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: ...)(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: ...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: ...��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: ...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...