Excerpt: ... causes of action, for the reasons set forth below. The rules for a demurrer are well known: In reviewing the demurrer, the Court construes the allegations liberally, reading the complaint as a whole, with a view to substantial justice between the parties. Code of Civ. Proc. § 452; Saxer v. Philip Morris Inc. (1975) 54 Cal.App.3d 7, 18. The demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but no...

Excerpt: ...ntiff's Complaint alleges causes of action for breach of contract and common counts based on: (1) an open book, (2) an account stated, (3) money had and received, (4) goods sold and delivered, (5) money lent, and (6) money paid. However, Plaintiff's MPA in support of the motion for summary judgment attempts to demonstrate that Plaintiff has established claims for breach of contract, an open book, and an account stated. (MPA, p.3‐6) Accordingly,...

Excerpt: ...at a claim for contractual indemnity requires that a judgment in an earlier action be entered in order for indemnity to apply. Since the Complaint does not allege that a judgment in the Asian Square Action has been entered, the claim for express indemnity is premature. Plaintiffs do not dispute this. Instead, Plaintiffs argue that the “hold harmless” obligation in MSA paragraph 1.7(a) is something different from indemnity ‐‐ that “hold ...

Excerpt: ...de Civ. Proc. Sect. 430.10(e). Groeneweg's Demurrer does not dispute whether the Complaint sufficiently alleges a fiduciary duty owed to Plaintiff. (See Mot. at 10) (Groeneweg stating: “although not at issue for purposes of demurrer, Plaintiff will be unable to prove that Groeneweg owed any fiduciary duty to Plaintiff. Although Plaintiff may have sufficiently pled the existence of such a [fiduciary] relationship, the true facts show that Groene...

Excerpt: ...ft, Inc.), and which seeks monetary sanctions against Dmarcian, is GRANTED‐IN‐ PART and DENIED‐IN‐PART, as set forth below. Code Civ. Proc. Sect. 1987.1. Plaintiff argues the two subpoenas are overbroad because they seek documents that are irrelevant, privileged and/or subject to privacy rights. Plaintiff does not argue undue burden. Dmarcian argues the requested documents are directly relevant to Plaintiff's asserted claims and Dmarcian'...

Excerpt: ...he same rental unit, the same defendant, and same habitability issues, indicating there are similar issues of fact,” and that both matters will involve the same expert and lay witnesses. MPA, p.3‐ 4. Plaintiffs contend that, as a result, consolidation would conserve judicial resources and reduce unnecessary costs for the parties. Although the cases involve the same rental unit, the cases involve different parties and allege different events t...

Excerpt: ...25.450; 2023.030(a). The motion to compel defendant Fernandez's deposition is GRANTED. Without discounting whatever health issues defendant may be facing, defendant has not provided sufficient evidence establishing that he is unable to sit for a deposition. This case is 1½ years old. The right to depose an adverse party is a basic discovery right. The need for a translator is irrelevant; one can be provided. Breaks can be taken, if needed. Plain...

Excerpt: ...; RAHIM AMIDHOZOUR, AN INDIVIDUAL; AMIDI, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY TENTATIVE RULING: Defendants' motion to compel compliance with subpoena to Law Office of Camelia Mahmoudi is granted as to Document Categories (j) and (k). The motion is denied as to all other categories, without prejudice to propounding a more specific subpoena. A. Objections to a Subpoena Do not Require a Privilege Log. The Code of Civil Procedure contains no ...

Excerpt: ... to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “ ‘[T]he defendant has the initial burden to show that undisputed facts support each element of the affirmative defense . . . .' ” (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289‐290.) If the defendant carries that burden, it “causes a shift, and the opposing party is then subject to a burden of production of [its] own to make a prima facie show...

Excerpt: ...llenge those paragraphs on the basis that that a fee award against her agent/employee co‐Defendants might flow to her. GRANT as to paragraphs 55, 78, 91, 100, and 117. The only contracts at issue are (1) the Lease between Plaintiff and Defendant Giannoni and (2) Asset Purchase Agreement between Plaintiff and Mr. Shinn. Neither of those agreements contains a provision for attorney's fees to a prevailing party in an action arising from the agreem...

Excerpt: ...ris Inc. (1975) 54 Cal.App.3d 7, 18. A. First Cause of Action (Breach of Contract) Defendant Giannoni's demurrer to the first cause of action is OVERRULED. The “condition precedent” argument is misplaced. Defendant's written consent is a condition to Plaintiff's assigning or subletting the premises. It is not a condition precedent to any alleged contract obligation that was allegedly breached. The alleged breach pertains to Lease paragraph 36...

Excerpt: ...overy Bank may be a necessary party to this action pursuant to Code of Civil Procedure § 389. Plaintiff alleges that “In or around February 26, 2020, Discovery Bank obtained a Judgment against [Defendant] Joel and placed a lien on 416 SAN DIEGO.” Complaint, ¶ 13. Plaintiff's prayer for relief asks, among other things, “For title of the Property to be vested in the Plaintiff as of the death of Joe Durham in 2010; . . . For a constructive t...

Excerpt: ...aintiffs' motion does not include a copy of the proposed Fifth Amended Complaint. The supporting declaration states that redlined and clean copies of the proposed pleading are attached as Exhibits A and B, but neither of those exhibits is attached to the declaration. Further, Rule 3.1324(a) requires that the motion must state what allegations are proposed to be deleted or added. The motion fails to comply with this requirement. The moving Points ...

Excerpt: ... of Pendency of Action is ordered EXPUNGED. A court must expunge a lis pendens if the pleading on which the lis pendens is based does not contain a real property claim. (Code of Civ. Proc. (“C.C.P.”) § 405.31.) A party possesses a real property claim where the cause of action in a pleading would, if meritorious, affect "title to, or the right to possession of, specific real property." (Code Civ. Proc. § 405.4.) Defendant argues that the Fir...

Excerpt: ...paid, an open book, and an account stated. To prevail on a cause of action for breach of contract, Plaintiff must prove (1) the contract, (2) Plaintiff's performance of the contract or excuse for nonperformance, (3) Defendant's breach, and (4) resulting damage to Plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; CACI 303) Plaintiff has provided evidence establishing each of these elements through the declaration of Evelyn J. Sican...

Excerpt: ...RANTED. Code Civ. Proc. Sect. 340.1(m)‐(o). On May 9, 2022, the Court heard oral argument pertaining to this motion and continued the hearing to permit the parties to submit supplemental briefing on the issues presented. Having reviewed the entirety of the record, including the supplemental briefs dated 5‐20‐22, 5‐27‐22, and 6‐1‐22, and the Certificates of Corroborative Fact lodged with the Court under seal on 3‐1‐22, the Court ...

Excerpt: ... when Defendant “received” the invoice at issue. Defendant's objections to paragraphs 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, and 17, and Exhibit F and J are overruled. Defendant's objection to Plaintiff's Request for Judicial Notice of an Order from a Santa Clara County Superior Court in Murrain v. Tesla, No. 18CV 334861 is sustained. The Court notes, however, that its ruling on this motion would be unaffected if the challenged evidence were o...

Excerpt: ...rney fees only when authorized by contract or statute. (Code Civ. Proc., §§ 1021 & 1033.5, subd. (a)(10).) TEN6's First Amended Cross‐Complaint (FACC) does not seek attorney fees pursuant to contract. Rather, it seeks fees pursuant to Code Civ. Proc. section 1021.5. The Court previously struck TEN6's request for attorney fees in the original Cross‐Complaint, which also sought fees pursuant to Code of Civil Procedure Section 1021.5. (See Jan...

Excerpt: ...right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special 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.” In ruling on an anti‐SLAPP motion under this section, the Court engages in a two ‐step process. “First, the court decides...

Excerpt: ...s (TEN6) First Amended Complaint (FAC) (Demurrer) is OVERRULED. In the Demurrer, Genesys only challenges TEN6's third cause of action for violation of the Unfair Competition Law (UCL), Bus. & Prof. Code, § 17200, et seq. Citing this Court's previous order sustaining its demurrer to the UCL cause of action and Linear Technology Corp. v. Applied Materials (2007) 152 Cal.App.4th 115 (Linear), Genesys contends TEN6 failed to cure the defects in its ...

Excerpt: ...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, 571.) A demurrer does not lie to only part of a cause action. (See Daniels v. Select Portfolio Servicing, ...

Excerpt: ...uit against Defendant Jim Khorge for breach of a contract (Promissory Note) that contains an attorney's fees clause. The Arbitrator found in favor of Plaintiff Dan Khorge on the breach of contract claim, and Judgment has been entered in favor of Plaintiff Dan Khorge. (1‐4‐22 Clerk's Judgment). Accordingly, the Court finds that Plaintiff Dan Khorge is the prevailing party on his claim for breach of contract, and is entitled to recover his reas...

Excerpt: ...terial breach of the parties' arbitration agreement pursuant to Code of Civil Procedure §§ 1281.97 and 1281.99. As a preliminary matter, Plaintiff's counsel is reminded to comply with California Rules of Court and Local Rules of Court regarding electronically filed documents. Specifically, exhibits must be bookmarked. (CRC Rule 3.1110(f)(4) [“electronic exhibits must include electronic bookmarks with links to the first page of each exhibit an...

Excerpt: ... Case Management Conference Statement that there was a settlement, but no dismissal has yet been filed. Therefore, the Court reposts the tentative posted on May 2, 2022 as the tentative for the June 7, 2022 hearing: The Hon. Nancy L. Fineman discloses that she previously had a financial interest in American Express Company (AXP), which may be a related company to plaintiff American Express National Bank. All of her interests in American Express C...

Excerpt: ...o Rodriguez, was entered into in good faith. The Court, in exercising its discretion after reviewing the record and weighing the Tech‐Bilt factors, finds that the settlement was entered into in good faith, and thus the Motion is GRANTED. Code Civ. Proc. Sect. 877.6; Tech‐Bilt, Inc. v. WoodwardClyde & Associates (1985) 38 Cal.3d 488, 499‐500. As the party challenging the settlement, defendant Transmetro has the burden of showing the settleme...