Excerpt: ...f arbitra tion and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration. This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute. The party opposing arbitration has the burden of demonstrating that an arbitration clause cannot be interpreted to requi...

Excerpt: ...e chapter governing any particular discovery method or any other provision of this title.' This means that the statutes governing the particular discovery methods limit the permissible sanctions to those sanctions provided under the applicable governing statutes.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422 [cleaned -up].) The statutes governing each discovery method authorize particular types of sanctions in parti...

Excerpt: ...aintiff's cau se of action” or “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence ….” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) The elements of the cause of action for wrongful death are the tort (negligence or oth er wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) �...

Excerpt: ...as those for ne gligence. (Citation.)” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) The plaintiff must prove “a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Ibid, citations omitted. ) To establish a claim for dangerous condition on public property, a plaintiff must prove all of the following elements: 1. That defendant owned or controlled the property...

Excerpt: ...e r joint tortfeasors from any further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (Id., § 877.6, subd. (c).) “To determine whether a settlement is in good faith, a trial court must inquire ‘whether the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional share of compa...

Excerpt: ...edical malpractice on the grounds that the entire action is time -barred pursuant to Code of Civil Procedure section 340.5. “The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to j udgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code...

Excerpt: ...sition wil l not be considered by the Court. Defendant seeks judgment on the pleadings with respect to the second, fourth, fifth, sixth, and seventh causes of action. On May 15, 2024, Defendant dismissed the fourth cause of action for retaliation. “The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters th...

Excerpt: ...ntered into b y the plaintiff or other claimant and one or more alleged tortfeasors or co -obligors. . .” A determination by the court that the settlement was made in good faith will bar any other joint tortfeasor or co -obligor from any further claims against the settlin g tortfeasor or co-obligor for equitable comparative contribution or partial or comparative indemnity based on comparative negligence or comparative fault. (Code Civ. Proc., �...

Excerpt: ...(2014) 230 Cal.Ap p.4th 381, 395.) “[F]iduciary duties are either imposed by law or are undertaken by agreement. . .” (Maglica v. Maglica (1998) 66 Cal.App.4th 442, 447.) “Fiduciary duties are imposed by law in certain technical, legal relationships such as those between partners or joint venturers, husbands and wives, guardians and wards, trustees and beneficiaries, principals and agents, and attorneys and clients.” (GAB Bus. Servs., In...

Excerpt: ...rmance, (3) th e defendant's breach, and (4) resulting damages to the plaintiff. [Citations.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97- 98.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words.” (K houry v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) The Complaint fails to adequately plead an oral. Specifically, the Complaint inconsistently p...

Excerpt: ...t to allege a ca use of action. Statute of Limitations: Code of Civil Procedure section 338(d) provides that an action for fraud must be brought within three years. The FAC alleges that Plaintiffs purchased the Subject Vehicle on May 16, 2012. (FAC, ¶ 7.) The lawsuit wa s filed on February 22, 2023, over seven and a half years after the statute of limitations had run. “A plaintiff must bring a claim within the limitations period after accrual...

Excerpt: ...l grounds not supported. CRC 3.1113(a). The Entire Complaint Defendant argues an unverified complaint cannot amend a verified complaint. The case cited is from 1884 and is not persuasive authority. Defendant has not cited any modern California cases that supp orts this position. Therefore, the Court declines to strike the SAC on this ground. The Fifth and Sixth Causes of Action The fifth and sixth causes of action for covenant of good faith an...

Excerpt: ... in light of the Court's ruling on the demurrer. Defendants request judicial notice nos. 1 -4 are granted. (See Evidence Code § 451(d).) Defendants' request for judicial notice no. 5 is denied. “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...

Excerpt: ...on withi n an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit t o an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants eithe...

Excerpt: ... by t he Court as grounds for denial. Non -party Bradley Yourist seeks to quash the subpoena which was personally served on him by Plaintiff Usman Chowdry while he was at court. Yourist contends the subpoena impermissible seeks the personal financial records o f Defendants Phase 9 and Tissera from two unrelated civil litigation matters in which Yourist was counsel for the plaintiffs. Code of Civil Procedure section 1987.1 states, in part, “(a)...

Excerpt: ... the drafting party pay certain fees and costs during the pendency of an arbitration proceeding, if the fees or costs required to continue the arbitration proceeding are not paid within 30 days after the due date, the drafting party is in material breach of the arbi tration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.” Se...

Excerpt: ...to provide dis covery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evide nce sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discr...

Excerpt: ...tar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Id.) “As the plain wording of section 1794, subdivision (d) makes clear, the trial court is ‘to base th e fee award upon actual time expended on the case, as long as such fees are reasonably incurred —both from the standpoint of time spent and the amount charged.' [...

Excerpt: ...sition of th is Motion. Defendant's Evidentiary Objections to the Declaration of Michael Clauss are OVERRULED. Relief from Default and Default Judgment: Default was entered against Defendant on October 23, 2023 (ROA No. 147). Defendant requests both mandatory and d iscretionary relief under Code of Civil Procedure Section 473, subdivision (b). As to mandatory relief, section 473, subdivision (b) provides: “Notwithstanding any other requirements...

Excerpt: ...to provide dis covery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evide nce sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discr...

Excerpt: ...t particular gro und, the matter is properly before the court and the defect in the notice of motion should be disregarded. [Citation].” (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808.) Here the notice states the Motion is being made upon the accompanying papers. Thus, the defect in the notice is disregarded. Attorneys' Fees “[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reason...

Excerpt: ...errogatories seek the date and address of other purchases or sales of residential real property Defendant has engaged in, either on their own behalf or on behalf of Yu Liu, from 2010 to present. Movants contends this information is relevant to show that Defendant was sophisticated in real estate transactions and that Defendant engaged in fraud and breached the subject purchase contract in this case. In opposition, Defendant contends Plaintiffs th...

Excerpt: ...t p. 5:16- 18.) However, Plaintiff has not shown that she filed the instant motion in sufficient time in advance of the time limit for the completion of discovery (the 15th day before the initial trial date) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. (See Code Civ. Proc., §§ 2034.610(b); 2024.030.) Trial in this case has been continued several times. Trial was initially set for 4/10/23...

Excerpt: ...at there i s no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears 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 ac...

Excerpt: ...ht $2,451.64 arising from Defendants' failure to pay the HOA assessments plus related fees and costs of suit. On 11/18/20, the parties entered into a stipulated judgment against Defendants in the amount of $5,791.74 with fees/costs to be determined. The Court awar ded $13,500 in attorney fees on 2/11/21. On 4/22/21, the Court granted a motion to set aside the judgment. The Court denied Defendants' motion to disqualify counsel on 6/10/21. The Cour...