Excerpt: ...emurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer." Here, the parties have not met and conferred as required. It may well be that a meet and confer will not resolve this demurrer. The likelihood of a resolution is, however, irrelevant. The C...

Excerpt: ...cularity that constitute a cause of action, and that it fails to allege a transactional relationship giving rise to a duty to disclose. A moton for judgment on the pleadings addresses defects in a pleading that are disclosed on the face of the pleading or that are subject to judicial notice. (Cloud v. Northrop Gruman Corp. (1998) 67 Cal.App.4th 995, 999.) All facts alleged in the complaint are deemed admitted and the complaint is given a reasonab...

Excerpt: ...ces of the Riverside Branch. Petitioner seeks a writ commanding the Department to provide services, to create and implement an Individualized Plan for Employment, and for "damages in the sum of $57,CM through May 2022 and continuing at $2,880." In her opening brief Petitioner also seeks orders requiring the Department and its employees from engaging in conduct that she considers to be unprofessional. More specifically, Petitioner asserts that she...

Excerpt: ...ry 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. Prcyc., S 437c; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made ...

Excerpt: ...nses, and further responses, as previously ordered by this Court prior to the hearing on this motion, or the tme this tentative ruling is adopted per Local Rules, the Plaintiff is prohibited from arguing or putting on evidence at trial as to all of the following specific issues: (a) "Defendants held themselves out to Plaintiff as experts with respect to the preparation of an offer in compromise (OIC) with the Internal Revenue Service (IRS)," as a...

Excerpt: ...ckson argues that punitive and exemplary damages should be stricken under Code of Civil Procedure section 436 because the facts pleaded are insufficient to support a claim of oppression, fraud, or malice. The Court disagrees. The allegations are specific and they, and inferences that may drawn from them, are sufficient to survive the moton to strike. The Complaint pleads that on the night of the accident Jackson, who lost his license as a result ...

Excerpt: ... Marshall's wife, Plaintiff Eaton, sued EMC and its alleged administrator, Martin Massiello alleging: (1) dependent adult elder abuse (Welt & Inst. Code 515600, et seq.); (2) Medical Malpractice Survival Action (Code Civ. Proc., 5377.20); (3) Willful Misconduct; (4) Negligent Infliction of Emotional Distress; and (5) Wrongful Death. Massiello demurrers to the First Amended Complaint and all causes alleged against him on the basis that it fails to...

Excerpt: ... following grounds: (1) "A statement of compliance with the demand is incomplete"; (2) "A representation of inability to comply is inadequate, incomplete, or evasive"; or (3) "An objection in response is without merit or too general." (Code Page 4 of 5 Civ. Proc., S 2031.310(a).) However, unlike any motions to compel responses of other forms of written discovery, the motion to compel further responses to RFPs must set forth specific facts showing...

Excerpt: ...n for judgment on the pleadings have not all been addressed. The first cause of action for breach of written contract is based on the "contract" attached as Exhibit Ato the FAC. It is not clear that this is a contract at all, but assuming it was intended to be a contract, it is not clear from the pleadings or the fact of this document what the essential features of the agreement were and whether there was a meeting of the minds. Although is clear...

Excerpt: ...ituting the cause 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, so...

Excerpt: ...feco as part of an insurance claim, made contradictory statements about the cause of the property damage "rais[ing] serious concerns about the objectivity and integrity of SAFECO'S investigation and HAAG Engineering's conduct." {FAC '1 30.} The fourth cause of action for negligence and fifth cause of action for violation of Business and Professions code 17200 are brought as against HAAG and all other defendants. As the demurrer correctly argues, ...

Excerpt: ...ess. {FAC, "1 11, 20.} The only remaining issue in this demurrer is the second cause of achon for battery. The tort of battery is an intentional and offensive touching of a person who has not consented to the touching. (Conte v. Girard Orthopaedic Surgeons Med. Group, Inc. (2CG) 107 Cal.App.4th 1250, 1265.) "The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the in...

Excerpt: ...J& A Havendale, LLC move to strike the follow-ng portions of the Palm Cross-compliant: 1. Heading B ("Facts re the Cross-Defendants' Efforts to Commingle the Sale of the Carmona Real Property with the Restaurant Lease"), page 7, in its entirety. 2. Paragraphs 23-26, page 7, in their entirety. (General Allegations) 3. Paragraph 33, page 8, the portion of which states "reasonable attorneys' fees and." (2nd Cause of Acton) 4. Paragraph 54, page 11, ...

Excerpt: ...rer the complaint must contain "a statement of the facts constituting the cause 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...

Excerpt: ... a friend at Defendant's premises. (FAC, 12.) On April 15, 2019 Plaintiff discovered that there was a bedbug infestation in her room and took photos of the bedbugs to inform the hotel management. (FAC, '1 13.) After Plaintiff the incident, a hotel security guard assisted Plaintiff inspect her and confirmed that bedbugs were nesting in the room. (FAC, '1 14.) Later that day, Plaintiff realized that she and her friend had been bitten by bed bugs. (...

Excerpt: ...room door shut on him. Isenia Salcedo and Hernan Cortez, Ivan's parents, also observed Ivan's suffering after the accident. Plaintiffs allege the following six causes of action: (1) Dangerous Condition on Public Property; (2) Vicarious Liability of Public Employee; (3) Public Entity Liability for Failure to Perform Mandatory Duties; (4) Negligent Hiring, Supervision, Training and Retention; (5) Vicarious Liability of Public Employee; and (6) Inte...

Excerpt: ...se 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 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 and extent o...

Excerpt: ...er abuse in the First Amended Complaint. Defendants allege that this cause of action is insufficiently pleaded and not pleaded with particularity. 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., S 425.10.) "[T]he complaint need only allege facts suffic:ient to state a cause of action, each evidentiary fact that might eventually form...

Excerpt: ... of the accident. At that event they served alcohol to Defendant Arnold Vivas. Arnold is Ronald's younger brother. When Arnold drove away from the event, he was intoxicated. While driving he struck the Heynens' car, which Joanna Heynen was driving. Joanna was pregnant at the time. The Heynens' car was totaled. The operative complaint alleges three causes of action, only two of which are as against demurring defendants, Ronald Vivas and Civet Gonz...

Excerpt: ...red by experts designated by State Farm in its initial expert disclosure, and Plaintiff has not previously listed any expert on these subjects. "After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other's expert trial witnesses to exchange by all parties of a list containing the name and address of any natural person, including...

Excerpt: ... first cause of achon is for administrative mandate and for a stay of enforcement. CrossDefendants no longer own the property that is the subject of this action, and have no basis to seek writ relief or a stay of any actions as against the property. This property is also now the subject of a receivership, and the receiver has tasked with remediating the hazardous conditions on the property to bring it into compliance with all local and state heal...

Excerpt: ... demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer." Here, Defendant neglected its duty to meet and confer as required. It may well be that a meet and confer will not resolve this demurrer. The likelihood of a resolution is, however, irrele...

Excerpt: ...th Cause of Acton, item 40, 'Attorney's fees, witness fees and costs of litigation incurred by Plaintiffs to obtain policy benefits in an amount to be determined at trial' because the FAC fails to allege a contract between Plaintiffs and DKI providing for attorney fees to the prevailing party." The eighth cause of acton is for negligence. Plaintiff has not pleaded any basis for recovery of attorney fees under a negligence theory. The motion is gr...

Excerpt: ...not addressed in the moving papers and is therefore not properly before the Court. Responses to these Demands 1-5, 6-8, 17-20, 26, 36, 44-52, and 50 are not Code compliant. The party to whom a demand for inspection, copying, testing, or sampling has been directed shall separately to each item or category of item by any of the following: [91 (1) A statement that the party will comply with the particular demand.... [q] (2) A representation that the...

Excerpt: ...e was financed with a loan from BMC Mortgage, lnc„ which was secured by the property. Richard, the borrower, died on November 7, 2021. On September 15, 2022, Defendant Western Progressive Services LLC recorded a Notice of Default on of Defendant PHH Mortgage Corp. Thereafter Plaintiff recorded the Order awarding him the property. Plaintiff contacted PHH seeking to cure the default, but PHH refused to speak to Plaintiff because he was not the bo...

Excerpt: ... Homeowners Association and The Management Trust (collectively "HOA"), the causes of action for (1) negligence (3rd cause of action), (2) trespass (4th cause of action), and (3) private nuisance (5th cause of action). HOA moves to strike portions of Plaintiffs' Complaint concerning the request for award of punitive damages and attorney's fees. "[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer...

Excerpt: ...ice. No formal opposition to this motion was filed. Instead, counsel for DHSO filed a declaration stating that he provided Plaintiff with a check to cover the sanctons. The check was dated September 6, 2023. The declaration also stated that DHSO served further verified responses, without objections, to Demands for Production 1 and 15, and Interrogatory 4.1. The Court finds that DHSO has not complied with the June 28, 2023 order. As to request for...

Excerpt: ...o which portions of the motion is denied. Moving parties move to strike portions of the 3rd, 4th, 5th, 6th, 7th, 8th, 12th, 13th, 14th, 15th, 16th, 18th, 19th, 20th, 21st, 22nd, and 23rd causes of achon in the Second Amended Complaint, arguing that they are predicated on the alleged fraudulent representation made by Defendants regarding River Falls which was a non-existent entity at the tme of Plaintiff's execution of the notes and the related de...

Excerpt: ...Mellon in an unlawful detainer action against Plaintiffs and that all causes of action here arise from that protected conduct. "The ant-SLAPP statute, secton 425.15, allows a court to strike any cause of action that arises from the defendant'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 petit...

Excerpt: ...of the facts constituting the cause 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 851, 872.) Generally, a plaintiff need only plead facts necessary "to acquaint a defendant w...

Excerpt: ..., if applicable, in these causes of action along with liability, defenses, and damages on the remaining cause of action fifth cause of action (fraud or deceit—promissory fraud), including liability for punitive damages, shall be determined in Phase II after the conclusion of the Orr Builders appeal; Phase Ill will involve determination of the amount of punitive damages, if applicable. Defendants move for a stay of this case pending resolution o...

Excerpt: ...ber 3. Defendants assert that the Court should strike these portions of Plaintiff's Complaint because there are no material allegations of fact sufficient to support punitive damages. The Court agrees. Code of Civil Procedure section 436, subdivision (a), provides that a court may "[s]trike out any irrelevant, false, or improper matter inserted in any pleading." In ruling on a motion to strike, the allegations in the complaint are considered in c...

Excerpt: ...sition Subpoena for Personal Ap#arance and Production of Documents and Things issued by Plaintiffs on July 14, 2023, to third-party Victor Monteleone. underwriters brings this motion on the ground that the deposition is untimely as fact discovery has been closed in this case since March 15, 2023, with the original trial date being April 21, 2023. On March 22, 2023 the Parties executed a Stipulation to continue trial until October 2, 2023 ("Stipul...

Excerpt: ...ly identified deficiencies in the first three causes of acton. The Third Amended Complaint still fails to allege a definite oral easement or interference with particular rights. A grant of an oral easement may overcome the statute of frauds if formed by an executed oral agreement. Here, Plaintiffs allege that since the early 1960s, Dunlevie, as the owner, agent, and offcer of the three entities, Desert Bermuda Development Company, Jamaica Sands, ...

Excerpt: .... Castro allegedly convinced Kleczka to purchase The 19th Hole restaurant or contribute funds to do so through an LLC, Castriinilexini, LLC. These are commercial claims that are not secured, and are premised on, among other things, elder abuse allegations. Here, Plaintiff seeks a temporary restraining order and right to attach order. Attachment is a purely statutory remedy by which the property of a defendant is "seized" in advance of trial and j...

Excerpt: ...his Court after a trial on the merits awarded Orr Builders, the general contractor on the Sunniva Project, several million dollars in connection with its mechanic's lien foreclosure action as against Bobs. Bobs appealed on August 3, 2023. A jury trial in the action at bench is set for hearing on September 15, 2023. The basis for the request for stay is that the damages sought by Bobs in this case are partially premised on the damages awarded in t...

Excerpt: ...ied in April. Marshall's wife, Plaintiff Eaton, sued EMC and its alleged administrator, Martin Massiello alleging: (1) dependent adult elder abuse (Welf & Inst. Code 515600, et seq.); (2) Medical Malpractice Survival Action (Code Civ. Proc„ 5377.20); (3) Willful Misconduct; (4) Negligent Infliction of Emotional Distress; and (5) Wrongful Death. Massiello demurrers to the complaint and all causes alleged against him on the basis that fails to st...

Excerpt: ...ing of April 11, 2023 deeming admitted the Defendant's Request for Admissions, Set One. Plaintiff argues that the Court abused its discretion in granting the motion to deem matters admitted, because responses to the Request had been provided and one hour after the hearing Plaintiff "cured the administrative procedural mistake or excusable neglect by having Plaintiff's response verified and served the verified response to Defendant." Plaintiff ass...

Excerpt: ...ent, with a balance of approximately $205,cm. The second mortgage, however, is not current and over $582mo was owed at the time it was foreclosed upon. Defendant Glenhill Asset Management LLC is alleged to be the beneficiary of the note on the second mortgage; Defendant Equity Wave is the loan servicer on the second mortgage. The value of the property allegedly exceeds $1.5 million. Landers alleges that from March 2020 through September 2020 he r...

Excerpt: ... (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.) The burden is on the prevailing party to demonstrate that fees were allowable, reasonably necessary, and in a reasonable amount, "both from the standpoint of time spent and the amount charged." (Warren v Kia Motors Inc. (2018) 30 Cal.App.5th 24, 35-36.) This is consistent with the lodestar calculation, a function of hours reasonably expended multiplied by the reasonable hourly...

Excerpt: ...issued in connection with a loan by hard-money construction lender Bobs to the developer of the Sunniva Campus, a multi-million-dollar warehouse for production and distribution of cannabis and cannabis products. Months after project construction was under way, in March 2018, Bobs originated a $27 million loan to the developer, which was processed through escrow. Defendants Orange Coast Title Company ("OCTCSC") and Real Advantage Title Insurance (...

Excerpt: ...nt on the pleadings has the same function as a general demurrer and the same rules govern except as provided by Code of Civil Procedure secton 438. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Section 438 sets forth the grounds and procedures for the motion. The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts which the court may judicially notce. Secti...

Excerpt: ...ended Complaint fails to specifically plead facts sufficient to support these claims and that both are barred by the economic loss doctrine. 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., 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 o...

Excerpt: ...r, Doe 3, demurrers to the only cause of action against it, for negligent hiring, supervision, and retention. 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., S 425.10.) "[Tlhe 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 no...

Excerpt: ...Lloyds's of ü)ndon Subscribing to Policy No. ACNA8PP1477-04 ("underwriters") moves for summary judgment or, alternatively, adjudication of the three causes of achon pleaded against it for breach of contract, breach of implied covenant of good faith and fair dealing, and negligent misrepresentation, all of which are alleged by Plaintiff Prower. The motion for summary judgment is denied. The motion for summary adjudication is granted as to Issue 3...

Excerpt: ...dant from opposing Plaintiff's claims that Defendant Primoris Services Corporation had possession and control of the vehicle that Defendant Cody Joseph Bryan was operating at the time of the incident on May 30, 2021. Plaintiff also seeks an order establishing that Defendant Primoris Services Corporation knew or should have known that the Defendant Cody Joseph Bryan was incompetent or unfit to drive the vehicle." When reviewing a moton for issue o...

Excerpt: ...he existence of triable 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., 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 achon cannot be established or that there is a complete defen...

Excerpt: ...s to compel arbitration under the Retail Installment Sales Contract that Plaintiff and San Diego Chrysler Dodge Jeep (a nonparty) signed to effectuate the purchase. Crystal 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 inext...

Excerpt: ...Procedure section 435, subdivision (a), provides that a court may "[sltrike out any irrelevant, 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 Complaint. Such a motion lies where the facts alleg...

Excerpt: ...pics identified in the deposition notice. For instance, Burding testified that he looked at five documents to prepare for the deposition, including the preliminary title report and three drafts of the closing instructons given by Bobs before closing of escrow. (Exh. D [25:2-26:181.) He testified that he did not speak to anpne else in preparation for the deposition. (ld. at p. 64:21-25.) He did not take the steps to familiarize himself concerning ...