Excerpt: ...ter 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. Atl. Richfield Co. (2001) 25 C...

Excerpt: ...., goods sold, work done, etc., and (3) nonpayment.'” Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460. To state a cause of action for money had and received, Plaintiff must allege Defendants “are indebted to the plaintiff in a certain sum ‘for money had and received by the defendant for the use of the plaintiff.'” Id. “Th[e] common count [of money had and received] is available in a great variety of situations and lie...

Excerpt: ...wife, Martha Ward, must be added as a defendant, and has agreed to do so. Therefore, any demurrers based upon her status as an indispensable party are MOOT. Further, the Court finds the demurrers to the First and Section Causes of Action based on the Statute of Frauds to be procedurally improper. “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any por...

Excerpt: ... of action for breach of fiduciary duty without leave to amend. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) All factual allegations set forth in the complaint “are deemed to be true, however improbable they may be.” (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) The inten...

Excerpt: ... action is for breach of fiduciary duty and is brought by individual Plaintiffs Michael Alladawi and Nour Khedraki against moving Defendants John Warren and Barbara Milbert and several Co-Defendants. The moving Defendants contend that this cause of action is defective because there are no facts showing that they owed a fiduciary duty to these Plaintiffs or that they breached one. Before a person can be charged with a fiduciary obligation, he or s...

Excerpt: ... attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper(2011) 194 Ca...

Excerpt: ... 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.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the su...

Excerpt: ...im has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not 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. I...

Excerpt: ... of action: 1. Discrimination in violation of Fair Employment and Housing Act (FEHA), Government Code section 12940, subdivision (a); 2. Retaliation for disclosure of veteran status in violation of Labor Code section 1102.5; 3. Hostile work environment in violation of FEHA, Government Code section 12940, subdivision (j); 4. Wrongful termination in violation of Government Code section 12940, subdivision (a); 5. Discrimination against member of mil...

Excerpt: ...orm certain surveying work at the project, entered into on or about August 22, 2013 (See FAC ¶¶ 1, 5, 8, 11, 18, Exh. B.) AWI alleges Defendant Pockman is TDR's CEO and Defendant Shank is TDR's CFO and secretary, and that both individuals are also parties to the Agreement as an “apparent assignee[s].” (Id. ¶¶ 2, 4, 5, 11, Exh. B.) AWI alleges Defendants have breached the Agreement by, among other things, performing deficient surveying wor...

Excerpt: ...nd cause of action [breach of contract v individuals]: NewRez has provided no evidence for anything but taking confidential/trade secret information; There is no evidence that McCarthy or Davidson disclosed to others the information that they emailed themselves; This cause of action does not provide any basis for an injunction any broader than would be supported by the 1 st cause of action; Deny; 3 rd cause of action [breach of non-solicitation a...

Excerpt: ...ion for: (1) motor vehicle negligence; and (2) general negligence. Plaintiff alleges personal injuries and damages after she was struck by a vehicle driven by defendant Harris and owned by defendant O'Connell, while in course and scope of the former's employment. 2. County of Orange v. Harris, OCSC Case No. 2018-01033469 The complaint, filed on 11/19/18 by plaintiff County of Orange against defendants Steven A. Harris, O'Connell Landscape Mainten...

Excerpt: ...t he was sexually harassed and molested by defendant Bruce, a former teacher who was employed by defendant AUHSD, during 2009-2011 while plaintiff was a middle school student. Both defendants have answered. On 1/10/19, the court granted defendant AUHSD's motion for summary adjudication as to the 3 rd C/A for sexual harassment. On 3/13/19, the court denied without prejudice plaintiff's motion for leave to file an amended complaint to substitute as...

Excerpt: ...juries. Plaintiffs filed their complaint against Defendant Elizabeth Hernandez on 8/28/18, alleging causes of action for: (1) Negligence; and (2) Loss of Consortium. On 12/28/18, Plaintiffs amended their complaint to name Vanessa Reece Hernandez as DOE Defendant 1. Plaintiffs filed a First Amended Complaint on 5/16/19 against Defendant Elizabeth Hernandez, alleging causes of action for: (1) Negligence; and (2) Loss of Consortium. The FAC is the o...

Excerpt: ...no v. Hirano (2007) 158 Cal.App.4th 1 applicable to the circumstances here. In Hirano, appellant failed to timely exchange expert witness information when the case was initially set for trial. (Id. at p. 5.) The court continued the trial several times, but ultimately dismissed the action for failure to prosecute. (Ibid.) The Court of Appeal reversed the judgment and on remand, a new trial date was set. (Ibid.) The trial court granted respondent's...

Excerpt: ... 1013 Does Not Apply: Code of Civil Procedure section 1013, subdivision (a), provides in pertinent part: “In case of service by mail . . . . [s]ervice is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days...

Excerpt: ..., 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 one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgm...

Excerpt: ...ed, 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 one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial ...

Excerpt: ...nd DENIED, in part. (2) Plaintiff's motion for an order compelling the further depositions of Piecemakers' Person Most Knowledgeable and Douglas Follette, and compelling witnesses to answer questions at deposition is GRANTED. (3) Plaintiff's motion for an order compelling the further depositions of Piecemakers' Person Most Knowledgeable and to produce documents is GRANTED. As to all three motions, the Court finds counsel for plaintiff sufficientl...

Excerpt: ...: (1) Plaintiff was a beneficiary of the Showalter Trust; (2) despite James' giving Defendant Power of Attorney over his beneficiary rights under the Showalter Trust and assigning his beneficiary rights to Defendant, Defendant was to ensure that Plaintiff still received her share of the inheritance pursuant to the Showalter Trust; and (3) because James turned 60 before the Trust funds were dispersed, he received Plaintiff's share of inheritance u...

Excerpt: ...oe City is an unincorporated community located in Placer County, California. Defendant's motion is timely. (Code Civ. Proc., § 396b, subd. (a).) Defendant has presented evidence that he resides in San Mateo County and that the promissory note was not entered into in Orange County. (Reyff, Jr. Decl., at ¶¶ 2, 5-7.) As to where the contract was to be performed, the place of making is deemed to be the place of performance unless a different place...

Excerpt: ...icient to justify the sealing.” (Cal. Rules of Court, Rule 2.551(b)(1).) The court may order that a record be filed under seal only if expressly finds that the requirements of Rule 2.550(d) have been met. (Cal. Rules of Court, Rule 2.550(d).) The sealing rules, however, are inapplicable to “discovery motions and records filed or lodged in connection with discovery motions or proceedings,” unless the “discovery materials” are “used at ...

Excerpt: ...to the consideration of such motions in the Individual Actions. Coyote Grill's request to disqualify Jose Garay, APLC (the “Garay firm”) in this action, made for the first time on reply, is DENIED WITHOUT PREJUDICE to refiling a properly noticed motion to disqualify. Grounds for Ruling I. Requests for Judicial Notice Coyote Grill requests judicial notice of various documents filed in support of both its opening papers and its reply. (See ROA ...

Excerpt: ...ing him to record his medical expert's examination of Plaintiff, Plaintiff recorded it. Thus, Plaintiff created a document with information relevant to this case. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants(2007) 148 Cal. App. 4th 390, 402.) Code of Civil Procedure section 2017.010 provides that any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pe...

Excerpt: ...he amount of $2,560, payable within 30 days. The requests which are being granted seek documents that are relevant to the subject matter of the action or are reasonably calculated to lead to the discovery of admissible evidence, and good cause exists to compel their production. Plaintiff's Motion to Compel Defendant Canus Corporation to Provide Further Responses to Plaintiff's Special Interrogatories (Set One) (as to #1 and 2) is granted. Plainti...