Excerpt: ...deceased husband's estate. 3) Plaintiff has failed to name a necessary and indispensable party – the Estate of Antonio A. Hernandez. “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996. The Court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court assumes �...

Excerpt: ...tice (“RJN”) of Exhibits A and B is GRANTED. Code of Civil Procedure section 425.16, subdivision (b), states, “(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plainti...

Excerpt: ... of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459. Unruh-Haxton v. Regents of University of California (2008) 162 Cal. App. 4th 343, 364– 365 provides that “[o]n a demurrer a court's function is limited to testing the legal sufficiency of the complai...

Excerpt: ...that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.” Code Civ. Proc. § 1008(c). Code of Civil Procedure section 1008, subdivision (c), provides: “If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.” If the court wishes to, it has the power to ...

Excerpt: ... Pools, Inc. v. Turner Const. Co. (2000) 79 Cal.App.4th 1254, 1268; Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1027. Here, Plaintiffs accepted a statutory 998 offer that states: “Defendants agree to pay Plaintiffs' attorneys' fees and costs, as awarded by the Court following a motion for attorneys' fees and costs, pursuant to statute and other applicable law.” Moreover, Plaintiffs are entitled to fees under Labor Code § 21...

Excerpt: ...eit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been 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...

Excerpt: ...); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Additionally, a defendant may demur on the grounds the pleading is uncertain. Code Civ. Proc., § 430.30, subd. (f). The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” Postley v. Harvey (1984) 153 Cal.App.3d 280, 286. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusion...

Excerpt: ... under an agreement with non-party Flip Funding. (¶ 19.) White's appraisal allegedly contained Fannie Mae Certification #23, which states: “The borrower, another lender at the request of the borrower, the mortgagee or its successors and assigns, mortgage insurers, government sponsored enterprises, and other secondary market participants may rely on this appraisal report as part of any mortgage finance transaction that involves any one or more ...

Excerpt: ...“trial dates are firm” and “[a]ll parties and their counsel must regard the date set for trial as certain.” Cal. Rules of Court, rule 3.1332(a). “The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Id., rule 3.1332(c).) Listed ground for a continuance include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;...

Excerpt: ...ver occurs first. Code of Civil Procedure § 340.5. The term “injury” means both a person's physical condition and its negligent cause. Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896. “[T]he plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof – when, simply put, he at least ‘suspects…that someone has done something wrong' to...

Excerpt: ...ED. New evidence submitted 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 ar...

Excerpt: ...or the same. Code Civ. Proc. § 2025.410(b)(1). Defendant's Request for Judicial Notice is GRANTED. Pursuant to Code of Civil Procedure § 2025.450(a): “[i]f, after service of a deposition notice, a party to the action…without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document…the party giving the notice may move for an order compelling th...

Excerpt: ..., or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” A party seeking reconsideration also must satisfactorily explain the f...

Excerpt: ...s elected to the Board by Soura and who has been in a romantic relationship with Soura for several years.” “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Code of Ci...

Excerpt: ...d. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Additionally, a defendant may demur on the grounds the pleading is uncertain. Code Civ. Proc., § 430.30, subd. (f). The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” Postley v. Harvey (1984) 153 Cal.App.3d 280, 286. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or concl...

Excerpt: ...on, and damage resulting from that justifiable reliance.” Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 72–73. “Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” (Id. at 73.) This “strict requirement” of pleading “necessitates pleading facts whic...

Excerpt: ... S 1021. Civil Code, section 1717, subdivision (a) provides in relevant part: 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 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 ...

Excerpt: ...ED. Code of Civil Procedure section 425.16, subdivision (b), states, "(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability ...

Excerpt: ...reenergy Company). Movants' objections are overruled as immaterial to the Court's ruling on the motion. Movants request summary adjudication of (1) all causes of action in Plaintiff Solar Tec Systems, Inc.'s (Solar Tec) First Amended Complaint (FAC), (2) of Plaintiff's claim for punitive damages; and (c) of the First and Second Causes of Action in the Cross-complaint, in favor of SP NA and against Plaintiff/Cross-Defendant Solar Tec. Because the ...

Excerpt: ...s follows: No. 1 is SUSTAINED--lack of foundation; Nos. 2, 3, 4, and 5 are SUSTAINED-- hearsay; Nos. 6 and 7 are OVERRULED. The Courts OVERRULES all objections to the Declaration of Defendant Christina Erickson-Taube. The Court rules on Defendant's evidentiary objections to the Declaration of Plaintiff Rajesh Punjabi as follows: No 1 is SUSTAINED--lack of foundation/speculation; No. 2 is SUSTAINED--lack of authentication; Nos. 3, 4, 5, 6, 7, g, 1...

Excerpt: ...s incident and shocks the conscience of any decent person. Trudeau must have known that her conduct would cause severe physical pain and emotional distress given the speed and force of impact. Trudeau's actions were patently done with malice aforethought and oppression and/or with total disregard for the health and safety of Buie. Buie did not consent to this act and a reasonable person in Buie's situation would have been offended and astonished ...

Excerpt: ...s evasive or incomplete. Code of Civil Procedure, S 2030.300, subd. (a)(1)-(3). The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. California Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. Fairmont Ins. Co....

Excerpt: ...hearsay. Defendant's Objections to Plaintiff's Deposition are OVERRULED. Code of Civil Procedure section 437c, subdivision provides, "A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . has met that b...

Excerpt: ...facts properly pleaded, but not contentions, deductions, or conclusions of fact or law." Rakestraw v. California Physicians' Service (2000) 81 cal.App.4th 39, 42-43. Plaintiff's complaint alleges she went to an appointment with Defendant, her gynecologist, on 7/9/21. Plaintiff allegedly consented to a visual examination but without warning or permission, Defendant inserted an eight-inch device with a swab into her vagina. (Complaint, Tl 4.) Defen...

Excerpt: ...l act or disposition of property rights; and (3) damages...." Lee v. Hanley (2015) 61 Cal.4th 1225, 1240, (quotations and citation omitted). The Cross-complaint alleges Cross-complainant and William Patrick Lally ("Patrick") opened a joint bank account which required two signatures to withdraw funds. (Cross-complaint, 26.) Cross-complainant and Patrick deposited $290,000 into their joint bank account which included approximately $100,000 in proce...