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Demurrer

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The Government Claims Statute (Gov. Code 905) requires plaintiffs to file a government claim with the prospective government entity defendant before filing a suit for damages.  However, the statute does not apply to actions for injunctive, specific, or declaratory relief--even if the declaration might be used in a later suit for damages.  Here, a contractor sued for a declaration regarding… Read More

A dismissal without prejudice in either state or federal court is not a final judgment given res judicata effect if the dismissal is entered after a demurrer has been sustained or motion to dismiss has been granted with leave to amend and the dismissal is filed within the time allowed for amendment. Read More

The trial court erred in sustaining defendants' demurrer to the class action allegations of the complaint in this case which sought actual and punitive damages for the defendants' misuse of the Ellis Act to evict tenants from rent-controlled units and then to list units in the same building on AirBnB for tenancies of up to three years.  The decision holds… Read More

Section 230 of the Communications Decency Act (47 USC 230) immunized YouTube from liability for exercising editorial functions in restricting the availability of or advertising in connection with videos posted to its website.  Therefore, the trial court correctly sustained YouTube's demurrer to tort claims by a poster of videos that YouTube had restricted access to or barred from bearing ads… Read More

The communicable disease extension of the comprehensive property insurance policy that Fireman's issued to Amy's provided coverage for the costs of remediating, cleaning, disinfecting, etc. the premises after a communicable disease event, defined to mean  “an event in which a public health authority has ordered that a location be evacuated, decontaminated, or disinfected due to the outbreak of a communicable… Read More

This decision holds that the insured's original complaint failed to allege a covered business interruption loss due to COVID-19 stay-at-home orders.  However, it also holds that it was error to deny the insured leave to amend since the demurrer had been sustained to the insured's original complaint, the insured requested leave to amend and described in some detail what additional… Read More

LA's COVID-19 Eviction Moratorium Ordinance which banned evictions for reasons other than the tenant's fault was not preempted by state law.  A demurrer was properly sustained to the owner's unlawful detainer action which alleged no tenant default but instead claimed the owner wanted to move into the unit himself. Read More

Plaintiff, a jewelry store, stated a viable breach of contract action against Sotheby's.  Plaintiff owned $4 million in diamonds which it had obtained from Rechnitz as security for his debt.  Plaintiff and Rechnitz met with a Sotheby's agent, giving him the diamonds to have appraised for possible auction at Sotheby's.  Sotheby's form contract referred to only a single consignor, but… Read More

Bucking the trend and disagreeing with United Talent Agency v. Vigilant Ins. Co. (2022) 77 Cal.App.5th 821, this decision holds that the trial court erred in sustaining the insurer's motion to dismiss this suit seeking coverage under a CGL policy's business interruption coverage for losses sustained by reason of COVID-19.  It reasons that however improbable it may now seem, on… Read More

The trial court erred in sustaining defendant's demurrer to this complaint seeking payment for construction work.  The demurrer claimed that the services had been provided by an unlicensed contractor and that B&P Code 7031 therefore barred recovery.  The issue in the case was which of two affiliated corporations had really contracted to and in fact provided the contracting services, the… Read More

This decision affirms a demurrer to numerous claims by sellers against eBay for various charges and other policies it enforces against them under its user agreement.  Although the user agreement is an adhesion contract, the decision holds that it and eBau's policies are published on its website, and though they are lengthy, sellers are under no time pressure to agree. … Read More

Ordinarily, when a complaint alleges a stand-alone claim for declaratory relief and properly alleges the existence of an existing controversy, the trial court should not grant a demurrer because the plaintiff is entitled to a declaration of rights even if unfavorable.  However, the error is not prejudicial if the declaration would be in the defendant's favor.  The appellate opinion affirming… Read More

Reconciling Delta Imports, Inc. v. Municipal Court (1983) 146 Cal.App.3d 1033 and Borsuk v. Appellate Division (2015) 242 Cal.App.4th 607, this decision holds that a defendant in an unlawful detainer action may bring a motion to quash the special 5-day unlawful detainer summons on the ground that the complaint either alleges a claim entirely different from an unlawful detainer claim… Read More

Brown, a teacher, complained that the electro-magnetic waves emanating from the new wi-fi system installed in her school caused her chronic pain, headaches, nausea, itching, burning sensations on her skin, ear issues, shortness of breath, inflammation, heart palpitations, respiratory complications, foggy headedness, and fatigue.  She reported her symptoms to the school, which initially gave her the option of having it… Read More

While a plaintiff may raise new legal theories on appeal from a dismissal on a general demurrer attacking the legal sufficiency of the complaint's factual allegations, that rule does not apply to an appeal from a dismissal on the ground that the claims alleged in the complaint are barred by the compulsory cross-complaint rule codified in CCP 426.10.  An appellate… Read More

It is error to dismiss an original complaint without leave to amend unless the complaint discloses on its face a reason why it cannot be amended to state a viable claim.  On appeal from such a dismissal, the appellant need not show anything in the record demonstrates that the complaint can be amended to allege a viable claim; rather, the… Read More