Excerpt: ...] (b) The application shall be executed under oath and shall include all of the following: [¶] (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. [¶] (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came i...

Excerpt: ...Privacy; Plaintiff alleges the following: he was riding a motorized skateboard in the City when he was stopped by Officer Ecsedy and cited for riding the skateboard in the area. After, Plaintiff walked to an area with a crowd of about 300 people on the block in their 20s and 30s. City Police officers arrived at the area. Officers Ecsedy and Vidana told Plaintiff to leave the city. He stated he would not leave without his friend. He called his fri...

Excerpt: ...). (ROA 151, 333.) The First Cause of Action for Breach of Contract was the sole cause of action containing Sealegs in the SAC. (ROA 151.) After taking the matter under submission, on November 19, 2021, the court SUSTAINED WITHOUT LEAVE TO AMEND the First Cause of Action for Breach of Contract in the SAC as to SeaLegs. (ROA 334.) On December 7, 2021, Plaintiff filed the TAC, that included SeaLegs in the First Cause of Action for Breach of Contrac...

Excerpt: ...leading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc. § 436.) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc. § 431.10(b).) A motion to strike can also strike ...

Excerpt: ... evidence. (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1131.) However, this burden shifts when a properly executed proof of service has been filed. Filing a proof of service that complies with the applicable statutory standards creates a rebuttable presumption that service was proper. (Floveyor Int'l, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795; American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4...

Excerpt: ...4.35 against Plaintiffs for the costs incurred when Z-WANG failed to appear for his noticed depositions and for the attorney fees incurred in filing this Motion. LOAN OAK seeks terminating sanctions pursuant, inter alia, to Code of Civil Procedure Sections 2023.010, 2023.030, and 2025.450. C.C.P. section 2023.010(g) defines the misuse of discovery process to include “[d]isobeying a court order to provide discovery.” C.C.P. section 2023.030(a)...

Excerpt: ... Code § 452(d), (h); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.) The complaint names Defendant in the following causes of action: (1) The First Cause of Action for Setting Aside Trustee Sale; (2) The Second Cause of Action for Cancellation of Deed; and (3) The Fourth Cause of Action for Breach of Agreement. (ROA 2.) Requests for Judicial Notice Defendant requests the court to take judicial notice of the following: 1. Dee...

Excerpt: ...'s late-filed opposition. (Cal. Rules Ct., Rule 3.1300(d); Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614 [overruled on other grounds in Colmenares v. Braemar Country Club, Inc. (1999) 29 Cal.4th 1019].) Here, Plaintiff filed and electronically served its opposition eight court days before the hearing. Defendant, however, filed a Reply substantively addressing each issue raised in the Opposition, waiving any objection based on timeliness. “A...

Excerpt: ...ef can be granted; 2. Plaintiffs Second Cause of Action for Premises Liability, Count Three Dangerous Condition of Public Property, fails to state a cause of action for which relief can be granted.” (ROA 22.) The Complaint alleges two causes of action: (1) Cause of Action One alleges General Negligence (ROA 22 at p. 4); (2) Cause of Action Two alleges Premises Liability under Negligence, Willful Failure to Warn (Civil Code section 846), and Dan...

Excerpt: ...ment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. (CRC, Rule 3.1324(b).) While the Supplemental Declarations of Cody James Shaver (“Supp. Shaver Decl.”) and Jason J. Fratts (“Supp. Fratts Decl.”) sets forth the effect of the amendment for the second cause of action for breach of fiduciary duty and why the amendmen...

Excerpt: ...aint. [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. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, provide...

Excerpt: ...ro 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 construction...

Excerpt: ...f 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 co...

Excerpt: ...int. [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. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, provides...

Excerpt: ...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 material fact exists as to the cause of action or a defense th...

Excerpt: ...016.040. [¶] (b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: . . . .” Code of Civil Procedure lists 16 orders that a court can include in a protective order. (...

Excerpt: ...ns to the SUF in the motion, other than a few background facts with respect to each issue. However, if the separate statement sets forth each fact and supporting evidence, the motion complies with the Rules of Court and Code of Civil Procedure section 437c. Defendants also argue that plaintiffs refer to the standard for summary judgment as opposed to summary adjudication. Despite the incorrect reference, it does not affect the court's analysis. M...

Excerpt: ...thorized method of discovery. . . [¶] (g) Disobeying a court order to provide discovery.” Section 2023.030 provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery ...

Excerpt: ...e section 1030(a), “[w]hen the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding.” “The motion shall be made on the grounds that the plaintiff resides out of the ...

Excerpt: ...n or filed in conformity with the laws of this state, a court rule, or an order of the court.” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurr...

Excerpt: ... part: “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the Court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” This section is to be construed ...

Excerpt: ...otice of Errata” filed by Cross-Complainant (ROA #290) and orders Cross-Complainant to cure the error by filing a Corrected Third Amended Cross-Complaint with the exhibits attached. Other than attaching the missing exhibits, no other change to the Third Amended Cross-Complaint may be made. The Corrected Third Amended Cross-Complaint shall be filed and served within ten days of the date of this order. Demurrer Second Cause and Third Causes of Ac...

Excerpt: ...utside 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 the settlement.” The elements that must be met pursuant to section 664.6 are as follows: 1. There is a valid a...

Excerpt: ...esides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney's fees” means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section ...

Excerpt: ...nent's right to a fair trial. Courts attempt to balance the right of civil litigants to discover relevant information against the privacy interests of persons subject to discovery. (Id. at 1199.) “[A]lthough in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient and psychotherapist-patient privileges as to all information concerning the medical conditions which they have put in issue, ...