Excerpt: ...y be equitable." C.C.P„ S 874.040 has been interpreted as giving the court the authority to apportion costs, including attorney's fees in favor of one side and against the other, when the equities warrant such an allocation. (Lin v. Jeng (2012) 203 cal.App.4th 1008, 1025. see also Finney v. Gomez (2003) 111 cal.App.4th 527, 545 (CCP S 874.040 "has been consistently interpreted as giving courts only two options in apportioning the costs and fees...

Excerpt: ...ve damages claim where facts alleged may not rise to the level of fraud, malice or oppression. (CCP SS 435-436; Truman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 53.) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights, while malice means conduct which is intended to cause injury or despicable conduct which is carried out with a willful and...

Excerpt: ...nctions, the Defendant is ordered to pay Plaintiff in a reasonable reduced amount of $1,110, payable within 30 days. Where responses to document requests have been timely filed but are deemed deficient by the requesting party (e.g., the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general), that party may file a moton compelling further responses. (C.C.P., S 2031.310.) The motion must be ...

Excerpt: ...prevailing party is entitled as a matter of right to recover costs in any action or proceeding." The costs which a prevailing party is allowed to recover under section 1032 includes attorney's fees authorized by contract, statute, or law. (Code Civ. Proc., Here, Petitioners' motion seeks award of fees and cost as authorized by statute, particularly Government Code sections 3309.5 and 800, Code of Civil Procedure section 1094.5, and the private at...

Excerpt: ...eral. (CCP 2031.310.) Unless notice of the motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the party and the responding party have agreed in writing, the propounding party waives any right to compel a further response. (CCP SS 2031.310(c).) Plaintiff's counsel states that Defendant served responses on 9/21/22, but did not state by what means as she did n...

Excerpt: ...a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." For purposes of settlement, Defendant, HMA, does not dispute that Plaintiff is the prevailing party. The only question to be determined by this motion is the amount of the award to Plaintiff. The...

Excerpt: ... the second amended complaint (SAC) which alleged three causes of action for breach of oral contract, promissory estoppel, and constructive trust. Plaintiff alleged he and Defendant had begun an intimate relationship on or about June 16, 2011. In August 2012, they discussed the next steps in their relationship, including getting engaged and purchasing a home together. It was alleged that they got engaged and entered into an oral contract in which...

Excerpt: ...tiff's expert, a surgeon and neurosurgeon, Dr. Fox, had qualifications not possessed by the other specialists, that a higher standard of care would be applicable to a neurosurgeon than to doctors engaged in other specialties, and that his declaration as to the standard of care could be rejected on the basis that he is in a sense overqualified. (ld. at p. 38.) The court concluded the determinative issue in each case must be whether the witness has...

Excerpt: ...dismissing a case on the basis of the anti-SLAPP statute has the same effect as a final judgment." (Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 251.) As such, the court denies Plaintiff's request to conduct discovery. A prevailing defendant on an anti SLAPP motion shall be entitled to recover his attorney fees and costs. (CCP 5425.16(c).) Any fee award is mandatory. (Ketchum v. Moses (2001) 24 Cal.4t...

Excerpt: ...rruled; as to the demurrer to the fourteenth and fifteenth causes of action, it is sustained without leave to amend. The motion to strike as to the allegations regarding malice is granted (SAC, "1268-277), and the motion to strike as to the remainder of the motion is denied. A demurrer is a pleading (C.C.P. 5422.10) used to test the legal sufficiency of a complaint, crosscomplaint, answer or demurrer. A demurrer raises only issues of law not fact...

Excerpt: ...by the requesting party (e.g., the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general), that party may file a motion compelling further responses. (CCP S 2031.310.) The motion must be served within 45 days after service of a verified response (CCP S and must be accompanied by a declaration showing "a reasonable and faith attempt" to resolve the issues informally outside of court. (CCP S...

Excerpt: ....P. S473(d); APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 185.) Where clerical error is shown, the judgment is corrected nunc pro tunc, i.e., the correction dates back to the when the judgment was entered. (Ames v. Paley (2001) 89 Cal.App.4th 668, 673; Bell Farmers Ins. Exch. (2006) 135 Cal.App.4th 1138, 1144.) A "clerical error" results when the order or judgment misstates the court's actual intent, i.e., an error in recording the ...

Excerpt: ... the same, to make transfers, and generally to do This includes the power of the court to supersede prior liens subject to the receiver's certificates. (Title Ins. & Trust Co. v. California Development Co. (1915) 171 Cal. 227, 231, 233; City of Sierra Madre v. Suntrust Mortgage, Inc. (2019) 32 Cal.App.5th 648, 657.) The case of County of Sonoma v. Quail (2020) 56 Cal.App.5th 657 is instructive. The County instituted nuisance abatement proceedings...

Excerpt: ...not stay ancillary or collateral matters that do not affect the judgment or order on appeal. (ld. at 191.) "A postjudgment or postorder proceeding is also ancillary or collateral to the appeal despite its potential effect on the appeal, if the proceeding could or would have occurred regardless of the outcome of the appeal." (ld.) In Varian, the defendants filed an anti-SLAPP and appealed when the trial court denied it. (ld. at 187.) However, tria...

Excerpt: ...l does not stay ancillary or collateral matters that do not affect the judgment or order on appeal. (ld. at 191.) "A postjudgment or postorder proceeding is also ancillary or collateral to the appeal despite its potental effect on the appeal, if the proceeding could or would have occurred regardless of the outcome of the appeal." (ld.) In Varian, the defendants filed an anti-SLAPP and appealed when the trial court denied it. (ld. at 187.) However...

Excerpt: ...t's amendment to its expert designation, then the Motion to Augment is denied as the Motion to Compel is moot. Ifthe parties do not stipulate, the Moton to Augment for the sole purpose of designating a psychology expert and the Motion to Compel the deposition of Dr. Lakes are granted. Nonetheless, there will be no continuance of the trial. Defendant must designate within 10 days of this order and Expert Depositions must take place within 30 days ...

Excerpt: ...eny summary adjudication based on the moving party's failure to comply with these separate statement requirements. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) Here, Defendant's separate statement provides a single list of 70 facts. It does not specifically identify any cause of action on which Defendant seeks summary adjudication and makes no attempt to relate specific facts to each cause of action. Thus, Defendant's alternative motion f...

Excerpt: ...umer, or employee whose personal records are sought, "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 and conditions as the court may declare, including protective orders." (Code Civ. Proc., 51987.1(a).) Also, the court may make any other order as may be appropriate to protect the parties, the...

Excerpt: ...5, 8, ); (2) the deposition testimony of Defendant Adriana Mercado (Nos. 3, 6, 7); (3) the declaration of Dr. Greg Orshandky (Nos. 11, 12, 13, 14, 15, 16, 17, 18.) Objections to Deposition Testimony of Defendant Adriana Mercado (1) misstates witness testimony; (2) lack of foundation; (3) relevance. Objections to Deposition Testimony of Adriana Leichliter (Decedent's daughter) (1) lack of foundation; (2) hearsay; (3) relevance. Overruled as to Obj...

Excerpt: ...ailing party is entitled as a matter of right to ræover costs in any action or proceeding." Civ. Proc., S 1032(b).) A prevailing party claiming costs must file and serve a memorandum of costs within the earliest of (1) 15 days after the date of service of the notice of entry or dismissal by the clerk Civ. Proc., S 654.5), or (2) the date of service of written notice of entry of judgment or dismissal, or (3) within 180 days after entry of judgmen...

Excerpt: ...net monetary recovery, a defendant who is dismissed from the action, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the 'prevailing party' shall be as determined by the court, and under those circumstances, the court, in its discretion, ...

Excerpt: ...ntal declarations). Civ. Code S 1717(a) provides: In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, 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 attor...

Excerpt: ... California Clerk Recorder Fictitious Business name searches. JUDGMENT ON THE PLEADINGS A moton for judgment on the pleadings has the same function as a general demurrer and the same rules govern except as provided by CCP 5438. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) CCP 5438 sets forth the grounds and procedures for the motion. The grounds for a motion for judgment on the pleadings must appear on the face of the challen...

Excerpt: ...(Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255.) The same liberal policy regarding amendment of pleadings applies as on sustaining demurrers. Therefore, as long as the defect is correctible, an amended pleading will usually be allowed. (C.C.P. §576; Grieves v. Sup. Ct. (Fox) (1984) 157 Cal.App.3d 159, 168; Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360.) Irrelevant matter includes allegations that are not essential to the claim; ...

Excerpt: ...gh the filing of a timely creditor's claim (Prob. Code, § 9100 et seq.) in the pending probate proceeding for the administration of Jorge Cuevas's estate. The demurrer is sustained without leave to amend if Plaintiff cannot explain how the Complaint may be amended. As to the fifth, sixth, and seventh causes of action, the Demurrer is overruled for the reason that Plaintiff has sufficiently stated a cause of action for impairment of community pro...

Excerpt: ...cal error” is shown, the judgment is corrected nunc pro tunc, i.e., the correction dates back to the when the judgment was entered. (Ames v. Paley (2001) 89 Cal.App.4th 668, 673; Bell Farmers Ins. Exch. (2006) 135 Cal.App.4th 1138, 1144.) A “clerical error” results when the order or judgment misstates the court's actual intent, i.e., an error in recording the judgment rendered. (Burch v. CertainTeed Corp. (2019) 34 Cal.App.5th 341, 346; Mar...

Excerpt: ... records of any court of this state]; See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569; also see Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Here, Defendant requests the Court take judicial notice of the prior lawsuit, but it is not relevant based on the sole argument presented – that the Court lacks jurisdiction over the matter because it is barred by the two-year statute of limitations in C.C.P., § 338.1. A...

Excerpt: ...this state].) Upon the petition/motion of a party to an agreement to arbitrate, the court must grant a petition to compel arbitration unless it finds: no written agreement to arbitrate exists; the right to compel arbitration has been waived; grounds exist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbi...

Excerpt: ...e motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” “A party seeking a continuance under that subdivision must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.” (Combs v. Skyriver Communications, Inc. (2008) 159 Cal...

Excerpt: ...d 6th causes of action; sustained with leave to amend as to the 1st, 4th, 7th, 8th and 10th causes of action and sustained without leave to amend as to the 9th, 11th and 13th causes of action. (The previous demurrer was overruled as to the 2nd, 5th and 12th causes of action.) The Demurrers of Defendants Schneider and Nimmo is overruled as to the 3rd cause of action; sustained with leave to amend as to the 4th, 6th, 7th, 8th and 9th causes of acti...

Excerpt: ...) A defendant moving for summary judgment bears the initial 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. (CCP § 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...

Excerpt: ...urt, upon motion reasonably made by the party, the witness, any consumer, or employee whose personal records are sought, “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 and conditions as the court may declare, including protective orders.” (Code Civ. Proc., §1987.1(a).) Also, the court m...

Excerpt: ...� 452(d).) A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading 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 fac...

Excerpt: ...t within 15 days from the order; and (3) a prefiling order is issued against Appellant, prohibiting him from “filing any new litigation in the court of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed” (Code Civ. Proc., § 391.7), as the term “litigation” is defined under Code of Civil Procedure section 391, subdivision (a). De...

Excerpt: ...endant in resisting the plaintiff's claims; or to demand anything adverse to both parties. (CCP § 387(a).) The purposes of intervention are to obviate delay, avoid multiplicity of suits, and protect the interests of those who will be affected by the judgment. (People v. Superior Court (Good)(1976) 17 Cal.3d 732, 736.) There are two types of intervention, permissive and mandatory. (CCP § 387(a), (b).) Mandatory intervention requires the court to...

Excerpt: ...FOR JUDICIAL NOTICE: Defendant requests judicial notice of numerous court documents, including: two unlawful detainer complaints filed by Erma Kerrigan Trust against William Hewett; a wrongful foreclosure against filed by William Hewett against the Trust; the unlawful detainer judgments; the Complaint in the present action; the April 30, 2021 Answer filed by Colleen as Trustee of the Trust and as a representative of the Trust; the April 25, 2022 ...

Excerpt: ... fee and cost incurred in bringing the instant motion must made through a separate motion for fees. “The Legislature enacted…anti-SLAPP statute [strategic lawsuit against public participation]…to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Code of Civil Procedure section 425.16 provides a two-step tes...

Excerpt: ...suant to CRC 3.110(b & f) FIRST CAUSE OF ACTION An agreement for the sale of any interest in real property is invalid unless it is in writing. (Civil Code § 1624(a)(3); Alameda Belt Line v. City of Alameda (2003) 113 Cal.App.4th 15, 20-21.) FOURTH CAUSE OF ACTION No representation. Representations concerning future events – e.g., predicting future conditions in the real estate market – are generally not actionable, whereas representations of...

Excerpt: ... of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” Given the disposition of this motion, the ruling on the objections are not relevant to the ruling on this motion. SUMMARY JUDGMENT/ADJUDICATION “On motion for summary judgment, the issues are framed by the pleadings since it is those allegations to which the motion must respond.” (Scolinos v. Kolts (1995) 37 Cal....

Excerpt: ...ned with leave to amend within 20 days. Motion to Strike is moot. A demurrer also lies where the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10(e).) In evaluating a demurrer, the court gives the pleading 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 tru...

Excerpt: ...rty expects to offer in evidence at trial. CCP § 2034.280 provides that a party may submit a supplemental list of experts who will express an opinion on a subject to be covered by an expert designated by the opposing party. Failure to comply with these rules is grounds to exclude the expert. (CCP §2034.300.) To properly amend an expert witness list, a party must seek leave from the court. (CCP §2034.610.) The issue is whether Plaintiff was aut...

Excerpt: ...cial notice of the Notice of Entry of Dismissal and Proof of Service filed in the Sacramento Superior Court in the Felisilda v. FCA US LLC (Exhibit B) is denied, as the document will not aid the court in resolution of the present motion. (See Aquila v. Superior Court (2007) 148 Cal.App.4th 556, 569 [only relevant material may be noticed].) EVIDENTIARY OBJECTION With her opposition, Plaintiff includes a single evidentiary objection to the RISC att...

Excerpt: ...he plaintiff does not have the burden to disprove affirmative defenses. (Id.) At that point, the burden shifts to the defendant to show that a triable issue exists. (Id.) Plaintiff fails to meet her initial burden. Whether or not Plaintiff is an employee or an independent contractor does not demonstrate that Plaintiff is entitled to judgment as a matter of law, i.e. it does not address the elements of each cause of action. The 1st cause of action...

Excerpt: ...; Watts v. Crawford (1995) 10 Cal.4th 743, 749.) In order to obtain an order permitting service by publication, a plaintiff must submit the declaration of a competent witness to show: that reasonable attempts have been made to serve the defendants by some other authorized method; and (2) the existence of a cause of action or interest in property. (CCP § 415.50(a).) Reasonable diligence means a thorough, systematic investigation and inquiry condu...

Excerpt: ...an be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the proper time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Defendant brings this motion on the ground that, although there is a proof of service, it is not properly executed by a licensed process server, and he was not actually served. C.C.P., § 473(d) permits the court to vacate a void judgment. “[C]...

Excerpt: ...torney's fees is denied. Defendants' DLJJ, DDS and Stuart Rubin Motion for Joinder is denied. As a general rule, when a cause of action arises out of the furtherance of a defendant's right of petition or free speech in connection with a public issue, it is subject to a special motion to strike. (CCP § 425.16(b)(1).) An “act in furtherance of a person's right of petition or free speech” … includes … any written or oral statement or writin...

Excerpt: ...o the court by noticed motion for an order requiring the plaintiff to file an undertaking if the plaintiff resides out of the state. The undertaking would secure an award of costs and attorney's fees that might be awarded in the action. (C.C.P., § 1030(a); see also Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914 [constitutionality upheld].) The statute serves a legitimate purpose of securing costs in the face of the difficult...

Excerpt: ...ling party is entitled as a matter of right to recover costs in any action or proceeding.'” (Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) In determining whether a party is a prevailing party which could recover costs, trial court determines whether the party succeeded “at a practical level [by] realiz[ing] its litigation objectives” and whether “the action yielded the primary relief sought” in the case. (Friends of Spring Street v. N...

Excerpt: ...tion to Compel Further responses (Int. 25 and 26) is granted. A party may move for an order to compel a further response if it deems the responding party's objections are without merit or too general. “Absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact‐specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal. App. 4th 92, 9...

Excerpt: ...available. (Abbott, et. al., Cal. Civil Discovery Practice (4th ed. Cal. CEB 2022) § 15.91 citing, CCP §§2023.010(g), 2023.030.) For example, CCP §2030.300(e) provides that if a party fails to obey an order compelling further responses to interrogatories, "the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction," in addition to the imposition of further mone...