Excerpt: ...itration agreement may enforce its terms; however, the law recognizes an exception where the non‐party is a third‐party beneficiary to the agreement. Ronay Family Limited Partnership v. Tweed (2013) 216 Cal.App.4th 830, 837‐38; see also Jones v. Jacobson (2011) 195 Cal.App.4th 1, 17‐18 (arbitration agreement may be enforced by nonsignatories when the nonsignatory is a third‐party beneficiary of the agreement, and when a preexisting agen...

Excerpt: ...hat is, his exercise of his constitutional right to petition the government and of speech about an issue of public interest and that cross‐complainants cannot establish a probability of success on the merits. O'Connor seeks $14,160 in attorney's fees and costs in bringing the special motion to strike. Cross‐ complainants contend that the statements alleged in the cross‐complaint do not arise from protected activity and that if they were, cr...

Excerpt: ...diced because the trial is not until January 2023. Defendant argues that by statute, jury fees must be paid before the CMC. Defendant argues that plaintiff was aware that jury fees had not been posted and had numerous opportunities to do so. Defendant argues that it will be prejudiced. Defendant argues that there will be prejudice to the Court because the pandemic caused a backlog of cases. A party demanding a jury trial must post jury fees on or...

Excerpt: ...ontract claim fails because there is no longer a contract in existence that can be enforced. They further argue that plaintiff's contentions that defendants' alleged breach automatically extended the Investigation Period and entitled plaintiff to cure its failure to deliver the Approval Notices are contrary to the agreements. Because plaintiff's breach of contract claim fails, defendants argue that plaintiff's requests for specific performance, d...

Excerpt: ...omplaint (FAC) on August 3, 2020. The FAC asserts nine causes of action: (1) Labor Code §§s 510, 1198 (unpaid overtime); (2) Labor Code §§s 226.7 and 512(a) (unpaid meal period premiums); (3) Labor Code § 226.7 (unpaid rest period premiums); (4) Labor Code §§s 1194, 1197, 1197.1 (unpaid minimum wages); (5) Labor Code §§s 201‐203 (final wages not timely paid); (6) Labor Code § 226(a) (inaccurate wage statements); (7) Labor Code §§s 2...

Excerpt: ...hat is, his exercise of his constitutional right to petition the government and of speech about an issue of public interest and that cross‐complainants cannot establish a probability of success on the merits. O'Connor seeks $14,160 in attorney's fees and costs in bringing the special motion to strike. Cross‐ complainants contend that the statements alleged in the cross‐complaint do not arise from protected activity and that if they were, cr...

Excerpt: ...and conferred, and that the parties were unable to resolve the issues. Cal. Civ. Proc. Code § 435.5(a)(3). It seems clear that the parties did not meet and confer regarding the issues raised by the motion to strike. Defendant failed to file a declaration in compliance with section 435.5. Although in his reply defendant asserts that the parties met and conferred on numerous occasions, it appears that those efforts involved discovery issues rather...

Excerpt: ...f action. Plaintiff cites no authority that a party that earlier brought a motion to strike is barred from bringing a motion for judgment on the pleadings. In contrast, a motion for judgment on the pleadings may not be brought on a ground earlier raised in a demurrer (absent a change in the law). Cal. Civ. Proc. Code § 438(g)(1).1 Intentional infliction of emotional distress and reckless infliction of emotional distress are the same cause of act...

Excerpt: ...A statement of any new matter constituting a defense.” Cal. Civ. Proc. Code §431.30(b). A defendant may not claim affirmative relief in the answer. Cal. Civ. Proc. Code §431.30(c). When defendant filed his original answer, he asserted 8 affirmative defenses: (1) failure to state a cause of action; (2) anticipatory repudiation; (3) contributory negligence; (4) failure to mitigate; (5) apportionment; (6) modification; (7) substituted contract; ...

Excerpt: ...11 Cal.3d 924, 929. “At a hearing on a motion to quash, the court must determine whether the party seeking the discovery has made a showing of good cause for the production of said matters and whether the items sought are material and relevant to the case.” M.C.A. v. State of California, (1982) 128 Cal.App.3d 225, 232‐ 33. A right of privacy exists as to a party's confidential financial affairs, even when the information sought is admittedl...

Excerpt: ...apacity as Weidner's agent. Cline v. Atwood (1996) 241 Cal.App.2d 108, 113. Thomas asserts that she is not a party to the rental contract between plaintiff and Weidner; thus, she cannot be personally liable for the causes of action, which are all based on contract; that the declaratory relief claim operates prospectively, but the complaint references only past grievances; and, that the breach of the implied covenant claim is improperly duplicativ...

Excerpt: ...0.5, a medical malpractice claim is subject to the following statute of limitations: “the time for the commencement of an action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” The term “injury” as used in section 340.5 means both a person's physical condition and its negligent cause. Davis v. Ma...

Excerpt: ...which the Court found that plaintiff had waived the right to a jury trial by failing to timely post the fees. However, the Court may “upon just terms” allow a trial by jury despite a waiver. Cal. Civ. Proc. Code § 631(g). Any doubt should be resolved in favor of the party requesting a jury trial. Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703 ‐04 (court should grant relief from waiver “unless . . . granting such ...

Excerpt: ...he court should therefore deem the matters admitted. Alternatively, defendants argue that the objections are all without merit and that the court should therefore compel a further response. Defendants request $2,890 in sanctions. Plaintiff responds that she served code‐compliant responses to the RFAs and that the motion to have matters deemed admitted must therefore be denied. Plaintiff further argues that there is no authority that would allow...

Excerpt: ...t an independent contractor, so at least at this point, the motion is moot as to those categories. Leon agreed to limit categories 10, 14, 16, 20, 26, 30, 32, 34‐35, 42, 45‐47, 49, 51, 53‐54, and 57 to relate to MacArthur only. However, given that the employer is not disputing that it is liable under a theory of respondeat superior, it is unclear why these categories are relevant. In Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1153 the defendan...

Excerpt: ... filed. Section 425.16(b)(1) of the California Code of Civil Procedure requires the court to engage in a two‐step process. First, the court decides whether the moving party has made a threshold showing that the challenged complaint or cause of action is one arising from protected activity. The moving party's burden is to demonstrate that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]'s right of ...

Excerpt: ...n the grounds that the default judgment is void as a matter of law as a result of improper service of summons and complaint. Finally, it seeks relief under section 473.5(a), on the grounds that the service of summons and complaint filed in this action did not result in its actual notice in time to defend. None of these grounds are meritorious and the motion is denied. The court is empowered to relieve a party “upon any terms as may be just…fr...

Excerpt: ...sting pleadings and will proceed on the first cause of action only. California Code of Civil Procedure section 438(h)(4)(A) and (i)(1)(A) provide that if leave to amend a pleading is granted but the party does not amend, the defendant may move for judgment. Further, although Diaz argues that the default has no impact on the assignment of the defaulted defendant's rights to her, she provides literally no authority to support this position. Leave t...

Excerpt: ...he minds as to the purchase price when the purchase agreement was signed; 3) there is no allegation that plaintiff paid/intended to pay the purchase price for the 51% interest; 4) there is no allegation that plaintiff understood that by paying a portion of the purchase price, he obtained any management rights. Moving parties request the court take judicial notice of the following documents: A) 6/25/16 tentative ruling on Chang's petition to compe...

Excerpt: ...pecial motion to strike under the anti‐SLAPP statute, California Code of Civil Procedure section 425.16, contending that the entire complaint and each cause of action arises out of their protected activities and that Hunt cannot demonstrate a probability of success on the merits. The moving parties argue that their protected activity is conduct protected by the First Amendment because they are sued for communications on matters of public intere...

Excerpt: ...hat burden, it shifts to plaintiff to show that a triable issue of material fact exists as to that cause of action or defense thereto. Cal. Civ. Proc. Code §437c(p)(2). The moving party must meet its initial burden regardless of whether the opposing party files counter‐declarations. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. Where a defendant fails to meet its...

Excerpt: ...es and Procedures. This agreement explicitly provides for arbitration of this dispute. Further, the agreement expressly covers participating employers, which would include defendant. This leaves plaintiff's argument that the arbitration agreement is unconscionable. Although plaintiff's brief contends that he was required to sign the arbitration agreement to obtain his job, he does not state that in his declaration. Further, the mere fact an adhes...

Excerpt: ...mTrust has met its initial burden as to the breach of contract cause of action. In order to be enforceable, provisions relating to exclusions from coverage must be conspicuous, placed and printed to attract the reader's attention and stated in plain and clear language in ordinary language – something more than simply being unambiguous. Jon Davler, Inc. v. Arch Ins. Co. (2014) 229 Cal.App.4th 1025, 1040; Brown v. Mid‐Century Ins. Co. (2013) 21...

Excerpt: ...a)(2). “A demurrer based on statute of limitations will not lie where the action may be, but is not necessarily barred.” Stueve Bros. Farms v. Berger Kahn (2013) 222 Cal. App. 4th 303,321. The complaint must clearly and affirmatively show, on its face, that the claim is barred. Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881. Generally, the statute of limitations begins to run upon the occurrence...

Excerpt: ...udice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Superior Court of Cal. in and for Los Angeles County (1959) 172 Cal.App.2d 527, 530. “[D]iscretion should be exercised liberally in favor of amendments, for judicial policy favor...