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: ...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: ...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: ...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: ...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: ...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: ...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...