Excerpt: ...f a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: [¶] (a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by inte...

Excerpt: ...o of those facts that may be 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.) 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....

Excerpt: ...tive economic advantage; SUSTAINED, without leave to amend, as to the 6 th COA for economic duress, as follows. Plaintiff's Standing to Sue Derivatively on behalf of CHARTWELL, Plaintiff's Standing to Sue Directly, Whether Plaintiff's claims are derivative Claims, and Whether Plaintiff is an “Adequate” Representative to Assert Derivative Claims. MADISON demurs on the grounds that Plaintiff lacks standing to sue derivatively on behalf of CHART...

Excerpt: ...�� (City of Atascadero v. Merrill Lynch, 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 l...

Excerpt: ... of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits. [¶] (c) The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following: [¶] (1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter...

Excerpt: ...f Trust recorded on 2/3/21 as document no. 2021000076841 in the Orange County Recorder's Office, is granted. (Evid. Code §§ 452(c), (h), 453.) By the Complaint, Plaintiff alleges that “each defendant,” including MERS, “claims some right, title, or interest in or to the building parcel, each of which claim is junior and inferior to plaintiff's claim.” (Compl. at ¶ 12.) MERS moves for judgment on the pleadings as to the sole cause of act...

Excerpt: ...5th 989, 996.) The Court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court assumes “the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Id.) “A demurrer must dispose of an entire cause of action to be sustained.” (Fremont I...

Excerpt: ...ge whether the vehicle failed to conform with the express warranty or the implied warranty or which warranty term was breached. Statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) The first cause of action is for violation of Civ. Code § 1793.2(d), which requires a manufacturer to “service or repair the Vehicle to conform to the applicable express warranties after a...

Excerpt: ...and SUSTAINED in part without leave to amend. (Code Civ. Proc., 430.10.) First Cause of Action (Breach of Contract). The demurrer to the First Cause of Action is overruled. The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff's performance or excuse for nonperformance; (iii) Defendant's breach; and (iv) damage to plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal....

Excerpt: ...essary to support issuance of a preliminary injunction.” (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) “'In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defe...

Excerpt: ...of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of ...

Excerpt: ...with California Rules of Court, rule 3.1110(f)(4). The failure to comply with rule 3.110(f) (4) caused an unnecessary amount of time to be spent to locate exhibits attached to the declaration, approximately 249 pages. Counsel is admonished to comply fully with the requirement of the California Rules of Court. Failure to comply may result in an OSC re sanctions and/or continuance of the motion. The Court also notes that Defendant's Reply brief exc...

Excerpt: ...the party's option to produce writings. ¶ (3) An objection to the particular interrogatory.” If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221; Fairmont Ins. Co. v. Sup.Ct. (2000) 22 Cal.4th 245, 255.) “Unless otherwise limited by order of the court … any party may obtain discovery regardin...

Excerpt: ...subject to the mandatory dismissal statute, Civil Procedure Code (“CCP”) 583.320, for failure to bring the action to trial within three years of the 10/22/18 mistrial. Defendant argues that none of the tolling exceptions in CCP 583.340 apply to this case and that CCP 583.360 mandates dismissal. Alternatively, Defendants request the Court to dismiss the action for failure to prosecute. This argument is supported by the facts that occurred afte...

Excerpt: ...h is intended to cause injury or despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. Similarly, Civil Code §3294(c) defines “oppression” as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. The court in Lackner v. North (2006) 135 Cal.App.4th 1188 offered further guidance and explained “despicable conduct” is conduct t...

Excerpt: ...weighs the foreseeable harm or hardship to the plaintiff if the relief is granted. (Code Civ. Proc. §§ 526, 527; O'Connell v. Superior Court (2006), 141 Cal.App.4th 1452, 1481.) Plaintiffs contend they are entitled to a preliminary injunction because they are likely to prevail on their claim for undue influence upon elderly person. “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overc...

Excerpt: ... Code of Civil Procedure section 425.16 permits a special motion to strike Strategic Litigation Against Public Participation (“SLAPP”) lawsuits. A SLAPP suit is “a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights.” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 208.) The purpose of the anti- SLAPP law is “not [to] insulate defendants from any liability for claims ar...

Excerpt: ... another case. (See, e.g., Mot., at pp. 23- 24 [referring to expert fees, postage and telephone charges], and 26-27 [referring to District No. 40 and “costs incurred after Judgment was entered on December 28, 2015”].) The court once again reminds Plaintiff that litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. (Rappleyea v. Campbell (1994) 8 C...

Excerpt: ...s as follows:  $178,771.88 for exhibits, trial tech and graphic support – Category 11, and  $65,125 in costs for discovery referee fees (Category 16). ROA 8176, Reply, p. 2. The Court concludes there is no basis for staying a determination of costs pending the appeal in this matter. (See Code Civ. Proc. § 916(a); Korchemny v. Piterman (2021) 68 Cal.App.5 th 1032, 1052 [“filing a notice of appeal does not stay any proceedings to determi...

Excerpt: ...Plaintiff Felicia Hernandez filed this PAGA-only case against Defendant, seeking to recover civil penalties for a number of Labor Code violations allegedly committed against Defendant's non-exempt employees. Defendant contends Plaintiff signed an arbitration agreement when she began her employment. (Plaintiff disputes whether she signed the purported agreement. For purposes of the present motion only, the Court assumes, without deciding, that she...

Excerpt: ...t Corp. moves to compel individual arbitration of Plaintiff Tanisha Robinson's claims, dismiss her class claims, and stay or dismiss this case. Defendant Ingram Micro Inc. has filed a joinder arguing that although it is a non-party to the arbitration agreement at issue, it may nonetheless compel individual arbitration of Plaintiff's claims. For the reasons set forth below, the motion is GRANTED. Plaintiff's claims against Volt and Ingram are orde...

Excerpt: ...t deposition. The motion must be accompanied by either a meet and confer declaration stating “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” or “a declaration stating that the moving party contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).) Defendant has been trying to take Plaintiff's deposition since August 2021. The...

Excerpt: ...ment 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; see also Green Tree Financial Corp.-Alabama v. Randolph (2000) 531 U.S. 79, 91-92). Defendant has met its initial burden on the motion. Defendant's Director of Information Systems, Technical & Operatio...

Excerpt: ...ioner 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; see also Green Tree Financial Corp.-Alabama v. Randolph (2000) 531 U.S. 79, 91-92). Defendant has met its initial burden on t...

Excerpt: ...c facts showing good cause justifying the discovery sought by the demand.” (CCP §2031.310(b)(1)). “[A]bsent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98). Once the moving party shows good cause to justify discovery of the requested materials, the burden...