Excerpt: ...tiff's allegedly late‐filed opposition, the objection is overruled. Plaintiff's opposition was timely filed nine court days before the continued hearing date, so it does not appear that the opposition was filed late under Code of Civil Procedure section 1005, subdivision (b). Even assuming that the opposition was late based on the earlier hearing date, defendant has forfeited the objection by filing a reply that addresses the merits of the oppo...

Excerpt: ...eave to amend. Because plaintiff's counsel had a habit of not responding to defense counsel's meet and confer requests, pursuant to Code of Civil Procedure section 430.41(c), the court ordered plaintiff's counsel to hold a conference of attorneys prior to filing an amended complaint. Defendant then moved to dismiss the complaint pursuant to Code of Civil Procedure section 581(f)(2) because plaintiff's counsel had not communicated with defense cou...

Excerpt: ... does not support the requested amount. Explanation: As an initial matter, to the extent that plaintiff seeks an order determining that it is the prevailing party on the contract action, such an order is unnecessary as the Court of Appeal has already determined that plaintiff is entitled to its attorney's fees on appeal as the prevailing party in the appeal. “Appellants do not challenge the trial court's award of attorney fees. The credit appli...

Excerpt: ...eir truth. (See, e.g., Evid. Code §§ 451‐452.) Even so, the declaration can be considered as evidence in support of this motion, since affidavits and declarations are a routine form of evidence in motions to compel arbitration. It does not stop being evidence simply because it was filed in connection with a different motion. It was Ms. Boujikian's declaration then, and it is her declaration now. Also, the fact that the documents attached to t...

Excerpt: ...y 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.” (CCP § 437c(f)(1); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal adjudication prohibited].) The ultimate burden of persuasion rests on defendant, as the moving party. The initial burden of production is on defendant to show by a preponderance of the evidence that i...

Excerpt: ...rike the prayer for prejudgment interest, contending that Civil Code section 3288 only permits an award of prejudgment interest in actions not arising from contract, and that Civil Code section 3287, subdivision (a), only allows prejudgment interest where the damages are certain or capable of being made certain by calculation. In the present case, defendant contends that plaintiff's claims arise out of the contract between the parties for the des...

Excerpt: ... objection and that made on the basis that the demand does not reasonably particularize the category of item. To limit further response and production to 1) any complaint or other initial filing in a court case or third party resolution process involving Ford and the owner of a 2016 Ford Explorer wherein Ford repurchased the vehicle, and where the repair history for that vehicle contains a problem for which the plaintiffs in this case also sought...

Excerpt: ...int can be amended will run from service by the clerk of the minute order. All new allegations in the amended complaint are to be set in boldface type. To order the JOP off calendar. Explanation: A court may, in the furtherance of justice, allow a party to amend any pleading on any terms as may be proper. (See Code Civ. Proc., §§ 473, subd. (a), 576.) “This statutory provision giving the courts the power to permit amendments in furtherance of...

Excerpt: ...omplaint within ten days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff's complaint attempts to state a single cause of action for breach of contract as to all of the defendants, including Ygrene Energy (incorrectly named as “Ygrene Financial, Inc.”). Plaintiff alleges that she entered into the contract with defendants on October 2, 2017, which was for installation of a new roof and sola...

Excerpt: ...n to strike the prayer for punitive damages (SAC p. 11) without leave to amend. To grant the motion to strike the SAC as a whole because it was not signed, with plaintiff granted 10 days leave to file a Third Amended Complaint. (Code Civ. Proc. § 436.) The time in which the complaint may be amended will run from service of the order by the clerk. To set a motion to reclassify this case as a small claims matter on July 30, 2020 at 9:00 am in Depa...

Excerpt: ...uses of action could be amended to state a cause of action. (Code Civ. Proc. § 430.10(e).) Respondents shall file their answer to the First Amended Petition and Complaint (“FAP”) within 10 days of service of the order by the clerk. If oral argument is timely requested, the matter will be heard on Monday, July 13, 2020 at 1:30 a.m. Explanation: Fourth Cause of Action The fourth cause of action alleges unlawful land use discrimination in viola...

Excerpt: ...is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545.) Accordingly, “[b]ecause the function of a demurrer is not to test the truth or accuracy of the facts alleged in the complaint, we assume the truth of all properly pleaded factual allegations.” (Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 203.) The test is whether plaintiff ha...

Excerpt: ...nded Complaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the Second Amended Complaint are to be set in boldface type. Explanation: 1. Judicial Notice The court takes judicial notice of the recordation of the requested documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) 2. Demurrer The function of a demurrer is to t...

Excerpt: ... has the initial burden of showing the essential facts of jurisdiction, that is the facts requisite to an effective service. (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; Dill v. Berquist Const. (1994) 24 Cal.App.4th 1426, 1439‐ 40.) This may be done through presentation of declarations, with opposing declarations received in response. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.) Furthermore, filing a proof of service...

Excerpt: ...the motion exists (e.g., fraud, unconscionability, etc.) (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) The alleged arbitration agreement in this case is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq. Section 2 of the FAA provides for enforcement ...

Excerpt: ...ke class allegations, as improperly filed, redundant, and moot. (Ibid.) Explanation: Under Code of Civil Procedure section 382, “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” (Code Civ. Proc., § 382.) “The party seeking certification as a class representative must ...

Excerpt: ...minutes and 13 seconds.3 However, according to defendant's own legal authorities, the issue of whether a hazard existed long enough to give the defendant constructive notice of the dangerous condition is generally an issue of fact that should be resolved by the trier of fact, not an issue that is amenable to resolution as a matter of law. In Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, the California Supreme Court stated that, “[b]ecause the o...

Excerpt: ...rocedure section 473, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citati...

Excerpt: ... a judgment in conformity with this order. Explanation: Defendant Kingspan Insulated Panels, Inc. (“Kingspan”) moves for judgment on the pleadings as to the First Amended Cross‐Complaint (“FACC”) brought by Style‐Line Construction, Inc. (“Style‐Line”). A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired, and so the rules governing demurrers apply....

Excerpt: ...d date of the hearing, the nature of the relief sought, and the grounds on which the motion will be based. “Unless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion; (2) The motion itself; and (3) A memorandum in support of the motion or demurrer.” (Cal. Rules of Court, Rule 3.1112, subd. (a), emphasis added.) “The papers fi...

Excerpt: ...ill run from service by the clerk of the minute order. Explanation: A demurrer is appropriate “[w]hen any ground for an objection to a complaint … appears on the face thereof, or from any matter of which the court is required to or may take judicial notice ....” (Code Civ. Proc., § 430.30, subd. (a).) A court should sustain a demurrer where a complaint fails to state “facts sufficient to constitute a cause of action.” (Id. at § 430.10...

Excerpt: ...n not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exist are to be resolved in favor of the party opposing summary judgment. (Barbe...

Excerpt: ...dez and Hernandez Chiropractic Spinal Decompression, Inc. demur to the entire complaint on the ground that it is barred by the applicable statute of limitations, as they contend that plaintiff's claims accrued on September 26, 2016 when she was allegedly sexually assaulted by defendant Arthur Hernandez, and she did not file her complaint until October 23, 2018, more than two years after the assault. (See Code Civ. Proc. § 335.1 [establishing two...

Excerpt: ...and the federal court denied the motion as to the state law claims. (See Defendants' Exhibit U, Order of United States District Court for the Eastern District of California dated August 30, 2017.) In its order, the District Court expressly found that there were triable issues of material fact with regard to the state law wrongful death cause of action, and thus denied summary adjudication of that claim. (Order, pp. 21:19 ‐ 22:23.) The District ...

Excerpt: ...40,000. Explanation: 1. Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed settlement.” Subsection (h) states: “If the court approves the settlement agreement after the final approval hearing, the court must make and enter judgment. The judgment must include a provision for the retention of the court's jurisdiction over the...