Excerpt: ...e matter proceed, Plaintiff�s unopposed Motion for Judgment on the Pleadings is granted. In considering a motion for judgment on the pleadings, courts consider whether properly pled factual allegations, assumed to be true and liberally construed, are sufficient to constitute a cause of action. Stone Street Capital, LLC v. Cal. State Lottery Com'n (2008) 165 Cal.App.4th 109, 116; Fire Ins. Exchange v. Sup. Ct. (2004) 116 Cal. App. 4th 446, 452-5...

Excerpt: ...eral or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the tri...

Excerpt: ...�Alternatively, the party may affirm the contract, treating it as repudiated, and recover damages for breach of contract . . . .� Id. �The court does not rescind contracts but only affords relief based on a party's rescission. Both the grounds for rescission and the means by which parties may rescind their contract are governed by statute. � Id. �The steps to rescind a contract are set forth in section 1691[.] Id. The statutory grounds fo...

Excerpt: ...pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., �� 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint [or answer], as it stands, unconnected with extraneous matters, states a cause of action [or defense].'� Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. Accord McKenney...

Excerpt: ... fees to the prevailing party. �The determination of what constitutes a reasonable fee generally �begins with the �lodestar,� i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate�.�� �[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved...

Excerpt: ...mental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.� Id. �Although in extreme cases a court has the authority to order a terminating sanction as a first measure . . . , a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ...

Excerpt: ...ep analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 289, 2...

Excerpt: ...erma v. County of Orange (2004) 120 Cal. App. 4th 709, 715; Frazee v. Seely (2002) 95 Cal. App. 4th 627, 635 (�Because the Legislature has provided for the fairly lenient granting of continuances to oppose summary judgment motions, and the premature grant of summary judgment may infringe upon the right to a jury trial, under these facts the court abused its discretion by failing to grant the request.�) In the present case, attorney Paul has p...

Excerpt: ...ep analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 28...

Excerpt: ...hat the claims are covered within the scope of such agreement. Defendant has asserted his right to arbitration and has provided this court with a declaration in support which attaches the arbitration agreement at issue. Thus, the motion is granted. This case is stayed pending arbitration. The currently set trial date is vacated. A case management conference is set for 3/23/20 at 9:00 a.m. in Dept. 6 for status of arbitration. Moving party is to s...

Excerpt: ... Cal.App.4th 1, 5; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) �7:292. Paragraph 10 of the complaint states: �Claimant had to face the trauma of discovering he had lung cancer shortly before the lung was removed on October 3, 2016�� Paragraph 13 of the complaint further states: �Plaintiff was informed that his doctor did not follow protocol of other reasonably acting medical professionals until approximately 60 days aft...

Excerpt: ...t shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just�� A party requesting a continuance of a motion for summary judgment in order to obtain discovery, must show the following elements: 1) facts to be obtained are essential for opposing; 2) reason exists for believing that such facts may exist; and 3) reasons why the time is needed. Lerma v. County of Or...

Excerpt: ...urs reasonably expended multiplied by the reasonable hourly rate�.�� �[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the cont...

Excerpt: ...rding the payment of the garnished wages to the State, that such misrepresentation was knowingly false, that Defendant intended to induce reliance by Plaintiff, that Plaintiff relied on such statements, and that she was damaged by both her bank account being levied and that the sums withdrawn were neither paid to the State nor returned to Plaintiff. As such, all required elements are pled. Further, Plaintiff has pled with adequate specificity. Sh...

Excerpt: ...kes v. Lucas (1992) 9 Cal.App.4th 365. Secondly, Defendants� request for judicial notice is granted in its entirety. On the merits, pursuant to Civil Code Section 1717, where an agreement provides for a party to recover attorney fees in actions arising out of out of the contract, then the other prevailing parties likewise are entitled to fees. Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal. App. 4th 1174, 1178. Here, Defendants are the...

Excerpt: ...f may correct this defect by filing amended Requests for Entry of Default. Thereafter, Plaintiff may simply re- notice the present motion (without the requirement of filing the supporting documents again). Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order. This is the Court�s tenta...

Excerpt: .... No extrinsic evidence can be considered. Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881. Thus, these declarations are irrelevant and improperly filed in support of a demurrer and/or motion to strike. Secondly, Plaintiff�s arguments relating to improper meet and confer by Defendant prior to filing the demurrer are well founded. See CCP section 430.41. However, as the demurrer and opposition are fully briefed, and the court is overru...

Excerpt: ...l Estate etc. Trust (1985) 168 Cal.App.3d 818, 824, 214; Vega v. JPMorgan Chase Bank, N.A. (E.D.Cal. 2009) 654 F.Supp.2d 1104. See also generally Bernhardt, Cal. Mortgage and Deed of Trust Practice (Cont. Ed. Bar 4th ed. 2009) ��7.22-7.34, 7.63-7.66. Here, no underlying action has been filed to show that Plaintiff will prevail on the merits. There is nothing to be determined meritorious. While the Court found good cause to grant the TRO witho...

Excerpt: ...led general rule [is] that extra-record evidence is inadmissible in traditional mandamus actions challenging [incorporated boards�] decisions . . . that general rule does not apply in actions to challenge . . . �informal� actions.� Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, 30 (quotations and citations omitted). �[Board] actions that do not involve public hearings . . . are generally considered �informal.� Thus, becau...

Excerpt: ...road remedial provisions� . . . are to be �liberally applied to carry out the policy of permitting trial on the merits.� � Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 (citations omitted). �The party seeking relief, however, bears the burden of proof in establishing a right to relief.� Id. (citations omitted). �The burden is a double one: the moving party must show a satisfactory excuse for his default, and he must sho...

Excerpt: ...imant failed to establish the probable validity of a real property claim by a preponderance of the evidence (see �405.32); claimant is secured by an undertaking (see �405.33); and, claimant failed to file an undertaking ordered by the court (see �405.34). Kirkeby v. Sup. Ct. (2004) 33 Cal. 4th 642, 648. When a motion to expunge a lis pendens is filed, the burden is on the opposing party to show that the complaint contains allegations of a r...

Excerpt: ...nably expended multiplied by the reasonable hourly rate�.�� �[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent na...

Excerpt: ...to refuse permission to amend�.�� Jaimez v. DAIOHS USA, Inc. (2010) 181 Cal.App.4th 1286, 1308. Courts generally do not consider the validity of proposed amendments to a pleading. Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047; Atkinson v. Elk Corp. (2006) 109 Cal. App. 4th 739, 760 (�the better course of action would have been to allow � [plaintiff] to amend the complaint and then let the parties test its legal suf...

Excerpt: ... relates to Defendant Steven Sipe dba Sipes CA, the motion to compel is denied in its entirety. Steven Sipe is a sole proprietor owner. As set forth in Bellis v. United States (1974) 417 US 85, 87-88, the Fifth Amendment privilege �applies to the business records of the sole proprietor or sole practitioner.� There is no legal entity separate from Sipe as an individual. The Fifth Amendment was properly asserted. As the motion relates to Defend...

Excerpt: ...� Lim v. The.TV Corp. Internat. (2002) 99 Cal.App.4th 684, 690. Here, Cross-Complainant has pleaded written contracts according to their legal effect. Among other things, paragraphs 31 ,35, 37 and 38 set forth the exact material terms at issue and allegedly breached. Cross-Defendant has sufficient facts regarding the contract at issue to file an Answer in this action. Thus, any Answer must be served and filed by February 11, 2019. Moving party�...