Excerpt: ...e court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Code Civ. Proc., § 664.6 (effective 1/1/21). Subsection (b) of the statute provides that “For purposes of this sect...

Excerpt: ...ability to comply is inadequate, incomplete, or evasive; and (3) an objection in the response is without merit or is too general. Section 2031.310(b)(1) requires the moving papers to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. To establish “good cause,” the burden is on the moving party to show both: (1) relevant to the subject matter (e.g., how the information in the document would te...

Excerpt: ...ively, “Cross-Complainants”) and the first three causes alleged therein. Demurring Parties also seek an order striking the punitive damages allegations and prayer for punitive damages from the FACC. Demurrer Demurring Parties demur to the FACC on the grounds that ZXRV lacks capacity to bring this action and Burns lacks standing. Demurring Parties also contend the FACC does not state sufficient facts to support the first, second, and third cau...

Excerpt: ...uous. (Dem. at 3, citing Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) Defendant Timmes makes the additional argument that the claim fails against him because he is not a party to the construction agreements. “Every contract imposes on each party an implied duty of good faith and fair dealing. Simply stated, the burden imposed is ‘that neither party will do anything which will injure the right of th...

Excerpt: ... injuries she allegedly suffered while a passenger on one of Defendant's buses. (SAC at ¶ 6.) “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. Where a ...

Excerpt: ... Defendant Haddadin) and DENIED IN PART (as to Defendants Radii and Arisohn). As an initial matter, the Court notes that Plaintiff's Complaint originally alleged three causes of action, for breach of express contract, money lent, and account stated. On 12/22/2020, however, Plaintiff dismissed the Doe defendants and also dismissed its causes of action for money lent and account stated. Request for Dismissal, ROA No. 40. Thus, there is only one cau...

Excerpt: ...hey also allege that “Defendants” hired moving party Defendant Bowers Termite. [Complaint, ¶ 20 and Ex. 3.] Plaintiffs attach Defendant Bower Termite's inspection report – titled Standard Notice of Work Completed and Not Completed – and allege that it was incorporated “into the agreement.” [Complaint, ¶ 21.] A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached t...

Excerpt: ...o be entitled to relief, the defendant has the burden of showing the neglect was excusable: i.e., that the default could not have been avoided through the exercise of ordinary care. [Jackson v. Bank of America (1983) 141 CA3d 55, 58—“the acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances”]. The party moving for relief on the basis of “mistake, inadvertence, surprise, or...

Excerpt: ...respond.” (Code Civ. Proc., § 2031.280, subd. (a).) It is insufficient to merely label the documents by Bates number in response to separately propounded interrogatories. (See van Loben Sels decl., Ex. B.) Plaintiff shall pay $2340 in discovery sanctions to defendant. (See Code Civ. Proc., § 2031.310, subd. (h); see also Amaro decl. ¶ 22.) The motion was timely filed and served within 45 days after plaintiff provided verifications on 10/5/20...

Excerpt: ...al Notice is denied as irrelevant. On August 13, 2020, Plaintiff served her Notice of Taking Defendant Yong Hans' Deposition, for Defendant's deposition to be continued to October 28, 2020. (Ma Decl., ¶19). Defendant failed to appear for his deposition. (Ma Decl., ¶ 22). On November 13, 2020, Plaintiff sent out another deposition notice for a December 2, 2020 deposition. (Ma Decl., ¶ 23). Again, Plaintiff did not appear for his deposition. (Ma...

Excerpt: ...eld; (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) there is a suggestion of discriminatory motive. Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 130; Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355; see also CACI 2500. Defendant contends Plaintiff has not alleged an adverse action as he has not been demoted or terminated, or something equally definitive. CACI ...

Excerpt: ...otes Medical Center did not show the moving papers were properly served on Defendant Sevak H. Darbinian, M.D. (“Dr. Darbinian”). After a defendant appears, that “defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant.” Code Civ. Proc., § 1014. The Clerk of the Cour...

Excerpt: ...an 10 days late. Code Civ. Proc., § 1005(b). Plaintiff explains he intended to request a continuance at the 2/8/21 hearing and hoped Defendants would stipulate to a continuance, but these explanations do not demonstrate “good cause” for his tardiness or disregard of procedural rules. Although Plaintiff is representing himself, his pro per status does not entitle him to any special treatment. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–...

Excerpt: ...iled the following motions against Defendant Conny Bergstrom as a result of her failure to serve discovery responses: (1) Motion to Compel Responses to Form Interrogatories; (2) Motion to Compel Responses to Special Interrogatories; (3) Motion to Compel Production; and (4) Motion to Deem Facts Admitted. After the motions were filed, responses were ultimately served, rendering the motions largely moot. However, Plaintiff has requested sanctions ag...

Excerpt: ... absence of an agreement for recovery of fees or specific statutory provision, attorneys' fees generally are not recoverable by the prevailing party in a lawsuit. Trope v. Katz (1995) 11 Cal. 4 th 274, 278-79. Accordingly, in the absence of a basis for recovery, Plaintiff's prayer for attorneys' fees is subject to being stricken. Such basis must appear on the face of the pleading or by matters that may properly be judicially noticed. Code Civ. Pr...

Excerpt: ...tthew Timmes (collectively, “Defendants”) oppose the motion. Plaintiff contends their dispute is subject to binding arbitration under identical “Dispute Resolution” provisions in the two subject construction contracts—one relating to construction work at Mr. Glasser's residence (the “Residential Agreement”) and the other relating to construction work at a restaurant (the “Restaurant Agreement”). The provisions state: “DISPUTE ...

Excerpt: ...uction, nos. 34-45; and (iv) Requests for admission, nos. 26-28. The Court rules as follows: (i) Motion denied as to nos. 77 and 78; otherwise granted. (ii) Motion granted. (iii) Motion granted. (iv) Motion granted. Sanctions of $11,550 are awarded to Defendant against Plaintiff. Motion to Compel Further Responses to Special Interrogatories A party may move to compel further responses to interrogatories on the grounds that the answer is evasive o...

Excerpt: ...rocedure section 1008. In addition, Plaintiff does not show new or different facts, circumstances, or law to support a motion for reconsideration. Code Civ. Proc., § 1008. In addition, the relief Plaintiff seeks cannot be addressed with a nunc pro tunc order. A nunc pro tunc correction is proper if it reflects the court's intention in entering the original order and does not “alter the meaning or legal effect of the original decree.” Estate ...

Excerpt: ...r Breach of Implied and Express Warranty Defendants contend the breach of warranty claims are subject to demurrer because there is no privity between Defendants and Plaintiffs. (Dem. at 2.) There generally is no question that privity is required for a breach of implied warranty claim. U.S. Roofing, Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1441 (citing Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 682, 695–696; Osborne v. Subaru...

Excerpt: ..., subd. (a)(1).) “Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.” (Elkman v. Nat. States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-1313.) If there is no conflict in the evidence, “the question of jurisdictio...

Excerpt: ...are procedurally flawed in that (1) they do not provide a legal basis for the motion, (2) Defendant did not plead any settlement in its answer, and (3) there was no settlement between the parties. “A basic tenet of motion practice is that the notice of motion must state the grounds for the order being sought (Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a)), and courts generally may consider only the grounds stated in the notice o...

Excerpt: ...cause Instant Tuck USA LLC did not propound the discovery, it is not entitled to seek further responses, and the motions as to it are denied. As to the proper moving party, Plaintiff Instant Tuck, Inc. (“Plaintiff”), the Court rules as follows: (1) The motion to compel further responses to special interrogatory nos. 1 and 2 is denied; (2) The motion to compel further responses to document requests nos. 8 (erroneously identified as 1 in the Mo...

Excerpt: ... for which notice is requested. Furthermore, based on the Court's review of the documents included with the requests, it does not appear that any of them is a proper subject of which to take judicial notice under Evidence Code Sections 451 or 452. Cross-Complainant's evidentiary objections are all overruled. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of...

Excerpt: ...late reasonable attorneys' fees. Meister v. U.C. Regents (1998) 67 Cal. App. 4th 437, 448-49. The court determines a lodestar figure based on a careful compilation of the time spent and reasonable hourly compensation of each attorney involved. Serrano v. Priest (1977) 20 Cal. 3d 25. A reasonable fee is determined in the trial court's discretion. PLCM Group v. Drexler (2000) 22 Cal. 4 th 1084. To determine reasonable attorneys' fees, the court sho...

Excerpt: ...oes not list the opposition as one of the documents served. In addition, Artedi Cortez did not state his email address on the proof of service. Code Civ. Proc., § 1013b, subd. (b)(1). Furthermore, a party cannot serve documents by mail. Code Civ. Proc., § 1013a, subd. (1). Because the Association did not file any reply, it is unclear whether the Association received the opposition. Subject to any objection by the Association regarding service, ...