Excerpt: ...Settled Case hearing, Plaintiffs' counsel stated that attorney fees still needed to be resolved. The Court continued the OSC to 9/30/21, noting the 9/4/21 dismissal date. The Court ordered Plaintiff to give notice. On 9/30/21, no dismissal having been filed, the Court ordered the entire action dismissed without prejudice and ordered the Clerk to give notice. No parties had appeared. Then on 11/4/21, Plaintiffs filed the subject Motions to Set Asi...

Excerpt: ...equests that the Court “immediately issue an alternative writ, order to show cause, and temporary stay preventing Respondents from voting to extend or maintain the Emergencies, pending issuance of a peremptory writ prayed for in paragraphs 2 and 4.” (ROA, Verified Petition, Prayer for Relief, ¶ 6.) A proceeding for a writ of mandate is initiated by filing a verified petition of the party beneficially interest, and the writ must be issued in ...

Excerpt: ...ciently alleges damage to Plaintiffs. The Complaint alleges Plaintiffs were required to file a Motion to Disqualify, based on Defendant's refusal to withdraw from the representation of an adverse party. (¶32 of Complaint). This refusal to withdraw is alleged to be a basis for the First Cause of Action and Defendant does not challenge the same. (¶48(f) of Complaint). The fees and costs incurred for the referenced Motion to Disqualify are properl...

Excerpt: ...notice has been taken.” (Id.) “A demurrer must dispose of an entire cause of action to be sustained.” (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 119.) “As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be,” unless the “complaint contains allegations of fact inconsistent with attached documents, or allegations contr...

Excerpt: ...action and dismiss the third amended complaint with prejudice.” Defendants ask the court to deem this a motion in limine, or common law motion for judgment on the pleadings, as the court deems appropriate and proper. Defendants assert that the Court should exclude all evidence and argument which contradicts Plaintiff Vertical Media Group, Inc.'s binding admissions that show it lacks standing to sue: (a) the property management agreement referen...

Excerpt: ...n 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 Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 119.) “As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be,” unless the “complaint contains alleg...

Excerpt: ...4.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” Code Civ. Proc. § 577 states: “A judgment is the final determination of the rights of the parties...

Excerpt: ...e of action on behalf of Ball Road Industrial Park (“Ball Road”) in the same lawsuit in which Plaintiff brings five other, direct claims in his personal capacity as partner of Ball Road. The Court did not previously rule on this issue. Bryan Industrial cites several cases in support of its demurrer. In Shenberg v. De Garmo (1943) 61 Cal.App.2d 326, the Court stated: “An action of a personal nature resulting in injury to the plaintiff indivi...

Excerpt: ...n new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” New York Times Co. v. Superior ...

Excerpt: ...hat the cause of action has no 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 o...

Excerpt: ...party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid.Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgmen...

Excerpt: ...on said motion took place on February 4, 2021; that the Court stated at the hearing that the order compelling arbitration pertained to Stueve Bros. Farms and Millcreek, and that no specific arbitrator was to be assigned to arbitrate the dispute between Plaintiffs, Stueve Bros. Farms and Millcreek outside the customary random assignment procedures of JAMS; that the Court's order compelling arbitration does not so state; that Plaintiffs have attemp...

Excerpt: ... the action or proceeding until an arbitration is had in accordance with the order to arbitrate[.]”) STANDARD OF LAW “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a 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 con...

Excerpt: ...ation of the controversy if: (a) the right to compel arbitration has been waived by the petitioner; (b) grounds exist for the revocation 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 related transactions and there is a possibility of conflicting rulings on a common issue of law or fact; or (d) for certa...

Excerpt: ...against Sevilla for breach of contract of the duty to defend and indemnify Antis in this litigation. “[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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850) A plaintiff or cross-complainant meets his burden of showing there is no defense to a cause of action if ...

Excerpt: ...Khechoom Decl. ¶ 2, Ex. A.) The Residential Listing Agreement contains the following provisions: 15. ATTORNEY FEES: In any action, proceeding or arbitration between Seller and Broker to enforce the compensation provisions of this Agreement, the prevailing Seller or Broker shall be entitled to reasonable attorney fees and costs from the non-prevailing Seller or Broker, except as provided in paragraph 19A. 19. DISPUTE RESOLUTION: A. MEDIATION: Sel...

Excerpt: ...a Rule of Court 3.1320 requires: “[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint . . . or to specified causes of action or defenses.” (Cal. R. Ct., Rule 3.1320). “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint . . . are taken. Unless it does so, it may be disregarded.” (Code Civ. Proc. § 430.60.) In this case, the court...

Excerpt: ... (See Cal. Rule Ct., Rule 3.1300 [stating “[n]o paper may be rejected for filing on the ground that it was untimely submitted for filing” and “[i]f the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”] “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accep...

Excerpt: ...sons, the motion to compel Defendants to provide supplemental responses without objections to the Special Interrogatories (the “Motion”) is GRANTED IN PART and DENIED IN PART. Discovery, Generally In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with t...

Excerpt: ...ty is entitled as a matter of right to recover certain costs. (Civ. Proc. Code § 1032(b).) If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist...

Excerpt: ... 12-28-21 under ROA No. 255: People v. Smith (2009) 179 Cal.App.4 th 986, 1001, states, “Evidence Code sections 1410 through 1421 list various methods of authentication of documents—e.g., by the testimony of a subscribing witness or a handwriting expert—but these methods are not exclusive. (Evid. Code, § 1410; People v. Olguin (1994) 31 Cal.App.4th 1355, 1372, 37 Cal.Rptr.2d 596.) ‘California courts have never considered the list set for...

Excerpt: ...nce filed on 2-17-22 under ROA No. 135: The court DECLINES to rule on these objections as they are immaterial to the court's decision. (Code Civil Proc., § 437c, subd. (q).) Plaintiff's Opposition to Defendant County of Orange's Motion for Summary Judgment (Opposition), filed on 2-8-22 under ROA No. 117, makes a request for judicial notice. (Oppostion; pg. 8 at footnote 1.) The court DENIES this request for judicial notice because it does not co...

Excerpt: ...e court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Sanchez v. Superior Court (1988) 203 Cal.App. 3d 1391, 1396 (Sanchez), states, “There are two types of consolidation: a complete consolidation resulting in a single action, and a consolidation of s...

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.” P e r e z v . G o l d e n E m p i r e T r a nsportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provide...

Excerpt: ... 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.4 th 1228, 1238, provides, “This rule of liberal con...