Excerpt: ...rtments, LLC's ("Plaintiff") First amended Complaint. First Cause of Action for Breach of Written Indemnity Agreement Defendant argues that the FAC'S first cause of action is insufficiently pled for the following reasons: (1) Plaintiff cannot plead consideration at the time the 8-28-02 letter was issued because Plaintiff did not have a viable claim for breach of contract at that time, as Plaintiff's predecessor believed that the Property had been...

Excerpt: ...mary judgment shall be granted where there is no triable issue of any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “A defendant moving for summary judgment meets his burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of...

Excerpt: ...ual to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Plaintiffs accepted Defendant's third Section 998 Offer to Compromise in the amount of $41,499.03 on March 28, 2023. The Section 998 Offer states: “KA will pay Plaintiffs' attorney's fees, expenses a...

Excerpt: ...ts, the Court is inclined to consider Plaintiffs' untimely opposition. Application of Litigation Privilege: Defendants challenge all seven causes of action alleged in the FAC on the grounds that Defendants are immune from liability pursuant to the litigation privilege. Specifically, Defendants contend that the litigation privilege bars Plaintiffs claims because the claims arise out of the Associations' recording of an assessment lien against Plai...

Excerpt: ...able to fraud claims because they signed the purchase agreement in 2008 and were provided with copies of everything they signed including the settlement statement which states the final purchase price was $753,584. Defendant further contends that Plaintiffs' contention that the limitations period began to accrue on December 12, 2019 when they received an email from Defendant's representative lacks merit as they cannot rely on Defendant's most rec...

Excerpt: ...905, “there is no recovery in tort for negligently inflicted ‘purely economic losses,' meaning financial harm unaccompanied by physical or property damage.” (Id. at 922.) Additionally, “the rule functions to bar claims in negligence for pure economic losses in deference to a contract between litigating parties.” (Ibid.) “[T]here is no liability in tort for economic loss caused by negligence in the performance or negotiation of a contr...

Excerpt: ...sponses to Interrogatories, filed 2-17- 23 under ROA No. 279 is GRANTED in part and DENIED in part. Defendant moves for an order compelling Plaintiff Michael Pierce (Plaintiff) to provide further responses to Defendants' Form Interrogatories, Set One, numbers 2.7(d), 2.12, 6.1, 6.3, 6.4, 6.7, 7.2, 8.8, 9.1, 9.2, 11.2, 12.1, 14.1, 17.1, 50.1, 50.5 and Special Interrogatories, Set One, numbers 9, 12, 17, 19, 22-26, 33 and for an order imposing mone...

Excerpt: ...ations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules Ct., rule 3.1324(a).) A separate declaration must accompany the motion and must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discover...

Excerpt: ...ant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) Here, Escrow Company contends Broker hasn't adequately alleged the element of duty regarding the transaction involving sale of real property in Irvine. The Cross-Complaint alleges Broker assisted Xiaoying Zhu in selling the subject ...

Excerpt: ...ent. Demurrer for Uncertainty “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Mali's of California, Inc.  (1993) 14 Cal.App.4th 612, 616.) “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v...

Excerpt: ...irst appearance in this action and was filed prior to an answer. Additionally, Counsel for Plaintiff concedes he granted an extension to answer, pursuant to California Rules of Court, rule 3.110(d). (¶2-¶3 of Nicholson Declaration.) While Plaintiff's Counsel asserts the extension permitted only an answer, Code of Civil Procedure section 396b, subdivision (a) permits a motion to change venue “within the time otherwise allowed to respond to the...

Excerpt: ...24 (Ochoa). Ochoa declined to follow Felisilda v. FCA US, LLC (2020) 53 Cal.App.5th 486, on which the Court's 3-32-23 Order was based. A motion for reconsideration made by a party must be based on new or different facts, circumstances, or law than those before the court at the time of the original ruling. (Code Civ. Proc. § 1008(a).) The motion must also be accompanied by an affidavit from the moving party that states: (1) what application was p...

Excerpt: ...t and DENIED without prejudice in part. The alternative Motion granting all Votow's pending Motions to Compel Further Responses to Discovery, together with all monetary sanctions requested therein is DENIED. Request for Terminating Sanctions: “[T]erminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party.” (R.S. Creative, Inc. v. Creative...

Excerpt: ...scovered. [¶] (2) An exercise of the party's option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.260, subdivision (a), provides, in relevant part, “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party . . . .” Code of Civil Procedure section 2030.270,...

Excerpt: ...sal, order or other proceeding taken against a party. A court may grant discretionary relief upon the moving party's showing of “mistake, inadvertence, surprise or excusable neglect.” (Code Civ. Proc § 473, sub. (b); Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615-616.) While a request for relief under § 473(b) is entrusted largely to the trial court's discretion, the law strongly favors an exercise of that discretio...

Excerpt: ...unding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” SPROGs 8-13 seek informat...

Excerpt: ...uary 2, 2023; on May 11, 2023, Plaintiff served Defendant with a notice of deposition for May 25, 2023; and on May 16, 2023, Plaintiff served Defendant with a notice of deposition for June 29, 2023, which was a date previously offered by Defendant's counsel. (Medvei Decl., ¶ 4-6, Exs. 1, 4, 6.) Each time Defendant objected to the deposition notice on the grounds that the deposition date was unilaterally chosen by Plaintiff and that Defense Couns...

Excerpt: ...) Except as otherwise provided in Section 396a [not applicable here], if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, withou...

Excerpt: ...of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may b...

Excerpt: ...r is clearly frivolous, the court shall award court costs and reasonable attorney's fees to the public agency.” “The PRA does not define the term ‘clearly frivolous' for purposes of an award of fees and costs under that statute.” (Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 353, 368 (supra).) However, California courts have adopted the test articulated in In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty), 183 to determin...

Excerpt: ...if., Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the Complaint names Katherine Stride and her minor son, J.S., as Plaintiffs. The Complaint does not specify which individual plaintiff (Stride or her son) is bringing each cause of action, nor does it identify which causes of action apply to each Defendant (RSC, Moore, or Butts). The Complaint therefore fails to inform each Defendant of the allegations that are being raised against them, and of the...

Excerpt: ...re pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the action; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Rule 3.350(a) of the California Rules of Court sets forth the requirements for a motion to consolidate. (1) A notice of motion to consolidate must: (A) List all named parties in ea...

Excerpt: ...sting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: ¶ (1) An answer to a particular request is evasive or incomplete. ¶ (2) An objection to a particular request is without merit or too general.” Timeliness A motion to compel further responses to requests for admissions must be filed “within 45 days of the service of the verified response, or any supplemental ve...

Excerpt: ...on agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues.” (Code of Civ. Proc., § 1281.2; Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.) Simil...

Excerpt: ...ure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of ...