Excerpt: ...lied with its meet-and-confer obligation prior to filing the Motion. (Code Civ. Proc., S 439.) First of Action — Breach of contract It is well-established that "the elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. [Citation.]" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal...

Excerpt: ... 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court ma...

Excerpt: ...ia Hearing Department Decision from In the Matter of Lenore Luann Albert, Case No. 16-0-12958-YDR (16- 0-10548); Exhibit C: The January g, 201 g, State Bar Court of California Hearing Department Decision from In the Matter of Lenore Luann Albert, Case No. 16-0-12958-YDR (16- 0-10548); Exhibit D: The July 10, 2019, Order of the California Supreme Court from In the Matter of Lenore Luann Albert on Discipline, Case No. SD254967, State Bar Court case...

Excerpt: ...expended multiplied by the reasonable hourly rate.' [Citation.) To determine the reasonable hourly rate, the court looks to the 'hourly rate prevailing in the community for similar work.' [Citation.] Using the lodestar as the basis for the attorney fee award 'anchors the trial court's analysis to an objective determination of the value of an attorney's services, ensuring that the amount awarded is not arbitrary. [Citation.]' [Citation.]" (Bernard...

Excerpt: ...itigation would produce great or irreparable injury to a party to the action," (3) the challenged act may violate a party's rights, (4) "pecuniary compensation would not afford adequate relief, (5) "it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief," (6) "Where the restraint is necessary to prevent a multiplicity of judicial proceedings." (Code Civ. Proc., 5 526, subd. The Court may also gr...

Excerpt: ...nce arising from Plaintiff's use of Defendant's "Surf City Seniors on the Go!" service. (Complaint, 12 & 14). Plaintiff alleges that "Surf City Seniors on the Go!" is a "curb-to-curb transportation service" offered by the City, which she used on June 27, 2018, to travel to her physical therapy session at "Southern California Aquatic and Physical Therapy." (ld.) Plaintiff alleges she was 65 years old at the time, legally blind and physically disab...

Excerpt: ... 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 a gravel road ("Gravel Road"). This easement, along with a ...

Excerpt: ...ne 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. ("CCP"), S 437c(p)(2).) A cause of action "cannot be established" if the undisputed facts presented by the defendant prove the contrary of the plaintiff's allegations as a matter of law. (Brantley v. Pisaro (1 gg6) 42 Cal.App.4th 1591, 1597.) Once the moving party meets that burden, the burden shifts to the...

Excerpt: ...) 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 Ca/., 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 wil...

Excerpt: ... (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 demurrer tests only the sufficiency o...

Excerpt: ...o Ouash "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly." (Code Civ. Proc., S 474.) "Section 474 allows a plaintiff who is ignorant of a defendant's identity to comm...

Excerpt: ...tion. (Code Civ. Proc. ("CCP"), S 437c(p)(2).) A cause of action "cannot be established" if the undisputed facts presented by the defendant prove the contrary of the plaintiff's allegations as a matter of law. (Brantley v. Pisaro (1 gg6) 42 Cal.App.4th 1591, 1597.) Once the moving party meets that burden, the burden shifts to the party opposing MS] to show, by reference to specific facts, the existence of a triable issue as to that affirmative de...

Excerpt: ...ax Mortgage Loan Trust 2021 -G, and LoanCare, LLC relating to a non judicial foreclosure sale that Defendants are pursuing against Plaintiff's house. Plaintiff alleges nineteen causes of action based on fraud, alleging that Defendants concealed loan documents from Plaintiff and/or that various documents on which Defendants rely for their non-judicial proceedings are fraudulent (e.g., fraudulent deed of trust, fraudulent assignment of mortgage, fr...

Excerpt: ...(e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible." (Code Civ. Proc., S 430.10, subds. (e) & (f)ß]; see 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein]. ) "A person against whom a complaint or cross-complaint has been filed may, within 30 days af...

Excerpt: ...se of the option to produce documents under California Civil Procedure Code section 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. Cal. Civ. Proc. Code, S 2030.300(a). If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the discovery. Fairmont Ins. Co. ...

Excerpt: ...ng it to judgment as a matter of law. (Code Civ. Proc., S 437c, subd. 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 defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion ...

Excerpt: ...es, pursuant to the relevant agreement's choice of law provision. As such, Avis has the initial burden to show that New Jersey law materially differs from the law of California, and that New Jersey has an interest in having its law applied. (Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 919-920 [citing Hurtado v. Superior Court (1974) 11 Cal.3d 574, 5801.) Avis does not contend there is a material difference in the laws of b...

Excerpt: ...er meeting minutes, IRS Form 2553, and documents identifying shareholders. The Moving Party argues that the document requests are overbroad, seek irrelevant information, and seek their private/proprietary financial and corporate information. They also seek sanctions in the amount of $5,200 against Plaintiff. On April 27, 2023, Plaintiff filed an opposition to the motion. Plaintiff argues that the Moving Party is one of four restaurants that are o...

Excerpt: ...rties produce stock certificates, shareholder meeting minutes, IRS Form 2553, and documents identifying shareholders. The Moving Parties argue that the document requests are overbroad, seek irrelevant information, and seek their private/proprietary financial and corporate information. They also seek sanctions in the amount of $5,200 (each) against Plaintiff. On April 20, 2023, Plaintiff filed a combined opposition to the motions. Plaintiff argues...

Excerpt: ...4th 558, 565.) The parties may, among other things, agree that the arbitration agreement will be controlled bv the Federal Arbitration Act (FAA), which includes both procedural and substantive provisions. The 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." (g U.S.C. S 2.) The United States Supreme Court has descri...

Excerpt: ...s to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) "A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (Code Civ. Proc., S 437c, s...

Excerpt: ... action (civil rights violations) is SUSTAINED with leave to amend. The demurrer to the third cause of action (civil rights violations) is SUSTAINED with leave to amend. The demurrer to the fourth cause of action (negligence) is SUSTAINED with leave to amend. The demurrer to the fifth cause of action (negligence per se) is OVERRULED as moot. The demurrer to the sixth cause of action (negligent retention and supervision) is SUSTAINED with leave to...

Excerpt: ...ode Civ. Proc., 5 430.30, subd. "A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible. " (S 430.20.) "A party who has filed a complaint or cross-complaint may, w...

Excerpt: ...nancial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) 1st cause of action. negligence. Defendants Thomas Courtney Dubar and Skyler Lambert do not demur to this cause of action. As to demurring defendants Ella Dubar, David Skorheim, and Eric Michael Massimo, the FAC states facts sufficient to constitute this cause of action. (See Ladd v. County of San Mateo (1996) 12 cal.4th 913, 917 [elements]; FAC 74 [duty], 36, 38, 40, 41, 4...

Excerpt: .... (Evid. Code, § 452, subd. (d); Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 67, fn. 1.) The Court finds Defendants complied with the meet-and-confer requirement prior to filing their Demurrer. (Code Civ. Proc., 430.41, subd. (a).) Standard for Demurrer “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following ...

Excerpt: ...erial fact . . . .” (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. (“CCP”)...

Excerpt: ... 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 to ...

Excerpt: ...y to demonstrate both: (1) relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case), and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.App.4th 1113, 1117; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter G...

Excerpt: ...Code § 2017.010. The test for determining if something is discoverable is whether the requested matter “appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Information is “relevant to the subject matter of the litigation” if it possibly assists the party in evaluating the case, preparing for trial, or aiding in settlement of the case. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546). “A trial co...

Excerpt: ...g apply: “(1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents…is unwarranted…(3) an objection to an interrogatory is without merit or too general.” (Civ. Proc. Code § 2030.300(a)(1)-(3).) “An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not...

Excerpt: ...) 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. (“CCP”), § 437c(p)(2).) The scope of this burden is determined by th...

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: ...relief, along with a memorandum and a declaration containing facts sufficient to justify the sealing. (CRC 2.551(b)(1).) The motion must be served on all parties, and unless the court orders otherwise, a complete copy of the document must be served on all other parties that already possess copies, along with the redacted version. (CRC 2.551(b)(2).) To grant a motion to seal, the court must expressly find that: 1. an overriding interest exists tha...

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: ...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: ...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: ...; (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: ... 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: ...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: ...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: ...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: ...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: ..., 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 ...