Excerpt: ... the interpretation and scope of this Arbitration Provision and the arbitrability of the claim or dispute) which arises out of or relates to [the] condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) [to] be resolved by neutral binding arbitration". (Ibid.) Although Defendant Nissan North America, Inc. was not a signatory to this ag...

Excerpt: ... its joint agent TRI Commercial Real Estate Services lnc and other persons and entities with whom DMP has communicated with during the course of the transaction which is the subject of this action." This response does not consist of a statement that Defendant will comply with the document request, a representation that Defendant lacks the ability to comply with the document request, or an objection to the document request. (Code Civ. Proc. S 2031...

Excerpt: ...nlimited to limited jurisdiction, on motion by a defendant filed by the time that defendant must file its initial responsive pleading. C.C.P. 5403.040(b) permits later-filed motions to reclassify, but only if "The moving party shows good cause for not seeking reclassification sooner". Page 2 of 2 WALMART's motion made no showing of gtnd cause for the six to seven month delay in filing here. Even if WALMART's motion had been timely filed and timel...

Excerpt: ...omplaint alleges that GOMEZ refused to expunge a lis pendens on SHARMA's real property (the "Property") despite a July 14, 2022 court order and that GOMEZ has converted SHARMA's property. The court has received opposition to the ant-SLAPP motion but has not received opposition to the demurrer. GOMEZ's Standing. The court disregards GOMEZ's arguments as to SHARMA's first cause of action, alleging professional negligence against Defendants ALI ARI ...

Excerpt: ...ch the defendant acted on behalf of the plaintiff in a transaction, and either misled or failed to fully disclose information they should have known, which was a substantial factor in causing the plaintiff harm. CACI 4111; Civil Code 51573. Fraud (intentional misrepresentation) involves making a knowing misrepresentation with intent to induce reliance, causing justifiable reliance and harm. Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App...

Excerpt: ...eath due to Defendant's understaffing of its care facility. Meet and Confer Efforts. The court first considers the adequacy of the parties' efforts to meet and confer to work these issues out before resorting to a motion to compel further responses. Code of Civil Procedure section 2016.040 requires a declaration "showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion" to compel. Plaintiffs' cou...

Excerpt: ...ployment and Housing Act (the "FEHA"). Legal Standard. "The function of a demurrer is to test the sufficiency of the complaint as a matter of law." (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his or her case "with reasonable precision and with particularity sufficient to acquaint [t...

Excerpt: ...ear and convincing evidence that the adverse employment action would have occurred even absent the whistleblowing. Labor Code 51102.6. These same standards apply for both trial and summary judgment. Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 717. Thus, to defeat a defense summary judgment or adjudication motion, a plaintiff need only present evidence sufficient to show that whistleblowing was a contributing factor to the ad...

Excerpt: ...es of motions (although the captions of the notces bear the correct date, as does Plaintiff's oppositions), and to claim that Defendant's counsel had failed to adequately meet and confer before filing the motions. Plaintiff specifically argued that the failure of Defendant's counsel to request an informal discovery hearing precluded a finding of adequate meet and confer efforts. There is no authority for this proposition, nor has Plaintiff's coun...

Excerpt: ...ey's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attorney's fees, as set forth above, that provision shall be c...

Excerpt: ...aintiff, now an adult, suffered childhood sexual abuse from Defendant EDWARD HEARN ("HEARN"), a DOLPHINS employee. Legal Standard on Demurrer. "The function of a demurrer is to test the sufficiency of the complaint as a matter of law." (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his...

Excerpt: ...h); 2. That there is no meritto each of the Defendants' affirmative defense allegations in their Amended Answer to Plaintiff's Third Cause of Action in their Third Amended Complaint for Unruh violations. In support of her Motion, Plaintiff submits four declarations: from herself, her counsel, and two experts, David Atkin, M.D„ and Steve Schraibman, CASP, AIA. She does not prov-de a Separate Statement of undisputed Material Facts. b. Opposition:...

Excerpt: ...hat is subject to the jurisdiction of the court or the relief demanded in the action would exclude the party from any interest in the property. Strict compliance is required to obtain leave to serve by publication. County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450. Further, constitutional principles of due process of law require that service by publication be used only as a last resort. Watts v. Crawford (1995) 10 Cal.4th 743, ...

Excerpt: ...ictim". (Thing v. La Chusa (1989) 48 cal.3d 644, 667-658; Bird v. Saenz (2002) 28 cal.4th 910, 915.) A bystander may be aware that an injury-producing event is causing injury to the victim without visually observing the exact moment of injury. (Krouse v. Graham (1977) 19 Cal.3d 59, 76; Wilks v. Hom (1992) 2 Cal.App.4th 1254, 1271; see, Bird, 28 Cal.4th at 916 ["To be sure, Thing's requirement that the plaintiff be contemporaneously aware of the i...

Excerpt: ...ugs and/or controlled substances were in her system at the tme of October 25, 2021 motor vehicle collision." Timeliness of Motion. Code of Civil Procedure section 1987.1 gives the trial court power to quash, modify, or direct conditional compliance with a subpoena upon a party's motion. The court may make any order as appropriate to protect the subpoenaed entity from unreasonable demands. Code of Civil Procedure section 1985.3, subdivision (g) mo...

Excerpt: ...bd. (b), 2016.040.) Defendant's counsel's declaration accompanying its motion to compel states that since denial of Defendant's previous motion for leave to conduct a mental examination on February 22, 2023 the parties have met and conferred by phone and email. (Declaration of Simone M. Leighty in Support of Motion at "1 7-8, Exhibit F.) Subsequent to these discussions Defendant served a new demand for examination on March 13, 2023, to which Plai...

Excerpt: ...us and cause for its denial". (Cal. Rules of Court, rule 3.1113, subds. (a)-(b).) Additionally, on the court's own motion, the court vacates the entry of default on January 19, 2023. Plaintiff's proof of service of the summons and complaint, on a Judicial Council form that explicitly instructs the user "not [to] use this form to show service of a summons and complaint", establishes a failure to satisfy statutory requirements for service of a summ...

Excerpt: ...00 case management fee on February 7, 2023, Page 3 of 3 due upon receipt or no later than 30 days from the date of the invoice. On March 3, 2023 a reminder was sent by AAA to Defendant and the message was relayed to the person responsible for approving large expenditures; however, he was on vacation and did not respond to Defendant's general counsel until March 7 with the approval. However, the payment was not issued. On March 14, 2023, AAA sent ...

Excerpt: ...e deposition was unilaterally set, which is incorrect. In fact, Plaintiff's counsel requested dates on which Steve Circosta would be available, but Defendant's counsel failed to respond. Decl. of David Perkins, "11.) In response, Plaintiff's counsel extended an offer to meet and confer which was unsuccessful. The Court notes that the deposition notice was already for a remote deposition and Plaintiff indicated to defense counsel that the depositi...

Excerpt: ....P. 5685.040. The underlying judgment here includes an award of attorneys fees authorized by contract, so this condition is met. The attorneys fees incurred by MEOW Y. LOH and LEE H. TAY LOH ("Landlords") in defending the ex parte application and then motion to set aside the default judgment filed by defendant/judgment debtor AMARILLO COLLEGE OF HAIRDRESSING, INC., dba Milan Institute of Cosmetology ("Tenant") also appear to have been incurred in...

Excerpt: ... complaint alleges that Decedent, Plaintiff's seventeen-year-old son, was a student with disabilities and special needs at Defendant's school. Plaintiff alleges that Defendant failed to supervise Decedent, who while unsupervised suffered an episode of seizures leading to hospitalization and then death on September 25, 2021. Scope of Subpoenas. Defendant's subpoenas to UCSF seek (1) "Any and all medical documents, paper and digital records pertain...

Excerpt: ...o Form Interrogatory 17.1 as to admissions requests 9-25, and 33-34. Per C.C.P. "2030.210 and 2030.220, responses as to each of the admissions requests at issue are to be made in subparts that correspond to the subparts in Form Interrogatory 17.1, and provide all of the information reasonably available to Plaintiff that is requested in those subparts. Plaintiff's "non-opposiäon" argued that his concession to the requested order compelling furthe...

Excerpt: ...o Form Interrogatory 17.1 as to admissions requests 9-25, and 33-34. Per C.C.P. "2030.210 and 2030.220, responses as to each of the admissions requests at issue are to be made in subparts that correspond to the subparts in Form Interrogatory 17.1, and provide all of the information reasonably available to Plaintiff that is requested in those subparts. Plaintiff's "non-opposiäon" argued that his concession to the requested order compelling furthe...

Excerpt: ...dant filed no responsive pleading in this action identifying an address of record. Despite the statement of the 3420 Holsclaw Road address Plaintiff used for notice of this motion in the presented settlement agreement between the parties, it is not sufficiently clear to the court that Defendant has received notice of this proceeding. Furthermore, Plaintiff's motion does not clearly explain the credits to which Defendant is entitled against the ju...

Excerpt: ... discovery issues out resorting to a motion to compel further responses. The trial court has discretion in determining whether adequate meet and confer efforts preceded the filing of the motion. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424 (Obregon) [factors include complexity of discovery issues, history of counsel in prior disputes, judge's gut feeling; sending one brief letter 13 days prior to deadline to file motion was not sufficient...