Excerpt: ...reement. (Ideta Decl. II 4, Ex. A.) Pursuant to the agreement, Defendants agreed to pay Plaintiff an initial payment of $90,000 by 01/27/2023 and $38,000 by 02/05/2023. (Ideta Decl., Ex. A at S 1.) The agreement provides that: Contemporaneous with the execution of this Agreement, Defendants Diya and J. Samtani shall execute a Stipulation for Entry of Judgment (the "Stipulated Judgment"), in the form attached hereto as Exhibit A. The total amount ...

Excerpt: ...Second cause of action for violation of california civil Code section Third of action for Fraud in the Concealment, and Sixth cause of action for Negligent Misrepresentation Plaintiff alleges a variety of fraud based claims. Plaintiff alleges Defendants committed fraud by misrepresenting that they were or are the beneficiary of the contract that secured the Note and Deed of Trust. (FAC, '1 31.) Plaintiff alleges that Defendant MERS unlawfully rec...

Excerpt: ...urrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal. , Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not ...

Excerpt: ... Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active member of...

Excerpt: ...no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as t...

Excerpt: ...t the Agreement is governed by the Federal Arbitration Act. Instead, Plaintiff contends that the Agreement is unconscionable. If the party opposing the petition to compel arbitration raises a defense to enforcement, that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. (See Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4 th 394, 413.) An agreement ...

Excerpt: ... the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 C...

Excerpt: ...; (2) Fraud; (3) Intentional misrepresentation; (4) Negligent misrepresentation; (5) Intentional infliction of emotional distress; (6) Negligent infliction of emotional distress; (7) Negligent hiring, training, supervision, and retention; (8) Violation of Business & Professions Code § 17200; (9) Conversion; (10) Defamation; and (11) Violation of the Rosenthal Fair Debt Collection Practices Act § 1788. (2021 Action, ROA No. 2.) After the parties...

Excerpt: ...e FDA's website are “not the type of agency action we may judicially notice.” (Bridges v. Mt. San Jacinto Community College Dist. (2017) 14 Cal.App.5th 104, 117.) Even if the Court took judicial notice of these documents, which are considered government documents, it may only take judicial notice of their existence, not the truth of their content. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193 [“Although the audit repo...

Excerpt: ...burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, t...

Excerpt: ...ns of paragraph 6 of the Declaration of Mark Ankcorn in support of the motion for reconsideration. Specifically, the challenged declaration states, On December 5, 2022, I spoke with a Deputy Attorney General from the UCL enforcement division who I knew to be involved in the California Department of Justice's Experian investigation. During that conversation, I learned for the first time that the Attorney General had entered into a tolling agreemen...

Excerpt: ...tration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. (Id.) “ ‘Und...

Excerpt: ...FAA states that written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) The Supreme Court has described this provision as reflecting both a “liberal federal policy favoring arbitration,” and the “fundamental principle that arbitration is a matter of contract.” (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ...

Excerpt: ..., Ex. A.) Parties moving to compel arbitration “may meet their initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060.) If the opposing party challenges the validity of that signature, however, the moving party must “establish by a preponderance of the evide...

Excerpt: ...n clause, it will usually be given effect unless it is unfair or unreasonable. [Citation.] Moreover, a court will normally reject any claims that the chosen forum is unfair or inconvenient. [Citation.] Also, “[a] court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience.” [Citation.]” (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 661.) A mandatory fo...

Excerpt: ...ation is simply a suit in equity seeking specific performance of that contract. (Little v. Pullman (2013) 219 Cal.App.4th 558, 565.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings, the trial court sits ...

Excerpt: ...below, the motion is GRANTED in part and DENIED in part. Failing to respond to an authorized method of discovery is a misuse of the discovery process warranting sanctions. Code Civ. Proc. § 2023.010(d). So, too, is disobeying a court order to provide discovery. (Id., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal. App. 4 th 1495, 1516.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley ...

Excerpt: ...ency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been allege...

Excerpt: ...equitable estoppel when the claims against the nonsignatory are “dependent upon, or founded in and inextricably intertwined with,” the obligations imposed by the agreement containing the arbitration clause. (Goldman v. KPMG LLP (2009) 173 Cal.App.4th 209, 217-218; Marenco v. DirectTV LLC (2015) 233 Cal.App.4th 1409, 1419-1420 [equitable estoppel doctrine required employee who signed arbitration agreement with predecessor corporation to arbitr...

Excerpt: ...nislau (“Nicholas”), and Laura Estanislau (“Laura”) (collectively, “Plaintiffs”) commenced this action against defendants Brian Hoyt (“Brian”), Alain Hoyt (“Alain”), William Kalpakoff (“William”), and Sandra Kalpakoff (“Sandra”) (collectively, “Defendants”). (ROA 2). Plaintiffs allege they own real property adjacent to an easement that included a flood control channel (“Carbon Canyon Flood Control Channel”) and...

Excerpt: ...ession, fraud, or malice. Civ. Code § 3294(c) provides the following definitions: (1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's right...

Excerpt: ...t for the revocation of any contract.” (Code Civ. Proc., § 1281 [2]; see Fischer v. Superior Court in and for Los Angeles County (1930) 105 Cal.App. 466, 470 [arbitration statutes contemplate controversy either existing or which may subsequently arise out of a particular contract].) A court shall order arbitration if it determines an agreement to arbitrate exists, unless the moving party waived arbitration, grounds exist for revocation of the ...

Excerpt: ...a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading ...

Excerpt: ...bjections and that sets forth legally valid responses to each interrogatory, the untimely response might completely or substantially resolve the issues raised by a motion to compel responses under section 2030.290,” although the court still retains authority to hear the motion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407-409.) Even if valid responses are belatedly served, the Court can ...

Excerpt: ...tion to produce documents under Code of Civil Procedure section 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc. § 2030.300(a).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Cour...

Excerpt: ...ion. On 11/09/2022, the court continued this motion for further proof of service. The court finds Moving Defendants have submitted sufficient proof of service of the moving papers on Plaintiffs. Although Plaintiffs' opposition papers include no proof of service, the court finds that Defendants' filing a substantive reply brief addressing the opposition papers waives any objection Defendants may have had based on defects in service. Code of Civil ...

Excerpt: ...ceptionally lenient treatment.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) Otherwise, “exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Id. at 985.) “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (...

Excerpt: ...rits.” (§ 2033.300, subd. (b); Stover v. Bruntz (2017) 12 Cal.App.5th 19, 30-31; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420-1421.) “Section 2033.300 eliminates undeserved windfalls obtained through requests for admission and furthers the policy favoring the resolution of lawsuits on the merits. [Citation.]” (New Albertsons, supra, 168 Cal.App.4th at p. 1418.) While the Court's discretion is not unlimited, any ...

Excerpt: .... On September 21, 2022, Defendant Partners Personnel Management Services, LLC filed a motion to compel arbitration on the grounds that Plaintiff signed an arbitration agreement that covers her claims in this action. On December 21, 2022, Defendant 33 Degrees, LLC filed a joinder in the motion. On January 4, 2023, Plaintiff filed an opposition arguing that the agreement is procedurally unconscionable because the arbitration agreement is an adhesi...

Excerpt: ...he “avoidance of waste of time and money caused by the trial of issues which may be rendered moot.” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135; see Silver v. Shemanski (1949) 89 Cal.App.2d 520, 530 [“section 597 of the Code of Civil Procedure is but a legislative recognition of the power of a trial court under section 2042 of the Code of Civil Procedure and places an imprimatur upon a practice which contemplates a trial first ...

Excerpt: ...4th 826, 850.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc. (“CCP”), § 437c(p)(2).) Once the moving party meets that burden, the burden shifts to the party opposing MSJ to show, by reference to specific facts, the existence of a triable issue as to that a...

Excerpt: ...022, Order. (06/29/22 Minute Order [ROA No. 84].) On July 26, 2022, Plaintiff submitted an Amended Verification that cured defects in Plaintiff's original verification and properly verified his Complaint. (Amended Verification [ROA No. 99].) Defendants contend that res judicata bars reconsideration of the personal jurisdiction issue. “ ‘Res judicata' describes the preclusive effect of a final judgment on the merits. Res judicata, or claim pre...

Excerpt: ...ode § 2017.010. The test for determining if something is discoverable is whether the requested matter “appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Information is “relevant to the subject matter of the litigation” if it possibly assists the party in evaluating the case, preparing for trial, or aiding in settlement of the case. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546). “A trial cou...

Excerpt: ... Superior Court in and for Los Angeles County (1930) 105 Cal.App. 466, 470 [arbitration statutes contemplate controversy either existing or which may subsequently arise out of a particular contract].) A court shall order arbitration if it determines an agreement to arbitrate exists, unless the moving party waived arbitration, grounds exist for revocation of the agreement, or a party to the agreement is also a party to a pending action involving t...

Excerpt: ...ere not sufficiently served in connection with that lawsuit. Specifically, Defendant attempted service at 1024 Iron Point Road, Suite 100 Folsom, California, 95630. (Id., ¶ 6.) Plaintiff Intellect IT's office, however, is suite number 1031, not suite 100. (Id., ¶ 7.) Defendant then attempted substitute service at that address. (Id., ¶ 8-9.) Defendant did not attempt to serve Plaintiffs at Plaintiff Dhaliwal's residence on file with the Secreta...

Excerpt: ...��four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and wh...

Excerpt: ...udicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been ...

Excerpt: ...de Civ. Proc., § 2031.010, subd. (a).) A party may demand that any other party produce and permit the demanding party to inspect, copy, photograph, or sample the documents or tangible things that are in the possession, custody, or control of the party on whom the demand is made. (Code Civ. Proc., § 2031.010, subds. (b) & (c).) Any doubt about discovery is to be resolved in favor of disclosure. (Advanced Modular Sputtering, Inc. v. Superior Cour...

Excerpt: ..., materially affecting the substantial rights of the party and entitling the party to a different judgment: 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. 2. A judgment or decree not consistent with or not supported by the special verdict. (Code Civ. Proc., § 663.) The procedural n...

Excerpt: ...010. The test for determining if something is discoverable is whether the requested matter “appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Information is “relevant to the subject matter of the litigation” if it possibly assists the party in evaluating the case, preparing for trial, or aiding in settlement of the case. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546). “A trial court must be m...

Excerpt: ...recting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc., § 473, subd. (a...

Excerpt: ... Evid. Code, § 452(h).) A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (See Del E. Webb Corporation v...

Excerpt: ...��shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and must be “reasonable in amount.” (Code Civ. Proc., § 1033.5(c).) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they are not reasonable or necessary.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Here, it is undispute...

Excerpt: ... only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.” (Code Civ. Proc § 2020.410 (a).)” (Board of Registered Nursing v. Superior Court of Orange County (202...

Excerpt: ..., (b), 2020.020(b).) If the nonparty deponent does not comply, the requesting party may move for an order directing compliance with the subpoena. (See Code Civ. Proc., § 2025.480; see also Code Civ. Proc., § 1987.1.) The instant motion concerns the business records subpoena issued to nonparty witness Custodian of Records for Pacific Premier Bank. (Waller Decl. ¶ 3, Ex. 1 [the “Subpoena”].) The Subpoena requests eight categories of document...

Excerpt: ...ED, with leave to amend, and the Motion to Strike is DENIED as moot. A. Second Cause of Action for Intentional Infliction of Emotional Distress The elements for intentional infliction of emotional distress (“IIED”) are: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and ...

Excerpt: ...limited civil cases). ) The amount in controversy is the amount the plaintiff seeks to recover, excluding attorneys' fees, interests, and costs. (Code Civ. Proc. § 85.) Accordingly, the amount to be considered for jurisdiction includes punitive damages. The governing standard for reclassifying a case from unlimited to limited jurisdiction is found in W a l k e r v . S u p e r i o r C o u r t, 53 Cal. 3d 257 (1991). Under Walker, a trial court mu...

Excerpt: ...ssues. This type of severance order is commonly called “bifurcation.” Like other severance orders, bifurcation involves two separate trials in one action—i.e., a “liability trial” and then, if necessary, a “damages trial.” (Horton v. Jones (1972) 26 CA3d 952, 957.) The granting or denial of a motion to bifurcate lies within the sound discretion of the trial court. (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504.) ...

Excerpt: ...bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of ac...

Excerpt: ...ctual emotional distress; (3) Gann's seventh cause of action for Unlawful Discrimination/Harassment based on Disability per Government Code §12940 fails because Leiba is not Gann's employer and/or Gann did not sustain any adverse employment action; and (4) Gann's eighth cause of action for Unlawful Discrimination/Harassment based on Age per Government Code § 12940 fails because Leiba is not Gann's employer and/or Gann did not sustain any advers...