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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...