Excerpt: ...Complaint that he heard "abnormal noises on three occasions," and that some interior components are defective. Plaintiff claims that Defendant's authorized repair technicians were not able to resolve the problems despite having four opportunities to do so. Defendant has adequately shown that Plaintiff Shafran agreed to the terms of the Tesla Motor Vehicle Order Agreement on October 1, 2019. The Owner Advisor that assisted Plaintiff with the confi...

Excerpt: ...and for Production of Documents (Set One), on Plaintiffs. When responses were not timely served, Ukoha-Ajike's counsel granted an extension and sent meet and confer letters that went unanswered. As responses have not been timely provided, any objections to the discovery requests have been waived. (CCP §§ 2031.300(a), 2030.290(a).) In opposition, Plaintiffs' counsel states that due to settlement discussions, counsel's failure to calendar discove...

Excerpt: ...ing the motion had not been served electronically as the parties allegedly agreed, but rather served via US post upon defense counsel's office and which he claimed not to have received because due to Covid Shelter in Place rules, he was working remotely. The court ordered the motion to be served electronically and continued the matter for further briefing to October 1, 2020. Defendant filed no substantive response and filed a Notice of Non-Opposi...

Excerpt: ...fit. This contention is supported by neither the facts nor the law. California voters approved Proposition 64 on November 2, 2004. In doing so, the California Supreme Court held "the voters found and declared that the UCL's broad grant of standing had encouraged '[f]rivolous unfair competition lawsuits [that] clog our courts[,] cost taxpayers' and 'threaten[ ] the survival of small businesses....' (Prop. 64, § 1, subd. (c) ['Findings and Declara...

Excerpt: ...ion, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . . . , or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs." (CCP § 437c(f)(1).) "A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Id.) "[T]he party movin...

Excerpt: ...nafter "Agreement") on November 19, 2017 in which Cross-Defendant CAL FMC, LLC, agreed to fully indemnify and defend Cross-Complainant Sonesta International Hotels Corporation for the allegations against Cross-Complainant as described in Plaintiff's Complaint filed on May 21, 2019. (FACross-Complaint, ¶¶ 4 and Exhibit A) The third cause of action seeks Declaratory Relief as to the rights, liability and duties of the parties pursuant to the Agre...

Excerpt: ...DARD OF LAW "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matt...

Excerpt: ...T. STANDARD OF LAW "A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her," or "[t]o stay or dismiss the action on the ground of inconvenient forum." (CCP § 418.10(a).) "Failure to make a motion under this section at the time o...

Excerpt: ...lowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation" and "shall be reasonable in amount." (CCP §§ 1033.5(c)(2)-(3).) First, Plaintiff challenges $32,940.66 incurred by Defendant for 17 depositions. Plaintiff argues that those costs are not recoverable due to the fact that Defendant recovered only $8 for its cross-claims compared to the Code of Civil Procedur...

Excerpt: ...tortfeasors or co-obligors, upon giving notice[.]" (CCP § 877.6(a).) "A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault." (CCP § 877.6(c).) To determine whether a settlement i...

Excerpt: ...er a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendments, at any stage of...

Excerpt: ... or proceeding is pending, shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate[.]") STANDARD OF LAW "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the responde...

Excerpt: ...iff's venue selection is not proper under any of the statutory grounds." (Id.) "In opposing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits consistent with the complaint's theory of the type of action but amplifying the allegations relied upon for venue.'" (Id.) The general venue statute states that "[e]xcept as otherwise provided by law and subject to the power of the court to transfer ...

Excerpt: ...exist therefor." (CCP § 527(a).) "The law is well settled that the decision to grant [a restraining order] rests in the sound discretion of the trial court." (Church of Christ in Hollywood v. Superior Court (2002) 99 Cal. App. 4th 1244, 1251 [internal citations omitted].) "[T]rial courts should evaluate two interrelated factors when deciding whether or not to issue [a restraining order]." (Id.) "The first is the likelihood that the plaintiff wil...

Excerpt: ...tion . . . or at any time in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the...

Excerpt: ... demurrer tests the legal sufficiency of the factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which j...

Excerpt: ...possession of such property at the time of the commencement of the action, although it is not essential that he should show that he ever had actual possession of it." (Commercial Disc. Co. v. Cowen (1941) 18 Cal. 2d 610, 613.) "Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is broug...

Excerpt: ...motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (CCP § 425.16(b)(1).) An "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding...

Excerpt: ... complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may b...

Excerpt: ...roversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists," except under certain situations outlined by statute. (CCP § 1281.2.) The Court will not order arbitration of the controversy if: (a) the right to compel arbitration has been waived by the petitioner; (b) grounds exist f...

Excerpt: ...(ii) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant." (CCP § 438(c)(1)(B).) "The grounds for [the] motion . . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (CCP § 438(d).) A defendant may only make this motion if "the defendant has already filed his or her answer to the complaint and the time for the defend...

Excerpt: ...fearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against...

Excerpt: ...ufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be," unless the "complaint ...

Excerpt: ... a motion to transfer venue, "[t]he moving party must overcome the presumption that the plaintiff has selected the proper venue." (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) It is a defendant's "burden to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds." (Id.) "In opposing the motion to change venue, '[t]he plaintiff may bolster his or her choice of venue with counter affidavits ...

Excerpt: ...(2).) "When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just." (CCP § 410.30(a).) MOTION TO DISMISS Plaintiff Robert Todd Smathers ("Plaintiff"), a California resident, brought this action against Defendant on September 30, 2020, alleging claim...