Excerpt: ...t and confer with Defendants prior to filing the demurrer was insufficient. Plaintiff was required to identify all of the specific defenses believed to be subject to demurrer and identify with legal support the basis of the deficiencies. §430.41(a)(1). Plaintiff failed to satisfy this mandate. Defendant failed to respond to plaintiff's perfunctory meet and confer attempt. However, because a determination that the meet and confer process was insu...

Excerpt: ...bed the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evi...

Excerpt: ... for Admissions Admitted. Defendants' Motion for Relief from an Order Deeming Request for Admissions Admitted is GRANTED. A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties. (Code Civ. Proc., § 2033.300(a).) Withdrawal or amendment of an admission is permitted only if it determines that the admission was the result of mistake, inadvertence, or excusabl...

Excerpt: ...iff to file the proposed First Amended Complaint, and Plaintiff's Motion for Leave to Amend is DENIED. Procedural Requirements A motion to amend a pleading before trial must: (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph,...

Excerpt: ...to submit to arbitration ... a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. Section 1281.2 provides in relevant part: 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 respon...

Excerpt: ...es, Inc.) with “. . . twenty-two requests for production of documents . . . .” (Urgoiti Decl. (ROA No. 116), ¶ 2.) On 10-2-20, Defendant served Plaintiffs with responses to this discovery request. (Urgoiti Decl. (ROA No. 116), ¶¶ 2 and 3 and Exhibits 1A and 1B.) “In response to each request the ITWS Defendants and Phoenix Defendants indicated they would, ‘produce at a mutually convenient time and place, such responsive, unprivileged do...

Excerpt: ...as met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issu...

Excerpt: ...including Guy, were suspended by Judge David Belz in Department C-10, effective immediately. (See Supplemental Declaration of Alexander Conti, ¶ 3, attached hereto.) Judge Belz appointed Frank Fiorito (‘Fiorito') as the interim sole trustee of the family trust dated August 20, 1995, and amendments thereto (‘Foresman Trust'), for all purposes.” (Further Reply; 1:7- 11.) The court recognizes that Cross-Complainant (Guy Foresman) and the othe...

Excerpt: ...governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs.” Plaintiff's Complaint pleads that Defendant failed to pay monthly and special assessments in compliance with the applicable Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for Santiago Springs. (For example, see Complaint, ¶¶ 8-15.) Therefore, the present action is an action to enforce governing documents. (Civ....

Excerpt: ...t. In ruling on a demurrer, a court must accept as true all allegations of 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.) The elements of an IIED claim are: (1) defenda...

Excerpt: ...ed as a cross-defendant. (See TACC at 1:8 and p.6 and CRC 2.112.) The moving brief does not cite to any recognized statutory basis for demurring to miscellaneous allegations within a pleading. (See Dmrr p. 1, Moving Mem. p. 3-4 and compare CCP 430.10 and CRC 3.1320(a), Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274 (demurrer challenges a cause of action, not “portions”...

Excerpt: ...owever, this court must assume the truth not only of all facts properly pled, but also 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 lib...

Excerpt: ...use of action for declaratory relief. Plaintiffs seek a declaration stating that they can submit their matter to arbitration. This demurrer seeks an order sustaining the demurrer to the single cause of action for declaratory relief without leave to amend. Moving defendant asserts that the cause of action for declaratory relief is not sufficiently stated according to Code Civ. Proc. § 430.10(e) and is uncertain according to Code Civ. Proc. § 430...

Excerpt: ...aintiff's FAC alleges she was an elderly woman who could not speak English and was drawn to Defendants' store by radio advertisements. (¶ 7.) Plaintiff could not sleep well and needed a bed to help her sleep through the night. (¶ 8.) When she went to Defendant Teletron's store, the sales manager, Defendant No Hoang, told Plaintiff the bed could cure many medical conditions, including the problem Plaintiff had of not sleeping well at night. (¶ ...

Excerpt: ...judgment must “show” that either one or more elements of the “cause of action … cannot be established”, or there is a complete defense to that cause of action. (CCP § 437c(p)(2).) Once defendants meet this burden, the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense. If plaintiff is unable to do so, defendants are entitled to judgment as a matter ...

Excerpt: ...o Welfare and Institutions Code section 15600, et. seq.) Defendants contend that the Fourth Amended Complaint fails to allege facts to show that Defendants had a custodial relationship with the decedent. In order to allege “neglect” or “abuse” under the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”, Welf. & Inst.C. § 15600 et seq.), plaintiff must begin by alleging that the defendant had “care or custody” of the...

Excerpt: ...that Minuteman worked on the pipes before the flood and it only recently discovery evidence of same. A defendant can file a cross-complaint against a codefendant or third person not yet a party to the action only if the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy wh...

Excerpt: ...e that a 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 summar...

Excerpt: ...a lawyer may withdraw if “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively”. Rule 1.16(b)(5) also permits a lawyer to withdraw if a “client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fu...

Excerpt: ...l foundation. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; see also Code Civ. Proc., § 436.) To plead a claim to recover punitive damages, a plaintiff must plead and show one of the following bases for imposition of exemplary damages, i.e. malice, oppression, or fraud. (Civ. Code, § 3294(a).) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant wi...

Excerpt: ...les Wortham, by and through his Successor in Interest, Rose Wortham to arbitrate the instant action pursuant to the Arbitration Agreement executed on June 8, 2020 is DENIED. Code of Civil Procedure section 1295 applies to contracts for medical services which contain a provision for arbitration of any dispute as to professional negligence of a health care provider. Specifically, subdivision (b) of section 1295 requires that:“Immediately before t...

Excerpt: ...ttorney in order to “chill” Defendant's ability to assert employment rights and Labor Code violations. CCP § 425.16(b) states: “(1) 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 Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court det...

Excerpt: ..., Navagio, Adelanto Properties B, Adelanto Properties C and Cure Farms NDLS MOTION 1: Demurrer Cross-Defendant, Briggs & Alexander, APLC demurs to the fourth (Equitable Indemnity), fifth (Contribution), and sixth (declaratory relief) cause of action on the grounds that they fail to state sufficient facts and are uncertain. 1. Meet and confer Cross-Defendant's counsel filed a declaration attempting to show compliance with Code Civ. Proc. § 430.41...

Excerpt: ...claimed is superior to the creditor's lien on the property: . . . [¶] (b) Where personal property has been levied upon under a writ of attachment, a writ of execution, a prejudgment or postjudgment writ of possession, or a writ of sale.” Section 720.310, subdivision (a) provides in pertinent part that: “either the creditor or the third person may petition the court for a hearing to determine the validity of the third-party claim and the prop...

Excerpt: ...g, Training, Supervision And Retention Of Employees (“Negligent Hiring”); (7) Violation Of The Unruh Civil Rights Act California Civil Code §51.7 (“Section 51.7”); and (8) Violation Of The Bane Civil Rights Act, California Civil Code § 52.1 (“Section 52.1”). A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonstrating the action has no merit, that plain...