Excerpt: ...y fees in its complaint. In support of his argument, the defendant cites a case out of the Fourth District Court of Appeal, Division Three: Manier v. Anaheim Business Center Co. (1984) 161 Cal.App.3d 503. Whatever may have been the reach of Manier when it was first decided, more recent California Supreme Court precedent has effectively overruled it. (See, e.g., Sessions Payroll Management, Inc. v. Noble Constr. Co., Inc. (2000) 84 Cal.App.4th 671...

Excerpt: ...claratory relief reveal that an actual controversy exists between the parties.'” D. Cummins Corp. v. United States Fid. & Guar. Co. (2016) 246 Cal. App. 4th 1484, 1489. “[A] home loan borrower has standing to claim a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriving the foreclosing party of any legiti...

Excerpt: ... of contract and second cause of action for breach of covenant of good faith and fair dealing – plaintiff Tina Mancuso Storch (plaintiff) has failed to allege the existence of an enforceable contract, a necessary element to each of these causes of action. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1173-1174 (Daniels); Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1034.) The...

Excerpt: ...n an assessment of improvements when the improvements did not exist on the lien date; (6) paid on an assessment in excess of the equalized value of the property as determined by the county board of equalization; or (7) paid on an assessment in excess of the value determined by the assessor in a mandatory audit. (Rev. & Tax Code, § 5096.) Plaintiff bases her claim on the grounds that the “AAB further proceeded in an arbitrary and capricious man...

Excerpt: ...laintiff was unaware of defendant's intention not to perform the promise; (4) plaintiff justifiably relied upon the promise; and (5) plaintiff sustained damage. (CACI 1902.) Furthermore, fraud claims must be pled with particularity, including facts showing “how, when, where, to whom and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Responding Party's fraud C/A in the Second Amended Com...

Excerpt: ...aint].” Complaint paragraph 5. This allegation is insufficient to support causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, negligence, and violation of California Business & Professions Code section 17200. There are no allegations of any relationship between Plaintiff and the Leeor Defendants (contractual or otherwise), any misrepresentation by the Leeor Defendants, any duty or breac...

Excerpt: ...viously agreed to dismiss that cause of action. Opposition at 6:18- 20. The indemnity and contribution/apportionment claims alleged in the second, third and fourth causes of action are based on potential liability for alleged construction defects. There can be no indemnity without liability. City of San Diego v. United States Gypsum Co. (1994) 30 Cal.App.4th 575, 587-589. As a result, an indemnity claim requires that the complainant have paid a c...

Excerpt: ...in its minute order of February 9, 2017, shows the court denied the 664.6 motion because it did not find Code of Civil Procedure section 664.6 or the terms of the settlement agreement allowed it to grant the relief requested—i.e., an order requiring the Mahonys to implement the “Norris Plan” within 90 days, without regard to the other portions of the settlement agreement - and that it did so without finally adjudicating whether the Mahonys ...

Excerpt: ....App.2d 798, 805); Batte v. Bandy (1958) 165 Cal.App.2d 527, 533 (“Affidavits devoid of averments of facts showing that due diligence was exercised to make service have consistently been held to be insufficient…”). Plaintiff's declaration, paragraph 5, does not provide enough information about what was found at the registered address for the agent for service of process for Creek Systems Inc. (Kevin M. Daly) at 8105 Irvine Center Drive, Sui...

Excerpt: ...ey purchased the vehicle from Source Specialists, the written documentation for the sale, attached to the FAC as Exh. 3, shows the purchaser was JBY Enterprises, Inc. In opposition to the demurrer, plaintiffs argue they are the proper plaintiffs as they are the sole owners of JBY, but as JBY purchased the vehicle, JBY is the real-party-in-interest. Plaintiffs elected to operate as a corporation and thus it is the corporation which has standing. T...

Excerpt: ...that time, and none are forthcoming. (See Miller Decl., ¶¶10-15.) This time, unlike the previous motion, AMG does make “a showing that distributions under a charging order will not pay the judgment debt within a reasonable time.” Corps. Code §17705.03(b)(3). Mr. Miller avers that AMG is still an active business listed with the California Secretary of State, but has stopped conducting business, is not generating revenue, and has no money in...

Excerpt: ...r terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. . . .” Miliekowsky vs. Tenet Healthsystem (2005) 128 Cal.App.4 th 262, 280 On 9-27-17, the Court granted Plaintiff's Motion for an Order Compelling the Person Mo...

Excerpt: ... Street in Westminster, and any 1031 exchanges that occurred with respect to monies wired by Amerilink Escrow to National Exchange Corporation that plaintiffs believe were connected with BTC's sale of the property to JVS Development, LLC. (Id., Attachment 2.) The court first questions whether BTC, an LLC, is a “consumer” entitled to notice under Code of Civil Procedure §1985.3(a)(2). But given that BTC may fit within the definition of an “...

Excerpt: ...7. Because terminating sanctions are a harsh remedy, this court declined to issue terminating sanctions at that time and instead directed that defendant Thai appear for his deposition on 11-7-17. Thai was personally present in court when the court made this order and plaintiff gave written notice of the ruling thereafter. Thai failed to appear on 11-7-17. Plaintiff again moved for terminating sanctions, as well as monetary sanctions. In response,...

Excerpt: ...rty seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue. [citations omitted]'” Ibid. This provision can be used to set aside any “other proceeding” taken against a party through the mistake, inadvertence, surprise, or excusable neglect of a party or her attorney, and is not limited to judgments or dismissals. See Cod...

Excerpt: ...smiss an action pursuant to Code of Civil Procedure section 581 exists even after a section 425.16 motion is filed by the defendant and a hearing is held but prior to the court ruling on the motion. (Kyle v. Carmon (1999) 71 Cal. App. 4th 901, 908–09.) Although the Court lacks jurisdiction to rule on the merits of the Motion, the “the trial court has discretion to determine whether the defendant is the prevailing party for purposes of attorne...

Excerpt: ...resulting default entered by the clerk against his or her client . . . or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing c...

Excerpt: ...“Sanchez”) was insured by Alliance United Insurance Company (“Alliance”), and Alliance brought a subrogation action in limited jurisdiction against Plaintiff for property damages to Defendant Sanchez's vehicle. (Motion, Theam Decl., ¶ 3.) The instant action is deemed the lead case because it is an unlimited case, while the suit filed by Alliance is a limited case. It appears consolidation of the two cases will enhance trial court efficie...

Excerpt: ...g party . . . .” Code of Civil Procedure section 2030.270, subdivision (a), explains, “The party propounding interrogatories, and the responding party may agree to extend the time for service of a response to a set of interrogatories . . . .” Code of Civil Procedure section 2030.290 states, in part, “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: . . . [¶] (b) The party propou...

Excerpt: ...ginal of the response to them on the propounding party . . . .” Code of Civil Procedure section 2030.270, subdivision (a), explains, “The party propounding interrogatories, and the responding party may agree to extend the time for service of a response to a set of interrogatories . . . .” Code of Civil Procedure section 2030.290 states, in part, “If a party to whom interrogatories are directed fails to serve a timely response, the followi...

Excerpt: ...C v. Airborne Turbine Ltd. Partnership (2013) 222 Cal.App.4 th 815-816, states, “The trial court is authorized to amend a judgment to add judgment debtors. [Citation.]The judgment may be amended to add additional judgment debtors on the ground that a person or entity is the alter ego of the original judgment debtor. [Citation.] It is an equitable procedure based on the theory that the court is not amending the judgment to add a new defendant bu...

Excerpt: ...11, 2017, he substituted in as new counsel for OB Sports and discovered the Release executed by Plaintiff, and that he believes Plaintiff's claims, or parts thereof, are barred by the Release, which Plaintiff executed on September 24, 2014. (Motin, Scott Decl, ¶¶ 3-4.) The proposed Amended Answer is attached as Exhibit “A” to Mr. Scott's Declaration. OB Sports has substantially complied with the requirements of CRC 3.1324. The motion is uno...

Excerpt: ...ar in the action. The defendant is “out of court.” It has no right to participate in the proceedings until either (a) its default is set aside (in which event, it may respond to the complaint), or (b) a default judgment is entered (in which event, it may appeal). (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.) ...

Excerpt: ...ve submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) The Motion to Strike is MOOT in light of the demurrer. Moving party is to give notice. ...

Excerpt: ...swer is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible. . . . .” “ ‘The familiar terms “general demurrer” and “special demurrer” do not appear in the statutes. The name “general demurrer” is, however, universally applied to a demurrer raising the fundamental ground: “The pleading does not state fats sufficient to constitute a cause of action.” [Citation.]' [Citations.]” (McKenne...