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...

Excerpt: ...ition to Confirm Contractual Arbitration Award [“Petition”].) The parties participated in a two‐day arbitration, which took place on July 7 and 8, 2022. The result was an arbitration award in favor of Plaintiffs in the total amount of $68,937.75 made on July 26, 2022. (See pg. 50 of Exhibit 8(c) attached to Petition.) The arbitrator also awarded Plaintiffs attorney's Page 3 of 5 fees in the amount of $1,000 in accordance to their lease agre...

Excerpt: ...ition to Confirm Contractual Arbitration Award [“Petition”].) The parties participated in a two‐day arbitration, which took place on July 7 and 8, 2022. The result was an arbitration award in favor of Plaintiffs in the total amount of $68,937.75 made on July 26, 2022. (See pg. 50 of Exhibit 8(c) attached to Petition.) The arbitrator also awarded Plaintiffs attorney's Page 3 of 5 fees in the amount of $1,000 in accordance to their lease agre...

Excerpt: ...ely opinions about Defendant's actions as president of the HOA board and not defamatory. These vague allegations were analyzed in detail in this Court's order denying Defendant's anti‐SLAPP motion, and it appeared at that time that all parties agreed the statements at issue were made in certain emails that were not specifically addressed in the text of the Complaint. It was not clear to the Court at that time that the statements at issue were i...

Excerpt: ...here 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 material facts exists as to that cause of action or ...

Excerpt: ...ute a cause of action against him because, among other things, he is a designated officer of Defendant HomeSmart, and had no other involvement, directly or otherwise, in this case or transaction. Further, Jeppson and HomeSmart argue that there are no allegations in the Complaint pertaining to Jeppson or HomeSmart that would give rise to liability under any cause of action. The Court agrees that the Complaint and causes of action are insufficientl...

Excerpt: ... Goldsmith's vehicle traversed the walkway, it collided with the tables and chairs placed in the walkway, sending them along with the vehicle into the side of the building. One of the tables partially broke through a plate glass window inches from where Plaintiff was seated inside of the restaurant. Defendant Hibl dba Michael's Cafe moves for summary judgment arguing (1) that he did/does not own, operate, possess or control the parking area and t...

Excerpt: ...e common benefit of all co‐tenants. Plaintiffs moved for attorneys' fees and costs of $28,440 and for costs of $1,100. The request is based on 72 hours of attorney work at a rate of $395 per hour. The parties disputed that all work done was for the benefit of all co‐tenants. The Court finds that only some of the work done was for the common benefit of all co‐tenants and will apportion the attorneys' fees and costs as more specifically expla...

Excerpt: ... 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 rate, which may be adjusted to fix a fee at the fair market value of comparable services in the community. (Id.) “Padding” is not subject to compensation. (See Grah...

Excerpt: ...VIP process does not create a binding agreement; (2) the fraud claim is not sufficiently pleaded, and Plaintiff fails to identify any misrepresentation; (3) the third cause of action for false advertising is not supported, and the actual advertisements/pamphlets negate Plaintiff's claim; (4) the fourth cause of action for bait and switch (Bus. & Prof. Code § 17200) is not adequately supported by the referenced advertisements/pamphlets; and (5) t...

Excerpt: ...y of a quitclaim deed dated November 30, 2003 that was not recorded until after this case was filed in 2021. 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 establish...

Excerpt: ...cause of action for trespass to timber. The same causes of action are now alleged in the operative pleading as the third, fourth, and fifth causes of action, respectively. Pintura again demurs to these three causes of action arguing that the previously identified deficiencies have not be remedied and that essentially no new facts have been pleaded to support these causes of action. The Court agrees. To withstand a demurrer the complaint must cont...

Excerpt: ...laintiff Simkins, and that Cross‐Defendants negligently handled the purchase and also took advantage of Kruger, who is 81 years old. Cross‐Defendants demurrer arguing that the three causes of action pleaded are uncertain or insufficiently pleaded because they do not incorporate facts from the underlying complaint and do not show any professional negligence, basis for indemnity, or elder abuse. To withstand a demurrer the complaint must contai...

Excerpt: ... Primoris, and the car he was driving was owned by Defendant HERC, a car rental agency. After conducting initial discovery, Plaintiff dismissed HERC without prejudice. HERC thereafter filed a memorandum of costs, which Plaintiff now moves to strike or tax. A party may move to strike or tax costs per Rules of Court, rule 3.1700, subdivision (b). A verified memorandum of costs is prima facie evidence that costs were necessarily incurred where the c...

Excerpt: ...d into the side of the building. As Goldsmith's vehicle traversed the walkway, it collided with the tables and chairs placed in the walkway, sending them along with the vehicle into the side of the building and through a plate glass window inches from where Plaintiff was seated inside of the restaurant. Defendant Hibl dba Michael's Cafe moves for summary judgment arguing (1) that he did/does not own, operate, possess or control the parking area f...

Excerpt: ... it concerns matters already litigated in the family court. The Court disagrees. 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....

Excerpt: ...ice on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint.” (Rules of Court, rule 3.110(b).) Failure to comply with this rule, however, does not mean that service is not allowed after such period. Rather, the failure to comply...

Excerpt: ... 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 plaintiff need only plead facts necessar...

Excerpt: ... counsel. Prior to the substitution of counsel, the parties timely designated experts on or about January 20, 2022. Plaintiff designated two experts: (1) safety standard of care expert; and (2) fueling station manager expert. Defendants designated a single medical expert. At some point following the substitution of counsel, current defense counsel sought to retain an appropriate rebuttal expert to Plaintiff's safety standard of care expert. Defen...

Excerpt: ...lect. (Id., ¶¶ 17, 20‐22, 29.) Defendant moves to compel arbitration and for a stay of this action based on an arbitration agreement that Gary signed when he was admitted to Manorcare. 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. Ass...

Excerpt: ...rily prescribed period. (Civ. Code, §§ 8412, 8414.) Where the claimant is a direct contractor, 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...

Excerpt: ...self, his deceased wife (Plaintiff's mother), and Plaintiff. He alleges causes of action for fraud, breach of fiduciary duty, and unjust enrichment based on allegations that the “rental payments” were actually intended to cover insurance, mortgage, and taxes on the investment property. The issues addressed in the proposed cross‐complaint are related and intertwined with those addressed in the complaint to the point that they entail compulso...

Excerpt: ...t 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 Page 4 of 7 High School Dist. (2012) 53 Cal.4th 861, 872.) Generally, a plaintiff need only plead f...

Excerpt: ...t issue here in Sadorra's motion for summary adjudication are the 1st and 8th causes of action, for breach of the CC&Rs and injunction, and declaratory relief, respectively. These causes of action pertain to Sadorra's allegations that he was wrongfully denied approval of his plans to install drought‐tolerant landscaping and a six‐foot block wall between his property and Brown's property. Sadorra argues that HOA breached the CC&Rs by failing t...

Excerpt: ...2 are continued to September 29, 2022 at 8:30 a.m., and will be heard on that date if the issues presented are not resolved by the Informal Discovery Conference. The Trial Setting Conference and Order to Show Cause set for hearing on September 13, 2022 at 8:30 a.m. are continued to September 29, 2022 at 8:30 a.m. The OSCs are returnable to this department under Local Rule 3116. In order to conduct the Informal Discovery Conference, the Court orde...

Excerpt: ...a one paragraph document from Heath Hilgenberg, president of Defendant Hilgenberg Realty, addressed to the Plaintiff's President, Jeff MacLean. The letter states in its entirety: We would like to submit a letter of intent regarding our commitment to sign additional PureDMS, Inc./Pure Community Systems contracts with our Keller Williams offices in Redlands, CA and our Big Bear Lake and Lake Arrowhead offices in CA. We intent [sic.] to launch our c...

Excerpt: ...plaint 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 plaintiff need only plead fac...

Excerpt: ... La Laja Boys, also received a yellow caution card for misbehavior. All of this happened in the last 15 minutes of the game. After the whistle blew, Emilio Caro, the goalie, attacked Salmon who was running towards the middle of the field. Salmon was seriously injured. In her Complaint, Salmon alleges three causes of action, for (1) assault and battery as against Caro, (2) vicarious liability/ratification of the assault and battery and negligence ...

Excerpt: ...473(b). It asserts that the only reason its pleadings were stricken was because it was suspended by the Franchise Tax Board and that, because of the pandemic there was a significant delay in getting reinstated. The motion under Section 473 is untimely; it was filed well outside of the 6‐month deadline. That said, the Court finds that Quadrow has established an equitable basis for relief. A court may set aside a default on equitable grounds wher...

Excerpt: ...ing at the Palm Springs Courthouse (there is no fee to park at the Palm Springs Courthouse). Under Civil Code section 1794, the court must make an initial determination as to the actual time expended and then ascertain whether that time, and the monetary charge for that time, are reasonable. (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, reasonab...

Excerpt: ...y on Pansy Street in the City of Indio (the “Property”). (CC, ¶ 13.) On September 30, 2014, title was transferred to Plaintiff and Decedent as joint tenants. (CC, ¶ 14.) In November 2014, Decedent had Plaintiff sign documents (which Plaintiff could not read), telling him that it was necessary to update his banking information; however, the document signed was a grant deed that transferred title to the Property to Decedent as sole owner. (CC...

Excerpt: ... Defendant Jack Jennings. The lease was guaranteed by Jennings and Defendant Charles Biehl. Manage Control assigned its lease to Defendant Lunas Pizza Bar and Grill. The Lunas Pizza lease, as assigned, was guaranteed by Defendants Jorge Luna and Gustavo Luna. Plaintiff alleges in its Complaint that Defendants breached their lease obligations, specifically that Lunas Pizza Bar and Grill stopped paying rent and also removed property improperly from...

Excerpt: ...ises liability, and loss of consortium. Specifically, it demurrers to the first and second causes of action for negligence and premises liability asserting that these causes of action are uncertain because they do not specify where precisely Plaintiff Lucas fell or what he fell on. 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.,...

Excerpt: ...firmative defense, in the form of an unsigned 2017 declaration by Larry White, and that it did not proffer this declaration in opposition to the motion for summary judgment/adjudication because Plaintiff failed to properly raise arguments relating to Insurance Code section 381. This argument is not well taken. Under Code of Civil Procedure section 1008, a party may by timely motion seek reconsideration of an order based upon new or different fact...

Excerpt: ...hat Anaya 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, or that Anaya should be estopped from asserting that it may not enforce the agreement. 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 Ar...

Excerpt: ...ed on the proffered and unopposed evidence, the Court granted a temporary restraining order prohibiting Defendant Harris from transferring, encumbering, or otherwise committing waste or diminishing the value of the vehicle at issue here, but denied the request for possession. The Court hereby dissolves the temporary restraining order and enters in its place a preliminary injunction prohibiting Defendant from transferring, encumbering, or disposin...

Excerpt: ...Plaintiffs each have a 33 1/3 interest in the property, that there are no other parties who have an interest in the property, and that the property should be sold by partition. Instead, Defendant asserts that the Court cannot grant summary judgment because there are specific orders that the Court must make related to the selection of the real estate broker who will list the property, Defendant's ability to participate in the acceptance of a reaso...

Excerpt: ... goalie for one of the teams, the La Laja Boys, also received a yellow caution card for misbehavior. All of this happened in the last 15 minutes of the game. After the whistle blew, Emilio Caro, the goalie, attacked Salmon who was running towards the middle of the field. Salmon was seriously injured. In her Complaint, Salmon alleges three causes of action, for (1) assault and battery as against Caro, (2) vicarious liability/ratification of the as...

Excerpt: ...table subordination), and 10th (constructive trust) causes of action, otherwise overruled. Plaintiff Key's First Amended Complaint alleges that it performed maintenance and landscaping work at a golf course and that it was not paid for its services. It alleges a complicated series of transactions and shell companies were utilized by demurring defendant Cushman and others to ensure that Key would not be paid, even on express written agreements int...

Excerpt: ...alse, 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 alleged in a pleading do not rise to the level of “malice, fraud or oppression” required to supp...

Excerpt: ...037). (Petition, ¶ 6; Amended Administrative Record filed March 8, 2021 (“AR”) 047‐055, 066‐075.) On February 16, 2021, Petitioner filed two written appeals of the citations and paid the requisite fees for a hearing. (Petition, ¶ 7; AR 077‐083.) In late February 2021, Officer Molina sent Petitioner a notice of hearing (which Petitioner alleges did not comply with Cathedral City Municipal Code (“CCMC”) § 13.100.040). (Petition, ¶...

Excerpt: ... habitability, negligence, nuisance, and breach of covenant of quiet enjoyment. Among other things, Plaintiffs pray for punitive damages. Defendants move to strike punitive and exemplary damages from the Complaint. Under Code of Civil Procedure section 436, subdivision (a), a court may upon motion strike out any irrelevant, false, or improper matter in a pleading. In ruling on a motion to strike, the allegations in the complaint are considered in...

Excerpt: ...sion and replevin. The Court sustained the demurrer without leave as to the fourth cause of action for replevin, and otherwise overruled the demurrer. The remaining causes of action are for breach of contract, common counts, and conversion. King's Garden now moves to strike Scorpion's request for statutory penalties under Civil Code sections 8800 and 8818 on the ground that such penalties are only available for the improper withholding of progres...

Excerpt: ...‐ approval for a loan and proof of financial evidence and once his turn to purchase property came up on a VIP/waiting list. It further alleges that in March 2022, Lennar revoked its promise and sold houses in its development to the highest bidders. Lennar demurrers to these causes of action alleging that they are uncertain or not pleaded with the required specificity. To withstand a demurrer the complaint must contain “a statement of the fact...