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