Excerpt: ...an element of the claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850- 851 (Aguilar).) If the defendant fails to meet this initial b urden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets its initial bu...

Excerpt: ...) Plaintiff argues that the arbitration agreement is both procedurally and substantively unconscionable. (See Armendariz v. Foundation Heath Psychcare Services, Inc. (2000) 24 Cal 4th 83). Unconscionability is a contract defens e used to invalidate arbitration agreements without contravening the Federal Arbitration Act or California law. (See OTO, LLC v. Kho (2019) 8 Cal.5th 111, 125.) The evidence does reflect some level of procedural unconscio...

Excerpt: ...01) 25 Cal.4th 826, 850-851 (Aguilar) [burden].) 24 Hour has demonstrated it was not a party to the contract at issue. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements of breach of contract include, inter alia, existence of a contract]; Korc h e m n y v. Piterman (2021) 68 Cal.App.5th 1032, 1048 (Korchemny) [a common count used in the alternative to seek the same recovery demanded in a claim for breach of contract falls...

Excerpt: ...ynolds (includi ng in the opposition to this demurrer): facts demonstrating a causal link between the protected activity and an adverse employment action. Reynolds efforts to align his resignation with Plaintiff Robinson's termination (3rdAC para. 64) to create Reynolds' adverse employment action fails. And Reynolds' categorizing the types of activity that amount to adverse employment action -- short of termination or demotion continue to be inad...

Excerpt: ... (c) [“official ac ts”]; Commercial Union Assurance Co. v. City of San Jose (1982) 127 Cal.App.3d 730, 740, citing Chas. L. Harney, Inc. v. State of California (1963) 217 Cal.App.2d 77, 85 -86 [court may take judicial notice of government claims and any response as “official acts”].) 4th cause of action: declaratory relief. Petitioners' 4th cause of action seeks a declaration that the emergency laws and orders that were in effect during t...

Excerpt: ...pp.4th 1451, 1479.) The 2ndAC omits breach of fiduciary duty claims premised on fraud. Thus, the 2ndAC does not “clearly and affirmatively” show that the claim is barred by the statute of limitations based upon the dates alleged and is therefore not subject to demurrer. (See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) Burtin raises additional new arguments in his Reply attempting to show that the first cause of ac...

Excerpt: ... responses were provided on 03 -08- 23. (Mem. at 3.) Accordingly , as Defendant Home Depot points out, Plaintiff has relied upon the incorrect statutory provision (CCP § 2030.290), as what this motion actually seeks is to compel further responses pursuant to CCP § 2030.300. Plaintiff failed to comply with the statutor y requirements for seeking further responses. Motion related to Special Interrogatories Plaintiff's Motion to Compel The Home De...

Excerpt: ... element of his negligent misrepresent ation cause of action. (Code Civ. Proc., § 437c, subd. (p)(1) [burden]; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173174 [elements].) Numerous facts in plaintiff's separate statement are not supported by the evidence cited, in particular, Fac t Nos. 7, 13, and 14, where plaintiff's separate statement cites numerous portions of the deposition transcript of Dr. Wakim, which were not provided. As t...

Excerpt: ...upport of each of these causes of action. S pecifically, the complaint alleges plaintiff Oscar Camarena (plaintiff) and defendants (both of them) entered into a contract by which defendants agreed “to act plaintiff's real estate agent/brokers” with respect to the subject real estate transaction and provide plaintiff with “1% of the purchase price as credit towards plaintiff's closing costs,” and plaintiff agreed to pay defendants for the...

Excerpt: ...e allegations in the Complaint that concern Defendant Sherwood all identify conduct that was part of the exercise of Sherwood's discretion vested in her in her capacity as a public employee. Accordingly, she is not liable for any injury resulting from any act or omission alleged in the Complaint, and amendment would not cure this defect. (Cal. Govt. Code § 820.2.) Plaintiff fails to address this argument at all in opposition to the demurrer. As ...

Excerpt: ...t, is GRANTED in part and CONTINUED in part. (Code Civ. Proc., §§ 2023 .010, subd. (g), 2030.030, subds. (a) and (d)(3), 2031.300, subd. (e), CCP 2031.310, subd. (i) [authorizing motion].) Moving party's request for monetary sanctions is GRANTED. Monetary sanctions in the amount of $1,860.00 are imposed against defendants / crosscomplainants/cross- defendants James Turco, Margaret Cheng -Turco, Simone II, LLC, JM Investment Group, LLC, American...

Excerpt: ...between the same parties on the same cause of action.” Id. First, defendant Mariners Escrow, named in the FAC, is not named in the Þrst Þled action (OCSC Case No. 30-2017- 00955138), so the parties are not the same. Defendant's arguments about unity of interest between an escrow company and a party litigating liability are not persuasive. (Demurrer at 8.) Second, the causes of action in the Þrst Þled action and the FACare not the same. The ...

Excerpt: ...ection 340.6, subdivision (a) (section 340.6(a)). (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic RichÞeld Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar) [same]; see also Code Civ. Proc., § 340.6, subd. (a) [applicable one-year statute of limitations].) The TAXC alleges a single cause of action for legal malpractice arising out of cross-defendants' representation of cross-complainant Martha Walters (Martha) in an u...

Excerpt: ...su
¯icient evidence to show that Attorney Behle is likely to be a witness governing relevant events. Testimony regarding purported cause for plainti
¯'s termination can be obtained from other sources, and there is no evidence that Behle's testimony regarding the formation and/or value of TEM Capital is necessary or even likely. (Doe v. Yim, supra at 583-584 [“In exercising its discretion to disqualify counsel under the advocate- witness rule,...

Excerpt: ...hicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety ofthe vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative failed to repair the conformity after a reasonable number of attempts (the failure to repair element)l.) Moving p...

Excerpt: ... its initial burden to show the action has no merit. (See Code Civ. Proc., S 437c, subds. (a), [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [samel.) Defendant has established that it did not manufacture, design, sell or distribute the bicycle component that allegedly caused harm to plaintiff, and did not provide any warranties regarding that component. (UMF 11-12). The burden then shifts to plaintiff to produce admis...

Excerpt: ...proper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Furthermore, "[tlhe grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (Code Civ. Proc. S 437, subd. (a).) Plaintiff's Punitive Damages Allegations and P...

Excerpt: ...leged in the complaint. Leyva v Garcia (2018) 20 Cal. App. 5th 1095, 1102. The defendant may meet the burden of showing that an essential element of the plaintiffs claim cannot be established by presenting evidence that the plaintiff "does not possess and cannot reasonably obtain, needed evidence." Lona v Citibank, N.A. (2011) 202 Cal. App. 4th 89, 110. Only after a defendant meets that burden, does the burden shift to the plaintiff to produce ad...

Excerpt: ...mmary judgment is directed to the issues framed by the pleadings. As such, the burden of a defendant moving for summary judgment only requires that the defendant negate a plaintiffs theories of liability as alleged in the complaint. Leyva v Garcia (2018) 20 Cal. App. 5th 1095, 1102. The defendant may meet the burden of showing that an essential element of the plaintiffs claim cannot be established by presenting evidence that the plaintiff "does n...

Excerpt: ...owners of the subject real property, and (2) plaintiff Amber Allen (then Amber Booth), as trustee of the Paseo Viento Trust. (4AC 19-21, 60.) To be clear, plaintiff as trustee was the buyer, not the trust. A trust is not itself a legal entity; legal title to property owned/being purchased by a trust is held by the trustee. (See Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 293; see also Portico Management Group, LLC v. Harrison (2011) 202 Cal...

Excerpt: ...at ROA No. 346; see also Code Civ. Proc., S 425.16, subd. (e)(4).) Prong two, first cause of action for libel. Plaintiffs have failed to demonstrate their first cause of action for libel has minimal merit. (See Baral v. Schnitt (2016) 1 Cal.5th 375, 396 (Baral) [burden; on second prong, "the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally suffcient and factually substantiated"]; Bill...

Excerpt: ...d a prior demand for arbitration under the agreement of the claims at issue. (Code Civ. Proc., S 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) The provisions of the written agreement to arbitrate and the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (Cal. Rules of Court, Rule 3.1330.) If the moving party meets this burden, the burden shifts to the resisting party ...

Excerpt: ...ion concerns requests which sought documents "relating to how any money paid by Plaintiffs to YOU or CCC has been used, spent, or transferred" (RPD No. 13) or "relating to where any money paid by Plaintiffs to You or CCC has been held or located at any time after such money was paid by Plaintiffs" (RPD No. 14). (See Moton: 4:12-17; See also 93 of Hallett Declaration, Exhibits A and 8 thereto [capitalization alteredl.) Additionally, the motion con...

Excerpt: ... as a matter of law. (Code Civ. Proc., S 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) If the defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, however, the burden shifts to the plaintiff to produce evidence demonstrating th...

Excerpt: ...t or excuse for nonperformance, the defendant's breach and resulting damage." (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307). "If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference." (Ibid.) Alternatively, "[i]n an action based on a written contract, a plaintiff may plead th...