Excerpt: .... For the following reasons, Union Pacific's motion is denied. On November 22, 2019 a wheel and tire on a chassis separated from the chassis and collided with a vehicle driven by decedent Thu Ahn Nguyen. Union Pacific owned the chassis, which was attached to a tractor-trailer owned by Mario Miranda. George Echeveste was driving the chassis on behalf of XPO Logistics, LLC. Decedent's survivors and estate filed this action against Union Pacific, XP...

Excerpt: ...ke and/or tax defendants' claimed costs. For the following reasons, defendants' motion for an award of attorneys' fees is granted in part and denied in part, and Bernal's motion to strike and/or tax costs is denied. Bernal argues defendants' attorneys' fees motion and costs memorandum are premature because the court has not entered judgment yet. The court has not entered judgment yet because—due to the convoluted history of this case detailed b...

Excerpt: ...led, and the motions for judgment on the pleadings are denied. As discussed below, based on the parties' agreement, the third cause of action for conversion against Billett and McAuliffe is dismissed without prejudice. 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 ...

Excerpt: ...uth 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 alleged in the complaint unless they may be reasona...

Excerpt: ...n or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” In ruling on a motion under section 425.16, the trial court engages in a two-step process. “First, the defendant must establish that the chal...

Excerpt: ...ppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” 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; see also Smith v. Superior Ct. (1992) 10 Cal.App.4th 1033, 1042 (complaint “devoid of any...

Excerpt: ...Ex. 3. The notice sought testimony on 28 topics and the production of 31 categories of documents. Id. Plaintiffs noticed the deposition for July 9, 2021. Id. On July 2, 2021 Fit Kit served objections to the deposition notice, the matters for examination, and the requests for production. Id. Ex. 4. Fit Kit's objections stated, inter alia, Fit Kit would provide dates for a deposition of Fit Kit's witness(es) “to the extent that they are still at ...

Excerpt: ...imply a suit in equity seeking specific performance of that contract. Little v. Pullman (2013) 219 Cal.App.4th 558, 565. The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Id. In these summary proceedings, the trial court sits as a trier of ...

Excerpt: ...as no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. 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 th...

Excerpt: .... Motion for Attorneys' Fees California Civil Code §1794(d) provides that a prevailing plaintiff in a Song-Beverly case shall be allowed to recover a sum equal to the aggregate amount of costs and expenses, “including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Cal. Civ. Code § 1794(d). The plain word...

Excerpt: ...ly 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 complaint, a court will not consider facts that have...

Excerpt: .... 2 on February 16, 2021. Plaintiff filed two other Doe amendments the same day, naming Los Angeles SMSA Limited Partnership as Doe No. 3 and Bechtel Corporation as Doe No. 4. The court (Judge Bauer) overruled the American Tower defendants' objections to plaintiff's Doe amendments in a May 20, 2021 order. The court has nevertheless read and considered the American Tower defendants' objections in connection with its consideration of the instant mo...

Excerpt: ...n that gives rise to this petition on September 9, 2020. Bettenhausen Decl. Ex. B; see also Tishjian Decl. ¶ 5 (“On September 28, 2020, I sent an e-mail to counsel for [Cove] indicating that [Shore] would accept the arbitration of the limited non-monetary issues presented in the demand [for arbitration].”); Bettenhausen Decl. Ex. C. In October 2020 Shore sued Cove in superior court (Case No. 2020-01166079) alleging one cause of action for de...

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

Excerpt: ...ctual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. 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 inferre...

Excerpt: ...ended cross- complaint. For the following reasons, (1) Scricca's demurrer to the second cause of action is overruled; (2) Elias's and Eldessouky's demurrers to the second cause of action are sustained; (3) Elias's and Eldessouky's demurrers to the third cause of action are sustained; and (4) Eldessouky's demurrer to the fourth cause of action is sustained. In ruling on a demurrer, a court must accept as true all allegations of fact contained in t...

Excerpt: ...Opposition. Burden of Proof: Code Civ. Proc., § 437c (p) (2) provides that “A defendant or cross- defendant has met 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 t...

Excerpt: ...f Directors (the “Director Defendants”) and the CCCA as nominal defendant. Plaintiff alleges the Director Defendants violated the CCCA's CC&Rs when they approved a revised fine and fee schedule for CCCA members who fail to timely construct custom homes in the Crystal Cove community. Specifically, the Director Defendants adopted a fine policy that potentially imposes a $10,000 per month fine for custom lot owners who fail to construct a reside...

Excerpt: .../05/19. The court's detailed order explains the reasons for that ruling. See id. Despite that order, Plaintiff has re-alleged the first, second, and third causes of action in his Second Amended Complaint. No applicable legal authority permits Plaintiff to do so on this record. Defendant's motion to strike the first, second, and third causes of action in Plaintiff's Second Amended Complaint is granted. Cal. Civ. Proc. Code § 436 (court may strike...

Excerpt: ... (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of th...

Excerpt: ...nk 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.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the suffi...

Excerpt: ...rtition and sale of a residential property known as 108 27 th Street, Newport Beach, California (the Newport Property). Complaint ¶ 5. On September 21, 2020, Rod filed a cross-complaint against Randy alleging fraud, negligent misrepresentation, breach of fiduciary duty, and unjust enrichment. Rod also seeks an accounting. Rod alleges that Randy mismanaged and engaged in malfeasance regarding the Newport Property and a limited liability company (...

Excerpt: ...mary adjudication of Plaintiff's claim for intentional infliction of emotional distress is granted. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter...

Excerpt: ...ntiff's sale of Defendant's products. Plaintiff alleges that these complaints caused Amazon to suspend Plaintiff's Amazon seller's account, but that Defendant ultimately asked Amazon to withdraw Defendant's complaints against Plaintiff because Plaintiff and Defendant had resolved their dispute. Plaintiff alleges that its Amazon seller's account was suspended from June 13, 2019 to July 4, 2019. Plaintiff alleges that Defendant's complaints against...

Excerpt: ...iciency 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.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleg...