Excerpt: ...ct, conversion and common counts.” Notably, however, Plaintiff's complaint did not assert causes of action for breach of contract or conversion. Nonetheless, the complaint states facts sufficient to constitute causes of action for account stated and money lent, and the answer admits those facts. The answer, however, does not show on its face that it is incapable of amendment. As a result, the motion is granted with leave for Defendant to amend ...

Excerpt: ...to Defendant's demurrer, there is no requirement that a claim for breach of implied covenant must plead the plaintiff's performance of the contract. The authority cited in the Demurrer (Habitat Tr. For Wildlife v. City of Rancho Cucamonga) pertains to claims for breach of contract, not breach of implied covenant. B. Fourth and Fifth Causes of Action (Fraud, Negligent Misrepresentation) Demurrer is SUSTAINED as to Phuong T. Nguyen, DDS, Inc. The c...

Excerpt: ...3 months old. Trial is set for 9‐9‐19. There have been no trial continuances. Although Plaintiff seeks leave to amend relatively late in the case, the evidence before the Court does not demonstrate any prejudice compelling enough to justify denying leave to amend. The Opposition does not argue that granting leave would affect the 9‐9‐19 trial date. Indeed, the proposed FAC adds no new causes of action; all 9 causes of action were already ...

Excerpt: ...n dated February 6, 1992. Plaintiff has not identified a proper basis for judicial notice pursuant to Evidence Code Section 452. Defendant's Request for Judicial Notice is GRANTED pursuant to Evidence Code Sections 451 and 452. Defendant's Motion for Summary Judgment is GRANTED pursuant to Code of Civ. Proc. Section 437c. No triable issue of material fact exists as to the dates of record notice of Defendant's interest in the Property and Defendan...

Excerpt: ...a cause of action if that party has proved each element of a cause of action to entitle the party to judgment on the cause of action. (C.C.P. § 437c(p)(1).) Once the plaintiff has met its burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) Plaintiff presents evidence to establish all of the elements of the First Cause of Action for Br...

Excerpt: ...equested relief must be sought from the judge or court that entered the original sealing orders, under the general rule that “The power of one judge to vacate an order duly made by another judge is limited.” Greene v. State Farm Fire & Cas. Co., 224 Cal. App. 3d 1583, 1588 (Ct. App. 1990). The People have provided no authority indicating that this court can unseal records ordered to be sealed by another judge or court. Further, as indicated i...

Excerpt: ...or a Plaintiff to demur to them. However, California law requires that affirmative defenses be pleaded with ultimate facts. Demurrer is sustained because the affirmative defenses plead on legal theories, but not any ultimate facts. Defendants cite cases that recognize a fine distinction between proper ultimate facts and improper legal conclusions; such pleading must be read in context with other allegations. (See cases cited at Defendants' Opposi...

Excerpt: ...D pursuant to Evidence Code Sections 451, 452, and 453. Defendant's objections to evidence are DENIED. Plaintiff's objections to evidence are DENIED. Defendant's Motion for Summary Judgment, or in the Alternative Summary Adjudication is DENIED pursuant to Code of Civ. Proc. Section 437c. Defendant has not demonstrated that he is entitled to judgment as a matter of law as to any of the four causes of action in Plaintiff's Complaint. As to the Firs...

Excerpt: ...leging a fraud claim against a corporate defendant, a plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” Lazar v. Sup.Ct. (Rykoff‐Sexton, Inc.) (1996) 12 C4th 631, 645. Newsweek has not alleged who made the alleged fraudulent representations or what was said. Consequently, Newsweek has fail...

Excerpt: ...h Trevor initially stopped, he left and later returned with his son, Defendant Lawrence Tam (“Lawrence”). The investigating police officer completed a traffic collision report that incorrectly identifies Lawrence, as the driver, and Trevor, as the son. Plaintiff filed this Complaint against Lawrence only, but then filed an Amendment to the Complaint substituting Trevor as Doe 1. Trevor brings this motion on the ground that Plaintiff improperl...

Excerpt: .... (SAC paras. 23 ‐ 27.) The new allegations do not describe conduct that is “extreme and outrageous” for IIED. Further, the wrongful conduct “must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Wilson v. S. California Edison Co. (2015) 234 Cal. App. 4th 123, 152.) The new allegations do not state or imply that Defendants' conduct was “directed at Plaintiff.” None of th...

Excerpt: ...egis Group of Northern California, LLC et. al.'s Demurrer to Plaintiff Sodini Enterprises, Inc., et. al.'s 5‐17‐19 First Amended Complaint (FAC) is OVERRULED. A demurrer challenges defects that appear on the face of the pleading, or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. In ruling on a demurrer, the trial court is required to construe the complaint liberally with a view of ...

Excerpt: ...er Plaintiff to file a proper one. Instead, the Court admonishes and directs attorneys John F. Martin, Marta R. Venegas, Brittany C. Jones, and the entire law firm of Martin& Vanegas to learn and comply with all Rules of Court in this and every other case. Plaintiff also has filed, without leave of court, two sets of supplemental evidence (July 19 and 22) after Defendant had already filed its Reply papers. Plaintiff never sought leave for the del...

Excerpt: ...nscious disregard of the rights and safety of others. Rather, the complaint alleges that the ant infestation and accumulation of dog droppings occurred, but not that Defendants caused them or that Defendants intentionally refrained from addressing the problems. As to the mold, Plaintiff alleges that he discovered the mold on June 30, 2017, and a restoration company began remediating just one week later. (SAC para. 16 & 17.) As to the shelving, Pl...

Excerpt: ...il Procedure Section 187, cited by Plaintiff as support for this Motion, authorizes the Court to use the means necessary to carry jurisdiction into effect, but does not specifically discuss a motion to stay the action. CCP Section 418.10(a)(2) reads “A defendant... may file a notice of motion… [t]o stay or dismiss an action on the ground of inconvenient forum.” Here, it is plaintiff moving for a stay, and the ground for the request is not r...

Excerpt: ...ty, Defendant it is entitled to judgment as a matter of law. The facts of this case are not in dispute. According to Plaintiff's complaint, on the evening of October 25, 2015, [P]laintiff was on the premises of the PALO MAR STABLES, there to visit with defendant ROBIN [HOWLAND] and/or to tend to her own horse. As she walked on the premises, she walked past the vicinity of [Ms. Howland's horse,] Valentino, who was at that time not properly in his ...

Excerpt: ...act is SUSTAINED WITH LEAVE TO AMEND. This claim alleges WF breached ¶28 of the Deed of Trust (DOT), which Plaintiff contends states that Plaintiff may reinstate the loan up to five business days prior to the foreclosure sale. First, ¶28 of the DOT does not say that. And even if it did, the FAC still would not allege a breach because, as with the original Complaint, nowhere does the FAC allege that Plaintiff ever offered to reinstate the loan m...

Excerpt: ...19, 2018. It filed the present demurrer and motion to strike on May 17, after the time to file a responsive pleading expired. Accordingly, Cornerstone's motion is untimely. Cornerstone contends that there is “no timeliness issue” with respect to the present motions. However, no argument or evidence is submitted in support of this position. Facts Sufficient to State a Claim Cornerstone's demurrer fails on the merits for the same reasons set fo...

Excerpt: ... FAC on December 19, 2018. It filed the present demurrer and motion to strike on May 17, after the time to file a responsive pleading expired. Accordingly, Cornerstone's motion is untimely. Cornerstone contends that “this motion is indisputably timely.” However, Cornerstone presents no argument or evidence in support of this position. Relation Back As noted in the court's ruling on the related demurrer, Cornerstone has provided no authority i...

Excerpt: ...ion and has not provided a proposed answer as required by CCP §§ 473 and 473.5. The language of those statutes is mandatory, in that they require that an application for relief from default “shall” be accompanied by a proposed answer. Although Plaintiff appears to be willing to stipulate to set aside the entry of default, the court is not empowered to grant the requested relief due to Defendant's failure to satisfy the mandatory requirement...

Excerpt: ...the breached covenant is curable. Case law holds that a prohibitory covenant, once broken, cannot be cured. (See, e.g. Hignell v. Gebala (1949) 90 Cal.App.2d 61, 69 (lease required use as apartment house; tenant used it for real estate business; breach was incurable); Pfitzer v. Candeias (1921) 53 Cal.App. 737, 739‐740 (livestock raised on land leased for growing alfalfa held to be noncurable breach).) Here, Defendant's alleged breaches of cove...

Excerpt: ...fore this court. Accordingly, it's not clear whether CCP § 877.6 provides GE with authority to file an application for a good faith settlement determination. As set forth in CCP § 877.6, that statute applies to “a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors.” Because Defendant's complaint has not alleged that GE is a joint tortfeasor, it is not clear how this scenario fits ...

Excerpt: ...r expert and sent a witness disclosure statement to Plaintiff. [Gumear Decl, ¶¶ 5, 8, 9] Plaintiff has not opposed this motion and, accordingly, has not provided any reason why he would be prejudiced by augmentation of Defendant's expert witness list. The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses and has determined that Plaintiff will not be prejudiced in maintaining his actio...

Excerpt: ...tiffs contend that the Court may enforce Defendant's payment obligation under Code of Civil Procedure section 664.6 without the parties' having signed the separate settlement agreement; Defendant contends that without a signed separate agreement, enforcement under section 664.6 is not permissible. The Court does not decide whether enforcement of the October 16, 2018, agreement is possible without an executed separate settlement agreement. The sig...

Excerpt: ...he repeated interruptions and interjections by defense counsel, Plaintiff cites no authority indicating that CCP § 2025.290 excludes breaks or interruptions from the permitted “seven hours of total testimony.” Third, the Court notes that when Plaintiff's counsel adjourned the deposition, he stated “This has been – this has been plenty long for me, starting at 9:00 to 4:00.” At the conclusion of the deposition, counsel did not indicate ...