Excerpt: ...udicial notice are granted. Demurrer Defendants Marc A. Collins, Azim Khanmohamed, and Collins & Khan LLP demur to all three causes of action alleged in the first amended complaint by plaintiffs Marshall Knoll and Reni Knoll_ 1. Professional Negligence Plaintiffs do not allege sufficient facts for professional negligence or legal malpractice Its "elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of hi...

Excerpt: ...mmons on her. Courts may "set aside any void judgment or order." (CCP 473(d)_) Here, the judgment is at most voidable—not void. " [J]udgments which on their face or on the judgment roll affirmatively disclose their invalidity' are void judgments and those which do not show the invalidity on their face as voidable judgments." (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 13 18, 1332 ) "Generally, defendants have six months from...

Excerpt: ...estoppel and the opinion in Felisilda v. FCA US LLC (2020) 53 CalApp_5th 486 (Felisüda)_ "[A] nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonslgnatory are intimately founded in and intertwined with the underlying contract obligations." (ld. at p. 495_) After defendant filed this motion, the Second District Court of Appeal issued an opimon di...

Excerpt: ...of action for interference with easement, the second cause of action for negligence, the fourth cause of action for nuisance, and the seventh cause of action for declaratory relief solely on the grounds that "no valid easement exists." (Demurrer, p. 6.) The claims for negligence and nuisance do not depend on the validity of the disputed easement. Plaintiffs allege sufficient facts for interference with easement and for declaratory relief. Defenda...

Excerpt: ...t contradicts the allegation that defendants did not pay the money they agreed to pay plaintiff. "Facts appearing in attached exhibits control over contradictory factual allegations in operative complaint" (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 39.) Defendants' argument relies on a fundamental misinterpretation (or mischaracterization) of the deed of trust attached as exhibit 1 to the complaint. The c...

Excerpt: ...t contradicts the allegation that defendants did not pay the money they agreed to pay plaintiff. "Facts appearing in attached exhibits control over contradictory factual allegations in operative complaint" (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 39.) Defendants' argument relies on a fundamental misinterpretation (or mischaracterization) of the deed of trust attached as exhibit 1 to the complaint. The c...

Excerpt: ...n Defendant does not dispute that he did not comply with the notice of his deposition. He instead argues plaintiff improperly demanded to conduct the deposition in person rather than remotely. Defendant argues he has the right to testify remotely at deposition under Code of Civil Procedure section 2025.310 or California Rules of Court, rule 3.1010. Both provisions, however, give the deposing party (or that party's attorney) the right to be at the...

Excerpt: ...tes 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.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) The complaint alleges sufficient facts to constitute a cause of action under at least one legal theory: the Unruh Civil Rights Act. “All persons within the jurisdiction of this state are free and equa...

Excerpt: ...a supplemental demand to inspect, copy, test, or sample any later acquired or discovered documents, tangible things, land or other property, or electronically stored information in the possession, custody, or control of the party on whom the demand is made.” (CCP § 2031.050(a).) When the responding party fails to timely respond to requests for production, the requesting party may move for an order compelling responses. (CCP § 2031.300(b).) Fa...

Excerpt: ...uested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on ...

Excerpt: ...otice under Evidence Code § 452(d). (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120.) Defendant also requests judicial notice of, “The State Bar of California's listing of licensed attorneys (calbar.ca.gov) which shows neither Janice Deutsch or Duff Shidaker are licensed to practice law in the State of California.” That fact is subject to judicial notice as an official act of the judicial department and a fact not re...

Excerpt: ...tion, and waives its right to compel arbitration under Section 1281.2.” (CCP § 1281.97(a)(1).) If the drafting party does not timely pay, the employee may “[w]ithdraw the claim from arbitration and proceed in” court. (CCP § 1281.97(a)(2).) “[T]he Legislature intended courts to apply the statute's payment deadline strictly.” (Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 771 (Espinoza).) “[T]he triggering event is nothing mor...

Excerpt: ...ne for an “order precluding defendant from relitigating issues that have been adjudicated against it in the workers' compensation appeals board.” The proposed order states the court would be granting plaintiff's motion for an order “collaterally estopping and precluding Defendant Massive Prints, Inc. from relitigating and/or challenging issues and facts that have been adjudicated against it in the Workers' Compensation Appeals Board.” Suc...

Excerpt: ...esponses to requests for production Nos. 1-3 and 11, to requests for admission Nos. 1-33, and to special interrogatories Nos. 1-11. These three motions are untimely. “Unless notice of this motion is given within 45 days of the service” of the response, the moving “party waives any right to compel a further response.” (CCP § 2030.300(c) [interrogatories]; § 2031.310(c) [requests for production]; § 2033.290(c) [requests for admission].) ...

Excerpt: ...etermine they are the prevailing parties and strike the other parties' memorandum of costs. “[A] prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (CCP § 1032(b).) “ ‘Prevailing party' includes the party with a net monetary recovery” and “a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in s...

Excerpt: ...he statute [of limitations] bars the action.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) “[T]he defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” (Id. at p. 1316.) On demurrer, the court must determine: (1) which statute of limitations applies; and (2) when the claim accrued. (Ibid.) Fraud has a three...

Excerpt: ...me. Sealing The court finds good cause to seal the certificates of merit The general rules for sealing records "do not apply to records that are required to be kept confidential by law." (Cal. Rules of Court, rule 2_550(a)(2)_) Code of Civil Procedure section 340.1 provides that the court must review the certificates of merit (subd_ (i)) and certificate of corroborative fact (subd_ (n)) in camera. (See also Cal. Rules of Court, rule 2.585 ) The c...

Excerpt: ... months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting, to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was no...

Excerpt: ...ntiffs first cause of action for negligence, second cause of action for "violation of statutes," and third cause of action for negligent hiring fail due to sovereign immunity. "[A]ll government tort liability must be based on statute." (County ofSan Bernardino v. Superior Court (2022) 77 Cal.App.5th 1100, 1107.) " '[Slovereign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute.'" ...

Excerpt: ...der defendant to participate in alternative dispute resolution. Discovery Orders Substantively, the order plaintiffs seek requiring defendant to produce missing documents constitutes an order to compel compliance with a statement of compliance in response to requests for production. (CCP 2031_320_) Demanding that defendant provide contact information for witnesses is also an attempt to get an order for something plaintiffs should have obtained vi...

Excerpt: ... for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud " (Civ Code, 3295(d) ) This provision "requires a court, upon application of any defendant, to bifurcate a trial so that the trier of fact is not presented with evidence of the defendant's wealth and profits until after the issues of liability, compensatory damages, and malice, oppression, or fraud have been resolved against the defendant."...

Excerpt: ...tions and ending with the ultimate sanction of termination." (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 566, 604 ) "[A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful ancVor the record clearly shows lesser sanctions would be ineffective." (Ibid.) Terminating sanctions are " 'ordinarily a drastic measure which should be emplo...

Excerpt: ... a triable issue of at least one material fact. (Aguilarv. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The opposing defendants "shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto." (CCP S 437c(p)(1).) Plaintiff alleges three causes of action: (1) public nuisance, (2) violation of narcotics abatement law (NAL), and (3) unfair competition. Plaintiff meets it...

Excerpt: ...umina Balasanyan's second amended cross-complaint based on the doctrine of res judicata_ The court sustained LA Solar Group's demurrer to the initial cross-complaint and the first amended cross-complaint under that doctrine The amendments in the sa•ond amended cross-complaint cure the defect Balasanyan now alleges cross-defendant refused to remove solar panels from Balasanyan's home before and after the prior small claims action (SACC, 12, 13) ...

Excerpt: ...y information permits defendant to compel arbitration. Section 4 of the warranty information provides: BINDING ARBITRATION FOR CALIFORNIA VEHICLES ONLY PLEASE READ THIS SECTION IN ITS ENTIRETY AS IT AFFECTS YOUR RIGHTS If you purchased or leased your Hyundai vehicle in the State of California, you and we each agree that any claim or disputes between us (including between you and any of our affiliated companies) related to or arising out of your v...