Excerpt: ...n anti‐ SLAPP motion. (CCP § 425.16(b). The trial court may still order that specified discovery be conducted “for good cause shown,” and continue the hearing on the anti‐SLAPP motion. (Ibid.;Murray v. Tran (2020) 55 Cal.App.5th 10, 37.) In the anti‐SLAPP context, “good cause” for conducting discovery requires a showing that the specific discovery is necessary for the plaintiff to oppose the anti‐SLAPP motion and is tailored to t...

Excerpt: ... is granted under Evidence Code §452(d). I. ENFORCING AN ARBITRATION AGREEMENT Under California law, Code of Civil Procedure §1281.2, a party to an arbitration agreement may move to compel arbitration if another party to the agreement refuses to arbitrate, and the court shall order the parties to arbitrate if it determines that an agreement to arbitrate exists, unless it determines that: (a) The right to compel arbitration has been waived by th...

Excerpt: ... equity to compel specific performance of a contract.” (City of Hope v. Cave (2002) 102 Cal.App.4th 1356, 1369.) CCP § 1281.2 provides that “on petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that ...

Excerpt: ...231 Cal.App.4th 1337, 1341.) A general demurrer under Code of Civil Procedure section 430.10(a)(e) attacks the complaint for failing to state sufficient facts to state a cause of action or lack of subject matter jurisdiction. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.) The defects must appear on the face of the document or judicially noticeable matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The “face of the co...

Excerpt: ...n and order entered in this case on February 23, 2022, until such time Plaintiff's appeal from the court's May 27, 2022 order directing parties to pay partition referee's fees and costs, is resolved by way of disposition, dismissal or withdrawal. In an action for partition, the court must make an order of disbursement of proceeds of sale of the at‐issue property, and the court may order that the proceeds be deposited in court as may be appropri...

Excerpt: ...of justice” warrant dissolution or modification. At the hearing, however, Defendant argued a potential new change of circumstance, including the City's efforts to shut down Plaintiff's business. The Court ordered supplemental briefs to be filed and continued the hearing. At the May 2, 2022 hearing, Court noted that the facts of this case are continually evolving: “The Cease and Desist letter appears to indicate a material change of circumstan...

Excerpt: ...s a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal. 3d 120,125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions...

Excerpt: ... more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (C.C.P. §437c(p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once such a showing has been made, 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 as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co....

Excerpt: ... in material breach of the arbitration agreement, is in default of the arbitration and waives the right to compel. (CCP §1281.97(a)(1).) If the drafting party materially breaches the arbitration agreement and is in default, the consumer or employee may either withdraw the claim from arbitration and proceed in a court or compel arbitration where the drafting party shall pay reasonable attorney's fees and costs related to arbitration. (CCP §1281....

Excerpt: ...icer, director, managing agent, or employee of a party, or a person 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...

Excerpt: ...ired to take judicial notice.” (Code Civ. Proc., § 438(d).) Page 4 of 9 Code of Civil Procedure section 438 sets forth grounds and procedures for a motion for judgment on the pleadings. Such motion has the same function as a general demurrer but is made after the time for demurrer has expired. (Civ. Proc., §438(e)(2); Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Befo...

Excerpt: ... 951, 973‐74 [“A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract”].) The elements of an action for fraud based on concealment are: (1) the defendant concealed a material fact...

Excerpt: ...eal threat of immediate and irreparable injury.” (Triple A. Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 138.) Here, Plaintiff will suffer harm because she will lose her home. Thus, the issue is a probability of prevailing on the merits. JUDICIAL NOTICE REQUESTS: 1 However, in Rattagan v. Uber Technologies, Inc. (9th Cir. 2021) 19 F.4th 1188, the Ninth Circuit recently certified the following question to the California S...

Excerpt: ...n the grounds that Kirnos does not have personal knowledge of the time spent in this case because he did not work on the case himself. However, Kirnos' declaration makes clear that he is the managing partner of Knight Law Group (¶1) and that he has personal knowledge of the facts in his declaration (¶1). This is sufficient for the testimony provided in his declaration, as such, the objection is overruled. ATTORNEY'S FEES The prevailing buyer ha...

Excerpt: ...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 inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”...

Excerpt: ...e, including protective orders.” (CCP, § 1987.1(a)&(b)(1)‐(3).) Also, the court may make any other order as may be appropriate to protect the parties, the witness, or the employee from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (CCP., § 1987.1(a).) “If a deponent fails to produce a requested document under his or her control, the subpoenaing party may bring a motion to c...

Excerpt: ... court is required to find subjective bad faith before it can award fees and costs to a defendant. Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 924. Subjective bad faith requires a factual inquiry into the plaintiff's subjective state of mind. Id. at 923. The court looks to determine whether there is evidence not only that the action lacked merit, but that the plaintiff knew that it did. Id. at 928. A defendant moving for fees and c...

Excerpt: ... 262 Cal.App.2d 490, 493.) To obtain a writ of possession, the plaintiff must file an application under oath and must include all of the following: (1) the basis of the plaintiff's claim that it is entitled to possession; (2) a showing that the property is wrongfully detained and of the manner in which defendant came into possession; (3) a particular description of the property and a statement of its value; (4) the property's location based on pl...

Excerpt: ...rden of production to make a prima facie showing that there are no triable issues of material fact. (CCP § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Defendant, as the moving party, has the burden to show either that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (CCP §437c(p)(2).) Defendant can meet their burden by showing either: (1...

Excerpt: ...P ALLEGED TO CREATE A DUTY The elements of a cause of action for fraud based on concealment are: (1) The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as h...

Excerpt: ...ing be deemed admitted. (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 30; Code Civ. Proc., §2033.280(b).) “Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45‐day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a ‘meet and confer' requirement.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 3...

Excerpt: ... his or her employer for injuries arising out of and in the course of employment.” (Wright v. State of California (2015) 233 Cal.App.4th 1218, 1229.) Specifically, the Act provides in part that “[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is…the sole and exclusive remedy of the employee or his or her dependents against the employer (Lab. Code, §3602(a)), and that “[i]n all ca...

Excerpt: ...ractice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 Cal.App.5th 1131, 1150 [citation and internal quotation marks omitted].) Under the unlawful prong, the UCL borrows violations of other laws and treats them as unlawful business practices that are independently actionable under the UCL. (Smith v...

Excerpt: ... that the court may for good cause allow.” While a motion to quash is typically directed to defects in personal jurisdiction, court recognize “the hybrid motion to quash/dismiss as a proper means of challenging the court's authority without making a general appearance.” (Boisclair v. Superior Court (1990) 51 Cal.3d 1140, 1144, n. 3.) As such, a motion to quash and to dismiss is appropriately based upon an assertion of sovereign immunity. (G...

Excerpt: ...em to emotional distress damages on these property based claim. 1. DANGEROUS CONDITION OF PRIVATE PROPERTY In order to state a cause of action for dangerous condition of public property, a plaintiff must allege: (1) a dangerous condition of public property; (2) a proximate causal connection between the condition and the injury sustained; (3) a reasonably foreseeable risk that the kind of injury that occurred would result from the dangerous condit...