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: ...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...