Excerpt: ...Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (CCP § 425.16(b)(1).) An “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: . . . any written or o...

Excerpt: ...��MSJ”) on Defendants Jeffrey Berganza, Abe Hayes, and White Rabbits Social Club. Code of Civil Procedure section 1008(a) provides, “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or differen...

Excerpt: ...e). Second Cause of Action for Fraudulent Deceit, Third Cause of Action for Intentional Misrepresentation and Fourth Cause of Action for Negligent Misrepresentation: The elements of fraud that will give rise to a tort action for deceit are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resul...

Excerpt: ...presumably often be the case in the instance of a large national or international corporation, the trial court should issue the protective order and first require the plaintiff to obtain the necessary discovery through less intrusive methods. These would include interrogatories directed to the high-level official to explore the state of his or her knowledge or involvement in plaintiff's case; the deposition of lower level employees with appropria...

Excerpt: ...information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. [¶] (b) A motion under subdivision (a) shall comply with both of the following: [¶] (1) The motion shall set forth specific facts showing g...

Excerpt: ...idavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary injunction shall be granted without notice to the opposing party.” Code of Civil Procedure section 526(a) provides, “(a) An injunction may be granted in the following cases: (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or cont...

Excerpt: ...bruary 11, 2021, Plaintiff filed this motor vehicle negligence action against Defendants J.G. Littleford, Christine Littleford and Joel Littleford (collectively, “Defendants”), based upon a May 16, 2020 incident wherein J.G. Littleford (driving a vehicle owned and insured by Christine Littleford) was driving his vehicle while Plaintiff was a passenger. Plaintiff alleges that J.G. Littleford drove negligently and at an unsafe speed in a rounda...

Excerpt: ...t for Judicial Notice is GRANTED. “A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 C...

Excerpt: ...ction 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]�...

Excerpt: ...n has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (CCP § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative ...

Excerpt: ...icular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without merit or too general. . . . [¶] (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the prop...

Excerpt: ...th a willful and conscious disregard of the right and safety of others. CC § 3294(c)(1). “Oppression” means conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (Civil Code § 3294(c)(2).) The two leading opinions on punitive damages in impaired driving cases are Taylor v. Superior Court (1979) 24 Cal.3d 890 and Dawes v. Superior Court (1980) 111 Cal.App.3d 82. They collectively stand fo...

Excerpt: ... for production – set one, and requests for admissions – set one. After several extensions, Defendant served responses on 4/9/21. While the parties made some attempts to meet and confer, it appears to the Court that most of the disputes raised in motions 1-4 could have been resolved if counsel for the parties engaged in a thorough, good faith meet and confer process. The Court encourages counsel for both parties to engage in further meet and ...

Excerpt: ...pending before a court of this State, the court in which such action or proceeding is pending, shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate[.]”) STANDARD OF LAW “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate...

Excerpt: ...le and serve an amended complaint within fourteen (14) days of notice of this ruling. STANDARD OF LAW “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court assumes “the truth of the properly plea...

Excerpt: ...ly $4.6 million from Cushman's family trust to the LLC, secured by a deed of trust attached as Exhibit C. Cushman also submits an Operating Agreement for CBGM as Exhibit D, which states Cushman is the 50% owner of the LLC and Mr. and Mrs. Brown, respectively, are each 25% owners. However, Cushman declares he does not recall signing the Operating Agreement and does not recall agreeing to give the Browns a 50% membership interest in the LLC. Rather...

Excerpt: ...ten. (¶11(c) and ¶23 of Cross-Complaint). Lastly, the Court finds sufficient “ultimate facts,” regarding knowledge of falsity and intent to induce reliance. (¶24-¶26 of Cross-Complaint; See also Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 and Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6). In demurring to the First Cause of Action for Fraud, moving Cross-Defendant did not addr...

Excerpt: ...motional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) Plaintiff's allegations against Defendant in paragraphs 6-9 and 11-13, 18, 20-22, 24-25 of the SAC encompass Defendant's conduct in the course of the family law ...

Excerpt: ... by what means and by whom, specifically, the representations were made.” (Demurrer: 8:10-13). Here, the Cross-Complaint generally alleges the misrepresentations were made by Cross- Defendant Gutcheon, prior to July 17, 2020, through “conversations and emails.” (¶9 of Cross-Complaint). In addition to the above general allegation, specific statements are alleged to have occurred on February 10, 2020. (Id.). The misrepresentations made on Fe...

Excerpt: ...ion. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages,...

Excerpt: ...perly considered. (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1538 [stating, on anti-SLAPP motion, that “[t]o the extent defendants argue they had the right to file any reply declarations at all, they are not wrong. Such declarations, however, should not have addressed the substantive issues in the first instance, but only filled gaps in the evidence created by the limited partners' opposition.”] Here, Cross-Defendant has submitted his de...

Excerpt: ... burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must “show” that either one or more elements of ...

Excerpt: ...d to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[S]tatutes governing discovery ‘must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial.'” (Yelp, Inc., 17 Cal. App. 5th at 15 [internal citations omitted].) “This means that ‘disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it.'” (I...

Excerpt: ...other grounds in MacLeod v. Tribune Publishing Co., Inc. (1959) 52 C2d 536, 551); Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 701 (citing and quoting text).) The California State Bar Civility Guidelines provide: “Unless time is of the essence, an attorney should agree to an extension without requiring motions or other formalities, regardless of whether the requesting counsel previously refused to grant an extension.” (State Bar Calif...

Excerpt: ...)(A) and CRC, Rule 3.1702, Defendant Pellecome LLC seeks attorneys' fees of $321,898.50 as the prevailing party in this action. “California generally follows what is commonly referred to as the ‘American Rule,' which provides that each party to a lawsuit must ordinarily pay his or her own attorney fees. However, the Legislature has established a variety of exceptions to the American Rule by enacting numerous statutes that authorize or mandate...

Excerpt: ...ement agreement, to reinstatement of a default judgment entered in connection with another matter. Plaintiffs also ask for injunctive relief and attorneys' fees. In 2016, Plaintiffs brought a defamation suit against Cyrkin in OSCS, Case No. 2016- 00848867. (Deedle Dec. ¶ 2.) On 10-12-17, Plaintiffs obtained a default judgment against Cyrkin in that matter, in the amount of $250.545. (UMF 1; Deedle Dec., ¶ 4, Exhibit 1.) On 8-22-18, almost a yea...

Excerpt: ...he motion for summary judgment of Defendant Walt Disney Parks and Resorts U.S. Inc. (“Disney”). On 7/26/21, the Court granted Disney's dispositive motion, and granted Plaintiff's application to file documents under seal. However, upon further review the Court has determined that the order sealing the records was improper. The subject documents were designated as “confidential” by counsel for Disney pursuant to a “Stipulated Protective O...

Excerpt: ...tated by § 425.16(b). “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) A defendant has the initial burden of demonstrating that the suit arises from conduct descr...

Excerpt: ...ies, contracted with Defendant 3PL Global to store the wine. The wine was moved to Defendant's facilities in January 2014. In June 2017, after the investigation was concluded, Plaintiff returned the wine to its own facilities. In July 2017, Plaintiff learned that the wine and its packaging had been damaged while being stored in Defendant's facilities. Plaintiff claims to have lost $2.8 million. Based on the foregoing allegations, Plaintiff assert...

Excerpt: ...v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452 states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction mean...

Excerpt: ....App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to ...

Excerpt: ... bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the...

Excerpt: ... the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure sectio...

Excerpt: ...1 states: “(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with t...

Excerpt: ...ollowing reasons, the Court denies Defendants' special motion to strike. Code of Civil Procedure § 425.16 provides: “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintif...

Excerpt: ...eave to amend. First COA – Declaratory Relief In the first cause of action, Ybarra seeks a declaration that (1) the transaction was a loan subject to usury limitations, (2) Cross-Defendants may not enforce or collect on the loan beyond the principal because the interest exceeds the maximum rate in Cal. Const. Art XV § 1, and (3) all terms in the promissory note are void based on the usurious rate. To prevail on this cause of action, Ybarra mus...

Excerpt: ...ion (a) provides in pertinent part: “Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. . .” Section 439, subd...

Excerpt: ...��Asset Development”); Lunar Maria Operations, Inc. and Thomas Tonelli (“Tonelli”) by Plaintiff/Cross-Defendant Fidelity National Title Insurance Company (“Fidelity”) is SUSTAINED without leave to amend. Thomas Tonelli's First, Second, Third, and Sixth Causes of Action Against Fidelity Fidelity demurs to the first, second, third, and sixth causes of action by Tonelli in the FACC. In their opposition, Cross-Complainants state they “are...

Excerpt: ...) Notice of Deposition of Person Most Qualified at Coldwell Banker is GRANTED, in part, and DENIED, in part. Code of Civil Procedure section 2025.420 provides: “(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (b) The court, for good cause ...

Excerpt: ...n part and DENIED in part. Code of Civil Procedure section 1987.1 states, in part, “(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving couns...

Excerpt: ...iver's accounting is not sufficiently detailed as to its final fees and professional fees. The court requests that the receiver file the invoices supporting his fees and the fees of the professionals he hired with the court. Moreover, the court requests the Receiver provide a very brief explanation as to “Other Costs,” “Other G&A costs,” “Referral Costs,” and “Fixed Asset.” “Office supplies,” “Postage and Delivery,” and �...

Excerpt: ... which was owned by Defendant Eskan, for a home remodel. On 10/10/17, Plaintiff was summoned by workers to the downstairs bathroom to answer a question about the project. Plaintiff alleges she slipped on an unsecured drop cloth placed on the stairs by the workers, sustaining a leg fracture. The workers in Plaintiff's home on 10/10/17 were apparently employed by a subcontractor of Bella. On 12/17/17, the principal of Defendant Eskan, which owned D...

Excerpt: ... fails to state sufficient facts. Defendant's demurrer is sustained with 15 days leave to plaintiff to amend. Defendant argues:  The Court's 2-22-21 Minute Order sustained a demurrer to Plaintiff's 6th c/a for fraud by omission with leave to amend. People v. Clausen (1967) 248 Cal.App.2d 770, 785-786 Rather than amend the claim, Plaintiff brought a new claim of fraudulent inducement-intentional misrepresentation which has different elements th...

Excerpt: ...is for intentional infliction of emotional distress (“IIED”) against Defendant Kendra Klassen. The Court previously sustained the demurrer to Plaintiff's IIED claim with leave to amend. The FAC alleges that Defendant knew Plaintiff was unusually susceptible to emotional distress and that Defendant's inappropriate conduct in the therapeutic relationship was likely to exacerbate Plaintiff's condition. However, Plaintiff's allegations do not ris...

Excerpt: ... Procedure § 430.40, subdivision (a) provides: “A person against whom a complaint or cross-complaint has been filed may within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” It lies within the Court's discretion whether to consider a demurrer to an answer filed after that time. (Code Civ. Proc. § 473; see McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281- 282.) In McAlli...

Excerpt: ...n fail to state facts sufficient to constitute a cause of action. First cause of action for fraud and deceit: SunPower demurs to the first cause of action on the grounds that it is barred by the statute of limitations. The statute of limitations for fraud is three years, but the cause of action “is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Code Civ. Proc. § 338(d...

Excerpt: ...use of action for declaratory relief. Plaintiffs seek a declaration stating that they can submit their matter to arbitration. This demurrer seeks an order sustaining the demurrer to the single cause of action for declaratory relief without leave to amend. Moving defendant asserts that the cause of action for declaratory relief is not sufficiently stated according to Code Civ. Proc. § 430.10(e) and is uncertain according to Code Civ. Proc. § 430...

Excerpt: ...owever, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be lib...

Excerpt: ...aintiff's FAC alleges she was an elderly woman who could not speak English and was drawn to Defendants' store by radio advertisements. (¶ 7.) Plaintiff could not sleep well and needed a bed to help her sleep through the night. (¶ 8.) When she went to Defendant Teletron's store, the sales manager, Defendant No Hoang, told Plaintiff the bed could cure many medical conditions, including the problem Plaintiff had of not sleeping well at night. (¶ ...

Excerpt: ...that Minuteman worked on the pipes before the flood and it only recently discovery evidence of same. A defendant can file a cross-complaint against a codefendant or third person not yet a party to the action only if the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy wh...

Excerpt: ...e that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid.Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summar...

Excerpt: ...d this motion on 4/9/21, seeking a further response to special interrogatory no. 1. Code of Civil Procedure section 2030.300, states, in part, “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interroga...

Excerpt: ...erican Contractors Indemnity Company, Inc. (collectively “Defendants”) move for summary judgment or, in the alternative, summary adjudication of the 1st-12th causes of action. Defendants seek summary judgment on the 1st-11th causes of action on the ground that Plaintiffs did not have a license to perform most of the work required under the contract. A “party moving for summary judgment bears an initial burden of production to make a prima f...

Excerpt: ...epartment C-34. Code of Civil Procedure section 425.16, subdivision (c)(1) provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” “[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) In Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App. 4th 328, 340, t...

Excerpt: ...equest for Judicial Notice is GRANTED. Moving defendants failed to comply with California Rules of Court, Rule 3.1110(f)(4) in filing their Request for Judicial Notice. California Rules of Court, Rule 3.1110(f)(4) provides: “Electronic exhibits must meet the requirements in rule 2.256(b). Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and ...

Excerpt: ...xhibit J.) Accordingly, the motions are moot except for the issue of sanctions. Plaintiff seeks $4,258.50 in sanctions on each motion (a total of $8,517, calculated at $700 per hour.). The discovery was electronically served on 2/16/21. (Orland Dec., (ROA 2158), Exhibit D). Responses were due on Monday, 3/22/21. On Thursday, 3/18/21 at 8:59 a.m., Defendant's Riptide's counsel wrote, asking for two additional weeks. (Sampson Dec. (attached to ROA ...

Excerpt: ...ent with Defendants under which Heartland financed Defendants' purchase of equipment identified as “Cutera Trusculpt 3d Workstation” (UMF 1). Defendants were obligated to make six monthly payment of $99, followed by 60 monthly payments of $2,466.20 (UMF 2). In July 2018, Heartland assigned the agreement to Plaintiff Midland (UMF 3). Heartland and Midland fully performed their end of the agreement (UMF 3). Defendants made 25 payments—12 to H...

Excerpt: ...nent part: “All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:...

Excerpt: ...ditions is satisfied: . . . (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties. The First Amended Complaint (“FAC”) filed by VForce Inc. (...

Excerpt: ...d Pierrette Semaan, Individually and as Trustees of The Semaan Family Trust UDT dated June 9, 2006's Complaint from Unlimited Jurisdiction to Limited Jurisdiction is DENIED. Code of Civil Procedure section 403.040, subdivision (b) provides: “If a party files a motion for reclassification after the time for that party to amend that party's initial pleading or to respond to a complaint, cross-complaint, or other initial pleading, the court shall ...

Excerpt: .... 1.) Defendant BMW NA is not a signatory to the Contract. Federal Arbitration Act (“FAA”) Applies: The FAA “applies where there is ‘a contract evidencing a transaction involving commerce.'” (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277 [quoting 9 USC § 2] [emphasis in original].) It is undisputed that the FAA applies here. A court's role in considering a petition to compel arbitration under the FAA is limit...

Excerpt: ...ntempt are DENIED. Plaintiff moves to compel production of documents in response to Plaintiff's subpoenas on AMCO Insurance Company and Nationwide Mutual Insurance Company. The subpoenas are identical in the documents they seek, specifically the following twelve categories: (1) activity logs between 12/2/16 and the present relating to the Riptide Claim (Claim Key: 7204PE6883500723201451); (2) documents and communications between 7/1/4 and the pre...

Excerpt: ...of the discovery process include, but are not limited to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery. . . . [¶] (g) Disobeying a court order to provide discovery.” Code of Civil Procedure section 2023.030 provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or ...

Excerpt: ...t, on or before the last day or his or her time to plead or within any further time that the court may for good cause allow, may service and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her . . .” Defendant argues that the motion is not untimely for two reasons. First, Plaintiff's delay in filing service of process makes the serv...

Excerpt: ...rporation (“LBC”), a swimwear manufacturer. The complaint alleges causes of action for (1) breach of fiduciary duty to minority shareholder, (2) breach of fiduciary duty to corporation, (3) aiding and abetting breach of fiduciary duty to corporation, (4) dissolution/sale of corporation, and (5) declaratory relief. The first, fourth, and fifth causes of action are brought directly by Plaintiff, and the second and third causes of action are all...

Excerpt: ... the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties. The First Amended Complaint (“FAC”) filed by VForce Inc. (“VForce”) alleges causes of action for professional negligence, breach of fiduciary duty, ...

Excerpt: ...in. The elements of an IIED claim are: “(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” The “outrageous” conduct “must be so extreme as to exceed all bounds of t...

Excerpt: ...d Twelfth Causes of Action of Plaintiffs' (Mohammed Alsmadi, Sandra Vilchis, Mauricio Silva, Abigail Rosete, and Ariana Soto) Third Amended Complaint is OVERRULED. Plaintiffs' and Defendants' Requests for Judicial Notice are GRANTED. A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners”...

Excerpt: ... The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.) Peter demurs to the Complaint on the grounds that Plaintiffs have not sufficiently alleged the first element of negligence, duty of care. “[T]he lack of privity of contract does not preclude imposition of a duty of care.” (Weseloh Fam. Ltd. P'ship v. K.L. Wessel Constr. Co. (2004) ...

Excerpt: ...rporation (“LBC”), a swimwear manufacturer. The complaint alleges causes of action for (1) breach of fiduciary duty to minority shareholder, (2) breach of fiduciary duty to corporation, (3) aiding and abetting breach of fiduciary duty to corporation, (4) dissolution/sale of corporation, and (5) declaratory relief. The first, fourth, and fifth causes of action are brought directly by Plaintiff, and the second and third causes of action are all...

Excerpt: ... the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties. The First Amended Complaint (“FAC”) filed by VForce Inc. (“VForce”) alleges causes of action for professional negligence, breach of fiduciary duty, ...

Excerpt: ...in. The elements of an IIED claim are: “(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” The “outrageous” conduct “must be so extreme as to exceed all bounds of t...

Excerpt: ...d Twelfth Causes of Action of Plaintiffs' (Mohammed Alsmadi, Sandra Vilchis, Mauricio Silva, Abigail Rosete, and Ariana Soto) Third Amended Complaint is OVERRULED. Plaintiffs' and Defendants' Requests for Judicial Notice are GRANTED. A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners”...

Excerpt: ... The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.) Peter demurs to the Complaint on the grounds that Plaintiffs have not sufficiently alleged the first element of negligence, duty of care. “[T]he lack of privity of contract does not preclude imposition of a duty of care.” (Weseloh Fam. Ltd. P'ship v. K.L. Wessel Constr. Co. (2004) ...

Excerpt: ...s met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that 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 t...

Excerpt: ...fornia Rule of Court, rule 3.1300(c) states: “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” Here, there was no signed proof of service filed. On this basis, the motion is DENIED. The Court also reviews the merits and comes to the same conclusion Code Civ. Proc. § 430.41(a) states: (a) Before filing a demurrer pursuant to this chapter, the demurring party shall me...

Excerpt: ...y to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A rep...

Excerpt: ...committed to the discretion of the trial court after the court determines (1) the likelihood that the plaintiff will prevail on the merits at trial, and (2) the relative harms suffered by the parties.” (Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc. (2001) 91 Cal. App. 4th 678, 695.) The plaintiff has the burden of proof to show “upon a verified complaint, or upon affidavits” all elements necessary to support the issuance ...

Excerpt: ...n for Summary Judgment because the Separate Statement fails to comply with California Rules of Court, rule 3.1350(b). Where there are multiple causes of action presented for summary adjudication in one motion, each cause of action must have a separate section heading indicating the issue number, and specifying the issue. Failure to comply with the separate statement requirements is grounds to deny the motion. (Code Civ. Proc. § 437c(b)(1).) An a...

Excerpt: ...Fourth Cause of Action for Statutory Violations is OVERRULED. Defendant Starkey's Request for Judicial Notice of Exhibits 1 and 2 is GRANTED. Plaintiff contends that the demurrer violates Code of Civil Procedure section 430.60 and California Rules of Court, Rule 3.1320(a). The demurrer sufficiently complies with Rule 3.1320(a) because each ground for demurrer is contained in a separate paragraph and states the cause of action to which it applies....

Excerpt: ...ich is the basis of this motion. Pursuant to CCP § 2025.410(c), once a motion to quash a deposition is filed, the deposition sought to be quashed is stayed pending resolution of the motion. On February 5, 2021, Plaintiff issued a deposition subpoena to third party Riptide Holdings, LLC, calling for production and appearance on February 24, 2021. Defendant's Exhibit A (ROA 1980). Defendant Riptide Restaurants, Inc. objected on February 9, 2021. D...

Excerpt: ... controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (d) The right to compel arbitration has been waived by the petitioner; or (e) Grounds exist for the revocation of the agreement. (f) A party to the arbitration agreement is also a party to ...

Excerpt: ... A and B is GRANTED. Truck's Request for Judicial Notice of Exhibits A through C is GRANTED. Code of Civil Procedure section 437c, subdivision (p)(1) provides, “A plaintiff or cross- complainant has met his or her burden of showing that there 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 ...

Excerpt: ...iciency of handling litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order . . . that the trial of any issue of any part thereof shall precede the trial on any other issue or any part thereof in the case . . .” Code Civ. Proc. § 1048(b) states: “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separat...

Excerpt: ...ess they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” Plaintiff should abide by this rule in the future. Form Interrogatory 12.1 requests the name, ADDRESS, and telephone number of each individual: (a) who witnessed the INCIDENT or the events occur...

Excerpt: ... Overtime Wages in Violation of Labor Code §§ 1194 and 510; (4) Failure to Provide Meal and Rest Periods, Violation of California Labor Code §§ 226.7 and 512; (5) Failure to Pay Discharged Employee; (6); Unreimbursed Business Expenses; (7) Failure to Provide Itemized Statements to Employee; Violation of Labor Code § 226; (8) Violation of Labor Code § 558; and (9) Violation of Bus. Code 17200. According to the undisputed material facts, Defe...

Excerpt: ...aintiff allege Defendant trespassed on their property by means of a water intrusion which caused mold in the walls of the premises, interfering with their use of the premises and causing loss of business income. At paragraph 42 of the complaint, Plaintiffs allege the following: “(a) Landlord fails and refuses to take steps to prevent the innundation [sic] of water into the Premises; (b) Landlord fails and refuses to take steps to attenuate the ...

Excerpt: ...ause she did not sign the contract. Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307 states: “To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459, 212 Cal.Rptr. 743.) If the action is based on all...

Excerpt: ...ch maintains a church at 740 W. Wilson street in Costa Mesa (“Property”) and is the sole legal title holder to the Property. Plaintiff contends that on 7/15/13, Defendants recorded a quitclaim deed which purported to effect a transfer of title in the Property from Plaintiff to District Council and to a no longer existent corporate entity, Harbor Assembly of God. Plaintiff changed its name from Harbor Assembly of God to Harbor Christian Fellow...

Excerpt: ...ndant WCP Real Estate Fund II(B), L.P.'s (“Fund II(B)”) PMK at deposition and for the production of documents (ROA 1911). Plaintiff also moves to compel the attendance of the attendance of Defendant WCP Real Estate Fund I Holdings, LLC (“Fund I Holdings”) PMK at deposition and for the production of documents (ROA 1914). Each of the PMK deposition notices were served on 1/20/21. The notices, which are identical except for the name of the d...

Excerpt: ... Plaintiff and Dealer contained an arbitration clause. Manufacturer was not a party to the lease agreement. However, Manufacturer contends the lease agreement requires Plaintiff to arbitrate its claim against Defendant. “Because arbitration is a matter of contract, generally one must be a party to an arbitration agreement to be bound by it or invoke it. [Citation] However, both California and federal courts have recognized limited exceptions to...

Excerpt: ...t did consider Exhibit A to the declaration of Stephen Shaw as the potential agreement to arbitrate. As an initial matter, moving defendant failed to file a proof of service no later than five court days before the hearing pursuant to Rules of Court, rule 3.1300(c). However, given that Plaintiffs opposed the motion, the Court addressed the motion on the merits. Plaintiffs also failed to comply with Rule of Court, Rule 3.1110(f)(4) because they di...

Excerpt: ...n of this state or of the United States.” Code of Civil Procedure section 418.10, subdivision (a)(1), provides, “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [¶] (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” “A stat...

Excerpt: ...iled with this Court. Code Civ. Proc. § 2033.280 states: “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from ...

Excerpt: ...oduction of documents (ROA 1908). Each of the PMK deposition notices were served on 1/20/21. The notices, which are identical except for the name of the defendant and the date and time of the deposition, each call for testimony on identical Categories A-R and production of documents in response to identical Categories 1-55. Orland Decs. (ROAs 1960 and 1963)., ¶¶ 19, Exhibits B. Fund II, L.P and Fund II(A) each served objections on 2/2/21. Orlan...

Excerpt: ...st Amended Notice of Deposition is DENIED without prejudice. Ambrose moves pursuant to Code of Civil Procedure section 2025.450, subdivision (a) which provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to ap...

Excerpt: ...08) 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. On demurrer, a complaint must be liberally construed. CCP § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601. All material facts properly pleaded, and reasonable inference...

Excerpt: ...nd 453: 1. Lot Line Adjustment recorded on 2/11/82; 2. Easement Deed and Agreement dated 1/15/92; 3. Grant deed dated 11/12/82. The Court grants the request for judicial notice. Plaintiffs allege they own property at 31112 Hamilton Trail in Trabuco Canyon. Defendant Farah owns the property next door located at 31111 Hamilton Trail. A driveway runs down the property line, with one side of the driveway on Plaintiffs' property and the other side of ...

Excerpt: .... [¶] (b) The application shall be executed under oath and shall include all of the following: [¶] (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. [¶] (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant c...

Excerpt: ...ition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon wh...