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: ...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: ...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: ... 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: ...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...