Excerpt: ...t's exercise of his or her constitutionally protected rights of free speech or petition for redress of grievances." (Flatley v. Mauro (2006) 39 Cal.4th 299, 311-312 ("Flatley").) Because not all speech or petition activity is constitutionally protected, not all speech or petition activity is protected by the anti-SLAPP statute. (ld. at p. 313.) To prevail on an anti-SLAPP motion, the moving party must first make a prima facie showing that the cla...

Excerpt: ...stake, inadvertence, surprise, or excusable neglect, which "shall be made within a reasonable time, in no case exceeding six months, after the judgment, or proceeding was taken." Here, default was entered January 5, 2023 and this motion was filed within the six-month limitation period. Section 473, subdivision (b), further provides: Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made...

Excerpt: ...f Acceptance and Objection to the Notice of acceptance to be heard on April 20, 2023. On April 12, 2023, both parties filed briefs regarding their respective positions regarding whether or not Defendant timely accepted Plaintiffs offer in compromise. Then on April 19, 2023, the Court on fts own motion found that no hearings were required after having reviewed both briefs submitted by the parties and entered judgment under the 998. To the extent P...

Excerpt: ... responsive to this request, responding party is ordered to provide an appropriate privilege log along with its further responses. "On receipt of a response to a demand for inspection... , the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequ...

Excerpt: ...of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of a...

Excerpt: ...leges that defendant Juan Olivares was his employee and head mechanic at Alarcon Sons, Inc. Alarcon alleges that on March 8, 2019, he and Juan entered into a contract whereby the property would be conveyed to Juan when Alarcon died or retired, whichever occurred first, as long as Juan remained in the employment of Alarcon & Sons, Inc. for the duration of his career. If Juan retired early, or terminated his employment, Alarcon retained a right of ...

Excerpt: ... (Civ. Code S 1794.) The dispute is as to the amount. Defendant Jaguar asserts, among other things, that Plaintiff is seeking fees for unreasonable, unnecessary, and duplicative work, billed at inflated hourly rates. Jaguar also asserts that no multiplier is warranted. As explained below, the Court awards attorneys' fees of $56,639 and 982.30 in costs. under Civil Code section 1794, the court must make an initial determination as to the actual ti...

Excerpt: ... objections within 30 days of service of notice (CCP S 2030.290). The Court has already found in a prior order that DHSO is deemed to have waived objections to this discovery. Here, it is undisputed that the initial responses were served beyond 30 days from the date on which the discovery requests were served, where no extension was granted, and no motion for relief from waiver has been filed by DHSO. (Code Civ. Proc., "2030.290(a); 2031.300(a))....

Excerpt: ...al property located in Cathedral City. Plaintiff also seeks a judicial declaration that the assignment is void and therefore a cloud on title. Plaintiff alleges that the Complaint seeks only to equitably remove a cloud on title. (Complaint, 3:25.) Although not explicitly alleged in the Complaint, Plaintiff is essentially challenging the foreclosing lender's standing to foreclose on the subject real property on the ground it never acquired the int...

Excerpt: ...the percentage of affirmative votes required to amend an Association's CC&Rs if they require a more than 50% vote if certain qualifying conditions are satisfied. (Civ. Code, 54275.) Civil Code secton 4275 has been utilized by HOAs generally to amend their CC&Rs to seek relief from "super majority" voting requirements as opposed to "majority" voting requirements. No such provision exists in the Davis-Stirling Act regarding the reduction of the per...

Excerpt: ...ause Page 4 of 7 of action, in ordinary and concise language." (Code Civ. Proc., S 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, sour...

Excerpt: ... Department on June 17, 2024. The OSC is returnable to this Department per Local Rule 3116. In this breach of contract case, Plaintiffs move to compel arbitration based on the arbitration provision set out at Article X in the Operating Agreement for Trifecta Tile Concepts. Plaintiffs seek to compel arbitration of all claims in the 0#rative complaint and the cross-complaint by Okner, including as against Cross-Defendant Big Wood Builders Inc. It i...

Excerpt: ...auses of achon with leave to amend. The court's further tentative ruling is to SUSTAIN defendant's demurrer to the second cause of action without leave to amend. The court will OVERRULE the special demurrer. In light of these rulings, the court deems the motion to strike moot. Plaintiffs will be granted 30 days' leave to amend. FACTS Plaintiffs Brandon Hillman ("Hillman") and Integrity Specialists International, Inc. ("ISI") (together, "Plaintiff...

Excerpt: ...ision (b). A verified memorandum of costs is prima facie evidence that costs were necessarily incurred where the costs at issue are expressly permitted by statute and appear to be proper charges. (WhatleyMiller v. Cooper (2013) 212 Cal.App.4th 1103, 1115.) A party moving to tax or strike costs must prcwe that a challenged cost is unnecessary or unreasonable. Code of Civil Procedure section 1032, subdivision (b), provides that "[e]xcept as otherwi...

Excerpt: ...or comply with various sections of the Business and Professions Code. Plaintiffs allege the following causes of action against Defendants: (1) breach of contract, (2) fraudintentional misrepresentation, (3) fraud-negligent misrepresentation, (4) constructve fraud, and (5) violation of Business & Professions Code section 7159.5. The Court finds it cannot compel nonsignatory Plaintiff Portugues to arbitration and that this motion should be denied u...

Excerpt: ...otion for judgment on the pleadings may be made on the grounds that the court lacks jurisdiction, or that the complaint does not state facts sufficient. (Code Civ. Proc., S 438(c)(1)(8).) A motion for judgment on the pleadings involves the same type of procedures that apply to a general demurrer. (Richardson- Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1051.) The grounds for a motion for judgment on the pleadings mus...

Excerpt: ...co in question moves for summary judgment or, alternatively, for summary adjudication arguing that there are no triable issues of fact because both causes of acton under the Song Beverly Act, one for breach of implied warranty of merchantability, and one for breach of express warranty are based on aftermarket products installed on the car not covered by any warranty. Summary judgment is granted when a moving party establishes the right to entry o...

Excerpt: ...at there are no triable issues of material fact because there is no evidence that they caused or ignited the fire that ended up damaging Plaintiffs' property, nor is their evidence that they were in any way negligent. Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc„ S 437c(c).) A defendant moving for summary judgment bears the initial burden of proving that there is ...

Excerpt: ... NNA failed to serve responses. On January 6, 2023, Plaintiff served a Notice of Deposition of NNA's Person Most Knowledgeable and Request for Documents (the "Depo Notice"). On January 18, 2023, NNA served objections to the dc„cument demands and matters for examination contained within the Depo Notice. Plaintiff served an Amended Depo Notice, and on February 10, 2022, Defendant served its objections. Plaintiff subsequently moved to compel initi...

Excerpt: ...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 claims." (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.) A dem...

Excerpt: ... James Goldstein. Plaintiffs Arthur and Theresa Elam alleged in their initial complaint the follow-ng causes of action: (1) harassment in violation of Government Code section 12955; (2) discrimination in violation of Government Code section 12955; (3) retaliation in violation of Government Code section 12955; (4) intentional infliction of emotional distress; (5) violation of the Bane Act; (6) violation of the Ralph Act; and (7) violation of Unruh...

Excerpt: ... Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 ("Felisilda"), it may enforce the arbitration provision in the RISC. It argues that it may enforce the arbitration provision under the doctrine of equitable estoppel because the claims against it are inextricably intertwined with the RISC and also that it is a third-party beneficiary of the RISC. The Court disagrees. The arbitration provision in the RISC states in relevant part: Any claim or disp...

Excerpt: ...r the Retail Installment Sales Contract that Plaintiffs signed to effectuate the purchase. Defendant argues that it has a direct right to arbitration under the arbitration provision set forth in the Owner's Handbook. It also argues that under Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 ("Felisilda"), it may enforce the arbitration provision in the Contract. It argues that it may enforce the arbitration provision under the doctrine of equita...

Excerpt: ...c(c).) A plaintiff moving for summary judgment bears the burden to produce admissible evidence on each element of a cause of acton entitling him or her to judgment. (Code Civ. Proc., S 437c(p)(1); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) This means that "a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable t...

Excerpt: ..., seventh (declaratory relief), and ninth (temporary restraining order) causes of action. This is an intrafamily dispute regarding ownership of real property. Jonathan Edwards Jones Senior was Plaintiff's uncle. On July 25, 1999, Jonathan Sr. transferred a fifty-percent interest in real property located on Sandspring Drive in Palm Springs to Plaintiff Nicholas E. Jones. (SAC, 10, Exhibit A [grant deedl.) Nicholas and Jonathan Sr. thereafter held ...

Excerpt: ...LC (2020) 53 Cal.App.5th 486 ("Felisilda"), they may enforce the arbitration provision in the Contract. They also argue that they may enforce the arbitration provision under the doctrine of equitable estoppel because the claims against it are inextricably intertwined with the Contract. The Court disagrees. The arbitration provision at issue here states in relevant part: Any claim or dispute, whether in contract, tort or statute or otherwise (incl...

Excerpt: ...ing the cause of action, in ordinary and conc:ise language." (Code Civ.Proc., S 425.10.) "[Tlhe complaint need only allege facts sufficient to state a cause of action, each evidentiary fact that might eventually form part ofthe 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 a...

Excerpt: ...lter ego of Hilton Franchise Page 4 of 6 Holding Company or that is otherwise liable under a respondeat superior theory. Plaintiff has produced no evidence to support those arguments or to otherwise overcome summary judgment. Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc„ S 437c(c).) A defendant moving for summary judgment bears the initial burden of proving that t...

Excerpt: ...ght of a pending appeal. Petitioners alternatively seek an order issuing a discretionary stay pending their appeal of the August 31, 2022 order. The motion was initially filed as an ex parte application on March 28, 2023, but the Court denied ex parte relief due to Petitioners' failure to make out a sufficient showing of exigency. (See Cal. Rules of Court, rule 3.1202.) Subsequently, on April 04, 2023, Petitioners filed an ex parte application to...

Excerpt: ... Contract that Plaintiff signed to effectuate the purchase. It argues that under Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 ("Felisilda"), it may enforce the arbitration provision in the Contract. It argues that it may enforce the arbitration provision under the doctrine of equitable estoppel because the claims against it are inextricably intertwined with the Contract. It further agues that it is a third-party beneficiary of the RISC and t...

Excerpt: ... alleges she suffered from pressure sores, dehydration, malnourishment, and acute kidney disease, and that she was not cared for appropriately. She alleges four causes of action, only two of which are at issue here, i.e„ the second and fourth causes of action. As the parties have stipulated that the fourth cause of action should be sustained without leave to amend, the Court will only address the second cause of action. To withstand a demurrer ...

Excerpt: ...ong other things. Defendant has subpoenaed records from various third-parties that purportedly relate to Plaintiff's damages claims. Plaintiff has moved to quash those subpoenas. At issue here is a subpoena to Dr. William Longfellow. Plaintiff claims that the subpoena is defective because it did not comply with Code of Civil Procedure section 1985.3's requirements pertaining to Notice of Consumer. Defendant has provided ample evidence demonstrati...

Excerpt: ...the policy, nor was his vehicle insured under the policy. Petitioner has not filed any reply addressing these facts. A petition to compel arbitration '"is in essence a suit in equity to compel specific performance of a contract."' " (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 411 ("Rosenthal") quoting Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1040.) "[Wlhen a petition to compel arbitration is filed ...

Excerpt: ...the purchase. It argues that under Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 ("Felisilda"), it may enforce the arbitration provision in the Contract. It argues that it may enforce the arbitration provision under the doctrine of equitable estoppel because the claims against it are inextricably intertwined with the Contract. The arbitration provision at issue here states in relevant part: Any claim or dispute, whether in contract, tort or s...

Excerpt: ... restraining and enjoining Defendants, and DOES 1 through 20, inclusive, their managers, servants, agents, officers, employees, and all other persons acting on their behalf and/or at their direction from harassing or threatening Plaintiffs." 2. Paragraph 3 of plaintiffs' prayer for relief, which provides as follows: "For statutory and treble damages." 3. Paragraph 8 of plaintiffs' prayer for relief, which prov-des as follows: "For statutory damag...

Excerpt: ...Showcase Parkway, Indio, California, including from bringing any achon for unlawful detainer, pending the outcome of the arbitration proceeding in ß„QA case Builder Services Group, Inc. v. W-GL Showcase Industrial Owner IX. L.P. and Spectrum Grande LLC (Case No. 01-23-0001-1275). Plaintiff Builder Services Group ("BSG") seeks to enjoin its landlord, Defendant W-GL Showcase from evicting it during the pendency of an arbitration proceeding. The ...

Excerpt: ...am & Caplin LLP. 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., 5128.7; Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619,623; see also Code Civ. Proc., S 128.5 [authorizing the imposition of sanctions "to...

Excerpt: ...rassment, gender discrimination, retaliation, failure to prevent harassment, and wrongful termination. Plaintiff argues that this motion should be denied because the arbitration agreement is unconscionable and is prohibited under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, 9 U.S.C. SS 401, 402. The Court disagrees. A petition to compel arbitration in essence a suit in equity to compel specific performance of a contr...

Excerpt: ...se language." (Code Civ. Proc., S 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 claims." (Doe v. City of Los...

Excerpt: ...ficiencies in this iteration of the complaint. The SAC alleges as follows. In the early 1960s, Desert Bermuda Development Company was formed to subdivide and develop a large tract of land in Bermuda Dunes, which consisted of the Bermuda Dunes Airport, adjoining subdivision of homes with airpark (later designated as Tract 2508), and the Bermuda Dunes Country Club. (SAC, '123.) The subdivision included 19 residential lots adjoining the Airport. (SA...

Excerpt: ...argues that under Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 ("Felisilda"), it may enforce the arbitration provision in the Contract. It further argues that it is a third-party beneficiary of the Contract and that it did not waive its right to seek arbitration. The arbitration provision at issue here states in relevant part: Any claim or dispute, whether in contract, tort or statute or otherwise (including the interpretation and scope of t...

Excerpt: ...tions 405.22 and 405.23. Plaintiff filed a supplemental brief and declaration of counsel Nolan, no reply was filed. In connection with an action to foreclose a mechanic's lien, a lis pendens must be recorded to provide constructive notice upon any subsequent purchasers or encumbrancers that the lien claimant has filed a foreclosure complaint within 90 days from the recording of the mechanic's lien. (Code Civ. Proc., S 8461.) The recording of the ...

Excerpt: ...eq.); (3) failure to give preliminary notice; (4) breach of contract; (5) negligence; (6) fraud and deceit; (7) unjust enrichment; and (8) violation of Penal Code section 496. The FAC alleges in pertinent part as follows: Plaintiff REP and Defendant DCC entered into a written agreement backdated to October 16, 2020 ("Contract") whereby DCC was to serve as the general contractor in connection with the construction project referred to as the pharma...

Excerpt: ...each of contract and negligence. Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., S 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 Civ. Pr...

Excerpt: ...th a similarly named business, “Ellis Hospitality Services, LLC” and that that entity is the one that is or should be addressed in Plaintiff's complaint, along with its managing member “Tim Ellis,” and that instead of “Ellis Hospitality Group LLC” and “Jyoti Patel” have no relationship with Plaintiff. They cite Exhibit 12 to the Complaint, a Letter of Intent signed by the various Defendants named in this action, including “Ellis...

Excerpt: ...nd otherwise overruled the demurrer. Plaintiffs subsequently amended the complaint. Defendant now demurrers to the first cause of action for Elder Abuse in the First Amended Complaint arguing that the pleadings are insufficiently specific and do not set forth recklessness, malice, oppression or fraud. The Court disagrees. To withstand a demurrer the complaint must contain “a statement of the facts constituting the cause of action, in ordinary a...

Excerpt: ...xual advances. (Complaint ¶ 22.) Avilez alleges Cortez regularly groped and fondled her body in an unwanted sexual manner, made unwanted harassing comments of a sexual nature, and offered her $10,000 to go on vacation with him and have sex with him. (Id. at ¶ 23-24.) Avilez alleges that on August 12, 2022, Cortez groped her in front of Hildebrandt, her supervisor, who acknowledged seeing the conduct when Avilez complained to him, but took no ac...

Excerpt: ...thstand 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, 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 pla...

Excerpt: ...ctor, he or she must record the claim of lien after the contract work is “completed” and prior to the expiration of either: (1) 60 days after recordation of a notice of completion or notice of cessation; or (2) 90 days after the completion of the work of improvement if no notice of completion or notice of cessation of labor has been recorded. (Civ. Code, § 8412.) A mechanic's lien attaches to the property on which work of improvement was per...

Excerpt: ...ailed to join necessary party the La Residence Homeowners Association. Because it was unclear whether the HOA should be added as a nominal party, or whether it intended to intervene, the Court continued the hearing on this matter to allow counsel to meet and confer. Counsel have not taken this hearing off calendar or provided evidence that they met and conferred to resolve this matter. To withstand a demurrer the complaint must contain “a state...

Excerpt: ...k by a truck owned by Defendant U-Haul of Arizona, which was leased by Defendant Mary Mills and operated by Defendants Travis Alexis and Michael Mills. Decedent suffered severe injuries and died in the hospital. Plaintiffs allege negligence on the part of the Defendants. Plaintiffs noticed the deposition of Roehl's PMK and sent corresponding request for production. Libby Block, as PMK for Roehl, was deposed on January 24, 2023. During the deposit...

Excerpt: ...o such relief as part of this motion, it now seeks to have the Court reconsider its ruling raising arguments it could have raised at the hearing, had it sought one in conformity with the Local and Department rules. Notably, it does not appear that the failure to timely request argument in this case was excusable. Code of Civil Procedure section 1008, subdivision (a) provides in relevant part: When an application for an order has been made to a ju...

Excerpt: ...Hearing re: Demurrer on 1st Amended Complaint for Other Personal Injury/Property Damage/Wrongful Death Tort (Over $25,000) of GINO SCOPESI Tentative Ruling: Sustain with 20 days leave to amend as to the fourth cause of action per Health and Safety Code section 1430. HCR Manor Care Services, LLC, Doe 21, demurrer to the fourth cause of action in the First Amended Complaint arguing that it is not a licensee and therefore cannot be held liable under...

Excerpt: ...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 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 to the plaintiff to show that a triable issue of one or more m...

Excerpt: ...ntity or employees must first present a claim to the public entity, which must be acted upon or deemed rejected by the public entity. (Govt. Code, §§ 945.4, 950.2, 950.6(a).) To be timely, a claim for damages must be presented to the public entity within six months of the date the cause of action accrued. (Govt. Code, §911.2.) If a plaintiff fails to file a government claim within the sixmonth period, he or she may apply to the public entity f...

Excerpt: ...es that under Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 (“Felisilda”), it may enforce the arbitration provision in the Contract, or that Plaintiffs should be estopped from asserting that it may not enforce the agreement. It further argues that it is a third-party beneficiary of the Contract and that it did not waive its right to seek arbitration. The arbitration provision at issue here states: Any claim or dispute, whether in contract...

Excerpt: ...FCA US LLC (2020) 53 Cal.App.5th 486 (“Felisilda”), it may enforce the arbitration provision in the Contract. It further argues that it is a third-party beneficiary of the Contract and that it did not waive its right to seek arbitration. The arbitration provision at issue here states: Any claim or dispute, whether in contract, tort or statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrabi...

Excerpt: ... ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The same liberal policy regarding amendment of pleadings applies as on sustaining demurrers. Therefore, as long as the defect is correctible, an amended pleading will usually be allowed. (Code Civ. Proc., §576; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 168; Pri...

Excerpt: ...ranties, or representations of any kind must be filed in the courts within the state of Indiana.” In support of its motion, Defendant submitted the declaration of Dan Evans. Plaintiffs submitted four objections to the declaration of Dan Evans, submitted by Defendant with its moving papers. The Court sustains these objections. All of the evidence Defendant attempts to submit relating to the forum selection clause is not admissible. There is no c...

Excerpt: ...ive First Amended Complaint (“FAC”). Defendants' motion is based on the court's lack of subject matter jurisdiction, and alternatively, based on an official immunity, and insufficiency of Lamar's pleading. Moving Defendants have not met their burden to demonstrate they are immune from suit. Defendants specially appear to challenge the Court's lack of subject matter jurisdiction under the protection of sovereign immunity and the official immun...

Excerpt: ... Civ. Proc., §§473, subd. (a), 576, 422.10 [pleadings in civil action include answers].) “Leave to amend a pleading, including an answer, is entrusted to the sound discretion of the trial court.” (Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 488.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it has been held as an error to refuse permission to amend and where the...

Excerpt: ...Turner and DPP was in effect until August 12, 2022. Plaintiff seeks leave to remove allegations relating to its claims against the developer defendants, Coachillin and Kenneth Dickerson, and to add new allegations to support its claims for negligence and breach of fiduciary duty asserted against Turner and DPP. Plaintiff also proposes to include an additional cause of action against these defendants for constructive fraud (Civil Code, § 1573). P...

Excerpt: ...otions were to be heard. Oppositions to the motions at issue were required to be filed and served at least nine court days prior to the scheduled hearing per Code of Civil Procedure section 1005, subdivision (b). Further, the Court posted a tentative ruling for both motions on Friday November 23, 2022, granting the motions and stating that no oppositions had been filed. Plaintiff did not timely request oral argument per Local Rule 3316 or Rules o...

Excerpt: ...end after granting a motion for judgment on the pleadings. The Court indicated in its order granting the motion that Plaintiff appeared to seek tort damages for the damage to the leased property, and theft, and granted leave to amend on this basis. Accordingly, the new causes of action are within the scope of the Court's order granting leave to amend. The motion is denied. Page 3 of 4 4. CVPS2104820 NOROOZI vs GIBBS Hearing re: Demurrer Tentative...

Excerpt: ...y or create conflicting rulings on common issues. (Code Civ. Proc., § 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 to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference....

Excerpt: ...lisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 (“Felisilda”), it may enforce the arbitration provision in the Contract, or that Gonzalez should be estopped from asserting that it may not enforce the agreement. It further argues that it is a third‐party beneficiary of the Contract and that it did not waive its right to seek arbitration. The arbitration provision at issue here states: Any claim or dispute, whether in contract, tort or statut...

Excerpt: ...y adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, [or] that there is no merit to a claim for damages. . .” (Code Civ. Proc., § 437c(f)...

Excerpt: ...ction, otherwise overrule. 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, 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...

Excerpt: ...of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.” (Code Civ. Proc., § 391(b)(2).) The term “repeatedly” refers “to a past pattern or practice on the part of the litigant that carries the risk of repetition in the case at hand.” (Holcomb v. U.S. Bank, Nat. Ass'n (2005) 129 Cal.App.4th 1494, 1505.) “Although section 391, subdivi...

Excerpt: ...ce of a dangerous condition, Plaintiff was negligent, and that she had no duty to eliminate a trivial hazard. The Court finds disputed issues of material fact preclude summary judgment. Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code 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...

Excerpt: ...e 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 Civ. Proc., § 128.5 [authorizing the imposition of sanctions “to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of acti...

Excerpt: ...tiff claims that there are additional improper charges included in the memorandum of costs, or charges that were miscategorized. As an initial matter, the Court rejects Plaintiff's unsupported contention that the Court lacks jurisdiction to award costs after an appeal is filed. That is not correct. (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1052; Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461.) Further, there is no bas...

Excerpt: ...Court reconsider its ruling based on an argument Plaintiff claims to have raised at oral argument on the demurrer, but which was not included in Plaintiff's opposing papers, specifically that Plaintiff has a right of privacy under Article I section 1 of the California Constitution to be free from unwarranted medical toxins and the excessive use of force, citing Hill v. National Collegiate Association (1994) 7 Cal.4th 1, 8. Plaintiff argues that i...

Excerpt: ...ectuate the purchase. It argues that under Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 (“Felisilda”), it may enforce the arbitration provision in the Contract, or that Pelton should be estopped from asserting that it may not enforce the agreement. It further argues that it is a third‐party beneficiary of the Contract and that it did not waive its right to seek arbitration. The arbitration provision at issue here states: Any claim or d...

Excerpt: ... in El Dorado Hills, California. Plaintiffs allege in their Complaint that they are residents of Sacramento County and that they lived in the property at issue here for 17 years. (Complaint ¶ 1.) They further allege that all business was conducted in El Dorado County and that venue is proper in El Dorado County. (Complaint ¶ 18.) Defendants Boudier and Dance Hall Investors move to change the venue of the present action from Riverside to either ...

Excerpt: ...ifically, at the deposition Gunberg was asked to locate certain portions of Plaintiff's heart on an ultrasound image. While Gunberg pointed to the portions at issue, his counsel instructed him not to label the ultrasound images. Plaintiff argues that it is entitled to nonverbal answers – like labeling an ultrasound image. He argues the information sought is not privileged or private information. He contends that the questions pertain to relevan...

Excerpt: ...leges causes of action for (1) defamation, (2) invasion of privacy, and (3) declaratory relief‐ tort of another. Solis alleges that Madison made false statements in its insurance claim to Plaintiff Federal Insurance Company, that Solis had embezzled cash payments from Madison's patients and manipulated records to cover up his fraud, and Madison was thereafter paid on its claim by Federal Insurance Company in the amount of $260,234.50. (SACC, ¶...

Excerpt: ... of the following: [¶] (1) A statement that the party will comply with the particular demand…. [¶] (2) A representation that the party lacks the ability to comply with the demand…. [¶] (3) An objection to the particular demand…. (Code Civ. Proc., §2031.210(a)(1)‐(3).) Where a response to request for document has been made, which the demanding party deems unsatisfactory, the demanding party may move to compel further responses on follo...

Excerpt: ... argues that at the time of the accident, Hernandez and Corona were “going and coming” and not in the course and scope of their employment such that MOC is entitled to judgment as a matter of law. The Court disagrees and finds that the existence of triable issues of material fact preclude summary judgment or adjudication. Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. ...

Excerpt: ...rrer as to the entire Complaint as it pertains to Plaintiff Damien Garcia, who is listed in the caption and signature block but whose name does not appear in the body of the Complaint. Defendants demurrer as to the other named Plaintiffs only as to the sixth and ninth causes of action alleging that these causes of action fail to state a sufficient cause of action. To withstand a demurrer the complaint must contain “a statement of the facts cons...

Excerpt: ...or fees incurred in proving at the arbitration the truth of matters that they claim Defendant unreasonably denied. Specifically, proving matters addressed in Requests for Admission numbers 8, 58, 69, which state as follows: (1) RFA No. 8: Plaintiff asked Defendant to “[a]dmit that on at least one occasion during the LEASE PERIOD, YOU were notified in writing of at least one Mold or Mildew (common definition) CONDITION at the PROPERTY.” (2) RF...

Excerpt: ...t. Cross‐Complainant argues that the inadvertent typographical error identifying River Falls, LLC as a corporation does not express the intent of the parties. Cross‐ Complainant argues that the parties intended that Notes and Deeds of Trust that are the subject of this litigation would accurately identify the business classification for the lender, River Falls, LLC. Cross‐Defendant argues that River Falls, LLC was always a limited liability...

Excerpt: ...pel arbitration. Upon the petition of a party to an agreement to arbitrate, a court must compel arbitration unless it finds: no written agreement to arbitrate exists; 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. (Code Civ. Proc., § 1281.2.) A proceeding to compel arbitration is in...

Excerpt: ...ive damages allegations. Plaintiff was not otherwise granted leave to amend the operative complaint. Nevertheless, a review of the Second Amended Complaint filed by Plaintiff reflects that Plaintiff made numerous unauthorized amendments with the intent to avoid this motion and in direct defiance of this Court's order of November 4. Plaintiff did so even though a motion to amend to make these additional changes was pending. For example, Plaintiff ...

Excerpt: ...onnection with an alleged wrongful foreclosure of their home in El Dorado Hills, California. Plaintiffs allege in their Complaint that they are residents of Sacramento County and that they lived in the property at issue here for 17 years. (Complaint ¶ 1.) They further allege that all business was conducted in El Dorado County and that venue is proper in El Dorado County. (Complaint ¶ 18.) Defendants Boudier and Dance Hall Investors move to chan...

Excerpt: ...ant, false, or improper matter inserted in any pleading.” In ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 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...

Excerpt: ...in violation of Government Code section 12955; (3) retaliation in violation of Government Code section 12955; (4) intentional infliction of emotional distress; (5) violation of the Bane Act; (6) violation of the Ralph Act; and (7) violation of Unruh Act. Defendant Bressier and Casenhiser Inc. demurrer to the only causes of action stated against it, i.e., the first, second, third, fourth, and seventh causes of action. The Court agrees that these c...

Excerpt: ...d as a result of negligence while he was a resident at ManorCare, Defendant's skilled nursing facility. Plaintiffs allege that Plumhof suffered multiple pressure injuries and multiple infection, including septic shock, as a result of ManorCare's neglect. (Complaint, ¶¶ 17, 20‐22, 29.) Plaintiffs allege Plumhof died on May 20, 2021 as a result of ManorCare's negligence and neglect. (Id. at ¶¶ 47‐49.) The Complaint sets forth four causes of...

Excerpt: ...ion (promissory estoppel). Defendants do not demurrer to the sixth cause of action for private nuisance brought only by Plaintiff LaRue. 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, each evidentiary fact that might eventually form par...

Excerpt: ...filed the Complaint in this matter on August 8, 2022. Hansen graduated from Rancho Mirage High School in 2020 and was over the age of 18 at all relevant Page 7 of 8 times. He alleges that Cundari, a high school theater teacher, approached him in May 2021 and asked him to be the lead in an upcoming theater production. (Complaint, ¶¶ 7‐8.) Cundari gave Hansen his telephone number and asked him to keep their communications and friendship a secre...

Excerpt: ...e Court cannot find that Mack has met his burden, and therefore must deny the motion. Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code 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 c...

Excerpt: ...s claims against the remaining “Realtor Defendants.” The Realtor Defendants oppose this motion, arguing that severing the claims will prejudice them because they intend to file a cross‐ complaint against Coachillin' and Dickerson, and that this will run afoul of the one‐judgment rule. The Court disagrees. Code of Civil Procedure section 579 provides that “[i]n an action against several defendants, the court may, in its discretion, rende...

Excerpt: ...covery process. (Code Civ. Proc., §§ 2023.030(d), 2030.300(e).) Terminating sanctions can take the form of (1) striking out the party's pleading or part thereof; (2) staying further proceedings by that party until he or she obeys the court order; (3) dismissing that party's action, or any part thereof; or (4) rendering default judgment against that party. (Code Civ. Proc., § 2023.030(d).) Terminating sanctions are appropriate where there is a ...

Excerpt: ...days. The Court has sustained several prior demurrers in this case, the last one with leave to amend to allege a new cause of action to set aside foreclosure. Defendants now generally demurrer to Plaintiff's Fourth Amended Complaint, and each cause of action therein, on the grounds that the it fails to state facts sufficient to constitute either a quiet title action or an alleged “set aside” cause of action. Defendants also assert that Plaint...

Excerpt: ...rted in any pleading.” In ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 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�...

Excerpt: ...tronic service to Plaintiff's counsel. (Ekblad Decl., Ex A.) And the day before the deposition, Page 4 of 6 Defendant's counsel emailed several attorneys at the firm representing Plaintiff to confirm the deposition and provide the link for remote deposition to be held via Zoom. (Ekblad Decl., ¶ 5, Ex C.) Even at that time, Plaintiff's counsel did not respond to explain that there was confusion about the deposition date. Instead, Defense counsel ...

Excerpt: ...family trust, is styled as one for breach of contract. It appears to seek damages for breach of an agreement to make Baum the sole beneficiary of there estate plan and, in particular, the eventual inheritor of a condominium in Palm Springs. The Epsteins move for summary judgment and attempt to move for summary adjudication of specific defenses or issues, though the motion does not technically comply with Code of Civil Procedure section 437c(F)(1)...

Excerpt: ...iciently pleaded and not irrelevant, false, or improper on their face per Code of Civil Procedure section 436. A motion to strike lies where the facts alleged in a pleading do not rise to the level of “malice, fraud or oppression” required to support punitive damages. (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 the defendant i...

Excerpt: ...s prior orders and detailed explanations to counsel about Huerta's legal obligation to appear and respond to questions, even if responses are objections, Huerta has not complied. Huerta has repeatedly failed to appear in violation of this Court's prior orders, and has not attempted to proffer any justification for doing so. To the extent his counsel claim that they have advised Huerta to appear, they have not filed any evidence with the Court to ...

Excerpt: ... grounds for quashing the subpoena are largely without merit. That said, Wu appears to assert that the subpoena is overly broad, and with that assertion the Court agrees. The subpoena as drafted seeks information not subject to discovery in judgment enforcement proceedings. The subpoena seeks: “[a]ny and all DOCUMENTS AND CORRESPONDENCE, including copies of all signature cards and modified signature cards; documents, including personal and corp...