Excerpt: ...3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. “Face of the complaint” includes matters shown in exhibits attached to the complaint and incorporated by reference. Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 (“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader's allegations as to the legal effect...

Excerpt: ...-complaint without leave of Court Moving cross-defendant initially contends that the first amended cross-complaint was improperly filed, suggesting that leave of Court was required. Moving cross-defendant is incorrect. The moving cross-defendant is also the plaintiff. A cross-complaint must be filed against any party who filed a complaint or cross-complaint against him or her before or at the time of the answer to the complaint or cross-complaint...

Excerpt: ... motion, substantially compliant responses, the court has no discretion but to deny the motion. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776). Plaintiff's motion to deem the first set of Requests for Admission propounded to WSH admitted is DENIED as MOOT. On 10/28/2021, this court denied the identical motion involving identical issues brought by plaintiff Thomas Davidson (“Davidson”). The court detailed its reasoning for denyin...

Excerpt: ...persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850, as modified (July 11, 2001). “A defendant . . . has met his or her burden of showing that a cause of actio...

Excerpt: ...l services rendered in his court.'” Ketchum v. Moses (2001) 24 Cal.4th 112, 1132.   “The reasonable hourly rate is that prevailing in the community for similar work.”  PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.  Based on the court's experience, the billing rate of $325.00/hour for Scott W. Perlin is reasonable. Additionally, the billing rate of Rebecca Van Loon of $425.00/hour is reasonable. Ms. Van Loon is a cert...

Excerpt: ...e demurrer and objects to the request of judicial notice as to both documents. Moving cross-defendant challenges all causes of action as untimely and as barred by a release in the settlement agreement for which it asks judicial notice. It then specifically challenges the fourth and fifth causes of action for violation of Bus. & Prof. Code § 17200 and unjust enrichment, respectively. Request for judicial notice. The request for judicial notice is...

Excerpt: ...he legislative analysis of AB 1871, including: 1. Assembly Committee on Insurance (May 4, 2010) 2. Senate Floor Analysis (July 29, 2010) 3. Assembly Floor Analysis (June 1, 2010) The request for judicial notice is GRANTED. The request was properly made, and the documents constitute cognizable legislative history properly subject to judicial notice. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31) H...

Excerpt: ...ases I & II (2005) 135 Cal. App. 4th 100, 110 (“In re Auto”). “When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.] Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable. [...

Excerpt: ...an (1985) 39 Cal.3d 311, 318. The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court ...

Excerpt: ...an (2018) 23 Cal.App.5th 685, 690. Rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness. Ibid. Money paid upon a mistake of fact may be recovered under the common count of money had and received. Thresher v. Lopez (1921) 52 Cal.App.219, 220. The plaintiff may recover the money, even if negligent, if his or her conduct has not altered the position of the defendant to his or her d...

Excerpt: ...red the supplemental briefing. APRB moves for a Right to Attach Order/Writ of Attachment against Michael Roofian, individually. (CCP §483.010; §484.020; 484.030) Attachment may issue only in an action on a claim for money based upon a contract, express or implied, where the total amount of the claim is a fixed or readily ascertainable amount not less than $500. (CCP §483.010 (a)). Roofian disputes the existence of a contract upon which attachm...

Excerpt: ...ce of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, th...

Excerpt: ...). SPROG Nos. 14-17 are identical except that they seek the same records from different years (2014-2020). These SPROG are improper as they improperly incorporate other materials, specifically they require Plaintiff to go through Depala's medical records to determine a response. “Each interrogatory shall be full and complete in and of itself.” Civ. Proc. Code § 2030.060(d). “This rule was violated here by interrogatories which necessarily ...

Excerpt: ...ing her to appear for deposition, by Zoom, on 3/12/2021, and to produce all emails and text messages exchanged between Cerda and plaintiff from 2/12/2020 to present. (Buus Decl. ¶10; Ex. 3) On 3/10/2021, Buus called Cerda's cell phone and left a voicemail about her deposition, but Cerda did not return the call. (Buus ¶12) Cerda did not appear for her deposition on 3/12/2021, and the court reporter prepared a certificate of nonappearance. (Buus ...

Excerpt: ... to prevent prejudicing the party's interest in the litigation. Section 36 “was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be able to realize redress upon the claim asserted.” (Looney v. Super. Ct. (1993) 16 Cal.App.4th 521, 532.) In support of the motion, the moving party's attorney may submit the supporting affidavit based upon information and...

Excerpt: ...w. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 8...

Excerpt: ...the same or similar causes of action. Defendant generally demurs to the second, sixth, and seventh causes of action. Defendant specially demurs to the second, sixth and seventh causes of action on the ground of uncertainty. The special demurrer of defendant Ford Motor Company to the entire first amended complaint of plaintiff Mark Johnson on the ground of another action pending is OVERRULED. Moving defendant contends that the second, sixth, and s...

Excerpt: ....P. § 1281.2.) The provisions of the written agreement to arbitrate and the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.” (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any doubt o...

Excerpt: ...e making which allegation(s). Defendant demurs solely to the 3rd cause of action (“COA”) for Fraudulent Inducement- Concealment on the basis that is fails to state facts sufficient to establish a COA (Civ. Proc. Code § 430.10(e)) and that it is barred by the economic loss rule. Concealment is, “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of co...

Excerpt: ...ate Services, Inc. (“Bondcorp”) and Stacie's former husband, Bryan K. Bond (“Bryan”). The Agreement is attached to the complaint as Exhibit A. Stacie was not a party to the Agreement. Attached to the FAC as Ex. B is a single letter dated 8/8/2019 to Bryan and Stacie attaching invoices and stating an amount owed for legal services rendered by plaintiff. None of the invoices are addressed to Stacie. Plaintiffs seek to hold Stacie accountabl...

Excerpt: ...eclines to do so in this instance. New matters cannot be raised for the first time in a reply brief. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 641). The elements of fraud are (1) misrepresentation (false representation, concealment or nondisclosure) (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal....

Excerpt: ... as to El Gaucho #2 and El Gaucho #11 because Plaintiff failed to allege any facts identifying the location where she worked and/or whether El Gaucho #2 or El Gaucho #11 actually employed her such that they should be included in this lawsuit and held liable for her claims. The FAC alleges that El Gaucho #2 and El Gaucho #11 were operated by, managed by, wholly owned by, alter-egos of, and for all purposes existed as one-in the same with defendant...

Excerpt: ...ended pleading remain within the court's cognizance and the alteration of such statements by amendment designed to conceal fundamental vulnerabilities in a plaintiff's case will not be accepted.” (Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1061). Likewise, if a party files an amended pleading and attempts to avoid the defects of the original Complaint by either omitting facts that rendered the prior Complaint defective or by adding facts ...

Excerpt: ...dered all of the documents which petitioner indicated were part of the record, but which he was concerned did not make it into the record, including the expert report from Mr. Daleo. Request for Judicial Notice: As a preliminary matter, City requests judicial notice of various provisions of the California Residential Code (Ex. A-H); California Building Code (Ex. I-M) and Newport Beach Municipal Code (Ex. N-Q). The Court may take judicial notice o...

Excerpt: ...alls for confidential information which would only be provided under an appropriate protective order.” The court construes this objection as one based on Civil Code §3295. “[T]here is a right to privacy in confidential customer information whatever form it takes, whether that form be tax returns, checks, statements, or other account information.” (Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 481.) The privacy right exists as to ...