Faiella v. City of Huntington Beach

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tort. (See CACI No. 3600 [civil conspiracy elements]; Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1048; Voris v. Lampert, supra, 7 Cal.5th at p. 1150 [conversion is a tort]; see also SAC ¶¶ 13-20, 22- 24, 26-27, 32, 45-51, 58, 59(g), 60-61.)

Request for judicial notice. Luqra’s request for judicial notice is DENIED. Luqra relies on the subject discovery responses as evidence, rather than to contradict a material allegation of the SAC. (See, e.g., Mtn. Memo. P&As at pp. 7:23-25, 8:2-6, 8:9- 10, 8:19-20, 9:12-13, 9:21-23.) Drawing factual inferences from discovery responses is not a proper use of judicial notice on a pleading challenge. (Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 477-478 [denying request to take judicial notice of discovery responses]; Williams v.

Southern California Gas Co. (2009) 176 Cal.App.4th 591, 599-600.) “ ‘[T]he hearing on demurrer [or similar pleading challenge] may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of ... such material” on the ground it “purports to contradict the allegations and contentions of the plaintiff.’ [Citation.]” (Bounds v. Superior Court, at p. 477.)

Luqra shall give notice of this ruling.

62. Faiella v. Defendant City of Huntington Beach’s motion for summary City of judgment as to the claims of Jennifer Dawn Faiella is DENIED. Huntington City has met its initial burden of proof by producing sufficient Beach evidence to establish that Faiella’s action has no merit, that 2024- Faiella cannot prove an element or some elements of a cause 01434420 of action, or that a complete defense is established as a matter of law entitling it to judgment. C.C.P. § 437c (p) (2), and Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287. However, Faiella has met her now shifted burden to produce evidence to show that a triable issue of fact, or issues of fact, exist. C.C.P. § 437c (p) (2), and Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.

Specifically, there are triable issues of fact as to whether City had constructive notice of the alleged dangerous condition of the sidewalk. There are triable issues of fact as to UMF 4, 5 and Faiella’s additional material facts 4, 7, 8, 9, 10, 11 and 13.

Faiella’s objections asserted in the Separate Statement are OVERRULED. California Rules of Court, rule 3.1354 provides that all written objections to evidence must be served and filed separately from the other papers in support of or in

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opposition to the motion. While objections to specific evidence may be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, the objections must not be restated or reargued in the separate statement. Rule 3.1354.

The court did not consider the late filed reply papers. “A reply to the opposition shall be served and filed by the moving party not less than 11 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” Code Civ. Proc., § 437c(b)(4). The reply papers were filed on August 12, 2026, 5 days before the date of the hearing. Moving party has provided no justification for this, and therefore the court cannot find good cause.

Defendant City to give notice of this ruling.

63. Stamen v. Plaintiffs Jed Hunter Stamen and Michael H. Leifer’s motion for OC Home summary judgment is DENIED. Buyers, LLC Plaintiffs have failed to meet their initial burden to prove each 2025- element of their sole cause of action for breach of contract. 01529001 (Code Civ. Proc., § 437c, subd. (p)(1) [burden]; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [burden]; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements for breach of contract]; Darbun Enterprises, Inc. v. San Fernando Community Hospital (2015) 239 Cal.App.4th 399, 409, fn. 5 (Darbun Enterprises) [elements for specific performance].)

The complaint alleges a single cause of action for breach of a written real estate purchase and sale agreement (PSA) entered into between plaintiffs as the “buyer” and defendant OC Home Buyers, LLC as the “seller” for the property located at 104 Avenida San Pablo, San Clemente, CA 92672 (Compl. ¶¶ 9-15, Ex. A), seeking both specific performance and damages. (Id. ¶¶ 14-15 & prayer at ¶¶ 1-2.)

As an initial matter, specific performance and damages are alternative remedies for breach of contract. (See Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 905 [“a party may not obtain both specific performance and damages for the same breach of contract”]; Darbun Enterprises, supra, 239 Cal.App.4th at p. 409 [“A plaintiff may seek specific performance, an equitable remedy, as an alternative to damages, but a plaintiff may not receive both for breach of contract to the extent such an award would constitute a