Excerpt: ...� 9 and Exhibit 7.) The central dispute between the Plaintiff and Bryan Cave pertains to whether Bryan Cave has validly asserted the attorney-client privilege and attorney work product doctrine to the documents listed in the privilege log. “Code of Civil Procedure section 2025.480 provides in part, “(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponen...

Excerpt: ...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.App.4 th 1228, 1238, provides, “This rule of lib...

Excerpt: ...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 substantial justice...

Excerpt: ... 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.App.4 th 1228, 1238, provides, “This rule of liberal construction means that ...

Excerpt: ...nd 17.1). Code of Civil Procedure sections 2030.090, 2031.060, and 2033.080 provide the authority for the court to issue a protective order regarding the discovery requests at issue. Plaintiff first contends, “Here, the duty to warn, train or educate USA Swimming's staff or minor swimmers on the issue of child hood sexual abuse simply did not exist at the time of Plaintiff's alleged abuse. Defendants cannot be liable for the breach of a nonexis...

Excerpt: ...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.App.4 th 1228, 123...

Excerpt: ...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 v. Golden Empire Transporta...

Excerpt: ...ause 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 claims f...

Excerpt: ...e 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 protect the person from unreasonable or oppressive deman...

Excerpt: ...tronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. [¶] (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” On 4-24-1...

Excerpt: ...er seeks to compel arbitration: ‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving...

Excerpt: ...� 801.) The court OVERRULES all of Plaintiff's objections in the Response to the Separate Statement as they are procedurally improper. The Separate Statement is not evidence. Any objections to evidence must comply with California Rules of Court, Rule 3.1354. 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 o...

Excerpt: ...s 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.4 th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue...

Excerpt: ...ged 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.App.4 th 12...

Excerpt: ...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.App.4 th 1228, 1238, provides, “This rule of liberal ...

Excerpt: ...perly 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 substantial justice between the ...

Excerpt: ...iologist, and Dr. Alexander did not testify at the trial. (Motion; 5:9-10:11.) Plaintiff asserts, Defense counsel's insinuations that plaintiff did not call the aforementioned doctors to testify because they would have testified adversely to plaintiff induced prejudicial juror speculation and constituted attorney misconduct.” (Motion; 5:20-23.) The court overruled Plaintiff's objection to this aspect of Defendant's argument. Plaintiff relied on...

Excerpt: ...g alone, and not the evidence 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, state...

Excerpt: ...ust 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 a pleading, for the purpose of determining its effect, its allegations must be liberally construed, w...

Excerpt: ... 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 v. Golden Empire Transport...

Excerpt: ...lleged 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.App.4 th...

Excerpt: ... 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.App.4 th 1228, 1238, provides, “This rule of liberal construction mea...

Excerpt: ...rprise, 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 . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relie...

Excerpt: ...ts 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 v. Golden Empir...

Excerpt: ...as barred by Code of Civil Procedure section 340.5. “A demurrer tests the pleading alone, and not the evidence 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...

Excerpt: ... Her Counsel (C.C.P. § 128.7) (Motion), filed on 4-9-18 under ROA No. 892, is DENIED. The court construes Defendant's Motion as a Motion for Reconsideration or a Motion for Renewal. Code of Civil Procedure section 1008 states in part, “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 da...

Excerpt: ...ach interrogatory by any of the following: [¶] (1) An answer containing the 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 origin...

Excerpt: ...he motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” Hamilton v. Orange County Sheriff's Department (Hamilton) (2017) 8 Cal.App.5 th 759, 764-766, explains, “The court denied the con...

Excerpt: ... 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 v. Golden Empire Transportation Transit ...

Excerpt: ...the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause...

Excerpt: ... section 452, subdivision (h). Code of Civil Procedure section 526, states, in part, “(a) An injunction may be granted in any of the following cases: [¶] (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or an part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. . . . [¶] (3) When it appears, during th...

Excerpt: ...n designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for i...

Excerpt: ...ck of jurisdiction of the court over him or her.” “When a defendant challenges the court's personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to effective service.' ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 (footnote 35 omitted); Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) Lebel v. Mai (201...

Excerpt: ...act, 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. [¶] (b)(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, wheth...

Excerpt: ...e 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 that a triable issue of one o r mo r e mat er ia l f a c t s ex is t s a s t o th a t c a u s e o f a c t io n o r a d ef en s e thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 82...

Excerpt: ...Notice of Intent to Introduce Oral Testimony at Hearing and Notice to Attend Hearing or Trial and Bring Documents and Things are SUSTAINED. Code of Civil Procedure section 425.16, subdivision (b), states, in part, “(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a publi...

Excerpt: ...ng the 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...

Excerpt: ... 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 protect the person from unreasonable or oppressive demands, including unreasonable v...

Excerpt: ...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.) As to the first cause of action for medical malpractice, the court finds that the statute of limitations does not bar this cause of action. Committee for Green Foothills v. Santa Clara County Bd. of Superv...

Excerpt: ...e consumer does not initiate the transaction, the report may only be provided, if the transaction “involves a firm offer of credit to the consumer . . . .” (Civ. Code, § 1785.11, subd. (b)(2).) Civil Code section 1785.3, subdivision (h), “firm offer of credit” as “[A]ny offer of credit to a consumer that will be honored if, based on information in a consumer credit report on the consumer and other information bearing on the creditworth...

Excerpt: ...Civil Procedure section 428.10 states, in part, “A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: . . . [¶] (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same tr...

Excerpt: ...sert against the plaintiff the related cause of action not pleaded.” Code of Civil Procedure section 426.50 explains, “. . . The court after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. . . .” “Code of Civil Procedure section 428.10 states, in part, �...

Excerpt: ...ourt 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.]' (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158, 263 Cal.Rptr. 473.) Thus, absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. [Citation.]” (Board of Trustees v. Superior Court (2007) 149 Cal.App.4 th 1...

Excerpt: ...e information concerning expert trial witnesses may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] The court, for good cause shown, may make any order that justice requires to prevent any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. The protective order may include, but is not limited to, one or more of the following ...

Excerpt: ... 2.) The declaration from Plaintiff's attorney (file on 7-24-18) indicates he “. . . placed the discovery responses for the aforementioned propounded discovery on the desk of my assistant to be formatted and served.” (Chambers Decl., ¶ 9.) Plaintiff's attorney believed the service of the discovery responses occurred in May of 2018. (Chambers Decl., ¶ 11.) The declaration states, “If the Defendants were not served with Discovery Responses,...

Excerpt: ...ce 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 Procedure section 2030.270, subdivision (a), explains, “The party propounding interrog...

Excerpt: ...edure section 2024.050, subdivision (b), lists the criteria a court should consider in exercising it discretion to grant such a motion. On 3-7-13, the court granted Cross-Complainants' Motion for Discovery re Financial Condition. (3-7-13 Minute Order.) On 5-16- 16, the court granted Plaintffs'/Cross-Defendants' motion for stay. (Keathley Decl., ¶ 6 and Exhibit B.) The court has considered the factors under Code of Civil Procedure section 2024.05...

Excerpt: ...ation for this relief shall be accompanied by a comply 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.” Ron Burns Constructions Co., Inc. v. Moore (2010) 184 Cal.App.4 th1406, 1413 (disapproved on other grounds in Even Zohar Constr. & Remodeling,...

Excerpt: ...�� Code of Civil Procedure section 1286.2, subdivision (a)(4), states, “Subject to section 1286.4, the court shall vacate the award if the court determines any of the following: . . . [¶] The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” Defendants assert that the arbitrator exceeded his power by awarding attorney fees because the contract for...

Excerpt: ...for this relief shall be accompanied by a comply 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.” Ron Burns Constructions Co., Inc. v. Moore (2010) 184 Cal.App.4 th1406, 1413 (disapproved on other grounds in Even Zohar Constr. & Remodeling, Inc. ...