Excerpt: ...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 plaintiff moving for summary judgment must prove each element of the cause of action. (Id. at p. 853) A plaintiff meets his burden of showing there is no defense to a cause of action by proving each element of...

Excerpt: ...ory allegations are contradicted by the prior allegations that this reference was a mere scrivener's error on the part of the cross- defendants. Furthermore, there are no allegations to show that either agreement failed to embody “the real agreement” agreement between the parties. The timeliness issue will be quickly addressed. Both parties agree that the limitations period for a cause of action for reformation is 3 years. Moving cross-defend...

Excerpt: ...t”), together once annually for four years between 1/2019 and 1/2022 in Denver, Colorado. (FAC ¶11) Outdoor Retailer + Snow Show is defined in the Agreement as the “Event”, “an annual winter industry trade show that takes place each winter in the Colorado Convention Center in Denver, Colorado”. The obligations of the parties under the contract are defined in sections 1 and 2 of the Agreement and relate to conducting an in person event ...

Excerpt: ...tion, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy...

Excerpt: ...a business tenant at the Property, while Defendants are the owners and/or managers of the Property. Plaintiff was physically assaulted one afternoon by a transient individual who allegedly lived on the Property. The transient began by hitting Plaintiff and his co-workers' vehicle' with a metal bar, at which time Plaintiff confronted the individual initially, but then retreated back to his office to call the police. While on the phone with police,...

Excerpt: ...monstrating the claim at issue is a commercial claim for money based upon an express contract for a fixed or readily ascertainable amount not less than $500, secured by personal property; the probable validity of its claim, that attachment is not sought for a purpose other than recovery on the claim upon which the attachment is based and that the amount to be secured by attachment is greater than zero. (CCP§§ 483.010, 484.090 (a).) Wells has es...

Excerpt: ...ch alleges in its entirety: Upon information and belief, AT&T's long lines network became obsolete and AT&T ceased operation of the network, and use of the Olinda Site as a microwave radio relay station or for any purpose, in the 1990s, more than two years prior to its Quitclaim Deed to ATL in 2000. By the terms of the Grant of Easements, the easements reverted to Plaintiff upon AT&T's cessation of use of the easements for their intended use, or ...

Excerpt: ...cie case of discrimination must include circumstances suggesting that the employer acted with a discriminatory motive. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.) But the FAC here has presented only conclusory assertions about discriminatory animus which do not suffice to support the claim. Nor is the “adverse employment action” upon which he bases his claim clearly articulated. Facts in support of...

Excerpt: ...ting that Mirza was ever paid or offered consideration pursuant to the oral contract. (See Bennett v. Potter (1919) 180 Cal. 736 [Consideration is essential to the validity of a contract.].) In addition, Mirza is correct that the oral agreement as alleged appears illusory because it is not limited to any specified timeframe and, as a result, Niaki Productions, Inc. essentially assumed no obligation. An agreement is illusory and there is no valid ...

Excerpt: ...free speech in connection with a public issue as defined in the statute (“Prong 1”). (C.C.P. § 425.16(b)(1); Simpson Strong-Tie Company, Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) The moving party meets that burden by demonstrating that the act underlying the cause fits one of the categories in § 425.16(e). (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043)...

Excerpt: ...el to Inn in March 2020 (Compl. ¶12) and chose to stay at Inn because of the desirable price and location (Compl. ¶13). Due to his physical disability, plaintiff is unable to or seriously challenged in his ability to stand, ambulate, reach objects, transfer from his chair to other equipment and maneuver around fixed objects (Compl. ¶14). He therefore requires an accessible guestroom and information about accessible features in hotel rooms so h...

Excerpt: ...e of action on behalf of Ball Road Industrial Park (“Ball Road”) in the same lawsuit in which Plaintiff brings five other, direct claims in his personal capacity as partner of Ball Road. The Court did not previously rule on this issue. Bryan Industrial cites several cases in support of its demurrer. In Shenberg v. De Garmo (1943) 61 Cal.App.2d 326, the Court stated: “An action of a personal nature resulting in injury to the plaintiff indivi...

Excerpt: ...against Sevilla for breach of contract of the duty to defend and indemnify Antis in this litigation. “[T]he 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 plaintiff or cross-complainant meets his burden of showing there is no defense to a cause of action if ...

Excerpt: ...hat the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, 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 or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes o...

Excerpt: ... Anti-SLAPP motions are governed by CCP § 425.16 which provides at subd. (b)(1) that “[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 determines that the plaintiff has established that there is a probability ...

Excerpt: ...ection below. Civ. Proc. Code §§ 2030.220 and 2030.230 contain the requirements for responding to FROG. The court finds Defendants current response to FROG No. 12.1 as potentially deficient and grants the present motion pursuant to Civ. Proc. Code § 2030.300. Although the definition of “INCIDENT” is slightly vague as to relates to a lemon law matter and to multiple repairs and potential requests for repurchase, it is not so vague as to pro...

Excerpt: ...d to an award of punitive and exemplary damages in an amount to be decided at the time of trial.” ¶38 is pleaded in connection with the second cause of action for fraud based on intentional misrepresentation. ¶46 is pleaded in connection with the third cause of action for negligent misrepresentation. Plaintiff also seeks to strike Item 4 from the prayer for relief which states: “4. Punitive, special and/or exemplary damages; and/or” When ...

Excerpt: ...y of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are ...

Excerpt: ...n, the time runs from the service of notice of the decision or order, unless the notice is waived. Here, as the proposed order submitted with the prior demurrer did not comport with the Court's subsequent ruling, a revised proposed order was lodged on 7/26/21 and signed on 8/10/21. As Plaintiffs filed the FAC on 8/12/21, it was not clearly untimely. The Motion is therefore denied. Defendant's Request for Judicial Notice is GRANTED under Ev. Code ...

Excerpt: ...a claim for assault and battery is 2-years. Here, the Complaint indicates this action arises from an incident which occurred on October 27, 2016, nearly five years prior to the filing of this action. (¶7 of Complaint). Based on this allegation, Plaintiff's claims are barred, absent allegations which demonstrate delayed discovery, tolling or equitable estoppel. “When a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equ...

Excerpt: ...h 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Leave to amend is properly denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of America (1985) 1...

Excerpt: ...r or agent who is not an attorney.” Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal. App. 4th 1094, 1101. Since Roxy is unable to represent itself and it did not file any opposition whatsoever, the MSJ is granted in its entirety as to Roxy. While Otero filed an opposition, he did not file the required separate statement of material facts. CA ST CIVIL RULES Rule 3.1350(e)(2). “Failure to comply with this requireme...

Excerpt: ...n may be stated for the negligent infliction of serious emotional distress. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 930). “A direct victim cause of action for negligent infliction of emotional distress will lie ‘where a duty arising from a preexisting relationship … is negligently breached.” (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 108). Plaintiffs have pled sufficient facts to constitute a caus...

Excerpt: ... Realty's (“HSIR” individually; HOM together with Shapiro) Demurrer to Daniel C. Kwock's (“Kwock”) First Amended Cross-Complaint (“FACC”) is SUSTAINED in part and OVERRULED in part. Sustained with leave to amend as to COA Nos. 2, 10, and 14. Overruled as to COA Nos. 1, 3-9, 11-13, and 15. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. Blank v. Kirwan (...

Excerpt: ...) 39 Cal.App.4th 1379, 1383; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320 [“The defendant may recover fees and costs only for the motion to strike, not the entire litigation.”].) And such fees cannot be claimed by an attorney representing himself or a law firm represented by the firm's attorneys. (Witte v. Kaufman (2006) 141 CA4th 1201, 1207- 1211; Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 494.) Fees her...