October 1, 2016

Legal Research

EVICTION

Court Holds That Landlord is Not Allowed to Evict a Tenant for an Immaterial Breach of the Lease

WHY THIS DECISION IS IMPORTANT:

In order to overcome previous decisions that required a breach of a lease, many landlords included a forfeiture provision in the lease. However, this decision confirms that such a provision does not change the underlying law and is insufficient to allow a termination of a lease for a minor breach. While this case dealt with a lease of a rent controlled apartment, there is no reason to believe that it would not apply to all residential units.

COMMENT:

This was perhaps the best case possible for a tenant to bring to challenge the forfeiture provision. Here, the tenant had not complied with the insurance term of the lease for 15 years. Further, the insurance provision only benefited the tenant and the landlord was unable to articulate a reason why not having insurance harmed the landlord. Finally, while giving a 3-day notice on a Friday before a national holiday was technically legal, the court noted that the landlord was gaming the system and was possibly retaliating as there was no reasonable way for the tenant to obtain insurance in time.

2) MOTIONS IN DISCOVERY

Motion to Compel Discovery Responses Versus Motion to Compel Further Discovery Responses

How to determine whether a motion to compel discovery responses or a motion to compel further discovery responses is the proper motion based on the circumstances

Motion to Compel Discovery Responses

Pursuant to C.C.P. ? 2030.290, if Defendant fails to serve timely responses to discovery propounded by Plaintiff, (b) Plaintiff may move for an order compelling responses to the discovery propounded.

The court shall award (d) sanctions to the prevailing party unless it finds that the one subject to sanctions acted with substantial justification or other circumstances that would make imposition of sanctions unjust.
Motion to Compel Further Discovery Responses

Pursuant to C.C.P. ? 2030.300, (a) upon receipt of Defendant’s verified discovery responses, Plaintiff may move for an order compelling further discovery responses if the responses (1) are evasive/incomplete; (2) documents produced pursuant to C.C.P. ? 2030.230 is unwarranted/inadequate; or (3) objection is without merit/too general.

If Plaintiff files the forgoing motion, (b) it must be accompanied by a meet and confer declaration pursuant to C.C.P. ? 2016.040, which provides that facts shall be stated which show a reasonable and good faith attempt at an informal resolution.

Notice of said motion (c) must be filed within 45 days of the service of the verified response (5 extra days if mailed pursuant to C.C.P. ? 1013) or by a specific date agreed upon in writing by both parties; else the right to bring the motion is waived.

The court shall (d) award sanctions to the prevailing party, unless it finds that the one subject to sanctions acted with substantial justification or other circumstances that would make imposition of sanctions unjust.
Relevance of Verifications – Appleton v. Superior Court (1988), 206 Cal.App.3d 632

In Appleton, Plaintiff propounded discovery on Defendant. Accordingly, Defendant served (1) objections to the discovery; (2) without substantive answers; and (3) without a verification to the response.

Incomplete Verified Responses versus Unverified/Unsworn Responses

Generally, the Court held that a motion to compel further discovery responses is the proper motion to be brought when the Defendant serves incomplete verified responses. However, where the Defendant serves responses, but those responses were unverifed, then a motion to compel discovery responses is the proper motion.
Ambiguous Scenarios – Clarified

1. Blanket Objection Responses without Verified Substantive Responses
2. Unverified Substantive Discovery Responses with Objections

Pursuant to C.C.P. ? 2030.250, objections to discovery are distinct from responses to discovery. If a discovery response includes an objection, the responding party’s attorney must sign the response due to the presence of the objection. Similarly, if a response is composes solely of objections, only the responding party’s attorney is required to sign it. Inversely, if substantive responses are provided on behalf of the responding party, then those responses must be signed under oath regardless of whether objections are present.

As a point of clarification, if objections, without substantive discovery responses, are served by Defense counsel in response to Discovery propounded by Plaintiff, then, although Defense counsel has preserved their objections to discovery, technically no responses were provided to discovery, and a motion to compel Defendant’s discovery responses should be the correct motion to file (not a motion to compel Defendant’s Further Discovery Responses). However, this is a draconian point of law, and some judges may or may not agree. Adding to the confusion, the code sections providing for when a motion to compel further discovery responses may be brought, include the scenario where: “An objection to [a discovery request] is without merit or too general”. C.C.P ?? 2030.300(c) (Interrogatories); 2031.310(c) (Inspection Demands); 2033.290(c) (Requests for Admission. Therefore, it could also be argued that when a party serves only objections to propounded discovery, without substantive verified responses, then a motion to compel further discovery responses would be proper (creating the duty to meet and confer and serve notice of motion to compel further discovery responses within 45 days from the date that the discovery responses were served).

On the other hand, if objections, as well as unverified substantive discovery responses are served by Defense counsel in response to Discovery propounded by Plaintiff, then a motion to compel Defendant’s discovery responses should be the proper motion to file because per Appleton, an unverified/unsowrn response is tantamount to no response at all. Again, due to the draconian distinction that Appleton created, a Judge may or may not agree that a motion to compel is the appropriate motion where some form of a response was provided. Therefore, to avoid the risk of allowing the stringent 45 day deadline to serve notice of motion to compel further discovery responses elapse, it is advised that the procedure for filing a motion to compel further discovery is followed.

Inversely, if Defense counsel served Defendant’s verified discovery responses, with or without objections, to Discovery propounded by Plaintiff, but Defendant’s substantive responses are deemed incomplete or insufficient by Plaintiff, then the proper motion to file would clearly be a motion to compel further Discovery responses.
Conclusion

To avoid the Judge denying the motion to compel on procedural grounds, if any form of response, including just objections, or unverified responses, are served, to avoid inadvertently allowing the statutory deadline to file a motion to compel further discovery responses to elapse, one should meet and confer and serve notice within the 45 day deadline to bring the motion to compel further discovery.

Motions to Compel Further Responses to Discovery in California

by litbythenum | Jul 9, 2019 | Articles

Motions to Compel Further Responses to Discovery in California:

A Review of the Mandatory Codes and Rules

There’s a rule for everything in California State Court civil litigation. A single procedure (e.g., filing a complaint, answering a complaint, filing a motion, opposing a motion, serving discovery, responding to discovery, etc.) may be governed by the Code of Civil Procedure (“C.C.P.”), the California Rules of Court (“C.R.C.”), local court rules, or all three. These codes and rules dictate format, content, and time limitations. Depending upon the procedure in question, there may even be required California Judicial Council forms, or local forms, or both. Failure to apply a code, a rule, or use a mandatory form can have serious consequences, among them, waiving the right to do whatever it was you were attempting to do, or even being sanctioned by the court. That’s why everyone in the law office, from the most experienced litigator to the most inexperienced trainee (attorney, paralegal, legal secretary, etc.) relies on Litigation By The Numbers® (“LBTN”), a 490-page California civil practice guide updated twice yearly.

A motion to compel further responses to interrogatories is a prime example. (This is where you’ve received responses to interrogatories, believe them to be incomplete, and you want the court to order the responding party to provide further responses.) Drafting, filing, and serving a motion to compel further responses and calendaring all associated deadlines demands strict compliance with scores of requirements.

Here are just a few of the California codes and rules of court which will have to be applied correctly to ensure that the moving papers are complete and in the proper format, the motion is brought timely, the motion is filed in the correct place with the correct filing fee, the papers are served correctly and timely, etc.

C.C.P. § 12c
C.C.P. § 1005(b)
C.C.P. § 1013 or 1010.6
C.C.P. § 2023.040
C.C.P.§ 2024.020
C.C.P. § 2030.300
Gov’t. Code §70617(a)
C.R.C., Rule 3.1110
C.R.C., Rule 3.1112
C.R.C., Rule 3.1113
C.R.C., Rule 3.1308
C.R.C., Rule 3.1345

Yes, every one of those codes and rules governs some aspect of a motion to compel further responses to interrogatories.

Now, assuming you find all of the applicable codes and rules, it is not enough to simply read them. They have to be digested, understood, and correctly applied. Those related to calculating deadlines interrelate and must be applied in the right order. Fortunately there’s help: LBTN guides the reader through these steps. View an excerpt from the Motions chapter here.

Let’s look a bit deeper into a few of these rules.

Time in Which to Bring a Motion to Compel Further Responses:

The motion to compel further responses has to be brought within 45 days of service of the response. (C.C.P. § 2030.300) Sounds simple enough, but it’s not. You have to understand when something is deemed served. You have to know how to count to that 45th day, what to do if that day lands on a holiday or weekend, and, where the responses were not personally served, how many days by which to extend that 45-day deadline. This could vary from two court days to five calendar days to ten calendar days, depending upon the service method and, when served by mail, the location of the parties. These tasks require application of C.C.P. §§12 and 1013 (or 1010.6 for electronic service), and possibly 12a. When calendaring deadlines, one must also be mindful of all of the California state court holidays (there are three in addition to the Federal holidays). [LBTN devotes ten pages to Calendaring in California State Court, which includes this essential information.]

Requirements Common to Regular Motions

Notice: Once you have your hearing date, you must calculate the last day to serve your notice and moving papers. The motion must be filed and served at least 16 court days prior to the hearing. (C.C.P. § 1005(b)) Service must be made earlier if the papers are not personally served. How much earlier depends upon the service method (mail or overnight mail, and, where authorized, electronic service or fax). The extensions, found in C.C.P. § 1005(b), are just different enough from the extensions mentioned above to make it dangerously confusing (2 calendar days under one scenario; 2 court days under another). Moreover, one must know how to count the days: is it backward from the hearing date or forward from the notice date? Recently enacted C.C.P. § 12c solves that: count backward from the hearing 16 court days and then add the applicable extension. [LBTN has an entire chapter devoted to “Filing, Service, and Calendaring.” It includes detailed information about each method of service, when they are authorized, the various extensions of time, and detailed instructions on calculating deadlines.]

Format: The motion must comply with the format requirements contained in C.R.C., Rules 3.1110 and 3.1112. These include what has to be in the title and below the title, what has to be in the opening paragraph, what to include when monetary sanctions are sought, the required parts of a motion and what must be included in each, form of exhibits, proper binding, proper numbering of pages, etc. The memorandum of points and authorities must comply with C.R.C., Rule 3.1113 with respect to contents, proper format of case citations, page limitations, and inclusion of a table of contents and table of authorities where required. [LBTN explains these requirements and provides easy-to-follow examples.]

Content Requirements Specific to Discovery Motions and/or Motions to Compel Further Responses

Monetary sanctions: If sanctions are sought, C.C.P. § 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.

Meet and confer: A prerequisite to bringing a motion to compel further responses is a reasonable and good faith attempt to informally resolve the issues presented by the motion. The motion must include a “a good faith declaration,” stating that the attempt was indeed made. (C.C.P. § 2030.300) Certain types of cases in certain courts, e.g., Personal Injury Actions in Los Angeles county, might also require an informal discovery conference with the judge before bringing the motion. [This, too, is covered in LBTN.]

Separate statement: All motions to compel further responses in California state court must include a separate statement in accordance with C.R.C., Rule 3.1345, stating the specific discovery request, the response given, the factual and legal reasons for compelling further responses, etc.

Then there are the California codes and rules of court governing:

Telephonic appearances — when available and how and when to request one
Hearing fees
Tentative rulings – whether you have to appear at the hearing or may request an appearance
Notice of ruling
Proposed orders

A misstep at any point may result in denial of the motion and a waiver of the right to compel further responses. Of course if you are on the receiving end of the motion to compel, you’ll need to know your deadline for opposing the motion, the format for doing so, etc. If your opposition is late, the court may ignore it.

These consequences can be eliminated by using LBTN, which pulls together the California codes, rules of court and Judicial Council forms for commonly-encountered tasks in superior court civil litigation and explains them, step-by-step. Do yourself a favor and check out this essential California civil litigation practice guide updated twice yearly. The sooner you do, the sooner you’ll have it.

Contract Law: Fraud Cases

What is Breach of Contract?

A breach is a failure to abide by a law, an agreement or set of rules. A breach of contract occurs when a party, or parties, to a legally binding agreement fail to follow some or all of its terms. The binding contract in question between the parties can either be a written agreement or a verbal one.An example of a breach of contract can occur if someone hired a contractor to build a shed in their backyard. All terms are agreed upon, including a total payment of $1,000, with half to be paid at the onset of the job and the remainder to be paid upon completion. The contractor receives the initial $500 payment, starts and timely completes the shed. However, they only receive $250 as a final payment. A failure to pay on time, or not pay at all, constitutes a breach of contract. In this example, the individual that hired the contractor breached the agreement.In addition to a failure to pay on time, other breach of contract examples can include:

Failure to deliver goods or services;
Providing inferior goods or services; and,
Failure to complete a job.

Under contract law, the non-breaching party, typically, has a right to some form of remedy. Remedies for a breach of contract claim can include:

Monetary damages;
Specific performance; and,
Recission.

The remedy that the court imposes will depend on the particulars of a case. Courts review the totality of circumstances in breach of contract matters to determine a just outcome.

What is Contract Fraud?

Contract fraud in contract law is the purposeful misrepresentation of a key element made by a party during the contract formation. The other party to the contract relies upon the information provided as true. Their decision to enter into the contract is based on the other party’s deceit.

Examples of contract fraud cases can include:

Person A wants professional photos of their family taken. They want a photographer
with ample experience to do the job. Person B tells Person A they have 10 years of family portrait photography experience. However, unbeknownst to Person A, Person B is lying and has no professional photographic experience whatsoever. Person A contracts with Person B to do the job. By lying about their experience, Person B committed contract fraud.
Person Y wants to purchase a used vehicle. Person Z is selling their car. Person Z tells Person Y that the car has 30,000 miles on it. However, Person Z rolled back the mileage on the vehicle and it actually has 100,000 miles on it. This is substantially more than what Person Y believes to be the true mileage. Person Y ends up purchasing the vehicle. Person Z’s misrepresentation about the mileage on the car amounts to contract fraud.

Contract fraud typically deals with one party’s dishonest behavior in order to make economic gains. Contract fraud is illegal and courts normally void fraudulent contracts. Breach of contract usually concerns a miscommunication and/or dissatisfied expectations amongst the parties. Often, with a breach of contract, a judge aims to clear up any miscommunications and put the parties as close as possible to fulfilment of the original contract.

Can I File a Fraud Claim Simultaneously or Within a Breach of Contract Lawsuit?

In some instances, a lawsuit may involve both a fraud claim and a breach of contract claim. While the claims cannot be filed simultaneously, a court will typically focus on the breach of contract claim and dismiss the fraud claim. The rationale is that the claims are duplicitous and the fraudulent allegations are implied in the breach of contract claim.

What are the Different Types of Contract Fraud?

Generally, there are two types of contract fraud: fraud in the inducement and fraud in the factum.

Fraud in the inducement, also known as fraudulent inducement of contract, occurs when a party knowingly provides misinformation to another in order to make a deal. The other party presumes the contractual information provided is accurate and enters into the contract. A fraudulent inducement of a contract is illegal and a court will typically rescind, or cancel, the contract.

Fraud in the factum also involves deception by one party. The other party, however, unknowingly enters into a contractual agreement because of the deception. Fraud in the factum is used as a legal defense by a party that unwittingly entered a contractual obligation because of deception.

At the root of fraud in the inducement and fraud in the factum is an intentional misrepresentation. If a party argues that the intentional misrepresentation was a breach of contract they must prove the elements of fraud in the inducement or fraud in the factum. These elements include:

A material misrepresentation of fact was made.
The individual making the misrepresentation, knew it to be untrue.
The individual making the misrepresentation, did so to persuade someone to enter into an agreement.
The misrepresentation was relied upon by the victim.
The victim would not have agreed to the terms if they knew the truth.

When May a Breach of Contract Claim Evolve into or Include a Fraud Claim?

Generally, breach of contract claims do not involve fraud claims. The exception to this rule occurs where a fraud claim derives from a different set of facts than the breach of contract issue. The courts will allow for the two cases to be filed if these parameters can be met.

Should I Hire an Attorney for Help with a Breach of Contract Fraud Claim?

If you have questions regarding breach of contract or a fraud claim, it is best to speak with an experienced and knowledgeable business attorney to assist you with your matter. They will be able to present all the options available and pursue the best remedy for your legal matter.

Post Your Case – Get Answers from Multiple Business Lawyers

Last Modified: 2020-08-13 01:30:25

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Senior Editor

Ken joined LegalMatch in January 2002. Since arriving, Ken has worked with a wide assortment of talented lawyers, paralegals, and law students to grow LegalMatch’s Law Library into a comprehensive source of legal information, written in a way that is accessible to everyone. Prior to joining LegalMatch, Ken practiced Law for four years in San Francisco, California, handling a wide range of cases in areas as diverse as Family Law (divorces, child custody and support, restraining orders, paternity), Real Estate (property ownership, landlord/tenant disputes for residential and commercial property), Criminal Law (misdemeanors, felonies, juvenile, traffic infractions), Personal Injury (automobile accidents, … Read More

7) Material Breach:Breach of Contract

How do you know whether your contract is “irreparably broken” in the eyes of the law?

By Richard Stim, Attorney

In contract law, a “material” breach of contract is a breach (a failure to perform the contract) that strikes so deeply at the heart of the contract that it renders the agreement “irreparably broken” and defeats the purpose of making the contract in the first place. The breach must go to the very root of the agreement between the parties. If there is a material breach (sometimes referred to as a “total” breach), the other party can simply end the agreement and go to court to try to collect damages caused by the breach.

In deciding whether a breach is material, courts often look to guidance from a legal guide known as the Restatement (Second) of Contracts, as well as to other court decisions that arose from contract disputes. Generally, the factors discussed below are relevant to determining whether a breach of contract was a material breach.

Is The Other Party Deprived of “The Heart” of What It Bargained for?

For example, if the BMW dealer promised you a radio and fancy hubcaps, but the car that was delivered lacked both, that would probably not deprive you of the true purpose of your deal–the car–and would be less likely to be a material breach. You wouldn’t be able to end the contract (though you could demand the dealer remedy the situation in some way). On the other hand, if a used-car dealer promised you the very Ford Mustang driven by Steve McQueen in Bullitt, then presented you with a different Mustang, that would be a material breach. In this instance, your bargain wasn’t about the make and model of the car; it was about one particular vehicle.

Can the Other Party Be Compensated for The Loss?

Will money solve the problem and, if so, how much? If it’s something that can be fixed with reasonable effort or expense, while keeping the contract in effect, it’s less likely to be material. Consider the hubcap-free, radio-less BMW, mentioned above. Because the dealer could easily fix the problem by installing the promised features, this probably isn’t a material breach of the contract, and you wouldn’t be able to cancel the contract.

What Will the Breaching Party Lose (or Forfeit)?

How much has the breaching party already done to fulfill its end of the deal? This factor often hinges on timing: how far along the parties are in carrying out their contractual obligations when the breach of contract occurs. Consider a homeowner who hires a contractor to create a custom kitchen. If the homeowner declares a breach of contract when the kitchen is near completion, the contractor will lose much more in time and money than if the breach of contract was declared before construction began. If most of the contractual obligations have been completed, you will be less likely to be able to say that a breach of contract is material and thus be able to cancel the contract.

What Are the Chances That the Breaching Party Will Fix Things?

The more likely it is that the breaching party can and will fix the problem, the less likely the breach of contract is material. If the other party shows that problems are likely to be solved; for instance, it provides security for its promised payment, or some other reasonable assurance that it will honor the deal, or if the economy or market shifts in favor of performance, then the breach of contract is less likely to be material. On the other hand, signs of financial weakness or defaults on payments show that the problems are less likely to be corrected (and make it more likely that you could rely on a material breach of contract to cancel the contract).

Did the Breaching Party Act in Bad Faith?

If the breach of contract was willful or resulted from bad faith or unfair dealing and the case is brought to court, the court is more likely to presume a material breach of contract. For example, one court found that an executive who was insubordinate and refused to follow directions had materially breached his employment agreement. On the other hand, a breach that results from simple carelessness (“negligence”) or circumstances beyond the party’s control is less likely to be considered a material breach of contract.

Is the Non-Breaching Party “Ready, Willing, and Able” to Perform?

It’s not enough to simply claim that the other party committed a material breach of contract. The non-breaching party must also be “ready, willing, and able” to perform its obligations under the contract, if it hasn’t performed them already. In one case, for example, a New York man contracted to buy a vacation house “as is” for $610,000. When the sellers refused to go through with the deal, the buyer claimed breach of contract and sued. The buyer lost because he could not show he was “ready, willing and able” to perform the contract, because he wanted substantial improvements to the heating and plumbing systems. In other words, he was not willing to take the house “as is.”

What Does the Contract Say?

Some contracts provide guidance as to what constitutes a material breach of contract. Rather than rely on a judge’s discretion or interpretation of the law should a dispute arise, the parties can include a clause in the contract stating that a breach of certain provisions of the contract will be considered material breaches. For example, a clause may state that certain activities — a failure to make payments, a failure to maintain insurance, or a failure to achieve certain sales goals — will be considered material breaches of the contract. Because delays in performance and payment are not always considered material breaches, some contracts add a statement to the contract that “time is of the essence,” which means that these types of delays will be considered material breaches of the contract.

8) http://cristinalipan.tripod.com/id29.html

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Restatement 2nd of Contracts

Law School Help

***Please note that the comments and illustrations have not been included here. Press ctrl+f to search for a specific section, or just scroll down, they are in numbered order.

Restatement 2nd of Contracts

§ 1. Contract Defined

A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.

§ 2. Promise; Promisor; Promisee; Beneficiary

(1) A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.

(2) The person manifesting the intention is the promisor.

(3) The person to whom the manifestation is addressed is the promisee.

(4) Where performance will benefit a person other than the promisee, that person is a beneficiary.

§ 3. Agreement Defined; Bargain Defined

An agreement is a manifestation of mutual assent on the part of two or more persons. A bargain is an agreement to exchange promises or to exchange a promise for a performance or to exchange performances.

§ 5. Terms Of Promise, Agreement, Or Contract

(1) A term of a promise or agreement is that portion of the intention or assent manifested which relates to a particular matter.

(2) A term of a contract is that portion of the legal relations resulting from the promise or set of promises which relates to a particular matter, whether or not the parties manifest an intention to create those relations.

§ 6. Formal Contracts

The following types of contracts are subject in some respects to special rules that depend on their formal characteristics and differ from those governing contracts in general:

(a) Contracts under seal,

(b) Recognizances,

(d) Letters of credit.

§ 7. Voidable Contracts

A voidable contract is one where one or more parties have the power, by a manifestation of election to do so, to avoid the legal relations created by the contract, or by ratification of the contract to extinguish the power of avoidance.

§ 8. Unenforceable Contracts

An unenforceable contract is one for the breach of which neither the remedy of damages nor the remedy of specific performance is available, but which is recognized in some other way as creating a duty of performance, though there has been no ratification.

§ 9. Parties Required

There must be at least two parties to a contract, a promisor and a promisee, but there may be any greater number.

§ 10. Multiple Promisors And Promisees Of The Same Performance

(1) Where there are more promisors than one in a contract, some or all of them may promise the same performance, whether or not there are also promises of separate performances.

(2) Where there are more promisees than one in a contract, a promise may be made to some or all of them as a unit, whether or not the same or another performance is separately promised to one or more of them.

§ 11. When A Person May Be Both Promisor And Promisee

A contract may be formed between two or more persons acting as a unit and one or more but fewer than all of these persons, acting either singly or with other persons.

§ 12. Capacity To Contract

(1) No one can be bound by contract who has not legal capacity to incur at least voidable contractual duties. Capacity to contract may be partial and its existence in respect of a particular transaction may depend upon the nature of the transaction or upon other circumstances.

(2) A natural person who manifests assent to a transaction has full legal capacity to incur contractual duties thereby unless he is

(a) under guardianship, or

(b) an infant, or

(d) intoxicated.

§ 13. Persons Affected By Guardianship

A person has no capacity to incur contractual duties if his property is under guardianship by reason of an adjudication of mental illness or defect.

§ 14. Infants

Unless a statute provides otherwise, a natural person has the capacity to incur only voidable contractual duties until the beginning of the day before the person’s eighteenth birthday.

§ 15. Mental Illness Or Defect

(1) A person incurs only voidable contractual duties by entering into a transaction if by reason of mental illness or defect

(a) he is unable to understand in a reasonable manner the nature and consequences of the transaction, or

(b) he is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his condition.

(2) Where the contract is made on fair terms and the other party is without knowledge of the mental illness or defect, the power of avoidance under Subsection (1) terminates to the extent that the contract has been so performed in whole or in part or the circumstances have so changed that avoidance would be unjust. In such a case a court may grant relief as justice requires.

§ 16. Intoxicated Persons

A person incurs only voidable contractual duties by entering into a transaction if the other party has reason to know that by reason of intoxication

(a) he is unable to understand in a reasonable manner the nature and consequences of the transaction, or

(b) he is unable to act in a reasonable manner in relation to the transaction.

§ 17. Requirement Of A Bargain

(1) Except as stated in Subsection (2), the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.

(2) Whether or not there is a bargain a contract may be formed under special rules applicable to formal contracts or under the rules stated in §§ 82-94.

§ 18. Manifestation Of Mutual Assent

Manifestation of mutual assent to an exchange requires that each party either make a promise or begin or render a performance.

§ 19. Conduct As Manifestation Of Assent

(1) The manifestation of assent may be made wholly or partly by written or spoken words or by other acts or by failure to act.

(2) The conduct of a party is not effective as a manifestation of his assent unless he intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents.

(3) The conduct of a party may manifest assent even though he does not in fact assent. In such cases a resulting contract may be voidable because of fraud, duress, mistake, or other invalidating cause.

§ 20. Effect Of Misunderstanding

(1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and

(a) neither party knows or has reason to know the meaning attached by the other; or

(b) each party knows or each party has reason to know the meaning attached by the other.

(2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if

(a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or
(b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.

§ 21. Intention To Be Legally Bound

Neither real nor apparent intention that a promise be legally binding is essential to the formation of a contract, but a manifestation of intention that a promise shall not affect legal relations may prevent the formation of a contract.

§ 22. Mode Of Assent: Offer And Acceptance

(1) The manifestation of mutual assent to an exchange ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the other party or parties.

(2) A manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even though the moment of formation cannot be determined.

§ 23. Necessity That Manifestations Have Reference To Each Other

It is essential to a bargain that each party manifest assent with reference to the manifestation of the other.

§ 24. Offer Defined

An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.

§ 25. Option Contracts

An option contract is a promise which meets the requirements for the formation of a contract and limits the promisor’s power to revoke an offer.

§ 26. Preliminary Negotiations

A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.

§ 27. Existence Of Contract Where Written Memorial Is Contemplated

Manifestations of assent that are in themselves sufficient to conclude a contract will not be prevented from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but the circumstances may show that the agreements are preliminary negotiations.

§ 28. Auctions

(1) At an auction, unless a contrary intention is manifested,

(a) the auctioneer invites offers from successive bidders which he may accept or reject;

(b) when goods are put up without reserve, the auctioneer makes an offer to sell at any price bid by the highest bidder, and after the auctioneer calls for bids the goods cannot be withdrawn unless no bid is made within a reasonable time;

(c) whether or not the auction is without reserve, a bidder may withdraw his bid until the auctioneer’s announcement of completion of the sale, but a bidder’s retraction does not revive any previous bid.

(2) Unless a contrary intention is manifested, bids at an auction embody terms made known by advertisement, posting or other publication of which bidders are or should be aware, as modified by any announcement made by the auctioneer when the goods are put up.

§ 29. To Whom An Offer Is Addressed

(1) The manifested intention of the offeror determines the person or persons in whom is created a power of acceptance.

(2) An offer may create a power of acceptance in a specified person or in one or more of a specified group or class of persons, acting separately or together, or in anyone or everyone who makes a specified promise or renders a specified performance.

§ 30. Form Of Acceptance Invited

(1) An offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act, or may empower the offeree to make a selection of terms in his acceptance.

(2) Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances.

§ 31. Offer Proposing A Single Contract Or A Number Of Contracts

An offer may propose the formation of a single contract by a single acceptance or the formation of a number of contracts by successive acceptances from time to time.

§ 32. Invitation Of Promise Or Performance

In case of doubt an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses.

§ 33. Certainty

(1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.

(2) The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.

(3) The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.

§ 34. Certainty And Choice Of Terms; Effect Of Performance Or Reliance

(1) The terms of a contract may be reasonably certain even though it empowers one or both parties to make a selection of terms in the course of performance.

(2) Part performance under an agreement may remove uncertainty and establish that a contract enforceable as a bargain has been formed.

(3) Action in reliance on an agreement may make a contractual remedy appropriate even though uncertainty is not removed.

§ 35. The Offeree’s Power Of Acceptance

(1) An offer gives to the offeree a continuing power to complete the manifestation of mutual assent by acceptance of the offer.

(2) A contract cannot be created by acceptance of an offer after the power of acceptance has been terminated in one of the ways listed in § 36.

§ 36. Methods Of Termination Of The Power Of Acceptance

(1) An offeree’s power of acceptance may be terminated by

(a) rejection or counter-offer by the offeree, or

(b) lapse of time, or

(d) death or incapacity of the offeror or offeree.

(2) In addition, an offeree’s power of acceptance is terminated by the non-occurrence of any condition of acceptance under the terms of the offer.

§ 37. Termination Of Power Of Acceptance Under Option Contract

Notwithstanding §§ 38-49, the power of acceptance under an option contract is not terminated by rejection or counter-offer, by revocation, or by death or incapacity of the offeror, unless the requirements are met for the discharge of a contractual duty.

§ 38. Rejection

(1) An offeree’s power of acceptance is terminated by his rejection of the offer, unless the offeror has manifested a contrary intention.

(2) A manifestation of intention not to accept an offer is a rejection unless the offeree manifests an intention to take it under further advisement.

§ 39. Counter-Offers

(1) A counter-offer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer.

(2) An offeree’s power of acceptance is terminated by his making of a counter-offer, unless the offeror has manifested a contrary intention or unless the counter-offer manifests a contrary intention of the offeree.

§ 40. Time When Rejection Or Counter-Offer Terminates The Power Of Acceptance

Rejection or counter-offer by mail or telegram does not terminate the power of acceptance until received by the offeror, but limits the power so that a letter or telegram of acceptance started after the sending of an otherwise effective rejection or counter-offer is only a counter-offer unless the acceptance is received by the offeror before he receives the rejection or counter-offer.

§ 41. Lapse Of Time

(1) An offeree’s power of acceptance is terminated at the time specified in the offer, or, if no time is specified, at the end of a reasonable time.

(2) What is a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made.

(3) Unless otherwise indicated by the language or the circumstances, and subject to the rule stated in § 49, an offer sent by mail is seasonably accepted if an acceptance is mailed at any time before midnight on the day on which the offer is received.

§ 42. Revocation By Communication From Offeror Received By Offeree

An offeree’s power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract.

§ 43. Indirect Communication Of Revocation

An offeree’s power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect.

§ 44. Effect Of Deposit On Revocability Of Offer

An offeror’s power of revocation is not limited by the deposit of money or other property to be forfeited in the event of revocation, but the deposit may be forfeited to the extent that it is not a penalty.

§ 45. Option Contract Created By Part Performance Or Tender

(1) Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree tenders or begins the invited performance or tenders a beginning of it.

(2) The offeror’s duty of performance under any option contract so created is conditional on completion or tender of the invited performance in accordance with the terms of the offer.

§ 46. Revocation Of General Offer

Where an offer is made by advertisement in a newspaper or other general notification to the public or to a number of persons whose identity is unknown to the offeror, the offeree’s power of acceptance is terminated when a notice of termination is given publicity by advertisement or other general notification equal to that given to the offer and no better means of notification is reasonably available.

§ 47. Revocation Of Divisible Offer

An offer contemplating a series of independent contracts by separate acceptances may be effectively revoked so as to terminate the power to create future contracts, though one or more of the proposed contracts have already been formed by the offeree’s acceptance.

§ 48. Death Or Incapacity Of Offeror Or Offeree

An offeree’s power of acceptance is terminated when the offeree or offeror dies or is deprived of legal capacity to enter into the proposed contract.

§ 49. Effect Of Delay In Communication Of Offer

If communication of an offer to the offeree is delayed, the period within which a contract can be created by acceptance is not thereby extended if the offeree knows or has reason to know of the delay, though it is due to the fault of the offeror; but if the delay is due to the fault of the offeror or to the means of transmission adopted by him, and the offeree neither knows nor has reason to know that there has been delay, a contract can be created by acceptance within the period which would have been permissible if the offer had been dispatched at the time that its arrival seems to indicate.

§ 50. Acceptance Of Offer Defined; Acceptance By Performance; Acceptance By Promise

(1) Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.

(2) Acceptance by performance requires that at least part of what the offer requests be performed or tendered and includes acceptance by a performance which operates as a return promise.

(3) Acceptance by a promise requires that the offeree complete every act essential to the making of the promise.

§ 51. Effect Of Part Performance Without Knowledge Of Offer

Unless the offeror manifests a contrary intention, an offeree who learns of an offer after he has rendered part of the performance requested by the offer may accept by completing the requested performance.

§ 52. Who May Accept An Offer

An offer can be accepted only by a person whom it invites to furnish the consideration.

§ 53. Acceptance By Performance; Manifestation Of Intention Not To Accept

(1) An offer can be accepted by the rendering of a performance only if the offer invites such an acceptance.

(2) Except as stated in § 69, the rendering of a performance does not constitute an acceptance if within a reasonable time the offeree exercises reasonable diligence to notify the offeror of non-acceptance.

(3) Where an offer of a promise invites acceptance by performance and does not invite a promissory acceptance, the rendering of the invited performance does not constitute an acceptance if before the offeror performs his promise the offeree manifests an intention not to accept.

§ 54. Acceptance By Performance; Necessity Of Notification To Offeror

(1) Where an offer invites an offeree to accept by rendering a performance, no notification is necessary to make such an acceptance effective unless the offer requests such a notification.

(2) If an offeree who accepts by rendering a performance has reason to know that the offeror has no adequate means of learning of the performance with reasonable promptness and certainty, the contractual duty of the offeror is discharged unless

(a) the offeree exercises reasonable diligence to notify the offeror of acceptance, or

(b) the offeror learns of the performance within a reasonable time, or

Chapter 3 topic 5

To be continued

-JOURNAL ARTICLE

The Effect of a Decision Sustaining a Demurrer to a Complaint

CLICK HERE : 782611

CASELAW : “When a demurrer to a complaint has been sustained without leave to amend, the only judgment which properly may be entered is a dismissal of the action.”

In Stafford v. Ballinger (1962) 199 Cal. App. 2d 289 [18 Cal. Rptr. 568], a judgment of dismissal was entered after demurrers to the third amended complaint were sustained without leave to amend. It does not appear what proceedings were taken to obtain the dismissal. The court said (p. 298): “When a demurrer to a complaint has been sustained without leave to amend, the only judgment which properly may be entered is a dismissal of the action.”

Rudolph v. Fulton (1960) 178 Cal. App. 2d 339 [2 Cal. Rptr. 807], in affirming a judgment of dismissal based upon an order sustaining demurrer without leave to amend, we said, citing Berri v. Superior Court (1955) 43 Cal. 2d 856 [279 P.2d 8], and 2 Witkin, California Procedure, p. 1496, that such an order “is followed as a matter of course by a judgment of dismissal, which is made and entered in the absence of both parties …” (P. 343.) All Witkin, supra, says on the subject is, “If the plaintiff elects not to amend or fails to file an amended pleading within the prescribed time … a final judgment of dismissal will be rendered against him on motion by the defendant. (P. 1496; last italics added.)

https://law.justia.com/cases/california/court-of-appeal/2d/220/744.html#:~:text=298)%3A%20%22When%20a%20demurrer,Rudolph%20v.

28- Demurrers Require “meet and confer” before filing CCP §430.41

By Michael Simkin on June 3, 2016

POSTED IN CIVIL PROCEDURE

C.C.P. § 430.41 added to require demurring party to attempt to meet and confer prior to filing demurrer and file meet and confer declaration with demurrer; limits on subsequent demurrers; limits amendments to pleadings after demurrer. This statute also makes other changes, but some useful parts of this new law are:

“…meet and confer in person or by telephone ..” So no lame self-serving letters. But what happens if the opposing lawyer is a douche bag and voids my call? Even better …..

” The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension….” [emphasis added]

Don’t get too excited because the substance of your meet and confer is really meaningless because the statute also states:

“(4) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”

Also, this section does NOT apply to ” A proceeding in forcible entry, forcible detainer, or unlawful detainer.”

29-

Demurrer to First Amended Complaint (Judge Patricia Nieto)

LexRoll.com > LexRoll (CA) > California Courts of Appeal Opinions > Demurrer to First Amended Complaint (Judge Patricia Nieto)

Case Number:?BC656703????Hearing Date:?November 05, 2018????Dept:?24

Demurrer to the First Amended Complaint by Defendant Timothy Munyer is SUSTAINED with leave to amend.

Background:

??????On April 5, 2017, Plaintiff Tyrone A. Morrison (?Plaintiff or ?Morrison?) filed the initial complaint. On June 15, 2017, Plaintiff filed the verified First Amended Complaint (?FAC?), alleging nine causes of action for: 1) declaratory relief, 2) quiet title, 3) fraud (CC ? 1710(1)), 4) fraud (CC ? 1710(3)), 5) fraud (CC ? 1710(4)), 6) constructive trust, 7) accounting, 8) unjust enrichment, and 9) breach of contract. On August 21, 2018, Plaintiff filed a notice of errata to the FAC, attaching Exhibit A, the partnership agreement which is subject to this litigation. On August 31, 2018, Defendant Timothy Munyer (?Defendant? or ?Munyer?) filed the instant demurrer to each cause of action. On October 19, 2018, Defendant filed a notice of non-opposition to the demurrer. On October 23, 2018, Plaintiff filed an opposition. On October 24, 2018, the Court continued the hearing on demurrer to November 5, 2018.

????????????The FAC arises from a business dispute between partners. In 2011, Morrison was contacted by Defendants Don Jamison (?Jamison?) and Herbert Duffus (?Duffus?) with a proposal of opening a restaurant and bar in the Inglewood California. Jamison and Duffus introduced Plaintiff to Munyer, who owned three properties suitable for the venture at 675 and 685 S. La Brea Ave. and 148 E. Spruce Ave., all in Inglewood. The parties agreed to an equal share of the acquisition. The parties executed the agreement on Dcember 22, 2011, whereby Plaintiff would invest $300,000.00 of his own funds which would be repaid no later than ay 10, 2014. Plaintiff later discovered that Jamison and Duffus deceived him about their finances and they actually had no funds.

Analysis

Legal Standard

????????????A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda?(2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.?(2004) 116 Cal.App.4th 968, 994.) ?A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., ?? 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie?(1972) 28 Cal. App. 3d 714, 721.) A ?demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.? (S. Shore Land Co. v. Petersen?(1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

????????????A special demurrer for uncertainty, Code of Civil Procedure section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond?i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her.??(Khoury v. Maly?s of Calif., Inc.?(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, ?ambiguities can be clarified under modern discovery procedures.? (Ibid.)

Meet and Confer

Counsel?s declaration indicates that Plaintiff failed to respond to the meet and confer request. This bare conclusion does not provide sufficient facts for the declaration requirement. The Court cannot determine whether any attempts at meeting and conferring were made.

On this occasion, the Court will proceed to address the merits of the demurrer despite the insufficiency of the meet and confer. However, for any future demurrers that may be filed in this action, the Court cautions that an insufficient meet and confer, such as what occurred prior to the instant demurrer, will result in the demurrer being placed off calendar.

Request for Judicial Notice

Defendant?s request for judicial notice is GRANTED. (Evid. Code ? 452(d).)

Discussion

First and Ninth Causes of Action ? Contract Based Causes

To allege a breach of contract, a plaintiff must plead the contract, plaintiff?s performance or excuse for non-performance, defendant?s breach, and damage to plaintiff therefrom. (Acoustics, Inc. v. Trepte Constr. Co.?(1971) 14 Cal.App.3d 887, 913.) ?[A] pleader must state with certainty the facts constituting a breach of contract.? (Melican v. Regents of Univ. of Cal.?(2007) 151 Cal.App.4th 168, 174.) ?On a demurrer, the court must consider the sufficiency of the allegations, including any parol evidence allegations, to determine whether the contract is reasonably susceptible to the plaintiff?s alleged interpretation.? (George v. Automobile Club of So. Cal.?(2011) 201 Cal.App.4th 1112, 1128.) A pleader?s legal characterization of a contract is not controlling, particularly when the contract is attached to the pleading. (Morris v. Redwood Empire Bancorp?(2005) 128 Cal.App.4th 1305, 1314, citing?Barnett v. Fireman?s Fund Ins. Co.?(2001) 90 Cal.App.4th 500, 505.) However, courts will defer to plaintiff’s reasonable interpretations.

?(Performance Plastering v. Richmond American Homes of Cal., Inc.?(2007) 153 Cal.App.4th 659, 672.)

A plaintiff?s declaratory relief complaint must specifically allege that an actual, present controversy exists, and must state the facts of the respective claims concerning the disputed subject matter. (City of Cotati v. Cashman?(2002) 29 Cal.4th 69, 79.) The complaint will be found sufficient if it sets forth facts showing the existence of an actual controversy relating to the parties? legal rights and duties, and requests the court to adjudge these rights and duties. (Ludgate Ins. Co. v. Lockheed Martin Corp.?(2000) 82 Cal.App.4th 592, 606;?Qualified Patients Ass?n v. City of Anaheim?(2010) 187 Cal.App.4th 734, 751.)

????????????Here, Plaintiff brings a contract claim against Munyer, and asks the Court to declare Munyer has no interest in the subject properties based on the alleged contract. However, the allegations do not establish a contractual relationship with Munyer related to the sale of the properties. Instead, the only contract alleged is between the partners. (See FAC ?? 7-8.) There is no allegation that Munyer agreed to sell the property, as the only reference contract is the investment contract. (FAC ?? 8, 46, Ex. A.) Plaintiff needs to plead the existence of a contract between Munyer and himself, related to the sale of property, before this action can proceed. Accordingly, Defendant?s demurrer is SUSTAINED with leave to amend to the First and Ninth causes.

Second Cause of Action – Quiet Title

To maintain an action for quiet title, a plaintiff must allege: 1) Description of the property; 2) Plaintiff?s title or interest and the basis; 3) defendant?s asserting adverse claim or antagonistic property interest; 4) date as of which the determination is sought; and 5) prayer for determination of title. (CCP ?761.020.)

As noted above, Plaintiff fails to allege that he obtained any interest in the subject properties because he never alleged that he entered into a sale or some other agreement that would confer title. On this basis, the demurrer must be sustained. The Court further notes that the FAC does not state the legal description of the properties; it only states the street names. (e.g. FAC ? 7.)

Accordingly, Defendant?s demurrer is SUSTAINED with leave as to the second cause of action.

Third, Fourth, and Fifth Causes of Action ? Fraud

The elements of a claim for fraud are (1) misrepresentation of a material fact; (2) knowledge of falsity or lack of a reasonable ground for belief in the truth of the representation; (3) intent to induce reliance; (4)?actual and justifiable reliance by the plaintiff; and (5) resulting damage. (Orient Handel v. United States Fid. & Guar. Co.?(1987) 192 Cal.App.3d 684, 693.)??Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children?s Television, Inc. v. General Foods Corp.?(1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc.?(2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court?(1996) 12 Cal.4th 631, 645;?West v. JPMorgan Chase Bank, N.A.?(2013) 214 Cal.App.4th 780, 793.)

????????????Like the contract, Plaintiff fails to allege any misrepresentation attributable to Defendant. Instead, Plaintiff only alleges that ?Defendants? made ?representations? with no indication who made these representations, where they were made, how they were made, and by what means these misrepresentations were made. (FAC ?? 19-20, 26, 30.) Presumably Plaintiff is well aware of these facts considering that the representations were made to him. (Ibid.) Thus, specificity cannot be lessened. The allegations are thus not pled with specificity as to Munyer.

????????????Accordingly, Defendant?s demurrer is SUSTAINED with leave to amend as to the third, fourth and fifth causes of action.

Sixth and Seventh Causes of Action ? Constructive Trust and Accounting

A constructive trust is an equitable remedy, not a substantive claim for relief. ??A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing. [Citations.]? (Communist Party v. 522 Valencia, Inc.?(1995) 35 Cal.App.4th 980, 990;Campbell v. Superior Court?(2005) 132 Cal.App.4th 904, 920.) Before a constructive trust can be imposed, the plaintiff must prove that the defendant?s acquisition of the property was wrongful. (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP(2007) 150 Cal.App.4th 384, 398.)

To allege a constructive trust, a plaintiff must plead: 1) a wrongful act (underlying claim incorporated into the cause of action); 2) specific, identifiable property or property interest, or excuse for inability to describe it; 3) plaintiff?s right to the property; and defendant has title thereto. (Communist Party, supra,?35 Cal.App.4th at 990.)

Accounting is an independent cause of action in equity. (Teselle v. McLoughlin?(2009) 173 Cal.App.4th 156, 180.) A cause of action seeking an accounting may be maintained when (1) a relationship exists between a plaintiff and defendant that requires an accounting, and (2) some balance is due to the plaintiff that can only be ascertained by an accounting. (Id. at 179.) No fiduciary relationship is required. (Ibid.) But ?[a]n action for accounting is not available where the plaintiff alleges the right?to recover a sum certain or a sum that can be made certain by calculation.? (Ibid.)

????????????The constructive trust claim fails because Plaintiff fails to plead a right to the property, as discussed above. Plaintiff does not allege a contract-created interest in the property, or any equitable interest beyond that purported breached agreement. Further, no wrongful conduct is properly alleged on the part of Defendant, since there are no allegations he engaged in fraud or breached a contract. Thus, the subject properties cannot be the subject of an equitable trust. The accounting likewise fails because there are no allegations of a relationship between Munyen and Plaintiff that requires an accounting.

????????????Accordingly, Defendant?s demurrer is SUSTAINED with leave to amend as to the Sixth and Seventh Causes of action.

Eighth Cause of Action ? Unjust Enrichment

?[T]here is no cause of action in California for unjust enrichment.? (Melchior v. New Line Prods., Inc.?(2003) 106 Cal.App.4th 779, 793;?McKell v. Wash. Mut., Inc.?(2006) 142 Cal.App.4th 1457, 1490;?Jogani v. Superior Court?(2008) 165 Cal.App.4th 901, 911.)

Plaintiff concedes that this is an improper cause of action, and asks for leave to allege specific performance instead. Plaintiff offers that there is a contract between Defendant and himself that could justify a specific performance cause of action, as well as the underlying contract causes. Thus, the Court will grant leave to amend to add the cause of action, but Plaintiff may not assert an ?unjust enrichment? cause.

Accordingly, Defendant?s demurrer is SUSTAINED in its entirety with leave to amend.

Moving party is ordered to give notice.

27-California Labor Commissioner

THE APPEALS

Basically, the decision of the California Labor Commissioner does not count. The loser can appeal ‘de novo’ to the superior court, and this means that the case is given a whole new trial. At the superior court level, the decision of the commissioners is entitled to no weight whatsoever, and the facts presented to the trial court may include entirely new evidence. https://www.harriskaufman.com/Articles/California-Labor-Commission.shtml/

https://shawlawgroup.com/2019/06/appealing-a-labor-commissioner-decision/#:~:text=Either%20party%20may%20appeal%20the,order%20was%20served%20by%20mail).&text=Different%20from%20a%20typical%20%E2%80%9Cappeal,the%20DLSE%20hearing%20never%20happened.

29.-

Legal Guide – Motion to Compel Discovery in Sacramento California

By Personal Injury Lawyer Noah Schwinghamer

http://www.nfsesq.com/resources/legal-guide-motion-to-compel-discovery-in-sacramento-california/#meet%20and%20confer

Pre-Motion Requirements

Timing

45 Days For Written Discovery – Motions to Compel may be filed 45 days after the insufficient response. [CCP 2030.300(c) (Interrogatories); 2031.310(c) (Inspection Demands); 2033.290(c) (Requests for Admission)].
60 Days for Depositions – Motions to Compel deposition answers may be filed within 60 days of the completion of the deposition transcript. [CCP 2025.480(b).]
No Time Limit for No Response or Unverified Responses – An unverified response is no response at all, and there is no time limit to move to compel. [CCP 2030.290(b) (Interrogatories); CCP 2031.300(b) (Requests for Production); CCP 2033.280(b) (Requests for Admission).
Add Time if Responding Party Served Insufficient Responses via Mail – Add 5 (mailed in CA), 10 (Mailed in US outside of CA), or 20 (mailed outside of US) days to the 45 day time limit if the responding party served their insufficient responses via mail. Source: [CCP 1013(a)].
Final Deadline is 15 Days Before Initial Trial Date – Final day to hear discovery motions, including motions to compel, is 15 days before the initial discovery deadline. Practically this means the motion must be filed well in advance. [CCP 2024.020(a)]

Meet and Confer

Must Meet and Confer Prior to Filing a Motion To Compel – The moving party must include a declaration stating facts that show a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. [CCP 2016.040].
Sanctions for Failing to Meet and Confer – The court “shall” sanction the moving party if he files a Motion to Compel before attempting a “reasonable and good faith attempt” to meet and confer with the responding party. Note, there is no meet and confer duty when no response is served. [CCP 2023.010(i); 2023.020; 2023.030].

Tentative Rulings

Notice of Tentative Ruling Required in Notice – The Notice of Motion must include the following text: “”Pursuant to Local Rule 3.04, the court will make a tentative ruling on the merits of this matter by 2:00 p.m., the court day before the hearing. You may access and download the court’s ruling from the court’s website at http://www.saccourt.ca.gov. If you do not have online access, you may obtain the tentative ruling over the telephone by calling (916) 874-8142 and a deputy clerk will read the ruling to you. If you wish to request oral argument, you must contact the clerk at (916) 874-7858 (Department 53) or (916) 874-7848 (Department 54) and the opposing party before 4:00 p.m. the court day before the hearing. If you do not call the court and the opposing party by 4:00 p.m. on the court day before the hearing, no hearing will be held.”” [Sacramento Local Rule 3.04].

Format of Moving Papers

Fifteen (15) Page Limit on Moving Papers – [CRC 3.1113(f)]
Over Ten (10) Pages Requires a Table of Authorities – [CRC 3.1113(f)]
Sanctions Must Be in Notice of Motion – Requests for sanctions must be included in the notice of motion, including against whom sanctions are sought. Any award of sanctions must be supported by legal authority and a declaration stating in a non-conclusory fashion how sanctions were calculated. [Sacramento Local Rule 3.15].
Exhibits Must Have Exhibit Tabs – Each exhibit needs a plastic exhibit tab.

Service and Filing

Personal Service Sixteen (16) Days Before Hearing – Moving papers must be served at least sixteen court days before the hearing date. [CCP 1005(b)].
Add Time If Served By Mail – In addition to the 16 court days, add calendar days +5 for mail within CA, +10 for mail in US outside of CA, and +20 if mailed outside of US. [CCP 1005(b)].
Add Time If Served By Fax or Express Mail – In addition to the 16 court days, add calendar days +2 for fax filing or overnight mail. [CCP 1005(b); CRC 2.306].

Specific Motions to Compel

Interrogatory Responses

Grounds For Motion – A party may move to compel responses or additional responses if the responses to interrogatories are (1) incomplete, (2) evasive, or (3) an objection is made that is either too general or without merit. [CCP 2030.300(a)].
Requirements for Motion – The following requirements must be fulfilled for a proper motion to compel interrogatories:
- Identify the interrogatories in question by name and set number. [CRC 3.1345(d)].
- Meet and Confer Declaration Required. [CCP 2030.300(b)].
- Separate Statement Required. [CRC 3.1345(a)(2)].
Note: No Meet and Confer or Separate Statement Required When No Responses Given. [CCP 2030.290(b); CRC 3.1345(b)]
Deadline 45 days: Motion to Compel must be filed within 45 days from insufficient response [See Above].

Deposition Testimony

Grounds For Motion – A party may move to compel the answer to a deposition question, or the production of documents at a deposition if the deponent either (1) does not answer a question, or (2) does not bring a document requested in the deposition notice/subpoena. [CCP 2025.480(a)].
Requirements for Motion – The following requirements must be fulfilled for a proper motion to compel interrogatories:
- Meet and Confer Declaration Required. [CCP 2025.480(b)].
- Separate Statement Required. [CRC 3.1345(a)(4)-(5)].
Adjourning Deposition – If a deponent does not answer a question asked at deposition, the deposition-taker may choose to either (1) adjourn the deposition to file a motion, or (2) complete the deposition on other matters. Unless the answer is necessary to move forward, the latter usually is more practical. [CCP 2025.460(d)].
Notice of Motion May be Given Orally at Deposition – For party witnesses, the deposing attorney may give notice of the time and place of the motion to compel orally at deposition. For a non-party witness written notice is required. This section is usually not practical to invoke, and notice may always be given via the usual written method. [CCP 2025.480].
Deadline 60 days: Motion to Compel must be filed within 60 days from the completion of the deposition transcript. [See Above].

Document Requests / Inspection Demands

Grounds For Motion – A party may move to compel the production of documents or things if the response (1) agrees to comply, but compliance is incomplete, (2) the responding party’s indication of inability to comply is incomplete, inadequate, or evasive, or (3) an objection to a request is made that is too general or without merit. [CCP 2031.310(a)].
Good Cause Required – The moving party must state “specific facts showing good cause justifying the discovery sought by the inspection demand.”. [CCP 2031.310(b)(1)].
Requirements for Motion – The following requirements must be fulfilled for a proper motion to compel interrogatories:
- Identify the interrogatories in question by name and set number. [CRC 3.1345(d)].
- Meet and Confer Declaration Required. [CCP 2031.310(b)(2)].
- Separate Statement Required. [CRC 3.1345(a)(3)].
- Attach Deposition Transcript – Sacramento does not allow lodging of deposition transcripts with the court. Instead, attach the cover page of the deposition (stating the party names) and the relevant pages of the deposition transcript, with relevant portions highlighted, to a supporting declaration to the motion. [Sacramento Local Rule 3.03(f)]
Note: No Meet and Confer or Separate Statement Required When No Responses Given. [CCP 2031.320(a); CRC 3.1345(b)].
Deadline 45 days: Motion to Compel must be filed within 45 days from insufficient response [See Above].

Requests for Admissions

Grounds For Motion – A party may move to compel responses or additional responses to Requests for Admission if (1) a response was evasive or incomplete, or (2) an objection is made that is too general or without merit. [CCP 2033.290(a)].
Requirements for Motion – The following requirements must be fulfilled for a proper motion to compel interrogatories:
- Identify the interrogatories in question by name and set number. [CRC 3.1345(d)].
- Meet and Confer Declaration Required. [CCP 2033.290(b)].
- Separate Statement Required. [CRC 3.1345(a)(1)].
Motion to Have Matters Deemed Admitted – If no response is given within the applicable time limit, the moving party may move to have unanswered admissions deemed admitted. [CCP 2033.280(b)].
Late Responses May Provide a Remedy – Late-served responses to Requests for Admission that are in substantial compliance with CCP 2033.220 may prevent the harsh penalty of having matters deemed admitted. However, sanctions are “mandatory” against the late responding party if the requesting party has to file a motion. [CCP 2033.280(c)].
Deadline 45 days: Motion to Compel must be filed within 45 days from insufficient response [See Above].

Other Moving Papers

Separate Statement

Purpose – If a Separate Statement is required, it should be filed and served with the other moving papers, and it should contain all the information necessary to understand each discovery request at issue, the response, and argument as to why additional responses are required. Essentially, the court needs to be able to read the separate statement by itself and be able to make an informed ruling without having to reference any other documents. [CRC 3.1345(c)].
Requirements – For each request at issue, the separate statement must contain “all the information necessary to understand each discovery request” including: [CRC 3.1345].
- Text of the request, interrogatory, or question.
- The response and/or objections to the request.
- Factual support and legal argument as to why an additional response should be compelled.
- Any other text, definitions, or other information necessary to understand the above (for instance, in depositions, you may have to provide a page or two of background questions s\to frame the issues).
- Previous questions relied on by the question at issue (for instance, if a question says, “if the response to interrogatory #1 was affirmative, please state…” you may have to include interrogatory #1 and its response for reference).
- A summary of relevant pleadings.
- Note: Identify the interrogatories in question by name and set number.

Meet and Confer Declaration

Requirements – The declaration must “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” [CCP 2016.040].
Declaration Language – A California Declaration requires this language: “I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” This should be followed by the date and the declarant’s signature. [CCP 2015.5].

Proposed Order

Normal Order Procedure – Normally, the prevailing party will need to prepare a proposed order, and serve it on the losing party. The losing party then has five days to object to the form. After the five days are up, the prevailing party is to file the proposed order, along with any objections (or a statement that no objections were received), with the court. [CRC 3.1312].
May Be Submitted – The moving party on a motion to compel may submit a proposed order along with the rest of his moving papers. [CRC 3.1113].
Separate Document – Do NOT staple your Proposed Order to your other moving papers. Do NOT attach it as an exhibit. [CRC 3.1113(m)].

(Deposition Transcript)

In Motions to Compel deposition testimony, do not forget to attach the relevant parts of the deposition transcript as an exhibit. [See Above].

Sanctions

Authority for Court’s Sanction Power – The court may award sanctions for (1) misuse/abuse of discovery process, or (2) unsuccessfully bringing or opposing a discovery motion, (3) failure to meet and confer, (4) other specific situations.
Sanctions for Misuse/Abuse of Discovery – The following are considered misuse of the discovery process: [CCP 2023.010].
- (a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.
- (b) Using a discovery method in a manner that does not comply with its specified procedures.
- (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.
- (d) Failing to respond or to submit to an authorized method of discovery.
- (e) Making, without substantial justification, an unmeritorious objection to discovery.
- (f) Making an evasive response to discovery.
- (g) Disobeying a court order to provide discovery.
- (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.
- (i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.
Sanctions for Unsuccessfully Bringing or Opposing a Discovery Motion – The court has discretionary statutory authority to award sanctions for unsuccessful discovery motions:
- Compelling Response to Interrogatories. [CCP 2030.290(c)].
- Compelling Further Response Interrogatories: [CCP 2030.300(d)].
- Compelling Inspection or Production: [CCP 2031.300(c)].
- Compelling Further Response to Inspection Demand: [CCP 2031.310(d)(h); CCP 2031.320 (b)].
- Compelling Further Response Request for Admission: [CCP 2033.290(d)].
- Compelling Deponent to Answer or Produce Documents: [CCP 2025.480(f)].
Sanctions for Failing to Meet and Confer – The court “shall” sanction the moving party if he files a Motion to Compel before attempting a “reasonable and good faith attempt” to meet and confer with the responding party. Note, there is no meet and confer duty when no response is served. [CCP 2023.010(i); 2023.020; 2023.030].
Sanctions Must Be in Notice of Motion – Requests for sanctions must be included in the notice of motion, including against whom sanctions are sought. Any award of sanctions must be supported by legal authority and a declaration stating in a non-conclusory fashion how sanctions were calculated. [Sacramento Local Rule 3.15].

This page is not legal advice, and there is no guarantee that this information is up to date. If you need legal advice, you should contact a lawyer.

This page was created by and (c) Noah Schwinghamer, a Sacramento Injury Lawyer. If you would like to copy this information, please request permission. Please feel free to link to this page.

30-

PAYROLL DEBTS RULED NONDISCHARGEABLE IN CHAPTER 7 BANKRUPTCY

by Devin Sawdayi

A judgment of the California Labor Commissioner, which ordered a debtor to pay back wages to former employees, is not a dischargeable debt in a Chapter 7 bankruptcy, according to a California federal court. In re Han, No. 2:13-cv-1524-ODW, order (C.D. Cal., Jul. 8, 2013). Three former employees of the debtor’s business had obtained administrative judgments for unpaid wages, interest, and penalties. The bankruptcy court ruled against their claims and discharged the debts. The district court reversed the decision and remanded the case.

The debtor owned and operated a cleaning business, Gold Maintenance, Inc., for about ten years. He personally supervised the company’s employees, according to the district court’s order. Three employees, who worked for Gold Maintenance for various periods between 2006 and 2008, filed administrative complaints with the California Labor Commissioner in 2008, alleging that the debtor “required them to work thirteen to fourteen hours per night, five to seven nights per week.” Id. at 2. He agreed to pay “minimum wage,” the employees said, but did not pay them for overtime, double-time, meal or break time, or time spent traveling during work hours. He allegedly wrote checks to himself from the company account for substantial sums during this time. The employees claimed the debtor owed them compensation for unpaid wages, interest, and waiting-time penalties under the California Labor Code. The Labor Commissioner awarded them judgments totaling more than $95,000 in January 2010.

The debtor filed a voluntary petition for Chapter 7 bankruptcy in May 2011. The employees filed an adversary proceeding in August 2011, requesting that the bankruptcy court declare their judgments nondischargeable. They cited statutory provisions that prevent discharge of debts “for…services…to the extent obtained by…false pretenses, a false representation, or actual fraud,” 11 U.S.C. § 523(a)(2)(A); “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny,” 11 U.S.C. § 523(a)(4); and “for willful and malicious injury by the debtor to another entity,” 11 U.S.C. § 523(a)(6). The bankruptcy court ruled that the employees had not established the nondischargeability of these debts by a preponderance of evidence, and the employees appealed.

The district court reversed the bankruptcy court’s judgment. It found that the employees had made a case under § 523(a)(2)(A), and therefore did not address claims under (a)(4) or (a)(6). The employees had to prove five elements by a preponderance of evidence: the debtor (1) made a misrepresentation (2) with knowledge of the falsity of the statement and (3) “intent to deceive;” (4) the creditor justifiably relied on the misrepresentation; and (5) the misrepresentation and the creditor’s reliance proximately caused the creditor’s damage. Han, order at 4, citing In re Weinberg, 410 B.R. 19, 35 (B.A.P. 9th Cir. 2009). The employees, the court found, met their burdens of proof for all five.

Bankruptcy may offer relief to individuals whose income does not allow them to keep up with the payments on their debts. A Chapter 7 bankruptcy may enable a person or business to eliminate most types of debt, thereby giving them a fresh start. If done correctly, a person or family that files for bankruptcy protection can keep all their assets. Bankruptcy attorney Devin Sawdayi has sixteen years’ experience guiding clients in the Los Angeles area through the bankruptcy process. To schedule a free and confidential consultation, contact us today online or at (310) 475-9399.

More Blog Posts:

Ninth Circuit Allows Partial Discharge of Student Loan Debt, Los Angeles Bankruptcy Lawyer Blawg, July 12, 2013

Payment of a Debt Prior to Bankruptcy is Not a Fraudulent Transfer, According to Ninth Circuit, Los Angeles Bankruptcy Lawyer Blawg, June 20, 2013

Discharge of Federal Tax Debt in Bankruptcy, feat. Willie Nelson, Los Angeles Bankruptcy Lawyer Blawg, June 10, 2013

31- CONTRACTING WITH FOREIGNERS:
THE POTENTIAL ABSENCE OF MUTUALITY OF ASSENT

cwf_2010_123to148

32- COMMERCIAL LEASE AND THEIR RIGHTS

WHO IS RESPONSIBLE FOR REPAIRS IN A COMMERCIAL LEASE? https://www.stephensonlaw.com/blog/2019/09/who-is-responsible-for-repairs-in-a-commercial-lease/

Tenant’s Duties

The tenant is usually responsible for things that could wear down or break due to regular use. If the flooring or wallpaper deteriorate, the tenant should replace them with the same quality product. Lighting issues, when they do not involve electrical wiring, are also the tenant’s responsibility. The tenant should also replace broken fixtures such as those in bathrooms and kitchens that are within the tenant’s demised space.

Landlord’s Duties

The landlord is often responsible for anything structural unless an issue is caused by the tenant’s negligence. This would include the foundation, walls and roof of the building. The landlord is also usually responsible for the electrical, heating and ventilation systems. Meeting building, fire and safety codes is generally up to the landlord.

Property owners usually prefer to control major repairs because substantial money and risk can be involved. It is not illegal for a landlord to allow a tenant to work on structural issues, but you should use your best judgement. A tenant may think they have what it takes to do extensive repairs, but they may not want to spend the amount needed for quality work, and some things require training and experience.

a1_warrantees_of_habitability

By Janet Portman, Attorney

The landlord’s lease will usually include a “Maintenance and Repair” clause that concerns your duties to care for your own rented space (or for the entire building, if you are the sole tenant). You’ll want this clause to specify (as much as possible) what you are—and aren’t—required to do to keep up the property and building, and what the landlord’s duties are. The way the responsibilities are shared depends on common sense and your own negotiating power.

Tenant Maintenance and Repair Responsibilities

Your lease will probably require (at a minimum) that you keep the property neat and in good order, and repair nonstructural problems in your rented space that you’ve caused. Tenant responsibilities generally fall into two categories: what you cannot do, and what you must do.

What you can’t do to commercial rental property

You may not intentionally destroy the landlord’s property or act in an extremely careless way. For example, you can’t rip out walls or fixtures without permission, and you can’t allow garbage to pile up. Doing so constitutes committing “waste” or perpetrating a “nuisance,” antique legal terms still used in commercial leases.

Another age-old legal principle common in commercial leases is “quiet enjoyment.” This requires you to refrain from acting in a way that makes it impossible or overly difficult for your neighbors in the building to enjoy the benefit of their leases. For example, a restaurant whose exhaust fan spewed odorous smoke directly towards a set of adjacent office suites would doubtless hear from the office workers, who in turn would have a legitimate complaint with the landlord. It’s ultimately up to the landlord to make sure that the tenants’ activities don’t collide unreasonably.

Even if your lease doesn’t mention waste, nuisance, or quiet enjoyment, the law in all states will apply these prohibitions to tenants. You and the landlord are free to include them in the lease—by specifying what types of activities, for example, will constitute waste—but it’s not necessary. What is important, however, is for you and the landlord to have a good general idea of your respective limits and responsibilities.

What you must do to rental property

Unless you and the landlord decide otherwise, you will be expected to keep nonstructural elements of your rented space in good shape. This means that cleaning and repairs to carpets, lighting, wall coverings, bathroom and kitchen fixtures, and so on will be your responsibility. Hopefully, your landlord’s lease clause has enumerated these items and stopped there.

On the other hand, you won’t normally be expected to work on structural aspects of the building or major building systems, such as the building shell, foundation, roof, electrical, heating, and ventilation systems. The reason is pretty clear—most property owners don’t want tenants, even experienced ones, making decisions involving the building’s walls, roof, and major systems.

Landlord Maintenance and Repair Responsibilities

Having read through the list of common tenant duties, you can probably figure out what’s left to the landlord—simply put, all the housekeeping and repair chores that don’t concern your use of your rented space, including maintenance on major structural aspects of the building and building systems. Be sure your lease spells out the landlord’s responsibilities (many leases are completely silent on the subject).

Maintenance Issues to Watch For

You and the landlord are free to allocate the maintenance and repair responsibilities as you wish—if the landlord wants to put you in charge of the building’s electrical switches and you agree, there’s no law against it. Similarly, if you bargain for the landlord to provide you with janitorial and handyman services, you may have no obligation to maintain even your own quarters. But keep in mind that there are sometimes hidden costs and risks that may result from taking on additional maintenance responsibilities or turning over the upkeep of your space to the landlord. In particular, watch out for the following problems:

Avoid getting in over your head. If you agree to take on repair and maintenance jobs that are normally handled by the landlord, you will probably get something in return—usually, a lower rent. But don’t let the prospect of saving money cloud your judgment of your own abilities. It’s a mistake to agree to maintenance responsibilities that you don’t have the experience, time, or skills to manage.
Limit your responsibilities for compliance with laws and building codes. Make sure that your maintenance responsibilities don’t include building, fire, and safety code compliance responsibilities.
Don’t agree to maintenance responsibilities involving the landlord’s parts of the building unless you have discussed insurance, during negotiations and with your broker. Be aware of your liability if an accident occurs in an area you agree to maintain. Your landlord’s insurance policy may not cover you if an injured visitor slips on wet floor in the lobby you’ve agreed to maintain, and your own insurance may be insufficient.

This article was excerpted from Negotiate the Best Lease for Your Business by Janet Portman.

33-Certificates or Articles of
Incorporation together with any
and all amendments.
➤ Bylaws together with any amendments and/or restatements.
➤ Incorporator minutes and
consents.
➤ Stockholder minutes or consents.
➤ Directors minutes or consents.
➤ Foreign qualification filings,
if any.
➤ IRS filings such as the IRS Forms
SS-4 (federal identification number application) and 2553
(election of small business
corporations).
➤ Stock ledger and certificates (if
the list of stockholders isn’t too
cumbersome). Otherwise a separate stock records book will be
maintained.
➤ Date stamped copies of all annual
reports that have been filed
(optional). http://www.corporatefocus.com/wp-content/uploads/2011/03/LegalAsstTodayReview.pdf

LegalAsstTodayReview

40- TENTATIVE RULING LOS ANGELES LOCAL RULES

2020 California Rules of Court

Rule 3.1308. Tentative rulings

(a) Tentative ruling procedures

A trial court that offers a tentative ruling procedure in civil law and motion matters must follow one of the following procedures:

(1) Notice of intent to appear required

The court must make its tentative ruling available by telephone and also, at the option of the court, by any other method designated by the court, by no later than 3:00 p.m. the court day before the scheduled hearing. If the court desires oral argument, the tentative ruling must so direct. The tentative ruling may also note any issues on which the court wishes the parties to provide further argument. If the court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear. A party must notify all other parties by telephone or in person. The court must accept notice by telephone and, at its discretion, may also designate alternative methods by which a party may notify the court of the party’s intention to appear. The tentative ruling will become the ruling of the court if the court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given.

(2) No notice of intent to appear required

The court must make its tentative ruling available by telephone and also, at the option of the court, by any other method designated by the court, by a specified time before the hearing. The tentative ruling may note any issues on which the court wishes the parties to provide further argument at the hearing. This procedure must not require the parties to give notice of intent to appear, and the tentative ruling will not automatically become the ruling of the court if such notice is not given. The tentative ruling, or such other ruling as the court may render, will not become the final ruling of the court until the hearing.

(Subd (a) amended effective January 1, 2007; previously amended effective July 1, 2000.)

(b) No other procedures permitted

Other than following one of the tentative ruling procedures authorized in (a), courts must not issue tentative rulings except:

(1) By posting a calendar note containing tentative rulings on the day of the hearing; or

(2) By announcing the tentative ruling at the time of oral argument.

(Subd (b) amended effective January 1, 2007; previously repealed and adopted effective July 1, 2000.)

(c) Notice of procedure

A court that follows one of the procedures described in (a) must so state in its local rules. The local rule must specify the telephone number for obtaining the tentative rulings and the time by which the rulings will be available.

(Subd (c) amended effective January 1, 2007; previously amended effective July 1, 2000.)

(d) Uniform procedure within court or branch

If a court or a branch of a court adopts a tentative ruling procedure, that procedure must be used by all judges in the court or branch who issue tentative rulings.

(Subd (d) amended and lettered effective January 1, 2007; adopted as part of Subd (c) effective July 1, 1992.)

(e) Tentative rulings not required

This rule does not require any judge to issue tentative rulings.

(Subd (e) amended and lettered effective January 1, 2007; adopted as part of Subd (c) effective July 1, 1992.)

Rule 3.1308 amended and renumbered effective January 1, 2007; adopted as rule 324 effective July 1, 1992; previously amended effective July 1, 2000.

100. Sustained demurrer decisions http://www.amadorcourt.org/tentativeRulings/CivilLawAndMotion/2019/011819.pdf

AMADOR SUPERIOR COURT LAW AND MOTION TENTATIVE RULINGS Friday, January 18, 2019 TO REQUEST A HEARING ON ANY MATTER ON THIS CALENDAR, YOU MUST CALL THE COURT AT (209) 257-2692 BY 4:00 P.M. ON THE DAY PRECEDING THE HEARING. NOTICE OF THE INTENTION TO APPEAR MUST ALSO BE GIVEN TO ALL OTHER PARTIES. IF THE CLERK IS NOT NOTIFIED OF A PARTY’S INTENTION TO APPEAR, THERE WILL BE NO HEARING AND THE TENTATIVE RULING WILL BECOME THE ORDER OF THE COURT. NO FURTHER NOTICE OF THE COURT’S RULING WILL BE PROVIDED. HESS, JOSEPH 17-CVC-10031 VS. WEINER, DAVID DEMURRER – DEFENDANT’S As a preliminary matter, the court notes that all causes of action as to defendant RACHEL WEINER HESS were sustained without leave to amend in the order on demurrer to the First Amended Complaint. The Second Amended Complaint, filed October 15, 2018, attempts to remove RACHEL WEINER HESS from both the caption and the body of the complaint in her capacity as a party to the action. Plaintiff is required to file a Request for Dismissal (form CIV-110) in order to dismiss RACHEL WEINER HESS. The following tentative ruling is issued as to the motions before the court: 1. As outlined in further detail below, the demurrer IS SUSTAINED WITHOUT LEAVE TO AMEND as to the third, sixth, seventh, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth causes of action. The demurrer is OVERRULED as to the fifth cause of action (breach of contract) only. 2. The unopposed motion to strike is granted in full. Unless otherwise stipulated by the parties, Defendant shall file a responsive pleading as to the first, second, and fifth (Part A only) causes of action, within ten (10) days of this ruling. (Cal. Rules of Court, Rule 3.1320(g).) DEMURRER When any ground for objection to a complaint…appears on the face thereof, or from any matter of which the court is required to take or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. (CCP § 430.30(a).) A court, in examining the sufficiency of a complaint, should “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law or fact.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Where a plaintiff alleges a conclusion and inconsistent special facts from which the conclusion is drawn, the sufficiency of the complaint is determined from the special facts, not from the conclusion. (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995.) Further, specific allegations control general pleadings. When there is any inconsistency between the specific allegations upon which a conclusion must be based and the conclusion, the specific allegations control. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 827.) LEAVE TO AMEND A demurrer should be sustained without leave to amend if there is no reasonable possibility the complaint can be cured by amendment. (Levya v. Nelson (2000) 83 Cal.App.4th 1061, 1063.) The burden is on the plaintiff to show in what manner he can amend his complaint and how the amendment would change the legal effect of his pleading. (Goodman v. Kennedy (1976) 18 Cal 3d. 335.) In the conclusion of the opposition, Plaintiff requests leave to amend to cure any deficiencies the court may identify in the Second Amended Complaint. However, Plaintiff fails to show in what manner he can amend his complaint, and how the amendment would change the legal effect of his pleading. The court liberally granted Plaintiff leave to amend following the demurrer to the First Amended Complaint, and does not observe that any legally meaningful amendments have been made to the Second Amended Complaint. RULING ON DEMURRER Defendant’s demurrer to the Second Amended Complaint (SAC) is ruled on as follows: 3rd COA: Conversion Defendant demurs for failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)). Defendant asserts Plaintiff fails to allege the property belonged to Plaintiff rather than the “partnership.” Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) The cause of action for conversion is founded upon the partnership allegations in the complaint. The SAC pleads facts alleging Plaintiff has a right to possess partnership property. (SAC, p.19:20-21.) Plaintiff alleges Defendant “intentionally and substantially interfered with Plaintiff’s property rights by taking possession of partnership livestock and equipment, preventing Plaintiff access to the above-described partnership.” (SAC p. 19:22-25; emphasis added.) The law on partnerships is codified in the Uniform Partnership Act of 1994 at Corporations Code § 16100, et seq. The right of a partner to possess partnership property is true for partnership purposes, but not personally. This is codified in the Uniform Partnership Act. Property acquired by a partnership is property of the partnership and not of the partners individually. (Corp. Code § 16203.) “A partner may use or possess partnership property only on behalf of the partnership.” (Corp. Code § 16401(g).) “To establish a conversion, plaintiff must establish an actual interference with his ownership or right of possession. … Where plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion.” (Moore v. Regents of the Univ. of Cal. (1990) 51 Cal.3d 120, 136.) Plaintiff fails to plead facts to establish his individual title or right to possession of the property, and cannot therefore state facts sufficient to constitute a cause of action for conversion. (CCP §430.10(e).) DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND. 5th COA: Breach of Contract Defendant demurs for failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)) and for uncertainty (§430.10(f).) Defendant asserts the SAC lacks allegations of terms certain enough to form a contract, and there was no breach. Defendant raises issue of standing to sue for breach of partnership agreement. (Note: Defendant moves to strike parts B. and C. from the 5th cause of action, which motion to strike is unopposed and granted.) To establish breach of contract, each plaintiff must prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 98.) Further, to be enforceable, a promise must be definite enough that a court can determine the scope of the duty and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.” (Ladas v. California State Automobile Assn. (1993) 19 Cal.App.4th 761, 770.) Alleged promises that are too vague and indefinite do not give rise to an enforceable contractual duty. (Ibid.) Although the demurrer asserts lack of standing of plaintiff to sue for breach of the partnership agreement, this is not supported by the Uniform Partnership Act, which governs partnerships. “A partner may maintain an action against a partner for breach of the partnership agreement, or for violation of a duty to the partnership, causing harm to the partnership.” (Corp. Code § 16405(a).) However, “[a] partner may maintain an action against the partnership or another partner for legal or equitable relief, with or without an accounting as to partnership business, to do any of the following: (1) enforce the partner’s rights under the partnership agreement.” (Corp. Code §16405(b).) The terms of the alleged contract are sufficiently pled. A partner in his individual capacity has standing to sue the partnership or, as here, another alleged partner. DEMURRER IS OVERRULED on both the bases of failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)) and uncertainty (§430.10(f).) 6th COA: Quiet Title Defendant demurs for failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)) and for uncertainty (§430.10(f).) A cause of action for quiet title is governed by CCP §§ 760.010 – 765.060. A cause of action for quiet title is filed when a party wishes to confirm their title against adverse claims to real property or any interest in the property. A complaint to quiet title must be verified and must contain the following five elements. (CCP § 761.020(a)-(e)): (a) A description of the property that is the subject of the action. This must include both the legal description and the street address or common designation, if any. (b) The title of the plaintiff as to which a determination of quiet title is sought. If the complaint is based on adverse possession, the complaint must allege the specific facts constituting the adverse possession. (c) The adverse claims to plaintiff’s title. (d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint must include a statement of the reasons why a determination as of that date is sought. (e) A prayer for the determination of plaintiff’s title against the adverse claims. The SAC describes the real property as Amador County APN 008-010-048, 6526 Old Sacramento Road. (SAC p. 25:5.) The opposition indicates this is a 216 acre ranch owned by Defendant. Plaintiff pleads facts that he “has equitable title to a fee simple ownership of the above-identified real property, including the RESIDENCE he built upon it and other improvements made, by way of a contract with Defendant DAVID WEINER.” (SAC p. 25:6-8.) Plaintiff acknowledges that “Defendant DAVID WEINER holds legal title to the property.” (SAC p.25: 13-14.) Plaintiff has changed his alleged basis of title throughout the various iterations of the complaint. Plaintiff cannot simply omit harmful facts from an amended complaint because a plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. (Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151; Morton v. Loveman (1968) 267 Cal.App.2d 712, 717-719.) Plaintiff is now trying to sue the legal title holder by pursuing an equitable claim. Ordinarily an action to quiet title will not lie in favor of the holder of an equitable title as against the holder of a legal title. (See Tufree v. Polhemus (1985) 108 Cal. 670.) Plaintiff in opposition asserts there are exceptions to this rule, citing DeLeonis v. Hammel (1905) 1 Cal.App.390, 394. As noted in Defendant’s reply, DeLeonis is clearly distinguishable as it addressed a fact pattern where an indigenous woman originally held title to real property, was tricked into deeding it to defendant, and then sued to recover the property. As a result, the court overruled the demurrer on the basis that, assuming the facts pleaded were true, plaintiff’s title was “paramount to that of any defendant claiming a lien by mortgage.” (Id. at 394.) Plaintiff fails to plead facts to establish his individual title or right to possession of the property, and cannot therefore state facts sufficient to constitute a cause of action for conversion. (CCP §430.10(e).) DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND. 7th COA: Partition Defendant demurs for failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)) and for uncertainty (§430.10(f)). Defendant asserts Plaintiff is not an owner who can bring a partition action, and that other pleading elements are lacking. Codified in the California Code of Civil Procedure under CCP § 872.210, a partition action does not create a new title in real property. Instead, it is a way to divide real property between the joint owners. As set forth in CCP § 872(a), a cause of action for partition may be commenced and maintained by any of the following persons: (1) A co-owner of personal property; or (2) An owner of an estate of inheritance, and estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates. On the same bases as outlined in the sixth cause of action, above, DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND. (CCP § 430.10(e).) 8th and 9th Causes of Action: Quiet Title and Partition (El Dorado County Property) Defendant demurrers to the 8th and 9th causes of action. In light of the tentative ruling on the motion to strike, the demurrer to these causes of action is moot. 10th COA: Violation of Labor Laws Defendant demurs for failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)) and for uncertainty (§430.10(f).) Plaintiff alleges a violation of various Labor Code sections including sections 210, 202, 203, 510, and 1194. These Labor Code sections address the obligations of employers are to their employees. However, the SAC clearly states “Plaintiff was not an employee of the RANCH BUSINESS or Defendant DAVID WEINER.” (SAC p. 17:28.) Plaintiff fails to plead facts that he is an employee of Defendant and cannot therefore state facts sufficient to constitute a cause of action for violation of labor laws. (CCP §430.10(e).) DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND. 11th COA: Declaratory Relief Defendant demurs for failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)) and for uncertainty (§430.10(f)). Defendant asserts there are only past issues alleged, and nothing prospective which would support a request for declaratory relief. CCP § 1060 provides in pertinent part: Any person interested under a written instrument…or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property… may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought. Defendant asserts there are only issues of past conduct alleged, and nothing prospective which would support a request for declaratory relief. The court agrees. “Declaratory relief is designed in large part as a practical means of resolving controversies, so that parties can conform their conduct to the law and prevent future litigation.” (Meyer v. Sprint Spectrum L.P. (2008) 45 Ca.4th 634, 647-648.) Plaintiff fails to plead facts sufficient to constitute a cause of action for declaratory relief. (CCP §430.10(e).) DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND. 12th COA: Wrongful Termination in Violation of Public Policy Defendant demurs for failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)) and for uncertainty (§430.10(f)). Plaintiff is not an employee and seeks an advisory opinion. On the same basis as the 11th cause of action for violation of labor laws, Plaintiff fails to plead facts that he is an employee of Defendant and cannot therefore state facts sufficient to constitute a cause of action for wrongful termination in violation of public policy. (CCP §430.10(e).) DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND. 13th COA: Intentional Infliction of Emotional Distress Defendant demurs for failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)) and for uncertainty (§430.10(f).) Defendant asserts the conduct pleaded is not outrageous, the conduct is privileged, and the allegations are uncertain. Plaintiff bases this cause of action on the circulation of the “termination letter” of August 15, 2015 to “several people with whom Plaintiff conducted RANCH business…and expressed the same message in front of Plaintiff’s family.” (SAC pp. 8:11-22 and 32:7-19.) Plaintiff alleges he “suffered both lost earnings and other benefits of employment and has suffered humiliation, embarrassment, and mental anguish, all to his damage.” (SAC p. 32:26-28.) To establish a cause of action for infliction of emotional distress (IIED), plaintiff must allege facts to support the following elements: (1) “outrageous” conduct; (2) that defendants intended to cause (or recklessly disregarded the probability of causing) plaintiff emotional distress; (3) that plaintiff suffered emotional distress; and (4) an actual and proximate causal link between the outrageous conduct and the severe emotional distress. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155, fn. 7; Nally v. Grace Community Church (1988) 47 Cal. 3d 278, 300.) The bar for asserting IIED is very high. Defendant asserts Plaintiff fails to plead facts to meet the “outrageous” conduct standard. A cause of action for intentional infliction of emotional distress must allege facts showing outrageous conduct which is intentional or reckless and which is outside the bounds of decency. It has been said in summarizing the cases discussing intentional infliction of emotional distress that ‘the rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause and does cause, mental distress of a very serious kind.’ (Christensen v. Superior Court (1991) 54 Cal.3d 868, 904-905.) Plaintiff in opposition indicates that determining whether conduct is sufficiently outrageous to constitute the element of the tort is a mixed question of law and fact. That it is for the court to determine whether the trier of fact may reasonably conclude the defendant’s conduct was so extreme and outrageous that recovery is permissible. (Tollefson v. Roman Catholic Bishop (1990) 219 Cal. App. 3d 843, 858.) If reasonable persons might differ, it is for the jury to determine whether the conduct was, in fact, outrageous. (Alcorn v. Anbro Eng’g, Inc. (1970) 2 Cal 3d 493, 499.) Whether conduct is outrageous is usually a question of fact, but many cases have dismissed intentional infliction of emotional distress cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law. (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235.) This is such a case. The facts set forth in the SAC do not rise to the “outrageous” conduct standard in order to meet the requirements to plead a cause of action for IIED. (CCP §430.10(e).) DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND. 14th COA: Negligent Infliction of Emotional Distress Defendant demurs for failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)) and for uncertainty (§430.10(f)). Defendant asserts there was no duty, that negligent infliction of emotional distress (NIED) is not available for loss of money, and that the conduct pleaded is not outrageous, the conduct is privileged, and the allegations are uncertain. To establish a claim for negligent infliction of emotional distress, Plaintiff must plead the following: (1) The Defendant was negligent; (2) That Plaintiff suffered serious emotional distress; (3) that Defendant’s negligence was a substantial factor in causing Plaintiff’s serious emotional distress. (CACI 1620 – Negligence; Recovery of Damages for Emotional Distress; No Physical Injury; Direct Victim.) The demurrer correctly summarizes the state of the law – The doctrine of negligent infliction of emotional distress is not a separate tort or cause of action. It allows certain persons to recover damages for emotional distress on negligence causes of action even though they were not otherwise physically injured or harmed. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984-985.) As a negligence cause of action, duty is an essential element. Duty is found where the plaintiff is a “direct victim” in that the emotional distress damages result from a duty owed the plaintiff that is “assumed by the defendant as a matter of law or that arises out of a relationship between the two.” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1510.) Plaintiff, despite being granted leave to amend following demurrer to the FAC, fails to state facts relating to any duty owed by Defendant to Plaintiff, or alleging any physical injury. The facts set forth in the SAC do not meet the requirements to plead a cause of action for NIED. (CCP §430.10(e).) DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND. 15th COA: Specific Performance Defendant demurs for failure to state facts sufficient to constitute a cause of action (CCP §430.10(e)) and for uncertainty (§430.10(f)). Defendant asserts: (1) A contract is lacking; (2) agreement, if any, is too uncertain to enforce, sham pleading, and impossibility (under the Statute of Frauds). Specific performance is a remedy, and not a cause of action. However, the complaint must allege: (1) The making of a specifically enforceable type of contract, sufficiently certain in its terms; (2) Adequate consideration, and a just and reasonable contract; (3) Plaintiff’s performance, tender, or excuse for nonperformance; and (4) Defendant’s breach. (Civil Code §3391.) The SAC seeks specific performance to enforce an oral contract with Defendant whereby Plaintiff would build the RESIDENCE and Defendant would convey title to the property to Plaintiff and his wife. The statute of frauds is not anticipated in the complaint. The statute of frauds, codified at Civil Code § 1624, states in pertinent part: (a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent: (1) An agreement that by its terms is not to be performed within a year from the making thereof. A writing is enforceable under the statute of frauds only if its sets forth all the essential terms of the contract with reasonable certainty. (Sterling v. Taylor (2007) 40 Cal.4th 757, 766.) Here, however, Plaintiff clearly indicates there is no writing. (SAC p. 33:21-22.) Plaintiff cannot state facts to prevail due to the legal requirements of the statute of frauds. Plaintiff fails to plead facts sufficient to support the remedy of specific performance, which he has characterized as a cause of action. (CCP §430.10(e).) DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND. MOTION TO STRIKE The unopposed motion to strike is granted in full. The following sections of the Second Amended Complaint are stricken: 8th Cause of Action (Quiet Title) in its entirety. The court sustained the prior demurrer without leave to amend as to this cause of action, which involves real property located entirely within El Dorado County. 9th Cause of Action (Partition) in its entirety. The court sustained the prior demurrer without leave to amend as to this cause of action, which involves real property located entirely within El Dorado County. 4th Cause of Action (intentional misrepresentation) at Part B (SAC at pp. 21:13 – 23:2). 5th Cause of Action (breach of contract) at Part B (SAC at p. 24:3-14) and Part C (SAC at p. 24:15-27). 15th Cause of Action (specific performance) at Part B (SAC at p. 34:8-21). Request for attorney fees in the prayer for relief without a contract or statute providing for them (SAC at p. 36:21-23). Unless a hearing is requested, this ruling is effective immediately. Neither further notice of the ruling nor a formal order per CRC 3.1312 is required. CANON FINANCIAL SERVICES INC 17-CVC-10219 VS. TEMPLE, FRANCINE DEFENDANT’S MOTION TO VACATE OR SET ASIDE JUDGMENT TENTATIVE RULING: Defendant’s motion is granted. A judgment entered pursuant to the Sister State and Foreign Money – Judgments Act (SSFMJA) may be vacated on any ground which would be a defense to an action in this state on the sister state judgment. (CCP § 1710.40(a).) The court finds the motion timely. The 30-day limit for making a motion to vacate the judgment under the SSFMJA is inapplicable where a judgment debtor as not property served with process in the sister state action. (Canseco Marketing, LLC v. IFA and Insurance Services, Inc. (2013) 221 Cal.App.4th 831, 842, citing Airlines Reporting Corp. v. Renda (2009) 177 Cal.App.4th 14, 20.) The court finds the Affidavit of Service invalid on its face, and therefore void. The proof of service fails to indicate the location where personal service was performed. (CCP §§ 415.10, 417.10.) Unless a hearing is requested, this ruling is effective immediately. Neither further notice of the ruling nor a formal order per CRC 3.1312 is required.

100- Intentional Infliction of Emotional Distress: https://www.crowell.com/documents/Defending-the-Toxic-Tort-of-Outrage-Intentional-Infliction-of-Emotional-Distress-Claims.pdf

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