Excerpt: ... law. The M erits 1. There is a Triable Issue of Material Fact as to Whether Nurse Practitioner Luu was an Independent Contractor or an Employee of Progeny These defendants claim Luu was an independent contractor and thus they cannot be held liable for any negligenc e on her part. Historically, someone that hired an independent contractor was not liable for their negligence. (See Johnson v. The Raytheon Co., Inc. (2019) 33 Cal.App.,5th 617, 627.)...

Excerpt: ...not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action…it is not only error but abuse of discretion”.  Morgan v. Superior Court  (1959) 172 Cal.App.2d 527. However, where leave to amend is sought to allege a claim that is legally deficient, leave to amend may be denied. (See, e.g., California Cas. Gen. ...

Excerpt: ... notice, thus the req uest is GRANTED Defendant notes that each of the claims in the FAC concern the sale of the subject real property accomplished under court order in the Los Angeles Superior Court case in which Plaintiff was a defendant. As to the first cause of action f or breach of fiduciary duty, Plaintiff alleges no factual allegations as to the existence of a fiduciary duty owed by Defendant to Plaintiff. There is only an allegation th...

Excerpt: ... its own. Thi s request for default judgment is both procedurally and substantively defective. The request has not been made on mandatory Judicial Council Form CIV -100 (Cal. Rules of Court, rule 3.1800(a)) and is not properly supported by a default prove -up package. (Id ., rule 3.1800(a)(2) -(8); see Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 288 (Kim) [evidence of damages is required for default judgment].) Even if plaintiff h...

Excerpt: ...e r joint tortfeasors from any further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (Id., § 877.6, subd. (c).) “To determine whether a settlement is in good faith, a trial court must inquire ‘whether the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional share of compa...

Excerpt: ...t Will -Work. Will- Work a sserts that since the Court's sustaining of Will -Work's previous demurrer, Plaintiff has only inserted a few ambiguous, conclusory statements about Will -Work, neglected to revise its caption page to add Will -Work as a defendant, a fatal flaw as discussed i n the concurrently filed Motion to Strike, and fails to allege any specific facts related to Will -Work's conduct. Will -Work also contends that the Ninth Cause...

Excerpt: ... allegations made mus t be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the com plaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6...

Excerpt: ...al distress; and (4) actu al and proximate causation of the emotional distress by the defendant's outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) The fifth cause of action alleges that the defendants engaged in an “intentional and willful failure to put Plaintiff on notice of the insects, including, but not limited to, bed bugs in the Subject Property and Subject Unit, knowing, i...

Excerpt: ...sue is the sufficien cy of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of ...

Excerpt: ...the open house signs. Real estate agents/brokers have a duty to notify visitors about dangerous conditions which they know about or have constructive knowledge of. From the photographs attached to defendant expert's declaration, it is apparent there is a triable is sue of fact as to whether this raised area (sort of a rectangular landing) was open and obvious. The color and texture of the walkway and raised area appear to be consistent. A jury co...

Excerpt: ...dissolut ion of the automatic bankruptcy stay. Statement of Law The Court may summarily adjudicate any causes of action, affirmative defenses, claims for damage, or issues of duty. (Code Civ. Proc., § 437c, subd. (f)(1).) The “specific cause of action, affirmativ e defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material fact...

Excerpt: ...omplaint. (Blan k 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. (200 2) 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 ...

Excerpt: ...ful evict ion. Plaintiff filed a first amended complaint as a matter of right. The parties then stipulated to Plaintiff filing a Second Amended Complaint. [ROA #79]. Defendants Baldi, Steiner, and MAS filed a demurrer to various causes of action in the Second Ame nded Complaint. On August 16, 2023, the court overruled Defendants' demurrers as to the eighth cause of action, but sustained the demurrer as to the fourth, seventh, ninth, and tenth...

Excerpt: ...ruled. Lega l Standard “The party against whom a complaint or cross -complaint has been filed may object, by demurrer or answer as provided in Section 430.30[.]” Among other grounds, a demurrer may be taken if a pleading is “uncertain,” (meaning “ambiguous and unintell igible”), or if it “does not state facts sufficient to state a cause of action.” (Code Civ. Proc., § 430.10, subd. (e), (f).) A special demurrer for uncertainty i...

Excerpt: ...oposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional a llegations are located. (California Rules of Court (“CRC”), Rule 3.1324(a).) Moreover, a separate declaration must accompany the motion and must specify: (1) the effect of the ...

Excerpt: ...Court Clerk is instructed to remove ROA # 1176 from the public docket, and Defendant is directed to file a corrected version of same, but which redacts the confidential information identified in Plaintiff's Motion. The Court seals the portions of ROA # 1176 that des cribe or summarize the contents of Exhibits 20 -26 and 30- 35. Statement of Law – Motion to Seal “Unless confidentiality is required by law, court records are presumed to be o...

Excerpt: ...they are overr uled nos. 1, 2, 3, 6, 7, 8. The court did not consider facts and argument presented for the first time on reply. A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable i ssue of material fact…” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the p...

Excerpt: ...s GRANTED as to the second cause of action only. A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) The parties must set forth admissible evid...

Excerpt: ... set forth “ specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310(b)(1).) Case law provides the burden is on a moving party to show good cause. (See, e.g., Digital Music News, LLC v. Superior Court (2014) 226 Ca l.App.4th 216, 224 [disapproved on other grounds by Williams v. Super. Ct. (2017) 3 Cal.5th 531]; Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) To establish “good c...

Excerpt: ...yable w ithin 30 days of notice of the Court's ruling. Statement of Law Under the Civil Discovery Act, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determina tion of any motion made in that action, if the matter is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may re...

Excerpt: ...35, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rul e, or an order of the court.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of whic...

Excerpt: ...36.) “Irrel evant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (Code Civ. Proc., § 431.10(b).) Defendant moves to strike Plaintiff's requests for injunctive relief. Defendant argues that Plaintiff is seeking injunctive relief only under Civil Code section 52, ...

Excerpt: ...o merit if the party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc., § 437c(p)(2).) To “show” a complete defense, a defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) The plaintiff has no evid...

Excerpt: ... the motion on the ground that it is untimely. Although Defendant cites to rule 3.1700 in its notice of motion, Plaintiff is correct that the applicable statute is Code of Civil Procedure section 685.070. Under section 685.070, the motion to tax costs must be brought within “10 days after the memorandum of costs is served on the judgment debtor.” (Code Civ. Proc., § 685.070, subd. (c).) Under subdivision (d), “[i]f no motion to tax costs i...

Excerpt: ...endaring the motion and t he court would prefer to reach the merits of the motion. Defendant seeks to strike the items listed below from the Cost Memo. Category 1(g) – filing and motion fees Defendant argues that $87.85 should be taxed because the amount is sought for filing fees of documents that were rejected by the court. Defendant seeks to strike a total of $1,844.59 from Category 4. Defendant argues that the court should strike In respon...