Excerpt: ...ust”) demur to the first and third causes of action of Plaintiffs' Complaint. For the following reasons, the demurrers are SUSTAINED. “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling 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 o...

Excerpt: ...e motion is DENIED. Requests for determination of good faith settlement are governed by Code of Civil Procedure section 877.6, which provides, in pertinent part: (a) . . . (2) [A] settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order. The application shall indicate the settling parties, and the basis, terms, and amount of the settl...

Excerpt: ...Discovery, Generally In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ...

Excerpt: ...), Code of Civil Procedure Section 598 (“Section 598”), and Code of Civil Procedure Section 36 (“Section 36”). Section 598 provides: The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference i...

Excerpt: ...ompel Defendants to sign all documents to complete settlement (the “Motion”), and the applicable law. For the following reasons, the Motion is DENIED. More specifically, the court DENIES the portion of the Motion to compel Defendants to sign all documents to complete settlement and the court DENIES the portion of the Motion to reset trial. Summary of Relevant Procedural History On May 17, 2016, Plaintiffs filed the complaint in this case. (RO...

Excerpt: ...tion 473(d) (“Section 473(d)”) provides that a judge may, on motion of either party and after notice to the other party, set aside any void judgment or order. The court retains the inherent power to vacate orders on equitable grounds where a party establishes that the judgment or order was void for lack of due process or resulted from extrinsic fraud or mistake. (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228 [citing Ansley v...

Excerpt: ...s Defendant Casa de Laguna Owners Association, Inc. (ROA 110, Notice of Mtn. at 1:26; see also Memorandum of Points and Authorities at 3:3-4.) As an initial matter, the court finds Casa de Laguna does not have standing to bring the Motion. “ ‘Standing' is a party's right to make a legal claim and is a threshold issue to be resolved before reaching the merits of an action.” (Said v. Jegan (2007) 146 Cal.App.4th 1375, 1382. In Librers v. Blac...

Excerpt: ...fendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theor...

Excerpt: ...heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” The 30-day “cut-off” under Section 437c is measured from the trial date in effect when the summary judgment motion is made. (Green v. Bristol Myers Co. (1988) 206 Cal.App.3d 604, 609; Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1765 fn. 4.) “The importance of providing the minimum statutory notice of a summary judgment hearing ca...

Excerpt: ...t described summary judgment/adjudication motions sought by plaintiffs: [W]here the plaintiff has also moved for summary judgment—or, as in this case, summary adjudication—that party has the burden of showing there is no defense to a cause of action. [Citation.] That burden can be met if the plaintiff has proved each element of the cause of action entitling the party to judgment on that cause of action. [Citation.] If the plaintiff meets this...

Excerpt: ...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.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (H...

Excerpt: ...son Driscoll & Damico LLP, and Sedgwick Claims Management Services (collectively, hereinafter, the “Subpoenaed Parties”). For the reasons set forth below, Plaintiffs/Cross-Defendants motions are DENIED. Code of Civil Procedure 2025.450 (“Section 2025.450”) provides: (a) 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 ...

Excerpt: ...emonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Ko...

Excerpt: ...he following reasons, The Motion is DENIED. Plaintiff filed a Notice of Appeal of Judgment of Dismissal after the Court sustained the Bank of America Defendants' demurrer to the Third Amended Complaint (“TAC”) without leave to amend. Although Plaintiff appeals from the “judgment” entered on October 27, 2020 (“Bank of America Appeal”), the Bank of America Judgment was entered on January 27, 2020 and Notice of Entry of Judgment was file...

Excerpt: ...son Driscoll & Damico LLP, and Sedgwick Claims Management Services (collectively, hereinafter, the “Subpoenaed Parties”). For the reasons set forth below, Plaintiffs/Cross-Defendants motions are DENIED. Code of Civil Procedure 2025.450 (“Section 2025.450”) provides: (a) 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 ...

Excerpt: ...emonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Ko...

Excerpt: ...t described summary judgment/adjudication motions sought by plaintiffs: [W]here the plaintiff has also moved for summary judgment—or, as in this case, summary adjudication—that party has the burden of showing there is no defense to a cause of action. [Citation.] That burden can be met if the plaintiff has proved each element of the cause of action entitling the party to judgment on that cause of action. [Citation.] If the plaintiff meets this...

Excerpt: ...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.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (H...

Excerpt: ...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.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC ...

Excerpt: ...rating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumak...

Excerpt: ...trell, Green, Pekich, Cruz & McCourt (2001) 91 Cal.App.4th 875, 882 (“Lockley”) (internal quotation marks omitted), the appellate court provided an overview of judicial notice: Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. [Citation.] The court may ...

Excerpt: ...r entry of the order or judgment. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981, 985 [reversing trial court's denial of motion to set aside default filed more than one year after entry of default based on extrinsic mistake of incorrect advice from court clerk as to filing fee, leading to rejection of timely answer]; Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97-98 [affirming trial court's grant of relief from entry of de...

Excerpt: ...ws of this state, a court rule or an order of the court. (Code Civ. Proc., § 436.) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10(b).) A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide...

Excerpt: ...itted), citing to Code of Civil Procedure 1281, the California Supreme Court described arbitration agreements: …[a] written agreement to submit to arbitration ... a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. Section 1281.2 provides in relevant part: On petition of a party to an arbitration agreement alleging the existence of a written agreement to arb...

Excerpt: ...s Complaint (ROA 139). (ROA 139.) For the following reasons, Amtech's motion is DENIED. A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atla...

Excerpt: ...2.010 provides: (a) Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought. (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 propert...

Excerpt: ...er directing the defendant to transfer to the levying officer possession of property in defendant's possession, documentary evidence in defendant's possession of title to property, and documentary evidence in defendant's possession of debt owed to defendant. (ROA 20.) In the Application, it states “Attachment is sought to secure recovery on a claim upon which attachment may issue under … Code of Civil Procedure section 483.010.” (Id.) Attac...

Excerpt: ...2013) 220 Cal.App.4th 217, 225.) In ruling 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.) A demurrer is li...

Excerpt: ...END and the Motion to Strike is DENIED IN PART AND GRANTED IN PART. Demurrer “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling 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...

Excerpt: ...on is DENIED in all other respects. In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the ...

Excerpt: ...dure Section 1013b(b). Proof of electronic service must include, among other things, the electronic service address and the residence or business address of the person making the electronic service. (Code Civ. Proc., § 1013b, subd. (b)(1).) Here, Defendants' proof of service here does not include the electronic service address of the person making the electronic service. Within two (2) court days of this hearing date, Moving Defendant The Waterf...

Excerpt: ...), citing to Code of Civil Procedure 1281, the California Supreme Court described arbitration agreements: …[a] written agreement to submit to arbitration ... a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. Section 1281.2 provides in relevant part: On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrat...

Excerpt: ...to submit to arbitration ... a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. Section 1281.2 provides in relevant part: 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 respon...

Excerpt: ...bed the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evi...

Excerpt: ... for Admissions Admitted. Defendants' Motion for Relief from an Order Deeming Request for Admissions Admitted is GRANTED. A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties. (Code Civ. Proc., § 2033.300(a).) Withdrawal or amendment of an admission is permitted only if it determines that the admission was the result of mistake, inadvertence, or excusabl...

Excerpt: ...iff to file the proposed First Amended Complaint, and Plaintiff's Motion for Leave to Amend is DENIED. Procedural Requirements A motion to amend a pleading before trial must: (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph,...

Excerpt: ...g, Training, Supervision And Retention Of Employees (“Negligent Hiring”); (7) Violation Of The Unruh Civil Rights Act California Civil Code §51.7 (“Section 51.7”); and (8) Violation Of The Bane Civil Rights Act, California Civil Code § 52.1 (“Section 52.1”). A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonstrating the action has no merit, that plain...

Excerpt: ...maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. In City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-84 (footnotes and internal quotation marks omitted) the Supreme Court described the statutory scheme for discovery of...

Excerpt: ...otors, LLC (“GM”) is ordered to produce a Person Most Knowledgeable for deposition as to Category Nos. 2-17, 18-27, 30-32, 35-40, 42-49, 51-52, and 57-58 on or before July 23, 2021, under conditions consistent with applicable COVID-19 public health orders and guidance or under conditions to which the parties otherwise stipulate, and to produce without objections by July 23, 2021, documents requested by Request for Production Nos. 1-40 in Plai...

Excerpt: ... Jackson (2001) 93 Cal.App.4th 993, 1020; see also Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 926 [stating that “[c]ourts have uniformly held that the party moving for statutory attorney fees or sanctions has the burden of proof”].) Attorney's fees are recoverable as costs, when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5(10)(A)-(C).) Contractual attorney's fees are recoverable as costs. (Code Civ. Pro...

Excerpt: ...010) 186 Cal.App.4th 383, 388 (internal quotation marks omitted), the appellate court described summary judgment/adjudication motions sought by plaintiffs: [W]here the plaintiff has also moved for summary judgment—or, as in this case, summary adjudication—that party has the burden of showing there is no defense to a cause of action. [Citation.] That burden can be met if the plaintiff has proved each element of the cause of action entitling th...

Excerpt: ...be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in prepar...

Excerpt: ...” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling 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...

Excerpt: ... (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.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal....

Excerpt: ...(2) conspiracy to commit fraud; (3) and unfair business practices. (Id.) These claims are based on the allegation that Charley Cha's signature was forged on the 2018 Security Agreement. (Id.) In addition, the Cross-Complaint pleads an additional cause of action against Heedo Han and Grace Han (Roe 1) based on their alleged breaches of obligations under separate agreements relating to the purchase and sale of Defendant. (Id.) The trial in this cas...

Excerpt: ...e subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. [Citation.] In establishing the statutory methods of obtaining discovery, it was the intent of the Legislature that discovery be allowed whenever consistent with justice and public policy. [Citation.] The st...

Excerpt: ...tiff RDI Financial, LLC (“Plaintiff”). In ROA 32, Defendant offers objections to the Declaration of Kyra Herrick- Ainsworth (ROA 14.) In ROA 33, Defendant offers objections to the Declaration of Kyra Herrick-Ainsworth (ROA 12.) The court considered the objections. The court SUSTAINS the objection and will not consider the Declaration of Andrea Kalmanovitz (ROA 10) because the document is unsigned. The court OVERRULES each of the objections wi...

Excerpt: ... 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.” (See also Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 990 [same].) In Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 35-36 (internal quotation marks omitted), the appellate court described Section 1794(d): The plain wording of section 1794, subdivision (...

Excerpt: ...Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling 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.) A de...

Excerpt: ...omplete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not o...

Excerpt: ...ary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has ...

Excerpt: ... granted Plaintiff leave to file an additional 7 pages for the opening brief, providing for 22 pages total. (ROA 301.) In this case, Plaintiff's opening brief here is 32 pages (not 22 pages). California Rules of Court, Rule 3.1113, subdivision (g), provides that an over length brief shall be treated the same as a late filed brief (i.e., the court has discretion not to consider the brief pursuant to CRC 3.1300(d), though if the court refuses to co...

Excerpt: ...its.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255 [citation omitted].) “Thus, the provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the determination of actions on their merits.” (Id. [citation and internal quotation marks omitted].) Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing th...

Excerpt: ... TRO, (2) the law on which the judge granted injunction or TRO has changed, or (3) the ends of justice would be served by the modification or dissolution. (Code Civ. Proc., § 533; Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 366; Luckett v. Panos (2008) 161 Cal.App.4th 77, 85; see also In re Butler (2018) 4 Cal.5th 728, 738–744 [modification of injunction was required due to statutory changes constituting material change in t...

Excerpt: ... Cause of Action (Fraudulent Inducement) The Sixth Cause of Action alleges that Defendant FCA actively concealed and/or suppressed a known defect from Plaintiffs. Plaintiffs, in turn, were harmed by the concealment, which substantially influenced Plaintiff's' purchase of the subject vehicle. Based on the state of the record, the court finds the Six Cause of Action for Fraudulent Inducement is barred by the economic loss rule. Under California's e...

Excerpt: ...y “prevailing on the contract” is entitled to reasonable fees. (Civ. Code § 1717.) In this case, the Residential Purchase Agreement under which Plaintiffs filed this lawsuit provides for attorney's fees for the prevailing party in any action “arising out of” the agreement. (Cronin Dec., Ex. 1.) The parties dispute whether Defendants are the prevailing party. “[U]nder Santisas [v. Goodin (1998) 17 Cal.4th 599], when a trial court is pre...

Excerpt: ... the contract” is entitled to reasonable fees. (Civ. Code § 1717.) Code of Civil Procedure Section 1032 (“Section 1032”) provides: (a) As used in this section, unless the context clearly requires otherwise: (1) “Complaint” includes a cross- complaint. (2) “Defendant” includes a cross-defendant, a person against whom a complaint is filed, or a party who files an answer in intervention. (3) “Plaintiff” includes a cross-complainan...

Excerpt: ...(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.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC...

Excerpt: ...(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.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC...

Excerpt: ...First Cause of Action: Prescriptive Easement “[A] claim for prescriptive easement, include use that is (1) actual, (2) open and notorious, (3) hostile and adverse to the original owner, (4) continuous and uninterrupted, (5) under a claim of right, (6) for the statutory period of five years.” Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938. A prescriptive easement cannot be acquired unless the user has a hostile and adverse intent. “[T]he g...

Excerpt: ...App.4th 217, 225.) In ruling 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.) A demurrer is limited to the o...

Excerpt: ... 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.) A demurrer is limited to the operative complaint's four corners, attached exhibit...

Excerpt: ...nc. (2013) 220 Cal.App.4th 217, 225.) In ruling 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.) A demurrer ...

Excerpt: ...on has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring ...

Excerpt: ...ling, and photographing of tangible items in compliance with Plaintiff's inspection demand. The court ordered the parties to meet and confer in good faith to devise an inspection protocol. Further, “[t]o the extent Defendants are concerned about the treatment of confidential and/or private information viewed or collected during the forensic inspection, the parties can submit a stipulated protective order for treatment and maintenance of such in...

Excerpt: ...) Respondeat Superior; (4) Negligent Hiring, Training, Supervision And Retention Of Employees (“Negligent Hiring”); (7) Violation Of The Unruh Civil Rights Act California Civil Code §51.7 (“Section 51.7”); and (8) Violation Of The Bane Civil Rights Act, California Civil Code § 52.1 (“Section 52.1”). A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonst...

Excerpt: ...217, 225.) In ruling 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.) A demurrer is limited to the operative...

Excerpt: ...In ruling 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.) A demurrer is limited to the operative complaint'...

Excerpt: ..., 402, the appellate court provided an overview of the Civil Discovery Act: The Civil Discovery Act provides litigants with the right to broad discovery. In general, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calcula...

Excerpt: .... Defendants CRS', Nutech's, Kevin Curry's and Nick Curry's Demurrer to the Fifth Cause of Action in the FAC is SUSTAINED with fifteen (15) days leave to amend. Demurrers Generally “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman ...

Excerpt: ...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. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demu...

Excerpt: ...ation of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any q...

Excerpt: ... (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c(p)(2).) Once the moving...

Excerpt: ...y be received in evidence.” (Evid. Code § 1401(a).) “Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) “For a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document, would be improper. A court ruling on a demurrer ...

Excerpt: ...Code Civ. Proc., § 1008(a).) The motion must also be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. (Code Civ. Proc., § 1008(a).) A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an e...

Excerpt: ...ts' requests for judicial notice are GRANTED. “Under Code of Civil Procedure section 1094.5, there are two alternative standards of review that a trial court uses to review [challenges to an agency's factual findings raised by] a petition for writ of administrative mandamus. [Citation.] ‘If the administrative decision involved or substantially affected a “fundamental vested right,” the superior court exercises its independent judgment upo...

Excerpt: ...is by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlse...

Excerpt: ...ute resolution.'” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 [citations omitted].) “Consequently, courts will indulge every intendment to give effect to such proceedings.” (Moncharsh, 3 Cal. 4th at 9 [citations and internal quotation marks omitted].) “Indeed, more than 70 years ago [the California Supreme Court] explained: The policy of the law in recognizing arbitration agreements and in providing by statute for their enforcement ...

Excerpt: ...and (2) that negligence has also made it impossible for the plaintiff to prove causation, the burden may be shifted to defendant to prove its negligence was not the cause of plaintiff's injury. (Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 769-776; see also Smith v. Americania Motor Lodge (1974) 39 Cal.App.3d 1, 5.) This shifting is done “as a matter of fairness and in view of the parties' relative fault.” (Haft, supra, 3 Cal.3d at p. 772 [ci...

Excerpt: ...that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a...

Excerpt: ...ess any entries that are improper or excessive. The Motion is continued to May 12, 2021, 10:00 a.m., in Department C64 to determine the amount to be awarded. If the parties select a different date, the parties are ordered to notify the clerk. Code Civ. Proc., § 425.16 (c) (1) provides that “Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to re...

Excerpt: ...leges that Plaintiff was retained by a general contractor to install cabinetry on a custom designed home in Laguna Beach. (FAC, ¶ 7.) Defendant Harnish submitted a Proposal for finishing Plaintiff's custom cabinetry installed by Plaintiff, and Plaintiff approved the Proposal. (FAC, ¶¶ 8-9.) Defendants represented that Jeremy Harnish Designed Finishes was a fully insured firm and qualified to perform the services, but it apparently was not insu...