Excerpt: ...udgment on the cause of action. Cal. Civ. Proc. Code § 437c(p)(1). Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Id. Plaintiff's third cause of action alleges violation of Civil Code section 1632 against defendants Ben Auto Haus, LLC and San Diego County Credit Union. Plaintiff alleges defendant Ben Auto ...

Excerpt: ...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) 101 Cal.App.4th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complai...

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: ...ition. For the following reasons, defendants' demurrer is overruled. 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) 101 Cal.App.4th...

Excerpt: ... ambiguities can be clarified in discovery. (Khoury v. Maly's of Calif., Inc. (1993) 14 CA4th 612, 616.) Here, the Complaint adequately apprises the Defendant of the nature of and basis for the claim, for pleading purposes. The Demurrer, based on the statute of limitations and C.C.P. § 430.10(e), is OVERRULED. A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. (Lee v. Hanley (2015) ...

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: ...e, 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. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (199...

Excerpt: ...is insufficient because defendants did not enter into any agreement with plaintiff contractor. The contract identifies the client as the address “@Odyssey VR.” It was signed by “Lei Zhao,” and even though it does not identify his capacity, the amended complaint alleges that he was “Defendants' Chief Operating Officer at the time of execution.” A check for the initial payment was also cut by Irvine Management Company “to the order of...

Excerpt: ...g reasons, defendants' demurrer is sustained with leave to amend. 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) 101 Cal.App.4th 13...

Excerpt: ...iduciary duty because the alleged breaches of fiduciary duty are little more than allegations of breach of contract. Plaintiff alleges Aviation Consultants stopped making cash distributions while it continued to allocate profits to him, and this was done so as to pressure plaintiff (and other minority shareholders) to sell their shares. Plaintiff alleges he was damaged because he incurred tax liability without having the corresponding cash distri...

Excerpt: ... Elder Abuse. (Opp at 1:12-13) Plaintiffs also concede the propriety of Carol Wilson's demurrer to the SAC. Accordingly, the demurrer is SUSTAINED as to the 2nd and 4th causes of action and as to the claims made against Carol Wilson. The remaining issue in the demurrer is the Negligence cause of action asserted by Thomas and Jailyn Kramer (“Plaintiffs”) against the HOA. The issue is whether the Plaintiffs as tenants have standing to assert th...

Excerpt: ...ntiff Patricia Kells as trustee of the Patricia Lynn Kells Living Trust. The court granted defendants' motion for summary judgment on March 9, 2023. See 3/9/23 Order & 3/27/23 Judgment. For the following reasons, defendants' motion is granted. A. Entitlement to Attorneys' Fees Plaintiff is the widow of Robert T. Kells, Jr. (Robert) a former member of defendant Blueridge Business Group. Robert initially owned 20% of Blueridge; Robert sold 5% of hi...

Excerpt: ...ion of $89 based on an overstated amount, for a total amount of $23,376. Krain contends that a $500 hourly rate for her counsel, Joshua Koltun (“Koltun”), is reasonable and within the range for experienced media attorneys in California based upon his experience and specialty in media/First Amendment issues, and that $500 per hour was the charged rate in this case. Krain also argues that the hours for which Defendant seeks an award are reasona...

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: ...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: ...e sixth cause of action of the Cross-Complaint filed by Cross-Complainant Dehong Liu pursuant to Code Civ. Proc. § 425.16. For the following reasons, the anti-SLAPP motion to strike is GRANTED. ---------------------------- Motion # 1 ---------------------------- Demurrer to Cross-Complaint 1. Meet and Confer A party demurring or moving to strike a pleading is required to meet and confer “in person or by telephone” with the party that filed t...

Excerpt: ... The Motion to strike is DENIED. Legal Standard on Demurrer A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections...

Excerpt: ...ded in Section 430.30, to the pleading on any one or more of the following grounds: … (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f) [1]; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therei...

Excerpt: ...int.” (Code Civ. Proc., § 426.10, subd. (c) [3].) “[T]he phrase ‘related cause of action' in section 426.30 is defined as ‘a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.' [Citation.] Because of the liberal construction given to the statute to accomplish its purpose of avoiding a multiplicity of actions, �...

Excerpt: ...(a).) The court may also “order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Ibid.) The purpose of consolidation is to enhance trial court efficiency (i.e., to avoid unnecessary duplication of evidence and procedures), and to avoid the substantial danger of inconsistent adjudications (i.e., different results when matters are tried before different ju...

Excerpt: ...igned “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order . . . . This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016 [quoting Townsend v. Super. Ct. (1998) 61 Cal....

Excerpt: ... Defendant's MSJ to be heard 07/05/2023. Defendant later decided against filing that motion. (Hernquist Decl. ¶ 11.) Plaintiff's counsel believed that on 06/09/2023, the parties had orally agreed to continue the cross-motions for summary judgment from 07/05/2023 to a date sometime in August. (Mogavero Decl. ¶ 4.) The court notes that the record shows that at that time, neither party had filed an MSJ or cross-MSJ. At some point between 06/09/202...

Excerpt: ...C on behalf of Messner as they are uncertain. Code Civ. Proc. S 430.100.) Demurrer is sustained with 20 days leave to amend. (Code Civ. Proc., 5430.10(e), (f).) In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress are generally recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aw...

Excerpt: ...ng and abetting of the Complaint filed by Plaintiffs, Philips North America, LLC; Koninklijke Philips N.V; and Philips India, Ltd. (collectively "Philips"). The Court SUSTAINS, with 10 days' leave to amend, the demurrer as to the First and Second COAs. The Court OVERRULES the demurrer as to the Third COA. First and Second COAS — Fraudulent Transfer and Constructive Fraudulent Transfer Civil Code section 3439, et seq. is known as the Uniform Voi...

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: ...blished or there is a complete defense. (Code Civ. Proc., 437c(a), Only after a defendant meets that burden does the burden shift to the plaintiff to produce admissible evidence showing the existence of a triable issue as to a cause of action or complete defense. (ld.; Hawkins v. Wilton (2006) 144 cal.App.4th 936, 940.) In a medical malpractice action, when a defendant moves for summary judgment and supports his motion with expert declarations th...

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: ...inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: C'] (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general. [Tl] (b) A motion under subdivision (a) shall c...

Excerpt: ...NIED. Code of Civil Procedure section 473(b) states, in relevant part: The court may, upon any terms as be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise t...

Excerpt: ...t retain counsel. "Cu]nder a long- standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney." (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) "It must be represented by licensed counsel in proceedings before courts of re...

Excerpt: ...1018, 1027. Civil Code § 1717 provides as follows: “(a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded ... to the prevailing party, then the party who is determined to be the party prevailing on the contract ... shall be entitled to reasonable attorney's fees in addition to other costs ... Reasonable attorneys' fees shall be fix...

Excerpt: ...d costs in the amount of $3,938.06 from Defendant FCA US LLC, pursuant to the Song- Beverly Consumer Warranty Act (Song-Beverly Act). Basis for Award of Attorney's Fees and Costs The Song-Beverly Consumer Warranty Act (Song-Beverly Act), Civil Code section 1790 et seq., states that “[i]f the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amo...

Excerpt: ...'s seeks an award of $45,817.20 in attorney's fees, $4,500.00 in anticipated attorney's fees, $12,587.95 in costs, and $425.00 in anticipated costs from Defendant General Motors LLC pursuant to the Song-Beverly Consumer Warranty Act (Song-Beverly Act). Basis for Award of Attorney's Fees and Costs The Song-Beverly Consumer Warranty Act (Song-Beverly Act), Civil Code section 1790 et seq., states that “[i]f the buyer prevails in an action under th...

Excerpt: ...and Larry Watkins' (collectively, “Plaintiffs”) move for an award of attorneys' fees in the amount $161,627.00, plus costs in the amount of $2,413.94 from Defendant Related Management Company, L.P. (“Defendant”). Defendant requests judicial notice of the following: 1. the Court's Minute Order in related matter Griffith v. Related Management Company, L.P., case number 2019-01091978, regarding Plaintiff Motion for Summary Adjudication issue...

Excerpt: ...mplication, but not conclusions of fact or law, are deemed admitted by the demurring party. The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. [¶] In addition to the facts actually pleaded, the court considers facts of which it may or must take judicial notice. Moreover, a party may not avoid demurrer by omitting facts pleaded in the original complaint or by suppressing facts which prove the pleade...

Excerpt: ...is required to exercise its jurisdiction in a particular manner or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction and void. Pacific Design Sciences Corp. v. Superior Court, 121 Cal. App. 4th 1100, 1106 (2004). Under Code of Civil Procedure § 483.010, attachment may be issued only if the claim sued upon is: (1) a claim for money based on a contract (express or implied); (2) the claim is for a fixed or ...

Excerpt: ...lma Luna (“Plaintiff”) is SUSTAINED in part and OVERRULED in part. The Demurrer is sustained, with leave to amend, as to Plaintiff's first, second, third, and fourth causes of action. The Demurrer is overruled as to Plaintiff's fifth cause of action. If Plaintiff wishes to amend, Plaintiff shall serve and file her Amended Complaint within 15 days. 1st – 3rd Causes of Action Plaintiff alleges Defendant Miguel Zarate came to her apartment on ...

Excerpt: ...§ 452; Stevens v. Superior Court (1999) 75 Cal. App. 4 th 594, 601. All material facts properly pleaded, and reasonable inferences therefrom, must be accepted as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4 th 962, 966-67. A pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of t...

Excerpt: ...e plaintiff to use due care, breach of that legal duty, causation, and injury to the plaintiff. Holmes v. Summer, 188 Cal. App. 4th 1510, 1528 (2010). The existence of a legal duty is a question of law for the court. Id. at 1518. “The elements of a cause of action for premises liability are the same as those for negligence.” Castellon v. U.S. Bancorp, 220 Cal. App. 4th 994, 998 (2013). Whether to impose a legal duty to protect from injuries c...

Excerpt: ...ueras v. BAC Home Loan Servicing, LP (2013) 221 Cal.App.4th 49, 62. “‘Duty is not universal; not every defendant owes every plaintiff a duty of care. A duty exists only if “ ‘the plaintiff's interests are entitled to legal protection against the defendant's conduct.' ” [Citation.] Whether a duty exists is a question of law to be resolved by the court.' [Citation.] ‘A duty of care may arise through statute' or by operation of the commo...

Excerpt: ... breach as the proximate or legal cause of the resulting injury.' ” (Ladd v. Cty. of San Mateo (1996) 12 Cal. 4th 913, 917.) “[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal. 4th 814, 819.) “It is fundamental that in order to take charge of a person in such a manner as will create a duty to control his conduct, one must possess the ability to control that...

Excerpt: ... met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross- defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the c...

Excerpt: ...omplaint is OVERRULED. Defendants shall file and serve their Answer to the Complaint within 15 days. Requests for Judicial Notice Defendants' requests for judicial notice filed with the moving papers and the reply are both denied. Defendants base their requests on Evidence Code section 452 subsection (f) (law of foreign nations) and subsection (h) (facts not reasonably subject to dispute). The documents are Iranian government publications, not ac...

Excerpt: ...objections must follow one of two specified formats and: …Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must: (1) Identify the name of the document in which the specific material objected to is located;...

Excerpt: ...how he is entitled to such relief. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Civil Code section 3294 states in part, “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishin...

Excerpt: ...es and request for documents. According to the Proof of Service, on 12-19- 2022 at 7:30 AM Defendant was served with the post judgment written interrogatories as follows: “Substitute served documents to "John Doe", front desk / security (description: Asian, male, 55 yrs., 5'9”, black hair, 190 lbs.). He told me that they would let me up at 9:00 AM, but not before. I told them that I had made previous attempts at other times and that I wanted ...

Excerpt: ...umbers 3-4, 8-10, 14, 16, 19, 20, and 22- 24 24; Form Interrogatory Number 17.1; Request for Admission Numbers 1, 2, and 4-7; and Request for Production Numbers 1-3, 6-11, 23-25, and 28, within 21 days of service of the notice of ruling. The Motion to Compel Further Responses is DENIED as to all other discovery requests. Plaintiff Placentia-Linda Hospital, Inc.'s Motion to Compel Further Responses from Defendant Superior Health Plan, Inc. dba Amb...

Excerpt: ...subject motions are brought following the deponents' failure to appear at deposition. CCP §2025.450 authorizes a motion to compel attendance and production following a failure to appear. Because the motions are similar in many respects, and because the separate “non-oppositions” filed by the defendants are nearly identical, the two motions are discussed together. Green establishes that on 1/19/23, it served a Notice of Deposition of Persons ...

Excerpt: ...art and DENIED in part. Plaintiff Timothy J. Woodall is ORDERED to pay to Defendants Ronnie Dean Exchavarria, Sr. and Allegiant PI reasonable attorney's fees in the amount of $166,308 within 30 days of service of the notice of ruling. Defendants Ronnie Dean Echavarria, Sr.'s and Allegiant PI's request for costs is DENIED. Defendant Julie A. Woodall seeks an award of $258,503 in attorney's fees, $4,775.00 in anticipated attorney's fees and $60.00 ...

Excerpt: ...ion of the Prayer seeking prejudgment interest, Civil Code § 3291 does not apply to wrongful termination actions. (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1436; 6 Witkin, Summary 11th Torts § 1828 (2023); Gourley v. State Farm Mut. Auto. Ins. Co. (1991) 53 C.3d 121.) As the gravamen of the claim here is wrongful termination, § 3291 is inapplicable, and no other basis for prejudgment interest is apparent. The Complaint, as ...

Excerpt: ...defendant challenges the court's jurisdiction, it is up to the plaintiff to prove, by a preponderance of the evidence, personal jurisdiction exists. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 (Vons).) This must be shown by affidavits, declarations, or other competent evidence. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 110.) Due process permits state courts to exercise personal jurisdiction o...

Excerpt: ...efendant did not file or serve its opposition until a full week later, on 08/08/23, which is only four (4) court days before the hearing on this matter. Based upon the untimeliness of the opposition, the Court disregards the opposition and supporting documents filed under ROA 84, 86 and 88 pursuant to Rules of Court, Rule 3.1300(d). See also Rancho Mirage Country Club Homeowners Ass'n v. Hazelbaker, 2 Cal. App. 5th 252, 262 (2016). On receipt of ...

Excerpt: ..., the court “shall” grant the motion if it determines that a written agreement to arbitrate exists. Plaintiff makes two arguments attacking the showing of the existence of the Agreement. The first is the document has not been properly authenticated. The second is there was no mutual asset because the document presented to Lopez Cruz was in English, and Plaintiff does not read or understand English. Spanish is his native language. With respect...

Excerpt: ...trate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. . . “ “Arbitration is favored in this state as a voluntary means of resolving disputes, and this voluntariness has been its bedrock justification. As we stated recently: “[P]olicies favoring the eff...

Excerpt: ...ng party may move for an order compelling responses and for a monetary sanction. Code Civ. Proc § 2030.290(b). With regard to sanctions, the court “shall” impose a monetary sanction against the losing party on a motion to compel unless it finds that party acted “with substantial justification” or other circumstances render the sanction “unjust.” Code Civ. Proc. § 2030.290. No meet and confer is necessary when a party has failed to r...

Excerpt: ...”) to be relieved as counsel. Both motions are GRANTED. Plaintiff's Motion to Enforce Settlement The Court GRANTS the Motion by Plaintiff to enter judgment pursuant to CCP §664.6 against Defendant Old American Inc. pursuant to the parties' Settlement Agreement. The Plaintiff in the action originally was Ascentium Capital LLC; however, by order dated 5/12/2023, the Court granted an ex parte application to substitute Regions Bank as the Plaintif...

Excerpt: ...fraud by omission appear time-barred on their face. (See Cal. U. Com. Code, § 2725 [four-year statute of limitations]; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215 (Krieger) [section 2725 applies to claims for breach of warranty under the Song-Beverly Act]; Code Civ. Proc., § 388, subd. (d) [three-year statute of limitations for fraud]; see also FAC ¶ 6 [plaintiffs purchased the subject vehicle on 2/17/14], 107-114 [s...

Excerpt: ...ed wrongful retention of premiums charged during the COVID-19 pandemic, when miles driven plummeted, but Mercury charged rates (previously approved by the Insurance Commissioner) based on pre- pandemic driving levels. (CC ¶ 2.) In 2020, Mercury refunded a portion of those premiums through billing credits at the direction of the Commissioner. (CC ¶¶ 9-12.) In a March 2021 bulletin, the Commissioner directed California automobile insurers to ref...

Excerpt: ...ng various wage-and-hour class claims. (ROA 2). On November 22, 2019, Plaintiff filed the operative First Amended Complaint (“FAC”) adding a PAGA claim. (ROA 12). Subsequently, Plaintiff requested the dismissal of the class claims, without prejudice. (ROA 39). No party has filed a motion to compel arbitration. There is no discovery order or stipulation for discovery. MOTION FOR APPROVAL OF PAGA SETTLEMENT: This hearing was originally continue...

Excerpt: ...l also must provide a red-lined version of any revised papers, including the proposed letter to the aggrieved employees. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the proposed letter to the aggrieved employees, rather than with just a supplemental declaration or brief simply asserting that the issues have been resolved. The ...

Excerpt: ...lege duty, Defendants' intent to induce reliance, or Plaintiff's justifiable reliance. A legal duty arises from a fiduciary or confidential relationship, privity of contract, or from special circumstances, oftentimes in cases dealing with the sale of property. (La Jolla VIII Homeowners' Association v. Superior Court (1989) 212 Cal.App.3d 1131, 1151 (La Jolla III); see Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 161 [real estate seller's dut...

Excerpt: ...cessor in interest to The Bank of New York, National Association, as Trustee f/b/o holders of Structured Asset Mortgage Investments II Inc., Bear Stearns ALT-A Trust 2005-10, Mortgage Pass-Through Certificates, Series 2005-10) (collectively, “Moving Parties”) demur, and in the alternative, move for judgment on the pleadings, to the sixth cause of action for violation of Business and Professions section 17200 on the ground that Plaintiff Ariel...

Excerpt: ...r aiding and abetting breach of trust, and the seventh cause of action for unfair business practices. Defendant Vince is an attorney who allegedly assisted Defendant Jeffrey Jacobson in “breaking” the family trust in 2002 and wrongfully transferring its assets to Jeffrey Jacobson. (SAC, ¶¶ 16, 77, 108.) Plaintiffs allege they learned of the scheme after receiving a 20,000-page document production in a related case on 7/9/2020. (SAC, ¶ 55.)...

Excerpt: ...ana's (“Cross-Complainant” or “QUINTANA”) Cross-Complaint, the 1st through 4th causes of action. Special Demurrer for Uncertainty A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal.2d 872, 883.) A demurrer for uncertainty is strictly construed, even where a complaint is in...

Excerpt: ...nd structural engineering services for the project. Eidelstein contends the project was defectively constructed in various ways, and he has brought suit against several parties involved in the construction. As against Desai, he brings claims for breach of contract (the fourth cause of action) and professional negligence (the fifth cause of action). Desai demurs to the negligence claim. Desai's argument is straightforward. Eidelstein's negligence ...

Excerpt: ...udgment on the Pleadings Eckler v. Neutragena Corporation (2015) 238 Cal.App.4th 433, 439, states, “ ‘ “A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.' [Citation.] As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.' [Citation.]”...

Excerpt: ...the face of the complaint.' [Citation.] As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.' [Citation.]” “A trial court's determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes. [Citations.] In addition, it gives them a liberal construction.” (Ge...

Excerpt: ...class action arising from claims of invasion of privacy. On April 1, 2020, Plaintiff Nathan Walter, individually and on behalf of a class of similarly situated individuals (“Plaintiff”), filed a Complaint against Defendant Farfetch.com US, LLC alleging a single cause of action for Unlawful Recording and/or Monitoring of Cellular and Cordless Telephone Communications. (ROA 2). At some point, Plaintiff added Farfetch.com Limited as a named Defe...

Excerpt: ...uments showing state engineers approved the 1969, 2004, and 2015 plans. (See Gov. Code, §830.6 [“appropriate discretionary approval”; Dobbs v. City of Los Angeles (2019) 41 Cal.App.5th 159, 161 [plans bore city engineer's stamp; approval shown by expert opinion on agency custom and practice]; see also Def. SSUF # 1, 11, 13-16, 19-21, 23, 31-38.) Defendant showed the disputed third element of design immunity – design reasonableness – thro...

Excerpt: ...ecause Plaintiff has not had an opportunity to address the evidence that Magnit is the successor by merger to Pro Unlimited, Inc., the Court, upon the request of Plaintiff, will continue the motion to September 15, 2023 at 9:00 a.m. in Department CX104 to allow Plaintiff to file the supplemental brief discussed below regarding the relationship between Magnit and PRO Unlimited, Inc. The supplemental brief, which should be limited to this single is...

Excerpt: ... be presented, court shall order a continuance].) Continuance of a motion for summary judgment is not mandatory when the declaration fails to make the necessary showing. (Johnson v. Alameda County Med. Ctr. (2012) 205 Cal.App.4th 521, 532 (Johnson).) An opposing party's declaration in support of a motion to continue the summary judgment hearing should show the following: (1) facts establishing a likelihood that controverting evidence may exist an...

Excerpt: ...urt may: (a) Strike out any irrelevant, false, or improper 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. “The 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., § 437, subd. (a).) “...

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: ...t information for the court to determine when the 45-day period expired. Specifically, the court was not provided with the method of service of GM's verification. Depending on the method of service, it is possible that the motion was timely filed on July 5, 2023. Merits On receipt of the response to a document demand, the demanding party may move to compel a further response if any of the following apply: (1) a statement of compliance is incomple...

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: ...o nos. 1 and 3. Defendant filed a reply declaration of Mark Kimball in support of its reply. “The general rule of motion practice . . . is that new evidence is not permitted with reply papers . . . ‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . . ' and if permitted, the other party should be given the opportunity to respond.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1...

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: ... reports by 5/29/23. Defendant met its burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; see also Nguyen decl. ¶¶ 5-7 & Ex. 2.) To be sure, plaintiff has shown procedural unconscionability. The arbitration agreement is a contract of adhesion, presented on a take-it-or-leave-it basi...

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 ...

Excerpt: ... to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic...

Excerpt: ...ited by order of the court in accordance with this title, 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. Discovery may relate to the claim or defense of the party ...

Excerpt: ...nvironment “To establish a prima facie case of a hostile work environment, [Plaintiff] must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Da...

Excerpt: ...rinciples which are applicable in determining if a complaint states a cause of action.” (South Shore Land Co. v. Petersen (1964) 226 Cal. App. 2d 725, 732.) A determination of the sufficiency of an answer requires an examination of the complaint because the adequacy of the answer is with reference to the complaint it purports to answer. (Id. at 733.) Further, the same pleading of ultimate facts rather than legal conclusions is required in plead...

Excerpt: ... conclusory and lack any facts sufficient to support an alter ego theory of liability. “To recover on an alter ego theory, a plaintiff need not use the words “alter ego,” but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 415.) “The allegation that a corporation is the alter ego of the individual st...

Excerpt: ... (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the 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...

Excerpt: ... of limited Court time and resources. The parties shall also provide redline copies of the revised notice and proposed order. A judgment in a PAGA action “binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, “PAGA settlements are subject to trial court review and approval, “to determine whether it is fa...

Excerpt: ...nterest added to the judgment against Defendants as follows: Candace Yang: • The Nursery and Frank Berry to Candace Yang, on the principal sum of $16,551.88, the total interest to be added as of August 10, 2023, will be $947.77; • Frank Berry to Candace Yang, on the principal sum of $5000, the total interest to be added as of August 10, 2023, will be $286.30; • The Nursery to Candace Yang, on the principal sum of $15,000, the total interest...

Excerpt: ...collectively referred to herein as "Intervenors." The Zirst Amended Complaint alleges that during the period of July 1, 2019, to September 30, 2020, plaintiff overpaid sales taxes in the amount of $10,797,689.31 on the sales of jet fuel to Southwest Airlines Co. The taxes at issue are pursuant to the BradleyEurns Uniform Local Sales and Use Tax Law, codified in Revenue and Taxaton Code section 7200, et seq. Plaintiff pays these taxes to the defen...

Excerpt: ...greement is directed, rather than ‘amended settlement agreement', to avoid use of limited Court time and resources. As to the Settlement 1. Were the Settlement and Motion served on the LWDA? Proofs of service of the Settlement and Motion should be filed with the Court. 2. The PAGA Notice letter(s) to the LWDA should be submitted to the Court. 3. Confirm that Defendants did not provide an earlier cut of date for the Release Period before the fil...

Excerpt: ...pel is granted in part and denied part. Defendant B E Products, Inc. moves for entry of a protective order governing “confidential information” produced in this case. The court exercised its discretion to consider plaintiffs' late-filed opposition. Defendant's motion for entry of a protective order is granted in part and denied in part. Requests Nos. 30, 39, 62 and 63 seek relevant information and/or are reasonably calculated to lead to the d...

Excerpt: ...or the reasons set forth in the court's April 6, 2023 order. See 4/6/23 Order. In sum, and as further detailed in the April 6, 2023 order, the court denied plaintiffs' application because plaintiffs' complaint does not allege sufficient facts to state causes of action against defendants, and because neither the complaint nor plaintiffs' application demonstrated why plaintiffs would be owed $97,530.85. Id. The court's order was “without prejudic...

Excerpt: ...torm's discovery responses reflect it cannot establish the requisite element of damages for each of its claims as a matter of law.” Synoptek contends that summary judgment must be granted in its favor because the causes of action of Plaintiff/Cross-Defendant Burstorm, Inc. (“Burstorm”) are barred by the integration clause in the User Access Agreement and that an alleged oral modification of the parties' integrated, written agreement is with...

Excerpt: ...its third cause of action for breach of guaranty in connection with the Equipment Finance Agreement No. 289865-000 against defendant William Gwathmey, Jr., including damages. 2. Plaintiff Balboa Capital Corporation established all of the elements of its fourth cause of action for indebtedness against defendant William Gwathmey, Jr., due to his breach of the guaranty in connection with the Equipment Finance Agreement No. 289865-000. A plaintiff mo...

Excerpt: ...erance 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.4 th 951, 972; accord Green Tree Financial Corp.-Alabama v. Randolph (2000) 531 U.S. 79, 91-92.) “In California, ‘[g]eneral principles of contract law determine whether the parties have entered a binding agreement to arbitrate.'�...

Excerpt: ...loyment Arbitration Rules effective January 1, 2023. ROA 20 and 39. Both parties' requests are GRANTED. There is a Valid Arbitration Agreement Between the Parties. Defendant has met its initial burden of demonstrating the existence of an arbitration agreement between the parties. (Rosenthal v. Great Wester Fin. Securities Corp. (1996) 14 Cal. 394, 413; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4 th 951, 972.) Defendant presents evid...

Excerpt: ...te-filed opposition. The Court considers the late-filed opposition, and reply filed in response thereto. Plaintiff contends that both actions involve complex issues of title and fraud, that adjudicating those complex issues in the summary proceedings of the UD Action infringes on Campbell's due process rights, and that because Brooks' right to possession of the property depends on the outcome of Campbell's Unlimited Action, Campbell seeks to cons...

Excerpt: ...on of these tentative rulings, no new counsel has filed a substitution of attorney. (One was rejected August 7, 2023 (ROA 168), which the court assumes was to substitute out Howard.) Because Microwine is a corporation, the order shall advise it that it may only appear by counsel licensed to practice law in California. Demurrer/Motion to Strike (Microwine Cross-Complaint) The demurrer and motion to strike of cross-defendant Tao Xu to the cross-com...

Excerpt: ... within a reasonable time, but no later than: (i) two years after entry of a default judgment against it; or (ii) 180 days after service on it of a written notice that the default or default judgment has been entered, whichever earlier. (CCP §473.5(a).) The motion must also be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or ine...

Excerpt: ...ject files, but only selected portions related to this case. Defendant complains that the plaintiff is seeking everything and something less would be appropriate. The parties are ORDERED to meet and confer meaningfully about these discovery requests. Defendant seeks to compel further responses to Special Interrogatories Nos. 127-132. They seek information about plaintiff's finances because of her claims of emotional distress based, in part, on he...

Excerpt: ...tiff, Ahmad Tukhi was then pending. (ROA 127.) On 07/06/23, Attorney Peacock's Motion to be Relieved as Counsel was granted with counsel ordered to resubmit a proposed order with the required information. (ROA 146.) On 07/07/23, a proposed order was resubmitted. (See ROA 147.) Said order has now been signed by the Court. The order relieving Attorney Peacock as counsel of record for Plaintiff is effective upon counsel filing proof of service of a ...