Excerpt: ...�[a] motion to remove a mechanic's lien is recognized as a device that allows the property owner to obtain speedy relief from an unjustified lien or a lien of an unjustified amount without waiting for trial on the action to foreclose the lien.” (Id. at 318). Although technically different than a motion to expunge lis pendens, as explained by the Howard court, the applicable standards are the same: “The inquiry upon such motion is likewise lim...

Excerpt: ...n person or by telephone”].) As the meet and confer declarations by defendants Abhari and Menke appear sufficient, the court exercises its discretion to rule on the merits of all the motions. The demurrers by defendants Mahdavi, Abhari, Rahgoshay, and Menke, to plaintiff's first amended complaint are sustained, with leave to amend, based on failure to state facts sufficient to constitute a cause of action and uncertainty. (CCP 430.10(e), (f).) ...

Excerpt: ...be able to use the dispute resolution results to rebut that presumption. As for the assignment issue, plaintiff was the sole person listed on the purchase agreement and the sole borrower on the loan. As such he was the sole “buyer” under the Song Beverly Act. Had plaintiff defaulted on his loan payments, he alone would have been liable to the lender for any money owed and the vehicle, as collateral on the loan, could be repossessed regardless...

Excerpt: ...of the Tech-Bilt factors, and the court cannot reach a determination without such evidence. The court also finds that for purposes of this motion only, that Proof Positive's evidence as to its proportionate liability to plaintiff is lacking. Arguments that Proof Positive is not a mandated reporter may be precluded by application of the doctrine of estoppel, based upon its written representations to plaintiff's parents that it is a mandated report...

Excerpt: ...2003) 109 Cal.App.4th 739, 761 [where no prejudice is shown to the adverse party, the liberal rule of allowing amendment prevails]; Code Civ. Proc., § 473, subd. (a)(1).) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified: “It is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Atkinson, supra, at p. 761.) ...

Excerpt: ...se allegations, plaintiffs' claim for fraudulent omission is barred by the economic loss rule. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 [plaintiff is required to “demonstrate harm above and beyond a broken contractual promise,” in order to recover tort damages].) Other than the absence of allegations as to damages other than those related to their warranty claims, the court finds that plaintiffs' concealment cla...

Excerpt: ... exercise reasonable care and skill in undertaking to perform legal services for Plaintiffs”), and Para. 16 (“Had Defendants exercised proper care and skill in providing legal services to Plaintiffs, Plaintiffs would not have lost money in their investments”).] The SAC also alleges the existence of an attorney-client relationship. (SAC at Paras. 10, 12, 17.) The SAC also now alleges more facts as to how exactly MPs failed to adequately / pr...

Excerpt: ...the third amended complaint. Likewise, there are no facts pled in the 3 rdAC that would give rise to a claim that these demurring defendants are estopped from claiming that they are not plaintiff's landlord. Plaintiff alleges that he has an oral, month to month sublease with defendant Stein, not with these defendants. (See 3 rdAC ¶ 14). Additionally, both causes of action appear barred by the applicable statutes of limitations. A claim for damag...

Excerpt: ...ach of implied contract “addresses work completed from May 16, 2016 through June 30 2016, which is barred by the statute of limitations found in Code of Civil Procedure § 339(1)” (moving papers at 5:11-14); and that the 2 nd C/A for breach of the implied covenant fails for the same reasons (moving papers at 5:15-16). MP is incorrect. The complaint alleges that plaintiff worked for defendants and that “[u]p until May of 2016, Plaintiff had ...

Excerpt: ...or control the premises where plaintiff was injured. Plaintiffs have not produced sufficient evidence to show defendant, as the parent company of the owner of the premises (GWGG) sufficiently manipulated GWGG's actions to as to impose liability against Moving Party as a parent company of GWGG. To prevail here, plaintiff must show “specific manipulative conduct” by the parent toward the subsidiary that relegates the latter to the status of mer...

Excerpt: ...ce the petitioner has met that burden, the burden shifts to the party opposing arbitration, to produce evidence to show by a preponderance “any fact necessary to the defense." (Id.) The declaration of Sandra M. Putnam purports to support the contention there is a valid arbitration agreement between the parties. However, as pointed out by plaintiff, Ms. Putnam's declaration in support of the moving papers is not admissible. A motion may be suppo...

Excerpt: ...y the objecting corporations. Plaintiff's request for judicial notice is granted. (Ev. 452(h).) The subpoenas seek directly relevant evidence regarding plaintiff's fraudulent transfer claims. The subpoenas seek records which not only belong to the objecting corporations, but also to the named defendants, and thus the records are directly relevant to show the transfer of any assets between defendant Xin Li, the alleged obligor, and the other defen...

Excerpt: ...full body soreness or lethargy of which plaintiffs still complain. The scope of discovery is broad enough to permit defendant an opportunity to explore other causes of plaintiffs' past and remaining conditions and defendant's need for the discovery outweighs any privacy rights held by plaintiffs to the information. Defendant to give notice. ...

Excerpt: ...complaint where it states defendants left hoses, materials, and equipment on the ground “in a manner which could not be seen by plaintiff”], with FAC at pp. 4, 5 [containing no such quoted language].) The filing of an amended complaint moots a motion directed to a prior complaint. (See State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.) Next, even if OCWD had directed the motion to the correct pleading, OCWD's c...

Excerpt: ...anted as to the first cause of action for breach of oral contract. Moving party has met its initial burden of presenting evidence showing that plaintiff cannot establish the essential element of a valid contract. (Moving Party Separate Statement, Summary Adjudication Issue No. 1, Fact Nos. 2, 3, 5, 6, 7, 16-19; CCP 437c(p)(2) [moving party's initial burden]; Civil Code 1625 [“The execution of a contract in writing, whether the law requires it t...

Excerpt: ...o file a proper opposition to these motions. The court is not persuaded that the vaguely referenced Supreme Court and Court of Appeal deadlines impaired plaintiff's ability to timely respond to these motions. Moreover, the boiler-plate objections to these simple and straight forward interrogatories are without merit and demonstrate an unwillingness to participate in the discovery process in good faith. Sanctions are awarded to defendants in the s...

Excerpt: ...nefit a third person appears from the terms of the contract. [Citation.] If the terms of the contract necessarily require the promisor to confer a benefit on a third person, then the contract, and hence the parties thereto, contemplate a benefit to the third person.' “(Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022.) Here, it is undisputed the contract provides Day will defend and hold the District, as well ...

Excerpt: ...declaration evaluated plaintiffs' damages as between $15K and $150K, “consisting of damage due to delay and specifically, increased costs of construction due to any improper delay in approving the application as is alleged to have occurred.” (Cogger Decl., Para. 2.) MP attorney's original declaration also averred that plaintiffs would be entitled to attorney fees of $250K to $350K if they prevail. (Id. at Para. 3; see also CC 5975(c).) MP att...

Excerpt: ...asis that the causes of action both appear to be barred by application of Bus. & Prof. Code § 166000. The exception in Bus. & Prof. Code 16601 is not applicable based upon the facts pled. The statutory exemption to Section 16600 includes the following factual scenarios: (i) A person selling the goodwill of a business. This is not applicable to Mr. Garrett because the seller of the client accounts was Leavitt, not Mr. Garrett; (ii) Any owner of a...

Excerpt: ...rth Cause of Action are pled in paragraphs 13-17 and 44-50 of the 3 rdAXC. A review of these allegations reveals either that they are not alleged with the level of specificity required to allege fraud against a corporation, or are not specific promises to take some action or refrain from taking action in the future. The sole representations by Cross-Defendant that are alleged with the required level of specificity are those contained in the press...

Excerpt: .... As the District has prevailed on the issue of duty to defend, the court cannot grant adjudication in favor of PJHM on these claims. The third cause of action for express contractual indemnity does not seek a declaration regarding PJHM's duty to defend. However, there are triable issues of fact with regard to whether the District waived its right to sue PJHM and as to whether PJHM has a duty to indemnify the District. With regard to the issue of...

Excerpt: ... to defendant's contentions, plaintiffs adequately allege defendant repeatedly promised plaintiffs that she would rectify the damage caused by the water leakage and promised to pay for and send proper contractors, and that defendant repeatedly failed to do so. (See Complaint ¶¶ 10-32, 59-61.) Plaintiffs also adequately allege that defendant made these promises without the intent to perform. (See ibid.) The mere fact that defendant may have sent...

Excerpt: ...gence): The Sanchez and Benavides decisions do not stand for the broad proposition asserted by defendant that insurers cannot be sued for negligence related to improper claim handling. Sanchez held that an adjuster hired by an insurer owes no duty of care to the insured. Benavidesheld that plaintiff could not recover for negligent claims handling because there was no coverage under the terms of the policy. Further, the element of duty is adequate...

Excerpt: ...v. Superior Court (2006) 139 Cal.App.4th 528, 539, FN 7.) Regarding the AT&T subpoena, the subpoena is not limited to calls/texts to or from plaintiff, which could be relevant to her harassment and wage/hour claims. Responding party also contends that she has the names and phone numbers of at least 30 escorts whom she allegedly personally drove and delivered to moving party's home (Opp at 5:4-7; Guevara Decl., Para. 19); however, the subpoena is ...

Excerpt: ...eal Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal.App.4th 508, 513.) A court may not, however, award costs in the judicial proceeding to confirm an arbitration award that should have been sought and awarded, if at all, in the arbitration. “ ‘Absent an express and unambiguous limitation in the contract or the submission to arbitration, an arbitrator has the authority to find the facts, interpret the contract, and a...

Excerpt: ...etween the parties. The evidence shows UCMI owes the District a duty to defend as a matter of law. The duty to defend is not contingent upon a showing of negligence on the part of UCMI. Items 2 through 4 do not seek to establish a duty as a matter of law, but rather ask the court to make certain findings of fact. Unless the items completely dispose of a cause of action, that cannot be done. There is no statutory basis for an order summarily adjud...

Excerpt: ...nted such a request. Thus, the court lacks subject matter jurisdiction to consider this motion. (See Sayta v. Chu (2017) 17 Cal.App.5th 960, 966- 968; see also APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 180-182 [court lacks jurisdiction to consider a motion for reconsideration after dismissal]; ROA Nos. 35-37, 108-110.) Even if the court had jurisdiction, the motion would be denied. Plaintiff previously brought a motion for entry ...

Excerpt: ...'s evidentiary objections to defense counsel's billing records, among other things. As plaintiff has not had an opportunity to respond to attorney Hatch's supplemental declaration or additional exhibits, the hearing is continued for this purpose. Second, the hearing is continued for both parties to provide further briefing. Moving defendants cite Sections 6.01(a) and 6.01(b), Section 7.20, and Section 5.01(b)(2), of the alleged Asset Purchase Agr...

Excerpt: ..., hearsay. 2. Sustained, lack of foundation, hearsay. 3. Overruled. 4-5 Sustained, hearsay Declaration of Steve Rader. 1. Sustained as to “…after the homebuilder's counsel…” through end, hearsay, overrule as to balance. 2. Sustained, lack of foundation, improper expert opinion. 3. Sustained, lack of foundation, hearsay. 4-9 Sustained, Evid. Code § 1520. 10. Sustained, lack of foundation, hearsay. 11-12 Overruled. 13-18 Sustained, hearsay...

Excerpt: ...ton. Day argues the ruling determines Day was not negligent in its work with regard to the project. Day also contends that because it is not liable to plaintiff, it is not liable to District. Day is incorrect with regard to both points. Under the “completed and accepted” doctrine, once a contractor or subcontractor has completed work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condit...

Excerpt: ... for production No. 19 as follows (where underlined) to limit it in scope to vehicles of the same year, make, and model as the subject vehicle: All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning customer complaints, claims, reported failures, and warranty claims related to POWERTRAIN DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE, including but not limited to...

Excerpt: ...he time of the alleged sexual abuse, RCOC knew, had reason to know, or was otherwise on notice of defendant Jonathan Ryan McKay's (McKay) unlawful sexual conduct, and failed to take reasonable steps to avoid acts of further unlawful sexual conduct by McKay. (See FAC ¶¶ 39, 41-44, 47, 76, 77, 81.) RCOC has not properly addressed these allegations. RCOC has presented no evidence showing that it did not know of and was not on notice of the alleged...

Excerpt: ... fall under the arbitration provision, specifically subdivisions (C), (F), and (H). Plaintiff also contends that she would not have incurred arbitration fees absent defendants' alleged fraud (TAC at Paras. 25, 27), which would fall under subdivision (H) of the arbitration provision above. Thus, the arbitration provision of the HBLW applies to plaintiff's claims in this action Plaintiff does not dispute that she entered the HBLW, or that it is val...

Excerpt: ...under the contract between the parties. Items 2 through 4 do not seek to establish a duty as a matter of law, but rather ask the court to make certain findings of fact. Unless the items completely dispose of a cause of action, that cannot be done. There is no statutory basis for an order summarily adjudicating a party breached a duty. Paramount Petroleum Corp. v. Superior Court (2014) 227 CA4th 226, 244. Even if items 2 through 4 could be summari...

Excerpt: ...ell as the conflicting evidence at trial, do not show that the jury's verdict was contrary to any instructions, or otherwise against law. (CCP 657(6); Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal.App.3d 948, 958.) Third, the court is not persuaded that use of a general verdict, in light of the parties' inability to agree on a special verdict form, or that any instructions given or not given, were error. (CCP 657(1), (7).)...

Excerpt: ...ers, there are no facts pled tending to show that a corporation owes a fiduciary duty to shareholders such as plaintiffs. In this case, the damages suffered by the individual plaintiffs by the sale of their shares at an artificially deflated value, is not incidental to the general damage to the overall value of the shares in Posh Shop, Inc. because only the plaintiffs sold their shares. Because the plaintiffs' claims against the company and Ms. N...

Excerpt: ...8; San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) 2. Defendant Sham's motion to strike portions of plaintiff's first amended complaint (punitive damages and attorney fees.) Motion granted in part and denied in part. The motion is granted as to the prayer for attorney fees (Page 17, Line 6) as to this moving party only. The remainder of the motion to strike is denied. Based on the ruling on the demurrer, the Firs...

Excerpt: ...14) 227 Cal.App.4th 107, 127 [elements of negligent misrepresentation]; Cadlo v. Owens- Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 [“Each element in a cause of action for ... negligent misrepresentation must be factually and specifically alleged.”].) Fourth cause of action for constructive fraud – OVERRULED. The first amended complaint states sufficient facts in support of this claim. (See Civ. Code, § 1573; Assilzadeh v. California Fe...

Excerpt: ... San Mateo action is irrelevant to the core issue, the avoidance of inconsistent rulings. If plaintiffs wish to participate in discovery in the San Mateo action they could petition to intervene in that action. The court agrees with moving party that the longer the San Mateo action takes to get to trial, the greater the danger of witnesses losing recollection and documents being lost or destroyed. As before, this court is willing to permit limited...

Excerpt: ...udication against 3 separate cross-complainants into one motion, the court has decided, for expediency's sake, to forgive those defects and get to the heart of the matter. CFO Door has established that its scope of work did not include removal of the door stop over which plaintiff tripped. As a matter of law, the Subcontract between CFO Door and Day Construction expressly limits any duty that CFO Door may have to indemnify to only those claims ar...

Excerpt: ...f the flooring were altered to ensure patrons' safety, there are still two areas of flooring that remain unaltered and are in the same condition as the portion of the floor where Ms. Botsford fell. Plaintiffs have not offered any explanation as to why the testing could not be performed on those unaltered portions of the flooring. Moving Party to give notice. ...

Excerpt: ...nd for relief under Code of Civil Procedure section 663. (See Code Civ. Proc., § 663; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 738; Glen Hill Farm, LLC v. California Horse Racing Bd. (2010) 189 Cal.App.4th 1296, 1302; see also Garibotti v. Hinkle(2015) 243 Cal.App.4th 470, 477.) Error Nos. 2 and 5. The “uncontroverted” facts do not establish that FCI was denied a fundamentally fair hearing. The evidence before the court shows FCI h...

Excerpt: ...” Plaintiff claims he would be unduly prejudiced should the court order the case to arbitration as he has incurred over $77,000 in attorney fees to date. However, that fact alone is insufficient to find prejudice where the party opposing arbitration shows only that it incurred court costs and legal expenses. Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 CA4th 436, 451- 452. Although the cost sharing provision implied in the arbitration ag...

Excerpt: ...ction for intentional infliction of emotional distress: This cause of action fails as plaintiff has not alleged sufficient facts showing intentionally outrageous conduct on the part of these moving party defendants. Further, plaintiff has not alleged sufficient facts showing he suffered severe emotional distress. Fourth cause of action for fraudulent concealment: This cause of action fails as the allegations are not alleged with the required spec...

Excerpt: ...o whether defendant Foulks is entitled to invoke the imminent peril doctrine as there are triable issues of fact as to whether or not Mr. Foulks contributed to the emergency situation. Specifically, there are triable issues of fact as to defendants' UMF numbers 6, 8, 12, 13, 14, 15, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and plaintiff Munoz's additional material facts 37 through 69. Defendant's objections to the Gaynor declaration are ove...

Excerpt: ...rting the elements of knowledge of falsity or intent to defraud. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73 [elements of fraud]; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [fraud must be specifically pled].) Defendant's knowledge of falsity and intent to defraud are alleged as conclusions only (Complaint at Paras. 16, 20), without any supporting facts. However, the remaining elements of fraud are sufficiently pled. The remaind...

Excerpt: ...resulting damage with the level of specificity required to plead a cause of action sounding in deceit. (See Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 557). The cause of action also fails to adequately allege a claim for concealment. The demurrer to the second cause of action for negligent misrepresentation is sustained with leave to amend, on the grounds that the FAC fails to allege facts as to the elements of defendants' fals...

Excerpt: ...e of the power of sale contained in a deed of trust”].) “Because of the exhaustive nature of this scheme, California appellate courts have refused to read any additional requirements into the non-judicial foreclosure statute.” (See Lane v. Vitek Real Estate Indus. Group(E.D.Cal.2010) 713 F.Supp.2d 1092, 1098; accord, Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154–57). Thus federal substantive law and procedure are...

Excerpt: ...provided by Section 1013 if service is by mail [5 days if the place of address is within the State of California, 10 days if it is outside of California but within the United States, and 20 days if it is outside the United States]." Here, the subpoenas were issued 12-13- 18. The required Notice to Consumer was served personally on plaintiff the following day, 12-14-18. Plaintiff was not served at least 5 days prior to service on the custodian of ...

Excerpt: ...r writ of attachment against defendant Christina Nguyen. Application denied. Defendant's evidence submitted in opposition to the application reveals that there was no consideration for the execution of the guaranty of payment by defendant Christina Nguyen. Thus plaintiff failed to show a probability of success on his contract claim against defendant Christina Nguyen. (See Civ. Code § 1689, subd. (b)(4)). Additionally, the motion is denied on the...