Excerpt: ...d Sur-Reply filed 4/26/23. The tentative remains the same: The court DENIES Defendants FCA US LLC and John L. Sullivan Chrysler Doge Jeep Ram's Motion for Judgment on the Pleadings as to Plaintiffs 5th cause of action (for fraud by inducement) and 6th cause of action (for negligent repair) of the Complaint. 5th Cause of Action (Fraudulent Inducement) First, Defendants argue that Plaintiff's 5th cause of action is barred by the economic loss rule....

Excerpt: ...l notice of Fullerton Municipal Code section 9.06.070, which was discussed by both sides and provided via link in Defendant's written Request for Judicial Notice (ROA 101). (See, e.g., Evid. Code, § 452(b); The Kennedy Comm'n v City of Huntington Beach (2017) 16 Cal.App.5th 841, 852 [the court may take judicial notice of municipal codes].)  2nd cause of action (premises liability) The First Amended Complaint (FAC), the operative pleading, all...

Excerpt: ...e Control (ABC)– DENIED. (3) Gallaghers' Instagram postings – DENIED. (4) 1/16/2019 default judgment in Case No. 30-2018-01005800 – DENIED. (5) Huntington Beach Municipal Code 5.04.090 –GRANTED. (6) Gallaghers permit to sell food in 2020 issued by the County of Orange – DENIED. The court notes that Exhibits 1, 2, 3, 4 and 6 are not certified or authenticated, as noted in Plaintiff's untimely objection to the Request for Judicial Notice....

Excerpt: ...st cause of action (elder abuse) and 4 th cause of action (EMTALA): As to the 1 st cause of action for elder abuse and the 4 th cause of action for violation of the Emergency Medical Treatment and Active Labor Act (EMTALA), Moving Defendants argue that the Complaint fails to allege sufficient facts to state such causes of action. Plaintiffs do not address the merits of the demurrer to either cause of action in their “Opposition (Response).” R...

Excerpt: ...es v. Superior Court (1984) 157 Cal.App.3d 159, 166.) And while the necessary facts can be stated as ultimate facts or conclusions of law, they are sufficient only when "read in context with the facts alleged as to defendants' conduct [so as to] adequately plead the evil motive requisite to recovery of punitive damages." (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.) Here, the SAC fails to allege specific facts to support a claim of pu...

Excerpt: ...operty located at 3 Via Palma, Unit 27, Laguna Nigel, CA (the "Unit"). (Pl. Separate Statement No. 1 [Chapman Decl. 9-10, Exs. 8- 9, RFA and Responses Nos. 1-2]); Unit 27 is part of a condominium development managed by Defendant Niguel Pointe Homeowners Association in accordance with an Additional Declaration of Covenants, Conditions, and Restrictions and Reservations of Easements (the "CC&Rs") (Pl. Separate Statement No. 2 [Chapman Decl. 9-10, E...

Excerpt: ...that each Memorandum of Costs was untimely filed. The argument lacks merit. "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal ...." (Cal. Rules of Court, rule 3.1700(a)(1).) The deadline is extended b...

Excerpt: ...en discovery requests; to the extent it objects to the request, is unable to comply with the discovery request, or lacks sufficient information or knowledge to provide a complete and straightforward response, it must so state. (Code Civ. Proc., SS 2031.210- 2031.240.) Upon receipt of the discovery responses, the propounding party may move for an order compelling further responses if it deems the responses to be evasive, inadequate or incomplete, ...

Excerpt: ...ted cases that are attached to the Declaration of Daniel O. Nickfardjam, filed in support of Plaintiffs Opposition Brief. They too are improper and counsel is admonished not to improperly cite to rulings or opinions without precedential value. (See Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761, 87 Cal. Rptr.3d 174 [citation of unrelated trial court order improper].) The court GRANTS Defendant Nissan North America, Inc.'s motion to com...

Excerpt: ...6] is that you have a right not to be dragged through the courts because you exercised your constitutional rights." (People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317, emphasis in the original.) Protected activity is defined in the statute as the following: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written o...

Excerpt: ...was a 60% ownership in Congolese Wireless Network (CWN). "An action is deemed derivative '"if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock and property without any severance or distribution among individual holders, or it seeks to recover assets for the corporation or to prevent the dissipation of its assets."' [Citation.] When a derivative action is successful, the corporation is the only party th...

Excerpt: ... 32nd, 33rd, and 34th affirmative defenses WITH 10 days LEAVE TO AMEND; and the motion is DENIED as to the through 30th (inclusive) affirmative defenses. "'Motions for judgment on the pleadings are usually made by defendants. In such instances the motion is the equivalent of a general demurrer, and on appeal from the judgment the appellate court will assume the truth of all facts properly pleaded in the complaint. [Citation.] Motions by a plainti...

Excerpt: ...lacking. The court SUSTAINS Defendant's evidentiary objection nos. 2, 3, 7, 8, 10, 12, and 13 to the Declaration of Mark J. Burns; and OVERRULES all other objections, including the remaining portions of the Burns Declaration and to portions of the Plaintiffs Declaration. The court DENIES Defendant Huntington Beach Union High School District's Motion for Summary Judgment. As explained below, Defendant fails to meet its burden on summary judgment. ...

Excerpt: ...rbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action."...

Excerpt: ...ous condition to exist on the premises – namely, a negligently maintained wooden railing – that led to plaintiff's injuries. In moving for summary judgment, defendant argues that plaintiff cannot establish causation, as the allegedly faulty wooden railing did not cause plaintiff's injuries. Here, defendant met its initial burden to show that causation is lacking here. Defendant proffers evidence that plaintiff fell from the roof, and not from...

Excerpt: ...greement between plaintiff and the decedent (Mary Nguyen, defendants' mother). Defendants are not alleged to be parties to that oral agreement. More specifically, plaintiff entered into an oral agreement with the decent in 2015, whereby they would co-purchase certain property, would reside together and split costs, that title would be held in the decedent's name only (because plaintiff was not yet eligible to own a mobile home in the Bali Hi Mobi...

Excerpt: ...e court notes that the alleged contract was for compensation, not for employment. (See 4thAC, Exh. A [“This compensation plan is not a contract for employment…”].) As such, defendants' arguments regarding an at-will employment are not well taken. Further, Asmus v. Pacific Bell (200) 23 Cal.4 th 1, relied upon by defendants, is not helpful at this pleading stage. Defendants cite Asmus for the proposition that an employer is within its rights...

Excerpt: ...s),  5th AD (equitable abstention),  6th AD (good faith),  7th AD (unforeseen circumstances), and  8th AD (estoppel). Importantly, the general answer responds to a complaint based on a single cause of action for violating Section 17200 et seq of the California Business and Professions Code, commonly referred to as the Unfair Competition Law (UCL). The answer contains mostly boilerplate defenses that often appear in answers, and withou...

Excerpt: ...al.App.4th 556, 570. Here, Plaintiffs have not provided any evidence, let alone evidence to establish the court has jurisdiction over moving defendant. The court notes that Plaintiffs' First Amended Complaint is not verified, and “an unverified complaint has no evidentiary value in determination of personal jurisdiction.” (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) By contrast, moving defendant has presented a declaration that ...

Excerpt: ...ter notice to the parties, if the action is not brought to trial within the time prescribed ….” (Code Civ. Proc., § 583.360(a).) Dismissal is mandatory and “not subject to extension, excuse, or exception except as expressly provided by statute.” (Code Civ. Proc., § 583.360(b).) “Under the press of this statutory requirement, anyone pursuing an ‘action' in the California courts has an affirmative obligation to do what is necessary to...

Excerpt: ... According to the moving papers, Defendant refused to respond at all, other than objections. The party asserting objections bears the burden of establishing the validity of those objections. (Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220‐221.) Because Defendant failed to meet this burden, the motions are granted. Because Defendant failed to provide the court with substantial justification for the objections, the finds that sanctions are warranted...

Excerpt: ...defects in the First Amended Complaint (“FAC”). On 08/29/2022, the court sustained with leave to amend the demurrer to the FAC, ruling in relevant part that “[w]ith respect to a claim for active concealment or suppression of the facts, the FAC does not allege facts to show that Defendant Shen had any duty to disclose to Plaintiff.” Here, the SAC cures that defect, alleging that Defendant Shen's references to the business as a “clinic,�...

Excerpt: ...2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. Also, pursuant to subsection “b”, a separate declaration must accompany the motion and must spe...

Excerpt: ...ented evidence that, prior to the telephonic meet-and-confer, she advised Plaintiff's counsel of Moving Defendants' intent to demur to the second through sixth causes of action. She also represents that, during the subsequent telephonic conference, the parties discussed the demurrer to all five causes of action. Based on the evidence presented, the Court finds Moving Defendants substantially complied with section 430.41, subdivision (a) of the Co...

Excerpt: ...judicially noticeable matters. In sum, this appears to be an improper “speaking demurrer”. Request for Judicial Notice: Moving Defendant requests the court take judicial notice of certain filed documents – to wit, (1) Plaintiff's Motion for An Order to Set Aside Dismissal of Plaintiff's Complaint and the accompanying Declaration of Ernest J. Lingerfelter and Exhibits Thereto and (2) a Minute Order dated August 18, 2022. The request is GRANT...