Excerpt: ... (Code Civ. Proc., § 1281.2.) The Court shall grant the petition unless the petitioner waived the right to compel arbitration, or other grounds exist for rescission of the agreement. (Ibid.) Because the obligation to arbitrate arises from contract, the court may compel arbitration only if the dispute in question is one in which the parties have agreed to arbitrate. (Weeks v. Crow (1980) 113 Cal.App.3d 350, 352.) Because arbitration is a favored ...

Excerpt: ...he pleading t hat are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) In testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged,...

Excerpt: ...st Calhoon, bu t both the underlying discovery requests were served on Thomas's behalf only.] Initially, the court notes Thomas timely filed a proof of service relating to both motions, but the proof is for electronic service only. Gary II is selfrepresented, and theref ore may be served electronically only if he has expressly consented to electronic service, and electronic filing does not constitute express consent to electronic service. (Code...

Excerpt: ...sert the c laims due to the Divorce Decree issued by the Court of Common Pleas of Lancaster County, Pennsylvania, on September 29, 2023 (Divorce Decree). Specifically, Chartwell contends the Divorce Decree awarded the entire value of the “martial interest in Chartwe ll” to Tracy, Plaintiff's now ex -wife, and awarded Plaintiff nothing regarding the Chartwell shares. (See RJN, Exh. A, pp. 14, 18, 29.) Chartwell further contends, under New Yor...

Excerpt: ...d until nea rly 9:00 p.m. on April 8, 2024 —i.e., nearly a week late and after the close of business on the same day Smith's reply was due. Plaintiff provides no explanation or justification for failing to timely serve the opposition, and the late filing of the opposi tion has deprived Smith of its opportunity to file anything more than an untimely, truncated opposition. The court therefore exercises it discretion to refuse to consider the o...

Excerpt: ...e demurrers a re virtually identical and assert the same challenges to the FAC. As such, the demurrers will be addressed together with any significant distinctions highlighted. Defendants' challenge both the first cause of action for medical negligence and the second c ause of action for fraud on the ground “[Defendants are] . . improper doe defendant[s]. (Code of Civil Procedure section 474.)” (Demurrers, p. 3, lines 5, 9.) Whether a defen...

Excerpt: ...hat party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross- complainant has met that burden, the burden shifts to the defendant or cross -defendant to show that a triable issue of one or mo re material facts exists as to the cause of action or a defense thereto. The defendant or cross- defendant shall not rely upon the allegations or denials of its pleadings to show...

Excerpt: ... of action for declaratory and injunctive relief. The demurrer is SUSTAINED IN PART and OVERRULED IN PART as set forth below. Second Cause of Action (Breach of Oral Contract): “The elements of a breach of oral contract cause are: ‘(1) existence of the contract; ( 2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.' [Citations.]” (Aton Center, Inc. v...

Excerpt: ...e allegations are mere conclusions. [Citations.] Some particularized facts demonstrating a constitutional deprivation are needed to sustain a cause of action under the Civil Rights Act. [Citations.]” (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 564) When address ing federal statutes, it is appropriate to apply federal law. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 563 [“we hold that the state courts of California should apply...

Excerpt: ...essor in interest to Leonel Cordova and the Estate of Leonel Cordova (collectively, Plaintiffs). As set forth below, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. On October 2, 2023, the court sustained the Defendants' demurrer to the first cause of action for negl igence and allowed the Plaintiffs 20 days leave to amend. The basis for granting leave to amend was to allow Plaintiffs to either consolidate the negligence and premises liability...

Excerpt: ...e untimely reply. All briefs should be filed as required by the code. First Cause of Action (Civil Conspiracy to Commit Extortion): This cause of action is not sufficiently pled. Initially, the court overrules the challenge this cause of action is barred by certain terms of the Settlement Agreement. Le's claims include a claim to rescind the Settlement Agreement. If Le succeeds in rescinding the Settlement Agreement, then its terms would not bar...

Excerpt: ...court notes it is unclear whether the papers were properly served on Defendants. The proofs of service filed on March 1, 2024 (ROA 31, 33) are internally inconsistent. The proof of service on the judicial council form states the documents identified in the attachme nt were personally served on Nino Riazati on March 1, 2024, at 10:05 a.m., at 4343 Von Karmen Ave, Ste. 250, Newport Beach, CA 92660, which is the office of Plaintiff's counsel. This...

Excerpt: ... third causes of action in the F AC. For the reasons set forth below, both motions are DENIED. Because the motions and oppositions raise essentially the same arguments, involve very similar evidence, and are directed to the same pleading, the court will discuss both motions together. Th e party moving for summary judgment “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fa...

Excerpt: ...n 1: Sanctions Motion by Defenda nts Defendants' request for sanctions under Code of Civil Procedure section 128.7 is DENIED because Defendants failed to comply with the safe harbor requirements. Section 128.7, subdivision (c)(1) requires notice of motion to be served as provided in Sect ion 1010, but shall not be filed or presented to the court unless, within 21 days after service of the motion the challenged paper is not withdrawn. Section 101...

Excerpt: ...ce infliction of emotional distress alleged in the second amended complaint (SAC) of plaintiff Stella Tritakis (Plaintiff). The is DENIED as set forth below. “In applying this statute, a court generally is required to engage in a two -step process. ‘First, Civil Procedure Code section 425.16 , subdivision (b), provides in relevant part: “A cause of action against a person arising from any act of that person in furtherance of the person's r...

Excerpt: ... even if not separately pleaded, ca nnot be established, or that there is a complete defense to the cause of action. O nce th e d efend ant o r cross -defendant has met that burden, the burden shifts to the plaintiff or cross- complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross -complainant shall not rely upon the allegations or denials of its pleadin...

Excerpt: ...hth, tenth, and elev enth causes of action on the grounds they do not state sufficient facts to constitute a cause of action against Quan/MTC and they are uncertain. (Code Civ. Proc. §§ 430.10(e) and (f).) A demurrer challenges the defects appearing on the face of the pleadin g or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of th...

Excerpt: ...dicial Council form complaint and alleged a cause of action for intentional tort. (See Complaint, p. 5.) Plaintiffs allege (1) Defendant had a duty to avoid driving a motor vehicle while intoxicated or under the influence of a controlled substance; (2) immediately prior to driving, Defendant chose to consume alcohol/drugs until he was under the influence; (3) the substances severely impaired his physical and mental faculties; (4) he chose to in...

Excerpt: ... the contract or excuse for nonperformance, the defendant's breach and resul ting damage.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Defendants demur to the breach of contract claim, asserting the “facts pleaded in the Complaint fail to state any specific terms of any such agreement that Defendants breache d, and how Plaintiff fully performed under the terms of the agreement.” (Demurrer 4:22 -25.) Contrary to the a...

Excerpt: ...the defendant's breach and resulting damage.” (Harris v. Rudin, R ichman & Appel (1999) 74 Cal.App.4th 299, 307.) Per the complaint, the parties entered into a Reseller Agreement on January 1, 2019 (Comp. ¶10 & Exhibit 1), which was amended on August 26, 2019 (Comp. ¶17 & Exhibit 1 -A) and again on November 4, 2021 (Com p. ¶18 & Exhibit 1 -B). The complaint includes several allegations of alleged breaches. (Comp. ¶¶39 -49.) Defendant, in t...

Excerpt: ...n 128.5, filed by Plaintiff on July 21, 202 3, as ROA 285; (5) The “Motion for Sanctions” under Code of Civil Procedure section 128.5, etc., filed by Plaintiff on July 21, 2023, as ROA 290; (6) The “Motion for Reconsideration” filed by Plaintiff on July 21, 2023, as ROA 280; (7) The “Motion to Reconsideration” filed by Plaintiff on December 18, 2023 as ROA 363; and (8) The “Motion to Quash Service of Summons” filed by defenda...

Excerpt: ...roperly subject to judici al notice. (Blank v. Kirwan (1985) 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. (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 i...

Excerpt: ...3, Fuentes reached a settlement with Plaintiff for $90,000. (Settlement Agreement attached as Exh. A to Application.) Fuentes then filed an application for a good faith settlement determination under Code of Civil Procedure section 877.6. In response, Garcia filed the instant motion contesting the good faith of the settlement. The party asserting the lack of good faith shall have the burden of proof on that issue. (Code Civ. Proc. § 877.6(d).)...

Excerpt: ...he attachment is greater than zero . (See Code Civ. Proc., §§ 483.010 and 484.090; see generally King Decl.; Vanecek Decl., ¶ 3, Exh. F at 80:10 -18; verified application at ¶ 4). The court also finds Apex has shown a probability of prevailing on its contractual claim against Christiansen. “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperform...

Excerpt: ...e reasons for the discovery; (2) the diligence or lack of diligence o f the party seeking the discovery or the hearing of a discovery motion, and the reasons the discovery was not completed or the discovery motion was not heard earlier; (3) any likelihood that permitting the discovery or hearing the discovery motion will pre vent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice t...