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: ...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 The HOA's Objections to Evidence do not comply with California Rules of Court, Rule 3.1354(b)(3) because they do not quote or set forth the objectionable statement or material as to each objection.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: ...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...

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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...“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: ..., 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: ...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: ...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: ...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: ...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: ...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...