Excerpt: ...f 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) . . . Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” A prevailing p...

Excerpt: ...equest for Judicial Notice as to Exhibit 4 pursuant to Evidence Code section 452, subdivision (d). The court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) Code of Civil Procedure section 430.41, subdivision (b), states, “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall no...

Excerpt: ...es, “(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars ($500) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker. . . . [¶] (2) Between merchants if within a r...

Excerpt: ...e 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.) The FAC alleges the eighth (Common Count for Services Rendered), ninth (Implied-In-Fact Contract/Unjust Enrichment), t...

Excerpt: ...otion for Judgment on the Pleadings, filed on 11-26-18, is GRANTED. The court notes that the operative pleading in this action is Plaintiff's Second Amended Complaint, filed on 10-12-17. Code of Civil Procedure section 438, subdivision (c)(1)(B), states in part, “If the moving party is a defendant, that either of the following conditions exist: [¶] (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint...

Excerpt: ...e unwilling to get involved in this lawsuit or open up a probate in the Orange County Superior Court,” and that Moving Counsel does “. . . not have the authority to settle, dismiss, or try this case without some direction from a client or court appointed figure.” (Safion Supp. Decl., ¶¶ 29 and 34.) At this stage of the proceedings, the court does not that there is good cause Moving Counsel's withdrawal. Moving Counsel's Supplemental Decla...

Excerpt: ...ely 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 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 o...

Excerpt: ...he 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 for damages, or one or ...

Excerpt: ...l of an issue therein, or at the taking of 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...

Excerpt: ...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 (Weddington) (1998) 60 Cal.App.4 th 793, 809-810, states, “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citations.] The judgment in the instant case specifica...

Excerpt: ...he case of Langley v. Schumacker (1956) 46 Cal.2d 601, 297 P.2d 977, and the Legislature's response to it, demonstrates that the tort labels of fraud and deceit are by themselves irrelevant. Courts must look to the substanceof the lawsuit.” (Id., at p. 954; Italics in Askew.) Askew explains, “If there is anything clear from the swift reaction to Langley, it is that the fact of false representations, even fraudulent representations, is not eno...

Excerpt: ...c issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” Code of Civil Procedure section 425.16, subdivision (e) “As used in thi...

Excerpt: ... inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an a...

Excerpt: ... and 6068(e)(1) (filed on 3-4-19) is DENIED; Defendant's (Nili Alai) Request to Stay Case Pending Resolution of Defendant's Based Case in This Court (filed on 3-4-19) is DENIED. The court notes that Defendant filed all three of these motions in one document. Initially, the court DENIES Defendant's request for judicial notice. In Defendant's moving papers, Defendant requests the court to take judicial notice of various items. (For example, see Def...

Excerpt: ... ‘The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer. A ruling on a general demurrer is thus a method of deciding the merits of a cause of action on assumed facts without a trial.' [Citation.]” (McKenney v. Purepac Pharmaceutical Company (2009) 167 Cal.App.4 th 72, 77.) Luri v. Greenwald (2003) 107 Cal.App.4 th 1119, 1125, states, “A basic principle of motion practice is that the moving ...

Excerpt: ...he complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of law. [Citations.]” “The rules of pleading require, with limited exceptions not applicable here, only general allegations of ultimate fact. [Citation.] The plaintiff nee not plead evidentiary facts supporting the allegations of ultimate fact. [Citation.] A pleading is adequate so long as it apprises the defendant of...

Excerpt: ...ess include, but are not limited to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery. . . . [¶] (g) Disobeying a court order to provide discovery.” Code of Civil Procedure section 2023.030, provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after ...

Excerpt: ...al examination, the party shall 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” Code of Civil Procedure section 2016.040 explain...

Excerpt: ... County Global Medical Center, to Special Interrogatories, Set One (filed on 12-14-18) is GRANTED as to SI Nos. 4, 7, 16, 17, 18, 20, 21, 23, and 28. Based on Plaintiff's Reply in Support of Plaintiff's Motion to Compel Further Responses from Orange County Global Medical Center, Inc. dba Orange County Global Medical Center to Special Interrogatories, Set One (Reply), filed on 3-25-19, Plaintiff withdraws Plaintiff's Request as to Special Interrog...

Excerpt: ...l examination, the party shall 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” Code of Civil Procedure section 2016.040 explains...

Excerpt: ... attorney's fees which may be awarded in the action or special proceeding. . . . [¶] (b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points an...

Excerpt: ... 6068(e)(1) (filed on 3-4-19) is DENIED; Defendant's (Nili Alai) Request to Stay Case Pending Resolution of Defendant's Based Case in This Court (filed on 3-4-19) is DENIED. The court notes that Defendant filed all three of these motions in one document. Initially, the court DENIES Defendant's request for judicial notice. In Defendant's moving papers, Defendant requests the court to take judicial notice of various items. (For example, see Defenda...

Excerpt: ...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.]' [Citation.] 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 1154, 1163.) “Courts must apply a policy of liberality in permitting amendme...

Excerpt: ... contracts specifically referenced in the operative complaint . . . .” (Defendant's Request for Judicial Notice in Support of Demurrer to Second Amended Complaint, filed on 1-25-19; 2:2-5.) Plaintiff disputes the authenticity of these agreements. The declaration of Neil Moses attaches the Master Application Service Provider Agreement as Exhibit 1. This Master Application Service Provider Agreement designates the effective date of this agreement...

Excerpt: ... subdivision (g). Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4 th 612, 616, states, “An oral contract may be pleaded generally as to its effect because it is rarely possible to allege the exact words. [Citation.] 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.” First Cause of Action for Breach of Contract...