Excerpt: ...ges defects on the face of the complaint, it can refer to matters outside the pleading only if those matters are subject to judicial notice. (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal .App.4th 821, 833 ["We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken."]•) The elements of a leg...

Excerpt: ...d not adequately met and conferred and continued this matter with an order to the parties to meet and confer and file a joint statement of any remaining issues. The joint statement was filed on April 21, 2023. (ROA 176.) The joint statement states that the parties met and conferred telephonically and were unable to reach an agreement on any of the issues raised. The Court finds that the meet and confer requirement has now been satisfied and will ...

Excerpt: ... cites to Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, in which the court held that notice was ineffective where the notice did not identify the specific interrogatories at issue, cite any authority for the motion, state what was deficient about the responses, and failed to identify the papers upon which it was to be based. (ld. at p. 138.) Here, Plaintiff's Notice of Motion specifically identifies Request Nos. 15 and...

Excerpt: ...ed in the Complaint is for breach of contract. No argument has been made regarding Plaintiff's breach of contract claim. Further, the breach of contract claim is asserted against "All Defendants, Except GM." (Compl. at 7:2-3.) The motion is DENIED as to the Second Cause of Action. Fifth and Sixth Causes of Action for Breach of Implied Warranty and Breach of Express Warran ty The fifth cause of action for breach of implied warranty and sixth cause...

Excerpt: ...n and Fourth Cause of Action fail to state facts sufficient to constitute a cause of action and are uncertain. Specifically, they contend that the Second Cause of Action is based on conclusory allegations, alleges a neighbor dispute, fails to state facts which support extreme and outrageous, and fails to allege facts showing that or how Cross-Defendants intended to cause Cross-complainants severe emotional distress. Cross-Defendants argue the Fou...

Excerpt: ...el Kluchin ("Kluchin") and Deba Shyam ("Shyam") should be stricken or disregarded, in their entirety, because they assert, and are premised upon, factual claims that directly contradict an interrogatory response of their employer, Defendant, Continuum Analytics, Inc. ("Continuum"). Specifically, TPG argues that Continuum's interrogatory response, verified by Shyam, to TPG's special interrogatory asking continuum to "DESCRIBE IN DETAIL the involve...

Excerpt: ... or "Splice Members") to arbitrate all claims and disputes, including each cause of action asserted in the Complaint filed in this action, in the arbitration pending before JAMS, captioned Maher v. Splice Agency LLC, et al., JAMS Case No. 5100000379 ("Maher Arbitration"); 2. an order, pursuant to California Code of Civil Procedure section 1281.4 and the Federal Arbitration Act, g USC S 3, dismissing this action or, alternatively, issuing a stay p...

Excerpt: ...ng papers due on April 7, 2023, opposition papers due on April 14, 2023, and reply papers due on April 1 g, 2023. (April 5, 2023 Minute Order, ROA 114.) The Court notes that while the moving papers were served on April 7, 2023, they were filed late on April 10, 2023. Nevertheless, the Court will consider the moving papers. Moving Defendants argue that on October 6, 2022, Plaintiff filed an amended complaint without proper notice to Moving Defenda...

Excerpt: ...heir individual, derivative, or assignee capacities. This is confusing, especially considering Plaintiff has also pled that, "Marshall Properties assigned all of its tort and other claims and choices of action alleged herein to Huzyak, with the exception of its derivative claims for breach of fiduciary duty as alleged herein." Second Amended Complaint'l. Plaintiff Huzak is identified as a Plaintiff in each of the seven causes of action pled in th...

Excerpt: ...re not otherwise affiliated with Stor-lt Self Storage-Costa Mesa, Inc. In ruling on a demurrer to a complaint, the court must accept as true all allegations of fact contained in the complaint. (Sheehan v San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998; Thompson v Ioane (2017) 11 Cal.App.5th 1180, Ilgo.) Here, the FAC alleges that plaintiff "rented a self-storage space from defendants STOR-IT SELF STORAGE-COSTA MESA, INC.; LION COMPANIES, INC...

Excerpt: ...s and Exhibits A thereto.) As a result of this service, responses were due on or before June 20, 2022. (C.C.P. §2031.260(a) and C.C.P. §1013(a)). Although not required, Counsel for Defendant attempted to meet and confer with Plaintiffs; however, no responses to these attempts were recieved. (¶5-¶7 of Beck Declarations.) Per Counsel for Defendant, as of the date of these motions, Plaintiffs failed to provide verified responses to the reference...

Excerpt: ...tor's award. If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding. (Code Civ. Proc., § 1286.) A court shall vacate an arbitration award if it determines any of the following: (1) the award was procured ...

Excerpt: ...e responses to Form Interrogatories – Employment (Set 1), Nos. 208.1, 212.4(b)-(d), and 212.5(b)-(e) provided by Plaintiff, Ghazala Khan (“Plaintiff”) are incomplete; that no objections are asserted; that Defendant attempted to meet and confer but Plaintiff's counsel refused to properly meet and confer and failed to provided verified further responses; and that the Court should impose monetary sanctions in the amount of $4,140 against Plain...

Excerpt: ...titioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement…that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) Here, the parties dispute both the existence of an arbitration agreement an...

Excerpt: ...express purpose of harassing plaintiff and violating his rights. Punitive damages are appropriate.” 2. Page 9, Paragraph 57, lines 22-25 which read, “Under the holdings of GD Searle & Co. v. Superior Court (1975) these acts amount to oppression as they caused plaintiff to suffer cruel and unjust hardship. RECON's conduct constitutes malice in fact as it was willful, intentional, and done in reckless disregard of its possible results, which re...

Excerpt: ...aintiff also moves for an order compelling Eden to furnish responses to Plaintiff's Demand for Production and Inspection of Documents, Set One and requiring Eden and its counsel to pay monetary sanctions in the amount of $560 to Plaintiff for this motion. Eden's counsel has filed a substantively identical declaration providing that the court should not award sanctions against it because they have diligently attempted to locate someone associated ...

Excerpt: ...5715 (the “First UD Action”), pursuant to Code of Civil Procedure section 918.5. Defendants assert that under Code of Civil Procedure section 918.5, the Court has discretion to stay of enforcement of a judgment where the ostensible judgment creditor is subject to a claim by the ostensible judgment debtor in another pending action; that Plaintiff, Kowen Lai (“Plaintiff” or “Lai”) is subject to a concurrent judgment in favor of Defendan...

Excerpt: ...eement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists." (Code Civ. Proc., S 1281.2.) Pursuant to Code of Civil Procedure section 1281.6: "If the arbitration agreement provides a method of appointing an arbitrator, that method shall be follow...

Excerpt: ... willfully and intentionally; Paragraph 44, lines 24-26; Paragraph 46, lines 6-8; Paragraph 48, line 16; Paragraph 49, lines 26-28; Paragraph 50, line 1 of the SAC, the word abhorrent; Paragraph 55, lines 27-28-1; Paragraph 62, lines 12-14, the word willfully; Paragraph 67, lines 22-25; Paragraph 98, lines 24-25, the word intentional; Paragraph log, lines 1-3, the phrases "reckless disregard" and "willful refusal"; and Plaintiffs' prayer for puni...

Excerpt: .... Plaintiff cites to Code Civ. Proc. 52023.0300) and (c) as enabling authority for issue and evidentiary sanctions. Pursuant to code Civ. Proc. 520230.030(b): "The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any par...

Excerpt: ...fth causes of action for fraudulent inducement by concealment and intentional misrepresentation in conformance with the recent controlling decision, Dhital v. Nissan North America, Inc., (2022) 84 Cal .App.5th 828, which holds that under California law, the economic loss rule does not bar a plaintiff's fraudulent inducement claims and that such claims fall within the exception to the economic loss rule. Plaintiff also argues that Dhita\ held that...

Excerpt: ...iv. Proc. 5430.10(2)). Initially, all papers opposing a motion "shall be filed with the court and a copy served on each party at least nine court days" before the hearing. (Code Civ. Proc. 51005(b).) The failure to oppose a demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal .App.4th 1, 20 ["Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and h...

Excerpt: ...deral Arbitration Act ("FAA"); that the Retail Installment Sale Contract ("RISC") contains a valid and enforceable Arbitration Provision; that while Nissan is not a signatory to the RISC, it has standing to enforce the Arbitration Provision pursuant to the doctrine of equitable estoppel under Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 496-499, as Plaintiff's claims are all based on alleged defects and nonconformities with the Subject Vehi...

Excerpt: ...tion for Constructive Discharge "An employer is considered to have discharged an employee when 'the employer's conduct effectively forces an employee to resign. Although the employee may say, 'I quit,' the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will."' (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal .App.4th 1156, 1166 [citing Turner v. Anheuser-Busch, Inc. (1994) 7 cal.4th ...

Excerpt: ...Plaintiff Thu Y Tran ("Plaintiff") moves for leave to file a Fourth Amended Complaint pursuant to Code of Civil Procedure sections 473 and 576. Plaintiff contends that she seeks to amend the complaint to allege two (2) new causes of action for Specific Performance of the Contract and for Promissory Fraud which was not included in the prior amended complaint, and which are based on the same exact nucleus of facts, as well as a claim for punitive d...