Excerpt: ...heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” The 30-day “cut-off” under Section 437c is measured from the trial date in effect when the summary judgment motion is made. (Green v. Bristol Myers Co. (1988) 206 Cal.App.3d 604, 609; Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1765 fn. 4.) “The importance of providing the minimum statutory notice of a summary judgment hearing ca...

Excerpt: ... it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for the revocation of the agreement.” Toal v. Tardif (2009) 178 Cal.App.4 th 1208, 1219, provides, “In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (Rosenthal), our Supreme Court set for...

Excerpt: ... agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for the revocation of the agreement.” Toal v. Tardif (2009) 178 Cal.App.4 th 1208, 1219, provides, “In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (Rosenthal ), our Supreme Court set forth the procedure to b...

Excerpt: ...hat there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff 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 al...

Excerpt: ...e motion for summary judgment and summary adjudication must be denied. “[T]he moving party should ‘“[i]nclude only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in [the] separate statement, the motion must be denied!”'” (Insalaco v. Hope Lutheran Church of...

Excerpt: ...mplied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 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...

Excerpt: ...sserted in Exhibits 1 and 4. (Sosinsky v. Grant (1992) 6 Cal.App.4 th 1548, 1564-1570.) The court DENIES the Request for Judicial Notice as to Exhibit 5. Petitioner (Shahrouz Jahanshahi) has brought a Petition for Writ of Mandate (filed on 2-10- 21 in the Los Angeles County Superior Court, and filed under ROA No. 2 in the Orange County Superior Court) against Respondent pursuant to Code of Civil Procedure section 1085. Code of Civil Procedure sec...

Excerpt: ...ourth fifth, sixth, seventh, eighth, ninth, and seventeenth causes of action contained in Cross-Complainant's (Ron Thauer) First Amended Cross-Complaint (FACC). Cross-Complainant filed the FACC on 11-14-19 under ROA No. 182. “A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but al...

Excerpt: ...chment is based upon a written contract for the provision of farm labor services. (See Pacheco Decl., ¶¶ 3-6, 8-10, Exh. 1.) Plaintiff presents evidence that the sum to be attached is readily ascertainable as Plaintiff rendered $551,721.50 in labor services and Defendant only paid Plaintiff for $300,719.98 leaving a balance of $251,001.52 due and owing. (Id., Exh. 2.) Plaintiff also seeks to attach $2,500 in estimated attorneys' fees. (See Agui...

Excerpt: ... 35.) As to Plaintiffs' breach of contract allegations against Defendant as an employer, the TAC alleges that Defendant breached the employment agreement by not paying Plaintiffs “for services provided from 2015 to 2017 leaving a balance of no less than $21,000 as provided in Exhibits A and C”. Exhibits A and C, however, are either spreadsheets which identify certain projects and contract job costs and amounts or a spreadsheet which list chec...

Excerpt: ...dure section 378 permits joinder of plaintiffs if they assert any right to relief “arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action....” Under this provision, “the action of each plaintiff has been joined in one case, but they remain independent actions.” (Brennan v. Superior Court (1994) 30 Cal.App.4th 454, 461...

Excerpt: ... properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the mat...

Excerpt: ...rty at trial. The Complaint requested $63,146.00. A judgment for $56,340.00 was returned. “When a party obtains a ‘simple, unqualified win' by completely prevailing on, or defeating, the contract claims in the action and the contract contains a provision for attorney's fees, the successful party is entitled to attorney's fees as a matter of right, eliminating the trial court's discretion to deny fees under [Civil Code] section 1717.” Silver...

Excerpt: ...t leave to amend. Defendants Select Portfolio Servicing & Deutsche Bank's Motion to Strike is moot considering the rulings on the Demurrers. Requests for Judicial Notice: Defendants' Request for Judicial Notice are granted. Pursuant to Evid. Code, § 451 and 452, the court may take judicial notice of certain documents. Defendants' Request for Judicial Notice is granted. Under Evid. Code, § 452 (d), the court may take judicial notice of records o...

Excerpt: ...laint. Fitness International's motion is denied as to Issue Nos. 2 and 3. Civil Code section 2778 provides: “In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears.” Subdivision (3) states: “An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in go...

Excerpt: ...mplete defense entitling it to judgment as a matter of law. (Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850-51.) If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demons...

Excerpt: ...ent meets the burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c(p)(2); Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.) The scope of this burden is determined by the allegations of the plaintiff's complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal....

Excerpt: ... An agreement to comply must be rather specific as to what is agreed to. It must state that the production and inspection will be allowed (in whole or in part); and that the documents or things in the demanded category that are in the responding party's possession, custody, or control will be produced. (Id. § 2031.220.) On receipt of the response, the demanding party may move to compel further response if any of the following apply: (1) a statem...

Excerpt: ...eedings. The Court of Appeal, Fourth District, Division Three shall be the reviewing court. I. Factual and Procedural Background The Included Actions each arise from the alleged wage-and-hour practices of entities that own or operate Watermark retirement communities (collectively, “Watermark”). All three Included Actions involve similar allegations of standard violations, such as meal and rest break violations, failure to pay for all hours wo...

Excerpt: ...r the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) Where the question is specific and explicit, an answer that supplies only a portion of the information sought is improper. It is also improper to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne (1978)...

Excerpt: ...ial evidentiary burden of its Fifth Cause of Action. This cause of action arises from Civil Code section 1113. The statute establishes as a matter of law, that certain covenants (unless expressly disclaimed) are made to the grantee, his/her heirs or assigns. That action may be enforced in the same manner as that for breach of an express contract. (Id.) Plaintiff fails to present evidence that it is the grantee, the grantee's heir, or the grantee'...

Excerpt: ...fore September 17, 2021. Ortiz's motions for class certification and terminating sanctions, previously taken off calendar, will be set for a date to be determined by the Court and the parties at the hearing on this motion. Based on the papers submitted in connection with this motion, the Court expects Defendants may file a motion to enforce class action waivers in arbitration agreements signed by a portion of the putative class. The Court will no...

Excerpt: ...d papers, including the class notice. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the class notice, rather than with just a supplemental declaration simply asserting that the issues have been resolved. The court's file in the first case filed by plaintiff against defendant, Case No. 2020- 01136520, reveals that plaintiff settl...

Excerpt: ...st Construction Co. (1994) 24 Cal.App.4th 1426, 1441- 1442.) Electronic service is an acceptable method of service. (See Code Civ. Proc., § 1010.6, subd. (e)(1); Orange County Superior Court rule 352.) Defense counsel did receive the motion, even if he described finding the motion as having “stumbled on the One Legal mail of July 15, 2021, and out of curiosity opened the email only to realize that it was a motion for attorney's fees.” (Opp.,...

Excerpt: ... sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essent...