Excerpt: ...ion by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal. 3d 120,125.) The court Page 3 of 3 assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demu...

Excerpt: ...standing to bring the action, has an actual and substantial interest and stands to the benefited or injured by a judgment in the action. (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 525.) The present action identifies Gage as the real party in interest. Gage argues that the allegations of the FAC do not identify any action or wrongdoing on the part of Gage or by the board of directors; instead, the allegations are that the City misused its...

Excerpt: ...il where he spent 52 days in custody. When the sheriff's department booked him into custody, they incorrectly entered his civil violation in their database as a felony charge and then reported that inaccurate charge to the CA Department of Justice, creating a false criminal record for Roger. Page 4 of 10 Roger then brought suit against Defendants County of Riverside, Riverside County Sheriff's Department, and Stanley Sniff (“Defendants”) alle...

Excerpt: ...ch may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a re...

Excerpt: ... acts are not within the scope of employment and the alleged ratification of the acts does not impose liability for such acts. “Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815, subd. (a).); McAllister v. Los Angeles Unified School District (2013) 216 Cal.App.4th 1198,...

Excerpt: ...of action for breach of lease. Defendants have filed this demurrer. They argue the merits of the case and provide a declaration and exhibits to support their contentions. In opposition, Plaintiff argues that Defendants are improperly arguing the merits of their defenses in this matter, instead of attacking any defects in the actual pleading. It asserts that Defendants cannot go beyond the scope of the pleading in bringing this motion. As such, De...

Excerpt: ... Moss, Inc. (“Moss”) has also been named as a defendant. The complaint contains no specific allegations regarding Moss. The complaint contains the following causes of action: (1) violation of the Song‐Beverly Act – breach of express warranty, and (2) violation of the Song‐Beverly Act – breach of implied warranty. Moss and FCA both bring separate motions to compel Plaintiffs to arbitration. They argue that under the Plaintiffs' retail ...

Excerpt: ...for her causing her to fall and sustain severe and permanent injuries. Plaintiff filed her Complaint on 7/1/19 alleging a single cause of action for medical malpractice. *** Defendant, Ivy, brings this motion for summary judgment on the ground that there is no triable issue of material fact. (CCP §437c.) Ivy asserts that it cannot be liable for medical treatment provided to Plaintiff at a facility that was not owned, possessed, nor controlled by...

Excerpt: ...tion, including actions seeking reimbursement. (Sparks v. Kern County Bd. of Supervisors (2009) 173 Cal.App.4th 794, 798; see also City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 743 [“When a claim for ‘money or damages' is not based on a governmental obligation to return specific property, it is subject to the claim requirements].) Importantly, a plaintiff must allege facts demonstrating or excusing compliance with the claim's pres...

Excerpt: ...he realized that two phones had been charged to her account without her knowledge, and that she had been paying for the unauthorized phones, she requested a refund of the money she had already paid and removal of the unauthorized phones. Instead, defendant refused to repay her or remove the unauthorized phones, demanding she pay for them. Then, while the dispute was ongoing, a third phone was charged to her account without her knowledge. Plaintif...

Excerpt: ...County); County of Riverside Department of Public Social Services, Children's Services Division (DPSS); Morris Small Family Home (Morris Home); Lifeplan Children's Services, Inc. (Lifeplan); Michelle Morris Kerin (Michelle Kerin); and Edward Lawrence Kerin (Edward Kerin). Plaintiffs bring this action on behalf of themselves and the Estate of Diane Ramirez. Plaintiffs allege that the decedent was placed by the County and DPSS under the care of Mic...

Excerpt: ...t liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.” (Dunzweiler v. Superior Court (1968) 267 Cal.App.2d 569, 576). Courts will not ordinarily consider the validity of the proposed amended pleading in deciding whether to grant a motion for leave to amend [see Kittredge Sports Co. v. Superior Court, ...

Excerpt: ...ntext. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or la...

Excerpt: ...ners of certain property in Corona, California (the “Property”). (Complaint, ¶¶ 8‐9.) On or about May 28, 2013, Defendants obtained a Home Energy Renovation Opportunity loan (“HERO Loan”) from Western Riverside Council of Governments (“WRCOG”) in the principal amount of $27,651.81, and the HERO Loan was secured by a Payment of Contractual Assessment Required and Notice of Assessment recorded against the Property on June 18, 2013. ...

Excerpt: ...nt, this Court granted Defendants' motion for summary judgment on May 25, 2021. Judgment was entered on June 21, 2021, and Notice of Entry of Judgment was filed and served on June 25, 2021. Page 3 of 3 Prior to judgment being entered, Plaintiff filed the instant motion under CCP § 1008 for reconsideration and/or renewal of Plaintiff's oral motion at the hearing for leave to amend the complaint. Once judgment has been entered, the trial court lac...

Excerpt: ... Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. Based on the facts set forth in the first amended complaint, Plaintiff could be asserting a dental malpractice cause of action or medical battery cause of action. However, Defendants only argue the first amended complaint fails because it does not set forth facts...

Excerpt: ...he amended allegations were discovered, and (4) The reasons why the request for amendment was not made earlier.” C.R.C. 3.1324(b). Since judicial policy favors the resolution of all disputed matters between the parties in the same lawsuit, the court's discretion will usually be exercised to permit amendment of pleadings. “[T]here has developed in this state a policy of great liberality in allowing amendments at any stage of the proceeding so ...

Excerpt: ...are deemed essential to protect against unreasonable examinations and to safeguard the examinee's bodily and mental privacy and other constitutional rights. (Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 343.) In addition, and ostensibly for the same purpose, the court in its order must set forth certain details of the examination: “An order granting a physical or mental examination shall specify the person or persons who may perform the e...

Excerpt: ...roup (1996) 48 Cal. App. 4th 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 effe...

Excerpt: ...wings & Merrill LLP (2014) 59 Cal. 4th 568, 573 [quoting United States Liab. Ins. Co. v. Haidinger‐Hayes, Inc. (1970) 1 Cal.3d 586, 594] [internal quotation marks omitted]. See also Hayes v. County of San Diego (2013) 57 Cal. 4th 622, 629 [to support a finding of negligence, a plaintiff must show that the defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injur...

Excerpt: ... action for fraud based on concealment are: (1) The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed ...

Excerpt: ...te), secured by her then‐owned property at 29026 Barcelona Court in Moreno Valley. Plaintiff alleges the HELOC was junior in priority to a senior debt on the property in favor of Wells Fargo Bank, N.A. The senior loan foreclosed and title was transferred on 2/17/2011. As a result, plaintiff alleges, the HELOC became a sold‐out junior loan. Plaintiff alleges the Note was assigned from National City Bank to other entities and finally to plainti...

Excerpt: ... pecuniary loss.” (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.). “[T]he recording or a document making a false claim to real property may constitute the publication of the disparaging matter requisite for a cause of action of slander of title.” (Forte v. Nolfi (1972) 25 Cal.App.3d 656, 685.) Here a publication was alleged in the Complaint based on the recorded second deed of trust in favor of Chen Jinping...

Excerpt: ...plead allegations of fraud, malice, or oppression with sufficient particularity. (Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374, 392.) Generally, claims for punitive damages must be pleaded with particularity as to the facts constituting the alleged egregious conduct. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) However, the court may read the complaint as a whole so that conclusory allegations may be sufficient when ...

Excerpt: ...rsity of California (1990) 51 Cal. 3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company ...

Excerpt: ...use is shown that such an order is necessary to protect the party or deponent from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. C.C.P. § 2025.420(b). A protective order regarding special interrogatories and requests for production can be granted on the same grounds. C.C.P. §§ 2030.090(b); 2031. 060(b). Generally, the party moving for a protective order has the burden of showing the protective order is warrante...

Excerpt: ...Order granting McShane Development Holdings Corp.'s motion to quash; and (6) this court's 5/17/21 Minute Order granting McShane Construction Holdings Corp.'s motion to quash. Though these documents are court records subject to judicial notice under Evidence Code §452(d) and records of the Secretary of State subject to judicial notice under §452(c), they are not relevant or necessary to the Court's analysis. (See Jordache Enterprises, Inc. v. Br...

Excerpt: ... in the ASC Action (Exhibits 10‐ 12); the original form complaint filed in this action (Exhibit 14); and Defendants' answer to the FAC (Exhibit 27). The request is granted in its entirety. (Evid. Code § 452(d).) (The referenced exhibits are contained within the D Exhibits.) B. Plaintiffs' Request Plaintiffs' request that the court take judicial notice of the ASC Complaint (Exhibit A), and the Order re Preliminary Injunction issued in ASC Actio...

Excerpt: ...because she does not provide evidence of a reasonable probability of success. To the contrary, the Sellers' opposition demonstrates that the probability of success weighs in their favor. For purposes of the preliminary injunction, the Sellers are only required to demonstrate that plaintiff is unable to meet her burden to show a reasonable probability of success. Plaintiff's declaration contended that the Sellers and their agent defendant Bock adv...

Excerpt: ...formal order. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) Whether a “reasonable and good faith attempt” was made requires an “evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appears likely to bear fruit.” (Clement v. Alegra (2009) 177 Cal.App.4th 1277, 1294.) The level of effort at informal resolution which satisfies the 'reason...

Excerpt: ...ahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002‐1003.) “The moving party bears the burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) Once this burden has been met, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.) ...

Excerpt: ...press the intention of the parties through fraud. Civil Code §3399 states: “When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third person...

Excerpt: ...ce (against all); (2) negligent supervision (against all); (3) negligent hiring/retention (against all); (4) negligent failure to warn train or educate (against all); (5) constructive fraud (Civil Code §1573) (against all); (6) breach of fiduciary duty (against all); (7) intentional infliction of emotional distress (against all); (8) sexual harassment (Civil Code §51.9) (against all); (9) sexual abuse and harassment in the educational environme...

Excerpt: ...ra Surgery Center. The surgeon was defendant Mark Berman; the anesthesiologist was defendant Craig Rosenblum. Plaintiff alleges that she was administered the wrong general anesthesia before surgery, while still in a waiting room, and then was instructed to walk into the operating room, where she lost consciousness and fell. Dr. Rosenblum, the anesthesiologist, previously moved to require plaintiff to post an undertaking, claiming that plaintiff l...

Excerpt: ...nwide. Plaintiffs allege that their injuries exceed the policy limit of $25,000 for personal injury. (Complaint, ¶79.) Plaintiffs allege that Nationwide, in bad faith, has refused to tender the policy limits to Plaintiffs unless both of them agree to hold the insured defendants harmless for any damages above the policy limits. (Complaint, ¶83.) Plaintiffs allege that Nationwide has a legal obligation to tender the policy limit, regardless of Pl...

Excerpt: ...Technologies Corporation (“UTC”), Page 5 of 13 and Goodrich Corporation (“Goodrich”) (collectively “Defendants”) as a Human Resources Generalist Manager when he was wrongfully terminated on March 26, 2019, after 32 years of service. (Complaint, ¶ 13.) On that day, his supervisors Zer Moua (formerly Zer Kha)(“Moua”), Director of Human Resources (“Moua”), and Toni Busby, Associate Director of Human Resources (“Busby”) told ...

Excerpt: ... of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) If the complaint fails to state a cause of actio...

Excerpt: ...de the locker room in order to intimidate and spout profanities at Plaintiff while he exited. The SAC further alleges Moore's response to the bullying complaints was to have Plaintiff use a further separate bathroom from Matthew. Plaintiff alleges that Defendants are aware Plaintiff is autistic and has a condition that requires a bathroom be close in order to avoid an accident. On 9/11/19, Plaintiff alleges that Matthew reported to Moore that Pla...

Excerpt: ...s entirety. (Triodyne, Inc. v. Superior Court (1966) 240 Cal. App. 2d. 536, 542.) When ruling on a motion to strike, the allegations of the pleading are assumed to be true and read in their context. (Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.) A pleading is to be liberally construed. (CLD Construction v. City of Ramon (2004) 120 Cal. App. 4th 1141, 1146.) The grounds for the motion must appear on the face of the pleading or fro...

Excerpt: ...ould resolve the objections to be raised in the demurrer.” (emphasis added). CCP § 430.41(a) provides, in pertinent part, that “Before filing a demurrer pursuant to this chapter, the 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.�...

Excerpt: ...ts issued by or under the authority of the United States or any public entity in the United States. However, only relevant evidence is admissible by judicial notice. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135, fn. 1. Plaintiff has not asserted any causes of action based on violations of the residential care community code. Nor are there any claims for negligence or premises liability. Therefore, the documents are not relevant and judicial not...

Excerpt: ...pter 7 bankruptcy petition and order confirming the award. Evidence Code §452(d) provides for judicial notice of court records. In general, the court can take judicial notice of the records in the pending action, or in any other action pending in the same court or any other court of record in the U.S. (Evid. Code § 452(d).) But, judicial notice of other court records and files is limited to matters that are indisputably true. This generally mea...

Excerpt: ...ing or from any matter of which the court is required to take judicial notice. (Cal. Civ. Pro. §437.) A motion to strike is the proper vehicle to attack a punitive damages claim. (Cal. Code Civ. Pro. §§ 435‐436; Truman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) Plaintiffs may recover exemplary or punitive damages where it is proven that “the defendant has been guilty of oppression, fraud or malice.” (Cal. Ci...

Excerpt: ...deposition or a motion for protective order. There remains some confusion over exactly which issues remain in dispute. For example, it appears as though GM is willing to produce witness(es) for Categories 1, 2, 5‐12, 18‐25, with a limitation as to scope for some of the Categories. However, GM still provides a lengthy opposition in its separate statement regarding each of the categories, but states at the end of the opposition for each of the ...

Excerpt: ...) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713.) Facts appearing in...

Excerpt: ...50.) A defendant has met his or her burden under CCP §437c(p)(2) of showing Page 3 of 8 a cause of action has no merit if that party has shown that one or more of the elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. Once that burden has been met, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of material fact exists. (CCP § 437c(p)...

Excerpt: ... referred to as the “State”). On June 23, 2019, Plaintiff was driving a motorcycle on westbound Highway 74 (Ortega Highway) near Lake Elsinore with his fiancée, Tina Coats, as a passenger. (FAC, p. 5.) Employees of the CHP and Cal Fire were investigating an earlier accident and managing the collision site. (Ibid.) The collision, coupled with the investigation caused the westbound traffic to back up, and Plaintiff stopped his motorcycle short...

Excerpt: ...ue exists as to any material fact and the defendant is entitled to a judgment as a matter of law.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002‐1003.) “The moving party bears the burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) Once this burden has been met, the burden shifts to the oppo...

Excerpt: ...ny property acquired as a result of those skills efforts, labor, and earning with plaintiff.” (Second Amended Complaint, ¶ 3.) On 11/16/19, Defendant ended the relationship with Plaintiff and moved out. Plaintiff contends that he has asked for an accounting of all assets that were accumulated while they lived together and that said assets be split. Defendant has refused to do so. The second amended complaint is titled “complaint for damages ...

Excerpt: ...rn signal. Plaintiff alleges defendant FCA US, LLC's (“FCA”) authorized dealerships were unable to properly repair the vehicle, thereafter denying plaintiff's request for repurchase of the vehicle. The complaint states the following causes of action: 1. Breach of Implied Warranty; 2. Breach of Express Warranty. The present motion is a motion for summary judgment/adjudication brought by FCA on plaintiff's complaint. FCA argues that plaintiff c...

Excerpt: ... managed by defendants Lowe's Home Centers, LLC (“Lowe's”) and Pacific Castle Management, Inc. (“Pacific Castle”). Plaintiff alleges the wet floor created a slipping hazard, and defendants allowed the dangerous condition to be created by failing to inspect, maintain or warn of the condition. Plaintiff alleges that defendants Tyler Anderson (“Anderson”) and Mathew O'Neal (“O'Neal”), employees of Lowe's, negligently moved Plaintiff ...

Excerpt: ...judgment may be void as a matter of law for many reasons, including lack of or improper service. Lovato v. Santa Fe Int'l Corp. (1984) 151 Cal.App.3d 549, 553‐554. A two‐year outer time limit is set for motions seeking to set aside default under C.C.P. § 473(d), based on improper service. Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180. C.C.P. § 473.5 applies when “service of summons has not resulted in actual notice to a party in time...

Excerpt: ...e Summit Drive property is granted. The court may take judicial notice of the existence of recorded documents and their legal effect. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐18; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754‐55.) II. The Motion is Denied A party may file a motion to quash service of summons on the grounds of lack of jurisdiction under CCP § 418.10(a). Fu...

Excerpt: ...n July 16, 2018, Plaintiff went to Defendant for cataract extraction with intraocular lens implant in her right eye. Defendant opened Plaintiff's right eye to remove the cataract, but there were complications during surgery and she could not remove all of it. Plaintiff was instructed to return in three months. (FAC, ¶¶ 10‐13.) On November 12, 2018, Plaintiff returned to have Defendant implant a posterior chamber intraocular lens in her right ...

Excerpt: ...of the evidence that all necessary jurisdictional criteria are met. (Jewish Defense Org. v. Superior Court (1999) 72 Cal.App.4th 1045, 1054‐55.) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. (Id. at 1055.) Once a plaintiff meets his burden, the defendant has the burden to demonstrate that the exercise of jurisdiction is unreasonable. (Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362.) The ...

Excerpt: ...ration unnecessary or create conflicting rulings on common issues. (CCP § 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/motion 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...

Excerpt: ...losing, including notifying the borrower of alternative debt relief procedures. (See Civ. Code, § 2923.55(b)(2) [requiring mortgage servicer to “assess the borrower's financial situation and explore options for the borrower to avoid foreclosure.”] The requirements of section 2923.55(b)(2) apply only to first lien mortgages or deeds of trust on owner occupied residential property. (Civ. Code §§ 2924.15, 2923.55.) Plaintiff alleges in her co...

Excerpt: ...ing of sever or extreme emotional distress; and (3) actual and proximate cause resulting from the conduct. (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050‐51). “A defendant's conduct is ‘outrageous' when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.'” (Id. at 1050 [quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001]). In order to avoid a demurrer, the plaintiff must all...

Excerpt: ... Claimants Trust (1996) 48 Cal.App.4th 976, 978‐979.) The moving party needs to show that the issues in each case are basically the same and that economy and convenience would be served by consolidation. (Id.) Consolidation is proper where there is no risk of undue confusion and prejudice. (Id. at 980.) The unlawful detainer procedures “provide an adequate, expeditious and summary procedure for regaining possession of real property wrongfully...

Excerpt: ...Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. First Cause of Action Wrongful Death – Negligence, Violations of Penal Code § 245.6, Civil Code §§ 43 and 52.1, Assault and Battery, Negligent Hiring, Supervision and Retention: “In California, all government tort liability must be based on statute.” Bece...

Excerpt: ...subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) Evidence Code §452(d) provides for judicial notice of court records. In general, the court can take judicial notice of the records in the pending action, or in any other action pending in the same court or any other court of record in the U.S. (Evid. Code §452(d).) But, judicial notice of o...

Excerpt: ...from a traditional lender, then rehab the homes with loans from private investors, and sell the homes for profit. Plaintiff alleges that Justin Tye represented to their grandparents that investments into the business were loans and not joint venture interests and that the investor would receive a fixed rate of 15 percent interest on profitable projects, with the investors paid in full regardless of whether the project lost money. Plaintiff allege...

Excerpt: ...1994) 8 Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. First Cause of Action for Breach of Written Contract: A breach of contract cause of action requires: (1) a contract between the parties, (2) performance by plaintiff or excuse from performance, (3) breach by the defendant, and (4) damages. Oasis West Realt...

Excerpt: ... (Magpali v. Farmers Group (1996) 48 Cal. App. 4th 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...

Excerpt: ...aunders v. Cariss (1990) 224 Cal.App.3d 905, 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. TriCity Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) The complaint must be construed liberally… with a view to substantial justice between the parties.” (CCP § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) If the complaint fails to state a c...

Excerpt: ...� 0899792, (3) Assignment of Deed of Trust recorded on October 13, 2019, (4) Substitution of Trustee recorded on August 27, 2020, (5) Notice of Default and Election to Sell recorded on August 27, 2020, and (6) Substitution of Trustee recorded on November 5, 2020. Recorded documents may be judicially noticed pursuant to Evid. Code §452(h). Generally, a court may take judicial notice of the fact of a document's recordation, the date it was recorde...

Excerpt: ...al facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713.) If the complaint fails to state a cause of action, the court mus...

Excerpt: ...ure to proceed with the deposition is not well grounded in both law and fact. Oaks cites to no authority which supports his contention that plaintiff should have proceeded with his deposition even though there was a dispute with his counsel regarding the deposition of Donald Oaks. Instead of wasting time to complete the deposition of Donald Oaks and commence the deposition of Brian Oaks, under conditions which plaintiff's counsel believed impeded...

Excerpt: ...435; Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 40.) As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (CCP § 437(a).) “[T]he court treats as true the material facts alleged in the complaint, as well as any facts which may be implied or inferred from those expressly alleged.” (Washington Int'l Ins. Co. v. Superi...

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: ...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: ... 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: ... 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...

Excerpt: ... cause of action on the grounds that they fail to state facts sufficient. For the warranty claims, it argues Plaintiffs have not pled the contract terms. For the concealment claim, it argues it is not pled with specificity as there are no allegations as to knowledge as to this specific car. There are no allegations that he saw any brochures, and there is no duty to disclose. It argues the economic loss rule applies. Plaintiffs contend that this i...

Excerpt: ..., or alternatively to, stay the pending action on the grounds a valid arbitration agreement (“Agreement”) exists between the parties, and Plaintiff's claims are of the type which are covered under the Agreement. In the Motion to Compel Arbitration (“Motion”), Defendant argues that Plaintiff agreed to arbitrate all claims asserted in the Complaint, and the agreement is enforceable both under the Federal Arbitration Act and California Law, ...

Excerpt: ...ab the homes with loans from private investors, and sell the homes for profit. Plaintiff alleges that Justin Tye represented to their grandparents that investments into the business were loans and not joint venture interests and that the investor would receive a fixed rate of 15 percent interest on profitable projects, with the investors paid in full regardless of whether the project lost money. Plaintiff alleges these representations were made t...

Excerpt: ...endants have been evading service of the summons since the complaint was filed on June 1, 2020. On November 12, 2020, Plaintiff filed a proof of service showing defendant Alex Anders was personally served with the summons and complaint on November 7, 2020. Alex Anders now moves to quash the summons, arguing that the proof of service is false, and he was never served. Plaintiff opposes, arguing that the motion is untimely and that the facts show A...

Excerpt: ...lied warranties and that the vehicle was negligently repaired. The complaint states the following causes of action: 1. Violation of Song‐Beverly Act—Breach of Express Warranty; 2. Violation of Song‐ Beverly Act—Breach of Implied Warranty; 3. Negligent Repair. On 2/21/20, defendants filed a motion to compel arbitration, set for 4/2/20. On 3/13/20, plaintiff filed an ex parte application to continue the hearing to conduct pre‐hearing disc...

Excerpt: ...ntiff was using the ladder to look at kitchen exhaust/range hoods on Aisle 40 in Department 29 of the Mira Loma Home Depot store, his foot slipped and he fell. Plaintiff then brought the instant action against Home Depot. On August 7, 2020, Plaintiff served Defendant with 48 Requests for Production of Documents, 49 Special Interrogatories, 21 Requests for Admission, and Form Interrogatories. Prior to the September 21, 2020 due date. Home Depot's ...