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: ...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: ...) 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: ... (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: ...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...

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: ...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: ...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: ...Cross-complainants John and Susan Belenardo's motion for summary adjudication as to the 5th and 10th causes of action of the Third Amended Complaint of Lora Bales and Dean Bales is GRANTED as to the 5th cause of action, and DENIED as to the 10th cause of action; and DENIED as to the 2nd cause of action of the First Amended Cross-complaint ("FACC"). A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a prepon...

Excerpt: ...nds for demurrer].) The third and fourth causes of action for fraud/fraudulent concealment and negligent misrepresentation are not "thinly disguised claim[sl for breach of contract and bad faith," or duplicative of the same. They assert different legal theories of liability. Recovery for improper claims practices may be based on torts other than the bad faith breach of the implied covenant, such as, e.g., fraud or negligent misrepresentation. (Se...

Excerpt: ... serviced by this moving party. (FAC, 2, 14; Ex. B to FAC [deed of trust securing HELOC]; Holland v. Morse Diesel International (2001) 86 Cal.App.4th 1443, 1447 [facts appearing in exhibits attached to the complaint are given precedence over inconsistent allegations in the complaint]; 12 C.F.R. S 1026.41, subd. (a)(l) ["This section applies to a closed-end consumer credit transaction secured by a dwelling" l; 12 C.F.R. S 1025.2, subd. (a)(10) [de...

Excerpt: ... Community Clinic (2021) 72 Cal.App.5th 158, 165- 166 (Gamboa) [three-step shifting burden of proof].) Antioch has met its burden to produce prima facie evidence of a written agreement to arbitrate the controversy by submitting a signed copy of the retail installment sales contract (RISC) entered into between plaintiff and Antioch, which contains an arbitration agreement that encompasses plaintiff's claim against this defendant. (See ROA No. 32�...

Excerpt: ...policy is owed and no liability attaches to Defendants. As noted by the Court in Safeco v. Parks (2009) 170 Cal.App.4th 992, an "insurer may raise collusion as a defense in a subsequent bad faith action." (ld. at 1013). When analyzing the case law, it's significant that this achon arises following Defendants' refusal to defend the underlying action and the issuance of a judgment following a trial (SSLJF No. 40). "[Flor purposes of this motion... ...

Excerpt: ...cedure section 664.6(a) states: "If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms...

Excerpt: ...nd 9th causes of action for breach of contract and breach of guaranty. (Code Civ. Proc., S 437c, subd. (p)(l) [burden].) 1. 1st cause of action for breach of Loan Agreement No. 1: Moving Party Separate Statement, Fact Nos. 1, 2 [existence and terms of Loan Agreement No. II, 10, 11 [performance, including by depositing loaned funds in Borrower's account], 5, 8 [breach via nonpayment], 6 [proximately caused damages, specifically: "upon Borrower's b...

Excerpt: ...rly allege a cause of action for battery, a plaintiff must state facts showing: 1. The defendant touched plaintiff or caused the plaintiff to be touched with the intent to harm or offend him or her; 2. Plaintiff did not consent to the touching; 3. Plaintiff was harmed by the defendant's conduct; and 4. A reasonable person in the plaintiff's position would have been offended by the touching. Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645. Plain...

Excerpt: ...ontends the claim fails as plaintiff was terminated five months after she last reported a migraine and plaintiff admits her termination was based on a "lack of performance" (First Amended Complaint ("FAC") Para. 21.) In opposition, plaintiff contends her description of migraines she suffers is adequately alleged in FAC Para. 11 and that defendant knew she was suffering from migraines ( FAC Para. 15.) Although Moving Party contends migraines are n...

Excerpt: ...ee) against Defendants Ryan and Heather Morrison. "A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintff resulting therefrom." (McKell v. Washington Mut„ Inc. (21W6) 142 Cal.App.4th 1457, 1489.) Here, the Undisputed Material Facts ("UMFs") show that Defendant Morrison CK Restaurant Group, Inc. dba Country Kitchen Restaurant ex...

Excerpt: ...writing, a copy of the account, or be precluded from giving evidence thereof." (Code Civ. Proc., 5454.) "The court or judge thereof may order a further account when the one delivered is tcho general, or is defective in any particular." (ld.) "Section 454 has received a fairly broad interpretation and has l_ken construed to cover almost any kind of contract action for a money claim made up of more than one item." (Distefano v. Hall (1963) 218 Cal....

Excerpt: ... Compel Documents. (See ROA Nos. 385, 387, AND 395.) As the relevant documents were filed solely in the context of a discovery motion, neither California Rules of Court rule 2.550 nor rule 2.551 apply. (Cal. Rules of Court rule 2.550(a)(3).) "[Tlhere is no generalized presumption of access to all court-filed discovery material" and the applicable standard is "good cause." (Mercury Interactve Corp. v. Klein (2007) 158 Cal.App.4th 60, 100, 107.) Th...

Excerpt: ...(See Hoffman v. Brandt (1966) 65 Cal.2d 549, 552-553 [new trial granted based on improper closing argument including facts not in evidence].) However, moving plaintiff has not presented any evidence that an objection was made at the time, or that a mistrial or curative instruction was requested. (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148.) Further, plaintiff fails to provide evidence showing that this statement was prejudicial. (ld. ...

Excerpt: ...nts of this claim are: (1) conduct which is extreme/outrageous, that is conduct which exceeds all bounds of decency and is more than mere insults, indignities, threats or annoyances; (2) directed at the plaintiff and carried out with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (3) resulting in severe emotional distress, that is emotional distress of such substantial quality or enduring quali...

Excerpt: ...aiming them as costs." (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) Ctxle of Civil Procedure section 1033.5 enumerates allowable costs and costs which are not allowable. Even those amounts that are defined as recoverable under section 1033.5, subdivision (a), may only be recovered if they are both reasonable in amount and reasonably necessary to the conduct of the litigation, as opposed to merely convenient or b...

Excerpt: ...ere, defendant has moved to dismiss the complaint in its entirety with prejudice. Plaintiffs William and Jennifer Young oppose the instant motion for a variety of reasons. As to their jurisdictional argument, ignores the language of CCP 581 that states an action may be dismiss, in essence, at any tme. Plaintiffs' challenge to the underlying order that resulted in the Sheriff's sale is a request that the court review the order of another judicial ...

Excerpt: ...nt motion. The evidence provided and the court's records are sufficient to establish that Freese's failure to comply was willful. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Freese claims that there is no proof of service of the current motion, which seems to imply there is a justification for not responding to the current motion. Notce filed October 12, 2023 at p. 2. This is incorrect, as a proof of service...

Excerpt: ...n. However, Moving Parties have failed to meet their initial burden showing they have a complete defense to plaintiff's claims pursuant to the Statute of Frauds. (See Code of Civ. Proc., S 437c, subd. (pl.) Agreements among partners or joint venturers regarding real property are not generally within the statute of frauds. Bates v. Babcock (1892) 95 Cal.479; Pellegrini v. Weiss (2ff)8) 165 Cal. App. 4th 515, 525. "Whether a joint venture exists is...

Excerpt: ...fect, and not to give opinions upon moot questions or to declare principles or rules of law which cannot affect the matter in issue in the case before it"].) Petitioners' request for judicial notce is GRANTED as to Exs. A and B. (Evid. Code, S 452, subd. (d) [court records].) As to Ex. C, the court takes judicial notice of the existence of the website, but not of the truth of its contents. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th...

Excerpt: ...en the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money Liability to a borrower for negligence arises only when the lender 'actively participates' in the financed enterprise 'beyond the domain of the usual money lender" [internal citations omitted]]; See also Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 921 [common law negligence claim against lender barred by...

Excerpt: ...per].) On its own motion, the court takes judicial notice of the following proofs of service filed as to this defendant: ROA 16, 148, 156, 183. (Evid. Code, S 452, subd. (d) [court records].) As to defendant Phan, plaintiffs' original proof of service indicates he was served on 9-29-22 via substitute service to Aileen De Los Santos, "office staff," at 340 S. Lemon Ave., # 8771, Walnut, California 91789. (ROA 16; Phan Decl. in support of motion, "...

Excerpt: ... Civil Procedure section 437c(f)(2) provides, in pertinent part: "A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." The court has analyzed defendants' current motion and comp...

Excerpt: ...37c [authorizing motion].) Moving parties' request for judicial notice is GRANTED as to Exs. 8-11 (Evid. Code, S 452, subd. (d)), and DENIED as to Ex. 12. As to Exs. 8 and 10, the court takes judicial notce of the fact that the documents were filed, but not of the truth of their contents. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, FN 7.) Responding parties' request for judicial notice is GRANTED as to Exs. A-D (Evid. Code, S 452, subd. ...

Excerpt: ... default. See also Ins. Code 11580(b)(2). There are several reasons to grant intervenor's request. First, under CCP 473(b), "the court shall, whenever an application for relief is made no more than six months after entry of judgment ... vacate any (1) resulting default entered by the clerk" proVded that the moving party files an appropriate affidavit demonstrating "mistake, inadvertence, surprise, or neglect." Here, intervenor has demonstrated, a...

Excerpt: ...s." The filing of a complaint as a "Doe" impairs the public's right of access to court records. (See Cal. Rules Court, rule 2.550(c).) The California Legislature has expressly provided for certain exceptions to the standing rule, and has allowed the use of pseudonyms. (See e.g. Civil Code 1708.85.) Courts have affirmed the ability to proceed as a pseudonymous plaintiff under exceptional circumstances in which privacy rights are implicated. "The j...

Excerpt: ...is important public policy mandates the minimization of judicial intervention in the process of arbitration because, inter alia, the parties thereto expect arbitration to be final rather than the prelude to further litigation. Thus, the Supreme Court has proscribed judicial review of the merits of the controversy, the validity of the arbitrator's reasoning, or the sufficiency of the evidence supporting the arbitrator's award. (ld. at 11.) The onl...

Excerpt: ..., Set One, and Request for Production of Documents, Set One, are GRANTED. (Code Civ. Proc., SS 2030.290, 2031.300.) Defendant George Katsivalis is ordered to provde full, complete, and verified responses to Form Interrogatories, Set One, and Special Interrogatories, Set One, without objection, within 15 days. Defendant George Katsivalis is further ordered to provide full, complete, and verified responses to Request for Production of Documents, Se...

Excerpt: ...urden then shifted to plaintiff to establish that the arbitration agreement was unconscionable or unenforceable for other reasons. (See OTO, LLC v. Kho (2019) 8 Cal. 5th 111, 126.) Unconscionability must be both procedural and substantive to avoid enforcement of the arbitration agreement. ld. at 125. Procedural and substantive unconscionability are evaluated on a sliding scale: "The more substantively oppressive the contract term, the less eviden...

Excerpt: ...hird amended complaint (TAC) continued to name Doe 1 as a defendant. The mere failure to specifically re-identify US Bank as Doe 1 in the TAC was at most a technical procedural error, which plaintiff could cure by amendment (as it has now done in the 4AC) without compromising the benefit of the relation-back doctrine. (See generally, Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176-177 (Woo) [failure of amended complaint to identify newly add...

Excerpt: ...trating the claim has no merit, that plaintiff cannot prove an element of the claim, or that it has a complete defense entitling it to judgment 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....

Excerpt: ...s of material fact as to Noticed Issue No. 1. (See Code Civ. Proc„ S 437c, subd. (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 [burden.] A triable issue of material fact exists as to undisputed material fact ("UMF") 25 as to whether Falcon purchased lights from Luxx in 2019. This triable issue is created by Plaintiff's Exh. l, Nichols as PMK Depo., 139:1-25.) Triable Issues of material fact exist as to UMFs 29, 3...

Excerpt: ..., in that the court takes judicial notice of the fact that the documents were filed with the respective government agencies, but not of the truth of their contents. (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 607-608.) The motion is GRANTED asto cross-defendant Diamond entirely, on grounds of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., S 438, subd. The only basis of liability alleged as to this c...

Excerpt: ... (See Calif. Rules Court, rule 1320 (a), (c); Code Civ. Proc. S 430.60.) As defendant has failed to file a demurrer, the court construes defendant's motion as a demurrer on the grounds of uncertainty and a general demurrer. The demurrer on the grounds of uncertainty is overruled. The complaint is not so poorly drafted that Defendant cannot reasonably respond. (See Khoury v. Maly's of California Inc. (1993) 14 Cal.App.4th 612, 616.) The general de...

Excerpt: ...the burden of proof is on the party claiming them as costs." (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) Code of Civil Procedure section 1033.5 enumerates allowable costs and costs which are not allowable. Even those amounts that are defined as recoverable under section 1033.5, subdivision (a), may only be recovered if they are both reasonable in amount and reasonably necessary to the conduct of the litigation,...

Excerpt: ...oposal" or the "master lease." Defendants' argument that the "lease is not a contract fails at the summary judgment phase, as plaintiffs have shown triable issues. As it relates to the "master lease," the version defendants' attached to the motion is illegible. In reply, a legible version is attached, but it simply raises additional questions of material fact. Did the "master lease" su#rsede any other agreement? The evidence submitted shows dispu...

Excerpt: ...s. Here, it is undisputed that the CC&Rs govern the Harbor Creek community which includes the units owned by Plaintiff. (See Response to SSUMF No. 1.) Paragraph 1.13 of the CC&Rs defines “Common Area” as “all areas on the Project, except the Units, and shall further include, without limitation, for maintenance purposes of the Association, but not necessarily by way of fee title, all gas, water and waste pipes, all sewers, all ducts, chutes,...

Excerpt: ...orders the dismissal of this matter pending in Orange County Superior Court, with prejudice. A party may seek confirmation by filing and serving a petition at least 10 days, but no more than 4 years, after service of the award on that party. (C.C.P. 1288, 1288.4). The petition must name as respondents all parties to the arbitration and may name any other persons bound by the award. (C.C.P. 1285). The petition must also set forth the substance of ...

Excerpt: ...ing competent testimony based on personal knowledge of irreparable harm, immediate danger, or other statutory basis for granting relief ex parte. Newsom v. Superior Court (2020) 51 Cal.App.5th 1093, 1097 (citing Cal. R. Ct. 3.1202(c)). A trial court should deny an ex parte application absent the requisite showing. Newsom, 51 Cal.App.5th at 1097. None of the declarations filed in support of defendants' ex parte application establish irreparable ha...

Excerpt: ...ne or more elements of the plaintiff's cause of action cannot be established. A motion for summary judgment or adjudication is framed by the pleadings. Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; County of Los Angeles v. Superior Court (2009) 181 Cal. App. 4th 218, 226 (overruled on other grounds by Leon v. County of Riverside (2023) 14 Cal. 5th 910). There is no dispute between the parties regarding the elements of the single...

Excerpt: ...(Code Civ. Proc., 5 430.10, subd. (e). The remainder of the demurrers are OVERRULED. Plaintiff shall have 10 days to file an amended complaint. Defendants Max Sandoval, 6 Star, and Maxx's request for judicial notice is DENIED. (Evid. Code, 453, subd. (a) [adequate notice required]; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal .App.3d 369, 374 ["The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of h...

Excerpt: ... claimed privilege. (See Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1619.) The privilege log raises two bases for defendant's objections: “proprietary business information,” and “third party privacy.” Proprietary Business Information. The court's June 5, 2023 order did not include objections on the basis of “proprietary business information.” Additionally, defendant's second amended verified responses failed to preserve any ...

Excerpt: ...Kirk has failed to engage in discovery throughout this case. As a result, defendant has successfully moved the court for multiple orders compelling plaintiff to comply. (Chung Decl.—June 16, 2022 and February 6, 2023 Orders). Those orders reflect that plaintiff was present for both hearings when those orders issued. Defendant's moving papers also demonstrate protracted meet and confer efforts expended by defendant to gain plaintiff's compliance...

Excerpt: ...dence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that plaintiff cannot prove 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 burden, the plaintiff need not oppose the motion and the moti...

Excerpt: ... in which the defendant has engaged. [CCP 425.16(b) [defining protected activity]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66–67] If the defendant carries his burden, the plaintiff must then demonstrate the claims have at least “minimal merit.” [Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Baral v. Schnitt (2016) 1 Cal.5th 376, 384] Based upon the all...

Excerpt: ...ments]; Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199 [a plaintiff may plead the legal effect of the contract rather than its precise language]; see also FAC ¶¶ 9-21, 31.) Second cause of action for fraud. The FAC states facts sufficient to constitute a cause of action for promissory fraud, with the requisite specificity. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, 645 [promissory fraud...

Excerpt: ...) The motion is DENIED as to defendant OC Auto Imports, Inc. dba OC Autohaus, as this defendant has not met its initial burden of presenting evidence showing that plaintiff Romeo Buenaventura cannot establish an essential element of his claims, or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2) [burden].) First, this moving defendant cites no authority allowing summary judgment / adjudication based on a minor's unreprese...

Excerpt: ... SAC ¶¶ 10-28, 31-43.) To the extent defendant contends the claim is barred by workers' compensation exclusivity, the exclusive remedy provisions of the California Workers' Compensation Act do not preempt FEHA claims even as to work-related disabilities. (See City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156; Shirvanyan v. Los Angeles Community College District (2020) 59 Cal.App.5th 82, 106.) To the extent defendant attempts to ar...

Excerpt: ...igation by other judicial officers. For example, Husley again argues in her current motion that she was never served with the Summons or Cross-Complaint. Instead of addressing the court's prior rulings on this issue – that Hulsey waived any objections to service of the cross-complaint, Hulsey once again argues that she was never served with the aforementioned documents. This court (Judges Stephanie George and Melissa McCormick) previously addre...

Excerpt: ...s and assertions, the prior orders stated that the submittal of the HARM report constituted protected activity under a whistleblower claim. However, those orders noted what has again failed to be addressed by Plaintiff Reynolds: a causal link between the protected activity and an adverse employment action. Reynolds efforts to align his resignation with Plaintiff Robinson's termination (SAC para. 67) to create Reynolds' adverse employment action f...

Excerpt: ...��) are SUSTAINED, WITH LEAVE TO AMEND, on the ground of failure to state a COA. [CCP §430.10] Exhaustion of administrative remedies is not alleged by plaintiff in the 1 st and 3 rd COA. The demurrer to the 4 th COA is SUSTAINED, WITH LEAVE TO AMEND, on the ground of failure to state a COA. [CCP 430.10(e)] The Complaint does not allege which statute, regulation, rule, or ordinance has been violated, as required by Labor Code §1102.5(b). The dem...

Excerpt: ...ourt's limited resources. As a result of the pending motions discussed above, the court sets for hearing on July 3, 2023 at 2:00 p.m. in C28 an OSC why the court should not appoint a discovery referee to hear the pending discovery motions and determine all future discovery disputes in this case. (See Code Civ. Proc., § 639 et seq.; see also Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 101-105 [factors].) The parties are ordered to meet a...

Excerpt: ...pecializes in spinal injuries, on 6/20/23 at 8:30 a.m. at 360 San Miguel, Suite 701, Newport Beach, California 92660. This examination will focus on plaintiff's alleged spinal injuries and symptoms. Claims of continuing, ongoing or permanent problems, if any, will be within the scope of the examination, including claims for future care and/or surgery. The examination will be consistent with the orthopedic practices in Southern California and cons...

Excerpt: ...rden of proving that a nonresident defendant has sufficient contacts with the forum state to support personal jurisdiction. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 570.) The plaintiff must demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232.) If the plaintiff establishes that the defendant has minimum contacts w...

Excerpt: ...to the discovery of information relevant to the subject of this lawsuit nor to the discovery of admissible evidence." (See Separate Statement or 18 of Toepel Declaration and Exhibit 2 thereto; See also of Amended Toepel Declaration.) A review of the requests for admissions, however, indicates that each refers to the funds in dispute, the collection efforts through which they were obtained, the underlying action in which this dispute arose, Plaint...

Excerpt: ... rule does not apply "where the contract was fraudulently induced," or where "the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm"]; see also Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 923-924 [same]; Dhital v. Nissan North America, Inc. (2022) 84 Cal .App.5th 828, 838-843, cert. granted, Dhital v. Nissan North America (Cal. 2...

Excerpt: ...P") section 403 describes the pertinent legal standard for addressing Defendant's motion to transfer, and CCP section 1048 describes the legal standard for Defendant's motion to consolidate. In short, upon a motion a judge may order a transfer of "an action involving a common question of fact or law" when the matter is not complex. CCP 1048 provides that actions may be consolidated when they involve "a common question of law or fact" and may be h...

Excerpt: ...s reflected in ROA Nos. 11, 12, 45, 46, 51 and 52. The Court notes, however, that it is not addressing the sufficiency of service completed on April 18, 2023. (ROA Nos. 169 and 170.) Pursuant to C.C.P. a Defendant may, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, serve and file a notice of motion to quash service of summons, on the ground of lack of jurisdiction. (C.C.P....

Excerpt: ...n agree to arbitrate "gateway" questions of "arbitrability," such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.' [Citation.] Similarly, ' "Cp]arties to an arbitration agreement may agree to delegate to the arbitrator, instead of a court, questions regarding the enforceability of the agreement." The answer to 'the question "who has the primary power to decide arbitrability" turns upon w...

Excerpt: ...e evidence objected to was not material to the Court's decision. CCCP S437c(q)) Desacola Declaration Objections 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31 are OVERRULED. Defendant M. K. Products, Inc.'s Objections are ruled on as follows: Objections 5, 6, 7, 10, 12, 14, 15, 16 and 17 are OVERRULED. Objections 8, g and 11 are SUSTAINED. The Court declines to rule on Objections 1, 2, 3, 4, 18 and 19 because the evidence objected to was not ...

Excerpt: ...317(f), "[e)xpenses incurred in defending any proceeding may be advanced by the corporation prior to the final disposition of the proceeding upon receipt of an undertaking by or on behalf of the agent to repay that amount if it shall be determined ultimately that the agent is not entitled to be indemnified as authorized in this section." (Corporations Code 5317(f) [emphasis added.]) The language in Corporations Code 5317(f) is discretionary and p...

Excerpt: ... breach, and (4) the resulting damages to the plaintiff. (Oasis west Realty, LLC v. Goldman (2011) 51 cal.4th 811, 821). Plaintiff's cause of action against TEC fails for two reasons. First, Plaintiff admits that TEC was not a party to the agreement. (TAC, Tl 30). Second, Plaintiff fails to allege breach by TEC. Plaintiff contends that the pleading is adequate because she alleged a conspiracy. Plaintiff's bare and conclusory allegation that "Defe...

Excerpt: ...rt (1985) 169 Cal.App.3d 703, 710 [plaintiff's burden]; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446-448 [elements of specific jurisdiction); Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 907 ["contract with an out-of-state party does not automatically establish purposeful availment in the other party's home forum Cr]ather, a court must evaluate the contract terms and the surrounding circumstances to determine wh...

Excerpt: ...nderlying the plaintiff's cause of action fits one of the categories spelled out in the anti-SLAPP statute. (Ibid; Bonni v. St. Joseph Health System (2021) 11 Cal.5th gg5, 1008-1009 Cthe moving party's "burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity. [Citation.]".) "[T]he anti-SLAPP statute often will not apply to cross-complaints: ...

Excerpt: ...her by insulting and degrading her; ignoring her numerous requests for benefits and rights due to her under the CC&Rs for the maintenance of the Common Area that directly affects her unit; subjecting her to harassing and threatening letters while she was in the ICU for a serious infection potentially tied to the bacteria and mold in her unit caused by the sewer water intrusion; and engaging in such conduct to cause her to withdraw all of her clai...

Excerpt: ...es and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." J; SAC, Ex. 3, pg. 1 [contractual provision for attorneys' fees and costs]). If a contractual atto...

Excerpt: ...Labor Code. S 1102.6 [O]nce it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by...

Excerpt: ... and fair dealing are DISMISSED without prejudice pursuant to plaintiff's voluntary dismissal of these claims. (See Opp. at pp. 15:25-28, 16:21-23, 19:4-7.) The court has addressed the noticed issues below in the same order in which they appear in the moving memorandum of points and authorities, which begins with the second cause of action for retaliation. Issue No. 2. Defendants have met their initial burden to demonstrate plaintiff's "second ca...

Excerpt: .... S 1026.41 does not apply to this Home Equity Line of Credit (HELOC). (See 12 C.F.R. 1026.41, subd. (a)(l) ["This section applies to a closed-end consumer credit transaction secured by a dwelling, unless an exemption in paragraph (e) of this section applies. A closed-end consumer credit transaction secured by a dwelling is referred to as a mortgage loan for purposes of this section. "J; 12 C.F.R. [definition of close-end credit]; 12 C.F.R. S 102...

Excerpt: ...lden Decl. 3, Ex. A.) The motion is also DENIED AS MOOT to the extent it seeks further responses from mMax Communications, Inc. (MCI) and mMax Communications Pte. Ltd. (MCSG) to HPI's first set of special interrogatories, Nos. 4-6, as these defendants have now served amended responses to these interrogatories as of 3/15/23. (See Golden Decl. 4-5, Exs. B-C.) The motion is GRANTED as to the remaining special interrogatories at issue. MCSG is ORDERE...

Excerpt: ...auses of action under the federal Magnuson-Moss Warranty Act. (Code Civ. Proc., S 437c, subd. (c) [authorizing summary judgment where "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law"]; see also Amerigas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4&' 981, 1001 [where a party seeking summary judgment has not addressed all of the...

Excerpt: ...conditions warrant as required by Health and Safety Code, S 101080 and Government Code, S 8630, subd. (d), is DENIED as moot. (Code Civ. Proc., S 1085 [traditional mandamus]. ) Respondents' requests for judicial notice (ROA 220, 246, 318, 365) are GRANTED. (Evid. Code, 452, subds. (c), (d); Cortez v. Purolator Air Filtration Prod. Co. (2000) 23 Cal.4th 163, 168, fn. 2 [judicial notice of legislative rejection].) Petitioners filed a request for ju...

Excerpt: ...See Lee v. Hanley (2015) 61 Cal.4th 1225, 1232 [a demurrer based on the statute of limitations is only permissible where the running of the statute appears "clearly and affirmatively" from the dates alleged, it is not sufficient that the complaint might be barred]; Code Civ. Proc., 338, subd. (d) [the three-year statute of limitations for a fraud cause "is not deemed to have accrued until the discovery, by the aggrieved party, of the facts consti...

Excerpt: ... appear for deposition, was provided notice of said order, and failed to appear for a subsequent properly noticed deposition. (ROA 176; Lafer Decl., 2-4, and Exs. B and C thereto.) Plaintiff McKloski's complaint is thus ordered DISMISSED as to defendant Loan Nguyen Vyas. Moving party's request for additional monetary sanctions is DENIED. Defendant Loan Nguyen Vyas' motion to dismiss the action of plaintiff Andrea Greenway, filed on 11-14-22, is D...

Excerpt: ...et its initial burden to show the action has no merit. (See Code Civ. Proc., S 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [same]. ) Defendant's evidence establishes that a triable issue of material fact exists as to its undisputed material facts ("UMF") No. 17 & 20, specifically the provisions of its agreement with co-defendant Eastbluff to "...to continue at no additional cost tree inspect...

Excerpt: ...ong other things, that defendant breached the implied covenant by intentionally refusing to close the transaction while she had formal loan approval. Where a party seeking summary judgment has not addressed all of the relevant allegations of the complaint and/or all theories of liability alleged, it is not entitled to summary judgment. (See Amerigas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001; Hawkins v. Wilton (2006) 14...