Excerpt: ... of emotional distress ("IIED"), loss of consortium and fraud. LEGAL STANDARD "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 ...

Excerpt: ...Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452; Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1767- 1768.) Plaintiff's Complaint consists of a single cause of action for violation of the Private Attorney General's Act ("PAGA"). Defendant asserts judgment on the pleadings is proper because: 1) Plaintiff failed to exhaust her administrative remedies by providing "proper" legal notice to the Labor Workforce Devel...

Excerpt: ...tent engine defect, which was known to Defendant, and that Defendant actively concealed the defect during and after the period of time the Vehicle was under warranty. Plaintiffs' claims against Defendant arise under the Song-Beverly Act and the CLRA, and include a cause of action for fraud. LEGAL STANDARD "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, 99...

Excerpt: ...aintiff to submit all disputes to arbitration in Georgia. Plaintiff does not dispute that the Parties' agreement contains a mandatory arbitration provision. Rather, Plaintiff asserts the arbitration agreement's forum selection clause is unenforceable and that Plaintiff's PAGA claims are not susceptible to arbitration under governing California law. FORUM SELCTION CLAUSE The forum selection clause in the Parties' arbitration agreement requires all...

Excerpt: ...ioner's Writ, including the caption, in which Petitioner is referred to as "John Doe." USE OF DOE PSEUDONYM Filing a complaint under a pseudonym such as "John Doe" impairs the public's right of access to court records (CRC 2.550(c)). It also violates the statutory requirement that a complaint include "names of all the parties" (CCP § 422.40). Therefore, plaintiffs are not permitted to use a pseudonym absent "exceptional circumstances." (Doe v. L...

Excerpt: ...eaches of the construction agreement, and those matters are set for trial on August 3, 2020. Cook's asserts the construction agreement contains several provisions exculpating Gotham from liability. Cook's contends the agreement is a contract of adhesion, unfairly one-sided and unenforceable (in whole or in part) as against public policy. (See Civil Code section 1668.) Cook's further asserts the issue of enforceability is one for determination by ...

Excerpt: ... of rescission of the Parties' 2013 Agreement. KaiserAir now argues the SAC is susceptible to judgment on the pleadings because the Parties' contractual relationship was rescinded as a matter of law, and such rescission eliminated the bases for all of DI's causes of action in the SAC. DI contends it never offered to rescind the 2013 Agreement and its prayer for rescission was an alternative and conditional offer to rescind the Parties' "Proposed"...

Excerpt: ...on 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." (Del E. Webb Corp. v. Structural Materials Co. (1981) 12...

Excerpt: ...on 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." (Del E. Webb Corp. v. Structural Materials Co. (1981) 12...

Excerpt: ...ther, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer for uncertainty is strictly construed because ambiguities of pleading can be resolved through modern discovery procedures. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will ...

Excerpt: ...ause 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." (Del E. Webb Corp. v. Structural Materials C...

Excerpt: ...ause 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." (Del E. Webb Corp. v. Structural Materials C...

Excerpt: ...s alleged in the pleading are deemed to be true, however improbable they may be." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Goncharov v. Uber Techs., Inc. (2018) 19 Cal.App.5th 1157, 1165.) NEGLIGENCE (FIRST CAUSE OF ACTION) Chase's Demurrer to the First Cause of Action is SUSTAINED. Plaintiff conce...

Excerpt: ...laintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying f...

Excerpt: ...) "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.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true. . . ." (Del E. Webb Corp. v. Structural Mate...

Excerpt: ... 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 the proceeding[.]" (Hirsa v. Superior Court (1981) 1...

Excerpt: ...state a cause of action. (Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586.) Cross-Complainants Clayton E. Swartz, Haeng Cha Swartz and JHK Common, Inc. (collectively the "Swartz's) urge the Court to find Cross-Defendant's Motion untimely under the provisions of California Code of Civil Procedure section 438. Section 438 was enacted in 1994, but a non-statutory motion for judgment on the pleadings predated the statutory motion. As discuss...

Excerpt: ...s entitled "to cross-complain against entities not originally parties to the action [if] there is a sufficient subject matter connection between the action and the cross-complaint." (See Santa Barbara Channelkeeper v. City of San Buenaventura (2018) 19 Cal.App.5th 1176, 1186 [explaining permissive cross-complaint procedure]; Code Civ. Proc. § 428.50(c).) Plaintiffs filed a Complaint on 10/26/18, alleging causes of action related to wrongful evic...

Excerpt: ...es "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." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Courts "give the complaint a reaso...

Excerpt: ...Cotter. On October 31, 2019, Ontrac noticed the deposition of H&H's PMK for December 15, 2019. At the time, this matter was set for trial on December 16, 2019 and the date for discovery cut-off was November 16, 2019. The deposition was thus timely noticed for a date prior to the discovery cut-off. After the initial deposition notice was served, counsel for Ontrac and Erin Murphy, an attorney from Farmer Case & Fedor (one of the two firms represen...

Excerpt: ...n to extend the time to demur in furtherance of justice and on any proper terms. (Cal. Code Civ. Proc. § 473(a)(1).) Good cause for the extension must be shown, and the extension may not exceed "an additional" 30 days without the adverse party's consent. (Cal. Code Civ. Proc. § 1054(a).) Plaintiff filed his Complaint for breach of contract and waste on 6/26/19. Defendant filed no responsive pleading until this Demurrer was filed on 11/7/19. An ...

Excerpt: ...t readily ascertainable. Plaintiff has indicated he is not seeking prejudgment interest from Defendants BWR and McKeiver, and would have so stipulated if Defendants had raised the issue through the meet and confer process. Accordingly, Defendants' motion to strike the prayer for prejudgment interest as to Defendants BWR and McKeiver only is GRANTED. Defendants next move to strike Plaintiff's prayer for emotional distress damages (FAC, Prayer for ...

Excerpt: ...a Cross Complaint, alleging causes of action for violation of the Consumer Legal Remedies Act and violations of the California Business and Professions Code. In her Cross-Complaint, Bryant sought public injunctive relief. (First Amended Cross Complaint ("FACC") at p. 21, ¶ 5.) On 4/17/18, Gimbal filed a motion to compel arbitration and to stay this action. This Court granted Gimbal's motion on 7/12/18 and compelled both Parties to submit "all of...

Excerpt: ...he Colemans only); 4) nuisance; 5) intentional infliction of emotional distress; 6) tenant harassment in violation of the Oakland Rent Ordinance section 8.22.600; 7) violation of the Oakland Tenant Move Out Agreement Ordinance; 8) failure to provide reasonable accommodation in violation of the Fair Employment and Housing Act (as against the Colemans, Bozeman and McKeiver only). The FAC alleges that the Colemans, Quincy Bozeman and Forrest McKeive...

Excerpt: ...ras. 21, 22.) As alleged, Plaintiff followed Wells Fargo's instructions. (See FAC, para. 22.) Regardless, Wells Fargo completed a foreclosure on Plaintiff's home. (See FAC, para. 3.) These allegations are sufficient to maintain Plaintiff's causes of action against Wells Fargo. Wells Fargo's argument in favor of its demurrer hinges largely on the perceived unreasonableness of Plaintiff's actions. (See Def.'s Memo., p. 12:8-19 [arguing Plaintiff's ...