Excerpt: ...iff entered into on 05-12-2020 (the “Lease”). The Lease contained an indemnification clause which required OCCA to indemnify Ostraka from any losses, claims or damages caused by the misuse of the Property. Ostraka hired a general contractor Service First to renovate the Property. Service First was required to obtain approval from Plaintiff for the specific work. After the Lease was entered into, OCCA instructed Service First to perform other ...

Excerpt: ... granted. The Complaint alleges Plaintiff is a T-Mobile dealer which operated on premises owned by Defendant. (¶¶ 6-7.) Plaintiff and Defendant executed a License Agreement allowing Plaintiff to operate on the premises between 2/1/22 and 4/30/22. (Complaint, Ex. A.) Plaintiff discovered that in November 2021, Defendant entered into a lease agreement with non- party Pokeworks. (¶ 8.) Plaintiff reached an agreement with Pokeworks wherein Pokewor...

Excerpt: ...the fifth cause of action for inducing breach of contract and the sixth cause of action for intentional interference with contractual relationship. First, Defendants contend that as officers/directors of Defendant Festival of Arts of Laguna Beach (Festival), they cannot be held liable for interference with a contract to which Festival was a party. Second, Defendants contend the FAC fails to allege facts supporting elements of the fifth and sixth ...

Excerpt: ...ch are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. . . Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.” Further...

Excerpt: ..., the court “shall” grant the motion if it determines that a written agreement to arbitrate exists. Plaintiff makes two arguments attacking the showing of the existence of the Agreement. The first is the document has not been properly authenticated. The second is there was no mutual asset because the document presented to Lopez Cruz was in English, and Plaintiff does not read or understand English. Spanish is his native language. With respect...

Excerpt: ...ng party may move for an order compelling responses and for a monetary sanction. Code Civ. Proc § 2030.290(b). With regard to sanctions, the court “shall” impose a monetary sanction against the losing party on a motion to compel unless it finds that party acted “with substantial justification” or other circumstances render the sanction “unjust.” Code Civ. Proc. § 2030.290. No meet and confer is necessary when a party has failed to r...

Excerpt: ...es and request for documents. According to the Proof of Service, on 12-19- 2022 at 7:30 AM Defendant was served with the post judgment written interrogatories as follows: “Substitute served documents to "John Doe", front desk / security (description: Asian, male, 55 yrs., 5'9”, black hair, 190 lbs.). He told me that they would let me up at 9:00 AM, but not before. I told them that I had made previous attempts at other times and that I wanted ...

Excerpt: ... met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross- defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the c...

Excerpt: ...1018, 1027. Civil Code § 1717 provides as follows: “(a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded ... to the prevailing party, then the party who is determined to be the party prevailing on the contract ... shall be entitled to reasonable attorney's fees in addition to other costs ... Reasonable attorneys' fees shall be fix...

Excerpt: ...mplication, but not conclusions of fact or law, are deemed admitted by the demurring party. The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. [¶] In addition to the facts actually pleaded, the court considers facts of which it may or must take judicial notice. Moreover, a party may not avoid demurrer by omitting facts pleaded in the original complaint or by suppressing facts which prove the pleade...

Excerpt: ...ueras v. BAC Home Loan Servicing, LP (2013) 221 Cal.App.4th 49, 62. “‘Duty is not universal; not every defendant owes every plaintiff a duty of care. A duty exists only if “ ‘the plaintiff's interests are entitled to legal protection against the defendant's conduct.' ” [Citation.] Whether a duty exists is a question of law to be resolved by the court.' [Citation.] ‘A duty of care may arise through statute' or by operation of the commo...

Excerpt: ...ty's interest in the litigation.” Plaintiff's complaint was filed on 6/22/22, alleging causes of action against Defendant for (1) domestic violence, (2) intentional infliction of emotional distress, (3) false imprisonment, and (4) negligent infliction of emotional distress. In support of the motion, Plaintiff declares the following: “3. I was born January 12, 1947, making me 76 years old. 4. I have multiple health issues, which are as follows...

Excerpt: ..., or a mistake 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.” Additionally, any judge, at any time before or after commencement of trial...

Excerpt: ...itted with Reply: “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537. However, where the evidence is to fill in gaps raised by the opposition or goes to the admissibility of evidence submitted in opposition to the motion, the evidence may be properly considered. (Id. at 1538 [“[t]o the extent defendants argue they had the rig...

Excerpt: ...spondents' evidentiary objections to the Serrano Declaration. The Court sustains Respondents' evidentiary objections 1 through 21 to the late-filed Mendez Declaration. Code of Civil Procedure, § 527 (a) provides: “A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist the...

Excerpt: ... Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, the parties to an agreement may incorporate the FAA into its terms. Id. at 346-348. Moreover, the undisputed Declaration of Tabraz Rashid establishes 24 Hour Fitness is headquartered in Carlsbad, California and is a leading fitness industry pioneer with nearly four million members that span in 11 states. 24 Hour Fitness owns and operates approximately 300 clubs throughout 11 s...

Excerpt: ...7 provides: “(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: [¶] (1) the lawyer's testimony relates to an uncontested issue or matter; [¶] (2) the lawyer's testimony relates to the nature and value of legal services rendered in the case; or [¶] (3) the lawyer has obtained informed written consent from the client. If the lawyer represents the People or a governmental entity, the conse...

Excerpt: ...s 2, 5-8 and 10 are sustained. Objections 1 and 9 are sustained in part as follows:  Objection 1: sustained in part as to first sentence of paragraph 10 and Figure 1. Lacks personal knowledge as to figure 1, lacks authentication.  Objection 9 sustained in part as to “It is well known that large trees near sidewalks cause damage resulting in uplifts that pose a danger to pedestrians. The City knew or should have known about the change in e...

Excerpt: ...tions of the HOA, Appendix D; 3. The entirety of Plaintiff's Second Cause of Action for Breach of CC&Rs; and 4. 19 affirmative defenses asserted in the HOA's answer. The HOA's Objections to Evidence do not comply with California Rules of Court, Rule 3.1354(b)(3) because they do not quote or set forth the objectionable statement or material as to each objection. The Court declines to rule on Defendant's objections as immaterial to the Court's deci...

Excerpt: ...ntiff or cross- complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of ma...

Excerpt: ...declines to rule on ROI's Objections to the Declaration of James C. Diefenbach as they are immaterial to the Court's ruling. Cross-Complainants ROI Property Group Management, LLC and ROI Property Group 2, LLC (ROI)'s Request for Judicial Notice in Support of Opposition is GRANTED as to Exhibits 1-8 pursuant to Evidence Code sections 452 (d) and (h). The Court otherwise declines to take judicial notice as the remaining documents are immaterial to ...

Excerpt: ...ny regarding mental and emotional distress. (Opposition, 5:20-24.) Plaintiff also contends she has already undergone a defense neurological examination. Plaintiff testified at her deposition she has experienced memory loss, irritability, slurring speech, tremors in her arm, problems sleeping, irritability, and headaches as a result of the slip and fall incident. (Motion, Ex. A at p. 137.) Therefore, Defendant is entitled to conduct a neuropsychol...

Excerpt: ...ompelled. 9 U.S.C. §2. “[I]t is a cardinal 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.4 th 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 c...

Excerpt: ...4th 1079, 1090[“Courts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.”] A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. Code of Civil Procedure § 430.30, ...

Excerpt: ...t under the Song-Beverly Act are not viable because moving Defendant did not issue a warranty for the subject vehicle, which was used at the time of purchase. Plaintiff only opposes the demurrer as to the fourth and fifth causes of action. (See Opposition, pp. 2:13-15, 3:14-15, 4:12-13.) Plaintiff does not argue the first, second, or third causes of action are viable. Therefore, the demurrer is sustained without leave to amend as to the first, se...