Excerpt: ...tively appurtenant to land Bank of Visalia v. Smith (1905) 146 Cal.398 "[T]he shares themselves are personalty and do not pass upon a conveyance of land unless they are appurtenant thereto; they may become appurtenant by the adoption of appropriate provisions in the by-laws of the water company Wheat v. Thomas (1930) 209 Cal. 306, 315. Here, section 4 of Article XII of the bylaws (Complaint, Ex. 5) implies that the stocks are appurtenant to land ...

Excerpt: ...hould be resolved in favor of those processes." Bono v. David (2007) 147 Cal. App. 4th 1055, 1052. A petition to compel arbitration is a suit in equity seeking specific performance of an arbitration agreement. Hotels Nevada, LLC v. Los Angeles Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 347. California Code of Civil Procedure section 1281.2 provides that "[o]n petition of a party to an arbitration agreement alleging the existence of a writte...

Excerpt: ...Under California Government Code section 12965(c)(6), "[i]n civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, " Plaintiff's complaint asserts claims brought under the California Fair Employment and Housing Act, which California Government Code section 12965 falls under. Additionally, she asserted wage and hour claims and a Priv...

Excerpt: ... previously considered, and some valid reason for not offering it earlier. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Garcia v. Hejmadi (1997) 58 Cal.App.4th 574, 690. The burden is comparable to that of a party seeking a new trial on the ground of newly discovered evidence; that is, the information must be such that the moving party could not with reasonable diligence have discovered or produced it at trial. New York Times Co. v. Su...

Excerpt: ...State of Calif. (2002) 94 Cal.App.4th 1285, 1302. Where the application of the presumed measure of damages would lead to an unjust result, the plaintiff may recover an amount sufficient to indemnify him or her for all loss that is the "natural, reasonable and proximate result" of defendant's wrongful conduct. Cal. Civ. Code S 3336; Myers v. Stephens (1955) 233 Cal.App.2d 104, 117 (measuring damages by lost profits rather than value of property). ...

Excerpt: ... Civil Code section 910 et. seq. (the "Right to Repair Act" or "S8800") specifies various statutory procedures that must be followed before a homeowner may sue a builder for defects in construction of a new residential unit. The statutes provide builders with the absolute right to attempt a repair prior to a homeowner filing a lawsuit. The purpose is to promote prelitigation repairs and avoid litigation costs that result in increased costs of con...

Excerpt: ...l arbitration of plaintiff's claims and to dismiss the class allegations. The parties seem to agree that the Court should (1) compel arbitration of plaintiff's individual claims for violation of the California Labor Code and the UCL and (2) dismiss without prejudice the class claims. They disagree as to whether the non-individual PAGA claim must be dismissed or should be stayed while the arbitration is pending. Defendant's motion to dismiss the n...

Excerpt: ...ould not receive campus-based services. Further, they allege that CBU did not offer appropriate refunds, credits or discounts to plaintiffs and others like them. The FAC alleges causes of action for breach of contract, breach of implied contract, unjust enrichment, and conversion.l Plaintiffs move to certify the class. CBU argues that there is no express contract requiring oncampus, in-person classes and that the implied contract cause of action ...

Excerpt: ... avoid the statute of limitations, the amended complaint must rest on the same general set of facts as the general complaint, refer to the same accident and same injuries as the original complaint, and refer to the same instrumentality as the original complaint." Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 597-598. "Cases applying this relation back rule have made it clear that 'it is the sameness of the facts rather than the righ...

Excerpt: ...pending between the same parties on the same cause of action. Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789. Plea of abatement requires "absolute identity of the parties." ld. at 788. In addition, the causes of action must be the same, such that a judgment in the first action would be a complete bar to the second action. ld. It must be claim preclusion as issue preclusion is not sufficient. Bush v. Superior Court (1992) ...

Excerpt: ...tiffs prevailed on all wage and hour claims. The Judgment indicates that Plaintiffs are the prevailing parties entitled to fees and costs. Attorney fees may be awarded when authorized by statute. (Kirby v. Immoos Fire Protection (2012) 53 Cal.4th 1244, 1248.) Pursuant to Cal Lab. Code S 218.5(a), attorney's fees and costs may be awarded to the prevailing party in any action for the nonpayment of wages. Lab. Code S1194(a) permits an employee to re...

Excerpt: ... S 1281.2.) A proceed-ng 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 petiton/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 reference. (CRC 3.1330; see also Condee v. Longwood Mgmt. Corp. (2001) 8...

Excerpt: ...nd Mountain Top Quarries, LLC in this action concerning a crusher machine with a purchase price of nearly a million dollars. The SAC alleges causes of action for breach of contract, breach of express warranty, breach of implied warranty and fraud. The motion is based on arguments that the first cause of action is time-barred and barred by the terms of the written warranty and the warranty claims are time-barred. Plaintiffs argue that there is a t...

Excerpt: ...and failed to include their proposed answer as required by the statute. Defendants do not identify the portion of section 473 under which they bring their motion. In their notice, they say the motion is based on "mistake and excusable neglect and that execution of the judgment will be a severe hardship" on them. The points and authorities in support of the motion state that the court is authorized to set aside a default based upon a showing of "m...

Excerpt: ...he arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court acti...

Excerpt: ... business opportunity for Plaintiff by directly competing on a proposal for the Perris Union High School District Project (Project.) On 2/14/20, Plaintiff was awarded the first phase of the Project, and Potter was assigned as the inspector. Thereafter, Potter obtained a business license for Ironwood, registered it with the State, and resigned his position with Plaintiff. On 9/23/20, Potter submitted a proposal for Ironwood, which was chosen for t...

Excerpt: ...e accountants concealed the fact of the controlling members' failure to make promised capital contributions to the business. On December 07, 2022, plaintiffs filed their operative First Amended Complaint in this action, asserting direct and derivative claims, alleging the following causes of action: (1) breach of fiduciary duty, (2) accounting malpractice, (3) fraud (intentional misrepresentation), (4) fraud (concealment), (5) aiding and abetting...

Excerpt: ...f plaintiff's claims in both cases and to dismiss the non-individual portion of the PAGA claim. The principles governing petitions to compel arbitration are well established. Public policy favors contractual arbitration as a means of resolving disputes. Mercury Insurance Group v. Superior Court (1998) 19 Cal.4th 332, 342. Arbitration of disputes is fawred and ""when there is doubt as to the meaning and construction of an agreement for mediation a...

Excerpt: ... governing petitions to compel arbitration are well established. Public policy fawrs contractual arbitration as a means of resolving disputes. Mercury Insurance Group v. Superior Court (1998) 19 Cal.4th 332, 342. Arbitration of disputes is favored and " "when there is doubt as to the meaning and constructon of an agreement for mediation and/or arbitration, that doubt should be resolved in favor of those processes." Bono v. David (2007) 147 Cal. A...

Excerpt: ...ral Act, California Labor Code section 2598. Defendants move to compel arbitration based on an agreement between Plaintiff and Employee Force Provider, which they assert also applies to Hot Topic, Inc. Plaintiff argues that Defendants have not established a valid, enforceable arbitration agreement, that the agreement should not apply to claims that arose before it was signed and that the PAGA claim should not be divided into individual and nan-in...

Excerpt: ... uncertain, and fail to state sufficient facts to support the claims. Claim preclusion prevents relitgation of the same cause of action in a second suit between the same parties or parties in privity with them. Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896. Thus, if a plaintiff prevails in an action, "the cause is merged into the judgment and may not be asserted in a subsequent lawsuit." Ibid. A judgment in the defendants' favor bars f...

Excerpt: ... on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect .... The court may likewise, its discretion, after notice to the adverse party, allow upon any terms as may be just, an amendment to any pleading or proceeding in other particulars." In the light of the policy favoring resolution of a...

Excerpt: ...g for Pineda above. Plaintiff says she does not recall signing the arbitration agreement less than two years ago when she started work. Defendant's CEO authenticates the agreement and attaches a copy. Plaintiff incorrectly argues that this is insufficient. The moving party needs only to allege the existence of an agreement, and once they have done so the burden shifts to the responding party to prove the falsity of the purported agreement. Condee...

Excerpt: ...ors contractual arbitration as a means of resolving disputes. Mercury Insurance Group v. Superior Court (1998) 19 Cal.4th 332, 342. A petition to compel arbitration is a suit in equity seeking specific performance of an arbitration agreement. Hotels Nevada, LLC v. Los Angeles Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 347. Secton 1281.2 provides that "[Oln petition of a party to an arbitration agreement alleging the existence of a written a...

Excerpt: ...y sought. "California has long made clear that to require a party to supply proof of any claims or defenses as a condition of discovery in support of those claims or defenses is to place the cart before the horse." Williams, supra, 3 Cal.5th at 551. "That the eventual proper scope of a putative representative achon is as yet uncertain is no obstacle to discovery; a party may proceed with interrogatories and other discovery methods precisely in or...