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Excerpt: ...annoyance, embarrassmen t, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) The party seeking a protective order bears the burden of proving that good cause exists for the order. (Emerson Electric Company v. Superior Court (1997) 16 Cal.4th 1101, 11 10.) “Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in … [the discovery procedure] ...

Excerpt: ...ing pool. The allegations are insufficient as to whether this was intentional on the part of defendants or just mere negligence on the part of the construction/demolition crew. Motion to Strike The motion of defendants to strike portions of the first amended complain t is GRANTED in part and DENIED in part. As to Item No. 11, the court is aware of no legal authority allowing a claim for punitive damages in a declaratory relief cause of action. T...

Excerpt: ...d on case law have no application to the facts of this case and thus the demurrer should be sustained without leave to amend. Code of Civil Procedure section 430.20 authorizes a demurrer to an answer where the answer does not state facts sufficient to constitute a defense or is uncertain. Whether an answer states a defense is generally governed by the same principles which are applicable in determining if a complaint states a cause of action. (So...

Excerpt: ... state law, (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” (Murchison v. County of Tehama (2021) 69 Cal.App.5th 867, 883.) While municipalities may be held liable for causing a constitutional deprivation inflicted by its employee s or agents, Monell v. Department of Social Services (1977) 436 U.S. 658, 690, neither a state nor its officials acting in their official capacities can be held liable under it, Wi...

Excerpt: ...iary duty causes of action o n the grounds they are not sufficiently pled. Plaintiff did not file an Opposition. Whether the Action is Barred by the Statute of Limitations? Page 18 of 33 Defendant contends that the gravamen of Plaintiff's action is for negligence despite the fact that he asserts causes of action for misrepresentation, breach of written contract, and breach of fiduciary duty. Defendant contends that Plaintiff “reframed” his ...

Excerpt: ...ral and con clusory allegations do not suffice; policy of liberal construction of the pleadings will not ordinarily be invoked. Murphy v. BDO Seidman, LLP (2003) 113 Cal. App. 4th 687. That specificity has not been achieved with the representations themselves. Fo r example, paragraphs 17 through 21 are incorporated into the first cause of action, but the allegations of paragraph 44 only serve to confuse those allegations. That paragraph states:...

Excerpt: ... declaration in accord ance with the Court's January 11, 2024 Minute Order. Said declaration provides that the parties met and conferred via telephone on February 7, 2024, per the Court's ruling, and that they were unable to come to an agreement as to any issue. (Declaration of Jason M. Fodrini, ¶¶ 5 -8.) First Cause of Action for Breach of Contract Defendant contends that the Complaint is brought on behalf of five plaintiffs living in three s...

Excerpt: ...favor and against the afor ementioned parties as to the five issues regarding Plaintiffs' causes of action for negligence, strict products liability, private nuisance, and trespass which are asserted against Craig. Notice Plaintiff, Citizens Insurance Company of America, (“Plaintiff” or “Citizens”) contends that that motion should be denied as Craig failed to provide proper 75 days' notice as required by Code of Civil Procedure section 4...

Excerpt: ... made the initial showi ng by: - Presenting evidence that Defendants CCR and Gleason observed corporate formalities such that imposition of alter ego liability is inappropriate. (SSUMF Nos. 1 -18.) - Presenting evidence that Plaintiff cannot establish the element of damages. (SSUM F Nos. 30-33.) - Presenting evidence that Plaintiff cannot establish the element of intent to disrupt, necessary to sustain his claim for Intentional Interference with ...

Excerpt: ... This action was initiated on 08/25/23, when Plaintiff file d the Complaint. The Complaint contains sixteen causes of action relating to her employment at Rubio's and her subsequent termination therefrom. The parties dispute whether a valid arbitration agreement exists between the parties and whether the Endin g Forced Arbitration Act of 2022 (“EFAA”) applies to the entire action. 1. Is There an Agreement to Arbitrate that Covers the Claims ...

Excerpt: ...nses dee med improper by the propounding party; e.g., objections, or evasive or incomplete answers. [Code Civ. Proc. § 2030.300.] Additionally, failing to respond to Form Interrogatories within the time limit waives most objections to the interrogatories, includin g Page 4 of 33 claims of privilege and “work product” protection. [Code Civ. Proc. § 2030.290(a).] In this instance, Plaintiff propounded Form Interrogatories to Connell Chevrolet...

Excerpt: ... (1989) 207 Cal. App. 3d 291, 299) “Motions to disqualify counsel present competing policy considerations. On the one hand, a court must not hesitate to disqualify an attorney when it is satisfactorily established that he or she wrongfully acquired an unfair advantage that undermines the integrity of the judicial process and will have a continuing effect on the proceedings before the court. [Citations.] On the other hand, it must be kept in min...

Excerpt: ...ng (“APS”) held on 07/24/23 before hearing officer G. Haros (“Haros”). Haros issued his decision following the APS on or about 08/04/23 (“Decision”). Petitioner lodged copies of all evidence (except for a video) produced at the hearing, the hearing transcript (“HT”), and the De cision with the court. The court first notes that Petitioner stipulated to issues of driving, lawful arrest, and advisement of what would happen if Petiti...

Excerpt: ...inst it on equitable grounds for extrinsic mistake. “Apart from any statute, courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake.” (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) In seeking relief, the moving party must: (1) “demonstrate that it has a meritorious case”; (2) “articulate a satisfactory excuse for not presenting a ...

Excerpt: ...inst the aforementio ned parties on three issues. Notice Plaintiff, Citizens Insurance Company of America, (“Plaintiff” or “Citizens”) contends that that motion should be denied as Craig failed to provide proper 75 days' notice as required by Code of Civil Procedure section 437c. 75-days' notice is required on a motion for summary judgment. (Code Civ. Proc. § 437c(a)(2).) Code Civil Procedure section 437c(a)(2) states, “Notice of the m...

Excerpt: ...ed to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complain...

Excerpt: ...n which t he attachment is based is one upon which an attachment may be issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. (Code Civ. Proc., § 484.090(a)(1) -(4).) If an action is against a defe...

Excerpt: ...without le ave to amend. Analysis A. Standard on Demurrer A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.  When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720 -21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or v ia ...

Excerpt: ...gations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no d efense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no...

Excerpt: ...udicial notice of three d irectives issued by CalSTRS (in 2019, 2022, and 2023) are denied. All three directives are directed at fiscal years after the time period at issue in the SAP (2017 -18 fiscal year) and do not appear relevant to the allegations in the SAP. (Bell v. Greg Ag ee Construction, Inc. (2004) 125 Cal.App.4th 453, 459, fn. 2.) District's unopposed request for the Court to take judicial notice of District's Board policy number 33...

Excerpt: ...ntic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc. § 437c, subd. (p)(1).) “Once the plaintiff ... has met that burden, the burden shifts to the defendant ... to show that a triable issue of one or more material facts exists as to that cause of action or a defen se thereto. The defendant ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall se...

Excerpt: ...- 77. The court is inclined to deny as to the remaining RFAs. Motion to Compel Further Responses to RFPs Code Civ. Proc. section 2031.310 provides, in relevant part, that “any party may obtain discovery” by “inspecting, copying, testing, or sampling documents, tangible t hings, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” Code Civ. Proc., § 2031.01...

Excerpt: ... to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.” (Code Civ. Proc., § 1985.3, subd. (g).) “Personal records” include “any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any ‘witness' which is a physician, …, hospita...

Excerpt: ...d in the Decl aration. Plaintiff presents no reason to believe that the applicable standard of care changed in this short time period. Plaintiff's objections to Exhibits 3- 5 are OVERRULED. “A party may move for summary judgment in an action or proceeding if it is conten ded that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c(a)(1).) In a medical malpractice action, when a defendant...

Excerpt: ...h the moving papers. [CRC 3.1320(c).] While the Court's ruling is not based on these defects, the Court reminds Defendants to comply with the CCP and CRC, moving forward. Notably, the fact that plaintiffs are in pro per does not afford them special treatment. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246- 1247.) Pro pers must also abide by the same procedural rules – e.g., the Code of Civil Procedure and the California Rules of Court. (See Ga...

Excerpt: ...s of fraud based on false promises and/or misrepresentations and concealment, respectively. “‘The elements of fraud that will give rise to a tort action for deceit are: '(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsi ty (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.' ” (Engalla v. Permanente Medical Group, Inc. ...

Excerpt: ...allegations relat ed to punitive damages and attorney fees. The demurrer is OVERRULED. First, the court finds that the allegations alleged in the First Amended Complaint are sufficient to plead a cause of action for elder abuse and neglect pursuant to Elder Adult and Depend ent Adult Civil Protection Act - Welfare and Institution Code §§ 15600, et seq. Plaintiff has alleged that Defendant was aware of Ms. Sperling' to provide the requisite ser...

Excerpt: ...TTORNEYS' FEES The successful defendant on an anti -SLAPP motion is entitled to recover its attorney fees and costs as a matter of right. (Code Civ. Proc., § 425.16, subd. (c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131, 104 Cal.Rptr.2d 377, 17 P.3d 735 [“any SLAPP d efendant who brings a successful motion to strike is entitled to mandatory attorney fees”].) Unless the results of the anti - SLAPP Motion were so insignificant that defenda...

Excerpt: ...arties.” (Pl easant Hill Bayshore Disposal, Inc. v. Chip -It Recycling, Inc. (2001) 91 Cal. App. 4th 678, 695.) The plaintiff has the burden of proof to show “upon a verified complaint, or upon affidavits” all elements necessary to support the issuance of a preliminary injunction. (Code Civ. Proc., § 527, (a); O'Connell v. Sup. Ct. (2006) 141 Cal.App.4th 1452, 1481.) Although an OSC re: Preliminary Injunction directs the responding party ...

Excerpt: ... any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) Simply put, “[i]f a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgmen...

Excerpt: ...applies where there is ‘a contract evidencing a transaction involving commerce.'” (Allied- Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277 [quoting 9 USC § 2] [emphasis in original].) Here, HMA moves to compel arbitration under a: (1) Owner's Handbook & Warranty Information (“Warranty”), and (2) Motor Vehicle Lease Agreement (“Lease”). Both the Warranty and the Lease provide that the agreement to arbitrate will be g...

Excerpt: ...sagrees. I nterrogatory No. 13.1 asks whether Defendant has conducted surveillance. Defendant responded “no.” Interrogatory No. 13.2 asks if a written report has been prepared on the surveillance. Defendant responded, “not applicable.” These responses are full respon ses. Accordingly, the court DENIES the motion as moot insofar as it seeks further responses. The motion is GRANTED as to sanctions. Sanctions of $1,260 are issued against Def...

Excerpt: ... set the M otion to Strike to b e heard on A pril 29, 2024. ( S ee ROA #59 .) The court also ordered that “[t]he Ex -Parte Application will stand as the moving papers” and “Plaintiff to serve the moving papers on all parties”. (Ibid.) Further, Civil Procedure Code section 1005 requires that all moving papers be served on all parties at least 16 court days before the hearing. (Code Civ. Proc., § 1005, subd. (d).) In addition, “[p]roof o...

Excerpt: ...e total length of both days of the deposition of Andy Phillips shall not be less than the total length of both days of the deposition of John Hynes, and the second day of the deposition of Andy Phillips shall be held in the same location as the first day of the de position. Defendant Capital Managers, LLC may ask questions at the second day of the deposition of Andy Phillipos on any subject matter allowed by the Evidence Code, the Civil Procedur...

Excerpt: ...he amount of $645 hours x $195 per hour in reasonable attorney's fees and $60 in motion filing fees) within 30 days of service of the notice of ruling. Defendant Gen Cord. moves to compel further responses to Form Interrogatories – General, Set One, Number 2.8 propound ed on Plaintiff Monica Castaneda. Standard to Compel Further Responses to Interrogatories The Civil Procedure Code instructs that: (a) Each answer in a response to interrogatori...

Excerpt: ...en of showing that a cause of a ction has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or crossdefendant has met that burden, the burden shifts to the plaintiff or cross -complainant to show that a triable issue of one or more material facts exists as to the cause of action or a...

Excerpt: ... (Code Civ. Proc., § 1281.2.) The Court shall grant the petition unless the petitioner waived the right to compel arbitration, or other grounds exist for rescission of the agreement. (Ibid.) Because the obligation to arbitrate arises from contract, the court may compel arbitration only if the dispute in question is one in which the parties have agreed to arbitrate. (Weeks v. Crow (1980) 113 Cal.App.3d 350, 352.) Because arbitration is a favored ...

Excerpt: ...pondent to ar bitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for rescission of the agreement. [¶] (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of...

Excerpt: ...�� the controversy. (Code C iv. Proc., § 1281.2.) The Court shall grant the petition unless the petitioner waived the right to compel arbitration or other grounds exist for rescission of the agreement. (Id.) “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp....

Excerpt: ...4) 226 Cal. App. 4th 2 31, 240; See also, 9 U.S.C.A. § 2; Civ. Proc. Code § 1281.4.) "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 (“Engalla”); Green Tr...

Excerpt: ...et forth spec ific facts showing good cause justifying the discovery sought by the inspection demand. To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise a...

Excerpt: ...rmation for individual independent service centers co -defendant/non -parties, but GM does have the duty to make an inquiry into any of its employees that may have information relating to the Vehicle and its repair history. (Civ. Proc. Code § 2030.220.) Merely stating “GM call center advisors with whom Plaintiff may have communicated” does not comply with the requirement to make a reasonable and god faith inquiry. Additionally, vague referen...

Excerpt: ... allowing the inspection. Thus, Plaintiff's objection on the grounds Defendant previously inspected the premises is overruled. Plaintiff's objection on the grounds the Demand seeks to inspect irrelevant portions of the premises is overruled. Discovery is permitted 11 where the information sought is itself admissible or is reasonably calculated to lead to the discovery of admissible evidence. Code of Civil Procedure, § 2017.010. Discovery is libe...

Excerpt: ...ts. A court ac quires personal jurisdiction over a nonresident defendant through either general or specific jurisdiction. The “defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are ‘substantial . . . continuous an d systematic.'” Vons Companies, Inc. v. Seabest Foods, Inc., 14 Cal. 4th 434, 445 (1996). To determine whether specific jurisdiction exists, courts consider the relations...

Excerpt: ...�), JOSHUA SCHUETTE (“Schu ette”), and KARA GRANT LAW (“KGL”), move the Court for an order pursuant to California Code of Civil Procedure §§ 473, et seq., to set aside and vacate the October 26, 2023 Defaults taken against Defendants Grant, Schuette, and KATHLEEN GERMANE (“Germane”) and the September 19, 2023 Default taken against KGL. Motions are GRANTED. Sanctions against Attorney Jacobson in the amount of $500 to be paid within t...

Excerpt: ...8/12/24. (See ROA 301). As an initial matter, a motion to strike cannot be used to challenge an entire cause of action for failure to state a claim. Motions to strike can be used to reach defects in or objections to pleadings that are not challengeable by demurrer. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 7:156.) A “motion to strike” for failure to state a cause of action (ground for general ...

Excerpt: ...e facts of defendan t's oppression, fraud, or malice. (CC § 3294(a).) “Malice” is defined as 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. (CC § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disreg...

Excerpt: ...er. While the petition was pending, the plaintiff also made a request for documents relating to the petition. The FAC asserts claims based on the failure to allow inspection of the documents requested in October and November 2021 as well as the request to review the recall petition on 8/17/22. (FAC at ¶¶15, 17.) HOA's Request for Judicial Notice The HOA's request for judicial notice is GRANTED as to Item Nos. 13. (Evid. Code §452(d)) The reque...