Excerpt: ...TIARY OBJECTIONS The declarations of counsel Jeffrey H. Reeves, counsel William R. Cumming, expert Daniel Wahl, and defendant Michael Sheinker, based on relevance, hearsay, lack of foundation, etc. are relevant to the broad standard for modifying injunctions (i.e., “ends of justice”), constitute nonhearsay or come within a hearsay exception, and/or have sufficient foundation. The objections are overruled. MERITS OF THE MOTION CCP § 533 provi...

Excerpt: ...f this state, a court rule, or an order of the court. (CCP § 436.) On a motion to strike, as with a demurrer, “the court treats as true the material facts alleged in the complaint, as well as any facts which may be implied or inferred from those expressly alleged.” (Washington Int'l Ins. Co. v. Superior Court (1998) 62 Cal. App. 4th 981, 984, fn. 2.) Page 4 of 5 A motion to strike may be used to attack unauthorized claims for attorney fees n...

Excerpt: ...3) 141 Cal.App.3d 55, 58.) “Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs.” (Elms v. Elms (1942) 72 Cal.App.2d 508, 513.) To determine whether a mistake or neglect was excusable, ‘“the court inquires whether ‘a reasonably prudent person under the same or similar circumstances' might have made the same error.”' (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Ca...

Excerpt: ...n 430.41(b) provides: A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross‐complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross‐complaint, or answer. The legislative history indicates that this statute was enacted because of the fact that demurrer...

Excerpt: ...of the settlement. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.) Section 664.6 states that “[i]f parties to pending litigation stipulate, in writing signed by the parties outside the presence of the court . . . for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (CCP § 664.6 (emphasis added).) “A court ruling on a motion under section 664.6 must determine w...

Excerpt: ... amended complaint, third amended complaint and complaint in intervention filed in in the related case, Tye v. Bowen et al., RIC 1601882 is granted. (Evid. Code § 452(d).) Likewise, the request to take judicial notice of the Complaint filed in the present case is granted. (Evid. Code § 452(d).) EVIDENTIARY OBJECTIONS Because the court does not, in the first instance, give any consideration to the Yrungaray Declaration, the Court declines to rul...

Excerpt: ...triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002‐ 1003.) “Any doubts as to the propriety of granting the motion are resolved in favor of the party opposing the motion.” (American Airline v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. App. 4th 1017, 1048.) It is improper for the court to weigh the evid...

Excerpt: ... Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, a court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) While courts will occasionally deny leave to amend when the motion is brought on the eve of trial, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled ...

Excerpt: ... (Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 695.) There are three basic avenues of relief for a defendant against whom a default judgment has been entered: first, she can obtain relief under Cal. Code Civ. §473 and 473.5; second, the party can show that extrinsic fraud or mistake exists; and third, the party can show that the default judgment was facially void. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.) Sections 473(b) an...

Excerpt: ...on in the response is without merit or too general. (CCP §§2030.300, 2031.310, 2033.290.) Where a party fails to provide responses to interrogatories or request for production of documents, the propounding party's remedy is to seek an order compelling responses. C.C.P. §§ 2030.290(a) and 2031.300(b). Where a party fails to provide timely responses to request for admission, the propounding party's remedy is to seek an order to deem the request...

Excerpt: ... IS GRANTED. Plaintiff's unopposed request that the court take judicial notice of Defendant's various documents filed with the Secretary of State should be granted. (See Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591, 602, n. 6 [court may take judicial notice of the records of the Secretary of State]; Pedus Building Services, Inc. v. Allen (2002) 96 Cal.App.4th 152, 156, n. 2[same].) DOCTRINE OF FORUM NON CONVENIENS The doctrine of forum n...

Excerpt: ... necessary to prevent prejudicing the party's interest in the litigation. (Emphasis supplied.) While other grounds for preference stated in CCP § 36(d)‐(e) are discretionary, § 36(a) is mandatory and absolute. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533; Miller v. Superior Court (1990) 221 Cal.App.3d 1200, 1204; Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085; Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86‐ 89.) T...

Excerpt: ...rocedures section 1281.97 provides in relevant parts: In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, the drafting party to pay certain fees and costs before the arbitration can proceed, if the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date the drafting party is in material breach of...

Excerpt: ...ides that following a noticed motion, the court may allow an amendment to any pleading. CCP §473 and §576, and case law establish a “policy of great liberality in permitting amendments at any stage of the proceeding.” (Rocky Mountain Export Co. v. Colquitt (1960) 179 Cal.App.2d 204, 207.) This policy is so strong that denial of a motion for leave to amend is rarely justified. (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) The court ha...

Excerpt: ... document that is in the possession of another party. The responding party must respond to each request by either a statement that the party will comply, a representation that the party is unable to comply or an objection. (Cal. Code Civ. Proc. §2031.210(a)(1)‐(3).) A demanding party may move for an order compelling further responses to a demand for inspection if the party determines that the statement of compliance or representation of inabil...

Excerpt: ...ken 3. For compensatory, special and general damages, according to proof but not less than 1,500.000, (Pg. 5; ¶1) is stricken 4. Civil penalties according to statute and, (pg. 5, ¶ 6) is stricken Motion to strike “attorney's fees” (pg. 5, ¶6) is denied. Pro se litigants may recover fees incurred for legal services of attorneys who assist them, even though retained counsel is not counsel of record in the litigation. (Mix v. Tumanjan Develop...

Excerpt: ... a reasonable interpretation by reading it as 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.) ...

Excerpt: ...terested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property … in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action … in the superior court a declaration of his or her rights and duties in the premises, including a determ...

Excerpt: ...ired to make a good faith attempt to resolve the matter informally before filing said motions. See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404. Defendant asserts that responses to the discovery at issue were provided on 1/29/22. As such, the motion to compel appears moot as to the request to compel responses to form interrogatories, special interrogatories, and requests for production of d...

Excerpt: ...opposition to a motion for summary judgment shall include a separate statement that responds to each of the moving party's undisputed material facts and indicates whether the opposing party agrees or disagrees that those facts are undisputed. The separate statement must include a response to each material fact claimed by the moving party to be undisputed. An opposing party who contends that a fact is disputed must state the nature of the dispute ...

Excerpt: ...second exception to the Privette doctrine, there are triable issues of material fact regarding the retained control over plaintiff's work. JUDICIAL NOTICE The request for the court to take judicial notice of its own records is granted. (Evid. Code, § 452.) PRIVETTE DOCTRINE When employees of an independent contractor suffer injuries resulting from the performance of inherently dangerous work, their recovery is limited to workers' compensation co...

Excerpt: ...cessary to prevent prejudicing the party's interest in the litigation. Here, Plaintiff is 84 years old and has a substantial interest since he asserts an ownership interest in the subject horses. The real issue is whether his health requires preference. In Fox v. Superior Court (2018) 21 Cal.App.5th 529, 531‐532, an 81 year old plaintiff sued for personal injuries resulting from exposure to asbestos, and the plaintiff suffered from Stage IV lun...

Excerpt: ... from filing of any default prove‐up declarations by Plaintiffs. Pursuant to Cal. Code Civ. Pro. §1008(a), when an application for an order has been made to a judge or to a court, and refused in whole or in part, granted, or granted conditionally, or on any terms, any party affected by the order, within 10 days of service upon the party of written notice of entry of the order and based upon new or different facts, circumstances or law, make ap...

Excerpt: ...ination shall be conducted within 75 miles of Plaintiff's home and shall last no longer than three hours including breaks pursuant to Cal. Code Civ. Pro. §2032.340(a). The examination shall be conducted without the presence of third parties. The District should provide an audio recording to Plaintiff or the parties should decide how to ensure that Plaintiff is able to record the examination. Any party may obtain discovery by means of a physical ...

Excerpt: ...n to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend; and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. The court typically does not consider the merits of the propos...