Excerpt: ...he following reasons, The Motion is DENIED. Plaintiff filed a Notice of Appeal of Judgment of Dismissal after the Court sustained the Bank of America Defendants' demurrer to the Third Amended Complaint (“TAC”) without leave to amend. Although Plaintiff appeals from the “judgment” entered on October 27, 2020 (“Bank of America Appeal”), the Bank of America Judgment was entered on January 27, 2020 and Notice of Entry of Judgment was file...

Excerpt: ...emonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Ko...

Excerpt: ...t described summary judgment/adjudication motions sought by plaintiffs: [W]here the plaintiff has also moved for summary judgment—or, as in this case, summary adjudication—that party has the burden of showing there is no defense to a cause of action. [Citation.] That burden can be met if the plaintiff has proved each element of the cause of action entitling the party to judgment on that cause of action. [Citation.] If the plaintiff meets this...

Excerpt: ...ettlement agreement”, to avoid use of limited Court time and resources. As to the Settlement 1. The Settlement provides that the Settlement Administrator's determination of disputes will be final and non-appealable. Settlement, §13. This must be revised. The parties should file with the Court all disputes submitted by class members, the evidence submitted, and the resolution of those disputes. The Court shall have the right to review any decis...

Excerpt: ...fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (H...

Excerpt: ...son Driscoll & Damico LLP, and Sedgwick Claims Management Services (collectively, hereinafter, the “Subpoenaed Parties”). For the reasons set forth below, Plaintiffs/Cross-Defendants motions are DENIED. Code of Civil Procedure 2025.450 (“Section 2025.450”) provides: (a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization ...

Excerpt: ...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 liberal construction mean...

Excerpt: ...fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (H...

Excerpt: ....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 Transit District (2012) 209 Cal.App.4 th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to ...

Excerpt: ...ies, contracted with Defendant 3PL Global to store the wine. The wine was moved to Defendant's facilities in January 2014. In June 2017, after the investigation was concluded, Plaintiff returned the wine to its own facilities. In July 2017, Plaintiff learned that the wine and its packaging had been damaged while being stored in Defendant's facilities. Plaintiff claims to have lost $2.8 million. Based on the foregoing allegations, Plaintiff assert...

Excerpt: ...t described summary judgment/adjudication motions sought by plaintiffs: [W]here the plaintiff has also moved for summary judgment—or, as in this case, summary adjudication—that party has the burden of showing there is no defense to a cause of action. [Citation.] That burden can be met if the plaintiff has proved each element of the cause of action entitling the party to judgment on that cause of action. [Citation.] If the plaintiff meets this...

Excerpt: ...emonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Ko...

Excerpt: ...son Driscoll & Damico LLP, and Sedgwick Claims Management Services (collectively, hereinafter, the “Subpoenaed Parties”). For the reasons set forth below, Plaintiffs/Cross-Defendants motions are DENIED. Code of Civil Procedure 2025.450 (“Section 2025.450”) provides: (a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization ...

Excerpt: ...arty, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” Code of Civil Procedure section 2032.310, states, in part, “(a) If any person desires to obtain discovery . . . by a mental examination, the party shall obtain leave of court. [¶] (b) A motion for examination unde...

Excerpt: ...w that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The 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 thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th...

Excerpt: ...Code of Civil Procedure section 2031.060 states in part, “(a) When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (b) The court, f...

Excerpt: ... 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 Transit District (2012) 209 Cal.App.4 th 1228, 12...

Excerpt: ...dero 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 Transit District (2012) 209 Cal.App.4 th 1228, 1238, provides, “This rule of liberal construct...

Excerpt: ...d and enforceable, unless they are revocable for reasons under state law that would render any contract revocable. [Citations.] Reasons that would render any contract revocable under state law include fraud, duress, and unconscionability.” Tiri v. Lucky Chances, Inc. (2014) 226 Cal. App. 4th 231, 239. Defendants have put forth evidence that a valid and enforceable written arbitration agreement exists within the signed contract (“Contract”) ...

Excerpt: ...atory statement that “Keystone overloads its managers and its managers thus cannot do a good job for their clients.” (See Complaint, ¶ 49.) Plaintiff alleges this statement was made by defendant to “Earl Richmond”. (Id., ¶ 9.) This statement is the basis for the defamation cause of action. Defendant contends that her statement that Plaintiff KEYSTONE managers cannot do good jobs for its clients because it overloads its managers concerne...

Excerpt: ... on the grounds that plaintiff noticed the deposition to harass, oppress and cause undue burden and expense to APF and Shapiro. Code of Civil Procedure, §2025.420(b) authorizes the court, for good cause shown, to make any order that justice requires to protect any party or deponent from unwarranted annoyance, embarrassment or oppression or undue burden and expense. The court shall limit the scope of discovery if it determines that the burden, ex...

Excerpt: ...ved Defendant with the special interrogatories (set one). Defendant has not served any responses. Given Defendants' failure to respond to Plaintiff's Special Interrogatories, Set One, Plaintiff is entitled to an order compelling response without objection. (Code Civ. Proc. § 2030.290.) Defendant is ordered to serve responses without objections within 20 days of this ruling. Defendant is ordered to pay sanctions of $360 to Plaintiff within 20 day...

Excerpt: ...ion agreement between the parties that covers the controversy or claims at issue. (Lifescan, Inc. v. Premier Diabetic Servs., Inc. (9th Cir. 2004) 365 F.3d 1010, 1012; see also Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 83-85.) “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.�...

Excerpt: ...tion, to moving party's Supplemental Interrogatories; (2) serve initial responses, without objection, to moving party's Supplemental Inspection Demand; and (3) appear for her deposition. Plaintiff did not oppose any of the Motions. All three Motions are granted. Sanctions are awarded against Plaintiff Erin Seiss in the sum of $246 on each of the three motions, for a total of $738 in sanctions – payable to moving party within thirty (30) days. M...

Excerpt: ...hat there is no merit to an affirmative defense as to any cause of action, or both, or 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. Code Civ. Proc. §437c(f)(1). “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or ...