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

Excerpt: ...inst him or her.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A at ¶ 7:84, citing Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) The role of a general demurrer, on the other hand, is to “test the legal sufficiency of a complaint.” (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994, citations omitted.) On demurrer, the court must liberally construe the complaint in the plaintiff or cross-c...

Excerpt: ... section 1780(e) states, in relevant part, that “[t]he court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section.” (Civ. Code, § 1780 (e).) An award to a prevailing plaintiff is mandatory, even if the litigation is resolved by a pretrial settlement agreement, absent an enforceable agreement to the contrary. (Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 181....

Excerpt: ...under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center...

Excerpt: ...ny other persons bound by the arbitration award.” (Code Civ. Proc. § 1285.) “A petition to confirm an award shall be served and filed not later than four years after the date of service of a signed copy of the award on the petitioner. A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.” (Code Civ. Proc. § 1288....

Excerpt: ...culated to lead to the discovery of admissible evidence.” This includes discovery related “to the claim or defense of the party seeking discovery or of any other party to the action.” (Code Civ. Proc., § 2017.010.) A plaintiff “may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant.” (Code Civ. Proc., § 2025.210(b).) “The service of a depo...

Excerpt: ...ions filed under ROA 46 in support of his opposition are SUSTAINED. Defendants have failed to properly authenticate the RISC and the Smith Declaration lacks foundation and personal knowledge. Upon Plaintiff's authentication challenge, the burden shifted back to Defendants to authenticate the RISC and Defendants have failed to do so. Accordingly, Defendants have failed to establish the existence of an arbitration agreement and for this reason alon...

Excerpt: ...al principle that arbitration under the FAA is a matter of consent, not coercion.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [citations and quotations omitted].) “Thus, a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'” (Ibid.) “If a party to a civil action asks the court to compel arbitration of the pending claim, the court must de...

Excerpt: ...er of consent, not coercion.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [citations and quotations omitted].) “Thus, a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'” (Ibid.) “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 ‘agreeme...

Excerpt: ...(a)(1).) “Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.” (Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-1313.) The plaintiff must present facts “demonstrating that the conduct of defen...

Excerpt: ...Plaintiffs' applications. Analysis Claim and delivery is “a provisional remedy which affords the plaintiff the right of immediate possession of the property involved in the action for specific recovery of the property without waiting for trial and judgment.” (American Mach. & Foundry Co. v. Pitchess (1968) 262 Cal.App.2d 490, 493.) “Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter ...

Excerpt: ... made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” (CRC, rule 3.113(l).) Analysis Standing Defendant contends that Plaintiff lacks standing to pursue its claims because the invoices have a notation on them stating, “The account receivable has been assigned to and is owned by or subject to security interest of Paychex Advance, LLC, doing business as Advance Partners, and ...

Excerpt: ...oponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to pt7)ve or disprove that fact or lead to other evidence that will tend to prove or disprove the fact." (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224; Glenfed Develop. Corp. v. Superior Court (1 gg7) 53 Cal.App.4th 1113, 1117.) Absent a claim of privilege or attorney work product, the bur...

Excerpt: ...pers on Shah. Shah filed an answer to Lee's cross-complaint on 1/12/2023. (ROA No. 51.) As such, Shah is entitled to a copy of the opposition. (Code Civ. Proc., S 1014.) The motion is timely and the parties sufficiently met and conferred before Defendant brought this motion. Although Defendant did not strictly comply with CRC, Rule 3.1345, the Court exercises its discretion to reach the merits of the motion. (Mills v. U.S. Bank (2008) 166 cal.App...

Excerpt: ...ired to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., 5 430.41(2).) The Court expects substantial compliance with the Code of Civil Procedure and the Rules of Court from both sides going forward. Moreover, Plaintiff is advised that all law and motion can be accessed via a remote hearing (Zoom). The instructions for check-in can be found through the Court's website at https://www.occourts.org/...

Excerpt: ...of service for the reply does not include the server's name. (Code Civ. Proc., 1013b(a).) The Court reminds the parties of their obligation to comply with section 1013b when the parties are electronically serving documents. Analysis "A party may move for judgment on the pleadings." (Code Civ. Proc., S 438(b)(1).) A defendant may move for a judgment on the pleadings when "[t]he complaint does not state facts sufficient to constitute a cause of act...

Excerpt: ...sufficient to constitute a cause of action" (Code Civ. Proc., 430.10(e)) and/or that "[t)he pleading is uncertain. ' (Code Civ. Proc., S 430.100.) "When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading." " (Code Civ. Proc., S 430.30(a).) The role o...

Excerpt: ...e overruled. Analysis "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Civil Code S 1794(d).) "The plain wording...

Excerpt: ... breach, and damage proximately caused by that breach." (Knox v. Dean (2012) 205 Cal.App.4th 417, 432.) "A broker has a fiduciary duty to its client...The fiduciary duty is greater than the negligence standard of due care under section 2079. (S 2079.2 [standard of care is of a 'reasonably prudent real estate licensee'].)" (Michel v. Moore & Associates, Inc. (2007) 156 Cal .App.4th 756, 762.) It is "not enough to disclose only the fact of dual rep...

Excerpt: ...rd of an application allowing Mr. Nelson to appear as counsel pro hac vice in this case; nor is there an order allowing the same. (Cal. R. Ct. Rule 9.40.) Accordingly, Mr. Nelson is not permitted to appear in this court, including, at this hearing, unless he demonstrates he is an active licensee of this state's bar. Objections The Court declines to rule on Defendants' evidentiary objections, because they are not material to the court's dispositio...

Excerpt: ...onsent, not coercion.'" (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) "Thus, 'a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'" (Ibid.) "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.'" (Iyere v....

Excerpt: ...e a cause of action" (Code Civ. Proc., 430.10(e)) and/or that "[t]he pleading is uncertain. ' (Code Civ. Proc., S 430.100.) "When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading." " (Code Civ. Proc., S 430.30(a).) The role of a demurrer is "to tes...

Excerpt: ...t Law Firm. Plaintiff alleges Law Firm filed a cross-complaint on Andrade's behalf against Plaintiff in Juergen Scherer v. M. Vista Laguna Property, LLC, case number 30-2020-01169590 ("Underlying Action") for equitable indemnity, express indemnity, contribution, equitable apportionment, and declaratory relief on 3/25/2021. Plaintiff alleges Defendants were aware that there was no factual basis for the cross-claims against Plaintiff, that no reaso...

Excerpt: ... judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences r...

Excerpt: ...ispute. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal. App. 4th 1106, 1117.) Analysis A party to whom a complaint has been brought may demurrer on the grounds that "Ct]he pleading does not state facts sufficient to constitute a cause of action" (Code Civ. Proc., 430.10(e)) and/or that "[t)he pleading is uncertain. ' (Code Civ. Proc., S 430.100.) "When any ground for objection to a complaint, cross-complaint, or answer a...

Excerpt: ...estors, Inc. v. California Coastal Com. (1994) 26 Cal.App.4th 516, 527, citing People v. Thacker (1985) 175 Cal.App.3d 594, 598-599.) Note Defendants filed this motion within 30 days of being served with the complaint. (ROA No. 9, 11, and 14.) Thus, the motion is timely. Further, as no answer has been filed, the Court declines to consider the motion on the ground of convenience of witnesses. (Code Civ. Proc. § 397(c); Cholakian & Associates v. S...

Excerpt: ...cised liberally so as not to deprive a party of the right to assert a meritorious cause of action or defense. The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a mer...

Excerpt: ...2004) 122 Cal.App.4th 1229, 1246-1247.) A self-represented litigant is not entitled to any greater consideration than other litigants and attorneys. (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594 [self-represented litigants are entitled to same treatment as represented parties]; see Cal. Rules of Court, Rule 1.6(15) [defines “parties” as including both self-represented persons and persons represented by an attorney of record witho...

Excerpt: ...Defendants' evidentiary objections to the Rainboldt Declaration (Nos. 2, 3, 4, 5, 10, and 11) and the Arias Declaration (Nos. 7 and 11) are sustained. Defendants' remaining objections are overruled. Judicial Notice Plaintiffs request for judicial notice of the file in the case of Dickenson v. C&B Towing, Orange County Superior Court case no. 2010-00372510 is denied. Plaintiffs did not identify any particular document in the of the court file they...

Excerpt: ...fs' oppositions were filed and served late, without explanation. However, it is within the Court's discretion to consider late filed opposition. (Cal. Rules of Court, rule 3.1300(d).) Accordingly, the Court will consider Plaintiffs' oppositions. Plaintiffs are admonished in the future late filings may not be considered. Analysis A party to whom a complaint has been brought may demurrer on the grounds that "[t]he pleading does not state facts suff...

Excerpt: ... apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general." (Code Civ. Proc., § 2030.300(a).) “The statute does not require any showing of good cause for the serving and filing of interrogatories. Thus, th...

Excerpt: ...Plaintiff intends to proceed against Orange Coast at the hearing. The parties did not comply with California Rules of Court, Rule 3.1113(d). The Court reminds the parties that "[a] memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper." (Cal. Rules of Court, Rule 3.1113(g).) Lastly, FCA submitted a declaration in support of its reply. “The general rule of motion practice…i...

Excerpt: ...r answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading." ." (Code Civ. Proc., § 430.30(a).) The role of a demurrer is “to test the legal sufficiency of a complaint.” (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994, citations omitted.) In ruling on the demurrer, the court “treats the demurr...

Excerpt: ...HOA's CC&Rs and for Defendant's alleged harassment of Plaintiffs. Defendant brings a special motion to strike Plaintiffs' third cause of action intentional infliction of emotional distress (“IIED”) claim. Defendant contends that his statements that are the basis for Plaintiffs' IIED claim were “made in connection with issues of public interest in a public forum,” and, as such, are subject to the protections of CCP section 425.16 (the “A...

Excerpt: ...emurrers based on uncertainty are rarely sustained – only 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. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) However, a demurrer for uncertainty may lie if the failure to label the parties and claims renders the compl...

Excerpt: ...g relevant to the issues in this case. Objections Plaintiff's objection to Defendants' separate statement in support of the motion for summary judgment/adjudication is OVERRULED. The Court DECLINES to rule on Plaintiff 's remaining objections. The evidence objected to is not material to the Court's disposition of this motion. (Code Civ. Proc. §437c(q).) ANALYSIS Defendants' Notice “Defendants believes that many issues appear in this action tha...

Excerpt: ...y, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code." (Code Civ. Proc. § 473(a)(1).) "Additionally, any judge, at any time before or after commencement of trial, in the fur...

Excerpt: ...stake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code." (Code Civ. Proc. § 473(a)(1).) "Additionally, any judge, at any time before or after...

Excerpt: ...sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been...

Excerpt: ...ing on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berry...

Excerpt: ...cked and called “limpy,” or “gimpy.” He further alleges other discriminatory comments were made about his age, mobility, and fitness to work. (FAC, ¶23). Plaintiff alleges that in 2019 and 2020, he observed under age employees of Defendants serving alcohol to customers. Plaintiff states he told the underage workers to stop serving alcohol. Plaintiff also claims he reported the problem to his supervisors, but that Defendants continued to ...

Excerpt: ...y extension to respond as they had a motion to be relieved as counsel filed and set to be heard in late January 2021. The extension was granted. Counsel was relieved and no responses were served. In early March 2021, Defendant's counsel wrote to Plaintiffs reminding them of their obligation to respond. No responses were received, Defendant filed the pending motions on 03/25/2021. On 04/21/21, Plaintiffs retained new counsel who contacted Defendan...

Excerpt: ...”) to serve further responses to form interrogatory numbers 14.1, 17.1, 50.4, 50.5, and 50.6, special interrogatory numbers 5, 6, and 14-19, and requests for admission numbers 3, 4, and 6. Plaintiff also seeks monetary sanctions in the amount of $850 for each motion against the respective defendant Plaintiff's Motions To Compel are GRANTED in part and DENIED in part as follows: Background Plaintiff alleges on or about 11/8/2019, Plaintiff and B...

Excerpt: ...ubmitted a declaration in support of Defendant's reply. “The general rule of motion practice…is that new evidence is not permitted with reply papers…‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case ...' and if permitted, the other party should be given the opportunity to respond.” ( Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Defendant's newly submitted evidence...

Excerpt: ...ake judicial notice of wage history information from the website for the State of California Department of Industrial Relations. However, the printout described is not attached to their request. In any event, even as to matters which are appropriate for judicial notice, the court may not take judicial notice of the truth of the matters stated within. Analysis In ruling on the sufficiency of a complaint against a general demurrer, the court must "...

Excerpt: ...iency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations." (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Because a demurrer tests only the sufficiency of the complaint, "a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial n...

Excerpt: ...vision, and Retention) Causes of Action Plaintiff's Complaint is OVERRULED. Background Plaintiff sues Defendants for wrongful termination. Plaintiff's Complaint asserts the following five Causes of Action: 1. First Cause of Action for Sexual Harassment and Retaliation in Violation of Government Code §12940(j); 2. Second Cause of Action for Negligent Hiring, Supervision, and Retention; 3. Third Cause of Action for Wrongful discharge; 4. Fourth Ca...

Excerpt: ... Discrimination in Violation of Gov. Code § 12940 et seq. 3. Age Discrimination in Violation of Gov. Code § 12940 et seq. 4. Failure to Accommodate in Violation of Gov. Code § 12940(m) 5. Failure to Engage in Interactive Process in Violation of Gov. Code § 12940(n) 6. Failure to Prevent Discrimination in Violation of Gov. Code § 12940(k) 7. Retaliation in Violation of Gov. Code §12940(h) 8. Wrongful Termination 9. Violation of Business & Pr...

Excerpt: ...that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Non-intentional torts may form the basis for punitive damages when the conduct constitute...

Excerpt: ...ions.”). Plaintiff moves for an order “reconsidering the orders of the Honorable Thomas Delaney of 11/19/2020 denying continuance.” (Not. of Mot. at 1.) Although the authority for the motion is not cited in the notice, Plaintiff cites to CCP section 1008(a) in the Points and Authorities. (Mot. at 4.) Under section 1008(a), when an application for an order has been “refused in whole or in part,” a party seeking reconsideration can make a...

Excerpt: ...d. In 2018, Plaintiff retained Defendant to represent her as a plaintiff in a lawsuit against Michael Goguen. In connection with her retention of Defendant, Baptiste and Defendant entered into a written Attorney-Client Fee Agreement. The Fee Agreement provided Defendant would be paid on a contingency basis. Baptiste made the $525,000 deposit required by the Fee Agreement, and Defendant began its representation of Baptiste in 2018. Plaintiff alleg...

Excerpt: ...53,130.00 for a good faith deposit. The lease was contingent upon Plaintiff's receipt of a conditional use permit. Plaintiff did not obtain a conditional use permit and requested the refundable prepaid fees, but Defendant refused to return it. On 08/17/2020, Plaintiff filed a Complaint against Defendant for: 1) Breach of written contract; 2) Breach of written contract for failure to return security deposit; 3) Common count; and 4) Violation of Ci...

Excerpt: ...ories and 27 inspection demands; Plaintiff Higueron propounded 56 special interrogatories and 27 inspection demands. (Id.) On 08/07/2020, Plaintiffs requested responses without objections be served. (Bosse Decl. ¶ 9.) No responses were received as of the date of filing. (Id.) In late 09/2020, Defendant Gallardo retained new counsel. New counsel immediately met and conferred with Plaintiffs regarding outstanding discovery, and on 10/12/2020, Defe...

Excerpt: ...ative complaint). (Register of Actions/Docket (“ROA”) No. 140.) On November 21, 2019, Plaintiffs filed a Motion for Leave to Amend their TAC. (ROA No. 227.) Plaintiffs sought to add Western States Cabinets, an unknown entity, and Peter Godden as defendants, as well as add additional causes of actions against Defendants Tyler and David Kokx. (Id.) On January 10, 2020, the Court denied Plaintiffs' Motion for Leave to Amend. (ROA No. 261.) On Ja...

Excerpt: ...A”) on May 16, 2016. (See Cassidy Decl., ¶¶ 2-8, Exh. A.) Plaintiff does not dispute that he entered into the IRA and affirms that he did sign the IRA as a pre-condition to his employment with Defendants. (See De Leon Decl., ¶¶ 2-8, Exh. A.) The Court, however, finds that Plaintiff met his burden of establishing the IRA is both procedurally and substantively unconscionable and that the unconscionable provisions cannot be served from the IRA...

Excerpt: ...s, Inc. (2007) 149 Cal.App.4th 402, 412, 57 Cal.Rptr.3d 156; Oakland Raiders v. National Football League, supra, 131 Cal.App.4th at pp. 652–652, 32 Cal.Rptr.3d 266 [applying sham pleading doctrine to request for leave to amend in summary judgment context].) Here, the Court does not perceive the Second Amended Complaint (“SAC”) to have omitted harmful allegations asserted in the First Amended Complaint (“FAC”), nor does the Court perceiv...

Excerpt: ..., unduly burdensome, oppressive, and harassing and precluded under C.C.P. section 2017.010, 2018.010, and 2025.420(b) by seeking information protected by the attorney-client and work product privileges. Initially, the Court finds that Defendant failed to establish a protective order is warranted based on undue burden, oppression, or harassment. “Oppression must not be equated with burden. The objection based upon burden must be sustained by evi...

Excerpt: ...xception based on fraudulent concealment. (Id. at 993). Unlike Robinson, where the provision of “false certificates of conformance” was readily found to be “independent” from the “contract loss” of “nonconforming clutches,” the alleged failure of Defendant to disclose the alleged engine defect completely overlaps what is sought by a contract/warranty remedy. Additionally, leave to amend is DENIED, as Plaintiff has not indicated an...

Excerpt: ...aint Frames the issues A summary judgment motion must show that the “material facts” are undisputed (CCP § 437c(b)(1)). The pleadings serve as the “outer measure of materiality” in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. [Laabs v. City of Victorville (2008) 163 CA4th 1242, 1258]. Here, although the Notice of Motion to indicate upon which pleading MPS seek summary judgm...

Excerpt: ...oss-complaint (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 which is the subject of the cause brought against him.” Where a defendant does not file a cross-complaint at the same time as the answer to the complaint, the defendant shall obtain leave of court. (Code Civ. Proc. § 428.50(a)-(c).) ...

Excerpt: ...uses of action against LASC and QME: (1) medical malpractice, and (2) loss of consortium. The motion, however, focuses solely on the medical malpractice claim, as a spouse's loss of consortium claim rises or falls with the other spouse's medical malpractice claim. (See Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1256.) The elements of a medical negligence cause of action are: 1. duty of professional to use such skill, prudence...

Excerpt: ... Cal.4th 245, 255.) The court may stay discovery until disposition of any pending criminal proceedings or until the statute of limitations has run on criminal prosecution, so that defendant can no longer claim a Fifth Amendment privilege. (Pacers, Inc. v. Sup.Ct. (Needham) (1984) 162 Cal.App.3d 686, 689—depositions postponed for one year, at which time criminal prosecution would be barred.) However, Defendant has no right to a blanket stay on F...

Excerpt: ... [disapproved on other grounds, Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919].) The Court also take judicial notice of the fact that IndyMac Bank, F.S.B. was closed by the Office of Thrift Supervision, which appointed the Federal Deposit Insurance Corporation as receiver for IndyMac on July 11, 2008. (Ev C § 452(c) and (h).) Preliminary Injunction. For an injunction to issue, the moving party must establish a likelihood of prevailin...