Excerpt: ...thout leave to amend. While, as Plaintiff points out, California decisions are mixed on whether unjust enrichment can constitute an independent claim or is merely an equitable remedy, the majority of cases hold that "unjust enrichment" does not properly state a cause of action. (Sepanossian v. National Ready Mix Company, Inc. (2023) 97 Cal.App.5th 192; Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370.) As Plaintiff notes, some decisio...

Excerpt: ...dd the conspiracy theory to any remaining independent tort causes of action to which it applies, but not to amend and reallege as a separate, stand-alone cause of action. As an initial matter, the Court simply notes that this cause of action is not asserted against Artichoke Joe's. It is asserted only against individual defendants Annie and Cody Sammut. Artichoke Joe's argues that because Artichoke Joe's is paying for Annie and Cody Sammut's defe...

Excerpt: ...Annuity Association of America (2020) 53 Cal.App.5th 71, 80—81.) Plaintiff Satish Sandadi's Request for Judicial Notice is DENIED as irrelevant. (AL Holding Company v. O'Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313 fn. 2 ["a court must decline to take judicial notice of material that is not relevant" l.) Defendant's Objections to Evidence are SUSTAINED as to the six declarations submitted by Plaintiff in support of his opposition — ex...

Excerpt: ...psed registration. SMCSO's Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the First and Second causes of achon and the remaining causes of action against the SMCSO are STRICKEN for the reasons below. A demurrer tests the legal sufficiency of the pleadings, raising issues of law but not fact regarding the form or content of the opposing party's pleading. (Donabedian v. Mercury Insurance Company (2004) 116 Cal.App.4th 968, 994.) Because a demur...

Excerpt: ...ons, LLC ("Cross-complainants"), is OVERRULED. Cross Complainants did not file an opposition to this Demurrer, but filed a Notice of Filing of Second Amended Cross-complaint on December 21, 2023 and an Objection to Amiseq's Reply on December 28, 2023. Despite its label, the Objection is essentially an unauthorized surreply filed without leave of court as it responds to the arguments raised by Amiseq's Reply. The Court therefore has discretion to ...

Excerpt: ... papers, with the determinative fact for the Court being that the Confidential Settlement Agreement and Release (Fairbrother Decl„ Exh. D) was never signed by Plaintiffs or their counsel. Nevertheless, Defendant now seeks to enforce that Agreement. Whether the Notice of Settlement (Fairbrother Decl., Exh. C) was filed inadvertently is irrelevant. Plaintiffs argue that the settlement agreement cannot be enforced pursuant to CCP 5664.6 because it...

Excerpt: ...IED IN PART. The burden of proof is on Defendants that a cause of action cannot be established by showing the undisputed facts presented by Defendants prcwe the contrary of Plaintiffs' allegations as a matter of law. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597. Defendants, as moving parties, cannot "simply argue or allege that the opposing party has no evidence." Scheiding v. Dinwiddie Construction Company (1999) 69 Cal.App.4th 64, 80—8...

Excerpt: ...is DENIED. A cross-complainant has met his or her burden of show-ng that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (CCP Once the cross- complainant has met that burden, the burden shifts to the cross-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.) Th...

Excerpt: ...o constitute a cause or causes of action against the defendant and the answer does not state facts suffcient to constitute a defense to the complaint." (CCP The grounds must appear on the face of the answer or from any matter of which the Court may take judicial notice. (ld., at subd. (d).) The Court may take judicial notice of admissions or inconsistent statements that a defendant has made and that cannot be reasonably controverted and thus disr...

Excerpt: ... at least $281.18 commencing on April 30, 2021, until the "compromise sum" of $10,122.50 was paid off in full. (Declaration of Gloria Zarco ("Zarco Decl."), Ex. 1 ("Stipulation") '13).) Plaintiff asserts that Defendant has failed to make payments on the compromise sum since March 30, 2023, and has not paid the compromise sum in full. Plaintiff now moves the Court to enter judgment pursuant to the terms of the settlement under CCP S 654.6. CCP S 5...

Excerpt: ...ssion regarding a 2020 Kia that plaintiff allegedly wrongfully possesses. The court denied Budget's writ application on September 5, 2023. Budget now seeks another writ of possession over the same car in a nearly identical writ application filed October 10, 2023. This is a renewed motion under CCP 1008(b). Section 1008(b) requires a party bringing a renewed motion to submit an affidavit [or declaration] identifying new or different facts, circums...

Excerpt: ...ed in the complaint. To be sure, the Reply make a new argument that the trade secret allegations are insufficient, but that's a new argument not properly before the court. Cf., High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, 112 n.2. (2) An intentional interference with contract is a wrong in and of ftself, and the complaint states that cause of action. Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, 1142. The ...

Excerpt: ...ourtroom 2F. Defendants' counsel's declaration fails to establish compliance with the meet and confer requirement under CCP 5430.41, which states in relevant part: (a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objecti...

Excerpt: ...law. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597. Defendants, as moving parties, cannot "simply argue or allege that the opposing party has no evidence." Scheiding v. Dinwiddie Constructon Company (1999) 59 Cal.App.4th 64, 80—81. Further, Defendants evidence is to be strictly construed in determining whether they have met their initial burden with doubts or ambiguities at this stage resolved in Plaintiffs' favor. Johnson v. American Sta...

Excerpt: ...in order to comply with this re-designaton of the case. That is a significant and unreasonable amount of clerical work that would be an undue burden on this Court's already overworked Clerk's Office. This is especially true in light of the fact that the Court is not correcting ANY clerical error, but rather a result of alleged inadequate legal advice by Defendant's former counsel. Accordingly, Defendant and/or her counsel must perform the tasks o...

Excerpt: ... the opposing party's evidence must be liberally construed." (Binder v. Aetna Lie Ins. Co. (1999) 75 Cal.App.4th 832, 838.) There are a triable issues of material fact regarding whether plaintiffs substantially performed their agreements. (Magic Carpet Ride LLC v. Rugger Investment Group, L.L.C. (2019) 41 Cal.App.5th 357, 364 ["What constitutes substantial performance is a question of fact. The evidence creating triable issues of material fact ar...

Excerpt: ...fs and exhibits to the trial briefs). Any new motion must be heard in Department 611 before Judge Karnow (contact his clerk for a date and time). The moving party must: At the time of filing, lodge with Department 611, but not file, a "delta" document which is comprised of documents the subject of the sealing motion, redlined to show the specific words or portions sought to be deleted from the public file; Rely only on admissible evidence to show...

Excerpt: ...ifications herein. Accordingly, the Court's prior tentative from December 1, 2023, is adopted and incorporated here by this reference. The parties' supplemental briefing following the hearing on December 1, 2023, has not persuaded the Court to change its prior tentative decision that relief is warranted under CCP 5473.5. Here, two years have not yet passed since the default judgment was entered. (See Mar. 30, 2023 Default Judgment.) Nor have 180 ...

Excerpt: ...chard Poletti, individually and dba Poletti Realty, and John Poletti, is GRANTED in part and DENIED in part as discussed herein. Issue 1: Claims by Keith Giusto against Poletti Defendants The MSA is DENIED as to Issue 1. It is undisputed that Plaintiff Keith Giusto asserts no claims against any of the Poletti Defendants. Therefore, summary adjudication cannot be granted on claims that are not alleged and there are no claims to dismiss. Issue 2: T...

Excerpt: ...issues to be adjudicated and is supported by an 18-page Separate Statement of undisputed Material Facts. Plaintiffs' Opposing Separate Statement is more than three times as long and supported by 60 exhibits consuming more than 1,300 pages. Plaintiffs' Opposing Separate Statement does not further the purpose of the Separate Statement requirement, but rather hinders it. Plaintiffs' Opposing Separate Statement does not allow the Court to easily iden...

Excerpt: ... Cory L Cooper ("Cooper"), a real estate agent who was associated with Defendant Dwell Realtors ("Dwell") at the time of the transaction, failed to properly obtain Mr. Driker's signature on the cancellation addendum. Plaintiff then decided again to sell the property in 2021 and hired Cooper, who was by then associated with Defendant Compass California II, Inc. ("Compass"), to facilitate the sale, again to Mr. Driker. Shortly after Plaintiff hired...

Excerpt: ...ritten notice of the formal order. The First Amended Complaint (the "FAC") asserts two causes of action, for conversion and for intentional infliction of emotional distress ("IIED"). Vinogradova demurs here to the second cause of action for IIED on the grounds of uncertainty and that fails to state facts sufficient to state a cause of action. (Code of Civ. Proc., S 430.10, subd. (e)—(f).) Vinogradova offered no argument in support of her specia...

Excerpt: ...il action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court finds both that the party has a substantial interest in the action as a whole, and that the health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. Section 35(a) "is mandatory and absolute in its applicaton in civil cases whenever the litigants are 70 years old." ...

Excerpt: ...ed on October 16, 2020, after failing to heed the summons purportedly served on him. (Oct. 16, 2020 Request for Entry of Default; see Sep. 21, 2020 Proof of Service of Summons by Substituted Service.) More than two years later, Plaintiff Scottsdale Insurance Co. ("Scottsdale") requested a default judgment, and judgment was entered against McNulty in the amount of $433,448.73 on March 30, 2023. (Mar. 22, 2023 Request for court Judgment; Mar. 30, 2...

Excerpt: ...whether the proposed settlement satisfies CCP 5877.6. See Tech-Bilt v. Clyde & Associates, 38 Cal.3d 488 (1985) and Regan Roofing Co. v. Superior Court, 21 Cal.App.4th 1685 (1994). However, the Oppositions contain evidence indicating that the proposed settlement between the Plaintiffs and Sung defendants may qualify as a faith settlement if the record is further developed. Accordingly, the Motion is DENIED without prejudice to re-file in accordan...