Excerpt: ...he resulting damages to the plaintiff.” Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821. “'To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.'” Progressive West Ins. Co. v. Yolo County Superior Court (2005) 135 Cal.App.4th 263, 270. “In an action based on a written contract, a plaintiff may plead the legal effect o...

Excerpt: ... 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.4th 811.) Here, the Complaint sufficiently pleads facts to support each element. (Compl. ¶¶ BC-1, BC- 3, BC-4.) The fact that the ...

Excerpt: ...for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” Timely Motion: The Motion was timely on the First Set of Requests for Admission. The motion to compel was timely served on Monday, 11/8/21. The verified responses were served on 9/21/21. The motion must be filed within 45 days, which would be 11/5/21. (CCP 2033.290). Two extra d...

Excerpt: ...hat the Court erred in not giving the jury certain instructions. First, Plaintiff contends she was entitled to an instruction regarding stipulated damages, specifically CACI Nos. 106 and 5002. CACI No. 106 states, in pertinent part, that “the attorneys for both sides can agree that certain facts are true. This agreement is called a “stipulation.” No other proof is needed and you must accept those facts as true in this trial. (Judicial Counc...

Excerpt: ...ecific, non-exhaustive factors that the court considers in determining whether a settlement was entered into in good faith. These factors are: (1) a rough approximation of the plaintiff's total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) the recognition that a settlor should pay less in settlement than he would if he were found liable at tri...

Excerpt: ...ciency 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.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alle...

Excerpt: ...efusing to sell the Residence to Plaintiff for $45 million and instead expressing an intent to sell the Residence to Defendant Edelman, Defendant Seller Abalone Point breached the contract created by Plaintiff's exercising its right of first refusal (¶¶ 47, 49, 55, 57.) 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;...

Excerpt: ...laint, the Demurrer is moot as to them. No opposition was filed to the Demurrer. Third Cause of Action for Enforcement of Governing Documents: Cross-Defendants are the managing agents of the HOA and are not parties to the governing documents. The governing documents can only be enforced against the members of the HOA and the HOA itself. A cause of action was not alleged against the Cross-Defendants. Fifth Cause of Action for Aiding and Abetting B...

Excerpt: ...e basic needs of the dependent adult, such as nutrition, hydration, hygiene, or medical care; (2) defendant knew of conditions that made the dependent adult unable to provide for his or her own basic needs; (3) defendant denied or withheld goods or services necessary to meet the dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the dependent adult (if the plaintiff alleges oppress, fraud, or mali...

Excerpt: ...tion is SUSTAINED with leave to amend. The elements of a cause of action for money had and received are: (i) defendant received money that was intended to be used for the benefit of plaintiff; (ii) the money was not used for the benefit of plaintiff; and (iii) defendant has not given the money to plaintiff. (See Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454; see also CACI No. 370.) The Complaint fails to allege that Defendant T...

Excerpt: ...empleton Inc. (1968) 262 Cal. App. 2d 690.) As the Fourth District, Division 3 explained in Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4 th 1544, “[t]he allegation of a fiduciary relationship must be supported by either a contract, or a relationship that imposes it as a matter of law.” (Id. at 1558). “The mere allegation that [Defendant] assumed fiduciary duties to [Plaintiff] is a legal conclusion, not a well-pled fact....

Excerpt: ...ceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney's fees” means reasonable attorney's fees a party may be authorized to recover by a statute apart from this...

Excerpt: ...Violation of Labor Code 1102.5: Plaintiff alleged that she was terminated, because she complained about unsafe cleaning product and lack of protective glasses. Defendant terminated Plaintiff, because they believed Plaintiff “may disclosure or may disclose information, to the workers compensation carrier or OSHA. . .” (Page 8, lines 9-10). Labor Code 1102.5 (b) permits this cause of action if the employer “believes that the employee disclose...

Excerpt: ...ion, fraud or malice. (Civ. Code, § 3294(a).) “ ‘Malice' ” is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ. Code, § 3294(c)(1); College Hospital, supra, 8 Cal.4th at p. 725.) “ ‘Oppression' means despicable conduct that subjects a person to cruel an...

Excerpt: ...anded arbitration pursuant to the parties' agreement. Rather, Plaintiff argues he should be excused from arbitration because he cannot afford to pay any costs associated with arbitration. Defendant argues Plaintiff has failed to meet his burden to show he should be excused from paying arbitration costs. Both parties rely on Roldan v. Callahan & Blaine in support of their respective positions. The Roldan court held that a party unable to pay the f...

Excerpt: ...ormity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc., § 436.) The allegations of the complaint are presumed true; they are read as a whole and in context. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To withstand a motion to strike punitive damages, a plaintiff must plead ultimate facts showing the plaintiff is entitled to such relief. (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166...

Excerpt: ...elief under Code Civ. Proc., § (b) is actually a motion for reconsideration under Code Civ. Proc., §1008 (a). Code Civ. Proc., § 1008 (a) requires that a motion for reconsideration must be made “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law. . . .” This time limit has passed. In addition to this statutory authority, the court has inherent aut...

Excerpt: ...¶ 2–4.) MEF does not provide massage or other spa services, nor does it own or operate any of the franchised locations. (Cryder Decl. ¶ 5.) Defendants White Lotus Investments, Inc. and Does 1-10 are the alleged franchisees who independently owned and operated the Massage Envy® branded franchise located at 27620 Marguerite Parkway, Suite A&B, Mission Viejo, CA 92692 (the “Mission Viejo South Franchised Location”). (Compl. ¶ 5.) Plaintiff...

Excerpt: ...y effort to meet and confer prior to filing the instant motion. (Code Civ. Proc., § 439(a)(4).) A party or the court may move for judgment on the pleadings. (Code Civ. Proc., § 438(b).) Pursuant to Code of Civil Procedure section 438, a defendant may move for judgment on the pleadings for failure to state a cause of action. (Code Civ. Proc., § 438(c)(1)(B)(i).) First Cause of Action (Breach of Lease Agreement). The First Cause of Action allege...

Excerpt: ...LED in part and SUSTAINED in part with 15 days leave to amend. The court exercises its discretion to consider the late-filed opposition by Plaintiff. Defendant substantively addresses each argument, and as such, the court finds Defendant would suffer no undue prejudice by this court's consideration of the opposition papers. First Cause of Action (Battery). The demurrer to the First Cause of Action is OVERRULED. The elements of a cause of action f...

Excerpt: ...rdered to file and serve it within 15 days of service of notice of ruling. “A demurrer tests the legal sufficiency of factual allegations in a complaint.” A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) “Because a demurrer tests only the legal sufficiency of the pleading, the facts alleged in the plead...

Excerpt: ...is ordered to file and serve it within 15 days of service of notice of ruling. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (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) 10...

Excerpt: ...y any and all instances, including the time, date, place and persons involved, where Plaintiff has suffered “severe embarrassment” as a result of the alleged conduct.” Special Interrogatory No. 7 asks Plaintiff to “Identify any and all instances, including the time, date, place and persons involved, where Plaintiff has been “exposed [] to hatred, contempt, ridicule and obloquy” as a result of Defendant's alleged conduct.” Special In...

Excerpt: ... and Release was attached as Exhibit 1 (ROA 590). The court takes judicial notice of this settlement. As such, the Defendants Gonzalez CPA, First Class CPAS LLP and Wesley Shin's Motion for Summary Judgment is moot and is taken off calendar. Motion No. 2: Plaintiff Vivian Schroeder as individual and trustee's Motion to Modify Protective Order is GRANTED. The Protective order is modified to include Financial Information for the tax years 1999 to 2...

Excerpt: ... and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530 [internal citations and quotation marks omitted].) Plaintiff seeks to file a Third Amended Complaint to add two causes of action for usurpation of corporate opportunity and breach of the duty of loyal...

Excerpt: ... (Code Civ. Proc., § 1211(a).) The elements of contempt include: (1) a valid order, (2) knowledge of the order, (3) ability to comply with the order, and (4) willful failure to comply with the order. [Citations.]' ” (Wanke, Industrial, Commercial, Residential, Inc. v. Keck (2012) 209 Cal.App.4th 1151, 1168.) Here, Plaintiffs fail to show Defendants willfully violated this court's 06/14/2021 order. There was a notice of automatic bankruptcy sta...

Excerpt: ...e legal sufficiency of factual allegations in a complaint.” A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) “Because a demurrer tests only the legal sufficiency of the pleading, the facts alleged in the pleading are deemed to be true. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1190 [citation omitted]...

Excerpt: ...been guilty of oppression, fraud, or malice. Under section 3294(c), “[m]alice 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 of others” and “[o]ppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” Civil...

Excerpt: ...ed. The existence and legal effect of documents in a court file are subject to judicial notice under Evid. Code §452(d). The truth of matters stated in those documents is not, however. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal. App. 4th 987, 881-87) (and cases cited there) (overruling sustaining of demurrer on statute of limitations ground for improper judicial notice of fact stated in court of appeal opinion...

Excerpt: ...rms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” “A court ruling on a motion under CCP § 664.6 must determine whether the parties entered into a valid and binding settlement. A settlement is enforceable under section 664.6 only if the parties agreed to all material settlement terms. The court ruling on a ...

Excerpt: ...roposed FAC and states the claim to be added. The previous Motion did state exactly what allegations are proposed to be added to the previous pleading and where, by page, paragraph, and line number, the additional allegations are located. The Plaintiff has sufficiently addressed this defect, identifying the new allegations to be located at FAC ¶¶ 49-52. The declaration specifies why the amendment is necessary, and the effect of the amendment is...

Excerpt: ...ides that “Where a motion is granted pursuant to this section with leave to file an amended complaint or answer, as the case may be, then the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint or answer, as the case may be.” “‘The motion for judgment on the pleadings performs the function of a general demurrer. Therefore, it “‘admits all material and issuable facts pleaded.' . . . I...

Excerpt: ...�� and its legal effect is the same as a demurrer or motion for judgment on the pleadings. (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.) If the court concludes that the complaint or any claim therein is insufficient as a matter of law, it “may elect to treat the hearing of a summary judgment motion as a motion for judgment on the pleadings and grant the opposing party an opportunity to file an amended compla...

Excerpt: ...he order may, within ten days after service on the party of written notice of entry of the order and based on new or different facts, circumstances, or law, apply to the judge or court that made the order to reconsider the matter and modify, amend, or revoke the prior order. (Code Civ. Proc., § 1008(a).) On December 23, 2020, Plaintiff John Nord filed a motion to compel Defendant Assisting Hands Home Care of N.B., Inc. to provide further respons...

Excerpt: ...996) 14 Cal.4th 434, 444.) Due process requires that a defendant have certain minimum contacts with the forum state such that exercising jurisdiction does not offend “traditional notions of fair play and substantial justice.” (International Shoe Co. v. Washington (1945) 326 U.S. 310, 316.) This ensures that a defendant has “fair warning” of possibly being subjected to jurisdiction in the forum state. (Anglo Irish Bank Corp., PLC v. Superi...

Excerpt: ...se declarations were filed after the Reply. The general rule of motion practice is that court will not consider late evidence. Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537. This case presents a complex fact pattern. After Plaintiff Stephany Zamora invested $100,000 in a record label and band, she filed this action to recover this sum. This suit is complicated by Plaintiff's adult daughter's involvement in the band. Defendant Vanessa Carlisle...

Excerpt: .... (Herman Feil, Inc. v. Design Ctr. of Los Angeles (1988) 204 Cal.App.3d 1406, 1414; see Air Line Pilots Ass'n v. Miller (1988) 523 U.S. 866, 876.) Both state and federal law provide for enforcement of arbitration agreements. (Code Civ. Proc., §§ 1280 et seq.; 9 U.S.C. §§ 1 et seq.) Here, it is undisputed that the Federal Arbitration Act (“FAA”) applies. A petition to compel arbitration must show: (1) the existence of a dispute between th...

Excerpt: ...nitial 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 a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrat...

Excerpt: ...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, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys' fees in addition to other costs. (See also Code Civ. Proc., § 1033.5(a)(10)(A).) Reasonable attorneys' fees shall be fixed by the court and shall be an element of the costs of...

Excerpt: ... properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the mat...

Excerpt: ...dure section 378 permits joinder of plaintiffs if they assert any right to relief “arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action....” Under this provision, “the action of each plaintiff has been joined in one case, but they remain independent actions.” (Brennan v. Superior Court (1994) 30 Cal.App.4th 454, 461...

Excerpt: ...laint. Fitness International's motion is denied as to Issue Nos. 2 and 3. Civil Code section 2778 provides: “In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears.” Subdivision (3) states: “An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in go...

Excerpt: ...t leave to amend. Defendants Select Portfolio Servicing & Deutsche Bank's Motion to Strike is moot considering the rulings on the Demurrers. Requests for Judicial Notice: Defendants' Request for Judicial Notice are granted. Pursuant to Evid. Code, § 451 and 452, the court may take judicial notice of certain documents. Defendants' Request for Judicial Notice is granted. Under Evid. Code, § 452 (d), the court may take judicial notice of records o...

Excerpt: ...rty at trial. The Complaint requested $63,146.00. A judgment for $56,340.00 was returned. “When a party obtains a ‘simple, unqualified win' by completely prevailing on, or defeating, the contract claims in the action and the contract contains a provision for attorney's fees, the successful party is entitled to attorney's fees as a matter of right, eliminating the trial court's discretion to deny fees under [Civil Code] section 1717.” Silver...

Excerpt: ...mplete defense entitling it to judgment as a matter of law. (Civ. Proc. Code § 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 oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demons...

Excerpt: ...ved Defendant with the special interrogatories (set one). Defendant has not served any responses. Given Defendants' failure to respond to Plaintiff's Special Interrogatories, Set One, Plaintiff is entitled to an order compelling response without objection. (Code Civ. Proc. § 2030.290.) Defendant is ordered to serve responses without objections within 20 days of this ruling. Defendant is ordered to pay sanctions of $360 to Plaintiff within 20 day...

Excerpt: ...ion agreement between the parties that covers the controversy or claims at issue. (Lifescan, Inc. v. Premier Diabetic Servs., Inc. (9th Cir. 2004) 365 F.3d 1010, 1012; see also Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 83-85.) “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.�...

Excerpt: ...., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. C...

Excerpt: ..., 527; O'Connell v. Superior Court (2006), 141 Cal.App.4th 1452, 1481.) Plaintiff contends that is likely to prevail on the merits of its breach of contract claim. “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th...

Excerpt: ...or Neglect (Pursuant to Welfare and Institutions Code section 15600, et. seq.) Defendants contend that the Fourth Amended Complaint fails to allege facts to show that Defendants had a custodial relationship with the decedent. In order to allege “neglect” or “abuse” under the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”, Welf. & Inst.C. § 15600 et seq.), plaintiff must begin by alleging that the defendant had “car...

Excerpt: ... interest in real property may move a court for an order expunging a lis pendens. A court shall grant a motion to expunge if the pleading upon which the lis pendens is based does not contain a real property claim (Code Civ. Proc., § 405.31); or the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., § 405.32.) The burden of proof rests with the party responsible for...

Excerpt: ...: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.�...

Excerpt: ... or malice. (Civ. Code, § 3294(a).) “ ‘Malice' ” is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ. Code, § 3294(c)(1); College Hospital, supra, 8 Cal.4th at p. 725.) “ ‘Oppression' means despicable conduct that subjects a person to cruel and unjust h...

Excerpt: ...rant or deny the motion. (Code Civ. Proc., § 439(a)(4).) Here, the court exercises its discretion to consider this motion despite Moving Defendant's failure to meet and confer in compliance with Code of Civil Procedure section 439. First Cause of Action (Defamation per se). The elements of a claim for defamation are: (i) a publication that is (ii) false; (iii) defamatory; (iv) unprivileged; and (v) has a natural tendency to injure, or which caus...

Excerpt: ...Order.) 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 a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded s...

Excerpt: ...ns as to Plaintiff Escamilla because she concedes she was terminated on November 20, 2018, which is over one year before this lawsuit was filed. (SAC, ¶ 22) The demurrer is sustained on this basis. Defendant also contends that the fifth cause of action fails because both Plaintiffs lack standing, given they are not current employees of Defendant. Remedies under Section 226(e), however, are not available only to current employees. The use of the ...

Excerpt: ...t”) Plaintiff signed with Red Bluff: EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL … Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to ...

Excerpt: ...or Neglect (Pursuant to Welfare and Institutions Code section 15600, et. seq.) Defendants contend that the Fourth Amended Complaint fails to allege facts to show that Defendants had a custodial relationship with the decedent. In order to allege “neglect” or “abuse” under the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”, Welf. & Inst.C. § 15600 et seq.), plaintiff must begin by alleging that the defendant had “car...

Excerpt: ... Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385, disapproved on other grounds by ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175.) For this reason, and for the reasons identified in the Court's April 19, 2021 order on Defendant's demurrer to the original Complaint, the demurrer to this cause of action is overruled. Second Cause of Action (fraud). To state a cause of action for fraud or misrepresentation, Plaintiff must allege: (1) a misre...

Excerpt: ...l foundation. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; see also Code Civ. Proc., § 436.) To plead a claim to recover punitive damages, a plaintiff must plead and show one of the following bases for imposition of exemplary damages, i.e. malice, oppression, or fraud. (Civ. Code, § 3294(a).) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant wi...

Excerpt: ...o Welfare and Institutions Code section 15600, et. seq.) Defendants contend that the Fourth Amended Complaint fails to allege facts to show that Defendants had a custodial relationship with the decedent. In order to allege “neglect” or “abuse” under the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”, Welf. & Inst.C. § 15600 et seq.), plaintiff must begin by alleging that the defendant had “care or custody” of the...

Excerpt: ...t. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (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.) The elements of an IIED claim are: (1) defenda...

Excerpt: ...t as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be...

Excerpt: ...50.) Once the moving party meets that burden, the burden shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable issue as to that affirmative defense or cause of action. (Id., at p. 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.) The Complaint pleads a single cause of action for Premises Liability. The Complaint alleges Plaintiff Charles Smith fell due to a neglige...

Excerpt: ...ptember 1, 2020. Defendant Mahmood contends that it is not a proper party to this lawsuit given its limited role in the underlying dispute. But as long as it is a named party that has not been dismissed, Defendant Mahmood cannot avoid his obligations under the Discovery Act. Given Defendant's failure to respond timely to Plaintiff's discovery requests, Plaintiff is entitled to an order compelling response without objection. (Code Civ. Proc. §§ ...

Excerpt: ...conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc., § 436.) The allegations of the complaint are presumed true; they are read as a whole and in context. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Civil Code section 3294(b) provides that a plaintiff may recover punitive damages against an employer for acts of its employees only where “the employer had advance knowledge of the unfit...

Excerpt: ...) 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.) Negligence Causes of Action Plaintiff's first (negligence), second (negligent supervision), third (negligent failure to warn, train, or educate), fifth (negligent infliction of...

Excerpt: ...ablished 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. (Cal. Civ. Proc. Code § 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 l...

Excerpt: ...to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the moti...

Excerpt: ...was entered into in good faith. These factors are: (1) a rough approximation of the plaintiff's total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) the recognition that a settlor should pay less in settlement than he would if he were found liable at trial; (5) the financial conditions and insurance policy limits of settling defendants; and (6)...

Excerpt: ...al.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.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complai...

Excerpt: ...(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc. (“CCP”), § 437c(p)(2).) The ...

Excerpt: ...ia McCaughey: This Defendant was Defendants MBSB Legacy LP's agent. The Complaint did not allege any misconduct on her part. On the breach of contract claim, she was not a party to the contract. “Normally, the agent will not be liable on a written contract made in the name of the principal. (See Rest.3d, Agency § 6.01(2).)” 3 Witkin, Summary of California Law, 11th Agency § 207 (2021). On the tort causes of action, there was no allegation o...

Excerpt: ...lusions of fact or law.” The court “also consider matters that may be judicially noticed.” Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2021) 60 Cal.App.5th 327, 274 Cal.Rptr.3d 493, 498. Request for Judicial Notice: Plaintiff's Objection to the Request for Judicial Notice is GRANTED, except for the truth of the matters stated in the documents. The existence and legal effect of documents in a court file are subject ...

Excerpt: ...�any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” (Bus. & Prof. Code § 17200.) California's false advertising law ) Bus. & Prof. Code § 17500) is equally comprehensive within the narrower field of false and misleading advertising. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320.) While the substantive reach of these statutes remains expansive, California's electo...

Excerpt: ...oss-Defendants Robert Salazar, Sherry Greer and Heidi Warner's Demurrer to the Cross- Complaint is SUSTAINED with fifteen (15) days leave to amend as to the First, Second and Sixth Causes of Action. The Demurrer is OVERRULED as to the Fourth and Tenth Causes of Action. First Cause of Action for Breach of Governing Documents & Second Cause of Action for Breach of Contract: The Cross-Complaint alleges that the Association and the former board membe...

Excerpt: ...ained. Should Plaintiffs desire to file an amended complaint that addresses the issues in this ruling, Plaintiffs must file and serve it within 15 days of service of the notice of ruling. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegati...

Excerpt: ...he trial court can relieve a party from such a waiver if “both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance; and (2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., §§ 2030.290(a); 2031.300(a).) On or about June 8, 2020, Plaintiff served three sets of discovery requests to Defendant U...

Excerpt: ...Miller, or Mibs Matthews] from January 2019 to June 5, 2019, RELATING TO NEWPORT CROSSINGS.” A motion to compel further responses must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310(b)(1); see also Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.App.4th 1113, 1117.) To establish “good cause,” the burden is on the moving party to demonstrate both: (1) relevanc...

Excerpt: ...Agreement, which is attached as Exhibit A to the SAC. The Purchase Agreement was executed by Defendant Le and Melinda Nguyen. This Purchase Agreement contains an arbitration provision. The parties do not dispute the applicability of the arbitration provision to this case. Instead, Plaintiff contends Le waived his right to compel arbitration by waiting to file this motion until after Le first filed a Demurrer and Motion to Strike the First Amended...

Excerpt: ...the First Amended Complaint are SUSTAINED with fifteen (15) days leave to amend. Defendants Select Portfolio Servicing & Deutsche Bank's Motion to Strike is moot in light of the rulings on the Demurrers. Requests for Judicial Notice: Pursuant to Evid. Code, § 451 and 452, the court may take judicial notice of certain documents. Defendants' Request for Judicial Notice is granted. Under Evid. Code, § 452 (d), the court may take judicial notice of...

Excerpt: ..., § 428.50(c).) That there is a judicial economy interest in having a single jury trial on the issue of whether the alleged product defect was the cause of Plaintiff's incident is undisputed. Fitness has explained its delay in seeking leave to file the Proposed Cross-Complaint and has provided evidence supporting a finding that Fitness has acted in good faith. (Id.) Brunswick contends that permitting Fitness to file its Proposed Cross-Complaint ...

Excerpt: ...s Bollinger (“Defendant Thomas”) and 03/08/2021 for Defendant Pearl Bollinger. Defendants were not entitled to a 30-day extension of the deadline to file their demurrer, as they failed to file “a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41(a)(2).) A demurrer challenges the defects appear...

Excerpt: ...37; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 312, as modified (Oct. 9, 2002).) The Complaint asserts causes of action for 1) slander, 2) libel, 3) vicarious liability under Civil Code § 1714.1, and 4) violation of Business & Professions Code § 17200. The conduct at issue in each of the causes of action in the Complaint is a set of comments Defendant Lauren Kettering (Lauren) made about Not a Content Hous...

Excerpt: ...tition, it appears that Cross-Complainant Miguel Chavez lost standing to sue. The doctrines of Judicial Estoppel and Unclean Hands do not apply on a Motion for Judgment on the Pleadings Motion for Judgment on the Pleadings: “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action. . . . Where a demurrer...

Excerpt: ...ty: Plaintiff TML Recovery, LLC Ruling Motion 1: Defendant Northwestern's Demurrer to the Third Amended Complaint is overruled. (Code Civ. Proc., § 430.10(e).) Ruling Motion 2: Defendants The Guardian Life Insurance Company of America, Pacific Advisors, LLC, and Park Avenue Securities, LLC's Demurrer to the Third Amended Complaint is overruled in part and sustained in part. (Code Civ. Proc., § 430.10(e).) Ruling Motion 3: Defendant Boll's Demur...

Excerpt: .... After Dr. Orenstein defaulted on the loan payments, Balboa sued Dr. Orenstein and his company, Sculpt Medical. Sculpt filed for Bankruptcy. Balboa settled with Sculpt for $3,500.00. Dr. Orenstein contends that this settlement released him from all liability for the loan. The Mutual Settlement and Release Agreement was based on the 4/2/17 Equipment Financing Agreement. The agreement referred to this litigation, Case number 30-2019- 01115559. The...

Excerpt: ... was Plaintiff's psychotherapist, or that the patient-psychotherapist privilege applies. (Evid. Code, §§ 1012 and 1014; Civ. Code, §56.10.) Instead, Defendants contend Plaintiff waived his patient- psychotherapist privilege because Plaintiff tendered his mental and emotional condition as an issue in this lawsuit by claiming that the subject vehicle collision “severely aggravated” Plaintiff's post-traumatic stress disorder (PTSD). (Evid. Co...

Excerpt: ...tiengesellschaft v. Schlunk, 486 U.S. 694, 705.) Both China and the United States are parties to the Hague Convention. The Hague Convention requires Plaintiffs to forward requests for service of process to the central authority of China, Defendant Liu's (“Liu”) home country. (See Hague Convention, art. III.) “The Hague Convention permits default judgement against a foreign party once three elements have been satisfied, even if the foreign p...

Excerpt: ... his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross- 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 caus...

Excerpt: ...s request for judicial notice is granted. As to the request for judicial notice, Defendant asks the Court to take judicial notice of 1) Letter from Presiding Judge Lee Hurwitz, Court Order, dated October 22, 2019, 2) Findings and Order after hearing dated February 26, 2019, 3) Minute Order dated September 18, 2018, 4) Defendant's Request for Order filed April 17, 2018, and 5) the December 2, 2020 Court of Appeal opinion in the related case involv...

Excerpt: ...intiff experienced persistent racist abuse from his supervisor, Deputy Public Works Director Defendant Debassio, such as Debassio using the “n-word” in front of him on numerous occasions, making comments like the need to hire more “black people” at the City for the sake of diversity, making jokes about Plaintiff's genitalia, and subjecting Plaintiff to other discriminatory and abusive language. (Id. at ¶¶ 13-14.) The FAC also alleges th...

Excerpt: ...on's knowledge, information and belief, formed after an inquiry reasonable under the circumstances that all of the following conditions are met: (1) it is not being presented primarily for an improper purpose; (2) the claims, defenses, or other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; (3) the allegations and other fact...

Excerpt: ...red in this litigation. Lodestar: “‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.'” PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. “A trial court ‘assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent...

Excerpt: ...e: sexual harassment (fourth cause of action), sexual battery (fifth cause of action), gender violence (sixth cause of action), and violation of the Ralph Act (seventh cause of action). Statute of Limitations The District argues that Plaintiff failed to bring her claims within the applicable statutes of limitation. Code of Civil Procedure section 340.1 pertains to the statute of limitations in an action for recovery of damages suffered as a resul...

Excerpt: ...g and servicing of loan records, including, but not limited, accurate crediting of payments made by Plaintiff.” (Complaint, ¶ 21.) The Complaint also alleges that Defendants breached this duty by failing to complete an agreed- upon loan modification agreement, failing to credit payments made by Plaintiff toward the loan, filing false documents, and foreclosing on the Property. (Complaint, ¶ 31.) Courts are split as to whether a financial inst...

Excerpt: ...Miller, or Mibs Matthews] from January 2019 to June 5, 2019, RELATING TO NEWPORT CROSSINGS.” A motion to compel further responses must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310(b)(1); see also Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.App.4th 1113, 1117.) To establish “good cause,” the burden is on the moving party to demonstrate both: (1) relevanc...

Excerpt: ...s granted as to Form Interrogatory Nos. 6.3 and 17.1 and denied as to Form Interrogatory Nos. 10.1, 10.2, and 10.3. Plaintiffs' responses to Form Interrogatory No. 6.3 is evasive. Plaintiffs John Nord, Sheran Marron, and Simon R. Nord, III are ordered to serve a further, complete, verified response within 10 days of service of Notice of Ruling. Plaintiffs' responses to Form Interrogatory Nos. 10.1, 10.2, and 10.3 are full and complete. Plaintiffs...

Excerpt: ...ts' Demurrer to the Third Amended Complaint is sustained with 15 days leave to amend. (Code Civ. Proc., § 430.10(e).) The elements of a claim for physical dependent adult abuse based on a defendant's alleged recklessness are: (1) defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene, or medical care; (2) defendant knew of conditions that made the elder or dependent adult u...

Excerpt: ...UBM's demurrer to the first through ninth causes of action of Plaintiff Maribel Godinez's Second Amended Complaint (“SAC”) is sustained with leave to amend. Should Plaintiff wish to amend the complaint to address the issues herein, Plaintiff shall file and serve the amended complaint within 15 days of service of the notice of ruling. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blan...