Excerpt: ...a Thomas on 1‐4‐22 in San Carlos, Ca. Defendant has not opposed the motion. See CRC 8.54(c) (“A failure to oppose a motion may be deemed a consent to the granting of the motion.”). Defendant's failure to oppose this motion is consistent with her prior conduct. Defendant did not respond to the Complaint, resulting in her default, and entry of the 12‐8‐20 Judgment. Similarly, in recent court proceedings in the State of Hawaii, Defendant...

Excerpt: ...parents in March 2017, and to enjoin Defendant “to cease the nuisance and harassment created by the shining of the high intensity floodlights onto Association property.” MPA, p.6. According to Plaintiff, “The most egregious action that must be enjoined, however, is the installation and intentional shining of high intensity lights onto Association property.” Id., p.7. Plaintiff has supported its motion with the declarations of Randy McManu...

Excerpt: ...Ex. A). Defendants' request for judicial notice is denied as to all other matters, as they are not material to the Court's ruling on the demurrer. The FAC and the Permit Do not Show that Civil Code section 3482 Is a Defense. “Any violation of Title 17 is declared to be a nuisance . . . .” (Muni Code, Title 17, Chapter 17.04.050.) The FAC alleges that the Cabana is within the setback, which is a violation of Title 17. Since Defendants are viol...

Excerpt: ...monstrating Defendant Alexander Dominguez entered into a credit card agreement for the account ending in 7959 (see 11‐19‐21 Decl. of Kristofer Kasson; 11‐19‐21 Separate Statement), that Defendant incurred a debt to Plaintiff on the 7959 account of $6,499.66, and that Defendant has not paid the amount due. Code Civ. Proc. Sect. 437c(p)(1). The evidence establishes that Plaintiff performed its obligation(s) under the agreement(s) by paying ...

Excerpt: ...s in the Amended CrossComplaint by Defendant/Cross‐Complainant St. Giab Inc. (“CrossComplainant”), is OVERRULED. Business and Professions Code section 17200 prohibits unfair competition, which includes an unlawful, unfair or fraudulent business act or practice. (See Bus. & Prof. Code § 17200.) “Unfair” under section 17200 has been described as violating established public policy, or “is immoral, unethical, oppressive or unscrupulous ...

Excerpt: ...ng Recovery Act (the “Recovery Act”) at California Code of Civil Procedure § 1179.08 et seq. The Recovery Act applies broadly to any “notice for a residential rental property that demands payment of COVID‐19 recovery period rental debt and that is served pursuant to subdivision (e) of Section 798.56 of the Civil Code or paragraph (2) or (3) of Section 1161.” Code Civ. Proc., § 1179.10(a). The Recovery Act defines “COVID‐19 recover...

Excerpt: ...has not met its burden to show that the Second Cause of Action in the Cross‐Complaint of Putnam Automotive, Inc. and Kent Putnam (collectively, “Putnam”) is completely barred by the applicable statute of limitations. C.C.P. § 437c(p)(2). A. Tennessee's Six‐Year Statute of Limitations Applies to Putnam's Second Cause of Action. Putnam's second cause of action alleges that Nissan based its decision to not pay Putnam $950,000 under the part...

Excerpt: ...et forth below. Plaintiffs have not opposed Defendants' motions. Rather, on January 24, Plaintiffs filed a Second Amended Complaint. The Second Amended Complaint seeks to add causes of action for intentional infliction of emotional distress, unfair business practices, and nuisance. The right to amend under Code Civ. Proc. § 472, however, is limited to the original complaint; there is no right to amend, without leave of court, an amended complain...

Excerpt: ...eover, a failure to file a memorandum of points and authorities constitutes an admission that the motion is not meritorious and cause for its denial. CRC 3.1113(a). Even if the Court construes the one‐page document Plaintiff filed as a memorandum of points and authorities, Plaintiff fails to provide a concise statement of the law, as required by CRC 3.1113(a). Notwithstanding the above, the motion is also denied because Plaintiff fails to meet ...

Excerpt: ... action for violation of Bus. & Prof. Code § 17200 on the grounds that “it is clear that the entire claim rests on Defendant's alleged mishandling of Plaintiff's claim and nothing more.” MPA, p.4. According to Defendant, “the claim involves only private harm which is not actionable.” Id. Defendant further asserts that Plaintiff's cannot state a cause of action because “Plaintiff fails to identify a single other policy or policyholder w...

Excerpt: ...Cause of Action for “fraud and deceit” is OVERRULED. Code Civ. Proc. Sect. 430.10(e). The Court sustained GM's demurrer to this cause of action in the SAC on grounds that, pursuant to the “Economic Loss Rule,” fraud by concealment is not actionable. See 9‐17‐21 Order; citing Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979. As explained in Robinson Helicopter, to assert a fraud claim against GM under these circumstances, Pl...

Excerpt: ...ED. Code Civ. Proc. Sect. 431.10(e), (f). Second Cause of Action (Bus. & Prof. Code Sect. 7031) De Bibo's Demurrer to the Second Cause of Action, alleging a violation of Bus. & Prof. Code Sect. 7031, is OVERRULED. De Bibo argues this cause of action, as well as the Fifth and Sixth Causes of Action (alleging fraud/negligent misrepresentation), are time‐ barred on their face. (Mot. at 13‐14). However, Code Civ. Proc. Sect. 430.41(b) prevents De...

Excerpt: ...tioners Mustafa Edais and Majeda Edais (“Plaintiffs”), is OVERRULED. Plaintiffs' Verified Petition for Writ of Mandate and Complaint alleges three causes of action concerning Defendants' alleged failure to comply with Plaintiffs' California Public Records Act (“CPRA”) request. The CPRA request seeks all documents received or generated by, or currently in the possession of the San Mateo County Coroner's Office in connection with the death ...

Excerpt: ...rate that Code of Civil Procedure section 128.7(b) has been violated. Plaintiff contends that sanctions are warranted because Defendant's Motion to Dismiss was meritless and filed for the purpose of harassing and burdening Plaintiff. However, Defendant moved to dismiss the Complaint after the time for Plaintiff to file a First Amended Complaint expired. The Court recognizes that Plaintiff attempted to file a First Amended Complaint on October 19,...

Excerpt: ...Defendants contend that Plaintiff's first cause of action for harassment fails because Plaintiff cannot establish that she was subjected to severe or pervasive conduct that altered the conditions of her employment, or that the alleged actions of which she complains were based upon her sex, gender, sexual orientation, gender identity, and/or gender expression. According to Defendants, “much of the conduct about which Plaintiff complains cannot b...

Excerpt: ... telephone, for the purpose of determining whether an agreement could be reached to resolve the objections to be raised in the demurrer. In this case, Defendants' counsel's declaration shows that she attempted to meet and confer only by letter. It does not appear that counsel attempted to meet and confer by telephone or in person, as required by C.C.P. § 430.41(a)(3). Additionally The Opposition was served by overnight delivery, which means Defe...

Excerpt: ...Defendant's alleged non‐payment of rent from Nov. 2020 through Sept. 30, 2021. Per Code Civ. Proc. Sects. 1179.02 and 1179.03, unpaid rent for this time period is considered “COVID‐19 rental debt,” which triggers certain requirements in the written Notice. Because UD cases seek lease forfeiture and are summary proceedings, courts strictly construe the statutory procedures that regulate UDs. Civ. Code Sect. 1442; Kwok v. Bergren (1982) 130...

Excerpt: ...laint of Plaintiff Chris Langer (“Plaintiff”) is OVERRULED. Plaintiff alleges two claims for violation of the Unruh Civil Rights Act and Unfair Competition Law based on Defendants' failure to comply with the Americans with Disabilities Act (“ADA”). Defendants assert that the Complaint fails to state facts to support a claim because Bridgepoint Inn's website complies with 28 Code of Federal Regulations section 36.302(e)(1)(ii) (“Reservat...

Excerpt: ...unts based on: (1) an open book, (2) an account stated, and (3) goods sold and delivered. However, Plaintiff's MPA in support of the motion attempts to demonstrate that Plaintiff has established claims for (1) an open book, and (2) an account stated. (MPA, p.5‐7) Accordingly, because Plaintiff has addressed only two of its claims, Plaintiff has not demonstrated it is entitled to summary judgment. Nonetheless, the Court finds that Plaintiff has ...

Excerpt: ...in the property. California law requires the rights of all parties in the subject property be determined before the partition of said property. Summers v. Superior Court, 24 Cal. App. 5th 138, 142‐143 (2018); Bacon v. Wahrhaftig, 97 Cal. App. 599, 603 (1950) (“No partition can be had until the interests of all the parties have been ascertained and settled by a trial.”); see also C.C.P. § 872.620 (“To the extent necessary to grant the rel...

Excerpt: ...nal infliction of emotional distress. In order to state a cause of action for defamation, Plaintiff must allege publication of a false, unprivileged and defamatory statement about him. The statement must be communicated to at least one person other than plaintiff who understands its defamatory meaning and that it refers to plaintiff. Shively v. Bozanich (2003) 31 C4th 1230, 1242. Plaintiff's FAC asserts that “Defendants have made false and defa...

Excerpt: ... the FAC that may rise to the level of oppression or malice is essentially a threat to coerce Plaintiff into settling its claims against Defendant by use of whistleblower claims. FAC, ¶ 59. Such conduct is protected by the litigation privilege. See Asia Inv. Co. v. Borowski, 133 Cal. App. 3d 832, 842 (Ct. App. 1982) (counsel's alleged threat to bring a CEQA action in order to induce plaintiff to settle was protected by the litigation privilege s...

Excerpt: .... 452(d). The doctrine of res judicata Under the doctrine of “res judicata,” or “claim preclusion,” a valid, final judgment on the merits is a bar to a subsequent action by parties or their privies on the same “cause of action.” Mycogen Corp. v. Monsanto Co. (2008) 28 Cal.4th 888, 896‐ 97; Amin v. Khazindar (2003) 112 Cal.App.4th 582, 589–590. Under this doctrine, all claims based on the same “cause of action” must be decided ...

Excerpt: ... a claim for unjust enrichment, while not a standalone cause of action, may be construed as a restitution claim. See Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231; McBride v. Boughton (2004) 123 Cal.App.4th 379 (unjust enrichment was an attempt to plead a cause of action for restitution). However, Plaintiff's breach of contract claim pleads the existence of an enforceable agreement and its unjust enrichment claim cover...

Excerpt: ...re of the time and date of this hearing, the Court overlooks the defect. Plaintiff's counsel is also directed to comply with California Rules of Court and Local Rules of Court regarding electronically filed documents. Specifically, exhibits must be bookmarked. (CRC Rule 3.1110(f) [“electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or lette...