Excerpt: ... 951, 973‐74 [“A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract”].) The elements of an action for fraud based on concealment are: (1) the defendant concealed a material fact...

Excerpt: ...eal threat of immediate and irreparable injury.” (Triple A. Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 138.) Here, Plaintiff will suffer harm because she will lose her home. Thus, the issue is a probability of prevailing on the merits. JUDICIAL NOTICE REQUESTS: 1 However, in Rattagan v. Uber Technologies, Inc. (9th Cir. 2021) 19 F.4th 1188, the Ninth Circuit recently certified the following question to the California S...

Excerpt: ...n the grounds that Kirnos does not have personal knowledge of the time spent in this case because he did not work on the case himself. However, Kirnos' declaration makes clear that he is the managing partner of Knight Law Group (¶1) and that he has personal knowledge of the facts in his declaration (¶1). This is sufficient for the testimony provided in his declaration, as such, the objection is overruled. ATTORNEY'S FEES The prevailing buyer ha...

Excerpt: ...Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”...

Excerpt: ...e, including protective orders.” (CCP, § 1987.1(a)&(b)(1)‐(3).) Also, the court may make any other order as may be appropriate to protect the parties, the witness, or the employee from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (CCP., § 1987.1(a).) “If a deponent fails to produce a requested document under his or her control, the subpoenaing party may bring a motion to c...

Excerpt: ... court is required to find subjective bad faith before it can award fees and costs to a defendant. Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 924. Subjective bad faith requires a factual inquiry into the plaintiff's subjective state of mind. Id. at 923. The court looks to determine whether there is evidence not only that the action lacked merit, but that the plaintiff knew that it did. Id. at 928. A defendant moving for fees and c...

Excerpt: ... 262 Cal.App.2d 490, 493.) To obtain a writ of possession, the plaintiff must file an application under oath and must include all of the following: (1) the basis of the plaintiff's claim that it is entitled to possession; (2) a showing that the property is wrongfully detained and of the manner in which defendant came into possession; (3) a particular description of the property and a statement of its value; (4) the property's location based on pl...

Excerpt: ...rden of production to make a prima facie showing that there are no triable issues of material fact. (CCP § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Defendant, as the moving party, has the burden to show either 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. (CCP §437c(p)(2).) Defendant can meet their burden by showing either: (1...

Excerpt: ...P ALLEGED TO CREATE A DUTY The elements of a cause of 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 h...

Excerpt: ...ing be deemed admitted. (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 30; Code Civ. Proc., §2033.280(b).) “Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45‐day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a ‘meet and confer' requirement.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 3...

Excerpt: ... his or her employer for injuries arising out of and in the course of employment.” (Wright v. State of California (2015) 233 Cal.App.4th 1218, 1229.) Specifically, the Act provides in part that “[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is…the sole and exclusive remedy of the employee or his or her dependents against the employer (Lab. Code, §3602(a)), and that “[i]n all ca...

Excerpt: ...ractice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 Cal.App.5th 1131, 1150 [citation and internal quotation marks omitted].) Under the unlawful prong, the UCL borrows violations of other laws and treats them as unlawful business practices that are independently actionable under the UCL. (Smith v...

Excerpt: ...(Evid. Code § 452(d).) However, the request to take judicial notice of the transcript of Myron Matika's October 23, 2018 deposition taken in Tye v. Bowen is denied. Contrary to Defendants' argument, courts generally decline judicial notice of a pleader's deposition statements to defeat material allegations of the complaint. (See Silguero v. Creteguard, Inc., (2010) 187 Cal.App.4th 60, 64; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369...

Excerpt: ... that the court may for good cause allow.” While a motion to quash is typically directed to defects in personal jurisdiction, court recognize “the hybrid motion to quash/dismiss as a proper means of challenging the court's authority without making a general appearance.” (Boisclair v. Superior Court (1990) 51 Cal.3d 1140, 1144, n. 3.) As such, a motion to quash and to dismiss is appropriately based upon an assertion of sovereign immunity. (G...

Excerpt: ...em to emotional distress damages on these property based claim. 1. DANGEROUS CONDITION OF PRIVATE PROPERTY In order to state a cause of action for dangerous condition of public property, a plaintiff must allege: (1) a dangerous condition of public property; (2) a proximate causal connection between the condition and the injury sustained; (3) a reasonably foreseeable risk that the kind of injury that occurred would result from the dangerous condit...

Excerpt: ...ly 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.) When ruling on a demurrer, the court gives the pleading “a reasonable interpretation, reading...

Excerpt: ...mon 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 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. (Cal. R. Ct. 3.1330; see Condee v. Longwood Mgmt. C...

Excerpt: ...h judicial notice has been taken. Crowley v. Katleman (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. Untimely Demurrer: Plaintiff cites to no authority that the timing requirement is jurisdictional. As such, the court will address the merits of this motion. Plea and Abatement: The basis of Defendant's...

Excerpt: ...issed without prejudice and then, a few months after the dismissal, plaintiff commenced the present action. Defendants point to the Lim Action Judgment, which does state that “all defendants except for Defendant Eden Lim have been dismissed with prejudice.” (See Lim Action Judgment, ¶ 4.) However, the Lim Action Judgment was not a dismissal itself and the actual dismissal pursuant to the settlement, which occurred on 6/11/12, was without pre...

Excerpt: ... in their context.” (Moore Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 125.) The court “accept[s] as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially noticed.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law alleged in the challenged pleading.” (Buchanan v. Maxfield En...

Excerpt: ... or create conflicting rulings on common issues. (Cal. Code Civ. Proc. § 1281.2.) Arbitration of disputes is favored and “when there is doubt as to the meaning and construction of an agreement for mediation and/or arbitration, that doubt should be resolved in favor of those processes.” (Bono v. David (2007) 147 Cal. App. 4th 1055, 1062.) The moving party Page 3 of 5 bears the burden of proving the existence of a valid arbitration agreement, ...

Excerpt: ...ceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Here, Garcia filed the motion on the last possible day. She has already answered and need not do so again so she did not need to submit a proposed answer. Although a decision on a motion like this is a discretionary one, “the trial court's discretion is not unlimited and must be ‘“exercised in conformity with the spirit of the law and in a manner to subser...

Excerpt: ...nder Evid. Code § 452(d), this Court may take judicial notice of records of its own file. The request is granted. EVIDENTIARY OBJECTIONS Plaintiff objects to the following evidence submitted by Defendants in support of their motion: (1) Declaration of Sullivan ¶ 20, 12:25‐261 based on hearsay, lack of personal knowledge, and lack of foundation; and (2) Declaration of Sullivan ¶ 21, 12:27– 13:32 based on improper opinion, lack of personal k...

Excerpt: ...tial 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 established or that there is a complete defense to that cause of action. (Id. at § 437c(p)(2); 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...

Excerpt: ... pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436.) Motions to strike can be used to attack the entire pleading, or any part thereof. (CCP § 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....