Excerpt: ... those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012...

Excerpt: ...�Deus Ex LLC. Thus, Defendant—Deus Ex LLC is not a party to this Demurrer. Plaintiffs (Michael Hannegan and Valkyrie Partners Five, LLC) Opposition to Special Demurrer to Complaint (Opposition), filed on 5-5-21 under ROA No. 36, opposes the Demurrer as untimely. (Opposition; 2:8-18.) Code of Civil Procedure section 430.40, subdivision (a), states, “A person against whom a complaint or cross-complaint has been filed may, within 30 days after s...

Excerpt: ...itted structures on the property) and have brought an action for (among other things) fraud and misrepresentation, unfair business practices and promissory estoppel. In addition to naming the Dennis Defendants, Plaintiffs have sued Defendant Berkshire Hathaway (which is alleged to be the listing agent and broker for the sale of the property); Defendant Michael Bianchi (“Bianchi”), who allegedly signed the Agreement in his capacity as a real e...

Excerpt: ...37; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 312, as modified (Oct. 9, 2002).) The Complaint asserts causes of action for 1) slander, 2) libel, 3) vicarious liability under Civil Code § 1714.1, and 4) violation of Business & Professions Code § 17200. The conduct at issue in each of the causes of action in the Complaint is a set of comments Defendant Lauren Kettering (Lauren) made about Not a Content Hous...

Excerpt: ...Fourth Cause of Action for Statutory Violations is OVERRULED. Defendant Starkey's Request for Judicial Notice of Exhibits 1 and 2 is GRANTED. Plaintiff contends that the demurrer violates Code of Civil Procedure section 430.60 and California Rules of Court, Rule 3.1320(a). The demurrer sufficiently complies with Rule 3.1320(a) because each ground for demurrer is contained in a separate paragraph and states the cause of action to which it applies....

Excerpt: ...s Bollinger (“Defendant Thomas”) and 03/08/2021 for Defendant Pearl Bollinger. Defendants were not entitled to a 30-day extension of the deadline to file their demurrer, as they failed to file “a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41(a)(2).) A demurrer challenges the defects appear...

Excerpt: ..., § 428.50(c).) That there is a judicial economy interest in having a single jury trial on the issue of whether the alleged product defect was the cause of Plaintiff's incident is undisputed. Fitness has explained its delay in seeking leave to file the Proposed Cross-Complaint and has provided evidence supporting a finding that Fitness has acted in good faith. (Id.) Brunswick contends that permitting Fitness to file its Proposed Cross-Complaint ...

Excerpt: ...otice is denied. Plaintiff's objections to ¶ 2, Ex A., ¶ 5, Ex. D., ¶ 7 and Ex. F of the declaration of James Werner are sustained. Plaintiff's objections to ¶ 3, Ex. B, ¶ 4, and Ex. C are overruled. Plaintiff's objections to the declaration of Kelly Parkman are all overruled. Defendant's objections to the declaration of Christopher Barry are sustained. Defendant's objections to the declaration of Mark Jannesari are overruled as to nos. 1 an...

Excerpt: ...g a purchase agreement for the purchase of real property commonly known as 12802 Panorama Crest, Santa Ana, CA 92705 (the “Property”). Third Am. Compl. (“TAC”) at ¶ 103. The concealment/ misrepresentations were relate to certain defects in the plumbing, including the sewer systems, of the Property, which Plaintiff alleges were made by the Suders. TAC at ¶ 13. CCP Section 437c Standard In seeking summary adjudication, Plaintiff bears the...

Excerpt: ...n for Summary Judgment because the Separate Statement fails to comply with California Rules of Court, rule 3.1350(b). Where there are multiple causes of action presented for summary adjudication in one motion, each cause of action must have a separate section heading indicating the issue number, and specifying the issue. Failure to comply with the separate statement requirements is grounds to deny the motion. (Code Civ. Proc. § 437c(b)(1).) An a...

Excerpt: ...o show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Superior Court (National Union Fire Ins. Co. of Pittsburgh, Pa.) (1997) 53 Cal.App.4th 1113, 1117; Weil & Brown, Cal. Practice Guide:...

Excerpt: ...rnate capacity as cross-complainant caused to be filed a motion to compel further responses to “Special Interrogatories, Set One, Nos. 6, 8-11, 15, 17-22, 26-31, 35-45, and 48-49.” Both the memorandum and the separate statement directly addressed SRog No. 19. Timely opposition and reply papers were filed in relation thereto. The motion was originally scheduled to be heard 10/11/19 but was continued out a few weeks. On 12/13/19, Hon. Sanders r...

Excerpt: ...-65; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal. App. 4th 1366, 1375. Under CCP §405.31, the court shall order a lis pendens expunged if it finds that the pleading on which the notice is based does not contain a real property claim. CCP §405.4 defines a real property claim as a cause of action in a pleading that would, if meritorious, affect title to, or the right to possession of, specific real property. The burden is on the pa...

Excerpt: ...of care, leading to costly delays in approvals and bidding. According to the County, the project has never been completed and Rosser recently walked off the job, citing financial collapse. On 07/12/19, County filed suit against Rosser for negligence, breach of contract and declaratory relief. Rosser responded with an answer, and a cross-complaint Cini-Little and others. Rosser also led a motion to transfer venue here to OC, which was granted. On ...

Excerpt: ...ange County. Two months later, plaintiff Fuentes commenced a class action suit in federal district court, basically asserting the same types of claims. Plaintiff Johnson was added as a named representative in the federal action. All of the representative plaintiffs came together for a global settlement, and in so doing agreed that the most efficient way to resolve the litigation was to bring all the actions to this Court. The resulting settlement...

Excerpt: ...iling party or that Defendant is the prevailing party on the appeal from the original judgment. The motion is timely, as it was filed on 2/16/21, which is within 40 days of the 1/5/21 remittitur (ROA 450, ROA 437; CRC 8.278(c)(1); 3.1702(c)(1)). The court sua sponte takes judicial notice of ROA 450 and ROA 437. As to the amount awarded, a trial court has broad discretion to determine the amount of reasonable attorney's fees, as an experienced tri...

Excerpt: ...tuated that any judgment rendered in his absence “may as a practical matter impair or impede that person's ability to protect that interest.” CCP § 387(b). The party claiming a right to intervene must show an interest in the “property or transaction” that is the subject of the litigation, that would be substantially prejudiced by any judgment rendered in his or her absence. Hodge v. Kirkpatrick Develop., Inc. (2005) 130 Cal.App.4 th 540,...

Excerpt: ... by Respondents City, City Council and Design Review Committee of the San Juan Capistrano (“Respondents”) pursuant to the Costs Memorandum filed on 2/19/21 (ROA 433). For the following reasons, Petitioner's motion is DENIED. The prevailing party in any civil action is entitled to recover costs as a matter of right. Code Civ. Proc. §1032; Charton v. Harkey (2016) 247 Cal.App.4th 730, 737. The parties do not dispute that Respondents are the pr...

Excerpt: ...50.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the...

Excerpt: ... contract based on the Non-Disclosure Agreement between DWB and Surf Paradiso. 4AXC, Ex. A. Whether it is written, oral, or implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff's performance or excuse for failure to perform, (6) defendant's breach, and (7) damage. Civil Code §§ 1550, 1605; Stockton Mortgage, Inc. v. Top...

Excerpt: ...g the outcome of the arbitrations. Because the arbitration agreement provides that questions of arbitrability are matters to be decided by the arbitrator, the Court does not consider Plaintiffs' argument that the claims at issue are not covered by the arbitration agreement. They remain free to raise that argument before the arbitrator. 2. In light of the ruling on the motion to compel arbitration, the motion for judgment on the pleadings is DENIE...

Excerpt: ...the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Superior Court (National Union Fire Ins. Co. of Pittsburgh, Pa.) (1997) 53 Cal.App.4th 1113, 1117.) After Defendant moved to amend its Answer to include affirmative defenses of assumption of ri...

Excerpt: ...ry No. 53) Meet and confer narrowed the issue, combining Interrogatories No. 52 & 53 and limiting the scope to the identities of all former employees whose employment was terminated by the same decision makers as Plaintiff and for the same reasons as Plaintiff within the last 5 years. (Livshits Dec. Ex. 6, 10/28/20 e-mail.) Defendant seeks to further limit the information sought to ex-employees who disclosed a medical condition or disability. (Ur...

Excerpt: ...ntain nonpublic information that is entitled to confidential treatment under applicable law”. Since tax returns are privileged under California law, MFS's tax returns are entitled to confidential treatment. Webb v. Standard Oil Co. (1957) 49 Cal. 3d 509, 513. Since accounting and financial records are typically treated as confidential, and are typically labeled confidential when being produced pursuant to a protective order, MFS's accounting an...

Excerpt: ... filed. Given that both subpoenas are identical, the matters may be addressed by this single motion. Timeliness: Code of Civil Procedure section 1985.3, subdivision (g) provides, in pertinent part, that “[a]ny consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash o...