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: ...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: ...��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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ... 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: ...)(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: ...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: ...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: ...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: ...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: ...��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: ...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: ...) 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: ...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: ...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: ...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: ...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...