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: ...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: ...) 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: ...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: ...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: ...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: ...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: ...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: ...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: ... (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: ...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: ...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: ...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...