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: ...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...

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: ...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: ... 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: ...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: ...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: ...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: ...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: ...(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: ... 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: ...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: ...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: ...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: ... 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: ...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...