (2020) 57 cal.App.5th 521, 527, fn. 2.) In general, "the association of two or more persons to car...

Excerpt: ... re Preliminary Injunction and Temporary Restraining order. ROA # 22. The Court GRANTS Plaintiffs' Motion for Preliminary Injunction to the extent set forth below. Plaintiffs' unnumbered evidentiary objections are all overruled. Legal Standard Code of Civil Procedure ("CCP") section 526(a)(3) provides that an injunction may be granted "Cw]hen it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, ...

Excerpt: ...tains Defendants' Demurrer to the first and third causes of action — for negligence and false imprisonment - in Plaintiff's Complaint. The Demurrer is overruled as to the second cause of action for battery. As an initial matter, Plaintiff filed her Opposition brief just four court days before the hearing. This violates Code of Civil Procedure CCCP") section1005(b), which provides that all opposition papers "shall be filed with the court and a c...

Excerpt: ...r presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the "four corners" of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code 451 or 452. Although California courts take a liberal view of inartfully drawn co...