Excerpt: ...iary duty causes of action o n the grounds they are not sufficiently pled. Plaintiff did not file an Opposition. Whether the Action is Barred by the Statute of Limitations? Page 18 of 33 Defendant contends that the gravamen of Plaintiff's action is for negligence despite the fact that he asserts causes of action for misrepresentation, breach of written contract, and breach of fiduciary duty. Defendant contends that Plaintiff “reframed” his ...

Excerpt: ...d on case law have no application to the facts of this case and thus the demurrer should be sustained without leave to amend. Code of Civil Procedure section 430.20 authorizes a demurrer to an answer where the answer does not state facts sufficient to constitute a defense or is uncertain. Whether an answer states a defense is generally governed by the same principles which are applicable in determining if a complaint states a cause of action. (So...

Excerpt: ... declaration in accord ance with the Court's January 11, 2024 Minute Order. Said declaration provides that the parties met and conferred via telephone on February 7, 2024, per the Court's ruling, and that they were unable to come to an agreement as to any issue. (Declaration of Jason M. Fodrini, ¶¶ 5 -8.) First Cause of Action for Breach of Contract Defendant contends that the Complaint is brought on behalf of five plaintiffs living in three s...

Excerpt: ...ing pool. The allegations are insufficient as to whether this was intentional on the part of defendants or just mere negligence on the part of the construction/demolition crew. Motion to Strike The motion of defendants to strike portions of the first amended complain t is GRANTED in part and DENIED in part. As to Item No. 11, the court is aware of no legal authority allowing a claim for punitive damages in a declaratory relief cause of action. T...

Excerpt: ... state law, (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” (Murchison v. County of Tehama (2021) 69 Cal.App.5th 867, 883.) While municipalities may be held liable for causing a constitutional deprivation inflicted by its employee s or agents, Monell v. Department of Social Services (1977) 436 U.S. 658, 690, neither a state nor its officials acting in their official capacities can be held liable under it, Wi...

Excerpt: ...ed 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 §§ 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 complain...

Excerpt: ...n which t he attachment is based is one upon which an attachment may be issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. (Code Civ. Proc., § 484.090(a)(1) -(4).) If an action is against a defe...

Excerpt: ...without le ave to amend. Analysis A. Standard on Demurrer A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.  When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720 -21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or v ia ...

Excerpt: ...udicial notice of three d irectives issued by CalSTRS (in 2019, 2022, and 2023) are denied. All three directives are directed at fiscal years after the time period at issue in the SAP (2017 -18 fiscal year) and do not appear relevant to the allegations in the SAP. (Bell v. Greg Ag ee Construction, Inc. (2004) 125 Cal.App.4th 453, 459, fn. 2.) District's unopposed request for the Court to take judicial notice of District's Board policy number 33...

Excerpt: ...ntic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc. § 437c, subd. (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 that cause of action or a defen se thereto. The defendant ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall se...

Excerpt: ...gations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no d efense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no...

Excerpt: ...- 77. The court is inclined to deny as to the remaining RFAs. Motion to Compel Further Responses to RFPs Code Civ. Proc. section 2031.310 provides, in relevant part, that “any party may obtain discovery” by “inspecting, copying, testing, or sampling documents, tangible t hings, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” Code Civ. Proc., § 2031.01...

Excerpt: ... 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 or modify the subpoena duces tecum.” (Code Civ. Proc., § 1985.3, subd. (g).) “Personal records” include “any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any ‘witness' which is a physician, …, hospita...

Excerpt: ...d in the Decl aration. Plaintiff presents no reason to believe that the applicable standard of care changed in this short time period. Plaintiff's objections to Exhibits 3- 5 are OVERRULED. “A party may move for summary judgment in an action or proceeding if it is conten ded that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c(a)(1).) In a medical malpractice action, when a defendant...

Excerpt: ...h the moving papers. [CRC 3.1320(c).] While the Court's ruling is not based on these defects, the Court reminds Defendants to comply with the CCP and CRC, moving forward. Notably, the fact that plaintiffs are in pro per does not afford them special treatment. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246- 1247.) Pro pers must also abide by the same procedural rules – e.g., the Code of Civil Procedure and the California Rules of Court. (See Ga...

Excerpt: ...s of fraud based on false promises and/or misrepresentations and concealment, respectively. “‘The elements of fraud that will give rise to a tort action for deceit are: '(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsi ty (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.' ” (Engalla v. Permanente Medical Group, Inc. ...

Excerpt: ...allegations relat ed to punitive damages and attorney fees. The demurrer is OVERRULED. First, the court finds that the allegations alleged in the First Amended Complaint are sufficient to plead a cause of action for elder abuse and neglect pursuant to Elder Adult and Depend ent Adult Civil Protection Act - Welfare and Institution Code §§ 15600, et seq. Plaintiff has alleged that Defendant was aware of Ms. Sperling' to provide the requisite ser...

Excerpt: ...TTORNEYS' FEES The successful defendant on an anti -SLAPP motion is entitled to recover its attorney fees and costs as a matter of right. (Code Civ. Proc., § 425.16, subd. (c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131, 104 Cal.Rptr.2d 377, 17 P.3d 735 [“any SLAPP d efendant who brings a successful motion to strike is entitled to mandatory attorney fees”].) Unless the results of the anti - SLAPP Motion were so insignificant that defenda...

Excerpt: ...e total length of both days of the deposition of Andy Phillips shall not be less than the total length of both days of the deposition of John Hynes, and the second day of the deposition of Andy Phillips shall be held in the same location as the first day of the de position. Defendant Capital Managers, LLC may ask questions at the second day of the deposition of Andy Phillipos on any subject matter allowed by the Evidence Code, the Civil Procedur...

Excerpt: ... any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) Simply put, “[i]f a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgmen...

Excerpt: ...applies where there is ‘a contract evidencing a transaction involving commerce.'” (Allied- Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277 [quoting 9 USC § 2] [emphasis in original].) Here, HMA moves to compel arbitration under a: (1) Owner's Handbook & Warranty Information (“Warranty”), and (2) Motor Vehicle Lease Agreement (“Lease”). Both the Warranty and the Lease provide that the agreement to arbitrate will be g...

Excerpt: ...sagrees. I nterrogatory No. 13.1 asks whether Defendant has conducted surveillance. Defendant responded “no.” Interrogatory No. 13.2 asks if a written report has been prepared on the surveillance. Defendant responded, “not applicable.” These responses are full respon ses. Accordingly, the court DENIES the motion as moot insofar as it seeks further responses. The motion is GRANTED as to sanctions. Sanctions of $1,260 are issued against Def...

Excerpt: ... set the M otion to Strike to b e heard on A pril 29, 2024. ( S ee ROA #59 .) The court also ordered that “[t]he Ex -Parte Application will stand as the moving papers” and “Plaintiff to serve the moving papers on all parties”. (Ibid.) Further, Civil Procedure Code section 1005 requires that all moving papers be served on all parties at least 16 court days before the hearing. (Code Civ. Proc., § 1005, subd. (d).) In addition, “[p]roof o...

Excerpt: ...arties.” (Pl easant Hill Bayshore Disposal, Inc. v. Chip -It Recycling, Inc. (2001) 91 Cal. App. 4th 678, 695.) The plaintiff has the burden of proof to show “upon a verified complaint, or upon affidavits” all elements necessary to support the issuance of a preliminary injunction. (Code Civ. Proc., § 527, (a); O'Connell v. Sup. Ct. (2006) 141 Cal.App.4th 1452, 1481.) Although an OSC re: Preliminary Injunction directs the responding party ...

Excerpt: ...er. While the petition was pending, the plaintiff also made a request for documents relating to the petition. The FAC asserts claims based on the failure to allow inspection of the documents requested in October and November 2021 as well as the request to review the recall petition on 8/17/22. (FAC at ¶¶15, 17.) HOA's Request for Judicial Notice The HOA's request for judicial notice is GRANTED as to Item Nos. 13. (Evid. Code §452(d)) The reque...

Excerpt: ...he pleading t hat are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) In testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged,...

Excerpt: ...subdivision (q), suc h that Plaintiff's claims would not expire until June 27, 2023. Emergency Rule 9 provides that “[n]otwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until Oct ober 1, 2020.” Thus, according to Plaintiff, her Complaint filed on June 22, 2023, is timely. Plaintiff's argument is well -taken. Plaintiff relies on Roe v. Doe (...

Excerpt: ...ch (“City”) is an in dispensable party. Defendants' unopposed requests for the Court to take judicial notice of a notice of violation (warning only) issued by the City of Newport Beach Harbor Department and a notice that the warning was rescinded are granted. (Evid. Code, § 452, subd. (c).) First cause of action for declaratory relief A defendant may demur to the complaint on the ground that there is a defect or misjoinder of parties. (Code ...

Excerpt: ...nty She riff's Department shall file an answer or other pleading in response to the First Amended Complaint within 10 days of the expiration of the period of time to amend. (See Cal. Rules of Ct. rule 3.1320(j).) Defendants Orange County and Orange County Sheriff 's Department demur to the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th, and 9th Causes of Action of the First Amended Complaint (FAC) filed by Plaintiff Albert Hughes III. Standard for Demurrer ...

Excerpt: ...t issue s must be admitted or denied, or what counts or claims are directed against him or her. (See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) The allegations in the FAC are not so confusing that Defendants cannot determine what to respond to. (Id., see also Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.) General demurrer A demurrer presents an issue of law regarding the sufficiency of the allegat...

Excerpt: ...laim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.] Premises liability ‘“is grounded in the possession of the premises and the attendant right to control and manage the pre mises” '…” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “However, ‘[a] defendant cannot be held liable for the defective or dangerous condition of property w...

Excerpt: ...RANTED. Timeliness Hunt opposes the demurrer on the grounds that it was not timely filed. Hunt served a copy of the summons and complaint on AVCA by substitute service on 06/06/2023, with a copy mailed on 06/12/2023. Accordingly, service was deemed completed on 06/22/2023. Cod e of Civil Procedure, § 415.20, subd. (a). The time for AVCA to demur expired 30 -days after service on 06/22/2023 which was a Saturday, therefore, AVCA had until 06/24/2...

Excerpt: ...to protect any party “fr om unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) At issue here are two depositions which Hillstone seeks to prevent Plaintiff, Georgina Puglisi (“Plaintiff”) from conducting. The first is the deposition of Hillstone's custodian of records with a request to produce at deposition videos of former defendant Mario Jaramillo (“Jaramillo”) enga...

Excerpt: ...Interrogat ories (Set One), Request for Admissions (Set One), and Request for Production of Documents (Set One.) Standard for Protective Order Civil Procedure Code section 2030.090 provides that: (b) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may in...

Excerpt: ... summarily adjudicate claims or defenses as to which no triable issue was raised unless requested in the notice of motion. (Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial, §10:88, citing Homestead Sav. v. Sup.Ct. (Dividend Develop. Corp.) (1986) 179 Cal.App.3d 494, 498 (citing text).) Further, even if the notice of motion could be deemed to set forth a request for summary adjudication in the alternative, the motion is procedurally defec...

Excerpt: ...8/12/24. (See ROA 301). As an initial matter, a motion to strike cannot be used to challenge an entire cause of action for failure to state a claim. Motions to strike can be used to reach defects in or objections to pleadings that are not challengeable by demurrer. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 7:156.) A “motion to strike” for failure to state a cause of action (ground for general ...

Excerpt: ...en of showing that a cause of a ction has no merit if the 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 the cause of action. Once the defendant or crossdefendant has met that burden, the burden shifts to the plaintiff or cross -complainant to show that a triable issue of one or more material facts exists as to the cause of action or a...

Excerpt: ... (Code Civ. Proc., § 1281.2.) The Court shall grant the petition unless the petitioner waived the right to compel arbitration, or other grounds exist for rescission of the agreement. (Ibid.) Because the obligation to arbitrate arises from contract, the court may compel arbitration only if the dispute in question is one in which the parties have agreed to arbitrate. (Weeks v. Crow (1980) 113 Cal.App.3d 350, 352.) Because arbitration is a favored ...

Excerpt: ...pondent to ar bitrate 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. [¶] (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of...

Excerpt: ...�� the controversy. (Code C iv. Proc., § 1281.2.) The Court shall grant the petition unless the petitioner waived the right to compel arbitration or other grounds exist for rescission of the agreement. (Id.) “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp....

Excerpt: ...4) 226 Cal. App. 4th 2 31, 240; See also, 9 U.S.C.A. § 2; Civ. Proc. Code § 1281.4.) "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 (“Engalla”); Green Tr...

Excerpt: ...he amount of $645 hours x $195 per hour in reasonable attorney's fees and $60 in motion filing fees) within 30 days of service of the notice of ruling. Defendant Gen Cord. moves to compel further responses to Form Interrogatories – General, Set One, Number 2.8 propound ed on Plaintiff Monica Castaneda. Standard to Compel Further Responses to Interrogatories The Civil Procedure Code instructs that: (a) Each answer in a response to interrogatori...

Excerpt: ...rmation for individual independent service centers co -defendant/non -parties, but GM does have the duty to make an inquiry into any of its employees that may have information relating to the Vehicle and its repair history. (Civ. Proc. Code § 2030.220.) Merely stating “GM call center advisors with whom Plaintiff may have communicated” does not comply with the requirement to make a reasonable and god faith inquiry. Additionally, vague referen...

Excerpt: ... allowing the inspection. Thus, Plaintiff's objection on the grounds Defendant previously inspected the premises is overruled. Plaintiff's objection on the grounds the Demand seeks to inspect irrelevant portions of the premises is overruled. Discovery is permitted 11 where the information sought is itself admissible or is reasonably calculated to lead to the discovery of admissible evidence. Code of Civil Procedure, § 2017.010. Discovery is libe...

Excerpt: ...et forth spec ific facts showing good cause justifying the discovery sought by the inspection demand. To establish “good cause,” the burden is on the moving party to 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 a...

Excerpt: ...ts. A court ac quires personal jurisdiction over a nonresident defendant through either general or specific jurisdiction. The “defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are ‘substantial . . . continuous an d systematic.'” Vons Companies, Inc. v. Seabest Foods, Inc., 14 Cal. 4th 434, 445 (1996). To determine whether specific jurisdiction exists, courts consider the relations...

Excerpt: ...�), JOSHUA SCHUETTE (“Schu ette”), and KARA GRANT LAW (“KGL”), move the Court for an order pursuant to California Code of Civil Procedure §§ 473, et seq., to set aside and vacate the October 26, 2023 Defaults taken against Defendants Grant, Schuette, and KATHLEEN GERMANE (“Germane”) and the September 19, 2023 Default taken against KGL. Motions are GRANTED. Sanctions against Attorney Jacobson in the amount of $500 to be paid within t...

Excerpt: ...e facts of defendan t's oppression, fraud, or malice. (CC § 3294(a).) “Malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (CC § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disreg...

Excerpt: ...ants' Special Motion to Strike Complaint (Anti -Slapp) Defendants Robert P. Mosier and Mosier & Company, Inc.'s motion to strike the entire Complaint filed by Plaintiffs, Simon Semaan, Pierrette Semaan, Mia Semaan, Simon Semaan, Jr., Melissa Semaan, a minor by and through her Guard ian Ad Litem Pierrette Semaan, and Gilberts Rizallah is GRANTED. Plaintiffs' request for Judicial Notice is GRANTED. (Evid. Code § 452, subds. (d), (h).) “Litigati...

Excerpt: ...gment].) On 11/6/23, the court served a copy of the filedstamped “Judgment dated 11/03/23” to all parties, including to defendants' counsel, triggering the 15 -day deadline for defendants to timely file a memorandum of costs. (ROA No. 484; see Cal. Rules of Court, rule 3.1700(a)(1); Code Civ. Proc., § 664.5, subd. (d); Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 61, 64, 65- 66 [�...