Excerpt: ...roc. Sect. 437c. Legal standard. A motion for summary judgment shall be granted if the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. Sect. 437c(c). A defendant has met its burden of showing that a cause of action has no merit if defendant shows that one or more elements of the cause of action cannot be established, or that there is a co...

Excerpt: ...es not state facts sufficient to constitute a defense to the complaint. (Code of Civ. Proc. (“C.C.P.”) § 438(c)(1)(A).) Plaintiff asserts that the Complaint states facts sufficient to constitute a breach of contract cause of action. (See Plaintiff's Memorandum, p.2:12-16.) Plaintiff claims that the Complaint establishes the existence of a contract between Plaintiff and Defendant, that Defendant breached the contract and that Defendant failed...

Excerpt: ...- Compel Duplicate Deeds. Plaintiff's claim to “compel duplicate deeds” is based on an allegation that two grant deeds relating to real property in Santa Clara County were stolen from a safe. (Complaint para. 65-69.) The Probate Court of this County fully adjudicated the issue of the deeds on the merits when it granted Defendant WALLACE's Rental Properties Petition. The Probate Court ruled that ROBERT had no valid property interest in the pro...

Excerpt: ... (30) days after written notice of entry of this order. Failure to timely file an amended pleading in compliance with this order may result in dismissal of this action. The Request for Judicial Notice of Private Defender Program Office (“PDPO”) is GRANTED. Defendant demurs to the Supplemental Complaint on the grounds that the claims are barred by res judicata, that the pleading is uncertain, and that insufficient facts are stated as to consti...

Excerpt: ...failed to (1) allege facts constituting a violation of the Homeowner's Bill of Rights (HBOR), (2) allege a timely tender of their indebtedness, or (3) establish that they were prejudiced by the alleged violations of the HBOR. Defendant contends, first, that Plaintiffs have failed to state facts constituting a violation of Civ. Code §§ 2923.7 or 2924.9. Civ. Code § 2923.7 provides that “[u]pon request from a borrower who requests a foreclosur...

Excerpt: ... April 11, 2021 labor and materials contract (the “Contract”) between Plaintiff, who sued as Envirobuilt Construction (Ali Ebadar), presumable meaning Ali Ebadar individually and dba Envirobuilt Construction, and Defendants Mia Rusali and Dedy Rusali. Defendants assert that Plaintiff initiated this action in retaliation for their May 28, 2021 Complaint Form filed with the Contractors State License Board (“CSLB”) regarding issues with Plai...

Excerpt: ...ga Taape, Jr. filed this action against Defendant Rosemary Henson for alleged injuries he sustained while visiting property owned by Defendant in February 2020. Plaintiff's Complaint seeks recovery for injuries sustained during the alleged incident. Defendant cross- complained against Cross-Defendant The Broadmoor SF, alleging a cause of action for indemnity and equitable contribution for injuries Plaintiff subsequently sustained while he was a t...

Excerpt: ...tella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191.) But a demurrer “ ‘will lie where the complaint “has included allegations that clearly disclose some defense or bar to recovery.” ' ” (Ibid.) In other words, “ ‘a demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.' ” (Ibid.) B. Discussion Both partie...

Excerpt: ... inferences that may be drawn from those facts.” (Miklosy v. Regents of the University of Cal. (2008) 44 Cal.4th 876, 883.) The Court may “also consider matters that may be judicially noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Cal.App.4th 275, 279.) The Court does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v. Pacific Gas & Electric Co. (2014) 230 Cal.App.4th 567,...

Excerpt: ...ssory fraud on the ground that it is barred by the three-year statute of limitations set forth in Civil Code Section 338, subdivision (d). The Court previously sustained Plaintiff's demurrer on this ground: “Plaintiff contends Defendants' fifth cause of action for promissory is barred by the three-year statute of limitations applicable to causes of action for fraud. Defendants counter that they are only asking for rescission in that cause of ac...

Excerpt: ... GRANTED. A. Request for Continuance In the memorandum of points and authorities supporting her opposition, Defendant contends that “discovery in this matter remains ongoing, with significant discovery items still outstanding,” that “numerous issues related to the allegations contained within the Cross-Complaint for property damage have yet to be fully explored or adjudicated,” and therefore “considering summary judgment at this point i...

Excerpt: ...TAINED WITH LEAVE TO AMEND. Code Civ. Proc. Sect. 430.10. The Demurrer is unopposed. See CRC 8.54(c) (“A failure to oppose a motion may be deemed a consent to the granting of the motion.”). Respondents' 10-28-22 Request for Judicial Notice is GRANTED as to Exhibits A-C. Evid. Code Sect. 452(c). Petitioner Nussbaum shall file and serve a Second Amended Petition for Writ on or before April 3, 2023. All asserted claims appear to be time-barred o...

Excerpt: ...n the amount of $17,086.48. On November 11, 2022, Plaintiff's assignee filed the renewal of judgment, which on December 20, 2022 was served by mail on Defendant. On January 24, 2023, Defendant filed a motion to vacate the renewal of judgment. While Defendant admits to receiving notice of the lawsuit in 2011, he states under penalty of perjury that he was never personally served with the summons and complaint in the action and that he was at work ...

Excerpt: ...of Peide An and Xiao Chen Liu is DENIED. 1. Section 1008(b) Is Inapplicable. IMUSIC asserts Code of Civ. Proc. section 1008(b) as the basis for this motion. (Notice of Motion at 2:7-8.) Section 1008, subdivision (b), however, pertains only to renewed motions. The present motion is not a renewed motion. The previous proceeding was Liu's and An's demurrer and the order sustaining demurrer. Since the present motion is not a renewal of any motion bro...

Excerpt: ...re exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. The clerk of the court is hereby ordered to seal the following doc...

Excerpt: ...ary Judgment (MSJ), filed 12-8-22, is DENIED. (Code Civ. Proc. Sect. 437c). Continental's alternative Motion for Summary Adjudication (MSA) is GRANTED-IN-PART and DENIED-IN-PART, as set forth below. Preliminary comment regarding filed evidence. Both parties have submitted a large volume of documents/evidence, much of which is not cited with particularity (i.e., by page and line number) in the parties' papers. Much of the evidence is not reference...

Excerpt: ...ct Their Home is GRANTED. Any inspection by Defendants or Cross-defendant of the property located at 515 Summit Springs Road in Woodside, San Mateo County, California will be limited to exclude any inspection of the interior of the residential structure located on the property. Upon the motion of any person and a showing of good cause, a court is authorized to enter an order requiring an “inspection…be made only on specified terms and conditi...

Excerpt: ...layman's terms, the ‘barriers' that denied him full and equal access.” MPA, p.8. The Court agrees with Defendant. Plaintiff alleges that he “observed or encountered the following non-compliant conditions: There was not enough knee or toe clearance under the outdoor dining surfaces,” in violation of ADA Standard for Accessible Design, § 306. Complaint, ¶ 11. Plaintiff's assertion that he “observed or encountered” the condition, howev...

Excerpt: ...Cross-Complaint fail because Cross-Complainant admits that Plaintiff Juan Cid (“Plaintiff”) was Cross-Defendant's employee. (See Cross-Defendant's Request for Judicial Notice, Exh. A, Cross-Complainant's Case Management Conference Statement.) However, while the Court may take judicial notice of court records and GRANTS Cross-Defendant's request as to Exhibits A-C, it may not take judicial notice of the truth of the matters asserted in Cross-C...

Excerpt: ...quest for Production of Documents, Set Two (Motion) is GRANTED. Plaintiff's request for monetary sanctions is GRANTED IN PART and DENIED IN PART. As a threshold matter, the Court notes that Defendant filed his opposition on February 10, less than 9 court days before the hearing date in violation of Code of Civil Procedure section 1005, subdivision (b) and rule 3.1300, subdivision (a) of the California Rules of Court. But even upon considering Def...

Excerpt: ...e the prevailing party on their anti-SLAPP motion and are therefore entitled to recover their attorney's fees and costs. Under Code of Civil Procedure section 425.16, subdivision (c)(1),” a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs.” “Given the express legislative preference for awarding fees to successful anti-SLAPP defendants, a party need not succeed in stri...

Excerpt: ...order. Defendant's Motion to Strike is DENIED. Defendant's Request for Judicial Notice is GRANTED with respect to the items numbered 1–7, 10, and 13–16 and DENIED with respect to the items numbered 8–9 and 11–12. I. DEMURRER As a preliminary matter, Defendant's Demurrer addresses both the “Objection to Demurrer Motion [¶] Amended Complaint” (Objection) and “Amended Complaint and Petition for Protection under the American Disabiliti...

Excerpt: ... for Production Nos. 3 and 7 seek information relating to financial statements and financial reports from Philemon Investments during the period from 2015 to 2020. According to Defendants, “[Plaintiff's] restaurant was struggling financially and would have closed regardless of any failed purchase deal with third parties. The information sought in the Requests at issue here are clearly relevant to disprove an element of Plaintiffs' case . . . .�...

Excerpt: ...he date and nature of the acts and pleadings, but not necessarily for the truth of facts asserted within the documents. Julian Volunteer Fire Co. Assn. v. JulianCuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 600, review denied (June 30, 2021); Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, n. 7. The Court, as the parties point out, has already ruled on many of these issues. Now that evidence has been presented through Phase 1 of t...

Excerpt: ...ourt sets out the tentative provided for the February 14, 2023 hearing: The parties are to APPEAR (Zoom appearances are allowed) on Defendant/Cross-Defendant Broadway by the Bay's (“Broadway”) Motion for Determination of Good Faith Settlement. The Court's tentative, in evaluating the policies under Code of Civil Procedure §877.6 and Tech-Bilt Inc., v. Woodward-Clyde & Assoc. (1985) 38 Cal. 3d. 488, 499 is to continue the motion to allow disc...