Excerpt: ...se expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 20...

Excerpt: ...to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more...

Excerpt: ... 1-10. The court OVERRULES Respondent's Objections to [Petitioner's] Requests for Judicial Notice, filed on 10-15-19 (ROA No. 108). Respondent's Request for Judicial Notice: The court GRANTS Respondent's Request for Judicial Notice, filed on 10-15-19 (ROA No. 109) and 10-16-19 (ROA No. 104), pursuant to Evidence Code section 452, subdivisions (d) and (h), as to Exhibits A, B, C, and D. Petitioner's Evidentiary Objections (filed on 10-29-19 under ...

Excerpt: ...against the Cross-Complainants (filed on 5-7-19 under ROA No. 469.) Code of Civil Procedure section 916, subdivision (a), states, “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may...

Excerpt: ...al, whether contested or uncontested or stipulated to by the parties, must make the requests for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” California Rules of Court, rule 3.1332(c) and (d) set forth the circumstances an...

Excerpt: ... information sought to be discovered. [¶] (2) An exercise of the party's option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.260, subdivision (a), provides, in relevant part, “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party . . . .” Code of Civil...

Excerpt: ...may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to...

Excerpt: ...but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” ...

Excerpt: ... only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantia...

Excerpt: ...lso of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez...

Excerpt: ...ides, “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be ju...

Excerpt: ...ements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense t o t h a t c au se o f a c ti o n . On c e the . . . cross-defendant has met that burden, the burden shifts to the . . . cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in...

Excerpt: ...s 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 construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of...

Excerpt: ...a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to prote...

Excerpt: ...ly: [¶] (1) An answer to a particular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without merit or too general. . . . [¶] (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any speci...

Excerpt: ...the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5. The court, on its own motion, may make such an order at any time.” Code of Civi...

Excerpt: ...pressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal...

Excerpt: ...e expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209...

Excerpt: ..., cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgm...

Excerpt: ...ed, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial ...

Excerpt: ...ss-Complaint. Proposed Interveners “. . . seek leave to intervene in this matter so that there will be no question whether the Court has all the parties before it, and whether it can issue an order determining that it can make a ruling on arbitrability of claims.” (Motion; 3:7- 9.) Defendant's/Cross-Defendant's (Leona Horowitz) Non- Opposition (Non-Opposition), filed on 7-2-19, states, “. . . she does not oppose the Court granting them the ...

Excerpt: ...from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (...

Excerpt: ...ns, “As the Court of Appeal herein observed, the fee setting inquiry in California ordinarily begins with the ‘lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.' [Citation.] The reasonable hourly ra...

Excerpt: ...y, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only ...

Excerpt: ...ny 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 rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivi...

Excerpt: ...o the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrato...

Excerpt: ...tis (2011) 192 Cal.App.4 th 1474, 1479.) Thus, the court does not have the authority to determine Motion Nos. 1, 2, 3, 4, and 5 (discussed below) based on the defaults entered as to the Second Amended Cross- Complaint. The court notes, however, that Stoll Nussbaum & Polakov filed a Complaint against Eagan Avenatti, LLP, Michael Avenatti, Lisa Storie Avenatti, and Avenatti & Associates, a California corporation on 1-30-13 under Orange County Super...

Excerpt: ...ter 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.” Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4 th 793, 809-811, states, “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. ...

Excerpt: ...f.” Code of Civil Procedure section 512.060, states, “(a) At the hearing, a writ of possession shall issue if both of the following are found: [¶] (1) The plaintiff has established the probable validity of the plaintiff's claim to possession of the property. [¶] (2) The undertaking requirements of Section 515.010 are satisfied.” Code of Civil Procedure section 511.090 explains, “A claim has ‘probable validity' where it is more likely ...

Excerpt: ... properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469, states, “In determining whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all mater...

Excerpt: ...). Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show t...

Excerpt: ...a deposition subpoena for the production of business records. Code of Civil Procedure section 1987.1, subdivision (a), states in relevant part, “If a subpoena requires the . . . production of books, documents, electronically stored information, or other things . . . the court, upon motion reasonably made by any person described in subdivision (b) . . . may make an order . . . directing compliance with it upon those terms or conditions as the co...

Excerpt: ...s immaterial. (Code Civ. Proc., § 437c, subd. (q).) The court does not consider the supplemental evidence submitted with Defendant's Reply to Plaintiff's Opposition, filed on 7-11- 19. (Jay v. Mahaffey(2013) 218 Cal.App.4th 1522, 1537.) Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements o...

Excerpt: ...scribed in Section 663, shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict, either: . . . [¶] (2) Within 15 days of the date of mailing of notice ...

Excerpt: ... 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.” Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4 th 793, 809-811, states, “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citation.] . . . Althou...

Excerpt: ...rnia courts “have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.” [Citation.] Indeed, “it is a rare case in which ‘a court will be justified in refusing a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her] case.' ” [Citation....

Excerpt: ...s ruling discussed below. Code of Civil Procedure section 2030.090 states in part, “(a) When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (b) The court, for good cause shown, may make any order that justice requires to protect any pa...

Excerpt: ...lar request.” Code of Civil Procedure section 2033.250, subdivision (a), provides, in part, “Within 30 days after service of the requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared . . . .” Code of Civil Procedure section 2033.260, subdivision (a), explains, “The party requesting admis...

Excerpt: ...and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by...

Excerpt: ...ment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken...

Excerpt: ...with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. [¶] (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. [¶] (3) An objection to the particular deman...

Excerpt: ...set forth in Chapter 5 . . . by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition . . . of that party or person is in controversy in the action.” Code of Civil Procedure section 2032.310, states in relevant part, “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or ...

Excerpt: ...obtain leave of court. [¶] (b) A motion for examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any of the person or persons who will perform the examination. . . . .” Code of Civil Procedure section 2032.320, subdivision (a), provides, “The court shall grant a motion for physical or mental examination under Section 2032.310 o...

Excerpt: ...“. . . [A] court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face...

Excerpt: ...e aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” Fountain Valley Chateau Blanc Homeowner's Association v. Department of Veteran Affairs (Fountain Valley) (1998) 67 Cal.App.4 th 743, 750-751, states, “At the outset we must confront a serious anomaly in California's procedural law regarding attacks on decisions made by juries...

Excerpt: ... or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of ...

Excerpt: ...scadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Defendant demurs to the second cause of action in Plaintiff's Complaint (filed on 8-1-18) pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). Defendant contends, “. . . Plaintiff's Complaint is replete with conclusory allegations, unsupported by necessary facts and therefore fails to meet the heightened pleading requirements for a ...

Excerpt: ...xpressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Ca...

Excerpt: ...he obligation to stay the state court action. [Citations.]” “ ‘In exercising its discretion the court should consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject...

Excerpt: ...37c, subd. (q).) The court does not consider the Declaration of Jeffrey M. David in Support of Reply to Plaintiff's Opposition to Motion for Summary Judgment. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) It appears that Defendant/Cross-Complainant Frank Walter Peters used his “Responses to Defendant, Lab Expresses Separate Statement of Undisputed Facts,” to filed on 5-21-19, as objections. The court OVERRULES these objections bec...