Excerpt: ...or violation of this certification. (Code Civ. Proc„ S 128.7; see Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619, 623.) The purpose of the statute is "to check abuses in the filing of pleadings, petitions, written notices of motons or similar papers." (Musaelian v. Adams 45 Cal.4th 512, 514.) Whether the certificate is violated is tested objectivel',— i.e., whether the paper filed is frivolous, legally unreasonable or witho...

Excerpt: ...tely, for each COA at issue. And under C.C.P. S 430.50, a demurrer shall distinctly specify the grounds upon which any of the objections to the complaint are taken. Here, there is no separate demurrer, and the Notice (at ROA 46) is directed only to COAS 3-5. Accordingly, although the supporting authorities (at ROA 44) also assert arguments about other COAs, and as to the entre action as directed to Mr. Webb, as those arguments were not properly n...

Excerpt: ...cles in California of the same year, make and model as the subject vehicle are relevant because they may be probative of whether Defendant knew of the defects impacting Plaintiffs vehicle. Further, documents related to Defendant's policy and procedures used to evaluate customer requests for repurchase or replacement under the Song Beverly Act would be relevant to Defendant's good faith compliance with said Act. In addition, documents regarding di...

Excerpt: ...e initial Complaint. "A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint...on grounds that could have been raised by demurrer to the earlier version of the complaint[.]" (Code Civ. Proc., S 430.41, subd. Even if the demurrer was properly raised, it fails on the merits as discussed below. With respect to the first cause o...

Excerpt: ...t the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reaso...

Excerpt: ...st set forth the essential facts of his or her case ' " 'with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent' " ' of the plaintiffs claim. [Citation.] Legal conclusions are insuffcient. [Citations.] 'We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.' [Citation.]" (Annocki v. Peterson Enterpri...

Excerpt: ... as admitting all material facts properly pleaded. (Quelimane co., Inc. v. Stewart Title Guar. co. (1998) 19 cal.4th 25, 38.) BREACH OF CONTRACT on 6/8/23, the Court overruled WF's previous demurrer to the Breach of Contract cause of action as alleged in the Second Amended Complaint. In ruling on that demurrer, the Court granted plaintiff leave to file an amended complaint. In doing so, plaintiff also changed the allegations in the TAC which form...

Excerpt: ...ondition, which is a height differential, is trivial and City has statutory immunity for any design defect. City asks for judicial notice ofa highway easement deed and a parcel map (Exhibits 1 and 2 to the RIN, ROA 18). Plaintiff opposes the demurrer and contends that the first cause of action is sufficiently pled. She contends that it clearly alleges that she was injured as a result of a defect or dangerous condition on public property. She also...

Excerpt: ...Request for Judicial Notice. Defendant TIG requests the Court take judicial notice of: (1) the license contractor's bond history page from the California Contractor's State License Board website relating to Classic Remodeling, License No. 980373 (Exhibit 1); and (2) the Complaint filed in this action on April 11, 2023. The Court GRANTS request for judicial notice of Exhibit 1 pursuant to Evidence Code secton 452(h). The Court GRANTS judicial noti...

Excerpt: ...seized and held until final adjudication at trial." (Lorber Indus. v. Turbulence, Inc. (1985) 175 Cal. App. 3d 532, 535.) Plaintiff seeks a writ of attachment and rightto attach order. A writ of attachment may issued if 1) the claim is for money; 2) based upon a contract; 3) where the amount is readily ascertainable amount not less than five hundred dollars. (Civ. Proc. Code S 483.010(a).) A right to attach order ("RTAO") shall be issued if the c...

Excerpt: ...or the delay in that counsel was unaware Indigenous People's Day, now in its second year, was a court holiday. The court will therefore consider Plaintiff's oppositions. Defendant's request to take judicial notice ("RTJN") of the Retailer Services Agreement and amendment thereto ("RSA" together) between Defendant and Hitmobile, lnc„ dba T-Mobile ("HIT") is DENIED. Defendant requests the court take notice of the RSA pursuant to Evid. Code S 452(...

Excerpt: ...3d 311, 318.) Cause of Action 2: Breach of Contract To allege a claim for breach of contract plaintiff must plead: (1) the existence of a contract; (2) the plaintiff's performance or excuse for nonperformance; (3) the defendant's breach; (4) resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman, (2011) 51 Cal. 4th 811, 821.) Defendant asserts that though the lease agreement is attached to the complaint, it fails to connect the la...

Excerpt: ... this ruling. As a preliminary ma
©er, the Court notes that an Opposi
Ÿon was belatedly submi
©ed at almost midnight on Friday, 9/29/23, although it was due on 9/21/23. The Court has thus declined to consider the un
Ÿmely Opposi
Ÿon. On the merits, the primary argument presented in the Demurrer is that each of the claims is
Ÿme-barred, as based on alleged errors or misrepresenta
Ÿons that occurred in mid-2017, which was more than 5 years ...

Excerpt: ... the cases Parman cites to support her motion inwlved summary judgment proceedings. In addition, none of the cited cases held that where the claims in a declaratory relief action would necessarily be decided in a previously filed underlying action, the declaratory relief action is invalid as a matter of law. Instead, all the cited cases acknowledge the general principle that it is within the court's discretion to refuse to entertain a declaratory...

Excerpt: ... of Randy Mize. In June, 2023 Judge Washington commenced the application process to seek appointment as the Public Defender. On August 3, 2023, Judge Washington was informed that, after consultation with San Diego County Counsel, the County believed that he was ineligible to be appointed as Public Defender, because he had not been a practicing attorney for the year immediately proceeding appointment. (Washington Declaration, 10.) Govt. Cade 52770...

Excerpt: ...r sampling has been directed shall separately to each item or category of item by any of the follovnng: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with th...

Excerpt: ...350(b). It also fails to cogently identify each of the issues to be so adjudicated. The Motion is thus effectively one for summary judgment against Plaintiffs. As noted in the 6/1/23 ruling, Plaintiffs were granted a continuance for this hearing, based on their claim that additional evidence was essential to their Opposition. The Court thus permitted supplemental briefing to "be confined to any new evidence obtained and its significance here." Th...

Excerpt: ...t that might eventually form part of the plaintiffs prtnf need not be alleged." (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 851, 872.) uncertainty: A demurrer for uncertainty under Code of Civil Procedure 430.10(f) will be sustained only where the complaint is so pled that a 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 ...

Excerpt: ...ntentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to the fifth cause of action for Negligent Infliction of Emotional Distress ("NIED"). The NIED claim in the TAC is unchanged from the SAC or FAC. Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct is possible by limiting the right to recover for negligently caused emotional distress to p...

Excerpt: ...ruth of contentions, deductions, or conclusions of fact or aw (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendants demurs to the sixth and seventh causes of action in the SAC. Cause of Action 6: Fraud Plaintiff's fraud cause of action requires allegations showing: 1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) actual and justifiable reliance; and (5) resulting damage. (Chapman v. Skype Inc. (2013) 220 Cal....

Excerpt: ...protected speech or petitioning; and 2) lack even minimal merit. (Navellier v. Sletten (2002) 29 C4th 82, 88-89 ("Navellier"); Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733.) "Only a cause of action that satisfies both prongs of the ant-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal. 4th at 89.) "As us...

Excerpt: ...by February 1, 2022. As responses were served by email on February 2, 2022, they were a day late and Defendant's objections were waived. Defendant asserts the responses were timely but provides no argument or support for that assertion anv,'here in the papers. As to the Interrogatories, interrogatory responses "shall be as complete and straightforward as the information reasonably available to the responding party permits." (Ccyde Civ. Proc., S 2...

Excerpt: ...Court will exercise its discretion to consider the opposition. Defendant is admonished to abide by all filing deadlines for all future filings with this Court. Interrogatory responses "shall be as complete and straightforward as the information reasonably available to the responding party permits." (Code Civ. Proc., S 2030.220, subd. (a).) "If an interrogatory cannot be answered completely, it shall be answered to the extent possible." (ld., subd...

Excerpt: ...ant to Code Civ. Proc. S 2023.030, the court may issue terminating, evidentiary, issue, and/or monetary sanctions against a party engaging in conduct that is a misuse of the discovery process. Pursuant to section 2023.010, misuse of the discovery process includes: a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. b) Using a dis...

Excerpt: ...vides: "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 commencement and prosecution of such action." To recover attorney's fees, a preva-ling party bears the ...