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...

Excerpt: ...(Evid. Code § 452(d).) However, the request to take judicial notice of the transcript of Myron Matika's October 23, 2018 deposition taken in Tye v. Bowen is denied. Contrary to Defendants' argument, courts generally decline judicial notice of a pleader's deposition statements to defeat material allegations of the complaint. (See Silguero v. Creteguard, Inc., (2010) 187 Cal.App.4th 60, 64; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369...

Excerpt: ...ly 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, deductions or conclusions of fact or law (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713.) When ruling on a demurrer, the court gives the pleading “a reasonable interpretation, reading...

Excerpt: ...mon issues. (CCP §1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (Cal. R. Ct. 3.1330; see Condee v. Longwood Mgmt. C...

Excerpt: ...h judicial notice has been taken. Crowley v. Katleman (1994) 8 Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. Untimely Demurrer: Plaintiff cites to no authority that the timing requirement is jurisdictional. As such, the court will address the merits of this motion. Plea and Abatement: The basis of Defendant's...

Excerpt: ... in their context.” (Moore Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 125.) The court “accept[s] as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially noticed.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law alleged in the challenged pleading.” (Buchanan v. Maxfield En...

Excerpt: ...issed without prejudice and then, a few months after the dismissal, plaintiff commenced the present action. Defendants point to the Lim Action Judgment, which does state that “all defendants except for Defendant Eden Lim have been dismissed with prejudice.” (See Lim Action Judgment, ¶ 4.) However, the Lim Action Judgment was not a dismissal itself and the actual dismissal pursuant to the settlement, which occurred on 6/11/12, was without pre...

Excerpt: ... or create conflicting rulings on common issues. (Cal. Code Civ. Proc. § 1281.2.) Arbitration of disputes is favored and “when there is doubt as to the meaning and construction of an agreement for mediation and/or arbitration, that doubt should be resolved in favor of those processes.” (Bono v. David (2007) 147 Cal. App. 4th 1055, 1062.) The moving party Page 3 of 5 bears the burden of proving the existence of a valid arbitration agreement, ...

Excerpt: ...ceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Here, Garcia filed the motion on the last possible day. She has already answered and need not do so again so she did not need to submit a proposed answer. Although a decision on a motion like this is a discretionary one, “the trial court's discretion is not unlimited and must be ‘“exercised in conformity with the spirit of the law and in a manner to subser...

Excerpt: ...nder Evid. Code § 452(d), this Court may take judicial notice of records of its own file. The request is granted. EVIDENTIARY OBJECTIONS Plaintiff objects to the following evidence submitted by Defendants in support of their motion: (1) Declaration of Sullivan ¶ 20, 12:25‐261 based on hearsay, lack of personal knowledge, and lack of foundation; and (2) Declaration of Sullivan ¶ 21, 12:27– 13:32 based on improper opinion, lack of personal k...

Excerpt: ...tial burden of proving that there is no merit to a cause of action by showing 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. (Id. at § 437c(p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to...

Excerpt: ... pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436.) Motions to strike can be used to attack the entire pleading, or any part thereof. (CCP § 435; Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 40.) As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice....

Excerpt: ....App.3d 591, 602, n. 6; Pedus Building Services, Inc. v. Allen (2002) 96 Cal.App.4th 152, 156, n. 2.) Likewise, FATCO's request that the court take judicial notice of pages from the Department of Insurance's official website is granted. (Evid. Code § 452(c); Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605, 624, n. 2; Taylor v. Department of Industrial Relations, etc. (2016) 4 Cal.App.5th 801, 806, n. 3.) THE DEMURRER...

Excerpt: ...en 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 1ST CAUSE OF ACTION FOR FRAUD Pham argues that the FAC fails to sufficiently allege reliance and damages. In Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 638, the Court stated that the elements of fraud, which give rise to the tort acti...

Excerpt: ...nore the title and treat the motion based on its substance. Here, the caption states that the motion is brought under section 473(b) and the substance of the motion relies on section 473(b) for relief, and not Code of Civil Procedure section 1008, related to reconsiderations. The court will treat the present motion as a motion to set aside dismissal under Code of Civil Procedure section 473(b). Code of Civil Procedure section 473(b) provides two ...

Excerpt: ...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, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967)...

Excerpt: ...ge of the summons and complaint in this matter, the proofs of service in the present action and the San Bernardino Action, the unconfirmed order granting plaintiff's motion to quash in the San Bernardino Action and a copy of the certificate of assignment in this action. The request is granted. COMPULSORY CROSS‐COMPLAINTS There are two types of cross‐complaints ‐ compulsory and permissive. A compulsory crosscomplaint is one that must be file...

Excerpt: ...e statute specifically provides otherwise. The statute need not expressly authorize attorney fees on appeal. (Morcos v. Board of Retirement County of Los Angeles Employees' Retirement Ass'n (1990) 51 Cal.3d 924, 927.) In this case, this Court already determined Plaintiffs to be the prevailing party in this action. Plaintiffs are entitled to reasonable attorney fees incurred on the appeal. The question is whether the fees requested are excessive. ...

Excerpt: ... § 3295(c), it states: No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) unless the court enters an order permitting such discovery pursuant to this subdivision. However, the plaintiff may subpoena documents or witnesses to be available at the trial for the purposes of establishing the profits or financial condition referred to in subdivision (a), and t...