Motion for summary judgment, or alternatively, summary adjudication
# Case Name Tentative
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51. Olen Plaintiff Olen Commercial Realty Corp.’s motion for summary Commercial judgment, or alternatively, summary adjudication, is DENIED. Realty Corp. (Code Civ. Proc., § 437c [authorizing motion].) v. Tush Law, Defendants’ request for judicial notice is GRANTED as to Exs. Ltd 4, 6, and 7. (Evid. Code, § 452, subds. (a), (b), (d).) The 2023- remainder of defendants’ request for judicial notice is DENIED. 01354690 (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 889 [while judicial notice may be taken of the existence of government websites, “the same is not true of their factual content ... we know of no ‘official Web site’ provision for judicial notice in California”]; Searles Valley Minerals Operations, Inc. v.
State Bd. of Equalization (2008) 160 Cal.App.4th 514, 519 [“although it might be appropriate to take judicial notice of the existence of the websites, the same is not true of their factual content;” emphasis in original].)
Defendants’ evidentiary objection no. 1 to the Taylor Decl. is SUSTAINED IN PART, as to the portion reading “thereby accepting possession and the benefits of the Lease without objection until April 2023” (lacks personal knowledge, improper legal conclusion). Defendants’ evidentiary objection no. 3 to the Taylor Decl. is SUSTAINED IN PART, as to the portion reading “Plaintiff was damaged in the amount of $18,321.96. A true and correct copy of the Computation of Damages is attached hereto as Exhibit B” (lacks personal knowledge, inadequate business-records foundation [Evid.
Code, § 1271].) Defendants’ evidentiary objection no. 4 (Taylor Decl. Ex. B) is SUSTAINED IN FULL (lacks personal knowledge, hearsay, inadequate business-records foundation). Defendants’ evidentiary objection no. 5 to the Taylor Decl. is SUSTAINED IN PART, as to the portion reading “A true and correct copy of the demand for payment is attached hereto as Exhibit C,” and to Ex. C itself (hearsay). Defendants’ remaining evidentiary objections to the Taylor Decl. are OVERRULED.
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Defendants’ evidentiary objection no. 10 to the Meyer Decl. is SUSTAINED IN PART, as to the portion reading “Turning in keys and tendering possession to Olen prior to the expiration of the Lease was a breach of the terms of the Lease” (improper legal conclusion). Defendants’ remaining evidentiary objections are OVERRULED.
The court has not considered plaintiff’s Reply Separate Statement (ROA 183). (Code Civ. Proc., § 437c, subd. (b)(4) [“The reply shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving papers or opposing papers”]; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [“There is no provision in the statute” for a “reply separate statement”].)
Summary adjudication as to defendants’ affirmative defenses is DENIED. Moving party’s notice of motion does not identify any specific affirmative defense asserted by any opposing party as to which moving party seeks summary adjudication; nor does the moving separate statement identify any facts supporting any particular affirmative defense, or the separate elements of any particular affirmative defense. (Cal. Rules of Court, Rule 3.1350, subds. (b), (d) [summary adjudication requirements]; Cadlo v.
Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 523 [court’s discretion to deny summary judgment / adjudication due to failure to comply with separate statement requirements]; Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830–831 [where a party seeks summary judgment / adjudication as to an affirmative defense with numerous elements, moving party must produce evidence as to each element].)
Summary judgment is DENIED, because moving party has not provided sufficient admissible evidence proving each element of its breach of contract cause of action. (Code Civ. Proc., § 437c, subd. (p)(1) [burden]; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements].) The moving party fails to provide admissible evidence as to the element of its own performance or excuse for nonperformance. While moving party’s Fact No. 3 states in relevant part that “Plaintiff at all times acted in accordance with the term of the Lease,” this fact is not supported by the cited evidence (Taylor Decl., ¶ 4), which only speaks to defendants’ acceptance of the lease, not plaintiff’s performance, and which conclusion is inadmissible in any event (defendants’ evidentiary objection no. 1).
As moving party has not met its initial burden, the burden does not shift to defendants to present evidence sufficient to create a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(1) [burden].) Accordingly, there is no need to consider defendants’ evidence, nor plaintiff’s evidentiary objections thereto.
The court sets an order to show cause why this case should not be consolidated with the related case: Tush Law Ltd. v.
Olen Commercial Realty Corp. 2023-01360457. (Code Civ. Proc., § 1048.) The hearing on the order to show cause shall be on July 20, 2026 at 2:00 p.m. in Department C28. The parties are ordered to meet and confer regarding consolidation on May 29, 2026, unless the parties agree to an earlier date for the meet and confer. If the parties agree that the cases should be consolidated, the parties shall submit a stipulation no later than June 8, 2026. If the parties do not agree, plaintiff shall file and serve the response to the OSC no later than June 22, 2026, with defendants response due no later than July 1, 2026.
Plaintiff shall give notice of this ruling.
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55. Corbin v. Demurrer Brophy Plaintiff/Cross-Defendant Sasinee Corbin’s demurrer to the 2020- Third Amended Cross-Complaint (“TAXC”) is OVERRULED as to 01141182 the First and Eighth Causes of Action and otherwise SUSTAINED WITHOUT LEAVE TO AMEND. (Code Civ. Proc. §430.10, subd. (e).) Cross-Defendant shall file an answer to the Third Amended Cross-Complaint within 10 days of this ruling.
General Standard
In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)
Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)
Although courts should take a liberal view of inartfully drawn complaints, (see Code Civ. Proc., § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is