Excerpt: ...as appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. (Emergency Rule 12; C.C.P. § 1010.6(e).) Defendants have shown that they made such a request on 7/28/20. (Baghdassarian Decl., ¶ 6, Ex. F.) Yet Plaintiff's counsel admits that he has refused to electron...

Excerpt: ...LC (“MIP”) on 4/30/21 as to the Third Amended Cross-Complaint (the “TAXC”) filed on 2/24/21by Cross-Complainants Leila, individually and derivatively on behalf of K&C, and Wagih; and (3) The Motion to Strike filed by Cross-Defendants Karame, MMI and MIP on 10/16/20, as to the TAXC. I. The Demurrer to the TAC The Chayas' Demurrer is OVERRULED. For the First Cause of Action (“COA”), the TAC now specifically alleges that Karame and MMI o...

Excerpt: ... 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591. “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. Here, the SAC's allegations are sufficient to plead that Plaintiff's termination was substantially m...

Excerpt: ... adjudication on its Fraud Cause of Action. But Sellers' Opposition reflects disputed issues of material fact with regard to the alleged misrepresentation, as Sellers assert that they believed that the statements made in their Seller Property Questionnaire were true when they made them. (UF 3.) Sellers also dispute Plaintiff's claim of justifiable reliance, as Plaintiff had received materials in a Preliminary Title Report which revealed the lien ...

Excerpt: ...irst, plaintiff has adequately complied with the procedural requirements for the motion under CRC 3.1324. Second, although the court can consider whether the 17200 claim is timely under the statute of limitations (see below), the statute for 17200 claims is four years (B&P section 17208) and it is not obvious to the court from the terms of the FAC that this statute has expired. Thus, the court opts to allow the defendants to test the 17200 claim'...

Excerpt: ...rovider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that...

Excerpt: ...d to mediation and binding arbitration with Plaintiffs pursuant to the Residential Purchase Agreement and Joint Escrow Instructions (“PSA Agreement”). (Complaint, Ex. A, at ¶22) There is no dispute that the mediation and arbitration provision in the PSA Agreement covers Plaintiffs' claims and was signed by Plaintiffs and Defendant. (Id.) Thus, the burden shifts to Plaintiffs to demonstrate the arbitration agreement is not enforceable. (Buckh...

Excerpt: ...ants' evidence, Plaintiff concedes having signed the arbitration agreement and, in fact, authenticates a copy of the agreement himself. (¶21-¶22 of Dawson Declaration and Exhibit A thereto). Attached as Exhibit A to the Dawson Declaration is a “Dispute Resolution Agreement” wherein Plaintiff and Defendant Fletcher Jones Motor Cars, Inc. agreed “to utilize binding individual arbitration to resolve all disputes that might arise out of or be...

Excerpt: ...alifornia law – instead it has claimed only that “in the interests of judicial economy and to focus and streamline this matter” it “will not seek to enforce the restrictive covenants” at issue. (Chang Decl., Ex. 2.) That concession does not render the Motion moot. Nor does the evidence reflect that the Illinois action has been dismissed with prejudice, or that Affinitiv has stipulated that the provisions at issue are invalid under Calif...

Excerpt: ... A judgment in that action will not affect the present lawsuit. Thus, C.C.P. § 430.10(c) is inapplicable. In addition, Defendant failed to show that there is a defect or misjoinder of parties such that C.C.P. § 430.10(d) would apply. There are no allegations that a necessary party is missing or that plaintiff or defendant are improperly joined. Thus, C.C.P. § 430.10(d) is inapplicable. There is also no evidence that Plaintiff has engaged in an...

Excerpt: ...re granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695, internal citations and quotation marks omitted.) Also, “[a] demurrer for uncertainty shou...

Excerpt: ...ed as a cross-defendant. (See TACC at 1:8 and p.6 and CRC 2.112.) The moving brief does not cite to any recognized statutory basis for demurring to miscellaneous allegations within a pleading. (See Dmrr p. 1, Moving Mem. p. 3-4 and compare CCP 430.10 and CRC 3.1320(a), Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274 (demurrer challenges a cause of action, not “portions”...

Excerpt: ...judgment must “show” that either one or more elements of the “cause of action … cannot be established”, or there is a complete defense to that cause of action. (CCP § 437c(p)(2).) Once defendants meet this burden, the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense. If plaintiff is unable to do so, defendants are entitled to judgment as a matter ...

Excerpt: ...o judicial notice. See, CCP § 437, subd. (a). There is no request for judicial notice. Thus, the facts contained in the Opposition and supporting documents are disregarded to the extent that they go beyond the four corners of the FAC. Punitive Damages Pursuant to Civil Code § 3294(a), a plaintiff may seek punitive damages for “oppression, fraud, or malice.” Civil Code §3294(c) defines “malice” as conduct which is intended to cause inju...

Excerpt: ...�� produced, the record before the court does not establish that this disclosure was, or reasonably should have been, apparent to the attorney for Plaintiffs in the circumstances. This conclusion is based on many factors, including the very nature of the records requested in the subpoena (directly requesting the records produced), that the records were then released by a witness who is an attorney, that some information in the production reasonab...

Excerpt: ...court order to provide discovery.” CCP § 2023.030 subdivisions (a)-(c) authorizes the court to impose monetary, issue, or evidentiary sanctions against anyone engaging in conduct that is a misuse of the discovery process. CCP § 2023.030 subdivision (d) permits the court to impose a terminating sanction. CCP § 2023.030 subdivision (e) provides, “The court may impose a contempt sanction by an order treating the misuse of the discovery proces...

Excerpt: ... 2009, [defendant] promised [plaintiff], via e-mail and a telephone call, she would promptly prepare and deliver trust documents…”) and Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 838 (“Hospital has … clearly pled facts that show how the statements were made (directly to agents of Hospital through telephone calls and written letters faxed to Hospital)…”).) In other respects, the demurrer's a...

Excerpt: ...f. (¶21-¶22 of Dawson Declaration and Exhibit A thereto). Attached as Exhibit A to the Dawson Declaration is a “Dispute Resolution Agreement” wherein Plaintiff and Defendant Fletcher Jones Motor Cars, Inc. agreed “to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to [Plaintiff's] employment by the Dealership.” (See §1 of Exhibit A to the Dawson Declaration). Additionally,...

Excerpt: ... To be sure, fraudulent intent must often be established by circumstantial evidence…. if plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury.” (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31; see Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183.) However, this is generally a matter of proof and evidence...

Excerpt: ...ation of territorial market areas and to provide security and to clarify the relations between manufacturers and their nonemployee sales representatives. Civ. Code § 1738.10. “The Legislature intended [the Act] to safeguard only nonemployee ‘middle-men' sales representatives dealing with wholesale goods.” Reilly v. Inquest Tech., Inc. (2013) 218 Cal. App. 4th 536, 546. The Act “specifically exclude[s] from coverage salespersons and retai...

Excerpt: ...ier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.” (Id. at 574). “The defendant may assert the pending action as a bar either by demurrer, or, where fact issues must be resolved, by answer.” (Id.). “In either case, where the court determines there is another action raising substantially the same issues between the same parties, it is to enter the interlocutory judgm...

Excerpt: ...eas. Those are 1) How much money in lost earnings Plaintiff attributes to the underlying facts of this lawsuit; 2) How much money Plaintiff did not make because of the underlying facts of this lawsuit; 3) Instances of inappropriate sexual contact or conduct prior to Plaintiff dating Defendant; 4-6) If Plaintiff was inappropriately touched by a certain people; and 7-8) If Plaintiff has dated anyone since her relationship with Defendant. Further qu...

Excerpt: ...a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set fo...

Excerpt: ...s and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. . . . (b)(1) The court, upon notice and motion by a party, shall determine who is the party prevaili...

Excerpt: ...the second cause of action for Breach of Contract on the bases that it fails to state facts sufficient to constitute a cause of action, is uncertain, and it cannot be ascertained from the Complaint whether the contract is written, is oral, or is implied by conduct. Civ. Proc. Code § 430.10(e)-(g). A) COA #1 – Legal Malpractice “The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use ...