Excerpt: ...nial of the material allegations of the complaint controverted by the defendant' and ‘[a] statement of any new matter constituting a defense.' [Citation.] ‘The phrase “new matter” refers to something relied on by a defendant which is not put in issue by the plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as “new matter.” ' [Citation.] Such ‘ne...

Excerpt: ...reement. (Ideta Decl. II 4, Ex. A.) Pursuant to the agreement, Defendants agreed to pay Plaintiff an initial payment of $90,000 by 01/27/2023 and $38,000 by 02/05/2023. (Ideta Decl., Ex. A at S 1.) The agreement provides that: Contemporaneous with the execution of this Agreement, Defendants Diya and J. Samtani shall execute a Stipulation for Entry of Judgment (the "Stipulated Judgment"), in the form attached hereto as Exhibit A. The total amount ...

Excerpt: ...no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as t...

Excerpt: ...Second cause of action for violation of california civil Code section Third of action for Fraud in the Concealment, and Sixth cause of action for Negligent Misrepresentation Plaintiff alleges a variety of fraud based claims. Plaintiff alleges Defendants committed fraud by misrepresenting that they were or are the beneficiary of the contract that secured the Note and Deed of Trust. (FAC, '1 31.) Plaintiff alleges that Defendant MERS unlawfully rec...

Excerpt: ...urrer 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 demurrer tests only the sufficiency of the complaint, a court will not ...

Excerpt: ... Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active member of...

Excerpt: ...t the Agreement is governed by the Federal Arbitration Act. Instead, Plaintiff contends that the Agreement is unconscionable. If the party opposing the petition to compel arbitration raises a defense to enforcement, that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. (See Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4 th 394, 413.) An agreement ...

Excerpt: ... 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(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 C...

Excerpt: ...; (2) Fraud; (3) Intentional misrepresentation; (4) Negligent misrepresentation; (5) Intentional infliction of emotional distress; (6) Negligent infliction of emotional distress; (7) Negligent hiring, training, supervision, and retention; (8) Violation of Business & Professions Code § 17200; (9) Conversion; (10) Defamation; and (11) Violation of the Rosenthal Fair Debt Collection Practices Act § 1788. (2021 Action, ROA No. 2.) After the parties...

Excerpt: ...e FDA's website are “not the type of agency action we may judicially notice.” (Bridges v. Mt. San Jacinto Community College Dist. (2017) 14 Cal.App.5th 104, 117.) Even if the Court took judicial notice of these documents, which are considered government documents, it may only take judicial notice of their existence, not the truth of their content. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193 [“Although the audit repo...

Excerpt: ...ns of paragraph 6 of the Declaration of Mark Ankcorn in support of the motion for reconsideration. Specifically, the challenged declaration states, On December 5, 2022, I spoke with a Deputy Attorney General from the UCL enforcement division who I knew to be involved in the California Department of Justice's Experian investigation. During that conversation, I learned for the first time that the Attorney General had entered into a tolling agreemen...

Excerpt: ...burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, t...

Excerpt: ...tration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. (Id.) “ ‘Und...

Excerpt: ...FAA states that written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) The Supreme Court has described this provision as reflecting both a “liberal federal policy favoring arbitration,” and the “fundamental principle that arbitration is a matter of contract.” (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ...

Excerpt: ..., Ex. A.) Parties moving to compel arbitration “may meet their initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060.) If the opposing party challenges the validity of that signature, however, the moving party must “establish by a preponderance of the evide...

Excerpt: ...n clause, it will usually be given effect unless it is unfair or unreasonable. [Citation.] Moreover, a court will normally reject any claims that the chosen forum is unfair or inconvenient. [Citation.] Also, “[a] court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience.” [Citation.]” (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 661.) A mandatory fo...

Excerpt: ...ation is simply a suit in equity seeking specific performance of that contract. (Little v. Pullman (2013) 219 Cal.App.4th 558, 565.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings, the trial court sits ...

Excerpt: ...below, the motion is GRANTED in part and DENIED in part. Failing to respond to an authorized method of discovery is a misuse of the discovery process warranting sanctions. Code Civ. Proc. § 2023.010(d). So, too, is disobeying a court order to provide discovery. (Id., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal. App. 4 th 1495, 1516.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley ...

Excerpt: ...ency 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 demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been allege...

Excerpt: ...equitable estoppel when the claims against the nonsignatory are “dependent upon, or founded in and inextricably intertwined with,” the obligations imposed by the agreement containing the arbitration clause. (Goldman v. KPMG LLP (2009) 173 Cal.App.4th 209, 217-218; Marenco v. DirectTV LLC (2015) 233 Cal.App.4th 1409, 1419-1420 [equitable estoppel doctrine required employee who signed arbitration agreement with predecessor corporation to arbitr...

Excerpt: ...nislau (“Nicholas”), and Laura Estanislau (“Laura”) (collectively, “Plaintiffs”) commenced this action against defendants Brian Hoyt (“Brian”), Alain Hoyt (“Alain”), William Kalpakoff (“William”), and Sandra Kalpakoff (“Sandra”) (collectively, “Defendants”). (ROA 2). Plaintiffs allege they own real property adjacent to an easement that included a flood control channel (“Carbon Canyon Flood Control Channel”) and...

Excerpt: ...ession, fraud, or malice. Civ. Code § 3294(c) provides the following definitions: (1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's right...

Excerpt: ...t for the revocation of any contract.” (Code Civ. Proc., § 1281 [2]; see Fischer v. Superior Court in and for Los Angeles County (1930) 105 Cal.App. 466, 470 [arbitration statutes contemplate controversy either existing or which may subsequently arise out of a particular contract].) A court shall order arbitration if it determines an agreement to arbitrate exists, unless the moving party waived arbitration, grounds exist for revocation of the ...

Excerpt: ...a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading ...

Excerpt: ...bjections and that sets forth legally valid responses to each interrogatory, the untimely response might completely or substantially resolve the issues raised by a motion to compel responses under section 2030.290,” although the court still retains authority to hear the motion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407-409.) Even if valid responses are belatedly served, the Court can ...