Excerpt: ... by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060.) If the opposing party challenges the validity of that signature, however, the moving party must “establish by a preponderance of the evidence that the signature was authentic.” (Ibid.) Here, Plaintiffs challenge the authenticity of the RISC submitte...

Excerpt: ...t page 16 of Plaintiff's opposition brief. Code of Civil Procedure Section 2025.450(a) provides that if a party witness fails to appear, without having served a valid objection, the noticing party may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. On 05/12/2022, Moving Defendant served ...

Excerpt: ...g reasons, WDPR's unopposed motion is GRANTED. Contempt proceedings for indirect contempt (contempt that does not occur in the presence of the court) are commenced by filing and serving an affidavit showing the facts necessary to establish contempt. (Code Civ. Proc., § 1211(a).) “ ‘ “The affidavit is in effect a complaint, frames the issues before the court and is a jurisdictional prerequisite to the court's power to punish.” ‘ ” (Ko...

Excerpt: ... Defendant is: 1 Bonanza Court, Pomona, CA 91766 (ROA Nos. 11 and 44); however, Notice of the Continuance was served on 1 Bonanza Ct. Pomona, CA 92766. (ROA No. 46). Per Moghaddam v. Bone (2006) 142 Cal.App.4th 283, “…service of papers to an incorrect address is not acceptable notice.” (Id. at 288). Indeed, identical to the instant circumstances, the error in service at issue in Moghaddam was an incorrect zip code. (Id.). “In the absence ...

Excerpt: ...ative fault.”  Burden of Proof: The law concerning good faith settlements is based on “a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial.” (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.) Therefore, burden of proof concerning whether a settlement was entered into good faith is on the opposing party. Defendant failed to file an Opposition to this motion...

Excerpt: ...llowable as costs under Section 1032. Under Civil Code §1717(a), in any action on a contract where the contract specifically provides that attorney's fees and costs incurred to enforce that contract shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, is entitled to reasonable attorney's fees in addition to other costs. Under §1717(b)(1), the court...

Excerpt: ... disability discrimination; (2) disability retaliation; (3) failure to prevent discrimination, harassment, retaliation; (4) intentional infliction of emotional distress; (5) failure to engage in good faith interactive process; (6) failure to provide reasonable accommodations; (7) failure to provide employment records; (8) violation of California Family Rights Act; (9) unfair business practices; and (10) constructive/wrongful termination. The FAC ...

Excerpt: ...rms the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Cloud v. Northrop (1998) 67 Cal.App.4th 995, 999). In determining a motion for judgment on the pleadings, the court must accept as true all material facts alleged in the challenged pleading. (Hardy v. America's Best Home Loans (2014) 232 Cal.App.4th 795, 802; Bettencourt v. Hennessy Indu...

Excerpt: ... 156 to 201. Special Interrogatories is the appropriate discovery methods to seek facts, witnesses and documents related to contention interrogatories. Legal contention questions are “entirely appropriate for interrogatories, are not proper in the deposition of a party who is represented by counsel.” (Rifkind v. Superior Court (1994) 22 Cal. App. 4th 1255, 1263.) Contrary to Plaintiff's suggestion, a deposition is not a substitute for respons...

Excerpt: ...leave to amend as to Defendant Jack Ray, and OVERRULED as to Defendant Buena Park Elks Lodge No. 2046 of the Benevolent and Protective Order of the Elks (the “Defendant Elks Lodge”). These causes of action are based on an alleged tenancy created by contract. The Complaint alleges that “[i]n or about 2013, Defendant Elks Lodge agreed by oral agreement to rent 7212 Melrose Street Space #6, Buena Park . . . to Plaintiff and his mother, which i...

Excerpt: ...weighs the foreseeable harm or hardship to the plaintiff if the relief is granted. (Code Civ. Proc. §§ 526, 527; O'Connell v. Superior Court (2006), 141 Cal.App.4th 1452, 1481.) Plaintiffs contend they are entitled to a preliminary injunction because they are likely to prevail on their claim for undue influence upon elderly person. “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overc...

Excerpt: ...essary to support issuance of a preliminary injunction.” (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) “'In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defe...

Excerpt: ...and SUSTAINED in part without leave to amend. (Code Civ. Proc., 430.10.) First Cause of Action (Breach of Contract). The demurrer to the First Cause of Action is overruled. The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff's performance or excuse for nonperformance; (iii) Defendant's breach; and (iv) damage to plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal....

Excerpt: ...ge whether the vehicle failed to conform with the express warranty or the implied warranty or which warranty term was breached. Statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) The first cause of action is for violation of Civ. Code § 1793.2(d), which requires a manufacturer to “service or repair the Vehicle to conform to the applicable express warranties after a...

Excerpt: ...ars of litigation and one month before the upcoming trial. Civ. Code, § 1717 (b) (2) provides that “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” The Supreme Court construed Civ. Code, § 1717 (b) (2) “as overriding or nullifying conflicting contractual provisions, such as provisions expressly allowing recovery of attorney ...

Excerpt: ...arm or hardship to the plaintiff if the relief is granted. (Code Civ. Proc. §§ 526, 527; O'Connell v. Superior Court (2006), 141 Cal.App.4th 1452, 1481.) Plaintiff contends it is entitled to a preliminary injunction because it is likely to prevail on the conversion claim asserted in the Complaint. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wro...

Excerpt: ... embarrassment, oppression, or undue burden and expense. (Code Civ. Proc., §§ 2025.420, 2019.030 [containing a nonexclusive list of possible directions a court may include in a protective order].) In general, the burden of establishing good cause for issuance of a protective order denying or limiting interrogatory discovery falls on the shoulders of the party seeking protection. (Coriell v. Superior Court (1974) 39 Cal. App. 3d 487, 492.) PMQ C...

Excerpt: ...ubrogation action stems from an underlying action by neighbors Talya Nevo-Hacohen and William Schenker (the “Neighbors”), who owned the real property adjacent to the Subject Property. (UMF 5.) The Neighbors had filed suit against the Horowitzes (the “Insureds”) based on alleged damage to the retaining wall between the two properties and alleged nuisances and trespasses due to the constructive activities (the “Underlying Action”). (UMF...

Excerpt: ...endant verified her discovery responses. Unverified interrogatory answers are tantamount to no answers at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.). Due to Defendant's failure to serve timely responses to the interrogatories, Defendant has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the prote...

Excerpt: ...discretion that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” The legislative history behind this sub-section helps explain its broad remedial purpose: “This bill … would provide needed statutory authority for a court to refer discovery matters to referees and thus free judges i...

Excerpt: ...moving party is entitled to judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as ...

Excerpt: ...1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) First, Second, Sixth and Eighth Causes of Action for Disability Discrimination, Retaliation, Violation of CFRA, and Wrongful Termination The California Supreme Court has he...

Excerpt: ...Promissory fraud' is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638 [finding allegations established the elements of promissory fraud based on promises related to future employment].) The elemen...

Excerpt: ...ading is so incomprehensible that a defendant cannot reasonably respond.'. . . ‘A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.'” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) The Complaint is adequately plead to survive a Demurrer for uncertainty. First Cause of Action for Fraud b...

Excerpt: ...e court in which the action is brought. (Code Civ. Proc., § 484.010.) To obtain an RTAO, the plaintiff has the burden of proving: (1) the claim is one on which an attachment order may be issued; (2) the probable validity of the claim; and (3) that the attachment is not sought for any other purpose than to secure recovery on the claim. Evidence proffered in support of, or in opposition to, an application for an RTAO must be set forth with particu...

Excerpt: ...of the amended complaint … on grounds that could have been raised by demurrer to the earlier version of the complaint….” This demurrer, however, is the first demurrer filed by Defendant Todd Spitzer. Further, Plaintiff previously agreed to amend his complaint in response to Defendant's efforts to meet and confer in anticipation of filing a demurrer. The Court declines to overrule the demurrer on this basis. Second Cause of Action for Violat...

Excerpt: ...bers of Wilson Choe's Advisory Team are directly responsible for any harm to Moving Cross-Defendants. (Cross-Compl. ¶¶ 48-51.) California law recognizes only two basic types of indemnity: express indemnity and equitable indemnity. [Citation.]” (Prince v. Pac. Gas & Elec. Co. (2009) 45 Cal.4th 1151, 1157.) The elements of a cause of action for indemnity are: (1) a showing of fault on the part of the indemnitor; and (2) resulting damages to the...

Excerpt: ...well settled that in testing the validity of a complaint against a demurrer, courts must look exclusively to facts alleged in the complaint, ignoring contrary allegations”].) First Cause of Action for Breach of Fiduciary Duty of Loyalty: Code Civ. Proc., § 430.10 (g) provides that “In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” “ If pla...

Excerpt: ... proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc. § 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 o...

Excerpt: ...�It is well settled that in testing the validity of a complaint against a demurrer, courts must look exclusively to facts alleged in the complaint, ignoring contrary allegations”].) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) A demurrer is l...

Excerpt: ...es that a successful action for liability of consumer reporting agency is entitled to recover “reasonable attorney's fees as determined by the court.” Plaintiffs were the prevailing parties and are entitled to recover reasonable attorney fees and costs. Lodestar Calculation: “Under the lodestar method, attorney fees are calculated by first multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate of c...

Excerpt: ...quires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) A protective order may include directions that the deposition not be taken at all. (Code Civ. Proc., § 2025.420(b)(1).) The burden is on the party seeking the protective order to show “good cause” for whatever order is sought. (Fairmont Ins....

Excerpt: ... of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) On March 25, 2020, Plaintiff presented to Dr. Michael Fitzpatrick with complaints of frequent shoulder dislocations over the last 15 years. She indicated to Dr. Fitzpatrick it was very difficult for her to raise her children with her shoulder disloc...

Excerpt: ...f sanctions. Plaintiffs' request for sanctions is granted. Defendant Alexandra S. Taylor shall pay sanctions in the amount of $455.00 to Plaintiffs James John Gray, III and Lisa Marie Gray within 30 days of service of notice of ruling. (Code Civ. Proc., §§ 2023.010(d), 2030.290(c).) Plaintiffs to give notice. Motion 2: Motion to Compel Responses to Form Interrogatories, Set No. One. Moving Party: Plaintiffs James John Gray, III and Lisa Marie G...

Excerpt: ... her claims, based upon the language in the Arbitration Provision of the Retail Installment Sale Contract – Simple Finance Charge (With Arbitration Provision) (“Contract”) Plaintiff allegedly signed with Stevens Creek Chrysler Jeep Dodge. (Azemoon Decl., Ex. B.) Parties moving to compel arbitration “may meet their initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the oppo...

Excerpt: ...ble estoppel, and agency. Litigants who are not parties to an arbitration agreement may invoke or be compelled to submit to arbitration under the FAA if allowed under the relevant state contract law— typically, under principles of equitable estoppel, agency or third-party beneficiary. (Arthur Andersen LLP v. Carlisle (2009) 556 U.S. 624, 632; see Murphy v. DirecTV, Inc. (9th Cir. 2013) 724 F.3d 1218, 1229-1234.) Third-Party Beneficiary. Civil C...

Excerpt: ...tablished the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. (Code Civ. Proc. § 484.090(a)(1)-(4).) A court may order the issuance of a writ of attachment only if the plaintiff's claim has probable validity; i.e., where it is more likel...

Excerpt: ...ing himself in pro per, a self-represented litigant is “treated like any other party and is entitled to the same ... consideration” as other litigants and attorneys, but no greater consideration. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) In resolving the merits of a demurrer, “all material facts pleaded in the complaint and those that arise by reasonable implication, but not conclusions of fact or la...

Excerpt: ...seeks the full names of Plaintiff's prior sexual partners. In the First Amended Complaint (FAC), Plaintiff alleges that he contracted herpes (HSV-2) from Defendant after Defendant claimed she was “free” and “clean” of any sexually transmitted diseases. Plaintiff alleges Defendant later admitted to Plaintiff that she had herpes and had been taking medication for it for years. (FAC, ¶ 12.) Critical to Defendant's defense of this case is de...

Excerpt: ...and BR Rainbow North OP, LLC were and are Nevada limited liability companies. Their principal place of business is at 940 Calle Negocio, Suite 200, San Clemente, CA 92673. Defendants Black Rock Coffee Bar LLC (BRCB) in an Oregon LLC with its principal place of business in Oregon. Defendants Jeffrey Hernandez, Jake Spellmeyer and Bryan Pereboom are residents of Oregon. Defendant Daniel Brand is a resident of Arizona. Plaintiffs alleged that Defend...

Excerpt: ...vice of notice of ruling. Civil Code section 3294(a) provides that in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant “has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” A corporate defendant may not be liable for punitive...

Excerpt: ...osts, Item No. 5: Service of Process and Item No. 15: Hosting Electronic Documents. Prevailing Party: Code Civ. Proc., § 1032 (b) provides, “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Defendants were the prevailing parties and are entitled to recover reasonable and necessary costs. (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 65...

Excerpt: ...reach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. Civ. Code § 3294(c) provides the following definitions: (1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety o...

Excerpt: ...ore of the following purposes . . . To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” Due Process: “The California Code of Civil Procedure section 410.10 provides as follows: ‘A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.' Section 410.10 authorizes California courts to exercise jurisdiction over a forei...

Excerpt: ... MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681.) “California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process.' [Citations.] ... [M]isuses of the discovery process include ‘[f]ailing to respond or to submit to an authorized method of discovery' (Code Civ. Proc., § 2023.010(d)); ‘[m]aking, without substantial justification, an unmeritorious objection to discovery' (id., § 2...

Excerpt: ...est Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Plaintiff alleges in the First Amended Complaint (FAC) that pursuant to the Renewal Agreement, Defendant agreed to provide many miscellaneous services to Plaintiff. (FAC, ¶ 34, Ex. A.) Plaintiff alleges Defendant breached the agreement by failing to open the property for the general public until June 15, 2021, by reducing its services such as removing its reception where Plaintiff's clients...

Excerpt: ...endant has demonstrated that Plaintiff Thong Pham, through his agent Plaintiff Trang Pham, executed an Arbitration Agreement which encompasses the claims asserted in this action. (¶1 and ¶3 of Khachatryan Declaration and Exhibit A thereto). Defendant has produced a Declaration from Jerry Tran, Admissions Coordinator for Defendant Garden Park Care Center. The Declaration of Mr. Tran indicates that Thong Pham affirmatively represented to Defendan...

Excerpt: ...e defined as the Covenants, Conditions and Restrictions, or CC&Rs, the Association's Bylaws, and the Rules and Regulations. (Complaint, ¶¶ 7, 16.) The Complaint alleges Defendant breached the Governing Documents by committing several violations, including adding, making, and installing unauthorized improvements on the Property without obtaining prior written approval from the Association's Architectural and Landscaping Committee. (Id., ¶ 12.) ...

Excerpt: ...Los Angeles (2021) 60 Cal.App.5th 327, 274 Cal.Rptr.3d 493, 498.) On Demurrer, Plaintiff are not required to prove the allegations. A demurrer admits “all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (San Diego Hospital Assn. v. Superior Court (1994) 30 Cal.App.4th 8, 12.) Uncertainty: “‘[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensib...

Excerpt: ...l distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' A defendant's conduct is ‘outrageous' when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.' And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.' ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.) “'Be...