Excerpt: ...utside 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 jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” The elements that must be met pursuant to section 664.6 are as follows: 1. There is a valid a...

Excerpt: ... an initial matter, the Court notes Defendants did not properly serve their reply on Plaintiff, a self-represented litigant. (Cal. Rules of Ct., Rule 2.251(c)(3).) There is no showing Plaintiff affirmatively consented to electronic service. Accordingly, the Court declines to consider Defendants' reply. In any event, the reply is improper for an additional reason: because Plaintiff did not file an Opposition to the Demurrer, there is literally not...

Excerpt: ...en release bond. Defendant contends it is entitled to judgment because: (1) Plaintiff's preliminary notice was defective in that it failed to adequately estimate the value of its services; (2) Defendant is a “contractor” as defined by B&P Code section 7026.1 and cannot recover for unlicensed electrical work because it did not possess an electrical license; and (3) Plaintiff served its preliminary notice more than 20 days after it commenced se...

Excerpt: ... proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest. Code Civ. Proc. § 377.31. Basically, all causes of action survive death except as provided by statute. Code Civ. Proc. § 377.20. Section 377.31 of the Code of Civil Procedure (“CCP”) provides: On motion after the death of a person who commenced an action or proceeding, the court shall allow a pendin...

Excerpt: ...interference with contractual relationship, based on the allegation that Cross-Defendant Fu interfered with the “business relationships between Cross-Complainant B Body Fitness, LLC and the member of the B Body Fitness center” by making statements and taking actions that caused “the Members to terminate the membership agreement or breach the membership agreement by failing to pay dues to B-Body”. (XC ¶¶ 5, 11.) More specifically, Cross-...

Excerpt: ...ited States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the Court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” This section is to be construed broadly. Code Civ. Proc. § 425.16(a). There are certain specified claims against which a special motion to strike under Code Civ. Proc. § 425.16 may not be...

Excerpt: ...iable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a ...

Excerpt: ...perties, and Cathy Ramirez (collectively, “BHHS”) is sustained with 15 days leave to amend. BHHS's motion to strike is moot. Bowers Termite First Cause of Action for Breach of Contract For their breach of contract action, Plaintiffs expressly allege the purchase agreement with sellers. [SAC, ¶ 15 and Ex. 1.] They also allege that “Defendants” hired moving Defendant Bowers Termite. [SAC, ¶ 20 and Ex. 3.] Plaintiffs allege that the “mot...

Excerpt: ...igently inflicted emotional distress,” thus, a cause of action to recover emotional distress does not “fail to state a claim.” See Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071 (discussing “confusion” in the “law of negligent infliction of emotional distress” with respect to whether and under which theory, “bystander” or “direct,” a family member may recover). None of the authority cited by Defendant Gonzalez support...

Excerpt: ...n's and Biller's motion for summary judgment, as well as their motion for summary adjudication on the five issues on which they seek summary adjudication. The Court is inclined to GRANT the motion for summary judgment by Defendant Peters. The elements of breach of fiduciary duty are (1) existence of a fiduciary duty, (2) breach of that duty, and (3) damages. Twomey v. Mitchum, Jones & Templeton Inc. (1968) 262 Cal. App. 2d 690. Defendants' Resign...

Excerpt: ...ammer under the doctrine of “tort of another.” CHM's Right to Fees against Plaintiff Under Code Civ. Proc. § 1032(b), a prevailing party is entitled as a matter of right to recover costs. Under Code Civ. Proc. § 1033.5(a)(10)(A), attorney's fees authorized by contract are allowable as costs under CCP § 1032. The “prevailing party” is the party with a net monetary recovery or for whom judgment is entered, or the party who recovers “gr...

Excerpt: ...ailing to stop the conduct of a third party” (i.e., Cross-Defendant Ertz), and that “California case law has long held that absent a special relationship, there is no tort liability of a person for the acts of others.” The Glenns argue the FACC “does not allege (nor can it) that any such special relationship existed.” (ROA 100 [Memo. of P&A at 1].) Under California law, “[e]veryone is responsible, not only for the result of his or her...

Excerpt: ...tantial factor in causing the plaintiff- patient's harm. (See CACI Nos. 400, 500; see also Code Civ. Proc., § 340.5; Uriell v. Regents of University of California (2015) 234 Cal.App.4th 735, 743.) “Medical providers must exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances.” (Powell v. Kleinman (2007) 151 Cal.App.4 th 112, 122.) “Whenever the plaint...

Excerpt: ...on by Defendant Burlington Coat Factory of Texas, Inc. for summary judgment/adjudication on Plaintiff's Complaint is DENIED. Evidentiary Objections Plaintiff's objections are sustained as to no sustain as to nos. 1 and 3; overruled as to no. 2. Otis Elevator's objections are sustained as to nos. 6, 7, 8, 9, 12, 19, and 20. They are otherwise overruled. Burlington's objections are sustained as to nos. 6, 7, 8, 9, 12, 19, and 20. They are otherwise...

Excerpt: ...ogatory No. 8.8, Plaintiff stated: “At this time, plaintiff does not know if she will lose income in the future. Any possible future loss of earnings will depend on Plaintiffs [sic] recovery [from] the injuries sustained in this incident.” (Prescott Decl., Ex. B.) She additionally states: “Plaintiff will need to rely upon the opinion of an expert economist to calculate any claim for future income.” (Id.) The subpoena at issue was issued o...

Excerpt: ...ial A notice to attend and/or produce documents at trial has the same effect as a subpoena, and the same limitations. (Code Civ. Proc. § 1987(b), (c); Amoco Chemical Co. v. Certain Underwriters at Lloyd's of London (1995) 34 Cal. App. 4 th, 554, 559.) A notice to attend may be used only to compel the attendance and production of documents by persons who are residents of California at the time the notice is served. (See Code Civ. Proc. § 1989; A...

Excerpt: ... Plaintiff did not show the motion is timely. (Code Civ. Proc., 2030.300, subd. (c) [“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.”].) Plaintiff d...

Excerpt: ...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 law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elemen...

Excerpt: ..., and (4) damages. First Commercial Mortgage Co. v. Reece, 89 Cal. App. 4 th 731, 745 (2001). A written contract may be pleaded either by its terms—set out verbatim in the complaint or via a copy of the contract attached to the complaint and incorporated therein by reference— or by its legal effect. Holcomb v. Wells Fargo Bank, NA (2007) 155 Cal. App. 4 th 490, 501. An oral contract may be pleaded generally as to its effect because it is rare...

Excerpt: ... 2022 at 9:00 a.m., at which time Defendant is to provide the Court information regarding the status and anticipated progress of the criminal investigation and/or charges brought against him. Pursuant to CCP section 128(a)(3), every court has the power to provide for the orderly conduct of proceedings, including the power to stay discovery in a civil action pending the outcome of a related criminal case. Evidence Code section 940 states: “To th...

Excerpt: ...n by participating in discovery, the Court accepts and considers the new evidence, but will allow Plaintiff an opportunity to address the new evidence at the hearing. CCP § 1281.2 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 to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the re...

Excerpt: ...ar” figure based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” Serrano v. Priest (1977) 20 Cal.3d 25, 48. “The reasonable hourly rate is that prevailing in the community for similar work.” PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (internal citation omitted). As to the reasonableness of the hours, “trial courts must carefully re...

Excerpt: ...d he had not yet formulated his opinion on the issue of prognosis, but expected to do so “[p]robably early next week.” Libbey Decl., Ex. 1, Bernhoft Depo. at 253:8-254:9. Defendant's counsel responded: “Okay. Then I would ask that you notify your counsel when you've had an opportunity to do that and develop any additional opinions in connection with that so that we can set up something further to get those opinions. . . . I may have to ques...

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: ...gh his or her mistake, inadvertence, surprise, or excusable neglect.” CCP § 473(b). Relief under CCP section 473(b) may be based either on: • An “attorney affidavit of fault,” in which event, relief is mandatory; or • Declarations or other evidence showing “mistake, inadvertence, surprise or excusable neglect,” in which event relief is discretionary. In short, CCP section 473(b) consists of two distinct parts: “a discretionary pr...

Excerpt: ...action for wrongful death. In all other respects, the Motion is denied. Defendant is ordered to file and serve its answer to the Complaint within 15 days. Although some of the allegations Defendant seeks to strike are relevant factual allegations, the Motion seeks to strike them on the ground that they all fall under the category of “punitive-damage-allegations.” Punitive damages are requested in the Prayer for Relief generally, and thus appe...

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 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: ...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 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: ...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: ...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: ...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: ... control, undercapitalization, use of corporate shells to avoid liability (such as that alleged in the FAC), and the other elements of alter ego. [FAC ¶¶ 8- 10.] “Courts have followed a liberal policy of applying the alter ego doctrine where the equities and justice of the situation appear to call for it rather than restricting it to the technical niceties depending upon pleading and procedure.” Greenspan v. Ladt, LLC. (2010) 185 Cal. App. ...

Excerpt: ...e FAC was filed and reclassified. Shirdel was not a party to the action when the Complaint was filed and was added after Plaintiffs filed the FAC. Shirdel shall is ordered to pay the first appearance fee within 10 days. The Court also notes Defendant did not file a proof of service showing the demurrer and supporting papers were properly served on Plaintiffs. Proof of service of the moving papers must be filed no later than five court days before...

Excerpt: ... attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) “[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 law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is ...

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...

Excerpt: ...Special demurrers based on uncertainty are rarely sustained – only where the complaint is so bad that defendant cannot reasonably respond— i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Here, Plaintiffs' allegations are not so confusing that Defendants cannot reasonably discern w...

Excerpt: ...ages in the Prayer for Relief (Issue 10). The Motion is moot in its entirety as to now dismissed Defendants Albert Chavez and Rafael Martinez. (ROA 155) A. Evidentiary Issues The Court notes that the objections filed by Defendant to the evidence submitted by Plaintiff in opposition to the Motion do not comply with the formatting requirements of Rule 3.1354 of the California Rules of Court. Instead of succinctly stating the testimony objected to a...

Excerpt: ...3) Plaintiff's third cause of action, for religious discrimination in violation of Government Code Section 12940(a); and (4) Plaintiff's fifth cause of action, for defamation under Civil Code Section 46. Defendant also demurs to the same four causes of action – the first, second, third, and fifth – as well as to Plaintiff's ninth cause of action for waiting time penalties, and eleventh cause of action for declaratory and injunctive relief. In...

Excerpt: ...e demurrer is overruled as to the fourth and fifth causes of action under FHA and the ADA, as well as the sixth cause of action under FEHA. The City's unopposed motion to strike is granted without leave to amend. The City's requests for judicial notice are granted. Demurrer First Cause of Action for Violation of 42 U.S.C. §1983/Equal Protection and Procedural Due Process14 th Amendment As in prior iterations of their cross-complaint, Cross-Compl...

Excerpt: ...e a trust amendment on the grounds of undue influence, rescission of trust amendment due to mistake of law, and intentional interference with an expected inheritance (the “Blake Petition” or the “Petition”). Plaintiff also asks the Court to take judicial notice of a 9/14/2020 Minute Order relating to the Blake Petition, and written discovery propounded on Blake in connection with the Petition and his responses thereto. Barbara objects to ...

Excerpt: ...ffs and Plaintiffs' vehicle that is the subject of their Complaint or, alternatively, strike them in their entirety; and (4) narrow the scope of Plaintiffs' Requests for Production of Documents, Set One, Nos. 1-124 to those requests seeking information concerning Plaintiffs and the specific vehicle that Plaintiffs owned that is the subject of their Complaint, and to FCA's documents relating specifically to Plaintiffs and the Subject Vehicle. This...

Excerpt: ...on”) as to Defendant Anne Jung only. The Court denies the Special Motion to Strike as to Defendants Yung Jung and CMG. This Motion originally was heard May 10, 2021 the hearing was continued for additional briefing on the narrow issue specified in the Court's Minute Order of 5/14/21 (ROA#89) Defendants' Request for Judicial Notice, which was filed for the first time with their reply, is denied. Jay v Mahaffey (2013) 218 Cal.App.4th 1522, 1536. ...

Excerpt: ...anderson (“Shawn,” together with John, “Plaintiffs”), or, in the alternative, for Summary Adjudication as to each of the three causes of action asserted therein, are DENIED. Defendants' evidentiary objections are sustained as to nos. 3, 8 and 9 and overruled as to nos. 1, 4 and 7. The Court declines to rule on nos. 2, 5 and 6 because the evidence is not material to its disposition of the motions. Code Civ. Proc., § 437c(q). Merits At the...

Excerpt: ... state a cause of action for legal malpractice, a plaintiff must allege, among other things, facts showing that but for the alleged malpractice, the plaintiff would have obtained a more favorable result. Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App. 4th 559, 572; see also CACI 601 (to recover damages for a lawyer's negligent handling of a legal matter, a plaintiff must prove that he would have obtained a better result if the defendant lawy...

Excerpt: ....” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) With respect to the others, the request is denied, as the Court finds they are not the proper subjects of judicial notice. “[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 law.” (Aguil...

Excerpt: ...bitration 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 by reference; (b) assumption;...

Excerpt: ...Code Civ. Proc. § 2016.040; Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435. The Parties are ordered to further meet and confer and to submit (in place of a separate statement) “a concise outline of the discovery request and each response in dispute.” Cal. R. Ct. Rule 3.1345(b)(2). The first page of the outline shall provide the “set and number” of the interrogatories that are still at issue. Cal. R. Ct. Rule 3.1345(d). The o...

Excerpt: ...o show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Superior Court (National Union Fire Ins. Co. of Pittsburgh, Pa.) (1997) 53 Cal.App.4th 1113, 1117; Weil & Brown, Cal. Practice Guide:...

Excerpt: ...g a purchase agreement for the purchase of real property commonly known as 12802 Panorama Crest, Santa Ana, CA 92705 (the “Property”). Third Am. Compl. (“TAC”) at ¶ 103. The concealment/ misrepresentations were relate to certain defects in the plumbing, including the sewer systems, of the Property, which Plaintiff alleges were made by the Suders. TAC at ¶ 13. CCP Section 437c Standard In seeking summary adjudication, Plaintiff bears the...

Excerpt: ...otice is denied. Plaintiff's objections to ¶ 2, Ex A., ¶ 5, Ex. D., ¶ 7 and Ex. F of the declaration of James Werner are sustained. Plaintiff's objections to ¶ 3, Ex. B, ¶ 4, and Ex. C are overruled. Plaintiff's objections to the declaration of Kelly Parkman are all overruled. Defendant's objections to the declaration of Christopher Barry are sustained. Defendant's objections to the declaration of Mark Jannesari are overruled as to nos. 1 an...

Excerpt: ...itted structures on the property) and have brought an action for (among other things) fraud and misrepresentation, unfair business practices and promissory estoppel. In addition to naming the Dennis Defendants, Plaintiffs have sued Defendant Berkshire Hathaway (which is alleged to be the listing agent and broker for the sale of the property); Defendant Michael Bianchi (“Bianchi”), who allegedly signed the Agreement in his capacity as a real e...

Excerpt: ...by any court to any inferior tribunal, corporation, board or person…to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” Pursuant to Corporations Code section 1601, “[t]he accounting books and records and minutes of proceedings of the shareholders and the board and committees...

Excerpt: ...nt's purported “utilization of the same scheme” to defraud other persons, and discovery orders in other cases. The Court did not consider this evidence. However, the Court did consider Defendant's deposition testimony, notwithstanding the fact that Plaintiff originally proffered an uncertified, “rough” copy of the transcript, because Plaintiff later supplemented the record with a certified transcript. Failure to respond to an authorized m...

Excerpt: ...ltimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the defendant in fairness needs such detail which can be conveniently provided by the plaintiff. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Under normal circumstances, th...

Excerpt: ...second is Defendants' Demurrer to Plaintiff's Complaint. Special Motion to Strike the Complaint The Court grants the Special Motion to Strike (the “Motion”) as to Defendant Anne Jung. The Court denies the Motion as to Defendants California Mortuary Group Inc. and Yung M. Jung. Defendants' Request for Judicial Notice, which was filed for the first time with their reply, is denied. Jay v Mahaffey (2013) 218 Cal.App.4th 1522, 1536. Defendants' e...

Excerpt: ...emurrer in part and overrules it in part. Plaintiffs are granted 20 days leave to amend. (1) The Demurrer to Plaintiffs' Second Cause of Action against Defendant Noour for breach of fiduciary duty of loyalty is sustained. The Second Cause of Action alleges that: “Defendant NOOUR was in a contractual relationship with Plaintiffs to provide sales representation in exchange for commission on sales revenue.” (FAC, ¶31). The law is clear that a p...

Excerpt: ...hich 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 complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek ...

Excerpt: ...s (IIED). The Court notes that the battery and assault claims have not been pled against Defendant. (See Cal. R. Ct. Rule 2.112.) Thus, the general demurrers are overruled as moot. With respect to the IIED claim, Defendant contends this claim has not been alleged with sufficient specificity because Plaintiff is purportedly “pretending” Defendant was at the store when the incident occurred. (Dem. at 8.) The Court disagrees. Liberally construin...

Excerpt: ...30 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. Code Civ. Proc. § 2030.300(a). Here, Plaintiff moves to compel Defendant's further responses to form interrogatory 12.1, which requests the name, address, and telephone number of each individual who witnessed the “INCIDENT,” or events before or after, who made any statements at the scene o...

Excerpt: ...s no company with the name “Lava Textiles.” There are four companies: Lava BVBA is a Belgian company that owns three other companies, including Lava USA, Inc., a South Carolina corporation – another defendant in this action. [Vanwelden Decl., ¶ 3.] According to Lava USA's discovery responses, it also does business in the US under the name Lava Textiles. [Vanwelden Decl., ¶ 9 and Ex. C.] Plaintiff was a customer of Lava USA, Inc. Lava BVBA...

Excerpt: ...l further responses to interrogatories on the grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under Code Civ. Proc., § 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. Code Civ. Proc. § 2030.300(a). Here, Plaintiff moves to compel Defendant's further responses to form interrogatory 12.1...

Excerpt: ...tice is needed. CCP Section 598 states that “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial ...

Excerpt: ...ip, or further encumbering the real property commonly known as 2323 Almira Avenue, Fullerton, CA 92831. Plaintiff did not show she properly served the temporary restraining order and order to show cause on Entra. Code Civ. Proc., § 527, subd. (d)(2); Cal. Rules of Ct., Rule 3.1150(a); 3/17/2021 Minute Order. In addition, Plaintiff did not show a copy of the summons and complaint have been properly served on Entra. Code Civ. Proc., § 415.30; Zil...

Excerpt: ...xtent Faylor has any additional documents in his possession, custody or control that are responsive to Nos. 64, 66, and 67, he is ordered to produce them within 20 days. The Motion is granted as to Nos. 69 and 70. Faylor is ordered to provide amended verified responses to these requests that fully comply with the Code, within 20 days. The Motion is denied as to Nos. 75, 76, and 77. With respect to sanctions: Faylor is ordered to pay Moving Partie...

Excerpt: ...ant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppressio...

Excerpt: ...of action in the FACC. Cross-Defendant's unopposed request for judicial notice is granted. Evid. Code, § 452, subd. (h); Fellom v. Adams (1969) 274 Cal.App.2d 855, 864; Bus. & Prof. Code, §§ 7080.5 and 7081. Cross-Complainants' unopposed request for judicial notice is denied. Although a Court may take judicial notice of the existence of Web sites and blogs, a Court may not take judicial notice that their contents are true. Ragland v. U.S. Bank...

Excerpt: ..., opposing the demurrer on the merits without objecting to the untimely notice. See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 (Where a party files an opposition, appears and argues at the hearing, never requests a continuance of the hearing and never claims prejudice by reason of insufficient notice or service, the opposing party “waive[s] any claim of inadequate service or notice.”) No reply was filed. Subject to Defendants' objection ...

Excerpt: ...proof of service of the Opposition papers did not include either the server's or the recipient's email address, as required by CCC Section 1013b(b)(1) and (3). Counsel is admonished to fully comply with the statute. Plaintiff demurs to the second cause of action for fraud in the SACC on the ground that RMS did not allege facts with the required specificity to state a cause of action for fraud; Plaintiff also demurs on the ground of uncertainty. R...

Excerpt: ... Fourth and Fifth causes of action vs. how they are actually pled in the body of the FAC. The fifth cause of action is for breach of oral and written agreement (not breach of fiduciary duty, as stated on the caption page). The Court further notes that after the Opposition was filed, Plaintiff dismissed BBody as a defendant in every cause of action except for the four derivative claims – the Seventh through Tenth Causes of Action – in which BB...

Excerpt: ...ng Moving Defendants. Plaintiff offers no explanation for his tardy opposition and does not meet a CCP § 473 standard. The Court recognizes that Plaintiff's late filing of the Opposition deprived Defendants of the opportunity to file a Reply Brief, and the Court is willing to continue the hearing on the Demurrer to permit Defendants to file a Reply Brief if they wish to do so. Defendants shall advise the Court at the hearing if they wish to cont...

Excerpt: ... Cover Right brings claims against State Fund for negligence and equitable indemnity, afterPplaintiff Creditors Adjustment Bureau, Inc., State Fund's assignee, filed suit to collect on an alleged premium underpayment of Cover Right's workers compensation insurance. Cover Right alleges that, as of November and December 2017, State Fund “intended to increase [Cover Right's] premium rate in governing classifications by 25 percent or greater in pol...

Excerpt: ... the costs of the arbitration. These proceedings are stayed pending completion of the arbitration. Code Civ. Proc. § 1281.2 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, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an ag...

Excerpt: ...herein) 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 complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On dem...

Excerpt: ...n of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”); Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 (trial court was justified in denying post-trial motions for failure to provide adequate memorandum; “Rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court ...

Excerpt: ...omplaint. As an initial matter, the Court notes Demurring Parties did not file a proof of service for the demurrer or the motion to strike. “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” Cal. Rules of Ct., Rule 3.1300(c). Because Plaintiff served and filed a timely opposition on the merits without objecting to service, the Court exercises its discretion to hear th...

Excerpt: ...led to show good cause to continue the hearing on the Application so he can, in effect, re-do his papers in support of the Application. None of the reasons Plaintiff gives for the requested continuance constitutes good cause, including, e.g., (1) Plaintiff's assertion that he intends to obtain counsel; (2) Plaintiff's assertion that he did not know the deadline for submission of the opposition brief; (3) Plaintiff's professed need for further dis...

Excerpt: ...jection to an interrogatory is without merit or too general. Code Civ. Proc. § 2030.300(a). Plaintiff moves to compel GM's further responses to her form interrogatories numbered 12.1 and 15.1. Form Interrogatory 12.1 requests the name, address, and telephone number of each individual who witnessed the “INCIDENT,” or events before or after, who made any statements at the scene of the “INCIDENT, who heard any statements about the “INCIDENT...

Excerpt: ... RJN The Court grants Defendants' request to judicially notice the Complaint, FAC, and SAC from the 2015 case. (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 CA4th 97, 113; Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 CA4th 471, 482-484.) Moving Separate Statement Defendants' Separate Statement renders this Motion as one for summary judgment because all 128 Undisputed Facts are repeated as to all five distinct issues. Any one disputed...

Excerpt: ... its discretion to relieve Defendants of the consequences of their waiver of jury trial, because Defendants missed the deadline by more than 14 months, there would be no significant prejudice to Defendants as most of the claims were equitable, and at the time, it appeared that the potential for prejudice to Plaintiff existed as neither of the parties had submitted any jury instructions by the deadline. (ROA 348, 2/10/21 Minute Order.) Defendants'...

Excerpt: ...h Sellers. [Complaint, ¶ 15 and Ex. 1.] The attached agreement is also signed by the agents but expressly states that they are not parties to the agreement between Buyer and Seller. [Complaint, Ex. 1 at 10.] Plaintiffs also allege that “Defendants” hired moving Defendant Bowers Termite. [Complaint, ¶ 20 and Ex. 3.] Plaintiffs attach Defendant's inspection report – titled Standard Notice of Work Completed and Not Completed – and allege t...

Excerpt: ...udicial notice, the Court takes judicial notice that these documents were recorded, but it does not take judicial notice of disputed facts in the recorded documents. Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1374-1375; see also Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659 (trial court could take judicial notice of complaints but could not use the allegations in those complaints to res...

Excerpt: ...e (1) parties capable of contacting, (2) their consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff's performance or excuse for failure to perform, (6) defendant's breach, and (7) damage. Civ. Code §§ 1550, 1605; CDF Firefighters v. Maldonado (2008) 158 Cal. App. 4 th 1226, 1239. A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the compl...