Excerpt: ...el. & Tel. Co. ( 1953) 121 Cal.App.2d 497, 500. Defendants argue AAA Tree Service, LLC (AAA) is an indispensable party because it is the party to the Equipment Finance Agreements. However, there are two separate contracts attached as Exhibit B to the Complaint. First, ther e is the Assignment and Assumption of Finance Contract which assigns the rights and obligations of the contract attached as Exhibit A to the Complaint from Frank Manqueros DBA ...

Excerpt: ...y 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.4th 445, 459. 10 Code of Civil Procedure section 452 states, “In the construction of a pleading, f or the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transpor...

Excerpt: ...owing: (1) The claim upon which the attachment is based is one upon which an attachment may be issued; (2) The plaintiff has established the probable validity of the claim upon which the attachment is based; (3) The attachment is not sought for a purpose other than the r ecovery on the claim upon which the attachment is based; and (4) The amount to be secured by the attachment is greater than zero. Code Civ. Proc., § 484.090, subd. (a). A claim ...

Excerpt: ... judgment o n the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings...” Here, Plaintiff's counsel failed to submit a declaration stating he met and confer...

Excerpt: ...on 1033.5, en acted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action. [Citation.]' [Citation.] An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nev ertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparati...

Excerpt: ...this motion. HMA moves to compel arbitration pursuant to the Federal Arbitration Act (9 U.S.C. § 1, et seq.) and Code of Civil Procedure Sections 1281 et seq. The FAA “applies where there is ‘a contract evidencing a transaction involving commerce.'” Allied- Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277 [quoting 9 USC § 2] [emphasis in original]. Here, HMA moves to compel arbitration under a: (1) Owner's Handbook & Warr...

Excerpt: ...ng party to produce admissible evidence showing a triable issue of fact exists. Code of Civil Procedure § 437c(p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72. The allegations of the complaint delimit the scope of the issues on a motion for summary j udgment/adjudication. Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1499. Defendant ...

Excerpt: ...demurs to the secondsixth causes of action for failing to state facts sufficient to constitute a cause of action. CCP, § 430.10(e). “A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there 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 compla...

Excerpt: ... Good Faith and Fair Dealing; (4) Nuisance; (5) Waste; and (6) Declaratory Relief. Defendant demurs to all 6 causes of action. “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996. The Court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” Ibid. The Court assumes “the truth...

Excerpt: ... do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days …”. There is 5 no excep tion stated for section 1008. Weil & Brown, Civ. Proc. before Trial (The Rutter Group 2020) § 9:326.1 (stating the 10 day deadline is extended under Code Civ. Proc. 1013 for s...

Excerpt: ...trial confere nce is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5. Code of Civil Procedure § 598. “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conduci...

Excerpt: ...hing section of the store on January 8, 2020, which is located immediately right next to the jewelry section where Plaintiff s incident occurred. I was located, about 12 -15 fee away from the endcap display. I observed the incident.” Overruled. Objection No. 3 – Gomez Decl., pa ragraph 5: “I saw the endcap display immediately before Plaintiff drove the electric shopping cart into it. There did not appear to be anything wrong with the endcap...

Excerpt: ...his favor b ears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of 14 proof.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (fn omitted). Code of Civil Procedure section 437c, subdivision (p)(2)...

Excerpt: ...university emails used by a cademic professionals employed by public institutions. On September 9, 2020, CSI made a public records request to Respondent Regents of the University of California (“UC”), seeking correspondence relating to four articles authored by Petitioner. Petitioner , an assistant professor at UCI, argues such correspondence should not be subject to a CPRA request because the correspondence does not relate to conduct of the ...

Excerpt: ...Notice is GRANTED. Defendant's Request for Judicial Notice is GRANTED as to Exhibit 1 and DENIED as to Exhibit 2 as unnecessary to the disposition of the Motion. Defendant's Evidentiary Objections to Plaintiff's Evidence is OVERRULED. Plaintiff's Evidentiary Obje ctions to the Declaration of Karen Broderick is OVERRULED. The Court declines to rule on Plaintiff's Evidentiary Objections to the Declaration of Freddie Vega on the grounds that they ar...

Excerpt: ...rty is entitl ed to judgment. Harman v. Mono General Hospital (1982) 131 Cal.App.3d 607, 613. The First Amended Complaint alleges three causes of action against Moving Defendants: 1) Recovery of Stolen Property Under Penal Code § 496; 2) Medical Battery; 3) Business a nd Professions Code § 17200. The FAC also purports to segregate the defendants in two separate categories, namely the Doctor Defendants and Entity Defendants, defined as all non ...

Excerpt: ...easonably incu rred by the buyer in connection with the commencement and prosecution of such action.” Civil Code, § 1794, subd. (d). Plaintiff seeks $39,055.50 in attorney's fees representing 78.9 hours billed at $495/hour. There is no dispute between the parties that Pl aintiff is entitled to fees and costs/expenses. The issue in dispute is the amount of attorney's fees. Attorney's fees Courts use the lodestar adjustment method to determine t...

Excerpt: ...or nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom.'” Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178. “If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, ...

Excerpt: ...tion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure § 436. An “irrelevant matter,” or “immaterial allegation,” means: (1) an allegation that is not essential to the statement...

Excerpt: ...erits.” A ssociation of 36 Irritated Residents v. Department of Conservation (2017) 11 Cal. App. 5th 1202, 1218. “Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity wi th them.” Ibid. “[I]f a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant ser...

Excerpt: ...e evidenc e/objections before the Court as contained in the papers, the Court rules as follows on Defendant's Evidentiary Objections to Exhibit 2, excerpts from Plaintiff's deposition transcript: Objection Nos. 1 -5: Sustained. Objection No. 6: Sustained in part and Overruled in part. Sustained as to “Several times at the movie theater.” To the extent DOE 2 is answering the preceding question at p. 73:21 -24 “the only time you ever heard hi...

Excerpt: ...plaint -inInt ervention by Intervenor Applied Risk Services, Inc., which provided workers compensation insurance to Plaintiff's employer. The Court declines to consider the opposition filed by Defendant The Irvine Company LLC, because Defendant does not have standing t o oppose the motion under Code of Civil Procedure section 437c(p)(2), which provides that the burden shifts to “the plaintiff or crosscomplainant” in opposing a motion for sum...

Excerpt: ...of $300 payabl e to Defendant no later than 30 days from the date of the service of notice of this order. California Rules of Court, rule 3.1348, subd. (a) [“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though . . . the requested discovery was provided to the moving party after the motion was filed.]. Moving Defendant to give notice. Motion to Compel Answers to Form Int...

Excerpt: ...parts in their context. If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. [¶] The courts of this state have long since depar ted from holding a plaintiff strictly to the form of action that has been pleaded and 5 instead have adopted the more flexible approach of examining the facts alleged to determine ...

Excerpt: ...the grounds the Complaint fails to state facts sufficient to constitute a cause of action against Defendant and is “uncertain.” Defendant Endresen The Code provides that unless the grounds for a demurrer are distinctly specified, it may be disregarded. Code of Civil Procedure § 430.60. In the introduction to the points and authorities Defendants argue Endresen is not a proper party because there are no allegations he exceeded the scope of h...