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