Excerpt: ... demurrer determines a legal issue on the basis of assumed facts, i.e., all those material, issuable facts properly pleaded in the complaint, regardless of whether they ultimately prove to be true.” (State of California ex rel. Bowen v. Bank of America Corp. (2005) 126 Cal. App. 4th 225, 240.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form pa...

Excerpt: ...sks the court to not take judicial notice of this document because the parties adamantly dispute the proper interpretation of the June 18, 2016, claim. Plaintiff argues since the proper interpretation is contested, it is not “reasonably beyond dispute” and not suitable for judicial notice. Importantly, Defendants do not ask the court to take judicial notice of a specific interpretation of the Claim. The court can take judicial notice of the e...

Excerpt: ...ils to support either objection with sufficient evidence. For example, GM attaches the declaration of a design engineer for GM (Huizhen Lu) who generally states that such designs and engineering are trade secrets. However, the declaration fails to specify the manner in which the particular discovery in this matter involves the genericallydescribed design and engineering trade secrets he identifies. The reply points out that the declaration is fro...

Excerpt: ... action earlier because he did not know of the applicability of these causes of action as a pro per litigant. (Singh Dec., ¶4.) He indicates that he met with an attorney who informed him of the nexus between the claims and Aryal's alleged bad acts. (Id at ¶3.) Generally, the court should grant leave to amend the complaint where the party has a good cause of action which he has accidentally or mistakenly failed to raise in the complaint. (Higgin...

Excerpt: ... an official act of the executive, judicial or legislative departments of the state of New York, and thus of document that could be judicially noticed (Evid. Code, § 452, subd. (c)), it is not relevant to this motion. The request is denied on that basis. To the extent that the plaintiff relies upon it to establish the defendant's “own internal policies” (Oppo., p. 3), those policies are not subject to judicial notice. The declaration of Le m...

Excerpt: ...for an order shortening time. Defendant then filed objections to remote jury trial and a renewed request to continue trial. First, the court points out that while the amended trial setting order informs the parties that the matter may need to proceed remotely, that decision is made on the basis of the circumstances in existence at the time of trial. In‐ Person Jury Trials Defendant's unopposed motion argued that a jury trial conducted remotely ...

Excerpt: ... is a nuisance under Civil Code section 3479, which defines a nuisance as “[a]nything which is injurious to health…so as to interfere with the comfortable enjoyment of life or property….” (Complaint, ¶ 112.) A nuisance may be either private or public. A public nuisance is “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflict...

Excerpt: ...er based on uncertainty should be overruled Defendants argue the complaint is uncertain because plaintiff uses the terms “advances” and “loans” interchangeably within the pleading without explaining the difference. As noted above, a demurrer based on uncertainty must be so uncertain as to make it impossible for defendant to respond. (See Khoury, supra, at p. 616.) The demurrer based on uncertainty is rejected because there is nothing unce...

Excerpt: ... he had knowledge of the concealed fact; and (5) the plaintiff sustained damages as a result of the concealment. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) A claim for fraudulent concealment can be based on facts known only to a defendant, defendant knows plaintiff does not know these facts and cannot reasonably discover them, and where the defendant actively conceals discovery from plaintiff. (Warner Con...

Excerpt: ...ment v. Alegra (2009) 177 Cal.App.4th 1277, 1294). Although some effort is required in all instances, the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. (Id.) Defendant complains that Plaintiffs sent a meet and confer letter at the last minute, only 8 days before the deadline to file a motion to compel, showing bad faith. Plaintiffs accuse Defendant of dumping documents on ...

Excerpt: ...on. To assure uniform results as to arbitrability of disputes subject to the FAA, conflicting state law is preempted under the Supremacy Clause. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 352.) The FAA has been held to preempt a variety of types of employment disputes subject to arbitration agreements, e.g., Cal. Labor Code, §229 which authorizes lawsuits for unpaid wages “without regard to the existence of any private agreement to ...

Excerpt: ...ately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.) Although Defendants ...

Excerpt: ...ted in such documents is not subject to judicial notice. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471.) Pursuant to Corps. Code §1304, Plaintiff asks the court “to determine or appoint one or more impartial appraisers to determine the fair market value of Plaintiff's dissenting share.” (Comp. ¶46; Prayer ¶¶12‐15.) Defendant RPN asserts an affirmative defense to this cause of action under Corps. Code §310, whi...

Excerpt: ... may be awarded in the action or special proceeding. For the purposes of this section, ‘attorney's fees' means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract.” C.C.P. § 1030(a). In the motion, the defendant must show that the plaintiff resides out of the state and that there is a reasonable possibility that it will obtain judgment in the action. The majority of Plaintiff's ...

Excerpt: ...05, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. Tri‐City Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) If judicially noticeable records disclose an absolute defense to the action or deficiency in the complaint, the matter can be adjudicated at the demurrer hearing. (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 192.) Defamation/Public Disclo...

Excerpt: ... Plaintiff or issued by the court. The court takes judicial notice pursuant to Evidence Code Sections 452© and (d)(1) as requested by Defendant, specially appearing, as to the following: 1. Notice of Determination dated June 3, 2020, for the Legado project, issued by the City of Menifee. 2. Notice of Determination dated June 17, 2020, for the Legado project issued by the City of Menifee. 3. The Case Report for Case No. RIC 2003534. 4. The compla...

Excerpt: ...1; 4. Judge Harmon's ruling on the demurrer dated January 22, 2021; and 5. Declaration of Tom Macomber submitted in support of Plaintiff's Opposition to Defendant's Ex Parte Application for an Order Relating Cases dated February 12, 2021. The court takes judicial notice of these documents under Evidence Code §452(d). Grant. II. Evidentiary Objections to Verified Complaint Defendants object to the complaint verified by Tom Macomber, President of ...

Excerpt: ...471, 487.) Pursuant to Cal. Rules of Court, Rule 3.1324(a), a motion to amend a pleading before trial must include a copy of the proposed amended pleading, which must be serially numbered to differentiate it from previous pleadings and must state what allegations are to be added or deleted. (CRC 3.1324(a)(1)‐(3).) The motion must also be supported by a separate declaration. The declaration must specify: (1) the effect of the amendment; (2) why ...

Excerpt: ... for relief: (1) irregularity in the proceedings, or any order of the court which prevented a party from a fair trial; (2) jury misconduct; (3) accident or surprise; (4) newly discovered evidence which could not have been discovered with reasonable diligence at trial; (5) excessive or inadequate damages; (6) insufficiency of the evidence to justify the verdict; and (7) error in law. (CCP § 657.) Here, Plaintiff seeks relief under subdivision (1)...

Excerpt: ... have acted had she or he had knowledge of the concealed fact; and (5) the plaintiff sustained damages as a result of the concealment. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) A claim for fraudulent concealment can be based on facts known only to a defendant, defendant knows plaintiff does not know these facts and cannot reasonably discover them, and where the defendant actively conceals discovery from ...

Excerpt: ...y attached to the Complaint. Defendants challenge the first cause of action under Code of Civil Procedure section 430.10(g) for failure to state whether the contract is written or oral. Defendants are correct. Plaintiff's complaint refers to an Exhibit C, but no such exhibit is attached to the complaint. Defendants are also correct that the first cause of action fails to state the terms of the contract, so it fails to state facts sufficient to co...

Excerpt: ...for 42 days during repairs before being returned to Plaintiff. All warranty periods on goods selling for $50 or more are tolled, from the date the buyer delivers the goods for warranty repairs or notifies the manufacturer or seller of their nonconformity until the date the repaired or serviced goods are returned or made available to the buyer. (Civ. Code, §1795.6(a).) This means each time the vehicle was kept at the repair facility for service, ...

Excerpt: ...of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. . . . If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only.” A stay must be granted “where a court of competent jurisdiction (in California or elsewhere) has already ordered arbitratio...

Excerpt: ...Avenue owns the adjacent development parcel. On 10/12/16, BH Avenue and Defendant Chick‐Fil‐A entered into a lease. On 2/2/18, Plaintiffs entered into a Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements to govern the development, subdivision, etc. of the property; Defendant is identified as an intended third party beneficiary. The Declaration provides for non‐exclusive perpetual easements appurtenant. BH Central wo...

Excerpt: ... work commenced on February 11, 2016. On March 12, 2016, the loan which was secured by the Project was recorded. Plaintiff alleges that the Project was nearly complete when Harris stopped paying Plaintiff, after which Plaintiff Page 9 of 11 ceased further work. On March 21, 2019, Plaintiff recorded two mechanic's lien (“Liens”) against the Project for $428,485 and $517,935. On February 3, 2020, Plaintiff filed the Complaint. After meeting and...