Excerpt: ...l Dr. Shoghian's Deposition This unopposed motion is GRANTED. The District served Dr. Shoghian with a deposition subpoena requiring her to appear for deposition and produce documents. The District attempted to coordinate dates with Dr. Shoghian, but she refused to provide dates or otherwise appear. She was served with copies of the moving papers and all other documents relating to this motion, but has not responded in any way or otherwise made an...

Excerpt: ...ses compulsory cross-complaints, provides: "A party who fails to plead a cause of action, subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross- complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be ju...

Excerpt: ..., and CHOC through its joinder, technically have brought the wrong motion. It is undisputed Plaintiff previously appeared for deposition in this action in February 2022, and at that time Western Pump and CHOC asked all questions they had of Plaintiff before stating they have no further questions. As such, the deposition was completed. "Once any party has taken the deposition of any natural person, including that of a party to the action, neither ...

Excerpt: ...tiff has shown, the materials at issue are essential to prepare for now imminent depositions, among other things. Accordingly, the court grants the motion to the extent it seeks additional time to respond, but orders compliance by December 29, 2023, to allow time to review the documents in preparation for the depositions and otherwise proceed with the litigation. In the reply brief, Stamos improperly seeks additional forms of relief that were not...

Excerpt: ...gotiation and informal resolution. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).) "[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." (Ibid.) The particular level of effort required in each case depends on the circumstances including the amount of discovery propounded, the time available to confer before the motion filing deadline, and the extent to which a party was c...

Excerpt: ...n of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a d...

Excerpt: ...s the fifth cause of achon for negligence, the seventh cause of action for imposition of equitable lien (Civil Code S 3543), and eighth cause of action for imposition of equitable lien (equitable subrogation). The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to each of the three challenged causes of action. Fifth Cause of Acton (Negligence): The elements of a negligence cause of action are: (1) duty; (2) breach; (3) proximate or legal cause of...

Excerpt: ... sufficient facts to state a cause of action because Plaintiff "lacks stand-ng to maintain this lawsuit." This challenge is based on the contention Plaintiff is a foreign limited liability company that has failed to qualify to transact intrastate business in California. (Corp. Code S 17708.07(a) ["A foreign limited liability company transacting intrastate business in this state shall not maintain an action or proceed-ng in this state unless it ha...

Excerpt: ...gery and requesting leave to amend. Failure to oppose a demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 cal.App.4th 1, 20, sexton v. superior court (1997) 58 cal.App.4th 1403, 1410, Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1322, and Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) A party who files no opposition also has no right to present argument at ...

Excerpt: ...iction of emotional distress are: '(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. ' The defendant must have engaged in 'conduct intended to inflict injury or engaged in w...

Excerpt: ... Smith's FACC and portions thereof; and (4) motion to strike Ms. Smith's TACC and portions thereof. The parties all agree the allegations of the two cross- complaints are essentially identical and the parties' various arguments apply equally to both demurrers and both motons to strike. As such, both demurrers are analyzed together and both motions to strike are analyzed together. Motion Nos. 1 & 2: Demurrers Attorneys' demurrers to Mr. Smith's FA...

Excerpt: ... 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 proceed-ng in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., S 473(a)(1).) Additionally, any judge, at any tme before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allo...

Excerpt: ...1: Motion to Compel Arbitration This motion is GRANTED IN PART and DENIED IN PART with stays as set forth herein. A petition to compel arbitration must allege both (1) a "written agreement to arbitrate" the controversy, and (2) a party to the agreement "refuses to arbitrate" the controversy. (Code Civ. Proc. S 1281.2.) The court shall grant the petition unless the petitioner waived the right to compel arbitration, or other grounds exist for resci...

Excerpt: ... (4) "Motion to Compel Plaintiff Martin Alvarado's Supplemental Responses to Request for Production of Documents (Set One)." No opposition has been presented by either plaintiff Veronica Alvarado or plaintiff Martin Alvarado (collectively, Plaintiffs) as to any of these motions. Motion Nos. 1 & 2: Form Interrogatories These motions are GRANTED IN PART. As a preliminary matter, the court was forced to discern the intended scope of the motions from...

Excerpt: ...ly, the court notes the moving papers improperly cite to an unpublished opinion—Tucker v. Cunningham 2015 Cab App. unpub. LEXIS 9416. It is improper for any party or the court to cite to a California state court appellate opinion that has not been certified for publication. (Cal. Rules of Ct., rule 8.1115(a).) Repeated violation of this rule may give rise to sanctions. In ruling on a special motion to strike made under section 425.16, the trial...

Excerpt: ...xpert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of university of California (1989) 215 Cal.App.3d 977, 984-985; see also AVIVi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2 [elements of medical malpracticel.) Simila...

Excerpt: ...wan (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. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) "In our examination of the complaint we are guided by the well settled principles governing the testing of its suffic...

Excerpt: ...nt on the pleadings, of defendant Irvine Sensors Corporation ('SC) to the Plaintiffs' SAC. Motion No. 1: Mr. Carson's Demurrer First Cause of Action (Unpaid Contract Wages): "Section 204 imposes an obligation of timely payment of wages upon California employers and provdes rules for scheduling wage payments .... [Y] [T]he sole purpose of [section 204] is to require an employer of labor who comes within its terms to maintain two regular pay days e...

Excerpt: ...(5) Any and all other references to punitive or exemplary damages. Civil Code section 3294, subdivision (a), permits the recovery of punitive damages upon a clear and convincing showing a defendant is guilty of oppression, fraud, or malice. "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 saf...

Excerpt: ...n states, "An application for a provisional remedy under subdivision (b) shall not operate to waive any right of arbitration which the applicant may have pursuant to a written agreement to arbitrate, if, at the same tme as the application for a provisional remedy is presented, the applicant also presents to the court an application that all other proceed-ngs in the action be stayed pending the arbitration of any issue, question, or dispute which ...

Excerpt: ...at there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is 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...

Excerpt: ...emurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegatons 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. Me...

Excerpt: ...rth amended crosscomplaint as to Shapiro is GRANTED. Here, Cross-complainants filed their original crosscomplaint naming, among others, Roes (or Does) 1 to IW on November 12, 2019. The operative fourth amended cross-complaint was filed on May 9, 2022, and contnues to name the same fictitious cross-defendants. On February 1, 2023, Cross-complaints filed an amendment naming Shapiro as Roe 1. Again, all Roes were named in the original cross-complain...

Excerpt: ...ank, N.A. (2013) 214 cal.App.4th 743, 752-754.) on December 13, 2022, the court (Judge Gastelum) granted a motion to dismiss filed by defendants BRC Inc., Authentic Brands LLC, and Black Rifle Coffee Company LLC (collectively, BRC Defendants), and the corresponding joinder filed by Engaged, as to the first through fourth causes of action in the Complaint and denied the motion as to the fifth cause of action (which is now the entire FAC). (ROA 75....

Excerpt: ... Defendants. Motion No. 1: Motion to Bifurcate The court reserves ruling on this motion until the time of trial when it will have further information relating to the issues and evidence in the case. NO FURTHER BRIEFING WILL BE PERMITTED. Motion No. 2: Demurrer Kote demurs to the entire FAC on a number of grounds, including, but not limited to, another action pending, the claims are subject to mandatory dismissal under Code of Civil Procedure sect...