Excerpt: ...ikely to mislead for want of communication of that fact” Civ. Code § 1710(3). “To state a claim for fraudulent concealment, a plaintiff must allege: “ ‘(1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.' ” In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pr...

Excerpt: ...r context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer on the ground of uncertainty is disfavored and should be sustained only when the complaint is so incomprehensible that the defendant cannot reasonably respond since ambiguities may be clarified in discovery. (Lickiss v. Financial indus. Regulatory Auth. (2012) 208 Cal.app.4 th 1125, 1135.) When the allegations in a complaint are sufficiently specific to apprise defendant of the is...

Excerpt: ...t toward or disposition of the property, interfering with plaintiff's possession, and damage to plaintiff. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.) Money cannot be the subject of a conversion claim unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. (Id.) The plaintiff must allege a right to immediate possession at t...

Excerpt: ...th enough lead time to reasonably permit the deponent to prepare and/or respond. CCP §§ 1987(a), 2020.220(a); California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4 th 16, 20-21. The subpoena must include an affidavit demonstrating good cause for the requested documents, materiality of the documents to the issues to be addressed, and a basis for believing the witness possesses or controls the documents. CCP § 1985(b). Any intere...

Excerpt: ...he defendant of the nature, source, and extent of [the] cause[s] of action'” against it. (Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 858.) Further, the general allegations fall short of the standards for alleging fraud claims. (See Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993 (“general and conclusory allegations do not suffice”); Committee on Children's Television, Inc. v. General Foods Corp. (...

Excerpt: ...nuary 2011, agents from the US Department of Education (“DOE”) conducted an audit of defendant's beauty school to determine proper use of federal student aid funds. The DOE reviewed 58 student files. Defendant participated in the audit and learned at that time of only minor, correctible issues. The school was downgraded from HCM1 to HCM2 to permit the DOE more control over its handling of financial aid. According to defendant, she heard nothi...

Excerpt: ...of the law does raise a presumption that the violator was negligent. This is called negligence per se.”]; see also Evid. Code § 669, and CACI 400 and 418.) Under the doctrine of negligence per se, the plaintiff “borrows” statutes to prove duty of care and standard of care, but still has the burden of proving causation. (David v. Hernandez (2014) 226 Cal.App.4th 578, 584.). Since the law does not permit an independent cause of action for ne...

Excerpt: ...e 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. To satisfy the moving party's initial burden, the petition or motion must be accompanied by prima facie evidence of a written agreement to arbitrate the controversy in question. In ruling on the petition or motion, the court must deter...

Excerpt: ...ry, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541; Coy v. Superior Court (1962) 58 Cal. 2d 210, 220-21. ) Under the Code, “An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based.” (CCP § 2030.010.) Under th...

Excerpt: ...age in each brief will be considered. CRC Rule 3.1113(g). As to the arguments, Defendant's Answer and the affirmative defenses contain a mix of both general and specific denials of the allegations in the Complaint, which is appropriate for an Answer pursuant to CCP § 431.30(b)(1). Those allegations are not appropriate for demurrer (Affirmative Defenses (“AD”) 1-6, 8-11, 13, and 16-19. AD 20-25 were not considered as Plaintiffs' Demurrer was ...

Excerpt: ...nfer declaration is facially insufficient per CCP §430.41 (it fails to make plain that a conference in fact took place), this Court declines to send the parties back to discuss the demurrer more since the demurrer lacks merit. The plaintiffs' case in chief includes the following essential elements: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise, (2) a b...

Excerpt: ...mplaint once as a matter of right, provided that it is done within a specified time. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 573.) “[T]he purpose of the statute permitting amendments as of right before an answer is filed or a demurrer is ruled upon is to promote judicial efficiency and reduce the costs of litigation.” (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 505–506). In light of this ruling, ...

Excerpt: ...to plaintiff. Complaint, at ¶¶42-43, 53-54. When claims under CLRA or UCL are based on fraud-like allegations of concealment or omissions, they “must be stated with reasonable particularity, which is a more lenient pleading standard than is applied to common law fraud claims,” but requires more than the general rule of pleading to state the ultimate facts. (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal. App. 5th 1234, 1260-1...

Excerpt: ...amount of $870 ($1.5 hours for drafting the motions, plus 1 hour for the appearance at the hearings X $300 per hour, plus $60 for the filing fee for each motion X 2 motions) for the attorney's fee and costs incurred by Defendant in connection with these motions. Vexatious Litigant: Defendant Zhen McWilliams' motion for an order declaring plaintiff Michael McWilliams to be a vexatious litigant and requiring Plaintiff to post bond is denied without...

Excerpt: ... which contain written agreements to arbitrate that apply to this controversy, and have shown that Plaintiff has refused to arbitrate. The most recent of those are the two agreements signed by Plaintiff on 1/5/09 (the “Agreements”), which purport to address her obligations as an employee. (Rubio Decl. Exs. 3 & 4.) Plaintiff asserts that she was told that these Agreements replaced all prior ones. (Page Decl. ¶¶ 3, 4.) As these Agreements pur...

Excerpt: ...emittitur”). CRC Rule 8.278(b). Although Plaintiff herself filed a second Memorandum of Costs on 06/10/19 (“Memo #2”), that memorandum was filed outside the 40-day window and cannot be considered as a either a valid memorandum or as an amendment to Memo #1. Alan S. v. Superior Court (2009) 172 Cal. App. 4th 238, 261-62. Additionally, Plaintiff is only permitted to recover appellate costs in Appellate Case No. G055258, as the other two cases...

Excerpt: ...en causes of action. The body of each cause of action contains a simple recitation of the legal elements, while nine or more pages of previous allegations are incorporated in an attempt to plead the necessary facts. Group pleading of causes of action and incorporating all prior allegations leads to uncertainty where there are many actors and events involved. (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 285 (“This type of pleading ...

Excerpt: ...to negligence but stricter. (See Snider v. Whitson (1960) 184 Cal.App.2d 211, 214- 215.) The elements for a willful misconduct claim include the same elements of any negligence cause of action, i.e. duty, breach of duty, proximate cause and damages (Id.), as well as the following additional elements: No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury. (Id. at p. 215). In addition, “...

Excerpt: ...(Richardson v. Franc (2015) 233 Cal. App. 4th 744, 754-756; Sheon v. Zacarias (2019) 33 Cal. App. 5 th 1112, 1119-1120). An irrevocable license is enforceable against a successor. (Richardson v. Franc, supra, 233 Cal. App. 4th at 755; Zellers v. State of California (1955) 134 Cal. App. 2d 270, 272). Here, Plaintiff alleges that the Beach Stairs were first constructed in the 1960s and that its predecessors contributed significant amounts of money,...

Excerpt: ...Amended Complaint. Pertinent Background Facts On or about 05/20/03, nonparties James and Arlene Wright (hereinafter “Wright”) purchased the property at 22601 Killy Street in Lake Forest (hereinafter “subject property”). On or about 09/21/04, Wright borrowed $457,500.00 from Washington Mutual. The loan was memorialized by a promissory note, and secured by a senior deed of trust (hereinafter “senior lien”) against the subject property. ...

Excerpt: ... (11) causes of action (“COA”) contained within the operative Second Amended Complaint. In general, while the operative pleading tracks various transactions plaintiff finds to be suspicious, it is not clear to this Court how those transactions materialize into a cognizable loss to the LLC. There is no reference to the Operating Agreement, which leaves this Court to wonder whether the missing funds are owed directly to the LLC members or to th...

Excerpt: ...e is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegation...

Excerpt: ...aintiff, including, but not necessarily limited to, those contained in Complaint ¶¶ 110, 111, 113, and 115-17 as to COA #4; Complaint ¶¶ 119-31 as to COA #5; Complaint ¶¶ 133-36, 140, 142-47, and 149-154 as to COA #6; Complaint ¶¶ 162-64 and 167 as to COA #7; Complaint ¶¶ 169, 174-87 as to COA #8; and Complaint ¶¶ 190 and 192 as to COA #9. These allegations are properly pled with sufficient facts to inform a defendant whose name is di...