Excerpt: ... of Civ. Proc., § 437c(c). A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts ...

Excerpt: ...anguage.” (Code Civ. Proc., § 425.10.) “[T]he complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that Page 4 of 5 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 claims.” (D...

Excerpt: ...on for (1) Trade Libel, (2) Tortious Interference with Business Relations, and (4) Conspiracy. The Complaint alleges that Defendant Melissa Swauger along with her parents, moving Defendants Cathleen and Michael Marmon, harassed JLS and its clients, by discrediting JLS's director and sole shareholder Jonathan Swauger, who is Melissa Swauger's ex‐husband. According to JLS, this harassment ruined JLS's reputation and caused it to lose business. Mo...

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: ...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: ...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: ...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: ...one Velma Frothingham to Defendant Bartolini in March 2019, more than seven years after Frothingham's death. Bartolini sold the property to NCEM, which alleges in its CrossComplaint that Rivera negligently represented that Frothingham appeared before her and executed the Grant Deed, when she knew or should have known that Frothingham did not personally appear before her. The Cross‐Complaint alleges that Rivera negligently performed her duties a...

Excerpt: ...se 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 nature, source and e...

Excerpt: ...and breach of governing documents, but it did not eliminate all portions of those causes of action, substantial portions of which remain. The Flanagans now move for attorneys' fees and costs under the antiSLAPP statute. “The party prevailing on a special motion to strike may seek an attorney fee award through three different avenues: simultaneously with litigating the special motion to strike; by a subsequent noticed motion…; or as part of a ...

Excerpt: ... reference agreement exists between the parties: (a) To hear and determine any and all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision. (b) To ascertain a fact necessary to enable the court to determine an action or proceeding.” (Code of Civil Procedure § 638.) Section 9.2 of Plaintiff's employment agreement included the following language: Dispute Resolution. In the event of any contr...

Excerpt: ...ition to the summary judgment. While it is true the motion may have been continued several times while the court was closed due to the coronavirus pandemic, eventually the hearing on the motion for summary judgment was vacated by a general order issued by the Presiding Judge of this court, which order vacated all law and motion hearings. The Court will not detail here the numerous implementation and general orders issued between March 17, 2020 an...

Excerpt: ...of process, respectively. Defendants assert that these causes of action are barred under Government Code section 821.6, which states: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” The immunity conferred by Government Code section 821.6 is construed broadly and “in furth...

Excerpt: ...tled. The Court denies the motion and the request by Plaintiffs for sanctions. An attorney or unrepresented party who presents a pleading, motion or similar paper to the court makes an implied certification as to its legal and factual merit, and a violation of this implied certification subjects the attorney and/or party to sanctions. (Code Civ. Proc., §128.7; Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619,623; see also Code C...

Excerpt: ...of 5 Code section 1102.5, (2) disability discrimination, (3) failure to engage in the interactive process, (4) failure to accommodate, (5) disability harassment, (6) failure to prevent discrimination and retaliation, and (7) intentional infliction of emotional distress. According to Ross, the relevant facts are that: (1) he was retaliated against when he repeatedly raised issues and concerns as to whether the evidence in the Robert Wayne Parker m...

Excerpt: ...regarding res judicata is that Plaintiff Linn previously litigated all of the issues in this case in case PSC1405184. A request for judicial notice filed in support of the motion contains an unfiled, unsigned, and undated document purporting to be a “fourth amended complaint” by Plaintiff and the entity International Apparel in that case. This document is not part of the Court's record and not subject to judicial notice. Furthermore, as point...

Excerpt: ...rom a dangerous condition of public property. In its demurrer, the County argues that Second Amended Complaint fails to state facts sufficient to constitute a cause of action against the County for a dangerous condition of public property because the County did not have a legal duty to close Box Canyon Road or to warn of the possibility of flooding in anticipation of an approaching storm/hurricane. In addition, the County asserts that the operati...

Excerpt: ... Cal.App.4th 1253, 1255.) Here, the motion seeks to strike punitive damages allegations from the First Amended Complaint. Such a motion lies where the facts alleged in a pleading do not rise to the level of “malice, fraud or oppression” required to support a punitive damages claim. (Turman vs. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) Civil Code section 3294 provides that exemplary damages are allowable where t...

Excerpt: ...ating Plaintiff at the jail). A court may allow the amendment of any pleading, at any time, in furtherance of justice. (Code Civ. Proc., §§ 473(a)(1), 576.) Although there is a policy favoring leave to amend, it should be denied where it will be meaningfully prejudicial to an opposing party or where a party has inexcusably delayed in seeking leave. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) A court may permit an amendment to a ple...

Excerpt: ...tuting 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 Page 7 of 8 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 wi...

Excerpt: ...stop discrimination and harassment) causes of action in the First Amended Complaint. The First Amended Complaint alleges, in pertinent part: • Plaintiff Funkhouser was hired by Defendant Desert Sands Unified School District in August of 2010 as an English teacher. • Funkhouser started experiencing urological issues, including frequent and painful urination. After examination, Dr. Faulkner concluded that these urological issues would be a perm...

Excerpt: ...ial date was vacated by general orders issued by the Presiding Judge of this Court as a result of pandemic‐related partial court closures. After re‐opening, civil departments began accepting new motions on June 1, 2020. At issue here is what DRMC has entitled an “amended petition” to compel, which was not filed until September 10, 2020. DRMC has actually been litigating this matter outside of arbitration since 2016, when named Respondent ...

Excerpt: ...ed Plaintiff for having leased the Subject Properties to them which was on Native American land, and were filled with anger, hatred and ill will towards Plaintiff. As part of such intentional malice, and with the intent to vex, injure, annoy Plaintiff, and/or with a conscious disregard of Plaintiffs rights, Defendants stole Plaintiffs property, damaged Plaintiffs property, and vandalized Plaintiff's property in a purposeful attempt to cause monet...

Excerpt: ... in the complaint and that it, and not Aspects, Inc. contracted for and performed all of the work at issue. The motion also asserts that Aspects, Inc. did not comply with the legal prerequisites to bring an action on a stop notice release bond or payment bond. Triable issues of material fact exist as to these issues and preclude summary judgment or adjudication. Summary judgment is granted when a moving party establishes the right to entry of jud...

Excerpt: ...cts showing a unity of interest between Arbid and Power Brokers to show a unity of interest between the two and alleged that injustice would result if they were considered wholly separate. To withstand a demurrer the complaint must contain “a statement of the facts 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, ...