Excerpt: ...State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774-776, Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989, and Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 [mere statements in MPAs and declaration of counsel insufficient to rebut prima facie showing].) As such, Plaintiff's assertion that the entire Memorandum of Costs is defective because it does not include any affdavits or receipts fails as there is no such requirement in the...

Excerpt: ... will appear and discuss what arrangements have been worked out as to this matter. B) Demurrer Defendant Jason Krieck's (Krieck) Demurrer to plaintiffs John Pressney and Pamela Pressney"s (Plaintiffs together) Fourth Amended Complaint (FAC) is OVERRULED. Krieck demurs to causes of action (COA) No. 3 for Elder Abuse, and No. 4 for Unfair Business Practices. Although Krieck made general arguments as to why the FAC does not state facts sufficient to...

Excerpt: ...d 2 are MOOT, except for the issue of sanctions. Motion 3 is DENIED. Motions 1 and 2: Motions to Compel Answers to Discovery Plaintiff seeks to compel 1st Pass' responses to its first set of Requests for Production of Documents and Special Interrogatories. In the Oppositions, 1st Pass contends it provided full and complete responses to the subject discovery after the motions were filed. The Oppositions show initial responses were served on August...

Excerpt: ...rent hearing was set as a motion to compel further responses to RFAs, the Court will consider the RFAs at this time. The next procedural problem is that Plaintiff failed to concurrently file a declaration with the motion evidencing meet and confer efforts as required by CCP S Plaintiff attempted to remedy the problem by filing three Notces of Errata attaching the full motions with the declarations on the last court day before the hearing. Further...

Excerpt: ...t recovery of punitive damages." (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405) "The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Citations omitted) Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury "must be ple...

Excerpt: ...Consulting, Behrooz Entezam aka Bruce Entezam and Behzad Entezam, aka Ben Entezam (collectively "Green" or "RP") is SUSTAINED in part and OVERRULED in part. RP objects to the demurrer on the ground that it was filed six days late. RP argues that it only granted a one week extension to "answer" and not to file a demurrer. Based on the Court's review of the correspondence and declarations, there appears to have been some confusion on the use of the...

Excerpt: ...88-89; Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733.) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal. 4th at 89.) "As used in this section, "act in furtherance of a person's right of petition or free s#ech under the United States or Califo...

Excerpt: ...ion under Section 2016.040. [9] The court, for cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: [9] (1) That the deposition not be taken at all." (Code Civ. Proc., S 2025.420, subds. (a),...

Excerpt: ...nintelligible" (Code Civ. Proc., 5430.10, subd. (f)), "[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Additionally, "[d]emurrers for uncertainty are disfawred, and are granted only if the pleading is so incomprehensible that a defendant cannot rea...

Excerpt: ...e Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant's argument is based on the 2022 Release, signed between the parties to settle a dispute about the profit-sharing clause in the original employment agreement. While the General Release signed in 2020 specifically excluded issues related to the profit-sharing clause, the 2022 Release cove...

Excerpt: ... claims. On a fraud claim, every element must be alleged in full, factually and specifically, including facts that show how, when, where, to whom, and by what means the representations were tendered, and when alleged against an entity, the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. (Lazar v. Sup. Court (1996) 12 C...

Excerpt: ... demurred to all ten affrmative defenses. Code Civ. Proc. S 430.30 lists three grounds for demurrer to answer: (1) the answer does not state facts sufficient to constitute a defense; (2) the answer is "uncertain," which includes ambiguous, and unintelligible; and (3) when the answer pleads a contract, it cannot be ascertained whether the alleged contract is written or oral. Each ground must be in a separate paragraph and state whether it is direc...

Excerpt: ... Civil Procedure sections 2030.290(c) and 2031.300(c) provide that if a party fails to obey an order compelling discovery responses, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction, and/or monetary sanctions. "Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctons should be tailored to serve t...

Excerpt: ...e Constitution. (Cal. Const., art. l, S 1.)" (Williams v. Superior Court (2017) 3 Cal. 5th 531, 552 ("Williams").) "unless otherwise limited by order of the court . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discov...

Excerpt: ...was not served with a summons in the manner prescribed by statute is wid." (Dill v. Berquist Constr. Co. (1994) 24 Cal. App. 4th 1426, 1444 ("Dill").) "A motion to vacate a judgment on the ground that it is void is timely if made within a reasonable time (8 Witkin, Cal.Procedure, supra, Attack on Judgment in Trial Court, S 186, pp. 587—588), which has been determined to be any time within two years of the entry of the judgment. (Dill, supra, 24...

Excerpt: ...ure production. The Court finds good cause has been shown for some of what is requested as documents related to Defendant's policy and procedures used to evaluate customer requests for repurchase or replacement under the Song Beverly Act would be relevant to Defendant's good faith compliance with said Act. Further, documents regarding diagnostic/repair procedures followed is probative of whether Defendant followed the appropriate repair procedure...

Excerpt: ...e and the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party "to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute." (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is ...

Excerpt: ... or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party "to demonstrate that an arbitration clause cannot interpreted to require arbitration of the dispute." (Buckhorn v. St. Judge Heritage Medical Group (20134) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molinari (2W5) 132 Cal.App.4th 1223, 1229....

Excerpt: ...n a continuance, the opposing party must submit affidavits showing that facts "essential to justify opposition may exist but cannot, for reasons stated, be presented." "It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show 'facts essential to justify opposition may exist.' " (Roth v. Rhodes (1994) 25 Cal.App.4th 53...

Excerpt: ...." (Rakestraw v. Cal. Physicians' Service (20!W) 81 Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendmen...

Excerpt: ...he court for an order requiring Plaintiff to appear. (Civ. Proc. Code § 2032.310.) “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Civ. Proc. Code § 2032.320(a).) Plaintiff previously underwent a physical IME with Luke Macyszyn, M.D. (“Macyszyn”), which focused solely on Plaintiff's alleged spine injuries. (Opposition, Ex. 5 at p. 1 ¶ 5.) Defendants now seek a sec...

Excerpt: ...brought under this section, the court, in its discretion may award to the prevailing party reasonable attorney fees and costs....' (Gov.Code, § 12965, subd. (b).) We review the trial court's failure to award attorney's fees under an abuse of discretion standard.” (Steele v. Jensen Instrument Co. (1997) 59 Cal. App. 4th 326, 331) Hotel does not contest the plaintiff's right to recover fees under FEHA. The Court has discretion as to determining ...

Excerpt: ...ee also, Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 - general demurrer may be upheld “only if the complaint fails to state a cause of action under any possible legal theory” (emphasis added).) The first cause of action is for Promissory Estoppel. “The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance mus...

Excerpt: ...subject motions are brought following the deponents' failure to appear at deposition. CCP §2025.450 authorizes a motion to compel attendance and production following a failure to appear. Because the motions are similar in many respects, and because the separate “non-oppositions” filed by the defendants are nearly identical, the two motions are discussed together. Green establishes that on 1/19/23, it served a Notice of Deposition of Persons ...

Excerpt: ... by the motion. (Code Civ. Proc., §§ 2030.300(b), 2031.310(b), and 2033.290(b).) Code Civ. Proc. § 2016.040 requires a good faith attempt to resolve “each issue presented by the motion.” There must be a serious effort at negotiation and informal resolution. (Clement v. Alegre (2009) 177 Cal.App. 4th 1277, 1294.) While meet and confer efforts certainly could and should have been more robust, the court has already addressed that by ordering ...