Excerpt: ...constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plaintiff need only plead facts necessary “to acquaint a defendant with the...

Excerpt: ...not an abnormal response to the circumstances. (Thing v. La Chusa (1989) 48 Cal.3d 644, 667‐668.) Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it. (Id. at 668, fn 12.) Plaintiffs allege they were present at the scene of the incident when their father/husband fell. They allege they were “simultaneously aware of Defendant's wrongdoing and negligence allowing [Rodriguez] to walk unassisted desp...

Excerpt: ... Memorandum of Points and Authorities is 32 pages long – more than double the allowable 15 pages under CRC 3.1113(d). A memorandum exceeding the permissible page limits “must be filed and considered in the same manner as a late‐filed paper,” meaning the court in its discretion may refuse to consider it in ruling on the motion. (CRC 3.1113(g); CRC 3.1300(d).) The Court has exercised its discretion, and has read and considered the complete ...

Excerpt: ...urt to reconsider its ruling and reasoning in light of Malott under CCP section 1008(b). However, this matter is not like Malott. Petitioner did not fail to attend the public hearings held by Respondent, unlike Malott. Respondent held at least 8 hearings or meetings in which the issue was discussed and where Petitioner attended, presented evidence, had its representatives speak at each meeting, gave Power Point presentations at several meetings, ...

Excerpt: ...n ordinary and concise language.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plaintiff need only plead facts necessary “to acquaint a defendant with the nature, source and extent of his c...

Excerpt: ...ntional Interference with Prospective Economic Advantage, (3) Intentional Interference with Contractual Relations, (4) Unfair Business Practices, (5) Conversion and (6) Injunctive Relief. This action terminated in Cuevas‐Martinez' favor when the court granted his motion for summary judgement, essentially finding that SSS failed to present evidence to raise a triable issue of fact. Plaintiff has shown that there is a substantial probability that...

Excerpt: ...lied warranties and that the vehicle was negligently repaired. The complaint states the following causes of action: 1. Violation of Song‐Beverly Act—Breach of Express Warranty; 2. Violation of Song‐ Beverly Act—Breach of Implied Warranty; 3. Negligent Repair. On 2/21/20, defendants filed a motion to compel arbitration, set for 4/2/20. On 3/13/20, plaintiff filed an ex parte application to continue the hearing to conduct pre‐hearing disc...

Excerpt: ...e and Defendant and Cross‐Complainant Coachella Valley Association of Governments seek sanctions under CCP section 128.7 based upon Plaintiff's filing of its FAC. The FAC sets forth causes of action for: (1) breach of contract‐3rd party beneficiary, (2) Breach of contract, (3) violation of California Unfair Competition Law, (4) violation of California False Advertising Law, (5) cancellation of taxes and (6) declaratory relief. The central all...

Excerpt: ...ering sending only a shortform notice to class members and requiring class members to obtain a long‐form notice from the administrator. If the Court is satisfied there is a reason for only sending a short‐form notice, that notice must clearly advise the class members of any dates by which they must act, such as filing an objection or seeking exclusion. The Court doesn't understand why notice to be sent to class members needs to be in English ...

Excerpt: ...t parts not available are evidentiary facts which Plaintiffs ultimately need to demonstrate, but not at the pleading stage. 4COA (CC section 1791.2(a): The warranty need not be attached to the Complaint. “[I]n an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198‐199.) 5COA (...

Excerpt: ...overruled as to the remaining causes of action. The defendant shall file and serve her answer within 10 days. The trial setting conference currently set for 6‐15‐21 is vacated. A case management conference shall be conducted on March 22, 2021. Page 3 of 5 Analysis: Because the plaintiff did not sign the declaration she filed on 1‐12‐21, it does not comply with Code of Civil Procedure section 2015.5. Accordingly, the Court does not conside...

Excerpt: ...re Overruled because the Declarant has provided the actual photographs of the scene. Defendants attack the causation element of a negligence claim (premises liability), which is the only cause of action asserted against these Defendants. The tragic accident occurred when Defendant Gall exited the Farmer Boys restaurant using the westerly exit, attempted to cross multiple lanes of westbound Van Buren, seeking to reach the left turn pocket on Van B...

Excerpt: ...nce Code§452(d) however, the Court does not judicially notice the truth of the findings. “[A]lthough the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) Furthermore, only relevant evidence is admi...

Excerpt: ...ntiff was using the ladder to look at kitchen exhaust/range hoods on Aisle 40 in Department 29 of the Mira Loma Home Depot store, his foot slipped and he fell. Plaintiff then brought the instant action against Home Depot. On August 7, 2020, Plaintiff served Defendant with 48 Requests for Production of Documents, 49 Special Interrogatories, 21 Requests for Admission, and Form Interrogatories. Prior to the September 21, 2020 due date. Home Depot's ...

Excerpt: ...hether a triable issue of fact exists. Moreover, sustaining defense objections based on the asserted grounds of lack of personal knowledge would necessarily require the court to weigh credibility. The court has considered all cases cited by the parties and admittedly the arguments of the defense are well presented, however, the arguments do not overcome the prohibition of a trial court's obligation to strictly construe the moving party's evidence...

Excerpt: ..., upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. A settlement in any action is a welcome resolution, because it is entered into voluntarily and not imposed on either party. Unfortunately, the present motion cannot be granted because there is no agreement on th...

Excerpt: ...he vehicle, and based on that allegation, contends that she is a purchaser under the Song Beverly Act. No authority has been presented that states that she cannot pursue a claim on this basis. However, if this is the basis of her action against the defendants, she will also be bound by the arbitration provision in the purchase agreement. Generally, the rule is that a nonsignatory to an arbitration agreement cannot be compelled to arbitration. Cro...

Excerpt: ...l claim is that the Association Board violated the governing documents and breached its fiduciary duty when it jettisoned an existing common area deferred maintenance schedule in favor of completing repairs and deferred maintenance quickly, and that these repairs were paid for using proceeds from a substantial loan taken out on behalf of the Association. Plaintiffs assert that the loan was not properly approved, that the Board had an obligation t...

Excerpt: ...render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and...

Excerpt: ...xists; the right to compel arbitration has been waived; grounds exist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) Arbitration of disputes is favored and “when there is doubt as to the meaning and construction of an agreement for mediation and/or arbitration, that doubt should be resolved in favor of those processes.” (Bon...

Excerpt: ...non v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914 (constitutionality upheld). The motion is made on the grounds that the plaintiff resides out of the state and that there is a reasonable possibility that the moving defendant will obtain judgment. §1030(b). The motion must be accompanied by an affidavit that sets forth the nature and amount of the costs and attorney's fees the defendant has incurred and expects to incur. The statute...

Excerpt: ...Id. at p. 387; Cal Sierra Const., Inc. v. Comerica Bank (2012) 206 Cal.App.4th 841, 845.) The inquiry into probable validity does not go to the ultimate merits of the case but “to whether the contractor should be entitled to retain the security of the mechanic's lien… pending resolution of the matter.” (Id. at p. 850.) In essence, “[a]n assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be ...

Excerpt: ...os Jr., operating a dump truck struck Plaintiff and his vehicle on the eastbound 60 freeway. Plaintiff also alleges that his vehicle, a Toyota Tacoma, had a defect in that the airbags failed to deploy. Plaintiff also named as defendants Dwayne Qualls, Sr., Dwayne Edward Qualls, Jr., Zacharia Smith, Jr., Barbara Smith, Jeremy Dennis and Pirate SVCS. The complaint does not identify their role in the case. The First Amended Complaint, filed 2/7/19, ...

Excerpt: ...on arises out of a construction project. Plaintiff Binnquist Development Inc. (“Plaintiff”) was the general contractor on a construction project at 1827 Atlanta Avenue in Riverside pursuant to a written contract (the “Contract”) with defendants Laguna Hills Allspace, Dennis French and Rick Tarnutzer (“Defendants”) in which Defendants promised to pay $2,459,532, inclusive of amendments and modifications by change orders. Of that amount...

Excerpt: ... to arrange the examination by stipulation. (CCP §2016.040.) The burden is on the moving party to show (by declarations or other evidence) that the examinee's condition is “in controversy” in the action. (Weil & Brown, Civ. Proc. Before Trial (TRG 2020), Ch. 8I, §8:1556.) “Often, the pleadings will put a party's mental or physical condition “in controversy.” For example, a personal injury complaint may allege that plaintiff is sufferi...