Excerpt: ...oot. Code Civ. Proc. S 1281.2 provides, inter alia: "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 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 a...

Excerpt: ...was sustained without leave to amend. (12/22/2022 Minute Order.) On 2/10/2023, Plaintiff dismissed its complaint and the entre action without prejudice. (ROA No. 145.) Defendant is entitled to fts attorneys' fees as the prevailing party. (Bank of America, N.A. v. Mitchell (2012) 204 Cal.App.4th 1199, 1210.) In addition, the Court did not find the contract was unenforceable, only that Defendant's performance was excused. (Geurts Decl., '1 4; but s...

Excerpt: ...urrer. Although a special demurrer for uncertainty is generally disfavored, it may be sustained "where the complaint is so bad that defendant cannot reasonably respond—i.e„ he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her." (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(l)-A at 7:84, citing Khoury v. Mays of Calif. , Inc. (1993) 14 Cal.App.4th ...

Excerpt: ...m Interrogatories (Set One) from Defendant David Weitzman M.D. P.C. [ROA 541 MP: Plaintiff Balboa Capital Corp. RP: Defendants David Weitzman and David Weitzman M.D. P.C. MP: Plaintiff Balboa Capital Corp. RP: Defendants David Weitzman and David Weitzman M.D. P.C. POS: 3/6/23 OPP: 8/30/23 REPLY: 9/5/23 RELIEF SOUGHT: Plaintiff Balboa capital corp. moves to compel responses from: (1) Defendant David Weitzman to requests for production of documents...

Excerpt: ...agreement containing an arbitration provision. Schaaf became a customer of ConsumerDirect by signing up on ConsumerDirect's website in 2019. He testifies that he became a customer of ConsumerDirect on May 17, 2019, by purchasing its credit monitoring services to monitor his personal credit scores, credit reports, etc. and he continues to pay a monthly membership fee. (Schaff Decl., 92.) Schaff refers the court to Section 15 of the Service Agreeme...

Excerpt: ...Motion, both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement, before arbitration can be compelled. (See 9 U.S.C. 52 and C.C.P. 51281.2). "If a party to a civil action asks the court to compel arbitration of the pending claim, the court must determine in a summary proceeding whether an 'agreement to arbitrate the controversy exist.'" ('yere v. Wise Auto Group (2023) 87 Cal.App.5...

Excerpt: ...summary adjudication against defendant and cross-defendant Portrait Construction, Inc. that Portrait has a duty to defend Cross-complainants against the complaint in this action is continued to October 18, 2023 at 1:30 p.m. Department C24 for Cross-complainants and Portrait Construction to correct their exhibit/evidence errors as described below. Depinho MSA "A party may move for summary adjudication as to one or more causes of action within an a...

Excerpt: ...nge of address has been filed by counsel, as required by the Rules. (Cal. R. Ct. Rule 2.251, subd. (g)(l).) The address of record, "[email protected]," is presumed to be "valid," until counsel files and serves "notice that the address is no longer valid." (Cal. R. Ct. Rule 2.251, subd. (g)(3).) [ON THE MERITS RULING, BELOW, AFTER NOTICE DEFECT CORRECTED OR WAIVE-D.I The Demurrer by Defendants Michael Shahin, Janette Shahin and Monique Shahin (...

Excerpt: ...efenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of achon has no merit, that there is no aft-mat-ive 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, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or p...

Excerpt: ...st, or station, or to compel the admission of a party to the use and enjoyment of a right or offce to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person." (Code Civ. Proc., 51085, subd. (a).) Additionally, as noted by Petitioners, members of limited liability corporations have statutory rights to obtain certain corporate records. (Corp. Code, 517704.10, subd. (a)....

Excerpt: ...nsurance policy insures up to $443,400 for personal property losses. Compl., 98.) On August 30, 2021, Schreck suffered a loss of his personal property, which triggered State Farm's obligation to compensate Schreck for all such losses. State Farm has refused to compensate Schreck for all his losses resulting in breach of the policy. (Compl., 915.) Defendant argues that the contract must be attached to the Complaint, or the material terms specifica...

Excerpt: ... advantages, or accommodation of the Store due to his disability." (Comp'. at '1 33.) Defendant contends this claim is subject to demurrer because (1) "Plaintiff lacks standing to bring an ADA cause of action as a matter of law," and (2) this claim purportedly "does not relate to Plaintiff's slip and fall allegations." Civil Code section 51 (Unruh Civil Rights Act) provides, in relevant part, that "[a]ll persons within the jurisdiction of this st...

Excerpt: ...uests for production of documents, set one. Plaintiffs also request monetary sanctons in the amount of $2,3100.00 against Defendant and counsel plus an additional $1,500.00, as well as issue/evidenbary sanctions. The subject requests were served over a year and a half ago on 1/12/22. Defendant served objection-only responses on 2/11/22. The parties agreed to extensions until 3/17/22 for Defendant to serve further substantive responses. Plaintiffs...

Excerpt: ...he action was "friwlous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." The Court finds that defendant was not the prevailing party here. The principles of res judicata and collateral estoppel do not apply because there was no adjudication on the merits. The principles permitting a prevailing party finding after a voluntarily dismissal do not apply, again because there was no determin...

Excerpt: ...Nos. 1-31; (2) striking Defendant's objections and compelling Defendant to produce amended verified responses to Plaintiff's Requests for Production of Documents Nos. 1, 14, 15, 16, 17, 22, 23, 24, 25, 30, 31, 32, 33, 38, 39, 40, 41, 44, 47, 48, 51, 52, 53, and 54 and all responsive documents correspnding to those Document Requests; (3) that Defendant comply within 10 calendar days; and (4) that Defendant is ordered to pay monetary sanctions to P...

Excerpt: ...ure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Thus, the burden is on “the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion,” and then the cou...

Excerpt: ...equests for admission. The subject discovery was propounded on Defendant on June 28, 2022. (Long Decl., Ex. A.) On August 1, 2022, Defendant Wu provided responses to Plaintiffs' discovery. (Long Decl., Ex. B.) The parties met and conferred thereafter without success. (Long Decl., ¶¶ 2- 4.) Plaintiffs filed a First Amended Complaint three days before Defendant filed her opposition to the motions. (ROA 329.) Plaintiffs considerably expand on thei...

Excerpt: ... violations of the Song-Beverly Act, breach of the implied warranty of merchantability, and negligent repair. FCA contends all of Plaintiff's claims are subject to binding arbitration, pursuant to an arbitration provision in the “Retail Installment Sale Contract – Simple Finance Charge (With Arbitration Provisions)” (the “RISC”) between Plaintiff and the now-dismissed dealership defendant, Tuttle. Plaintiff's request for judicial notice...

Excerpt: ...Arbitration Provision shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.) and not by any state law concerning arbitration.” The FAA provides that a “written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and en...

Excerpt: ...t 19, 2022 in UD Action - Exh. C 4. Return on Writ of Possession filed on September 13, 2022 in UD Action - Exh. D Under Evidence Code section 452(d)(1), a court may take judicial notice of court records of this state. Defendant's request for judicial notice is GRANTED. Demurrer to the cause of action for “Security Deposit” Civil Code section 1950.5 governs the imposition, uses, and disposition of security deposits for rental agreements for r...

Excerpt: ...l Dist. (1992) 2 Cal. 4th 962, 966-67. A pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the defendant in fairness needs such detail which can be conveniently provided by the plaintiff. Less particularity is requi...

Excerpt: ...d therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On ...

Excerpt: ...ust appear on the face of the pleading under attack, or from matter which the court may judicially notice. (CCP § 437; CPF Agency Corp. v. R&S Towing Service (2005) 132 Cal.App.4th 1014, 1032.) Merits CalTrans asks the court to strike negligence language, reference to Government Code §815.2, and wanton/reckless language. As to the negligence language, CalTrants argues that under the Government Claims Act, a public entity is not liable in tort e...

Excerpt: ...sic matters may not be considered; the pleading under attack must be accepted as true. (Id.) Defendant brings its motion only as to the fifth cause of action in Plaintiff's FAC for fraudulent concealment/inducement. The elements of fraud 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) res...

Excerpt: ...corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. Leek v. Cooper (2011) 194 Cal. App. 4th 399, 413. On demurrer, a complaint must be liberally construed. Code Civ. Proc. § 452; Stevens v. Superior Court (1999) 75 Cal. App. 4th 594, 601. All material fac...