Excerpt: ...the Vivian Schroeder Separate Property Trust. 5. Demurrer to Amended Complaint 6. Motion to Strike Portions of the Third Amended Complaint Moving Party: Roe Properties Responding Party: Plaintiff Vivian Schroeder, as an individual and as trustee of the Vivian Schroeder Separate Property Trust. Ruling Motion 1: Defendant Alice Roe's Demurrer to Third Amended Complaint is SUSTAINED without leave to amend as to the First and Second Causes of Action....

Excerpt: ...ate America, Inc., Western Riverside Council of Governments and County of Orange, GD Friend Inc. dba Everlast Home Energy Solutions (GD Friend) and Gregory Friend commit fraud and financial elder abuse. Therefore, Plaintiffs alleged that Orange County's levy and charge of taxes and fees was illegal and should be cancelled. Exemption from Filing Claim: Government Code 905 (a) exempts Plaintiffs' claim. Gov. Code, § 905 provides that “all claims...

Excerpt: ... burden of proof to show that there was a complete defense under Civ. Code, § 3439.09 to these causes of action. Statute of Limitations: Civ. Code, § 3439.09 provides that “A cause of action with respect to a transfer or obligation under this chapter is extinguished unless action is brought pursuant to subdivision (a) of Section 3439.07 or levy made as provided in subdivision (b) or (c) of Section 3439.07: (a) Under paragraph (1) of subdivisi...

Excerpt: ...substantively addresses each issue. A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A plaintiff moving for summary judgment satisfies his or her initial burden by showing that each element of the cause of action in question has been “proved,” and hence t...

Excerpt: ...atories or production of documents results in a waiver of any objection to the request. (Code Civ. Proc., §§ 2030.290(a); 2031.300(a).) However, the 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 n...

Excerpt: ...to the First, Ninth, Tenth and Eleventh Causes of Action. The Motion is DENIED as to the remaining Causes of Action. Prior Ruling: On 7/13/20, the court overruled Defendants' Demurrer, because the Demurrer was to the entire Complaint when all causes of action were not addressed. (ROA 139). The court did not address the individual causes of action. Judgment on the Pleadings: “In the case of either a demurrer or a motion for judgment on the plead...

Excerpt: ... (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.) 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 t...

Excerpt: ...001) 25 Cal.4th 826, 850.) 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).) Once the moving party meets that burden, the burden shifts to Plaintiff to show, by reference to specific facts, the existence of a triable issue as to that af...

Excerpt: ... burden of proof to show that there was a complete defense under Civ. Code, § 3439.09 to these causes of action. Statute of Limitations: Civ. Code, § 3439.09 provides that “A cause of action with respect to a transfer or obligation under this chapter is extinguished unless action is brought pursuant to subdivision (a) of Section 3439.07 or levy made as provided in subdivision (b) or (c) of Section 3439.07: (a) Under paragraph (1) of subdivisi...

Excerpt: ...001) 25 Cal.4th 826, 850.) 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).) Once the moving party meets that burden, the burden shifts to Plaintiff to show, by reference to specific facts, the existence of a triable issue as to that af...

Excerpt: ...substantively addresses each issue. A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A plaintiff moving for summary judgment satisfies his or her initial burden by showing that each element of the cause of action in question has been “proved,” and hence t...

Excerpt: ...to the First, Ninth, Tenth and Eleventh Causes of Action. The Motion is DENIED as to the remaining Causes of Action. Prior Ruling: On 7/13/20, the court overruled Defendants' Demurrer, because the Demurrer was to the entire Complaint when all causes of action were not addressed. (ROA 139). The court did not address the individual causes of action. Judgment on the Pleadings: “In the case of either a demurrer or a motion for judgment on the plead...

Excerpt: ... (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.) 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 t...

Excerpt: ...ecret, and (3) resulting harm. (Civ. Code, § 3426.1, subd. (b); Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1155; CytoDyn of New Mexico, Inc. v. Amerimmune Pharmaceuticals, Inc. (2008) 160 Cal.App.4th 288, 297.) Defendant Le contends that the FAC does not allege what trade secrets Le acquired, when or how Le disclosed or used a trade secret, or to whom Le disclosed a trade secret. The FAC, however, identifies the “Trade Secrets” at issue: custo...

Excerpt: ...resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) The Complaint alleges that Plaintiff and Defendant DI Overnite LLC entered into a written employment contract on June 13, 2014. This employment contract, which is the offer letter that was signed by Defendant's president and by Plaintiff, offers Plaintiff employment as the “Executive Vice President of Operations and an authorized Finance offic...

Excerpt: ... misconduct are sustained as to Scallorn and overruled as to Assisting Hands. The demurrer to the fourth cause of action for unfair business practices is overruled. Defendants' special demurrers pursuant to Code of Civil Procedure sections 430.10(f) and 430.10(g) are overruled. Should Plaintiffs desire to file an amended complaint that addresses the issues in this ruling, Plaintiffs are ordered to file and serve it within 15 days of notice of rul...

Excerpt: ...ban Commons, LLC, Taylor Woods, Howard Wu & Andrew Murray Ruling Motion 1: Defendants' Motion to Compel Arbitration is DENIED. Procedural Defect: Defendant failed to follow the procedural requirements to move to compel arbitration. “A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract.” Freeman v. State Farm Auto Ins. Co. (1975) 14 Cal.3d 473, 480. Code Civ. Proc., § 1281.2 provides t...

Excerpt: ...d Co. (2001) 25 Cal.4th 826, 850.) 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).) Once the moving party meets that burden, the burden shifts to Plaintiff to show, by reference to specific facts, the existence of a triable issue as to...

Excerpt: ...ion, the court need not determine Issue No. 4. 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,...

Excerpt: ...f more limited relief.” Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107. The “sole remedy for relief from waiver in the context of discovery is contained within the provisions of the Act and it cannot rely upon the provisions of section 473.” Scottsdale Ins. Co. v. Superior Court (1997) 59Cal.App.4th 263, 274–275. The motion was also made under the appropriate statutes, which are similar. Code Civ. Proc., § 2030.290 (a) provides that...

Excerpt: ....1 contains a subdivision that expressly preserves nonfinal claims. Under subdivision (q), “Notwithstanding any other provision of law, any claim for damages described in paragraphs (1) through (3), inclusive, of subdivision (a) that has not been litigated to finality and that would otherwise be barred as of January 1, 2020, because the applicable statute of limitations, claim presentation deadline, or any other time limit had expired, is reviv...

Excerpt: ... truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made. (People ...

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 elector...

Excerpt: ...ndants' Demurrers to the Second Amended Complaint are overruled in part as moot and sustained in part with 15 days leave to amend. (Code Civ. Proc., § 430.10(e).) Ruling Motion 3: Defendant Boll's Demurrer to the Second Amended Complaint is sustained with 15 days leave to amend. (Code Civ. Proc., § 430.10(e).) A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (See ...

Excerpt: ... and SUSTAINED in part without leave to amend. (Code Civ. Proc., § 430.10(e).) The demurrers to all causes of action are sustained as to Cross-Defendant Handy Randy. The Cross-Complaint fails to allege facts showing that entity Cross-Defendant Handy Randy may be held liable for the torts of its alleged agent Cross-Defendant Gregory Larson. A principal may be held liable for the torts of its agent or ostensible agent falling within the scope of t...

Excerpt: ... under conditions consistent with applicable COVID-19 public health orders and guidance or under conditions to which the parties otherwise stipulate. In light of the court's concurrent ruling on Defendant's Motion to Disqualify Counsel, the parties are reminded that Attorney Annie C. Lu is disqualified from taking or defending depositions. Any party may obtain discovery by taking in California the oral deposition of any person, including any part...

Excerpt: ...he UCC filing. There was a condition precedent which stated, “UPON APPROVAL OF SALES VOLUME . . . subject to approval of Purchaser(s), and Seller(s) . . .” Since the condition precedent did not occur, the UCC filing was improper and is stricken. Pursuant to Code Civ. Proc., § 765.030, Defendant June Jinoh Lee is required to pay reasonable attorney fees in the sum of $1,950.00 ($325.00 per hour x 6 hours) within fifteen (15) days. Oral testim...

Excerpt: ...nted in part. Disobeying a court order to provide discovery is a misuse of the discovery process. (Cal. Civ. Proc. Code § 2023.010(g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) A trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should attempt to tailor the sanction to the harm caused by the withheld discovery. (Doppes v. Bentley Motors, Inc. (...

Excerpt: ...e Civ. Proc., § 2023.010(g). On 07/27/2020, this Court ordered Defendant Americor Funding, Inc., to provide further responses to Form Interrogatories (Set One), Nos. 201.2(b), 201.4(c), and 216.1(c), among others. (ROA 169.) Defendant's responses to Nos. 201.2(b) and 201.4(c) remain evasive and incomplete. Defendant's arguments that the responses are complete rely on information not included in the verified responses; the verified response to No...

Excerpt: ...basis that it is moot after the Court's ruling on December 14, 2020 which granted Plaintiff Paul H. Beyer with leave to file an Amended Complaint. (ROA No. 274, Gonzalez Decl., ¶ 5; ROA No. 267, 12/14/20 Minute Order.) Defendant Orange Coast Memorial Medical Center (“OCMMC”) OCMMC joined in Defendants Mir B. Ali, M.D. and Smart Dimensions Weight Loss's Motion to Dismiss by way of a Notice of Joinder filed on 10/16/20. It is common practice f...

Excerpt: ...n to compel. The trial court should tailor the sanction for such conduct to “fit the crime.” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.) The court cannot impose sanctions as punishment; the choice of sanctions should not give the moving party more than it would have gotten had the discovery been responded to. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992; Caryl Richards, Inc. v. Superior Court, 188 Cal.App.2d at 30...

Excerpt: ...le it within 15 days of service of the Notice of Ruling. First Cause of Action for Violation of Civil Code Section 1694 The first cause of action alleges the March 31, 2019 Membership Agreement between Raging Bull Enterprises and Plaintiff (the “Contract”) violates Civil Code section 1694.2(b)(1) and section 1694.2(d)(1). Civil Code section 1694.2(b)(1) states: Every dating service contract shall contain on its face, and in close proximity to...

Excerpt: ...Universal Recording Environment (“SECURE”) system is denied. The relationships between Plaintiffs and LA County are governed by a Memorandum of Understanding (“Memorandum”). Plaintiffs have each separately entered into a Memorandum. (Klessig Decl., ¶ 2, Exs. 1 and 2.) Each Memorandum details that the counties of Los Angeles, Orange, Riverside, and San Diego are the “Owners” of the SECURE system, and Plaintiffs are referred to as the ...

Excerpt: ...se. Although it is not entirely clear, it appears that Defendant is seeking relief under Code Civ. Proc § 473(b). That is, according to the Notice of Motion, Plaintiff is seeking relief under Code Civ. Proc § 473(b). But the Motion does not discuss this section at all. Code Civ. Proc. § 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, ...

Excerpt: ...done and material furnished; and the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens.” (Cal. Const., art. XIV, § 3.) Although Petitioner asserts that a petition to remove a claim of lien is the same as a motion to expunge a lis pendens, this is not accurate and the authority cited by Petitioner, Lambert v. Superior Court (1991) 228 Cal.App.3d 383, does not support this proposition. Rather, Lambert addr...

Excerpt: ... Livemore LLC dba Mansion Costa Mesa Ruling Motion 1) Ruling: Defendant YG's Demurrer to the First Amended Complaint is sustained in part and overruled in part. Defendant YG demurs to the fourth cause of action for negligence and the fifth cause of action for negligent hiring. To state a claim for negligence, plaintiff must allege that: (i) defendants had a legal duty to use due care; (i) a breach of such legal duty; and (iii) the breach as the p...

Excerpt: ...s is denied. A party seeking to compel arbitration pursuant to Code of Civil Procedure section 1281.2 must plead and prove (1) the existence of a written arbitration agreement and (2) that the other party has refused to arbitrate. (Code Civ. Proc., § 1281.2; Mansouri v. Sup. Ct. (Fleur Du Lac Estates Ass'n) (2010) 181 Cal.App.4th 633, 640-641.) Because the existence of the agreement is a statutory prerequisite to granting the petition, the petit...

Excerpt: ... the Second Amended Complaint is OVERRULED as to the First Cause of Action for Negligence and SUSTAINED with fifteen (15) days leave to amend as to the Second Cause of Action. First Cause of Action for Negligence v. Rainbow Rising: Plaintiff alleged that “No staff from Defendants witnessed, paid attention, or supervised Plaintiff and the students around him when the accident happened.” (Page 2, lines 23- 24). “Rainbow Rising . . . owed a sp...

Excerpt: ... 96, 100-101.) The Complaint sufficiently indicates what issues must be admitted or denied by Defendants. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Causes of Action for Breach of Loan Agreement. The Complaint asserts five causes of action for breach of loan agreement. The demurrer indicates that Defendants believe the first cause of action (but apparently not the other causes of action for breach of loan agreement) fa...

Excerpt: ...ke at ii:6-7; Special Mot. to Strike at 1:22-23.) The Special Motion to Strike represents that a copy of the FACC is attached to the concurrently filed RJN (Special Mot. to Strike at 1:22- 23), but no RJN was filed. (See generally ROA.) There is no FACC on file with this court. It is reasonable to believe that the self-represented Cross-Complainants served but neglected to file an amended Cross-Complaint. If the moving papers refer to a not-yet-f...

Excerpt: ...aware law, Plaintiff concludes that Defendant and Plaintiff owe each other a fiduciary duty. The Complaint alleges that Defendant breached the duty “owed to the John [sic] by doing all of the acts and omissions alleged in this complaint.” (Comp., ¶ 40.) Specifically, the Complaint alleges that Defendant, knowing Plaintiff was out the country, used Plaintiff's absence to attempt to gain control of XG in a way that was open to the public and g...

Excerpt: ... v. Dong Li (OCSC 2020-01131891) shall be the lead case, as it is the lowest numbered case. Plaintiff to give notice. Ruling Motion 2: Ruling: Defendant's demurrer is sustained; Defendant's motion to strike is granted. The California Fair Employment and Housing Act (“FEHA”) makes it unlawful for an employer to discharge an employee because of her “marital status.” (Gov. Code § 12940(a).) Plaintiff's first cause of action asserts a cause ...

Excerpt: ...suant to Code of Civil Procedure section 36 is denied without prejudice. Code of Civil Procedure section 36(a) states that a party to a civil action who is over 70 years of age may petition the court for a preference, which the court “shall grant” if the court makes both of the following findings: (1) the party has a substantial interest in the action as a whole and (2) the health of the party is such that a preference is necessary to prevent...

Excerpt: ...int.'” Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 884. Plaintiff has specifically identified the alleged libel, which satisfied the pleading requirement. Anti-SLAPP: “Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. . . . If the defendant makes the required showing, the burden shifts to the plaintiff ...

Excerpt: ...he 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 several theories, the defendant has the burden of demons...

Excerpt: ... Espinoza and Lisa Espinoza, as successors in interest on behalf of Chandler Espinoza, deceased; Chip Espinoza, Lisa Espinoza, Chase Espinoza, Chance Espinoza, and Charli Espinoza Ruling for Motion 1: Defendant's demurrer to the first through thirteenth causes of action is sustained. Should Plaintiffs wish to amend the complaint to address the issues herein, Plaintiffs shall file and serve the amended complaint within 15 days of service of the no...

Excerpt: ... is granted. 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 plea...

Excerpt: ...r 28, 2020. Code of Civil Procedure section 685.040 provides a judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5 [attorneys' fees allo...

Excerpt: ... a right to attach order if it finds all of the following: (1) the claim upon which the attachment is based is one upon which an attachment may be issued; (2) the plaintiff has established 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 zer...

Excerpt: ...ely with supplemental responses. Ruling Motion 2) Plaintiff Sushi Bear, Inc.'s Motion for Further Responses to Special Interrogatories is GRANTED in part and DENIED in part. Within fifteen (15) days, Defendant June Jinoh Lee shall respond without objection to Special Interrogatories Nos 1 and 2. The Motion is denied as to Special Interrogatories Nos. 29, 30, 31, 32, 34 and 35. Special Interrogatories Nos. 2 & 3 requested the facts upon which Defe...

Excerpt: ...olicy, a defendant owes no duty to protect a plaintiff from particular harms.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) Where primary assumption of the risk applies, it is a complete bar to the plaintiff's recovery. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1004.) The California Supreme Court has ruled that primary assumption of risk may bar a personal injury action brought by a particip...

Excerpt: ... The Motion to Strike currently set for 11/9/20 shall be the response of Defendant Rainbow Rising, Inc. Testing the Pleading: “[E]ven if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.'” Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 10...

Excerpt: ...g Party: Plaintiffs Ralph and Maria Clure 4. Demurrer to Amended Complaint Moving Party: Defendant County of Orange Responding Party: Plaintiffs Ralph and Maria Clure Ruling Demurrer 1) The Demurrer of Defendants GD Friend Inc. dba Everlast Home Energy Solutions (GDFreind), Gregory Friend (Mr. Friend), American Contractors Indemnity Co (ACIC) and Suretec Indemnity Co. (Suretec) to the First Amended Complaint is OVERRULED. Statute of Limitations: ...

Excerpt: ...The evidentiary objections filed by Defendant LAZ Karp Associates, LLC (LAZ) are overruled because they do not comply with CRC Rule 3.1354. A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Once the moving party meets that burden, the burden shifts to the part...

Excerpt: ...uld 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. (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 p...

Excerpt: ...) 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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the tr...

Excerpt: ...ional Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (“While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein.”). Code of Civil Procedure section 425.16 provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection...

Excerpt: ...tiff a legal duty, (2) the defendant breached the duty, and (3) the breach was a proximate or legal cause of the plaintiff's injuries. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) Here, Plaintiffs allege that Defendant JALD Enterprises, Inc. dba Accurate Termite and Pest Control (Accurate) had a duty to perform its inspection with a degree of care beyond ordinary care and to use the skill, prudence and diligence commonly exercised by th...

Excerpt: ...e Court finds that the arbitration agreement was procedurally and substantively unconscionable. In addition, the Court finds that Plaintiff did not waive the right to compel arbitration. Commercial Context: Plaintiff is incorrect in taking the position that this commercial transaction could not be unconscionable. “The parties dispute the extent to which the doctrine of unconscionability applies to commercial contracts. Plaintiffs claim Californ...

Excerpt: ....App.4th 994, 998.) “[L]andowners are required ‘to maintain land in their possession and control in a reasonably safe condition' [citation], and to use due care to eliminate dangerous conditions on their property [citations].” (Taylor v. Trimble (2017) 13 Cal.App.5th 934, 943- 944; accord, Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 [an owner owes patrons “a duty to exercise reasonable care in keeping the premises reasonably safe�...

Excerpt: ...d, Hecht & Soldberg (1995) 30 Cal.App.4th 1373, 1386-1387.) Under Section 340.6(a), “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of t...

Excerpt: ...ts appearing on the face of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Under Section 430.10(e) the test is whether the complaint states any valid claim entitling plaintiff to relief, even if plaintiff's cause of action is improperly titled, or an improper remedy is stated. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, and Town Council, In...

Excerpt: ...lements 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.) The FAC alleges sufficient facts to support each element of the claim, including the legal effect of the alleged contract. (McKell v. Washington Mut., Inc. (2006) 142 C...

Excerpt: ... . .” (Page 11, lines 10- 11). The Court DENIES the remainder of the motion. The Court GRANTS Plaintiff's and Defendant's Request for Judicial Notice. Plaintiff's Request for Attorney Fees is DENIED, because Defendants' Motion was not “frivolous or is solely intended to cause unnecessary delay.” [Code Civ. Proc., § 425.16 (c) (1)]. Defendants may move to recover attorney fees and cost. Anti-SLAPP Test: “The trial court undertakes a two-s...

Excerpt: ...use of Action: Dependent Adult Abuse and/or Neglect (Pursuant to Welfare and Institutions Code section 15600, et. seq.) Defendants argue that the FAC does not allege facts showing more than negligence. However, the FAC alleges sufficient facts that a jury could find that Defendants acted recklessly or oppressively. Specifically, Plaintiffs allege that Defendants failed to protect decedent from a known and anticipated suicidal ideation, failed to ...

Excerpt: ...al proceedings are protected by the anti-SLAPP statute. (CCP §§425.16(e)(1), 425.16(e)(4); Navellier v. Sletten (2002) 29 Cal. 4th 82, 88-90; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670. “The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” Feldman at 1479.) Thus, a malicious prosecution action is subject to a section 425...

Excerpt: ...ould be unjust. Service Requirements: “[N]oncompliance with the mailing requirement is a . . . nonstatutory ground for expungement. Carr v. Rosien (2015) 238 Cal.App.4th 845, 857. The service requirement concerned the adverse party in this litigation and the owner of record the property. This requirement did not apply to Stern Investments, because it did not own the properties when the two Lis Pendens were recorded. “Any notice of pendency of...

Excerpt: ...s, Inc. (2004) 32 Cal.4th 1138, 1142.) Duty is an essential element of a negligence claim. “If there is no duty, there can be no liability, no matter how easily one may have been able to prevent injury to another.” (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 150.) Issue No. 1 An affirmative duty to act to protect others from the conduct of third parties may arise where there is a special relationship between the parties. (Delgado v....

Excerpt: ...pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 (disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4 th 300).) A demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly's of ...

Excerpt: ...dicial Notice is GRANTED. Defendants' Objections to Evidence are OVERRULED. Pursuant to Code Civ. Proc., § 425.16 (c) (1), as prevailing parties Defendants are entitled to recover attorney fees and costs. Defendants may file separate motions “to produce records sufficient to provide ‘a proper basis for determining how much time was spent on particular claims.'” Christian Research Inst. v. Alnor (2008) 165 Cal. App. 4th 1315, 1320. Anti-SLA...

Excerpt: ...mary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient ...

Excerpt: ...antic Richfield Co. (2001) 25 Cal. 4th 826, 850.) Once the plaintiff has met its initial burden, the burden shifts to the defendant to show a triable issue as to one or more material facts or a defense thereto. The defendant may not rely on the mere allegations or denials of its pleadings, but must set forth the specific facts showing a triable issue exists. (Id. at 849.) First Cause of Action for Breach of Contract The elements of a cause of act...

Excerpt: ... To state a claim for negligence, plaintiff must allege that: (i) defendants had a legal duty to use due care; (i) a breach of such legal duty; and (iii) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Here, the FAC fails to identify any duty of care or breach. Instead, the First Cause of Action attempts to characterize the various alleged contractual and intentional to...

Excerpt: ...e 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 811, 821.) A Marvin claim is a claim to enforce a contract that is either express (that is, written or oral) or implied in fact (that is, “manifested by [the parties'] ...

Excerpt: ...the remainder of Plaintiffs' objections are overruled. The Court declines ruling on Defendants' objections because they are not material to the outcome of the motion. (See Code Civ. Proc. §437c(q).) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima...

Excerpt: ...e or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4 th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74.) The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4 th 1550, 1557; see also Wagner F...

Excerpt: ...mes both plaintiffs remain in the case. First Cause of Action (Negligence). The motion for summary adjudication is denied as to the first cause of action for negligence. To state a claim for negligence, plaintiff must allege that: (i) defendants had a legal duty to use due care; (i) a breach of such legal duty; and (iii) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) G...

Excerpt: ...urther Answers to Request for Production of Documents, Set 2. Moving Party Plaintiff Tobey Arietta. Responding Party Defendant Jeffrey Fairbairn. 5) To Compel Answers to Deposition Questions. Moving Party Plaintiff Tobey Arietta. Responding Party Defendant Jeffrey Fairbairn. 6) To Compel Further Answers to Form Interrogatories. Moving Party Defendant Jeffrey Fairbairn. Responding Party Plaintiff Tobey Arietta. Ruling Motion 1: Plaintiff's motion ...

Excerpt: ...locate and establish the chain of custody shall be reviewed and may be reallocated upon the filing of a motion seeking such relief. “ ‘Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation. [Citations.] Such conduct is condemned because it 'can destroy fairness and justice, for it increases the risk of an erroneous decision on th...

Excerpt: ...s the California Horse Racing Board (“CHRB”). While the trial court reviews administrative actions to determine whether an agency's decision “was arbitrary, capricious, or entirely lacking in evidentiary support . . . [,] [t]he trial court reviews legal questions, including questions of statutory construction, de novo.” (City of Scotts Valley v. County of Santa Cruz (2011) 200 Cal.App.4th 97, 23-24.) In assessing the weight due to an agen...

Excerpt: ...rement concerned the adverse party in this litigation and the owner of record the property. This requirement did not apply to Stern Investments, because it did not own the properties when the two Lis Pendens were recorded. “Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content s...

Excerpt: ...s against St. Joseph Heritage Health and its employees. (RJN 1). “'Release, indemnity and similar exculpatory provisions are binding on the signatories and enforceable so long as they are ... 'clear, explicit and comprehensible in each [of their] essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.'” Skrbina v. Fleming Companies (1996) 45 Cal....

Excerpt: ...ld three years ago that Brian Schear was not the alter ego of Schear, Inc., the subsequent events establish that the Court should grant this motion. Alter Ego: Code of Civil Procedure “Section 187 grants every court the power and authority to carry its jurisdiction into effect. [Citation.] This includes the authority to amend a judgment to add an alter ego of an original judgment debtor, and thereby make the additional judgment debtor liable on...

Excerpt: ...arch 21, 2015 through the date of production. Plaintiff/Cross-Defendant Kevin Garcia (“Garcia”) subpoena seeks documents protected by Defendant/Cross-Complainant Martin Arteaga's (“Arteaga”) right to privacy. (Fortunato v. Superior Ct. (2003) 114 Cal.App.4th 475, 480-81 [financial records are protected by individual's right to privacy]; Valley Bank of Nev. v. Superior Ct. (1975) 15 Cal.3d 652, 656 [individual has right to privacy in his o...

Excerpt: ...nd/or Summary Adjudication is DENIED. Motion No. 1: Defendant C.G. Landscape, Inc.: An answer to the complaint is required to make “A statement of any new matter constituting a defense.” (CCP 431.30 (b) (2)). “'[A]ny issue on which defendant bears the burden of proof at trial is ‘new matter' and must be specially pleaded in the answer.'” Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 756. On 4/30/18, Defend...

Excerpt: ... Third Cause of Action (Fraud). The demurrer to the third cause of action for fraud is sustained with leave to amend. Active concealment or suppression of facts is the equivalent of actual fraud. (Civ. Code, § 1572(3).) The elements of a cause of action for fraudulent concealment are: (i) concealment or suppression of a material fact; (ii) by a defendant with a duty to disclose the fact to the plaintiff; (iii) defendant's intent to defraud plain...

Excerpt: ...ney Parks, Experiences and Products, Inc., are overruled. Moving Defendants demur to the entire complaint based on the contention “there are no factual allegations” against The Walt Disney Company and Disney Parks, Experiences and Products, Inc. The Complaint identifies Defendant The Walt Disney Company as “Doe 1.” The Complaint alleges that all Doe defendants participated in all the events alleged in the Complaint. (Compl. ¶ 38.) Defend...

Excerpt: ... two agreements. The first was the twelve page Employment Agreement (Exhibit A). The second was the three page Mutual Agreement to Arbitrate Claims (Exhibit B). These do Civ. Code, § 1642 provides that “Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.” When two agreements are entered at roughly the same time, they treated as one transaction...

Excerpt: ...ntry of the judgment. Cal. Civ. Proc. Code § 473(b). This limit is jurisdictional. (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928 (“This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.”).) Here, Defendant did not file the motion to vacate within 6 months of the March 27, 2019 entry of default. Instead, Defendant filed the motion on Oc...

Excerpt: ...easonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see also Fasuyi, 167 Cal.App.4th at 694.) Finally, any application for discretionary relied under section 473(b) must be “accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b).) H...

Excerpt: ... claim. Plaintiff's request for judicial notice is granted. Civil Code section 3294 provides that punitive damages may be awarded in an action for breach 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. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscio...

Excerpt: ...e, oppression, or fraud. (Civ. Code, § 3294(a).) In addition, to plead a claim to recover punitive damages against an employer based on the acts of an employee, that plaintiff must plead facts showing the employer “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was pers...

Excerpt: ...not contest the reasonableness of defense counsel's hourly rate and the court finds this rate to be reasonable. Under section 425.16, subdivision (c), “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” “ ‘A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.' [Citation.]...

Excerpt: ...nce under Welf. & Inst. Code, § 15657.2: Failure to assist in personal hygiene. Seventh Cause of Action: Professional Negligence under Welf. & Inst. Code, § 15657.2: Failure to assist in personal hygiene. Tenth Cause of Action: Professional Negligence under Welf. & Inst. Code, § 15657.2: Disobeying Doctors Orders. Twelfth Cause of Action: Professional Negligence for Failure to refer Specialist for glaucoma, cataracts, arthritis. Thirteenth Cau...

Excerpt: ... records exception to the hearsay rule. A plaintiff moving for summary judgment or summary adjudication bears the burden of persuasion that each element of the cause of action at issue has been proved, and as a result, there is no defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) If the plaintiff fails to meet its burden to make an initial showing, it is unnecessary for the court to examine the defen...

Excerpt: ...these causes of action with particularity. Significantly, Plaintiff did not allege the dates that the City allegedly retaliated against him. “Because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liabi...

Excerpt: ...t allege that: (i) defendants had a legal duty to use due care; (ii) a breach of such legal duty; and (iii) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) A mortgage broker acts as the borrower's agent and owes a duty to the principal to exercise reasonable skill and care in the exercise of agency duties for the principal's benefit and bests interests. (Thomson v. Cany...

Excerpt: ... complete defense to the cause of action. (Code Civ. Proc., § 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff's complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–82 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18–19 [respondent only required to defeat allegatio...

Excerpt: ...lose a conscious disregard of the probable dangerous consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892; see Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 86 & 90 (Claim for punitive sufficiently pled by alleging individual was intoxicated, zigzagging in and out of traffic at a speed of more than 65 miles per hour in a 35 mile per hour zone in an area densely populated with pedestrians.); Peterson v. Superior Court (1982) 31...

Excerpt: ...atement five (5) court days prior to the hearing. Public Policy: “The law favors judgments based on the merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief . . . .” Lasalle v. Vogel(2019) 36 Cal.App.5th 127, 134. (Emphasis original). C.C.P. § 473 (b) provides that “The court may, upon any terms as may be just, relieve a party or his or her legal represen...