Excerpt: ...q., also known as the “Right to Repair Act,” apply in this case, which was not “original construction intended to be sold as an individual dwelling unit.” (Civ. Code §896, emphasis added.) Additionally, Uponor has not cited sufficient authority to show that, even if the Right to Repair Act applies, Uponor, as a product manufacturer, would have a right to stay or dismiss the action, or quash service of summons for lack of personal jurisdi...

Excerpt: ...PP”); and (4) Defendant's motion to strike Plaintiff's PAGA claims. 1. Motion to Compel PMQ Testimony Plaintiff's motion to compel Signature to designate the Person(s) Most Knowledgeable to testify regarding the topics referenced below is DENIED. In this motion, Plaintiff moves to compel Signature to designate a Person Most Qualified (“PMQ”) witness(es) to testify regarding a number of topics relating to Signature's corporate history of hea...

Excerpt: ...showing that one or more elements of each of these causes of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c(o)-(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.) Further, when the Court liberally construes Terry' evidence and resolves all doubts in her favor, Terry has presented sufficient evidence to show there are disputed questions of material fact on a number ...

Excerpt: ...demurrer. (Cal. Rules of Court, rule 3.1320(c).) Here, Respondent filed a Notice of Demurrer and a “Demurrer” which appears to in fact be a memorandum of points and authorities. However, Respondent has not filed a separate document that clearly identifies the specific claims challenged and the grounds for the challenge. Accordingly, the demurrer is technically defective. Notwithstanding this technical defect, the Court has considered the meri...

Excerpt: ... Defendant's demurrer was not filed until September 23, 2020, i.e., over nine months after service. Furthermore, the demurrer fails on its merits because the complaint alleges sufficient facts to state all causes of action. This case arises from a loan and promissory note whereby Plaintiff agreed to lend $20,000 to Advance Auto Finance, LLC (“AAF”) in return for 10% per annum interest payment over 36 months. (Complaint at p.3 and Ex. A.) The ...

Excerpt: ...ection 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed on conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc. §436.) “A motion to strike, like a demurre...

Excerpt: ...stipulation and proposed order. Code of Civil Procedure section 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed on conformity with the laws of this state, a court rule, or an order of the court.” (Code...

Excerpt: ...sical examination, the defendant must obtain leave of court. (Code Civ. Proc. §2032.310(a).) A motion to compel an additional physical examination must “specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination…” (Code Civ. Proc. §2032.310(b).) Additionally, the defendant must make a showing of “good cause” ...

Excerpt: ...t for monetary sanctions is DENIED. With respect to requests 139-146, 148 and 222, the Court notes that Defendant provided supplemental responses on October 9, 2020, after the motion was filed. Thus, the supplemental responses restart the clock for the parties to meet and confer and if necessary, for Plaintiff to file a motion to compel. (See, Code Civ. Proc. §2030.300(c) [deadline for filing motion to compel runs from date of service of respons...

Excerpt: ... for attorneys' fees and costs of $48,339.74. “A prevailing buyer in an action under the Song-Beverly Act ‘shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.'” (Morris v. Hyund...

Excerpt: ...laint ¶¶8, 11 and Ex. A.) The lease was eventually assigned to Plaintiff and Plaintiff now alleges that Defendants breached the lease, in part, by “failing to provide full possession absent interference of the Property in contravention of Plaintiff's rights under the Contract.” (Id. at ¶31.) In the complaint, Plaintiff asserts multiple causes of action, including the three above-referenced contract- based causes of action, against Rory; Da...

Excerpt: ...2011) 192 Cal.App.4th 1149, 1158–1159 [“a pleading made on information and belief is insufficient if it merely assert[s] the facts so alleged without alleging such information that lead[s] [the plaintiff] to believe that the allegations are true.”].) Proctor & Gamble's demurrer to Plaintiff's sixth cause of action for negligence is SUSTAINED, with leave to amend, on the grounds the cause of action is duplicative. (See, Palm Springs Villas I...

Excerpt: ...aration of fault, the relief is “mandatory” and the trial court has no discretion to deny a motion.]; see also, Abers v Rohrs (2013) 217 Cal.App.4th 1199, 1210; SJP Ltd. Partnership v City of Los Angeles (2006) 136 Cal.App.4th 511, 516–517.) Here, the Declaration from Erin B. Carlstrom is sufficient to establish that the defaults in this case were entered as a result of attorney error in calendaring the date for a response and therefore, re...

Excerpt: ...OVERRULED as to Petitioner's fourth cause of action for promissory estoppel. The demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND, as to the fifth cause of action for intentional interference with a contract. 1. Petitioner's First and Third Causes of Action Fail Because the Underlying “Family Agreement” is Unenforceable Under Former Probate Code Section 150. Petitioner's first cause of action is brought under Probate Code section 850 and is base...

Excerpt: ...case is set for a Case Management Conference on Thursday January 14, 2021 at 3:00 P.M. in Department 18. No appearances will be required at the Case Management Conference if the case has been transferred by that time. 1. Venue is Proper in Orange County. The Probate Code states that the proper county for commencement of a proceeding “[i]n the case of a living trust, is the county where the principal place of administration of the trust is locat...

Excerpt: ...g to file and serve a first amended cross-complaint. 1. Tenant Alleges Sufficient Facts to State a Cause of Action for Implied/Equitable Indemnity. In this case, Plaintiffs purchased the commercial property from sellers in February 2019 and Broker acted as the dual agent for the sale. (First Amended Complaint at ¶¶5, 8-9.) As of the date of the sale, Tenant was a commercial tenant who operated a body shop on the property. (Id. at ¶¶ 10, 13.) ...

Excerpt: ...The parties do not dispute that Plaintiffs are entitled to attorneys' fees under Civil Code section 1794(d), however, Defendant contests Plaintiffs' attorneys' hourly rates and the time they expended in this action. While the Court finds that some of the various hourly rates charged by Plaintiffs' fifteen attorneys from two different law firms are generally “reasonable,” some are far in excess of those of the local community. Regardless, the ...

Excerpt: ...he complaint on the same grounds as the demurrer is MOOT. The Court refers Plaintiff to Code of Civil Procedure section 372(a) which provides in part that “[w]hen a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding...

Excerpt: ...rt that Defendant “negligently failed to exercise the proper degree of knowledge and skill in examining, diagnosing, treating, and caring for Plaintiff with respect to his custodial and medical needs, as set forth in this complaint, as a proximate result of which Plaintiff sustained injury to his body, and in his health, strength, and activities, and sustained injury to his mental health and shock and injury to his nervous system, all of which ...

Excerpt: ...s to Plaintiff's causes of action, the motion is denied without leave to amend. The Code provides that a plaintiff is entitled to judgment on the pleadings if “the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc. §438(c)(1)(A).) “The grounds for a motion for judgment on the pleadings mu...

Excerpt: ...rt, which was not the trial court, has the ability to hear and determine the motion.” (See, Court's July 15, 2020 Minute Order.) The Court stated that it's “[v]iew is that the parties have the right under CCP section 635 to request the Presiding Judge, or his designee, enter judgment in conformity with the trial judge's Statement of Decision, and nothing more. However, as this issue was not addressed by the parties, the matter is continued to...

Excerpt: ... final ruling. 1. Abbott Fails to Allege Sufficient Facts to State her Fourth and Fifth Causes of Action for Fraud and Negligent Misrepresentation. The elements of a cause of action for fraud are (1) a misrepresentation, meaning false representation, concealment, or nondisclosure; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4t...

Excerpt: ... limitations under Government Code section 12960, Plaintiff has presented sufficient evidence to show disputed issues of fact with respect to her claim of equitable tolling of all causes of action. Based on this evidence, a reasonable trier of fact could find that Plaintiff has met the elements for equitable tolling and thus, her action would be timely. Therefore, the motion for summary judgment or summary adjudication is denied. “The statute o...

Excerpt: ...24- 25.) Plaintiffs explain that Defendants recently acquired a permit to convert a residential property to a cannabis cultivation facility and “[a]llowing such use would increase the amount of traffic on the road, change the type of traffic from passenger to commercial vehicles, and expand the hours that the road is in use.” (Id. at 4:9-11.) Plaintiffs spend the majority of their motion arguing the merits of their underlying claims to limit ...

Excerpt: ...ated in part that “the property subject to the Writ of Possession has a market value of approximately $10,000.00” and any bond should be “in an amount not to exceed $10,000.” (Original Reply at 2:4-5 and 5:18-19.) In its minute order, the Court stated as follows: The appropriate bond amount is addressed only for the first time in the reply, giving the defendants no opportunity to respond. This is particularly unfair as a substantial porti...