Excerpt: ...ehicle" alleges Defendant Delgado-Garcia was operating a motor vehicle owned by Defendant Coronado with her permission and Defendants Davis and The Car Store entrusted the motor vehicle, while the 2nd cause of action for negligence alleges Plaintiff was driving a car owned by Defendant Car Store with Defendant Davis' permission and Defendant Delgado- Garcia was driving a vehicle owned by Defendant Coronado. Defendant Davis argues the complaint fa...

Excerpt: ...ult on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is ... equitably responsible." ' [Citation.]" To qualify for declaratory relief, a party must show (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party. (Lee v. Silveira (2016) 6 Cal.App.5th 527, 545.) Summit Financial Holdings, Ltd. v. Continen...

Excerpt: ...lifornia, Case No. 8:23-cv-00103. (See Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800, 804 (Caiafa) ["when a federal action has been filed covering the same subject matter as is involved in a California action, the California court has the discretion but not the obligation to stay the state court action"; relevant considerations]; accord, Benitez v. Williams (2013) 219 Cal.App.4th 270, 276.) The hearing on this OSC...

Excerpt: ...t" against Ford, based on alleged defects in their vehicle, but asserts only economic losses. under the economic loss rule (the "ELR"), where a purchaser's expectations in a sale are frustrated because the product is not working properly, the remedy is in contract alone, for he has suffered only economic losses. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) Claims for monetary losses between contractual parties are bar...

Excerpt: ...aintiff's allegations lack the requisite specificity regarding Defendant's willful intent. "In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant." Civ. Code, S 3294(a). "'Malice' ...

Excerpt: ...l-established that where a pleading is belatedly filed, but at a time when a default has not yet been taken, the plaintiff has effectively granted the defendant additional time within which to plead and he is not strictly in default. (Reher v. Reed (1913) 166 Cal. 525, 528; Bank of Haywards v. Kenyon (1917) 32 Cal.App. 635, 636—537.) "(l)t is generally recognized that an untimely pleading is not a nullity, and it will serve to preclude the taki...

Excerpt: ...ng agents, employees, or agents who are most qualified to testify on its behalf as to the matters set forth in a notce of deposition, (2) produce the persons so designated for a designated for a deposition, and (3) produce the documents requested in Plaintiff's Notice of Deposition. Plaintiff's motion to compel further responses to form interrogatories was withdrawn. (ROA No. 232.) The motion is taken off calendar. MOTION TO COMPEL FURTHER RESPON...

Excerpt: ...ments produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond." (Code Civ. Proc., S 2031.280, subd. (a).) Plaintiff responded to the requests at issue with: "After diligent search and reasonable inquiry in an effort to comply with this request, Responding Party identifies and directs Propounding Party to the entire personnel file of Respondi...

Excerpt: ... provide discovery. (ld., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal. App. 4 th 1495, 1516.) Imposition of sanctions for the misuse of discovery lies within the trial court's discretion. (Doppesv. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (See Code Civ. Proc. SS 2030.290(c)...

Excerpt: ...struction zone, no warning signs were placed anv,'here on, near, or around the steel plates, such that the dangerous condition was not obvious to customers. Moreover, customers had to cross over the steel plates to enter and exit the store, and there were no reasonable alternative means to access the store. (Complaint, 1, 11.) As a result, Plaintiff suffered physical, mental, and emotional injuries. (Complaint, "1 2, 12.) Plaintiff filed her Comp...

Excerpt: ... CRC, Rule 3.1300(c). Furthermore, the opposition is 20 pages long with no table of contents or authorities. (See CRC, Rule 3.1113(d) ("no opening or responding memorandum may exceed 10 pages.") and (h) ("memorandum that exceeds 10 pages must include a table of contents and a table of authorities.").) CRC, Rule 3.1113(e) provides that a party may apply ex parte to file a memorandum that is longer than the proscribed limits. Plaintiff here did not...

Excerpt: ...that a defendant is liable for physical abuse or neglect, as they are defined in the Act, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. (Welf. & nst. Code S 15657.) To prove "neglect" within the meaning of the Act, a plaintiff must allege facts establishing that defendant: "(1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, ...

Excerpt: ...69 Cal.App.4th 1261, 1271, emphasis added.) A party wishing to repossess personal property by judicial action "can bring an action in replevin or proceed under the statutory successor to [common lawl replevin, an action of claim and delivery." (Simms v. NPCK Enterprises, Inc. (2003) 109 Cal.App.4th 233, 241.) As summarized by Simms: California has a detailed claim and delivery law. (Code Civ. Proc., S 511.010 et seq.) A party with a claim that he...

Excerpt: ...een a consumer and another person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement." (Civ. Code, S 1751, subd. (e).) Defendant asserts the allegation that "Plaintiff and Defendant transacted for the lease of the Subject Vehicle" (FAC, at '1 63), is directly contradicted by the earlier allegation that "Plaintiff leased a new 2022 Volkswagen ID 4... from N...

Excerpt: ...ish security in the amount of $100,000.00 within ten days in order to pursue her claims against Jocelyn Plummer in the crosscomplaint. The amount of security is based on the likely time and expense which would be expended by Jocelyn Plummer if she remains a party to the litigation. As discussed below, the litigation has been exceptionally contentious and has involved an extraordinary number of filings by both sides as well as an appeal. The Court...

Excerpt: ... its initial burden to show the action has no merit. (See Code Civ. Proc., S 437c, subds. (a), [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [samel.) Defendant has established that it did not manufacture, design, sell or distribute the bicycle component that allegedly caused harm to plaintiff, and did not provide any warranties regarding that component. (UMF 11-12). The burden then shifts to plaintiff to produce admis...

Excerpt: ...acobson") on the grounds his deposition would cause unwarranted annoyance, oppression, and undue burden on him and on the grounds the "apex deposition rule" applies to the taking of his deposition. Alternatively, if the Court finds quashing the deposition is unwarranted, then Defendant seeks an order restricting Plaintiff's deposition to a deposition taken by written questions and limited to no more than fifteen questions pursuant to Code of Civi...

Excerpt: ...ies outside the administrative agency s jurisdiction, when pursuit of an administrative remedy would result in irreparable harm, when the agency is incapable of granting an adequate remedy, and when resort to the administrative process would be futile"); see also Am. Pet. at pp. 8:28-9:28.) Second, "a demurrer must be overruled if the moving party has alleged facts entitling him to some form of relief." (Woods v. Superior Court (1981) 28 Cal.3d 6...

Excerpt: ...vered the alleged defects with the vehicle's transmission. (See Code Civ. Proc. S 338, subd. (d).) "[Wlhen the relevant facts are not clear such that the cause of achon might be, but is not necessarily, time-barred, the demurrer will be overruled." (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 420.) he FAC adequately alleges a basis for imposing a duty to disclose — defendant's sole knowledge of the transmission defect...

Excerpt: ...ecton 2923.5 Civil Code section 2923.5 precludes a trustee or mortgage servicer from recording a notice of default until 30 days after the loan servicer has made initial contact with the borrower to assess the borrower's financial situation and explore options for avoiding foreclosures, or has satisfied the due diligence requirements of the statute. (Civ. Code, S 2923.5, subd. (a)(l).) Due diligence requires sending a letter by first class mail, ...

Excerpt: ...he fourth cause of action for misappropriation of trade secrets. The court disagrees. The CUTSA by its terms does not displace a contract claim, even if it is based on the misappropriation of a trade secret. (Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 506.) Nor does the CUTSA displace noncontract claims that, although related to a trade secret misappropriation, are independent and based on facts distinct from the facts th...

Excerpt: ...n late 2013 or early 2014, "Torres verbally represented to Plaintiff Steve Valbuena that the construction of the pool at the project would cost $256,546 to build, and that this amount was the accurate market rate for the construction of a pool of its kind in the project area." However, plaintiffs further allege in 936, "On or around late 2013 or early 2014, while securing a loan for the construction ofthe project, Plaintiff Steve Valbuena was adv...

Excerpt: ...se of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages.... And the elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiffs 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, 820-821, citations omitted.) He...

Excerpt: ...The demurrer on the basis of uncertainty is overruled. Demurrers for uncertainty are disfavored. While not a model of clarity and rife with unnecessary evidentiary facts, the FAXC is not is so poorly drafted that Defendant cannot reasonably respond. (See Khoury v. Maly's of California Inc. (1993) 14 Cal.App.4th 612, 616.) The general demurrer to the first cause of action is sustained with leave to amend on the basis that it fails to state facts s...

Excerpt: ...ifornia fully releases PAGA claims. This court will not approve a direct release by plaintiff on behalf of the State of California, but will approve a change from "fully releases and discharges" to "shall be deemed to have fully released and discharged". Plaintiff has not submitted her attorneys' bills or a detailed hourly breakdown of her attorneys' hours to support the court's review of the attorneys' fees request. The summary chart in 939 of t...

Excerpt: ...presents evidence that it made a CCP S 998 offer for $70,000.00 plus $5,000.00 in attorney's fees and costs, which if not accepted, would require the Court to set reasonable fees and costs on 07/26/19. (Haddad Dec. '1 7, Exh. D.) The offer expired by its terms on 08/26/19. (ld.) Plaintiff failed to timely accept the 998 offer. (ld. '1 8.) In determining whether plaintiff obtained a more favorable judgment, the amount of the judgment includes atto...

Excerpt: ...he likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued." (Smith v. Adventist Health System/west (2010) 182 Cal.App.4th 729, 749.) ikelihood of Prevailing on the Merits Ahn has sufficiently shown a likelihood of prevailing on the ...

Excerpt: ... controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [9] (a) The right to compel arbitration has been waived by the petitioner; or [q] (b) Grounds exist for the rescission of the agreement... ." "When presented with a petition to compel arbit...

Excerpt: ...ined in full. Defendants' Reply Separate Statement is improper and therefore not considered by the court. (See Nazir v. United Airlines (2009) 178 Cal.App.4th 243, 252.) Defendants' requests for adjudication are technically improper pursuant to Code of Civil Procedure section 437c. The court views this motion as one for summary judgment. "The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach ...

Excerpt: ... S 654.6, subd. (a) provides: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of th...

Excerpt: ... by jury in an equitable action. The Complaint, the operative pleading, contains a single cause of action for partition of real property pursuant to Sections 872.210 and 872.230 of the Code of Civil Procedure. "Historically, there were separate law and equity courts." (Hoopes v. Dolan (2008) 168 Cal.App.4th 145, 155.) "The aw courts dealt with ordinary property rights, debts, and trespasses and adjudicated disputes by I-ve testimony before a lay ...

Excerpt: ...(a)(4), (c).) FEHA claims are one such exception. (See Williams v. Chino Valley Independent Fire Dist. (2015) 51 Cal.4th 97, 99—100.) "[A]n unsuccessful FEHA plaintiff should not be ordered to pay the defendant's fees or costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit." (Ibid.) The FEHA exception also applies "to any other cause of action that is intertwined a...

Excerpt: ...on for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage." (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305). The two main elements that all moving Defendants raise are standard of care and causation. Defen...

Excerpt: ... Inc. v. Michael A. Boyd Sr., case no. 22 CV005910 in the Franklin County of Ohio Court of Common Pleas: GRANTED to the extent that it was filed, DENIED as to the facts stated therein. Defendant's request judicial notice of an Affidavit, Order and Notce of Garnishment of Property Other than Personal Earning and Answer of Garnishee, received by the County of Cuyahoga on August 26, 2019: DENIED. Defendant Michael Boyd, Sr.'s motion to vacate a defa...

Excerpt: ... on violations allegedly suffered by other employees. Defendants now ask the court to stay such litigation. The court concludes that litigation of those claims should be stayed pending completion of the arbitration. Both the Federal Arbitration Act and California law provide for a stay of proceedings pending arbitration. 9 U.S.C. 53; CCP 51281.4. More importantly, plaintiff's "group" PAGA claims are based on the same labor law violations she asse...

Excerpt: ...ed fails to serve a timely response." (Code Civ. Proc., S 2030.290, subd. (b).) By failing to serve timely responses, Plaintiff waived "any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product." (Code Civ. Proc., S 2030.290, subd. (a).) A propounding party may move for an order compelling responses to a deman...

Excerpt: ...e "[i]f a party to whom interrogatories are directed fails to serve a timely response." (Code Civ. Proc., S 2030.290, subd. (bj.) ay failing to serve timely responses, Plaintiff waived "any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product." (Code Civ. Proc„ S 2030.290, subd. (a).) A propounding party ma...

Excerpt: ...intiffs seek the followng: • Issue sanctions, including (1) all allegations contained in in Paragraphs 1 through 44 of the Complaint are established as true and (2) Defendants are prohibited from supporting at trial any of their Affirmative Defenses Nos. 1 through 16. • Evidence sanctions, including (1) Defendants are prohibited from introducing into evidence at trial any evidence to deny or controvert the allegations of Paragraphs 1 through ...

Excerpt: ...treatments" (Compl., '1 33), • "negligently failed to warn Plaintiff' "of the dangerous effects of the laser hair removal procedure and that the procedure constituted a hazard to Plaintiff's health and safety" (Compl., 35) and • "failed to adequately train, educate, and supervise those persons operating under their supervision and control" (Compl., '1 36). The court finds that Defendants failed to meet their burden on summary judgment. First,...

Excerpt: ...exception of the word "duty," the defendant has not clearly stated precisely what cause of action, affirmative defense, or claim for damages it seeks to completely dispose of in the "issues" themselves as required by Code of Civil Procedure section 437c, subdivision (f)(l). Accordingly, the court declines to address the motion for summary adjudication of issues. As to the motion for summary judgment, there is only one cause of action pled in the ...

Excerpt: ...ecause the Cross-complaint does not attach the contract as an exhibit, set forth the material terms of the contract verbatim, or allege the legal effect of the contract. Responding Party does not dispute that a copy of the written contract that forms the basis of the first cause of action is not attached to the Cross-complaint, and the relevant terms are not set out verbatim. Instead, Respond-ng Party argues that the Cross-complaint sufficiently ...

Excerpt: ... Code of Civil Procedure section 430.41, subdivision (a) requires that prior to filing a demurrer, "the demurring party .... meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer ... ." Similarly, prior to filing a motion to strike, "the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike ... ." (Code Civ. P...

Excerpt: ...the original Complaint on the same grounds asserted here. The Court held that the Complaint failed to allege any alter ego theory of liability against Abboud and that the fifth and sixth causes of action failed because the allegations showed nothing more than the failure to perform a contractual obligation. (ROA 29.) Plaintiff was granted 20 days leave to amend and timely filed the FAC on August 30, 2023. (ROA 33.) Defendants now raise the same a...

Excerpt: ...audulent transfer and 5th cause of action for promissory estoppel/unjust enrichment are also MOOT, given the ruling on these defendants' motion to strike, discussed further below. Defendant Sheybani's demurrer to the 1st, 2nd, and 3rd causes of action are OVERRULED. The court takes judicial notice on its own motion of plaintiff's original complaint and attached exhibits. (Evid. Code, S 452, subd. (d) [court records].) 1st cause of action: breach ...

Excerpt: ...the suffciency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings...

Excerpt: ...s"], it is undisputed that the same dealer that sold the vehicle to Plaintiff also provided the warranty service at issue here. (UF 1, 6.) The evidence thus establishes that service facilities were available that were "reasonably close" to where the vehicle was sold. For COA 8 ["Failure to Make Service Literature and Parts Available"], it appears undisputed that the same dealer performed warranty work on Plaintiff's vehicle (UF 7; ROA 131 Ex. D) ...

Excerpt: ...ght to payment due or to become due, in rents, refunds, commissions, etc., from all entities and individuals, including but not limited to Belmont Asset Solutions, LLC ("Belmont"), and for an order restraining Defendant Yuri from encumbering, disposing etc. his rights to payment thereunder. "Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the ju...

Excerpt: ...835,000.00 after completion of the LTRMN/UMBRLA transaction, breach of the obligation to give notice of the closing of the LTRMN/UMBRLA transaction, and by disparaging plaintiff in violation of section 10 of the separation agreement. Defendants only provide evidence that the term of the separation agreement did not require them to make the $835,000.00 payment, and fail to address the other two breaches that may require them to pay damages, and th...

Excerpt: ...mate decision to deny the Moton does not necessarily rely upon any point or authority raised in Defendant's filing. Plaintiff will be afforded an opportunity to respond to any argument raised in the Opposition at the hearing on the Mohon. Plaintiff's Meet and Confer Efforts A moton to compel further responses to a Request for Production of Documents "shall be accompanied by a meet and confer declaration under Section 2016.040." (Cal. Code Civ. Pr...

Excerpt: ...iscovery has not been completed and cannot be completed on the newly added parties before the current trial date of 01/29/24. Plaintiff also contends that additional factors favor a contnuance including the following: the proximity of the current trial date; no prior requests for a contnuance made by any party; no reasonable alternative solution to ensure judicial economy; prejudice to Plaintiff if it is not allowed this continuance and an Page 8...

Excerpt: ...n over defendant); Pavlovich v. Superior Court (2002) 29 Cal. 4th 262, 273.) Validity of Service Plaintiff has failed to establish that substituted service to George Hong or HJC America, Inc. is effective as to Moving Party. Plaintiff's argument that service was made to Moving Party's 'general manager' in California is not well taken. It is possible for service upon a wholly owned subsidiary or a contractor of a foreign entity defendant could be ...

Excerpt: ...all not be awarded fees and costs unless the court finds the achon was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." Accordingly, the court must determine if the plaintiff's lawsuit was frivolous, unreasonable, or groundless. "Despite its discretionary language, however, the statute applies only if the plaintiffs lawsuit is deemed unreasonable, frivolous, meritless, or vex...

Excerpt: ...laintiff was clearly the prevailing party and is entitled to its costs of suit against Crew Salon, Inc. Novation is a defense here. Although defendants now wish to avoid that characterization, the testimony from the defendants was clear. Of course, if the defendants want to deny that a novation was properly alleged, then the judgment should be amended to state it is against the Gaglios in their individual capacity. The court reporter fees are cle...

Excerpt: ...ty trimmed to a height not to exceed that of the wall and the Court will retain jurisdiction to enforce the height limitations placed on Defendant's shrubs. As an initial matter, the Court notes Defendant's proof of service showing the notice and moving papers were served by email on Plaintiff Kevin Mueller ("Plaintiff") and Defendant's proof of service for Defendant's reply did not include the server's email address. (Code Civ. Proc., S 1013b, s...

Excerpt: ...iously complete construction. Plaintiff's request for judicial notice is granted as to Exs. A, B, Q, and R. Evid. Code S452(c), (h). The request is unnecessary as to the remaining exhibits. "The substantive issues inwlved in a contempt proceeding are (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience. (Weil & Brown, supra, pars. 9:337—9:340.)" Conn v. Superior Court (1987) ...

Excerpt: ...136 Cal.App.4th 1110, 1122.) under the FAA, the moving party on a motion to compel arbitration must demonstrate the existence of an arbitration agreement between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Management, LLC (9th Cir. 2016) 656 Fed.Appx. 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity or "the rights of parties to enforce an arbitration agreement...

Excerpt: ... only for the purpose of establishing that these documents were filed with the probate court, not for the truth of the matters asserted therein. The request is DENIED as to Exhibit 2 because Exhibit 2 appears to be an incomplete document. CCP S 356.2 and Cal. Prob. Code S 9000, et seq. Defendant argues that section 366.2 sets forth the statute of limitations on Plaintiff's claims. Plaintiff contends that Plaintiff's claims are timely, as Plaintif...

Excerpt: ...were submitted in connection with a discovery motion, namely, Plaintiff's motion to compel further responses to fts 8th and 11th sets of requests for production of documents. [ROA # 802] They were not submitted "as a basis for adjudication," which "embraces discovery materials submitted in support of and in opposition to substantive pretrial motions, regardless of the ground on which the trial court ultimately rules." (Overstock.com, Inc. v. Gold...

Excerpt: ...were served by Plaintiffs on June 12, 2023. (See Motion at 3:4-5; J. Young Decl. '1 8, Exh. Three [06/12/23 Notices of Depositionl.) On November 20, 2023, Plaintiffs propounded a new Notice of Taking Deposition on Defendants Hong Chen, Monica Yu Wang, Jing (Amy) Song, Wen Chen, and Elaine Huang. (J. Young Decl. 29, Exh. Seven [11/20/23 Notices of Depositionl.) Jennifer Young declares that Plaintiffs took out all the items that Defendants' counsel...

Excerpt: ...press or implied, of the parties...."].) Relevant here, If the district attorney or commissioner does not proceed with the action, and the person bringing the action conducts the action, the court may award to the defendant its reasonable attornevs fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the achon was clearly frivolous, clearly vexatious, or brought primarily for purposes...

Excerpt: ...implied or inferred from those expressly alleged in the complaint. [Citations.]" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. S 452.) Second Cause of Acton — Breach of Contract Plaintiff alleges ...

Excerpt: ...rected waives any right to exercise the option to produce writings under Secton 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Secton (b) The party propounding the interrogatories may move for an order compelling response to the interrogatories." Here, Plaintiff has shown that he propounded Special Interrogatories, Set Two on Defend...

Excerpt: ...ties should merely reference pleadings already filed in this matter by ROA number, rather than re-filing such documents as exhibits. Legal Standard Code of Civil Procedure section 527(a) states, "A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary...

Excerpt: ...and is irrelevant. The objection to Exhibit B is OVERRULED. Merits Defendant's first argument is that Plaintiff's Complaint fails to plead sufficient facts in support of her cause of action. As Plaintiff points out, this argument is not well-suited for a motion for summary judgment and should have been brought as a motion for judgment on the pleadings or a demurrer. Thus, the motion based on any insufficiency of the pleadings is DENIED. Defendant...

Excerpt: ...Upon examination, Defendant Vanek found that Plaintiff s teeth numbers 1, 16, 17, and 32, the teeth known as "3rd molars" or "wisdom teeth", each had periodontal pockets in the unhealthy range charted by Defendant Vanek during Ms. Fox's May 4 visit. (UMF No. 1, 3). Thereafter, on May 9, 2022, Defendant Sharobiem, apparently in the same office as Dr. Vanek, performed the surgical extracton of teeth numbers 1, 16, 17, and 32. (UME No. 7) The proble...

Excerpt: ...a The Ranch Scottish Highland Burgers, Rebecca Cupp, and Shad Cupp. The motion was filed on October 30, 2023 and served electronically on former defense counsel on October 26, 2023. A party may move for summary judgment in an action or proceeding if it is contended that the achon has no merit or that there is no defense to the action or proceeding. Code Civ. Proc. S 437c(a)(1). The motion may be made at any time after 50 days have elapsed since t...

Excerpt: ...ses compulsory cross-complaints, provides: "A party who fails to plead a cause of action, subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross- complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be ju...

Excerpt: ...ing party bears the burden of proving the existence of an applicable agreement. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 (CAA) ["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"]; See also Ashbey v. Archstone P...

Excerpt: ..., 2023, the court granted the motion to compel and ordered Mrs. Whitworth's depositon to go forward on July 18, 2023. (ROA 308, 301.) On July 18, 2023, Mrs. Whitworth appeared for her deposition, but after what appears to have been a deliberate attempt to obstruct the process, and three instances of instructing the witness not to answer, Ford opted to adjourn the deposition and file the subject motion. Code of Civil Procedure section 2025.460(e) ...

Excerpt: ...pel Further Responses to Special Interrogatories 9. Motion to Compel Further Responses to Special Interrogatories 10. Motion to Compel Further Responses to Special Interrogatories 11. Motion to Compel Further Responses to Special Interrogatories 12. Motion to Compel Further Responses to Special Interrogatories 13. Moton to Compel Further Responses to Special Interrogatories Defendants, Tam-Ky Pho-Do and Toa-Thanh Tay Ninh's (Defendants) Motions t...

Excerpt: ...1987.1 states, in part, "(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order q...

Excerpt: ..., it has never been registered to do business in California, nor ever had any offices in California, it has no employees in California, and it does not advertise in California. Plaintiffs' request for judicial notice as to Exhibit 1 is GRANTED. (Evid. Code, S 452(d).) As an initial matter, the parties dispute whether OHI's motion is timely. Plaintiffs contend the deadline to file was September 8. On July 26, 2023, counsel for Plaintiffs stated th...

Excerpt: ...Causes of Acton 1-5 are subject to a motion to strike as they are not drawn in conformity with the laws of the state of California, and are not proper or relevant. Plaintiffs first cause of action is for wrongful terminaton in violation of public policy, and it is undisputed that there is no requirement to exhaust administrative remedies before bringing a cause of action for wrongful discharge in violation of public policy. (Medix Ambulance Servi...

Excerpt: ...o show they were not reasonable or necessary. (Fairbank, et al., Cal Prac. Guide: Civ. Trials & Evid. (The Rutter Group 2023) 917:526, citing Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774-776; Bender v. County of Los Angeles (2013) 217 cal.App.4th 968, 989; and Jones v. Dumrichob (1998) 63 cal.App.4th 1258, 1266 [mere statements in memorandum of points and authorities and declaration of counsel insufficient to rebut prima f...

Excerpt: ...l Dr. Shoghian's Deposition This unopposed motion is GRANTED. The District served Dr. Shoghian with a deposition subpoena requiring her to appear for deposition and produce documents. The District attempted to coordinate dates with Dr. Shoghian, but she refused to provide dates or otherwise appear. She was served with copies of the moving papers and all other documents relating to this motion, but has not responded in any way or otherwise made an...

Excerpt: ...ge the time for answer or demurrer." Code of Civil Procedure S 473(a)(1). "The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code." Code Civ. Proc. S 473(a)(1). Additionally, any judge, at any time before or after commencement of trial, ...

Excerpt: ...Christian (1968) 69 cal.2d 108.) The duty to warn of or remove a dangerous condition of property created by a third party arises only when the landowner had actual or constructve knowledge, or by ordinary investigation should know, of the dangerous condition. (Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 806); see also Ortega v. Kmart Corp. (2001) 25 Cal.4th 1200, 1206 (Ortega).) California courts have also repeatedly held that landowners are ...

Excerpt: ...mmary judgment is directed to the issues framed by the pleadings. As such, the burden of a defendant moving for summary judgment only requires that the defendant negate a plaintiffs theories of liability as alleged in the complaint. Leyva v Garcia (2018) 20 Cal. App. 5th 1095, 1102. The defendant may meet the burden of showing that an essential element of the plaintiffs claim cannot be established by presenting evidence that the plaintiff "does n...

Excerpt: ... Conference to discuss the status of Kouyoumjian v. Reganyan and the stay in this action. Defendant Tina Reganyan's Request for Judicial Notice is GRANTED. (See Evid. Code, S 452, subd. (d).) Plaintiff John Doe's evidentiary objections to the Declaration of Defendant Tina Reganyan are OVERRULED as to evidentiary objection numbers 1 and 2, and SUSTAINED as to evidentiary objection numbers 3 and 4. Defendant Tina Reganyan (Defendant Reganyan) moves...

Excerpt: ...ing the demurrer in part with leave to amend, the Court deems the motion to strike MOOT. Statute of Limitatons In ruling on a general demurrer based on statute of limitations grounds, the running of the statute must appear "clearly and affirmative y" from the face of the complaint. It is not enough that the complaint might be time-barred. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Stueve Bros...

Excerpt: ... in the complaint are admitted for purposes of the motion, and the court determines whether those facts constitute a cause of action. The court also may consider matters subject to judicial notice"" (Harris v. Grimes (2002) 104 Cal.App.4th 180, 185.) The complaint alleges defendant violated the California Voting Rights Act by diluting the votes of Latino residents through unlawful at-large elections in November 2020 and 2022. (See Compl. "1 1, 3....

Excerpt: ...an anti-SLAPP motion to strike as follows. Section 425.16, subdivision requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance osf the [defendant]'s right of petition or fre...

Excerpt: ...staffng agency, entered into a Managed Services Agreement ("MSA") with PSG, a national temporary staffing agency. According to the MSA, World operated "as a marketing and client services agent of PSG for all temporary staffng business generated by the assignment of laborers from an Agency location." Pursuant to the MSA, World would perform certain activites for laborers working at Client Companies and PSG would perform other activities, including...

Excerpt: ...leged in the complaint. Leyva v Garcia (2018) 20 Cal. App. 5th 1095, 1102. The defendant may meet the burden of showing that an essential element of the plaintiffs claim cannot be established by presenting evidence that the plaintiff "does not possess and cannot reasonably obtain, needed evidence." Lona v Citibank, N.A. (2011) 202 Cal. App. 4th 89, 110. Only after a defendant meets that burden, does the burden shift to the plaintiff to produce ad...

Excerpt: ...y be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) It is not an abuse of discretion to sustain a demurrer without leave to amend if there is no reasonable possibility that the defect can be cured by amendment. (See Jenkins v. County of Orange (1989) 212 Cal.App.3d 278.) As a preliminary matter, Defend...

Excerpt: ...the hearing. As the hearing is 1/8/2024, the reply papers are late. Code of Civil Procedure 12c. Similarly, Santa Mix's Response (ROA 388) to plaintff's statement of undisputed facts was filed on 01/4/2024 at 10:43 AM. In addition to being late, the summary judgment statute does not provide for a Reply Separate Statement, nor are exhibits and evidence in support of reply papers generally allowed. Nazir v. United Airlines, Inc. (2009) 178 Cal. App...

Excerpt: ...s to Requests for Production Civil Procedure Code section 2031.210 requires that: The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to ...

Excerpt: ...onses without objections to Requests for Production, Form Interrogatories and Special Interrogatories, Sets One and to pay sanctions in the total amount of $1,800 to Defendant. Terminating Sanctions Defendant contends Plaintiff must be subject to terminating sanctions because she has "repeatedly and willfully abused the discovery process" by failing to respond to OCTA's discovery and failing to comply with the Court's 09-18-2023 order. 12 Disobey...

Excerpt: ...t is a misuse of the discovery process. Pursuant to section 2023.010(g), misuse of the discovery process includes the disobeying of a court order to respond to discovery. The failure to comply must be willful. R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. springer (1996) 43 cal.App.4th 1525, 1545; Biles v. Exxon Mobil corp. (2004) 124 cal.App.4th 1315, 1327. Here, on 01-30-2023, the Court ordered Defenda...

Excerpt: ...ourt will exercise its discretion to consider the opposition, but admonishes Plaintiff to abide by court rules for all future filings. Plaintiff does not dispute the Federal Arbitration Act (FAA, 9 U.S.C. S 1, et seq.) applies here. Under the FAA, the moving party on a motion to compel arbitration must demonstrate the existence of an arbitration agreement between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Managemen...

Excerpt: ...e petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party "to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute." (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molinari (2005) 132 Cal.App.4t...

Excerpt: ...verified response within 15 days; Request #8: Defendant responded that no such document exists; This is sufficient response; Deny; Request #12, 17-19, 22, and 26: Request is impermissibly overbroad; Deny; Request #31: Plaintiff did not show good caused for this request; Deny; Request #32: Plaintiff showed good cause for this request; Defendant did not justify its objections to this request; Grant; Defendant to serve a supplemental verified respon...

Excerpt: ...), Set Two, filed by Mr. Gorla. 80th motons are GRANTED IN PART as discussed below. Motion 1 Pursuant to Code Civ. Proc. S 2025.290(a), the court shall allow additional time for deposition, beyond the seven-hour limit imposed by this section, "if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination." The Court finds Cross-Defendants have shown good cause for a furthe...

Excerpt: ... of $209,000 was reached at a mediation on 11/11/22. Although Medina had been invited to attend and had recently filed her answer, Medina opted to not participate in the mediation. (Dorr Decl. 912) The settlement agreement is attached to Dorr's declaration and states that it is "expressly conditioned on court approval of Petitions for Minor's Compromise." (Exh. 1, 913) Section 877.6 allows a settling defendant or cross-defendant to obtain a deter...

Excerpt: ...proper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Furthermore, "[tlhe grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (Code Civ. Proc. S 437, subd. (a).) Plaintiff's Punitive Damages Allegations and P...

Excerpt: ...-2022. California Rules of Court, rule 3.1700(b)(1).) The Court finds this motion to be timely based on Defendant Elizabeth Torres' refiling of the Memorandum of Costs on 05-03-2023. CCP S 998 Reasonableness: Plaintiff contends Defendant's 998 offer was not reasonable because it was made only two months after Defendant answered the Complaint and before any discovery had commenced. "It is the general rule that where a party shows a prima facie ent...

Excerpt: ...otice of ruling. Plaintiff Anthony J. Ortiz's Motion to Compel Further Responses and Responses Under Oath [Form Interrogatories] is GRANTED in part and DENIED in part. Defendant General Motors LLC is ORDERED to serve full, complete, and verified responses and Plaintiff Anthony J. Ortiz's Special Interrogatories, Set One, Numbers 1-6, 23-24, 30-31, 33, and 36 within 30 days of the notice of ruling. Plaintiff Anthony J. Ortiz moves to compel Defend...

Excerpt: ... CareRx, LLC's Form Interrogatories — General, Set One on or before January 19, 2024. Defendant VNA of Greater LA is ORDERED to serve full, complete, and verified responses to Plaintiff CareRx, LLC's to Plaintiff CareRx, LLC's Form Interrogatories — General, Set One on or before January 19, 2024. Defendant VNA of Orange County LLC is ORDERED to serve full, complete, and verified responses to Plaintiff CareRx, LLC's to Plaintiff CareRx, LLC's ...

Excerpt: ...nst plaintiff Yneges based on a rejected Civ. Proc. Code S 998 offer Defendant served on Yneges on 08/19/21. This is the only 998 offer presented into evidence on this motion. Civ. Proc. Code S 998 in relevant part states: "(c)(l) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from t...

Excerpt: ...ions will not lie where the action may be, but is not necessarily, barred. In order for the bar to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. (Geneva Towers Ltd. Partnership v. City and County of San Francisco (2009) 29 Cal 4 th 769, 781... )" Committee for Green Foothills v. Santa Clara Board of Supervisors (2010) 4...