Excerpt: ...ers and the motions to strike filed by each defendant are nearly identical, the demurrers will be addressed together, as will the motions to strike. Motions 1-2: Demurrers to the FAC Defendants demurrers are OVERRULED in part and SUSTAINED in part as set forth below. To the extend the demurrers are sustained, Plaintiff is granted 15 days leave to amend. Statute of limitations - Overruled Moving Parties contend the entire FAC is barred by the stat...

Excerpt: ... to settle by arbitration a controversy thereafter arising out of such contract or transaction, the refusal to perform the whole or any part thereof . . . 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. S 2.) "The 'principal of the FAA is to 'ensur[e] that private arbitration agreements are enforced according to their terms.'" (Lacayo v. Catalina Resta...

Excerpt: ...ed a half-page arbitration clause, entitled Arbitration Disclosures." which stated as item 1, If either you or we choose, any dispute between you and us will be decided by arbitration and not in court." [Ameripour Declaration, Ex. 21 The Lease identified Plaintiff as the "Lessee" and "you", Fletcher Jones was identified as the "Lessor" and referred to as "we" and "us." Defendant was not a party to the Lease. The Lease3 also prov-ded, in relevant ...

Excerpt: ...ection 998). (Code Civ. Proc., § 998, subd. (c)(1).) Defendant did not serve its 998 offer on Rocknipour until 2/18/22 (Dagmy Decl. at Ex. A), and $14,712.50 of the claimed expert fees and costs were incurred prior to that date. (Id. at Ex. E [Invoice Nos. 0115325, 0116156, 0115518, and 10331.12.21].) • $897.95 in photocopy charges/trial binders. Defendant's memorandum of costs seeks $1,385.12 for “photocopies of exhibits, trial binders.” ...

Excerpt: ...fraud by omission appear time-barred on their face. (See Cal. U. Com. Code, § 2725 [four-year statute of limitations]; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215 (Krieger) [section 2725 applies to claims for breach of warranty under the Song-Beverly Act]; Code Civ. Proc., § 388, subd. (d) [three-year statute of limitations for fraud]; see also FAC ¶ 6 [plaintiffs purchased the subject vehicle on 2/17/14], 107-114 [s...

Excerpt: ...ana's (“Cross-Complainant” or “QUINTANA”) Cross-Complaint, the 1st through 4th causes of action. Special Demurrer for Uncertainty A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal.2d 872, 883.) A demurrer for uncertainty is strictly construed, even where a complaint is in...

Excerpt: ...ON, including T&R. For the purpose of this and the following requests, the term “T&R” means the defendant T&R Carnegie I Properties, LLC. Response: Objections asserted on vagueness, ambiguity, overbroad as to time and scope, unduly burdensome, oppressive, harassing, seeks disclosure of expert witness information, calls for improper legal conclusion or opinion. “However, without waiving said objections, responding party responds as follows: ...

Excerpt: ...s granted 10 days leave to file an amended complaint. As to the 5th cause of action for unjust enrichment, leave to amend is limited to alleging unjust enrichment and/or restitution as a remedy in connection with another valid cause of action. 1st cause of action: breach of contract. This cause of action states sufficient facts. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; Construction Protective Services, Inc. v. TIG...

Excerpt: ...Estates.” (See SAC ¶¶ 7-8, 10, 12, 20, Ex. A; see also New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714 (New Livable California) [on demurrer, the court accepts as true all facts properly pleaded, as well as those which reasonably arise by implication].) There is no legal distinction between an individual and the fictitious business name under which she does business. (See Pinkerton's, Inc. v. Super...

Excerpt: ...nt and not summary adjudication, because each seeks summary adjudication of all claims alleged against UPS in plaintiffs Jorge Alcala and Lizbeth Martinez's (collectively, plaintiffs) second amended complaint. (See Notice of Motion & Motion, p. 2; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 744 [“The motion must be denied if the movant fails to establish an entitlement to summary adjudication of the matters thus specified; the co...

Excerpt: ...nown location. Pursuant to Code of Civil Procedure section 512.010, subdivision (a), “[u]pon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.” (Code Civ. Proc., §512.010, subd. (a).) An application for writ of possession must be executed under oath and include the informat...

Excerpt: ...L and M, limited to the fact of recordation, and not of the truth of their contents. (Herrera v. Deutsche Bank National Trust co. (2011) 196 cal.App.4th 1366, 1375.) While moving party titles the motion as one for summary judgment, requesting summary adjudication in the alternative, this motion is one for summary adjudication only, as only the 7th cause of action of the First Amended Cross-complaint ["FACC"] is addressed, (Code Civ. Proc., S 437c...

Excerpt: ...titute a cause of action. (Code Civ. Proc., S 430.10, subd. (e).) Moving defendants' request for judicial notice is GRANTED as to Exs. 1-11, limited to the fact that the documents were recorded, but not of the truth of their contents. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [judicial notice of recorded documents); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 ["the fact ...

Excerpt: ...erial fact as to the conditions leading to plaintiff's resignation. (Code Civ. Proc., 437c, subd. [burdens on summary adjudication]; Turner v. Anheuser-Busch, Inc. (1 gg4) 7 Cal.4th 1238, 1244, 1251 [constructive discharge elements]; Valdez v. City of Los Angeles (1 gel) 231 Cal.App.3d 1043, 1056 ["Whether conditions were so intolerable as to justify a reasonable employee's decision to resign is normally a question of fact"]; Moving Party Separat...

Excerpt: ...n of Sylvanna Uyen Le will accompany the reply. However, no such declaration was submitted with the reply. Defendants also failed to include a proof of service for the reply. Nevertheless, this court will rule on the merits. 8th cause of action: fraud Plaintiffs have adequately plead a cause of action for fraud. (See Stansfield v. Starkey (1990) 220 cal.App.3d 59, 72-73 [elements]; see also compl., 25-29, 96 and Exhibits C and D [written false re...

Excerpt: ...ts to give notice of this hearing and to file a declaration, as contemplated by City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251. (ld. at 1261.) Here, while Defendants filed an "Application for Determination of Good Faith Settlement," which expressly requests a determination pursuant to C.C.P. Defendants neglected to file a Notice of Settlement, as required. (C.C.P. Additionally, Defendants did not serve the Application "by cert...

Excerpt: ...11th and 12th causes of action for quiet title and constructive trust, which seek to establish plaintiffs Na Wu (Wu) and Guowen Liu's (Liu) (hereinafter, collectively referred to as plaintiffs) title to the subject property against Berkshire LLC, among others, based on fraud. (See Code Civ. Proc., SS 761.020, 762.010, 762.020 [quiet title]; Warren v. Merrill (2006) 143 Cal .App.4th 96, 112-113 Ca plaintiff may quiet title to property against a de...

Excerpt: ...ause of action, the Cross-complaint alleges that "Ciln or around 5 years prior to this cross-complaint," NONAHAL contacted TRAN to inquire whether she wanted to sell her property to him; that NONAHAL would contact her once every few months thereafter to ask whether she wanted to sell the property to him; that "Ct]he entire time" NONAHAL represented he wanted to purchase the property for himself; that NONAHAL represented he was the owner of the va...

Excerpt: ... 1 Cal. 5th 1132, 1158 (Kesner) [elements of premises liability, negligence]. ) Duty First, with respect to plaintiff Susanne Elizabeth D'Arcy's (plaintiff) complaint and the causes of action for premises liability and negligence therein—the Settenses have failed to demonstrate that they did not at least partially own the pine tree adjacent to the subject portion of the sidewalk. (See Kesner, supra, 1 Cal.5th at pp. 1158-1159 [duty owed by owne...

Excerpt: ... procedurally inadequate as it did not comply with California Rules of Court, Rules 3.1306(c) and Rule 3.113(1). Further, as to Exhibits A (a copy of the initial Letter of Intent dated July 8, 2021), B (a copy of the revised Letter of Intent dated August 4, 2021), and C (a copy of the Asset Purchase Agreement dated October 29, 2021), contrary to Defendants' contention, these documents are not incorporated into reference by the Complaint and are n...

Excerpt: ...ce Defendants request judicial notice of the following court records under Evidence Code section 452(d) in the matter of In re Rebecca Ann Rawji and Diamond Rawji, in U.S. Bankruptcy Court, case no. 8: 14-bk-14406-TA: Notice of Motion and Motion to Avoid [Wildish and Nialish] Lien Under 11 U.S.C. S 522 (Real Property), filed October 14, 2014 by Debtors Diamond Rawji and Rebecca Rawji [RJN 1 ) Objection and Request for Hearing on Motion to Avoid t...

Excerpt: ...Such fees are recoverable, however, when a judgment following the nonacceptance of a pretrial settlement offer triggers operation of section 998... [S)ection gg8 provides: '(a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. CT.] . (d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding ..., the c...

Excerpt: ...to state facts sufficient to constitute these affirmative defenses; affirmative defenses must be alleged as carefully and with as much detail as the facts that constitute the causes of action alleged in the complaint. (See FPI Development, Inc. v. Nakashima (1991) 231 cal.App.3d 367, 384.) 4th affirmative defense: Defendant fails to specify the applicable statute and subdivision and sets forth numerous inapplicable statutes. (Martin v. Van Bergen...

Excerpt: ...s. First Cause of Action Plaintiffs can no longer state a cause of action for violation of Civ. Code § 2923.5 as the sale has already been concluded, and there are no longer any remedies available under this statute. (Compl., ¶ 13; See Civ. Code § 2923.5; Civ. Code § 2924g; Mabry v. Superior Ct. (2010) 185 Cal. App. 4th 208, 235; See also Stebley v. Litton Loan Servicing, LLP (2011) Cal.App.4th 522, 526 [recovery of damages not permitted for ...

Excerpt: ... jurisdiction." (DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, logo; see Automobile Antitrust Cases, supra, 135 Cal.App.4th at pp. 110-111.) Jurisdictional facts must be proved by competent evidence. (Automobile Antitrust Cases, at pp. 110-111.) Plaintiff Javad Dadgostari (plaintiff) has failed to meet this burden. Personal jurisdiction may be either general or specific. General jurisdiction exists if the defendant is "at home" in the ...

Excerpt: ...sed Deed Restriction. (See UMFs #12, 13, 14, 15, 16 and 17.) So too, are there triable issues of fact with regard to the claim for bad faith. Further, Defendant has not met its burden with regard to the punitive damages claim. The Court declines to rule on the objections contained in plaintiff's separate statement in opposition to this motion. The separate statement is not an appropriate place to assert objections. With regard to summary judgment...

Excerpt: ...r initial burden as to these causes of action, as they have not addressed all of the relevant allegations of the Complaint. (Code Civ. Proc., 437c, subd. [burden]; Amerigas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001 [reversing grant of summary judgment because moving party only addressed liability under state law, not federal statutory liability alleged as an alternative]; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 9...

Excerpt: ...original Complaint, First Amended Complaint, Second Amended Complaint, and Third Amended Complaint [TAC]. The remainder of the request is DENIED. (Evid. Code, § 453, subd. (b) [request must provide the court with sufficient information to enable it to take judicial notice]; see also Code Civ. Proc., § 437c, subd. (b)(7) [“An incorporation by reference of a matter in the court's file shall set forth with specificity the exact matter to which r...

Excerpt: ...ment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Summary adjudication is also denied, as follows: 1st cause of action: breach of contract; 2nd cause of action: breach of implied covenant of good faith and fair dealing Summary adjudication is denied as to the 1st cause of action for breach of contract, due to triable issues of material fact regarding whether defendants breached the applicable agreements by “fail[ing] to provide al...

Excerpt: ...ion as a petition under California Code of Civil Procedure, section 1281.6 to appoint an arbitrator. Plaintiffs and defendants are to submit a joint list of arbitrators to the court within fifteen days. From that list, the court will nominate five arbitrators and advise the parties by minute order. The parties shall have five days from receipt of the nominated list to agree upon an arbitrator, or the court will assign the arbitrator to arbitrate ...

Excerpt: ...l.4th 826, 850-851 [same].) The complaint alleges that defendant Avco knowingly misrepresented to the Federal Aviation Administration, and concealed or withheld from the Federal Aviation Administration, information that is material and relevant to the performance or the maintenance or operation of the engine system, e.g. the carburetor issues that led to multiple accidents. (See Compl. ¶¶ 32-39, 42-45, and 51-52.) The concealment claims are ade...

Excerpt: ...The Court finds that this cause of action has not been alleged with the required specificity. The effect of the rule that fraud must be specifically pleaded is twofold: 1. A general pleading of the legal conclusion of fraud is insufficient since the facts constituting the fraud must be alleged; and 2. Every element of the cause of action for fraud must be alleged factually and specifically since the policy of liberal construction of pleadings wil...

Excerpt: ...in the court record. Plaintiff Candice P. Smith's (Smith) contention that this motion should be denied because Courtade's claims belong in probate is better raised on demurrer or a motion for stay (which either party may still bring). At this time, however, the argument fails because Smith fails to show that the probate court has exclusive jurisdiction over Courtade's proposed claims. Indeed, the Probate Code provides that its remedies for a tran...

Excerpt: ...pp. 7:25-8:2.) It is well settled that federal and state tax returns are generally privileged. (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6; Webb v. Standard Oil (1957) 49 Cal.2d 509, 513 (Webb); Deary v. Superior Court (2001) 87 Cal.App.4th 1072, 1077-1078.) The privilege applies to tax returns and records that are an “integral part” of the tax returns, such as W-2 and 1099 forms. (Brown v. Superior Court (1977) 71 Cal.App.3d ...

Excerpt: ...arties. (Calif. Code of Civil Proc. §§ 578, 579; Oakland Raiders v. National Football League (2001) 93 Cal.App.4th 572, 577-578.) The court determines that the entry of a separate judgment is proper and in the interests of justice. (See Calif. Code of Civil Proc. §§ 578, 579.) Criteria considered by the court in granting this motion includes, but is not limited to: (i) Based upon the partial reversal of the court's initial judgment, cross-com...

Excerpt: ...pleaded in support thereof. (See Code Civ. Proc., §§ 430.801, 4582.) Demurrer is overruled as to this affirmative defense. 2nd Cause of Action: Judicial estoppel requires facts showing (1) the same party has taken two positions; (2) the two positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position; (4) the two positions are totally inconsistent; and (5) the first ...

Excerpt: ...party who might assert a claim to title in the property, including alter egos and those claiming an adverse interest. (Eleanor Licensing LLC v. Classic Recreations LLC (2018) 21 Cal.App.5th 599, 617; see Harbour Vista, LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1506 [explaining one purpose of 1980 revision of statutory scheme for quiet title actions was to permit the action to proceed against “any or all adverse claimants,�...

Excerpt: ...ld plaintiff in May of 2018, during a breakup argument, that the transmission of the communicable disease to plaintiff was intentional in order to maintain the relationship and control over plaintiff, rendering her “damaged goods”, that he had hidden physical symptoms from plaintiff in order to intentionally give her the disease, and that he had infected at least one other woman with the same disease. (Id. ¶ 12.) While this conduct occurred ...

Excerpt: ...ontract. This claim is based on the VRE defendants' alleged conduct in inducing defendant Nancy Goetz Tafoya (Tafoya) to breach the residential purchase agreement between plaintiff Medici Partners, LLC (plaintiff) and Tafoya. (See TAC ¶¶ 54-57.) Tafoya has since successfully moved for summary judgment on the third amended complaint, including on plaintiff's claim for breach of contract/the subject residential purchase agreement, and judgment ha...

Excerpt: ...cting an unauthorized rear balcony/deck at her property that impermissibly encroaches on and into the plaintiff Monarch Point Homeowners Association's (plaintiff or the Association) Fuel Modification Zone A, “an easement area” granted to and maintained by the Association pursuant to the governing documents. (See Compl. ¶¶ 3, 7, 10, 12-15, 17-28, 33-34.) These allegations of fact, which the court must take as true on demurrer (see Mathews v....

Excerpt: ...plaint would not cure the defects and would be futile. The court does have discretion to deny a motion for leave to amend where the amendment would be futile. Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719. However, defendant has not shown the amendment would be futile as a matter of law. The case of Everardo Rodriguez, et al. v. FCA US, LLC (April 7, 2022, E073766) 77 Cal. App. 5th 209, 2022 WL 1042907 does not undisputedly bar plaint...

Excerpt: ...parties' notice of motion and separate statement do not comply with Cal. Rules of Court, Rule. 3.1350, subds. (b) and (d). (Cadlo v. Owens–Illinois, Inc. (2004) 125 Cal.App.4th 513, 523 [court's discretion to deny summary judgment / adjudication based on failure to comply with rule].) Summary judgment is denied because moving parties have not met their initial burden of presenting evidence showing that plaintiff cannot establish an essential el...

Excerpt: ... subpoena with an affidavit of no records. (See Yencarelli Decl. ¶ 22, Ex. O [6/27/22 certificate of no records].) This case was previously set for trial on 3/7/22, and all parties answered ready for trial on that date. (ROA No. 217.) The trial was trailed for a week, and the court set a status conference for counsel and the court to select a new trial date. (See ROA No. 228.) On 3/14/22, a status conference was held and the parties stipulated t...

Excerpt: ...as failed to meet this burden. As an initial matter, defendant has not produced a copy of the subject arbitration agreement purporting to bear plaintiff Cari Ramirez's (plaintiff) signature. (See Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543 (Bannister) [party seeking arbitration can meet its initial burden by attaching a copy of the arbitration agreement purporting to bear the plaintiff's signature].) Defendant has produced o...

Excerpt: .... T.D. Service Company (2016) 245 Cal.App.4th 89, 97-98 [“Extrinsic mistake” is “broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits”]; see also Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 47 [“[b]ecause of the strong public policy in favor of the finality of judgments, equitable relief from a default judgment or order is available only in ...

Excerpt: ...r as to the first cause of action is sustained with leave to amend on the grounds that the 2ndAC fails to allege facts showing that defendants recorded a notice of default, notice of trustee's sale, or held a trustee's sale while plaintiff's application or a loan modification was pending, or threatened to conduct the same. The demurrer as to the third cause of action is sustained with leave to amend on the grounds that the 2ndAC fails to allege f...

Excerpt: ...tion to strike itself, subsequent fee motions, and fees /costs associated with appeal].) Defendants are awarded attorney fees in the amount of $22,485.00, which the court finds were reasonably and necessarily incurred as follows: 1. 9-30-21 invoice $1,147.50 2. 10-31-21 invoice $7,203.50 3. 11-30-21 invoice $8,912.00 4. 12-31-21 invoice $ 270.00 5. 1-31-22 invoice $3,287.00 6. 2-28-22 invoice $ 810.00 7. 3-31-22 invoice $ 405.00 8. Appearance: $ ...

Excerpt: ...cut-off deadline set forth in its 1/18/22 minute order applies to the subject subpoenas. (See ROA No. 174 [1/18/22 minute order].) Plaintiff Curt Daniel Newnes (plaintiff) previously issued subpoenas to Victor and Mary Del Toro for their testimony and the production of certain documents at deposition in November 2021, which set their depositions for 12/13/21. (See ROA No. 257–Supp. Newnes Decl. ¶ 2, Ex. 2, pp. 53-66 [November 2021 subpoenas to...

Excerpt: ...after that date pertained to the “only” remaining dispute at trial, i.e. “calculation of the appropriate mileage offset/damages;” and that none of the discovery conducted after that date was used at trial. (Opp at 4:22-7:16; Gruzman Decl. in support of Opp, Paras. 14-20.) Similarly, defendant contends that any fees incurred after it “admitted liability” should not be recoverable, including fees for expert discovery and trial. (Opp at ...

Excerpt: ...� as of 1/28/22, without leave of court. (See ROA Nos. 174, 205–1/18/22 & 4/25/22 Minute Orders.) This case was scheduled for trial on 10/18/21, and trailed to 10/19/21. On 10/19/21, the court granted plaintiff's oral request for a trial continuance, and continued trial to 1/18/22. (ROA No. 149–10/19/21 Minute Order.) This reopened discovery, re-setting the discovery cut-off date to Monday 12/20/21. (See Code Civ. Proc., §§ 599, 2024.020; s...