Excerpt: ...otice of motion is defective. Defendants apparently seek to strike “the Complaint,” when the operative pleading is the First Amended Complaint. Furthermore, the notice of motion fails comply with Rule of Court 3.1322(a) because it does not quote in full the portions sought to be stricken or note the cause of action. Nevertheless, because there is only one cause of action charged against the moving defendants and it appears that the moving def...

Excerpt: ...iling (with an acknowledgment of receipt) to a party (§ 415.30), or, if a party is out of state, by any of the preceding means or by first class mailing, requiring a return receipt (§ 415.40). Finally, if service upon a party by these enumerated means proves impossible, service may be effected through publication, which must be authorized by court order. (§ 415.50.) To obtain an order directing service by publication, section 415.50, subdivisi...

Excerpt: ... Hyundai Sonata. HMA demurs to the Second Cause of Action for Violation of Civil Code §1793.2(b) and the Third Cause of Action for Violation of Civil Code §1793.2(a)(3) on the grounds that the complaint fails allege sufficient facts to support these two causes of action. It is the plaintiff's pleading burden to show that the Song-Beverly Act applies to her claims. (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 917). 1. Second Cause of Ac...

Excerpt: ...to (1) Robert A. Lotter, (2) RA Lotter Insurance Marketing, Inc., (3) The Agent Builders Company Insurance Marketing, Inc., (4) The TDS Group Inc. (“Defendants”) The four applications are GRANTED. The within action arises out of four separate Guarantees the Defendants signed relating to a Note for a loan made by CNB to RA Lotter Holdings, Inc. which has defaulted on the loan. Under C.C.P. §483.010, attachment may be issued only if the claim ...

Excerpt: ...eges that when Starbuck's lease ended, an unidentified Starbucks employee improperly went on the adjacent property and removed the “grease trap.” Plaintiff alleges this was a violation of the lease which only allowed removal of fixtures/equipment Starbucks installed on the leased premises. Based on these facts, plaintiff alleges breach of contract, trespass and conversion. In paragraph 18 of the trespass cause of action, plaintiff alleges the...

Excerpt: ...met and conferred with regard to RFP Nos. 50 and 52 and have reached an agreement to limit these requests to posts about Plaintiff and posts about the harassment. Thus, the motion is GRANTED subject to the stipulated limitations. Plaintiff has WITHDRAWN her request to compel a further response to RFP No. 53. RFP Nos. 40 and 43 seek the cell phone(s) Anderson had in 2020. Defendant Anderson contends his responses are full and complete as he testif...

Excerpt: ...ly tolled prior to the filing of her official complaint on October 1, 2019. “The exhaustion of an administrative remedy is a procedural prerequisite to an action at law, and the failure to exhaust it does not divest a trial court of subject matter jurisdiction. As a result, courts can resort to equitable exceptions to this condition precedent.” (Holland v. Union Pac. R.R. Co. (2007) 154 Cal.App.4th 940, 946). One exception arises when DFEH re...

Excerpt: ... of its teacher, Doe 2; and (2) Plaintiff fails to sufficiently allege how the District or any of its employees knew or should have known that Doe 2 had engaged in “unlawfully sexually-related conduct” with minors in the past or that such conduct was continuing. Plaintiff failed to rebut the District's contention that it cannot be vicariously liable for Doe 2's sexual abuse of Plaintiff. Thus, Plaintiff appears to have conceded this point. Th...

Excerpt: ...of or inexcusable neglect. Jeon states he was improperly substitute served at 735 Gramercy Dr., #209, Los Angeles, CA 90005 (“Property”), which is an address Jeon states he, “never used . . . as his address for any purpose whatsoever.” (Jeon Decl. ¶ 5.) Jeon provided his residential address, which is different from the Property. (Jeon Decl. ¶ 5.) Jeon also provided a copy of his proposed answer. (Jeon Decl. ¶ 9, Ex. A.) Having complied...

Excerpt: ...trial and moves for fees under CCP §2033.420, which provides: “(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay t...

Excerpt: ...action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 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 plai...

Excerpt: ...s that it is not a signatory to the RISC. A nonsignatory seeking to enforce an arbitration agreement bears the burden to establish standing to enforce the agreement. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 15.) Nissan has failed to meet this burden. Felisilda v. FCA USA LLC (2020) 53 Cal.App.5th 486 (Felisilda), upon which Nissan relies, is distinguishable. Unlike in Felisilda, the complaint in this case does not allege or otherwise indicate...

Excerpt: ...A US, LLC. The arbitration agreement at issue at issue is found at page 5 of the Retail Installment Sale Contract (“RISC”) attached as Exhibit A to the Lambert Declaration. The RISC, dated 4/21/17, is between plaintiffs Angela Earthman and Stoney Earthman (“Plaintiffs”) as “Buyer” and Surf City Auto Group as “Seller-Creditor.” FCA acknowledges that it is not a signatory to the RISC. A nonsignatory seeking to enforce an arbitration...

Excerpt: ... request must be considered on its own merits. A court may grant a trial continuance only on an affirmative showing of good cause. The Court finds good cause has been shown to grant the motion as Cross-Defendants recently appeared in the action, discovery is ongoing and trial counsel is unavailable. (CRC 3.1332(c)(3), (5), (6).) In addition, no oppositions were filed, thus no prejudice to any party has been shown. Accordingly, the motion is grant...

Excerpt: ...(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.” “If the items appearing in a cost bill appear to be proper ch...

Excerpt: ...seeking an order taxing the memorandum of costs filed by the defendants. The motion for attorney fees is DENIED. The motion to tax costs is GRANTED in part. This case arises from a dispute between various parties as to the use/improvement of a piece of vacant land in Dana Point. A court trial was conducted on multiple dates in 2021 and 2022 resulting in a verdict for the defense on all causes of action. Statements of Decision were entered on 12/1...

Excerpt: ...ty managed by Western National Securities. Based on this alleged contractual relationship, plaintiff asserts that Western acted in contravention of his rights as a tenant by preventing him from entering the apartment. Plaintiff alleges this gives rise to the causes of action for (1)Breach Of Contract, (2) Breach Of Covenant Of Good Faith And Fair Dealing, (3) Breach Of Covenant Of Quiet Enjoyment Of The Premises, (4) Intentional Infliction Of Emo...

Excerpt: ...hed by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. After an initial prima facie showing of discrimination from the employee (which is not at issue in this case), the employer, as the moving party, has the burden to present admissible evidence showing either that: (1) one or more elements of plaintiff's prima facie case is lacking; or (2) the adverse employment action was based upon legitimate, nondiscr...

Excerpt: ...the prevailing party in this action. (Civ. Proc. Code §§ 1032.) As the prevailing party in a civil rights action, Plaintiff is entitled to recovery of attorney fees and expert witness fees. (Civ. Proc. Code § 1033.5(10)(B); Civ Code. §§ 52 and 54.3; 42 U.S.C.A. § 12205.) “[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate...

Excerpt: ...sonably subject to dispute under Evidence Code section 452(h). Defendant Kidder also asserts that courts routinely take judicial notice of documents incorporated into a complaint. Evidence Code section 452, subdivision (h) permits judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” “It is int...

Excerpt: ... party's statement of compliance, the demanding party may move for an order compelling compliance. (Code Civ. Proc., § 2031.320(a).) The Court deems the motion moot as Aptim's opposition shows that it has produced all documents responsive to Request No. 23. (See Miner Decl. [ROA 619], ¶¶ 2, 5-6, 8, Exs. A and C; Rankovich Decl. [ROA 615], ¶¶ 3-6.) While Plaintiff contends that 1,740 closeout packages exist (or 1,793 based on what is stated i...

Excerpt: ... shall be made a sufficient time in advance of the time limit for the completion of discovery (the 15th day before the date initially set for trial) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. (Code Civ. Proc. §§ 2034.610, subd. (b) and 2024.020, subd. (a).) Under exceptional circumstances, the court may permit the motion to be made at a later time. (Code Civ. Proc., § 2034.610, subd. (...

Excerpt: ...act and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Plaintiff is a title insurance company that issued a policy of title insurance to the Millers in connection with their purchase of the subject Carnation property in 2008. At the time of issuing the policy, plaintiff erred and did not address the existence of the Wells Fargo home equity line of credit deed of trust (HELOC ...

Excerpt: ... Motion to Strike filed by HOA as to Complaint filed by plaintiff Anthony Aulisio, Jr. 4. Demurrer filed by Feldsott as to Complaint filed by plaintiff Anthony Aulisio, Jr. 5. Demurrer filed by Austin Nichter as to Complaint filed by plaintiff Anthony Aulisio, Jr. 6. Motion to Strike filed by defendant Austin Nichter as to Complaint filed by plaintiff Anthony Aulisio, Jr. Special Motion To Strike [SLAPP] The Special Motion To Strike Portions of P...

Excerpt: ...s set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under (Evidence Code §§ 451 or 452.) As to causes of action Nos. 1-16, Defendants bring their Demurrer on the bases that Plaintiff is judicially estopped from pursin...