Excerpt: ...cretion will usually be exercised liberally to permit amendment of the pleadings. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Id. No party has identified any prejudice from amendment. Plaintiffs' motion is therefore granted. Plaintiffs are ordered to file and serve the Second Amended Complaint attached to the ...

Excerpt: ...aintiffs intend to allege both types of fraud, they should have separate causes of action, and clearly allege, as against all three of the defendants, the facts and elements required of each different type of fraud in each of their separate causes of action. Plaintiffs also must allege their fraud claims with the specificity required of such claims. Conclusory allegations will not suffice. The Status Conference set for today is continued to Octob...

Excerpt: ...llegations 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 sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from t...

Excerpt: ...complaint where it states defendants left hoses, materials, and equipment on the ground “in a manner which could not be seen by plaintiff”], with FAC at pp. 4, 5 [containing no such quoted language].) The filing of an amended complaint moots a motion directed to a prior complaint. (See State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.) Next, even if OCWD had directed the motion to the correct pleading, OCWD's c...

Excerpt: ...e” nature of the 2 nd cause of actio n the alternative and has sufficiently alleged the existen c support a claim for breach of its implied covenant of g o With respect to the 3 rd cause of action for unfair busin e address the “fraudulent” prong of Business & Professio n address that prong does not allow the Court to rule th a Motion to Strike. The Motion by Defendants the Law Jacob Emrani, Brian McKibbin, Jonathan Ritter Motion t (15) day...

Excerpt: ...re plaintiffs must make sure they timely file and serve all their papers in this case, and serve them in compliance with the Code of Civil Procedure. Plaintiffs' Complaint does not allege compliance with the Government Claims Act, Gov. Code §§810, et seq., for any of plaintiffs' tort-based causes of action. Attaching a copy of an alleged claim directed to the City of Garden Grove cannot take the place of alleging compliance in the Complaint, es...

Excerpt: ...., Inc. v. Superior Cou r For corporate entities with few shareholders where the directly impact both the corporation and the other sha r direct and derivative actions are often blurred. As a re direct shareholder action, or given direct shareholder r e when it was equitable to do so. (See Jara v. Suprema Cal.App.4th 1238, 1253-1260.) Zhang contends that Avery lacks standing to sue indivi d incidental to the alleged injury to Veydra LLC, and thu ...

Excerpt: ... if this Demurrer was untimely, an unti m by the court in its discretion so long as its action does n the parties. Jackson v. Doe(2011) 192 Cal.App.4th 74 2 established how this Demurrer affects her substantial r any steps to obtain a default judgment or demonstrate prejudice. Accordingly, the court can and does act within its broa d Defendant's Demurrer on the merits. Sixth Cause of Action for IIED. The elements of IIED a outrageous, (2) Defenda...

Excerpt: ...Private Property alleged in Plaintiff Paul Winkler's Second Amended Complaint (“SAC”) is SUSTAINED without leave to amend. In its prior ruling sustaining Defendant's demurrer to the First Amended Complaint, the court granted Plaintiff “one final chance” to file an amended complaint. The ruling specifically stated that “[t]he amended complaint must state facts supporting each cause of action and facts that show absolute judicial immunity...

Excerpt: ...erg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].) Plaintiffs are to file any amended Complaint within 15 days service of notice of this order. (2) Motion to Furnish an Undertaking: The Court GRANTS the unopposed Motion for Order Requiring Out-of-State Plaintiff to File Bond of $10,000. Based on the Complaint, Plaintiffs are out-of-state residents; thus, they meet ...

Excerpt: ...ected in the Court's records. However, Plaintiff opposed the demurrer and motion to strike without objecting to service. For purposes of this demurrer and motion to strike, the Court therefore assumes service at the P.O. Box was proper. Plaintiff shall confirm for the Court at the hearing the correct address for service and ensure that the Court's records are up to date. Demurrer to FAC Trustee demurs generally to the three causes of action for d...

Excerpt: ...Cal.2d 596, 603 [“A cross-complaint is a pleading separate and apart form the answer, and is required to be complete and sufficient in itself. It cannot be aided by averments of the answer.”] Since combining the two is improper, and makes analysis of the cross-claims imprecise, the usual course of action is to strike the pleading sua sponte and give defendant leave to file separately an answer and cross- complaint. Doing so will moot the pres...

Excerpt: .... As the prevailing party, Defendants are entitled to an award representing their fees and costs incurred in litigating the Anti-SLAPP motion pursuant to Code Civ. Proc. § 425.15(c).) Under this provision, any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. (Ketchum v. Moses (2001) 24 Cal. 4 th 1122, 1131.) This does not mean that the prevailing party is entitled to receive whatever it asks for, h...

Excerpt: ...al. App. 3d 452, 458–459. Here, FAXC alleges a breach of a written contract that w 2016. However, the FAXC fails to attach and incorpor a verbatim. Accordingly, the Demurrer to the First Caus e Contract is sustained with leave to amend. Second Cause of Action for Breach of Implied Covenan t Dealing. The prerequisite for any action for breach of t and fair dealing is the existence of a contractual relatio the covenant is an implied term in the c...

Excerpt: ... the trial court limited jurisdiction to decide whether to award attorney fees and costs to defendant. Id. at 879. Defendant is entitled to its fees and costs if plaintiff's case is shown to be a “pure SLAPP suit.” Kyle v. Carmon (1999) 71 Cal.App.4th 901, 918. To make this determination, the trial court must consider the merits of defendant's anti-SLAPP motion even though it has no jurisdiction to grant or deny the motion. Moore v. Liu(1999)...

Excerpt: ...the court is considering a transfer of the case to the family law division for a determination of the annulment issue. For example, the Complaint raises the following questions that are unique to the family law division – (i) whether the marriage should be annulled as illegal and void, from its inception, on the ground of bigamy under Family Code 2201 (a); (ii) whether the action was properly served on the wife prior to her death; (iii) whether...

Excerpt: ...e Relief Compel Arbitration” alleged in plaintiffs Complaint is OVERRULED in part, and SUSTAINED with leave to amend in part. Defendant's demurrer to the first, second and third causes of action is OVERRULED. The demurrer to the fourth cause of action is SUSTAINED with leave to amend. First, second and third causes of action for Declaratory Relief: In Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, the court stated tha...

Excerpt: ...rt is not limited to direct body-to-body contact. (See Mount Vernon Fire Insurance Corporation v. Oxnard Hospitality Enterprise, Inc. (2013) 219 Cal.App.4th 876, 881.) But the intent element requires that the defendant either intended to commit a battery or was substantially certain that battery would result from his/her conduct. (CACI 1320; Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.) In the FAC, Plaintiffs assert that by sending them to an...

Excerpt: ...ustification as well. (CCP § 2025.480(j).) MP shall give notice unless notice is waived. Deposition Question, regarding where the Defendant currently lives. There are highly divergent views of the alleged “incident” here, and as to who was the perpetrator or aggressor. The record reflects a basis for the Defendant to have concern. (See Opposing Exhibit 2 p. 136-137 and 142-143 and 106 – 110, 40-42, see Opposing Exhibit 4.). Further, a pers...

Excerpt: ...hfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) As to Plaintiff's breach of contract claim, Defendant contends it properly denied Plaintiff's claim because the policy at issue allows it to “deny coverage for any claim or loss and void this policy if any insured has concealed or misrepresented a material fact or circumstance … in the presentation of a claim or loss, or at any time either before or after a claim or loss.” (Defendant's S...

Excerpt: ...ng defendant's Answer. Generally, severe sanctions like terminating sanctions for failure to comply with a court order are allowed only where the failure is willful. R.S. Creative, Inc. v. Creative Cotton, Ltd., 75 Cal. App. 4th 486, 496 (1999) (“terminating 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”); Doppes v. Bentley Motors, Inc....

Excerpt: ... Agreement calls for arbitration to be submitted to Henning Mediation & Arbitration Service (“Henning”). Edgerton Decl., Ex. C - Partnership Agreement, Article XXVI § C, pg. 31-32. Apparently, Henning's only location is in Atlanta, Georgia. Hall Decl. ¶ 5. The Court also notes that even if the Partnership Agreement were not the document referenced in the Purchase Agreement, Plaintiff has provided no alternative document that the Purchase Ag...

Excerpt: ..., 2019 and June 27, 2019. (See ROA Nos. 356, 358 and 360). Accordingly, the requests for discovery responses from these parties has been rendered MOOT. Additionally, per Plaintiffs' Counsel, verified discovery responses were served by mail on June 26, 2019, on behalf of Plaintiffs Amy Booty, General Booty, Avery Booty, John Booty, Charles Leonard, Guiliana McDaniel, Megan Woodruff-McDaniel, Kyle McDaniel, Olivia McDaniel, Billie Christine Walker,...

Excerpt: ...nconscionability; The Agreement meets the requirements of Amendariz; Deft has agreed to pay the Arbitrator's fees and costs; The Court will sever the PAGA waiver provision, making the Arbitration Agreement not substantively unconscionable; Arbitration Agreement is valid and enforceable; Grant. ...

Excerpt: ...eed in excess of the limit when her vehicle left the traffic lane and collided with a City water pump and then with a bus stop sign. Investigating officers determined that the cause of the single car accident was that Petitioner was operating her vehicle under the influence of alcohol. Petitioner exhibited objective signs of intoxication and, during the investigation, admitted drinking previously. Petitioner refused a chemical test on the scene a...