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: ...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: ...�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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...