Excerpt: ...016) 1 Cal.5th 376, 395- 396 [motion may strike individual “claims for relief”]; see also Mot. at p. 4:15-19 [targeting specified claims].) “An unlawful detainer action and service of notices legally required to file an unlawful detainer action are protected activity within the meaning of section 425.16.” (Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 45.) The complaint expressly seeks r...

Excerpt: ...s conference re binding arbitration for 10/4/21 at 10 am in Dept. C15. Defendants have met their burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; see also Valencia Decl. ¶¶ 1-8; Def. Ex. 4 ¶ 24.) Plaintiff has not shown grounds to deny enforcement of the arbitration agreement. Plaintiff's...

Excerpt: ... (See Carlton v. Dr. Pepper Snapple Group Inc. (2014) 228 Cal.App.4th 1200, 1211; accord Weil & Brown, Cal. Practice Guide: Civil. Proc. Before Trial (The Rutter Group 2020) ¶¶ 7:140-7:143.) But it shouldn't be surprising if the court comes to the same result. These causes of action remain predicated in part on defendant Grubb's conduct during his employment with plaintiff. (See SAC ¶¶ 11, 13, 17.) Section 16600 “does not affect limitations...

Excerpt: ...r memorandum of points and authorities and request for judicial notice on 12/16/20. Second, the notice of motion mentions only the 2nd cause of action, but the memorandum of points and authorities addresses the 2nd and 3rd causes of action. The court will address the merits of the motion because the District does not object. But all moving papers must accompany the notice of motion. (See Code Civ. Proc., § 1010; Weinstein v. Blumberg (2018) 25 C...

Excerpt: ...th 274; Soni v. Wellmike Enterprise Co. Ltd. (2014) 224 Cal.App.4th 1477, 1490; Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373; Witte v. Kaufman (2006) 141 Cal.App.4th 1201.) This has not drawn condemnation. Defendants have not shown the advocate-witness rule was intended to deny the right of self-representation to law firms and lawyers. To the contrary, the rule expressly allows a lawyer to “act as advocate in a trial in which ...

Excerpt: ...most of the issues raised herein, such as plaintiffs' standing, the business judgment rule, and the sufficiency of the allegations against defendant Whitford. (See, e.g., 1/27/20 order.) Nothing has materially changed. Defendants have not shown any demurrable defect in the 3rd amended complaint except as stated below. (See Code Civ. Proc., § 472d.) Plaintiffs have had 4 opportunities to state their causes of action. In their opposition they do n...

Excerpt: ...cause of action. It adequately alleges the factual basis for the underlying claim, compliance with Chinese law, and the existence of a money judgment against defendants that is final, conclusive, and enforceable under Chinese law. (See Code Civ. Proc., § 1715, subd. (a); see also Compl. ¶¶ 19-34.) While defendants challenge the sufficiency of the alleged Chinese judgment, the plaintiff's factual allegations and its alleged construction of the ...

Excerpt: ...otect, inter alia, direct petitioning of the government . . . .'” (Equilon Enterprises v. Consumer Cause (2002) 29 Cal.4th 53, 61.) “[C]ommunications to an official agency intended to induce the agency to initiate action are part of an ‘official proceeding,' protected by . . . the anti-SLAPP statute.” (Lee v. Fink (2005) 135 Cal.App.4th 89, 96.) Plaintiff has [not] met its shifted burden to “provide the court with sufficient evidence to...

Excerpt: ...al court may sill vacate a default on equitable grounds . . . .” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) Defendant has not shown equity requires relief. Defendant has not shown any extrinsic mistake or fraud prevented him from participating in the case. (See Rappleyea, supra, 8 Cal.4th at p. 983; Sporn v. Home Depot U.S.A., Inc. (2005) 126 CalApp.4th 1294, 1300-1301.) To the contrary, defendant filed an answer – which the court str...

Excerpt: ...[they] communicated . . . were false.” (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331; see SAC 31-32 [alleging other defendants provided false information to these defendants].) While these defendants' knowledge is alleged on “information and belief,” the SAC must explain the basis for plaintiff's belief. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5; see also SAC ¶ 48.) Alleging that plain...

Excerpt: ... (2011) 51 Cal.4th 811, 821 [elements]; see also Compl. ¶¶ 9-14 & Attach. 1.) It also adequately alleges Yarandi's alter ego and agency liability. (See Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 236; Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 886; see also Compl. ¶¶ 6-7.) 2nd cause of action, WSRCR Act. The complaint states facts sufficient to constitute this cause of action. It ad...

Excerpt: ...ee also Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 173 [MSJ's failure to address material allegation is a “fatal flaw”]; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 942 [MSJ must “refute tenable pleaded theories”]; Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538-539 [alter ego factors].) Issue #2. Cross-Defendants fail to show the breach of contract claim lacks merit, cannot be established, or is barred by a...

Excerpt: ...show the allegedly defamatory cartoon was made “in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e)(4); accord FilmOn.com, supra, 7 Cal.5th at p. 149.) The law firm's management and its partnership and employment disputes do not fall under the public eye, affect people beyond the participants, or arise in any ongoing public controversy. (Id. at pp. 145-146.) “To extrapolate a series of p...

Excerpt: ...failed to show the cross-complaint is exempt from the anti-SLAPP statute. (See Code Civ. Proc., § 425.17; see also People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 498 [exemption is a threshold issue]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 26 [burden].) Cross-Complainants seek “relief greater than or different from the relief sought for the general public or a class of which plaintiff is a mem...

Excerpt: ...ond the claim's label.” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1595.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) This cause of action states facts sufficient to constitute some cause of action – n...

Excerpt: ...he provisions of the Act”; a party “cannot rely upon the provisions of section 473.” (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274–275.) In any event, it's not clear what's happening with the Glenwood PMK deposition or that defendant still seeks to assert any specific objection. Motion for Protective Order Defendants Brookdale Senior Living Inc., Brookdale Senior Living Communities Inc., BLC Glenwood-Gardens SNF -L...

Excerpt: ...uction Nos. 95, 97, 113, and 115. Defendant may limit its responses and production to communications between defendant and the carrier relating to coverage for plaintiff's malpractice, acts, or omissions under any policy issued on or after 1/1/18; and 3. Request for production No. 124 in its entirety. Defendant may assert attorney-client privilege or work product protection for documents dated on or after 1/1/19 and withhold them from production,...

Excerpt: ...mplete defense. (See Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) Defendant contends he could not have caused plaintiff's harm because others called the police. (See Mot. at 5-6, 12-14.) When there are concurrent independent causes, causation is governed by the substantial factor test. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1235, 1240.) “The substantial factor standard is a rela...

Excerpt: ...2016) 2 Cal.App.5th 384, 391 [elements]; see also Compl. ¶¶ 14, 21, 30-31 & Exs. A, E.) Defendants cannot support their demurrer with issues outside the face of the complaint. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318). In any event, defendants' curing a default by bringing the loan current would not preclude plaintiff from alleging damages under the acceleration clause, which he adequately does. 2nd cause of action against Powernet, breac...

Excerpt: ... subpoena ROA #478, Plaintiffs' motion to quash subpoena ROA #483, Employees' motion re RPDs ROA #491, Plaintiffs' motion for protective order ROA #564, Directors' motion re Warwick RPDs ROA #569, Directors' motion re Ibbetson RPDs ROA #512, Motion to Stay Directors' motion to stay is denied. The trial court retains jurisdiction to determine anti-SLAPP attorney fees while the anti- SLAPP appeal is pending. (See Varian Medical Systems, Inc. v. Del...

Excerpt: ...e because this claim nearly encompasses the entire lawsuit. The Charter Schools identify 9 disputes (or so) regarding the District's responsibility to ensure the Charter Schools “contribute[] an equitable share of its . . . block grant funding to support districtwide special education instruction and services.” (Ed. Code, § 47646, subd. (c).) The disputes circle around whether (1) the District may still invoice the Charter Schools now for eq...

Excerpt: ...5/20 minute order.) Plaintiff Souzan Baaj's request for a preliminary injunction is denied. Plaintiff has not shown an injunction is warranted after weighing both “the likelihood [she] ultimately will prevail on the merits and the relative interim harm to the parties from the issuance or nonissuance of the injunction.'” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449.) Most notably, plaintiff failed to show a sufficiently probabi...

Excerpt: ...nded complaint states facts sufficient to constitute this cause of action. (See CACI No. 2430 [elements]; see also SAC ¶¶ 5, 6, 12-34.) 2nd cause of action, FEHA violation. The second amended complaint states facts sufficient to constitute this cause of action. (See Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44 [elements]; see also SAC ¶¶ 5, 6, 12-34, 29-31, 36-40.) 6th cause of action, declaratory relief. This is functional...

Excerpt: ...) 138 S.Ct. 1612, 1622.) [FAA preserves “‘generally applicable contract defenses,” including unconscionability]; Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4 th 83, 114 [same]; Ramos v. Superior Court of San Francisco County (2018) 28 Cal.App.5th 1042, 1055, 1063 [same].) Plaintiff showed the agreement is procedurally unconscionable as an adhesion contract and condition of employment. (See Armendariz, supra, 24 Cal.4th...

Excerpt: ...alnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 40 [beneficiary may substitute trustee through its agent].) These exhibits trump inconsistent, conclusory allegations to the contrary. (See Holland v. Morse Diesel International (2001) 86 Cal.App.4th 1443, 1447; see also Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) 2nd-3rd causes of action, Civ. Code §§ 2923.5, 2923.55, 2924.17. The complai...

Excerpt: ...ng unit,” and not a “transient” hotel occupant. (See Civ. Code, § 1940, subds. (a), (b).) 2nd cause of action, battery. The complaint fails to state facts sufficient to constitute this cause of action. It fails to allege facts showing defendant's intent to offend. (See Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645.) A demurrer does not admit the truth of “conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 4th...

Excerpt: ...ccord Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) That second path to summary adjudication requires plaintiff to show 2 things: (1) defendant does not possess the evidence, and (2) defendant cannot reasonably obtain it. Plaintiff met the first requirement. It offered defendant Community Care Rehab Center LLC's “factually devoid” discovery responses, showing defendant does not possess evidence needed to support its defenses. (Union Bank ...

Excerpt: ...y receive rent from them. (See Opp. at p. 2 and attached 2/25/20 Santillanes decl. at p. 6:15-24, Exs. 3- 5; Singh decl. ¶¶ 3-6, 7a-7c & Exs. 2, 6; RFJN Exs. 1-3.) Plaintiffs have also shown they need this order to prevent defendant from disposing of the properties or interfering with the assignment. The record shows defendant is unreasonably thwarting collection. Except as otherwise stated above, the court finds the 2/25/20 Santillanes declara...

Excerpt: ...portionate share of liability to plaintiff  the amount paid in settlement – i.e., the amount of costs being waived  its financial condition and policy limits. Even if defendant shown the relevant Tech-Bilt factors, the opposing evidence shows a “costs waiver” settlement would be grossly disproportionate to defendant's potential liability. Defendant owed plaintiff a nondelegable duty to maintain its property in a safe condition. (See S...

Excerpt: ...r as well, as the issues overlap. (See Obregon v Superior Court (1998) 67 Cal.App.4th 424, 433–435). As a preliminary observation, there appears to be much middle ground between the parties' positions. It is certainly conceivable that both the discovery requests and the protective order are overbroad. The parties may well be able to agree to production of a narrower range of financial records governed by a narrower protective order. They should...

Excerpt: ...ured as the result of the operation of the vehicle.” (Hardin v. San Jose City Lines (1953) 41 Cal.2d 432, 437.) Defendant's cited evidence raises the inference of res ipsa loquitur. It shows plaintiff was injured on an OCTA bus when “the driver ‘increased speed and then changed lanes.'” (Def. SSUF #1-2.) Defendant “is obliged to meet the inference by evidence sufficient to offset or balance it.” (Hardin, supra, 41 Cal.2d at p. 437.) �...

Excerpt: ...of great liberality in permitting amendments . . . at any stage of the proceedings, up to and including trial. . . .'” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Defendant's challenges to the FAC's legal sufficiency are better handled at a later stage. (See Atkinson, supra, 109 Cal.App.4th 739, 761; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 6:644.) The court may condition a...

Excerpt: ...d to discuss the appropriate amount of the mandatory bond. (See Code Civ. Proc., § 529, subd. (a).) 15 Almeria. Plaintiff has shown an injunction is warranted after weighing both “the likelihood [he] ultimately will prevail on the merits and the relative interim harm to the parties from the issuance or nonissuance of the injunction.'” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449.) Plaintiff has shown a sufficient probability ...

Excerpt: ...aned money to defendant. Failing to join the other lender creates a substantial risk of exposing defendant to multiple liability. (See Code Civ. Proc., § 389, subd. (a)(2)(ii).) On the other hand, this cause of action is not time-barred on the face of the complaint. (See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) Defendant allegedly breached the promissory note by repudiating the debt and selling the security in 2019....

Excerpt: ...ine the persons protected and the conduct prohibited.” (Evans v. Evans (2008) 162 Cal.App.4th 1157, 1167.) Second, to whatever extent plaintiff seeks a civil harassment restraining order, he is doing so without using the mandatory JCC forms (CH-100, CH-109, etc.). There is no proof of personal service for the paperwork he did use. (See Code Civ. Proc., § 527.6, subd. (i).) Had he used the correct forms, his request would have been routed to De...

Excerpt: ...he parties can fairly litigate these issues even if the employee's medical records are kept highly confidential under the stipulated protective order. (Cf. 2 CCR § 11069(g).) Motions to Compel re Form Interrogatories Plaintiff Jean Weil's motions to compel further responses to form interrogatories are granted as follows. Defendants Weil & Drage APC, Christine Drage, and Jacqueline Pons-Bunney contend they cannot answer the form interrogatories b...

Excerpt: ...1) 25 Cal.4th 826, 854; see also Def. SSUF #9-10, 13-18, & 20-26.) Plaintiff has not met her shifted burden to show a triable issue of material fact. (See Code Civ. Proc., §437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at p. 854.) Contrary to defendant's contention, this issue disposes of only the 6th through 9th causes of action. It does not dispose of the 1st through 5th or 10th causes of action, which also allege defendant knew or s...

Excerpt: ...geous that it exceed[s] all bounds of that usually tolerated in a civilized community.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051, internal quotation marks omitted.) Nor does the FAC allege “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes, supra, 46 Cal.4th at p. 1051 [internal quotation marks omitted]; accord Wong v. Jing (2010)...

Excerpt: ...) 432 U.S. 333; see also 9/9/19 minute order.) The TAC still fails to allege facts showing the third Hunt factor: “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” (Hunt, supra, 432 U.S. at p. 343.) While plaintiff has narrowed its claims and prayer for relief, the TAC still requires hundreds of minitrials to determine to whether defendants violated any particular member's d...

Excerpt: ...ope of the mandatory provision, include . . . a dismissal following the sustaining of a demurrer without leave to amend on the ground the statute of limitations had run . . . .” (Jackson, supra, 32 Cal.App.5th at p. 175.) Nor has plaintiff shown discretionary relief is appropriate. (See Code Civ. Proc., § 473, subd. (b).) “A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such...

Excerpt: ...nti-SLAPP motion was frivolous – that is, totally and completely without merit and brought in bad faith. (See Code Civ. Proc., §§ 128.5, subd. (b)(2), 425.16, subd. (c)(1); see also Moore v. Shaw (2004) 116 Cal.App.4th 182, 199 (Moore); Visher v. City of Malibu (2005) 126 Cal.App.4th 364, 371 [“‘trial court may infer subjective bad faith from the pursuit of a frivolous tactic'”].) For 25 years, case law is clear that anti-SLAPP motions ...

Excerpt: ...l motion to strike is granted against plaintiffs Cheryl Pesci (individually), Patty Johnson, and Marianne Klee. These three plaintiffs shall pay $2340 in reasonable attorney fees to defendants. (See Code Civ. Proc., § 425.16, subd. (c).) The motion is denied against plaintiffs Robert Pesci (through his guardian Cheryl Pesci) and Jim Pesci. Defendants met their initial burden to show that the 1st cause of action for malicious prosecution is based...

Excerpt: ... a deed of trust need not be recorded. (See Haynes v. ENC Mortgage Corp. (2012) 205 Cal.App.4th 329, 336-37). The FAC also fails to allege facts showing plaintiffs have standing to challenge the assignment or that plaintiffs offered to tender the disputed loan proceeds. (See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 43; Mendoza v. JPMorgan Chase Bank, NA (2016) 6 Cal.App.5th 802)). 2nd cause of action, wr...

Excerpt: ...esorts to Godwin's Law: “This was ‘the dog of the Nazis' in World War II. Hitler's dog, ‘Blondie,' was a German Shepherd.” (SAC, Attachment One.) It is not enough to allege that all German shepherds are vicious. (See Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1371–1372 [breed characteristics insufficient]; see also Lundy v. California Realty (1985) 170 Cal.App.3d 813, 822 [“Neither do we believe judicial not...

Excerpt: ...c., § 340.6, subd. (a); Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 292; see also Compl. ¶¶ 3, 6-8, 29-57.) By 11/6/16, according to the face of the complaint and the judicially noticed documents, plaintiff knew the underlying facts (including his damages) and defendant had stopped representing plaintiff. (See Def. RJN, Ex. 1-2; Compl. ¶¶ 35- 36, 46, 55.) Thus, the last day to timely bring these claims was 11/6/17. (See Code Civ. Proc., § ...

Excerpt: ...f did not object. (See 11/5/18 minute order.) Both parties then attended mediation. Plaintiff did not exercise her right to withdraw from mediation. (See Cal. Rules of Court, rule 3.853.) Apparently, both parties thought it was worth their time to mediate. The parties had dueling summary judgment motions pending when they mediated. The court ultimately denied both motions, finding triable issues. (See 5/13/19 order.) Only nine days later, plainti...

Excerpt: ...917 [negligence elements]; FAC at Page 4, ¶ GN-1.) The FAC sufficiently alleges an unreasonable failure to restrain the dog. Whether it also alleges a failure to warn is immaterial. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39 [demurrer overruled when allegations constitute any cause of action].) 2nd Cause of Action, Strict Liability. The court previously granted plaintiff leave to amend the strict liability ca...

Excerpt: ...o. (2002) 29 Cal.4th 189, 199.) The FAC does so here. It alleges the lease required defendant “to maintain the roof and utility and plumbing systems in good order, condition, and repair.” (FAC ¶ 53.) That sufficiently alleges the substance of the relevant terms. Motion to Strike Defendant's motion to strike is denied. The FAC sufficiently supports the punitive damages claim. It alleges an intentional trespass, whereby defendant knew water wa...

Excerpt: ... “ambiguities can be clarified under modern discovery procedures.” (Ibid.) Defendants fail to show the FAC “on its face . . . [is] barred by a statute of limitations.” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007.) “Sometimes, it is difficult for demurrers based on the statute of limitations to succeed because (1) trial and appellate courts treat the demurrer as admitting all material facts properl...

Excerpt: ...ss violation) through allegations like “Secretary Su has directed hearing officers . . . to decide against [plaintiff's members] in all misclassification hearings involving Owner Drivers, no matter the facts or the law.” (SAC ¶ 4; see Hunt v. Washington Apple Advertising Comm'n (1977) 432 U.S. 333.) Even so, the SAC still fails to allege the third Hunt factor: “neither the claim asserted nor the relief requested requires the participation ...