Excerpt: ...intiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of ma...

Excerpt: ...ch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “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.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the re...

Excerpt: ...e answer to a complaint shall contain: [¶] (1) The general or specific denial of the material allegations of the complaint controverted by the defendant. [¶] (2) A statement of any new matter constituting a defense.” Code of Civil Procedure section 430.20, provides, ““A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: [¶] (a) Th...

Excerpt: ...er of RFAS (an additional 132 RFAS bringing the total to 257) was warranted under CCP §2033.040 to establish liability and damages and that the number of SROGS was warranted (an additional 102 SROGS bringing the total number to 371) “because of the complexity of the existing and potential issues of the particular case”. No party may propound more than thirty-five (35) RFAs that do not relate to genuineness of documents. (CCP §2033.030(a).) ...

Excerpt: ...face European Master Distributor Agreement” as the written contract at issue, and attaches it as Exhibit D. It identifies the parties to the agreement, reflects signatures, and states the agreement terms. Performance is also alleged, as is breach, in failing to promote and market RPs' product and in failing to order at least 100 “big brake kits,” and damages for costs incurred for manufacturing the brakes (see ¶¶ 57- 59, 62-66, 73.) Wheth...

Excerpt: ...enged and the grounds, therefore. (California Rules of Court, Rule 3.1320 (a), (c) and Code Civ. Proc. § 430.60.) Here, the demurrer is defective because no separate Demurrer was filed. However, since Plaintiff did not object on this ground, the Court will rule on the merits. Fourth cause of action for fraud and fifth cause of action for Negligent Misrepresentation: The elements of fraud that give rise to a tort action for deceit are: (a) misrep...

Excerpt: ...2030.290(a).) Motion for Judgment on the Pleadings 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. Except as provided by CCP § 438, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (citing text); Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227; Templo v. State of Calif. (201...

Excerpt: ... unauthorized writ of attachment. “An attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.” § CCP 483.010. Here, the complaint asserts a tort claim within unknown damages. Furthermo...

Excerpt: ...aint by plaintiff Colleen Windsor (“plaintiff”) is SUSTAINED WITH 30 DAYS LEAVE TO AMEND. Individual defendants demur to the third cause of action for hostile work environment (Gov. Code §§12923 & 12940(j)) pled in plaintiff's complaint. A demurrer tests the legal sufficiency of the pleading, accepting as true the material facts properly pleaded, but not assuming the truth of contentions, deductions or conclusions of fact or law. (Brown v. ...

Excerpt: ...fendants' evidentiary objections are all overruled. Summary Adjudication Plaintiffs move for summary adjudication in their favor and against Doe 1 on the first four causes of action pled in their complaint which are respectively for: (1) sexual assault, (2) sexual battery, (3) Gender Violence and (4) sexual harassment. Plaintiffs move for summary adjudication against Doe 2 on the fourth cause of action only. Standards A plaintiff moving for summa...

Excerpt: ...nts out Defendants' documents in opposition were filed one day late. However, the Court will exercise its discretion to consider the opposition documents. “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of per...

Excerpt: ...” (Id.) "Under the primary assumption of risk doctrine, a person does not owe a duty to protect others from risks inherent in certain recreational activities.” Id., citing Knight v. Jewett (1992) 3 Cal.4 th 296, 315-317. “Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the ...

Excerpt: ... itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.” (Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1169) (emphasis in original.) Here, Plaintiff does not dispute that she signed the “Self-Service Storage Rental Agreement” (“the Agreement”) which contains the arbitration provision at issue. Rather, she contends that because the Agreement was signed...

Excerpt: ...the matters on which examination is requested, and the deponent must designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent. (Code Civ. Proc. § 2025.230.) Code of Civil Procedure Section 2025.480 provides, in part: “(a) If a deponent fails to ...

Excerpt: ... used by Defendant's technicians. This would include, for example, repairs for things such as flat tires, broken tail lights, or windows that won't go up/down, none of which are related to the specific issues which Plaintiff sought to be repaired on his Vehicle. The definition of “TRANSMISSION DEFECT” also contains “include, but not limited to,” which explicitly does not limit the defects as to those allegedly suffered by the Vehicle. Pla...

Excerpt: ... 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 at trial). (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117; Weil & Brown, Cal. Practice Guide: Civil Procedure Before T...

Excerpt: ...the FAA. Rather, the arbitration provision expressly provides: “This Agreement to arbitrate shall be specifically enforceable under the prevailing California arbitration law.” (Levy Decl., Exh. A, at pp. 31- 32.) Accordingly, the California Arbitration Act applies. (Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 387-393; Mastick v. TD Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, 1265.) In any event, California and fede...

Excerpt: ...efendant The Ballot Box, Inc. filed an opposition to Plaintiffs' motion. Because Plaintiffs' motion seeks relief only against the Association, not Ballot Box, Ballot Box lacks standing to oppose the relief sought. The Court therefore has not considered Ballot Box's opposition, only the Association's. The Association has filed evidentiary objections to the declarations of Robert C. Pack and Boyd L. Hill. Objections 11 and 12 to the Pack Declaratio...

Excerpt: ...tion 5500) of Division 3 of the Business and Professions Code, or of a person holding a valid registration as a professional engineer issued pursuant to Chapter 7 (commencing with Section 6700) of Division 3 of the Business and Professions Code, or a person holding a valid land surveyor's license issued pursuant to Chapter 15 (commencing with Section 8700) of Division 3 of the Business and Professions Code.” CCP § 435.11(h) provides that if th...

Excerpt: ...ned by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Furthermore, an award of attorney fees is a term of the parties' settlement agreement. To recover attorney's fees, a prevailing party bears the burden of demonstrating that the fees were: (1) allowable; (2) reasonably necessary to the conduct of the litigation; and (3) reasonable in amount. (Doppes v. Bentley Motor...

Excerpt: ...f's TAC is overruled. Sham Pleading Bommarito argues that the allegations of the TAC still contradict what was previously alleged in the Complaint and are sham pleadings that the Court should disregard. (Bommarito Dem., at pp. 10-12.) The “sham pleading” doctrine provides that a party will be bound by a prior, unfavorable allegation absent a satisfactory explanation for the change. (See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751; State ex....

Excerpt: ...cial notice is GRANTED. I. Factual Background At the demurrer stage, a court must “take as true all properly pleaded material facts.” (Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 395.) But there are two exceptions to this rule applicable here. First, ESE argues the sham pleading doctrine applies to discrepancies between the prior 1AC and the operative 2AC. “The allegations in a plaintiff's complaint constitute judicial admissio...

Excerpt: ...or State Farm Mutual Automobile Insurance Company (“State Farm”) applies for an order determining the proper allocation of the proceeds of its settlement with Defendants Sonny Rubin, M.D., et al. (“Rubin”), as required by Ins. Code § 1871.7. Per the Fawaz Decl. (ROA 133) and exhibits thereto, neither the Orange County District Attorney's office nor the Insurance Commissioner object to the settlement or the proposed allocation. The applic...

Excerpt: ...btain a dismissal of claims in the middle of litigation. . . .'” (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645.) “Because the anti-SLAPP statute is designed to resolve these lawsuits early, but not to permit the abuse that delayed motions to strike might entail . . . a defendant must move to strike a cause of action within 60 days of service of the earliest complaint that contains that cause of act...

Excerpt: ... unobjectionable under our jurisprudence.' [Citation.] 'Nevertheless, a court may decide in its discretion to stay civil proceedings ...' when the interests of justice seem[ ] to require such action.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885). “The decision whether to stay civil proceedings in the face of a parallel criminal proceeding should be made 'in light of the particular circumstances and competing interests invol...