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 ...