Excerpt: ...sed these causes of action before the deadline to oppose the demurrer. Fourth Cause of Action for Trespass Plaintiff alleges sufficient facts for this cause of action against Crescenta. Crescenta demurs on the basis that it owns or has an easement over the portion of the property where it allegedly trespassed. “Trespass is an invasion of the plaintiff's interest in the exclusive possession of land.” (McBride v. Smith (2018) 18 Cal.App.5th 116...

Excerpt: ...on, pp. 1-2.) Civil Code section 1717(a) provides, “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract … shall be entitled to reasonable attorney's fees in addition to other costs.” Civil Code secti...

Excerpt: ...property instruments subject to judicial notice of their existence and legal effects. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1 .) The court grants defendant's requests for judicial notice of exhibits 1-6. Plaintiff requests judicial notice of six documents. (Exs. 62-67.) These documents are complaints and cross-complaints against Easy Financial, LLC in other actions. These exhibits are not relevant or necessary...

Excerpt: ...Section 2030.230 is unwarranted or the required specification of those documents is inadequate,” or “[a]n objection to an interrogatory is without merit or too general.” (CCP § 2030.300(a).) Defendant made meritless objections to special interrogatory No. 41. The interrogatory requests the “full name, address, telephone number, and date of hire, for the first three Personal Trainers that were hired at” the gym where plaintiff worked. D...

Excerpt: ...ving to compel arbitration must establish the existence of a written arbitration agreement between the parties. (CCP § 1281.2.) It can meet the “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.) Only after the opposing party “challenge[s] the validit...

Excerpt: ...�� “[a]n exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate,” or “[a]n objection to an interrogatory is without merit or too general.” (CCP § 2030.300(a).) This motion is moot as to special interrogatories Nos. 29-31. FCA US LLC served supplemental responses to Nos. 29-31 after plaintiffs filed the motion. (Vawter Decl., ¶ 10, Ex. 4, pp. 3-4.) ...

Excerpt: ...annot reasonably respond.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695, internal quotes and alterations omitted.) The complaint must sufficiently apprise defendants of the claims against them. (Ibid.) Anthem argues the complaint is uncertain because it lacks specific allegations about Anthem and instead refers to the plural “defendants.” Though the complaint makes some allegations about “defendants,” ...

Excerpt: ...operly pleaded facts as true, but a demurrer does not admit the plaintiff's contentions nor conclusions of law or fact.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.) Courts “will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 12...

Excerpt: ...cts” of government entities (Evid. Code, § 452, subd. (c)), including recorded property instruments (see Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1), and court records (Evid. Code, § 452, subd. (d)(1)). The court takes judicial notice of the existence of the documents and their legal effects but not the truth of their contents or statements of fact. (See Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7; G...

Excerpt: ...2, subd. (c)), including recorded property instruments (see Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1), and court records (Evid. Code, § 452, subd. (d)(1)). The court takes judicial notice of the existence of the documents and their legal effects but not the truth of their contents or statements of fact. (See Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7; Gilmore v. Superior Court (1991) 230 Cal.App.3d 4...

Excerpt: ...ff's first through eighth causes of action fail because plaintiff seeks to recover compensation for work as an unlicensed contractor under the Contractors State License Law. “[N]o person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action … for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that they were a d...

Excerpt: ... judgment pursuant to the terms of the settlement.” (CCP § 664.6(a).) Code of Civil Procedure Section 664.6 Plaintiff meets the requirements of Code of Civil Procedure section 664.6. The parties stipulated in writing to settle this action. They signed a settlement agreement in February 2023. (Liberzon Decl., ¶ 4, Ex. 1.) The agreement required defendant to pay plaintiff $105,000 “[w]ithin 180 days of December 1, 2022.” (Id., § 1(a).) The...

Excerpt: ...existence of its statutory liability must be pleaded with particularity.' ” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Plaintiff's complaint relies almost entirely on conclusory allegations. She alleges, “Commencing in or about May, 2021, Plaintiff began experiencing serious, severe and pervasive harassment and discrimination based on her sex, gender and age.” (¶ 22.) Those are legal conclusions. She alleges no...

Excerpt: ...tions where the facts alleged “do not rise to the level of malice, oppression or fraud necessary” to recover punitive damages under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) “[A]bsent an intent to injure the plaintiff, ‘malice' requires more than a ‘willful and conscious' disregard of the plaintiffs' interests. The additional component of ‘despicable conduct' must be ...

Excerpt: ...right to compel arbitration.” (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).) Section 1281.97 does not apply because the parties' arbitration agreement adopts the procedural rules of the Federal Arbitration Act (FAA). “[T]he parties may limit the trial court's authority to stay or deny arbitration under the CAA by adop...

Excerpt: ...party is in material breach of the arbitration 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.” (CCP § 1281.98(a)(1).) If the drafting party does not timely pay, the employee may “[w]ithdraw the claim from arbitration and proceed in” court. (CCP § 1281.98(b)(1).) “[T]he Legislature intended courts to apply the statut...

Excerpt: ... plaintiff's evidence. All eight objections are overruled. Legal Standard Summary judgment should be granted where no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (CCP § 437c(c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.) Courts use a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) de...

Excerpt: ... rule 3.1300(d).) Plaintiff filed an opposition only four court days before the hearing, thereby depriving defendant of an opportunity to reply. Plaintiff also submitted a second amended complaint five court days before this hearing. She had no right to do so under Code of Civil Procedure section 472(a). However, permitting the second amended complaint would serve the interests of justice and judicial economy. Considering the merits of defendant'...

Excerpt: ...ndant's Person Most Knowledgeable witness(es) renders Honda's attempt to ‘meet and confer' with Plaintiff meaningless.” (Opps., p. 3.) That is not a failure to meet and confer. “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.) Whether defendant cooperated with plaintiff's discovery requests...

Excerpt: ...ir answers are identical. Plaintiff demurs to four purported affirmative defenses alleged in each answer. Rather than denying the plaintiff's allegations, affirmative defenses assert new allegations that would defeat the plaintiff's claims. (CCP § 431.30(b); FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383-385.) Affirmative defenses must not be pled as “terse legal conclusions,” but “rather … as facts averred as carefull...

Excerpt: ...r of the court.” (CCP § 436(b).) “This provision is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) The initial cross-complaint was not filed in conformity with a court order. On December 16, 2022, the court granted R&H's motion for leave to file a cross- complaint and ordered R&H to file the cross-compl...

Excerpt: ...n Agreement Does Not Apply to Mildred Reed's Cause of Action for Wrongful Death Plaintiff Mildred Reed brings a cause of action for wrongful death against defendant. Though decedent Raymond C. Reed signed the arbitration agreement (Natoli Decl., Ex. B), Mildred Reed dd not sign it and is not bound by it. “As a general rule, a party cannot be compelled to arbitrate a dispute that he or she has not agreed to resolve by arbitration.” (Daniels v....

Excerpt: ...it to a claim for damages, as specified in Section 3294 of the Civil Code.” (CCP § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) This subdivision “does not permit summary adjudication of a single item of compensatory damage which does not dispose of an entire cause of action.” (DeCastro West...

Excerpt: ...��This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Courts exercise their discretion “liberally to permit amendment,” and “[t]he policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County...

Excerpt: ... F-150” that “was/is” a “new motor vehicle” under the Song-Beverly Consumer Warranty Act, Civil Code section 1790 et seq. (Song-Beverly Act or Act). (FAC ¶¶ 5, 6.) Although Ayala alleges that she “received written warranties” (FAC ¶ 7), she does not allege from whom she purchased the vehicle. Ayala further alleges that the vehicle had certain defects covered by the warranty and that she presented the vehicle on at least two separ...

Excerpt: ...tion as to the moving defendants for forum non conveniens.” (Aug. 24, 2023 Minute Order, p. 7.) Courts use a two-step process in applying forum non conveniens. “[A] court must first determine whether the alternate forum is a ‘suitable' place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California.” (Stangvik v. Shiley Inc. (199...

Excerpt: ...owable. “ ‘An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (§ 1033.5, subd. (c)(2).)' ” (Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1128 (Sanford).) All costs awarded by the court must be reasonable and...

Excerpt: ...r than denying the plaintiff's allegations, affirmative defenses assert “new matter constituting a defense” that would defeat the plaintiff's claims. (CCP § 431.30(b)(2); accord FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383-385.) Affirmative defenses must not be pled as “terse legal conclusions,” but “rather … as facts averred as carefully and with as much detail as the facts which constitute the cause of action a...

Excerpt: ...tion 2025.410.” (CCP § 2025.450(a).) Meet and Confer Plaintiff did not adequately meet and confer before filing this motion as required under Code of Civil Procedure sections 2016.040 and 2025.450(b)(2). “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.) Plaintiff's declaration in support of ...

Excerpt: ...h of contract (lease agreement), (2) breach of warranty of habitability, (3) breach of covenant of quiet enjoyment, (4) collection of rent on substandard dwelling, and (6) retaliatory eviction. Defendant Valente demurs on the basis that the complaint does not allege any landlord/tenant relationship between her and plaintiffs. These causes of action are only properly alleged against plaintiffs' landlords. For example, “[t]o prove breach of contr...

Excerpt: ...ms. (CCP § 431.30(b); FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383-385.) Affirmative defenses must not be pled as “terse legal conclusions,” but “rather … as facts averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” (In re Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812-13, internal quotes and citations omitted.)...

Excerpt: ...ract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) A complaint alleging breach of contract “may plead the legal effect of the contract” and is not required to attach the contract or plead its terms verbatim. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 18...

Excerpt: ...the notice may move for an order compelling the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (CCP § 2025.450(a).) After defendant filed this motion, plaintiff The Law Offices of Jacob Emrani produced the requested documents. Berriz still seeks $3,085 in monetary sanctions against plaintiff. “The court may award sanctions under the Discovery Act in favor o...

Excerpt: ...; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” This action alleges breach of lease by the lessee of commercial property in Hollywood. The latter action is an unlawful detainer proceeding concerning the same property. Though they have overlapping issues, the primary issue in the unlawful detainer action is possession of the premises. (Harris...

Excerpt: ...trary to defendant's assertion, plaintiff alleges sufficient facts to show she had a mental disability. “ ‘Mental disability' includes, but is not limited to… [h]aving any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.” (Gov. Code, § 12926(j)(1).) “ ‘Major life activities' shall b...

Excerpt: ...s to compelling the depositions. Plaintiffs seek monetary sanctions. “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though … the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).) The court, however, finds defendants acted with substantial justification and sanctions would not be just under the circu...

Excerpt: ...ication, on their complaint and on the third amended cross-complaint by defendants/cross- complainants Barfly, Inc., Baret Lepejian, Lucas Lepejian, and Tayla Lepejian. Requests for Judicial Notice Plaintiffs/cross-defendants request judicial notice of 37 facts and exhibits. Request Nos. 9, 10, 18, 31, 32, and 33 may be court records subject to judicial notice under Evidence Code section 452, subdivision (d)(1), but they are irrelevant and unnece...

Excerpt: ...the opposition. Legal Standard for Sealing Records California Rules of Court, rule 2.550(d) provides: A court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the r...

Excerpt: ...ons on the ground of lack of jurisdiction of the court over him or her.” There was no summons on the cross- complaint. The court already acquired jurisdiction over Marshall Knoll because he invoked it in the first place by filing this action as the plaintiff. Neither a summons nor service of process is required for a cross-complaint against a preexisting party to the action. Code of Civil Procedure section 428.60 provides, “A cross-complaint ...

Excerpt: ... (Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (2018) 23 Cal.App.5th 1013, 1018.) The body of plaintiff's first amended complaint alleges numerous specific items of damages. (See Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1209 [“Because the body of the complaint alleged the specific amount of damages being sought, plaintiffs were not required to reiterate that sum”].) It alleges the following damages: $43,391.25 unpaid overti...

Excerpt: ... document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.” (Cal. Rules of Court, rule 3.1345(c).) Plaintiff's separate statements are full and complete. Each separate statement merely incorporates earlier parts of itself—e.g., the reasons to compel further responses to No. 2 incorporate the reasons stated for No. 1. Doing so is permitted and preferable t...

Excerpt: ...“city … is defendant, its … answer need not be verified.” (CCP § 446(a).) Plaintiff provides no authority that a public entity defendant's answer must explain why it is not verified. Uncertainty Plaintiff argues the second amended answer is uncertain. It is not. “Demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that [the opposing party] cannot reasonably respond.” (A.J. Fistes Corp...

Excerpt: ...o that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.” (Cal. Rules of Court, rule 3.1345(c).) Plaintiff's separate statements are full and complete. Each separate statement merely incorporates earlier parts of itself—e.g., the reasons to compel further responses to No. 2 incorporate the reasons stated f...

Excerpt: ...exclude any evidence or references to mediations in the underlying wrongful eviction lawsuits against plaintiffs/cross-defendants Zoriall, LLC, Anne Kihagi, and Christina Mwangi, in a federal court action by AmGuard Insurance Company regarding insurance coverage for liability in the underlying lawsuits, and in this action. The Evidence Code broadly prohibits evidence of statements or writings made during mediation. “No evidence of anything said...

Excerpt: ...sts for Judicial Notice Plaintiffs request judicial notice of the judgment entered in Pacific Horizon Holdings, LLC, v. Scott A. Meehan, et al., case No. 20SMCV00786 (“Judgment”). The request is granted. Defendants Pa cific Horizon Holdings, LLC, Royal Crest Sands Asset Group, LLC, Artha Ng, LLC, and Cliffside Malibu 1 request judicial notice of a printout from the City of Malibu's website regarding waste management. (Varozian Decl., Ex. A.) ...

Excerpt: ...bjection in the response is without merit or too general.” (CCP § 2031.310(a).) Timeliness Defendant Volkswagen Group of America, Inc. argues plaintiff's motion is untimely as to request Nos. 9, 12-26, 34, 46-54, 58-61. The requesting party must move to compel further responses “within 45 days of the service of the verified response.” (CCP § 2031.310(c).) Plaintiff filed this motion within 45 days of defendant's verification, but defendan...

Excerpt: ...cation” of the court's rulings on (a) the parties' motions for summary judgment and summary adjudication and on (b) plaintiff's motion for leave to file a second amended complaint. Plaintiff argues it seeks clarification “to establish a clear record for appeal.” (Motion, p. 3.) Clarifying the court's orders is not necessary for that purpose because an appellate court “ ‘reviews de novo the trial court's decision to grant summary judgmen...

Excerpt: ...is “BMW of Vista” and the “Lessee” is “Fala Bar LLC.” (Fetterolf Decl. Ex. A, § 1.) The agreement further provides, “This Motor Vehicle Lease Agreement (‘Lease') is entered into between the lessee and co-lessee, (‘Lessee') and the lessor (‘Lessor') named above. Unless otherwise specified, ‘I,' ‘me' and ‘my' refer to the Lessee and ‘you' and ‘your' refer to the Lessor or Lessor's assignee. … ‘Assignee' refers to ...

Excerpt: ...or fraudulent misrepresentation, the fourth for nondisclosure of material facts, the sixth for unjust enrichment, the seventh for negligence, and the eighth for unfair business practices. The first amended complaint alleges that in January 2022, plaintiff agreed to purchase real property from defendants Abraham Melchor Espinoza and Olivia Valentin. (¶ 12.) The demurring defendants, Rodeo and Galvan, were the sellers' real estate agents. (¶ 13.)...

Excerpt: ...r parties, which is known as serving the document. (See Code Civ. Proc., §§ 1005 & 1010.) That party must also file proof of service with the court. (See Code Civ. Proc., §§ 1013a-1013b; Cal. Rules of court, rule 3.1300(c).) Plaintiff must not file documents in court without both serving a copy on defendant and filing a proof of service with the court. Uncertainty Defendant demurs to plaintiff's complaint for uncertainty. “ ‘ “Demurrers...

Excerpt: ...is entitled to judgment as a matter of law. (CCP § 437c(c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.) Courts use a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294...

Excerpt: ...ro. Though defendants did not move for summary judgment or adjudication on this basis, the court finds it appropriate to set an order to show cause regarding whether the individuals can be liable for this cause of action. “[I]ndividuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.” (Reno v. Baird (1998) 18 Cal.4th 640, 663.) “[O]nly employers—and not individual supervisory empl...

Excerpt: ...section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) Plaintiff alleges sufficient facts to constitute malice or oppression. “ ‘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.” (Civ. Code, § 3294(c)(1).) “ ‘Oppression' ...

Excerpt: ...party is entitled to recover costs. (§ 1032, subd. (b).) The Fair Employment and Housing Act (FEHA) independently provides that “the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees.” (Gov. Code, § 12965, subd. (c)(6).) Section 1033.5, subdivision (a) sets forth a list of allowable costs. Section 1033.5, subdivision (b) lists costs that...

Excerpt: ...r acquired personal jurisdiction over the defendant. “When a court lacks jurisdiction in a fundamental sense, such as lack of authority over the subject matter or the parties, an ensuing judgment is void. [Citation.] To establish personal jurisdiction, it is essential to comply with the statutory procedures for service of process.” (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1330.) Trial courts should gen...

Excerpt: ...issues of fact exist and the moving party is entitled to judgment as a matter of law. (CCP § 437c(c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.) Courts use a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade T...

Excerpt: ...ller, LLC is the successor in interest of the late Joey Jordison. (FAC, ¶¶ 1, 4.) “Joey Jordison was the original drummer and co-founder of the famous heavy metal band Slipknot.” (¶ 18.) Defendants Taylor and Crahan are members of Slipknot. (¶ 19.) The other defendants are business entities related to the band. (¶¶ 8-10, 19, 19 [sic; the FAC has two sets of ¶¶ 19-21].) “Jordison traveled the world performing hundreds, if not thousan...

Excerpt: ...ting that a copy of the application has been mailed to the defendant's attorney of record or, if none, to the defendant at his or her last known address and the date on which the copy was mailed.” (CCP § 587.) “[A]ppellate courts and treatises have interpreted the phrase ‘application ... for entry of default' in Code of Civil Procedure section 587 to include applications for entry of a default judgment.” (Bae v. T.D. Service Co. of Arizo...

Excerpt: ...de of Civil Procedure section 1008(c). (Motion, pp. ii, 1-2, 7-9; Reply, p. 3.) That subdivision provides, “If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.” The statute's plain language does not permit a party to make such a motion. “Unless the requirements of [Code of Civil Procedure] section 437c, subd...

Excerpt: ...ssary and whether the amount of time billed for each task was reasonable. (Baxter v. Bock (2016) 247 Cal.App.4th 775, 793.) The moving party has the burden of proof on these issues. (Ibid.) “[V]erified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396....

Excerpt: ...tness gym. In the new action, plaintiff alleges various claims against John Park and “Yoka Smith Law,” attorneys who represent Fitness & Sports Club, LLC in the first action. The cases have at most minor overlapping issues. The subject matter of each is different and they have no common defendants. Moreover, relating and reassigning cases is discretionary. California Rules of Court, rule 3.300(h)(1) provides, “In a court in which cases are ...

Excerpt: ... do not meet their burden of showing Jeff Abrams agreed to arbitrate disputes with them. Jeff Abrams did not sign the arbitration agreement. (Pedraza Decl., Ex. A.) Defendants rely on the theory that Jane Abrams acted as Jeff Abrams' agent in signing the arbitration agreement on his behalf. “Generally, a person who is not a party to an arbitration agreement is not bound by it.” (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581...

Excerpt: ... grounds for new trial Code of Civil Procedure section 657[1] sets forth seven grounds for a motion for new trial. In their respective notices of intention to move for new trial, both parties stated they were moving for a new trial on all seven grounds. But in her brief supporting her motion, plaintiff only asserted two grounds, namely an irregularity in the proceedings (§ 657, subd. (1)) and an error in law (§ 657, subd. (7).) In its brief, Ma...

Excerpt: ...ession, or undue burden and expense.” (CCP § 2031.060(b).) Scott objects to public disclosure—not discovery by plaintiff—of his personnel records based on his right to privacy. “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal.5th 531, ...

Excerpt: ...ally demanded in the complaint is void as beyond the court's jurisdiction.” (Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (2018) 23 Cal.App.5th 1013, 1018 (Airs Aromatics).) “Where no amount of damages is demanded any amount awarded is by definition greater than the amount demanded.” (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830–831.) Plaintiff's complaint prays for various forms of damages “according to proof.” (C...

Excerpt: ...truments and their legal effects are subject to judicial notice under Evidence Code section 452, subdivisions (c) and (h). (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1; Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194.) The sixth exhibit is a copy of the Contractor's License Detail for license No. 1104933, U & G Construction Inc, from the website of the California Department of Consumer Affairs, Cont...

Excerpt: ...Code Civ. Proc., § 2023.030(a)), “an issue sanction ordering that designated facts shall be taken as established” or prohibiting a party “from supporting or opposing designated claims or defenses” (id., subd. (b)), “an evidence sanction by an order prohibiting” a party “from introducing designated matters in evidence” (id., subd. (c)), or “a terminating sanction” by striking a party's pleadings, staying the action, dismissing...

Excerpt: ... Code section 452, subdivision (h), which permits judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” This provision “is intended to cover facts which are not reasonably subject to dispute and are easily verified,” such as “facts which are widely accepted as established by experts and spe...

Excerpt: ... nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Hegge argues the second amended complaint does not allege he was a party to the subject contract. It alleges Hegge breached the partnership agreement governing defendant Mertz-Del Amo, a California general partnership. (SAC, ¶ 27, Ex. A.) Ouye alleges he is a general partner of the partnershi...

Excerpt: ...y rely on its own experience and knowledge in determining the reasonable value of attorney fees. (Id. at p. 1096; accord Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1249.) Basis for Attorney Fees A prevailing party can only recover attorney fees when authorized by contract, statute, or law. (CCP § 1033.5(a)(10).) Plaintiff claims attorney fees under three statutes: Code of Civil Procedure section 1021.6, Labor Code section 218...

Excerpt: ...urther responses on the basis that defendant produced documents that were not “identified with the specific request number to which the documents respond.” (CCP § 2031.280(a).) Defendant did that. On May 1, 2023, defendant served a notice of production including a table identifying which documents respond to which requests for production. (Reyes Decl., Ex. 2.) Unlike the written responses to requests for production (CCP §§ 2031.210(a)(1)-(...

Excerpt: ...urt to exclude the expert opinion of any witness offered by a party who has unreasonably failed to produce expert reports and writings as required by section 2034.270.” (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 952 (Boston).) The statute applies to “creation of expert reports and writings” by the expert (ibid.; see CCP §§ 2034.210(c), 2034.270), not to all documents an expert witness relies on or reviews. Plaintiff p...

Excerpt: ...lies. The court declines to reach the issue because the result would be the same under either the FAA or the California Arbitration Act. Existence of Agreement Defendants present sufficient evidence that plaintiff electronically signed the purported arbitration agreement. A motion to compel arbitration is “a summary proceeding.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057.) The moving party can me...

Excerpt: .... 3). Defendant is entitled to enforce the latter arbitration provision. Section 4 of Owner's Handbook & Warranty Information provides: “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 vehicle purchase, use of your vehicle, the vehicle warranty, representations in t...

Excerpt: ...trol Group, LLC (Crowd Control) because he does not meet the continuous membership requirement. To bring a derivative action on behalf of a limited liability company, the plaintiff must allege he “was a member, of record or beneficially, at the time of the transaction or any part of the transaction of which the plaintiff complains.” (Corp. Code, § 17709.02(a)(1).) “[S]ection 17709.02 requires both ‘contemporaneous' membership—meaning t...

Excerpt: ...rgue this cause of action is barred by the statute of limitations. A demurrer should be sustained where “the complaint shows on its face that the statute [of limitations] bars the action.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) In evaluating a demurrer based on untimeliness, the court must determine: (1) which statute of limitations applies; and (2) when the claim accrued. (Id. at p. 1316.) The statute ...

Excerpt: ...dual employees or coworkers are not liable for retaliation under Labor Code section 1102.5. Only employers can be liable. While no California court has decided the issue, persuasive authority has reached this conclusion. “District Courts have reasoned that if the California Supreme Court were to address the issue, it would hold that section 1102.5 does not impose personal liability on employees and supervisors.” (Mewawalla v. Middleman (N.D. ...

Excerpt: ...ions to the declaration of Viridiana E. Aceves. Objection Nos. 1, 2, and 4 are sustained. Objection No. 3 is overruled. Meet and Confer Plaintiff did not make an adequate attempt to informally resolve this dispute. A motion “for an order staying the taking of [a] deposition and quashing [a] deposition notice … shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2025.410(c).) “A meet and confer declaratio...

Excerpt: ...rogatories or requests for production, the requesting party may move for an order compelling responses. (CCP §§ 2030.290(b) [interrogatories]; 2031.300(b) [request for production].) Failing to timely respond waives any objections. (CCP §§ 2030.290(a); 2031.300(a).) Mertz-Del Amo served responses after Ouye filed these motions. The motions are therefore moot as to ordering Mertz-Del Amo to respond. The only remaining issues are whether Mertz-D...

Excerpt: ...v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695, internal quotes and alterations omitted.) The complaint must sufficiently apprise defendants of the claims against them. (Ibid.) Plaintiff's amendments cured the initial complaint's uncertainty. The first amended complaint may not be a model of clarity, but it now labels its causes of action, including expressly alleging defendant breach three separate contracts. (FAC, ¶¶ 8- 10.) It ...

Excerpt: ...bjection in the response is without merit or too general.” (CCP § 2031.310(a).) Meet and Confer Defendant General Motors, LLC argues plaintiff did not meet and confer in good faith before filing this motion. Plaintiff sent a detailed meet and confer letter on July 20, 2023 (Treybig Decl., ¶¶ 23-24, Ex. 5), over three weeks before filing this motion. The record includes no evidence that defendant responded to the letter. Defendant asserts the...

Excerpt: ... because CarMax assigned its contractual rights to ACA. “An assignee stands in the shoes of the assignor, taking his or her rights and remedies subject to any defenses the obligor has against the assignor prior to notice of the assignment.” (Creative Ventures, LLC v. Jim Ward & Associates (2011) 195 Cal.App.4th 1430, 1447, internal quotes omitted.) ACA authenticated a copy of a retail installment sales contract between plaintiff and CarMax. (...

Excerpt: ... consistent with or not supported by the facts.” (CCP § 663, subd. 1.) “In ruling on a motion to vacate the judgment the court cannot ‘ “in any way change any finding of fact.” ' ” (Glen Hill Farm, LLC v. California Horse Racing Bd. (2010) 189 Cal.App.4th 1296, 1302.) Defendant contends the judgment relies on an incorrect or erroneous legal basis because the court did not properly apply the lease and its addendum's terms defining “...

Excerpt: ...unding interrogatories may move to compel further responses when an answer “is evasive or incomplete,” “[a]n exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate,” or “[a]n objection to an interrogatory is without merit or too general.” (CCP § 2030.300(a).) Code of Civil Procedure section 2030.220 provides how a party must answer interrogatori...

Excerpt: ...ree causes of action allege violations of the Franchise Investment Law (FIL), Corporations Code section 3100, et seq. Defendants argue plaintiffs have no standing to sue under that law because they do not qualify as “franchisees.” The law “grant[s] standing to sue for violations of the Franchise Investment Law to franchisees or subfranchisors.” (Dameshghi v. Texaco Refining & Marketing, Inc. (1992) 3 Cal.App.4th 1262, 1284, overruled on o...

Excerpt: ...ause of action. Intentional infliction of emotional distress requires: “(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 plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050....

Excerpt: ...ion transcripts. Legal Standard for Sealing Records California Rules of Court, rule 2.550(d) provides: A court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the ...

Excerpt: ... against Kelly Seidlitz and Annette Seidlitz. “If a party” disobeys an “an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction … . In lieu of, or in addition to, that sanction, the court may impose a monetary sanction.” (Code Civ. Proc., § 2030.310, subd. (e).) Kelly Seidlitz and Annette Seidli...

Excerpt: ... set one. When a party fails to timely respond to interrogatories, the requesting party may move for an order compelling responses. (CCP § 2030.290(b).) Failure to timely respond waives any objections. (CCP § 2030.290(a).) Gibson served special interrogatories, set one, on plaintiff on January 4, 2023. (Rosenthal Decl., ¶ 2, Ex. A.) Plaintiff had not served responses as of July 27, when Gibson filed this motion. (Id., ¶ 3.) Plaintiff did not ...

Excerpt: ...rogatories, and requests for production of documents. When a party fails to timely respond to interrogatories or demands for inspection, the requesting party may move for an order compelling responses. (CCP §§ 2030.290(b) [interrogatories]; 2031.300(b) [demands for inspection].) Failure to timely respond waives any objections. (CCP §§ 2030.290(a); 2031.300(a).) On May 24, 2023, defendant Carrington Mortgage Services, LLC served set one of for...

Excerpt: ...P Plaintiff Ugo O. Asobie moves to compel further responses by defendant Universal Protection Services, LP (Universal) to special interrogatories Nos. 1-72, 79, 80, 89, and 90. A party propounding interrogatories may move to compel further responses when an answer “is evasive or incomplete,” “[a]n exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate,...

Excerpt: ...� (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057 (Espejo).) The moving party can meet the “initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.” (Id. at p. 1060.) For this initial burden, “ ‘it is not necessary to follow the normal procedures of document authentication.' ” (Id. at p. 1058.) Only aft...

Excerpt: ... returns a verdict 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 resolv...

Excerpt: ...arty shows that an action must be decided in its favor as a matter of law. (CCP § 437c(f)(1); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.) A moving defendant must show “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.” (CCP § 437c(p)(2).) Once the moving party does so, the burden shifts to the opposing party to show a triable issue of at least one ma...

Excerpt: ...cts as true, but a demurrer does not admit the plaintiff's contentions nor conclusions of law or fact.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.) Courts “will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593,...

Excerpt: ...anty of merchantability against all defendants, (3) negligent repair against all defendants, (4) misrepresentation against all defendants, and (5) violation of the Magnuson-Moss Warranty Act (Magnuson-Moss Act) against Hyundai Motor America. 2022 Owner's Handbook & Warranty Information Section 4 of plaintiff's vehicle owner's handbook and warranty information provides that “for California vehicles only,” “you and we, Hyundai Motor America, ...

Excerpt: ...ges four causes of action: 1. breach of loan agreement, 2. fraud, 3. common count, and 4. rescission. The motion does not mention plaintiff's causes of action for fraud or rescission. Legal Standard A plaintiff moving for summary adjudication must prove each element of each cause of action; once the plaintiff does so, the burden shifts to the defendant to show a triable issue of at least one material fact. (Aguilar v. Atlantic Richfield Co. (2001...

Excerpt: ... signatures on a new contract with different terms (Opp. Ex. 2). Plaintiffs oppose the motion on the grounds that they never agreed to arbitrate these disputes because they did not sign the contract. They do not, however, dispute entering the first agreement. The question for this motion is thus whether, by signing the first agreement, plaintiffs agreed to arbitrate disputes arising from the alleged forgery of a second contract. “In light of Ca...

Excerpt: ...ff Ido Erlich Webber requests judicial notice of eight exhibits. Exhibits A through E are five LLCs' statements of information filed with the Secretary of State. Exhibits F, G, and H are three certificates of limited partnerships filed with the Secretary of State. These documents are subject to judicial notice because they are public records not reasonably subject to dispute and capable of immediate and accurate determination by resort to the Sec...

Excerpt: ...ntiff's declaration. All 14 objections are overruled. Delegation to Arbitrator Defendant argues an arbitrator, not the court, should determine whether the parties' arbitration agreement must be enforced. “Parties to an arbitration agreement may agree to delegate to the arbitrator, instead of a court, questions regarding the enforceability of the agreement. [Citation.] They ‘can agree to arbitrate almost any dispute—even a dispute over wheth...