Excerpt: ...he cause of action. (ld.; C.C.P. 5 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a triable issue of material fact exists as to either the particular COA or the proffered defense thereto. (ld.) The plaintiff must set forth specific facts demonstrating a triable issue of material fact exists. (ld.; C.C.P. 5 437c(o); Aguilar v. Atlantic Richfield Co. (2001) 25 cal.4th 826, 843.) Here, MP has presented evide...

Excerpt: ...(e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract." B usiness and Professions Code 57026 defines a "contractor" as a person who does work to "alter add to improve" a structure. The issue comes down to whether or not plaintiff has alleged that the defendant w...

Excerpt: ... Steele is to file and serve an answer to the Complaint within 10 days. Ashbrook's Demurrer and Motion to Strike As to the first cause of action, while the allegations appear sufficient to plead isolation (see Compl. 23-25), Ashbrook is correct that the Complaint fails to include facts demonstrating that Plaintiff experienced physical harm, pain or mental suffering as a result of the alleged isolation by Ashbrook. (See We/f. & Inst. Code 55 15610...

Excerpt: ...000) 81Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 cal.3d 335,...

Excerpt: ...troversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. . . (Civ. Proc. Code 5 1281.2.) "Arbitration is favored in this state as a voluntary means of resolving disputes, and this voluntariness has been its bedrock justification. As we stated recently: "[P]olicies favoring ...

Excerpt: ...ce of a valid arbitration agreement, before arbitration can be compelled. (See 9 U.S.C. 52). "Cl]t is a cardinal principle that arbitration under the FAA 'is a matter of consent, not coercion.'" (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) "Thus, 'a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'" (ld.) "If a party to a civil action asks the...

Excerpt: ...f action" entitling him or her to judgment. (CCP 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1 gg5) 37 Cal.App.4th 1282, 1287 (citing text) (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 cal.4th 826); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. co. (2010) 186 cal.App.4th 383, 388.) Breach of Guaranties As to the third cause of action, Plaintiff has presented evidence to show: (1) that on or about February 2...

Excerpt: ... order to turn over monies had and received; (8) conversion; (g) fraud and deceit; (10) constructive fraud; (11) violation of Penal Code 496; and (12) fraudulent conveyance. Moving defendants contend that all of the causes of action are deficient and uncertain because the causes of action in the FAC all assume the existence of a trust or estate planning vehicle that was established outside of California and do not support application of Californi...

Excerpt: ... SUSTAINED with 15 days leave to amend as to the Second and Fifth Causes of Action and OVERRULED as to the Fourth Cause of Action. Cause of Action 2: Elder Abuse Under Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07, a plaintiff pleading a claim under the Elder Abuse Act must plead that defendant 1) had responsibility for meeting the basic needs of the elder or dependent adult, 2) knew of conditions that made the...

Excerpt: ...ompel arbitration does not automatically stay ongoing proceedings; the party seeking arbitration must request one." (OTO, L.L.C. v. Kho (2019) 8 Cal. 5th 111, 140.) The closest thing to a request to stay this matter comes from the "Notice Of Commencement Of Arbitration And Request For Stay Of Entire Action" ("Notice"), in which Plaintiff included one sentence requesting a stay. However, a party requesting a stay is required to move the court for ...

Excerpt: ...t as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract." Business and Professions Code 57026 defines a "contractor" as a person who does work to "alter add to improve" a structure. The issue comes down to whether or not plaintiff has ...

Excerpt: ...ative 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 of a cause of action, an affirmative defense, a claim for dama...

Excerpt: ...ed Sales Contract, either as a third-party beneficiary or pursuant to equitable estoppel. Consequently, Defendant failed to meet its burden to establish an applicable arbitration agreement. Preliminarily, both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement, before arbitration can be compelled. (See g U.S.C. 52 and C.C.P. 51281.2). "If a party to a civil action asks the court t...

Excerpt: ...d an order that sustained the defendants' unopposed demurrer to the complaint without leave to amend. The Court heard oral argument on the demurrer on December 15, 2022 and the minute order of that day indicates that the Court determined, among other things, that "Ct)he entire complaint and all three causes of action are defective because plaintiff lacks standing to bring this action." The Court added: The documents for which judicial notice is r...

Excerpt: ....290(b)(6).) It does not matter that the newly added party is represented by the same counsel as another party that took the prior deposition. The code is specific to the party, not to party counsel. Plaintiff has not cited to any case or statute that supports her contention that newly added DWIC cannot take its own deposition of Plaintiff even though all defendants in this action are currently represented by the same counsel. The court previousl...

Excerpt: ...ion process. When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a prep...

Excerpt: ...��Summary judgment is appropriate where ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” (Wicks, supra, 49 Cal.App.5th 875, citing C.C.P. §437c(c).) Once the defendant has met that burden, “the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of a...

Excerpt: ...ar statute of limitations set forth in C.C.P. § 340.5. Medlink cites Canister v. Emergency Ambulance Service (2008) 160 Cal.App.4th 388, in support of its argument that an ambulance and its driver, transporting a patient for medical treatment (as Medlink contends was done in this case), come within the purview of the definition of a health care provider within the meaning of C.C.P. § 340.5. In Canister, the court held that emergency medical tec...

Excerpt: ...ernmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance.” (Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 376.) “The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.” (Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 369, Fn 1.) Accordingly, the Request for Jud...

Excerpt: ...as manufactured by FCA. Plaintiff alleges the vehicle has various defects. In addition, Plaintiff also alleges that on at least one occasion, she took the vehicle to Lampe Chrysler Dodge Jeep Ram ("Lampe") for repair and that Lampe negligently repaired the vehicle. The arbitration agreement at issue at issue is found in the Retail Installment Sale Contract ("RISC") attached as Exhibit A to the Rogerson Declaration. The RISC is between Wood, Brook...

Excerpt: ...or, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying." (CCP 2025.280(a).) On November 2, 2022, Ashbrook served a Notice of Deposition of Arnold for November 18, 2022. (Conti Decl., Ex. A.) No formal written objection was served. (Conti Decl., 113.) Arnold's conservator, Jonathan Starr ("Jonathan"), argues in the oppo...

Excerpt: ...s recoverable are those "fees and costs incurred on the motion to strike (not the entire litigation). (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.)" (Rutter CPBT at 7: 1135, emphasis in original.) In addition, CCP 5425.16(c) "is interpreted to allow awards of only such fees as the court deems reasonable. (Robertson v. Rodriguez (1995) 36 cal.App.4th 347, 362)" (Rutter CPBT at 7:1138) "In setting a fee a...

Excerpt: ...e 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 may not consider the contents ...

Excerpt: ...request for judicial notice is GRANTED. (Evid. Code 55 452(c), (d), and First, Second and Third Causes of Action Claims for fraud and negligent misrepresentation must be pleaded with particularity, that is, the pleading must set forth how, when, where, to whom, and by what means representations were made. (Foster v. Sexton (2021) 61 Cal.App. 5th 998, 1028; see also, Borman v. Brown (2021) 59 Cal. App. 5th 1048, 1060 [elements of negligent misrepr...

Excerpt: ...ocuments. Plaintiff did not argue why or how 1) There exists an overriding interest in sealing the Agreement that overcomes the right of the public to access the record; 2) That a substantial interest supports sealing the record; 3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4) The proposed sealing is narrowly tailored; and 5) No less restrictive means exist to achieve the overrid...