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: ...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: ...) 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...

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 ...