Excerpt: ...29 Cal.App.4th at p. 276. The test is whether lack of jurisdiction is clear or virtually unattainable. Id. at p. 277. This standard involves an evaluation of the amount fairly in controversy, not an adjudication of the merits of the claim, and requires a high level of certainty that the damage award will not exceed $25,000. Ibid. A court must deny a motion to reclassify the case as limited and keep the matter in the unlimited civil court unless i...

Excerpt: ...LED in part and SUSTAINED in part with 15 days leave to amend. The court exercises its discretion to consider the late-filed opposition by Plaintiff. Defendant substantively addresses each argument, and as such, the court finds Defendant would suffer no undue prejudice by this court's consideration of the opposition papers. First Cause of Action (Battery). The demurrer to the First Cause of Action is OVERRULED. The elements of a cause of action f...

Excerpt: ...is ordered to file and serve it within 15 days of service of notice of ruling. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 10...

Excerpt: ...ff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Additionally, leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436. Here, the Complaint fails to state sufficient facts to constitute...

Excerpt: ...rdered to file and serve it within 15 days of service of notice of ruling. “A demurrer tests the legal sufficiency of factual allegations in a complaint.” A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) “Because a demurrer tests only the legal sufficiency of the pleading, the facts alleged in the plead...

Excerpt: ...rally consider residential telephone and address information private does not mean that the individuals would not want it disclosed under these circumstances.” (Id. at 1252- 53.) Contact information, while personal, is not particularly sensitive, and is basic to civil discovery, especially when people are being identified as witnesses. (Id.at 1253-54.) “Nothing could be more ordinary in discovery than finding out the location of identified wi...

Excerpt: ...believes he can amend to cure that defect). The Demurrer as to COAs 1 and 2 is SUSTAINED with 20 days leave to amend. Fraud claims must be specifically pled, including how, when, where, to whom, and by what means the representations were tendered, and, when against an entity, the persons who made the misrepresentations, their authority to speak for the entity, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann ...

Excerpt: ...perly considered. (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1538 [stating, on anti-SLAPP motion, that “[t]o the extent defendants argue they had the right to file any reply declarations at all, they are not wrong. Such declarations, however, should not have addressed the substantive issues in the first instance, but only filled gaps in the evidence created by the limited partners' opposition.”] Here, Cross-Defendant has submitted his de...

Excerpt: ...irement of CCP § 430.41, as it does not indicate that any meet and confer regarding the issues in the demurrer actually occurred, let alone any meet and confer by telephone or in person. Defendant's counsel, Mari Kiridjian, states that she sent Plaintiff's counsel “an email regarding FCA US' intent to file a demurrer” and asked Plaintiff “to notice counsel for FCA US if Plaintiff intends to amend the Complaint or to dismiss the fraud cause...

Excerpt: ...y effort to meet and confer prior to filing the instant motion. (Code Civ. Proc., § 439(a)(4).) A party or the court may move for judgment on the pleadings. (Code Civ. Proc., § 438(b).) Pursuant to Code of Civil Procedure section 438, a defendant may move for judgment on the pleadings for failure to state a cause of action. (Code Civ. Proc., § 438(c)(1)(B)(i).) First Cause of Action (Breach of Lease Agreement). The First Cause of Action allege...

Excerpt: ...ion. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages,...

Excerpt: ...¶ 2–4.) MEF does not provide massage or other spa services, nor does it own or operate any of the franchised locations. (Cryder Decl. ¶ 5.) Defendants White Lotus Investments, Inc. and Does 1-10 are the alleged franchisees who independently owned and operated the Massage Envy® branded franchise located at 27620 Marguerite Parkway, Suite A&B, Mission Viejo, CA 92692 (the “Mission Viejo South Franchised Location”). (Compl. ¶ 5.) Plaintiff...

Excerpt: ..., authenticates a copy of the agreement himself. (¶21-¶22 of Dawson Declaration and Exhibit A thereto). Attached as Exhibit A to the Dawson Declaration is a “Dispute Resolution Agreement” wherein Plaintiff and Defendant Fletcher Jones Motor Cars, Inc. agreed “to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to [Plaintiff's] employment by the Dealership.” (See §1 of Exhib...

Excerpt: ...Arbitration Agreement, before arbitration can be compelled. (See 9 U.S.C. §2 and C.C.P. §1281.2). "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; See also Green ...

Excerpt: ...riate pursuant to Civ. Proc. Code § 2034.460(a). As for Roughan's income from expert witness employment, “The compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony.” Evid. Code § 722. Although an expert is not required to give precise information as to their income from expert...

Excerpt: ...nting a discovery referee for future discovery disputes. Ford's Discovery Verifications Plaintiff contends that Ford's Verifications of its discovery responses are inadequate because Ford has not “sworn to the truth of the response under oath.” Ford counters that because it is a corporation, no one person has knowledge of all of the responses to plaintiff's discovery and that its Verification “is substantively identical to” that suggested...

Excerpt: ...him from important team meetings where his position was required to be present. He reported these acts to Human Resources which failed to investigate. In 2/12/2020, plaintiff suffered some type of accident on the job, which is not disclosed in the complaint, following which MPS failed to provide requested time off and accommodations. On May 11, 2020, he attended a meeting with Human Resources where he was accused of not being injured despite prod...

Excerpt: ...ve, and to reject or execute, requests from abroad for service on its citizens.  Alternatively, Article 8 permits service to be effected through diplomatic or consular agents of the country in which the process originated, unless the country in which the service is to be made has declared its opposition to such service on persons other than nationals of the originating country.  Or, under Article 9, the papers may be forwarded through consu...

Excerpt: ...y Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. [Citation.] In establishing the statutory me...

Excerpt: ...n, Generally A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her 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.) If a plaintiff has plea...

Excerpt: ...on for Conversion, the Second Cause of Action for Intentional Fraud, and the Third Cause of Action for Negligent Misrepresentation. The Motion to Strike is DENIED AS MOOT, in light of the court's ruling on the Demurrer. “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in...

Excerpt: ...facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sh...

Excerpt: ... Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” Co...

Excerpt: ...of each of the 6 th through 10 th affirmative defenses of plaintiff Orange County Association for Mental Health dba Mental Health Association of Orange County [“MHAOC”] and BT Investment Properties, LLC's [“BT”] Answer to the Complaint 3. Summary judgment of MHAOC's Cross- Complaint The Motions are DENIED. 1. Motion for Summary Judgment – 2 nd COA (public nuisance per se) Through this Motion the City of Santa Ana asks the Court to enter...

Excerpt: ...rest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest. (See also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal. 4th 1178, 1218.) The court denies the request seal the entire settlement agreement as defendant has not s...