Excerpt: ...and the granting of the motion will not result in prejudice to the opposing party, it is error to refuse permission to amend. Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530. As Defendant observes, a motion to amend a pleading must include a separate declaration specifying: “(1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations we...

Excerpt: ...answer within 10 days. A demurrer reaches defects that appear on the face of the complaint. The court considers the allegations and matters that are subject to judicial notice. All facts are accepted as true. Saunders v. Superior Court (1994) 27 Cal. App. 4th 832, 838. A demurrer tests the legal sufficiency of the allegations. It does not test their truth, the Plaintiff's ability to prove them, or the possible difficulty in making such proof. Sau...

Excerpt: ...Code § 835 based on the material issues of fact asserted, which remain controverted. Cal. Code Civil Procedure § 437c(p)(2). Adjudication of the first cause of action for premises liability is GRANTED. The first cause of action does not assert a statutory basis for the claim. Claims against a public entity must be based on statute. Cal. Gov. Code §815. Since the duty of a governmental agency can only be created by statute, the statute must be ...

Excerpt: ...t alleges that Cross-Defendants' conduct caused property damage to Cross-Complainants' truck. This is a compulsory Cross-Complaint which should have been filed at the time of the answer, since it is a related cause of action against the Plaintiff. Cal Code Civil Procedure § 426.30. A “related cause of action” is one that “arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which t...

Excerpt: ...rocedurally defective. Plaintiff did not include a Notice of Motion nor was Defendant served with a copy of the proof of service. However, Plaintiff's motion does indicate the date, time, and place of the hearing. The court's file reflects that Plaintiff did file a proof of service with the court indicating service of the motion on Defendant, but the document does not reflect the date when the motion was served. Thus, whether Plaintiff gave Defen...

Excerpt: ...ty to sue. Cal. Code Civil Procedure § 430.10(b). A person's standing to sue can also be challenged by way of demurrer. Buckland v. Threshold Enterprises, Ltd., 155 Cal. App. 4th 798, 813 (2007). “Legal capacity” to sue refers to a person's right to come into court. “Standing” to sue refers to a person's right to relief in court.Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 224. A cause of a...

Excerpt: ...nd circumstances showing conduct constituting malice, fraud or oppression. Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166. The predicate acts to support a claim for punitive damages must be intended to cause injury or must constitute “malicious conduct,” defined as “despicable conduct” carried on by Defendant with a willful and conscious disregard of the rights of others. Cal. Civil Code § 3294(a). Oppressive conduct is defin...

Excerpt: ...intiff does not allege any facts to support the claim for negligent entrustment. Plaintiff alleges in conclusory fashion that Defendants negligently entrusted the motor vehicle. Complaint, ¶ MV 2. Defendant has established that the complaint is preempted by the Graves Amendment. The Graves Amendment precludes vicarious liability against the owner of a motor vehicle if the owner is in the trade or business of renting, the owner rented the vehicle...

Excerpt: ... lacks jurisdiction over a person are made by way of a motion to quash pursuant to Cal. Code Civil Procedure § 418.10. The complaint is superseded by the First Amended Complaint (FAC) filed on 3/26/19. The complaint ceases to have any function as a pleading. Defendant's references to the allegations of the complaint are irrelevant. Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal. App. 4th 1135, 1144. Defendant's challenge...

Excerpt: ... Status of Discovery Stay and Criminal Proceeding on <00030016001601e6037401 e4> A civil defendant facing a parallel criminal proceeding does not have an absolute right to stay the civil proceedings pending the outcome of the criminal trial. Defendant cites Pacers Inc. v. Superior Court (1984) 162 Cal. App. 3d 686, which found that that the punishment imposed by the trial court against the defendants was an abuse of discretion because it penalize...

Excerpt: ... Hawkins, filed their complaint alleging medical malpractice, wrongful death, and breach of fiduciary duty. Plaintiff, Steven Hawkins, alleged he was the domestic partner of Akiko Saggio, and father of Plaintiff, Salen Hawkins, a minor. Complaint ¶ 2. On 7/19/17, Plaintiffs filed a First Amended Complaint for wrongful death only. Mr. Hawkins again alleged that he was the domestic partner of Akiko Saggio and father of Salen Hawkins, a minor. Defe...

Excerpt: ... that Defendant acted “wantonly, willfully, and recklessly,” “reckless disregard,” and the prayer for punitive damages as noticed in Defendant's Notice of Motion, 2: 1-5. To support a claim for gross negligence, Plaintiff is required to allege the traditional elements of negligence and facts constituting extreme conduct on the part of the Defendant. Rosencrans v. Dover Images, Ltd. (2011) 192 Cal. App. 4th 1072, 1082; Chavez v. 24 Hour Fi...

Excerpt: ...by 5/3/19 (increased by five calendar days for service by mail since Defendant did not agree to electronic service). Opposition, 12:14. Plaintiff untimely served the motion on 5/7/19. However, a party may be deemed to have waived any irregularity in the notice by appearing at the hearing, opposing the motion, not asking for a continuance and not demonstrating any prejudice resulting from the shortened notice. Carlton v. Quint (2000) 77 Cal. App. ...

Excerpt: ...or from matters subject to judicial notice. Cal Code Civil Procedure § 438. The same general rules that apply to demurrers apply to motions for judgment on the pleadings. All facts alleged in the complaint are deemed admitted. The court is not concerned with a Plaintiff's possible inability to prove the claims made in the complaint. All facts are accepted as true. Ludgate v. Lockheed (2000) 82 Cal.App.4th 592, 602. 2. The complaint alleges that ...

Excerpt: ... 3d 686 which arose in a different procedural context. The issue there was whether or not the trial court could impose sanctions on defendants by prohibiting them from testifying at trial as a sanction for their refusal to testify at deposition based on their 5th Amendment privilege. Pacers a 688. The Pacers court found that the punishment imposed against the defendants was an abuse of discretion because it penalized them for invoking their 5th A...

Excerpt: ... valid and binding settlement. Terry v. Conlan(2005) 131 Cal.App.4th 1445, 1454 The court's power is limited to determining the existence of the agreement and to enforce its settlement. Viejo Bancorp, Inc. v. Wood (1989) 217 Cal. App. 3d 200, 209. There is a strong public policy in favor of settlement of cases. The trial court has the power to resolve factual disputes relating to the agreement. Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1357. P...

Excerpt: ...f Jason Smith, timely filed on 6/6/19 (nine court days before the hearing). While Defendant did not receive the Declaration the next business day, Defendant was able to file a reply brief which the court has considered, and therefore, has not suffered any prejudice. The court has discretion to consider late papers in favor of the strong policy favoring disposition of the case on the merits.Kapitanski v. Von's (1983) 146 Cal.App.3d 29, 32. Plainti...

Excerpt: ...ff was walking about the supermarket when she slipped and fell on a slippery substance that was left on Defendant's floor, creating a dangerous condition. Defendant's Ex. 1, ¶ 7. Plaintiff is seen walking into the “Fresh Floral” area at 17:10:41 in the surveillance video. UF 2. She disappears from view behind what appears to be a square produce display stand at around 17:10:45. UF 2. The video reveals that a store employee walks through the ...

Excerpt: ...areas or preclude or limit the production of documents for good cause shown. Cal. Code Civil Procedure § 2025.420. Defendant has not shown good cause for the protective order. The permissible scope of discovery is broadly framed to include “any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evid...

Excerpt: ... the litigation.” Cal. Code Civil Procedure §36(a). Plaintiff currently suffers from debilitating injuries, deteriorating condition, and the consequences of a stroke. Declaration of Doris Holmes, ¶ 3-7. Plaintiff can meet her burden with minimal evidence. The motion can be supported by an attorney's declaration based on information and belief attesting to Plaintiff's medical diagnosis and prognosis. Cal Code Civil Procedure § 36.5. Here, Pla...

Excerpt: ...ircumstances showing conduct constituting malice, fraud or oppression. Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166. Defendant argues that Plaintiff must allege facts showing that Defendant intended to harm. Motion, 9:15. Defendant cites a 1958 case, Gombos v. Asche (1958) 158 Cal.App.2d 517, which found that the allegations of driving while drunk did not charge malice. That case relied on an older version of the statute. The court ...

Excerpt: ... of contents has caused Plaintiff substantial prejudice. The court must disregard errors in pleadings or proceedings, which do not affect the substantial rights of the parties. Cal. Code Civil Procedure § 475. Leave to amend is permitted at the court's discretion upon any terms that may be just. Cal. Code Civil Procedure § 473. The statute is liberally construed to permit amendment of the pleadings. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th ...

Excerpt: ...here Defendants or some of them reside. Cal. Code Civil Procedure § 395(a). The general rule under Cal. Code Civil Procedure § 395(a) directs that venue is proper at Defendant's residence unless there is a specific venue statute, in which case the general rule is subordinated. Cal. Code Civil Procedure 395(a) The general rule of venue has effect only when no other venue provision applies. Wherever there is a more specific venue statute, the gen...

Excerpt: ...rocedure § 436. To support a claim for punitive damages, Plaintiff must allege facts and circumstances showing malice, fraud or oppression. Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166. The predicate acts to support a claim for punitive damages must be intended to cause injury or must constitute “malicious conduct,” defined as “despicable conduct” carried on by Defendant with a willful and conscious disregard of the rights ...

Excerpt: ...nd those exams other than that described under Section 2032.220 require leave of court and are governed by Cal. Code Civ. Proc. §2032.310.Code Civ. Proc., § 2032.310(a). Defendant is entitled to more than one examination upon a showing of good cause. Shapira v. Superior Court (1990) 224 Cal. App. 3d 1249, 1250. “Good cause” is established where there are specific facts justifying discovery and the inquiry is relevant to the subject matter o...