Excerpt: ...llegations 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 FAC, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4...

Excerpt: ...es of action. MOOT as to 4th (Armin, Wess, and Wilber only) cause of action. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. Blank v. Kirwan (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 o...

Excerpt: ...e claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. (Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.) If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts ...

Excerpt: ...nd negligent misrepresentation are SUSTAINED with leave to amend. Plaintiff must allege facts with greater specificity, such as the dates of the representations, the speakers, the manner of their communication, the location, the plaintiff's reliance thereupon, and other elements. Conclusory and general allegations are not sufficient. (See Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184; Robinson Helicopter Co., Inc. v. Dana Corp. (2004)...

Excerpt: ... would produce waste, or great or irreparable injury, to a party to the action. (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual. . .” Civ. Proc. Code § 526(a). The burden is on the moving ...

Excerpt: ...the arbitration and Award are governed by the Federal Arbitration Act (“FAA”). ROA #69, Ex. B § 8; Pla. Lodging, Ex. B § 5.8. Regarding vacating or correcting the Award: “(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration-- (1) where the award was procured by corruption, fraud, or undue means;...

Excerpt: ...v. Proc. Code § 1032. Plaintiff seeks to strike the entirety of the cost bill pursuant to Gov't. Code § 12965(b), which in relevant part states: “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant...

Excerpt: ...and Priore Dec., Ex. A, see Cross-Complaint ¶ 10, 12, 17.) The Agreement has a broad arbitration provision calling for binding arbitration of all matters and disputes that relate in any way or arise out the Agreement or any resulting transaction. The argument of Defendant regarding its different understanding of the transaction, and regarding oral statements by an NPA representative, do not appear to illustrate fraud in the entry into the arbitr...

Excerpt: ...f limitations defense. (C.C.P. § 439(a); Howard Decl., ¶ 3, Ex. 1.) “A defendant may move for judgment on the pleadings on the ground that the complaint does not state facts sufficient to state a cause of action against that defendant. [Citations]. A motion for judgment on the pleadings ‘is equivalent to a demurrer and is governed by the same de novo standard of review.' [Citation]. Leave to amend ‘is properly denied if the facts and natu...

Excerpt: ...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 may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749. “In our examination of th...

Excerpt: ...declining to take judicial notice of materials not “necessary, helpful, or relevant”].) Demurrer: Defendants' demurrer to the FAC's third cause of action for fraud on the basis of uncertainty is OVERRULED. (C.C.P. § 4301.0(f).) A demurrer on the ground of uncertainty is disfavored and should be sustained only when a complaint is so incomprehensible that a defendant cannot reasonably respond since ambiguities may be clarified in discovery. (L...

Excerpt: ...n at all times to the inspection of any partner. (SAC ¶ 19-20). Defendant argues that Plaintiff hasn't properly alleged damages from any breach of this term. (SAC ¶20, 32, 33.) This is a general demurrer as noticed (See Notice of Dmrr at 2:7, citing CCP 430.10(e).) A general demurrer must be overruled if the complaint states any cause of action, under any theory. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) Here, if t...

Excerpt: ...t. As a general principle, the party resisting enforcement of an arbitration provision has the burden to establish the defenses. (See Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633.; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) Unreasonable Delay/Waiver The record does not support unreasonable delay by the Defendants in seeking to arbitrate the matter. What constitutes a reasonable time to assert the arbitra...

Excerpt: ...o meet and confer letters was without substantial justification and left Plaintiffs with virtually no choice but to file the current Motion by or on the extended motion cutoff deadline. Defendant's opposition to the current Motion, on the ground that it is somehow premature because the meet and confer process is incomplete – through some purported fault of Plaintiff by “only” sending two meet and confer letters and not receiving any respons...

Excerpt: ...the sake of example and to punish the defendant, they are proper when tortious conduct rises to levels of extreme indifference to the plaintiff's rights, which decent citizens should not have to tolerate. (See e.g. Lackner v. North (2006) 135 Cal.App.4th 1188, 1212; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894; American Airlines, Inc. v. Sheppard, Mullin, Richter & H...

Excerpt: ...aintiff to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232-1233.) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. (Id. at 1233.) “Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate tha...

Excerpt: ...property to share an identity of interest with the property-owners for purposes of seeking the statutory remedy of expungement of the recorded lis pendens. For this reason, the Court does not grant any relief to the party on the “joinder”. (See Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149) (noting that a “purported [monetary] interest does not go to legal title or possession of the subject property”); see CCP § 405.30.) ...

Excerpt: .... By way of her opposition to the demurrer, Plaintiff asserts that she will amend her 1st through 7th causes of action with respect to individual defendants and will amend her 8th cause of action with respect to entity defendants. Plaintiff also asserts that she will amend her 15th cause of action by way of eliminating the negligent training allegation therein. Plaintiff further asserts that she will “delete” her 10th, 13th, 14th, 16th, and 1...

Excerpt: ...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 may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749. “In our examination of the co...

Excerpt: ...rior Court as Family Law Case No. 18D006202 (the “Divorce Case”). (See Complaint, ¶¶ 1- 4.) Plaintiff's Complaint alleges that during their representation of Ms. Krafve, Defendants hired a paralegal, Bernadette Ratti (“Ms. Ratti”) who was previously employed by Plaintiff's counsel and who had substantively worked on Plaintiff's case and obtained confidential information regarding Plaintiff's position(s) in connection therewith. Plaintif...

Excerpt: ...431, 1438- 39.) The purpose of the requirement is to encourage the parties to work out the differences informally, to reduce the unnecessary expenditure of resources on litigation, and to reduce the burdens upon the court. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.) The particular effort required in each situation depends on the circumstances. Among the factors considered are the breadth of the discovery demands, whether there is an im...

Excerpt: ...oprietary information readily available to the public. In the alternative Intersect moves for summary adjudication on four issues which will be discussed if necessary. A. Some Procedural History Because both the moving party (Intersect) and responding party (Plaintiff) cite to Plaintiff's procedural history in the United States District Courts before filing the current action in this Court, the following procedural background is provided. On Apri...

Excerpt: ...ially certain that battery would result from his/her conduct. (CACI 1320; Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.) Here, Plaintiff has made only conclusory assertions as to MP's alleged knowledge of bedbug infestation when Plaintiff stayed there. The only actual “fact” asserted as to such knowledge is that “other guests who had stayed at the Subject Property prior to Plaintiff's stay complained to Defendant's employees specifically...

Excerpt: .... shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affid...

Excerpt: ...o be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Under Civil Code §1794(d), a prevailing buyer in a Lemon Law case to recover fees and costs, including attorney'...