Excerpt: ...ing 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.) Questions of fact cannot be decided on demurrer. (Berry...

Excerpt: ...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.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been...

Excerpt: ...bed in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreason...

Excerpt: ... ROA No. 294, UL provided notice that the bankruptcy case had remanded this action to the Orange County Superior Court. In the court's 6-15-21 Minute Order, the court found that UL had not established that it had received relief from the stay as to the property located at 6475 Marigayle Circle, Huntington Beach, California 92648. (6-15-21 Minute Order.) The 6-23-21 declaration from Shawn Adhoot (filed on 6-23-21 under ROA No. 471) shows that UL h...

Excerpt: ... 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 construction ...

Excerpt: ...under ROA No. 75) pursuant to Evidence Code section 452, subdivision (d). “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 also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, ...

Excerpt: ...ial Notice. “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 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.4 th 445, 459.)...

Excerpt: ...conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc., § 436.) The allegations of the complaint are presumed true; they are read as a whole and in context. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Civil Code section 3294(b) provides that a plaintiff may recover punitive damages against an employer for acts of its employees only where “the employer had advance knowledge of the unfit...

Excerpt: ...ptember 1, 2020. Defendant Mahmood contends that it is not a proper party to this lawsuit given its limited role in the underlying dispute. But as long as it is a named party that has not been dismissed, Defendant Mahmood cannot avoid his obligations under the Discovery Act. Given Defendant's failure to respond timely to Plaintiff's discovery requests, Plaintiff is entitled to an order compelling response without objection. (Code Civ. Proc. §§ ...

Excerpt: ...50.) Once the moving party meets that burden, the burden shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable issue as to that affirmative defense or cause of action. (Id., at p. 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.) The Complaint pleads a single cause of action for Premises Liability. The Complaint alleges Plaintiff Charles Smith fell due to a neglige...

Excerpt: ...t 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. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be...

Excerpt: ...e of California v. Superior Court, 32 Cal. 4th 1234, 1239, (2004); Rubenstein v. Doe No. 1, 3 Cal. 5th 903, 906,(Cal. 2017)) A plaintiff may allege compliance with the claims requirements by including a general allegation that he or she timely complied with the claims statute. (Gong v. City of Rosemead, 226 Cal. App. 4th 363, 374, (2d Dist. 2014); see Esparza v. Kaweah Delta Dist. Hospital, 3 Cal. App. 5th 547, 552–554,(5th Dist. 2016)) If a pl...

Excerpt: ... deductions/allocations: Attorney Fees: $33,333.33 Litigation Costs: $12,000.00 Plaintiff Enhancement: $5,000.00 Admin. Costs: $5,000.00 LWDA: $3,750.00 Class size: 95 Net to employees: $40,916.67 Class tax allocations: 20% W-2; 80% 1099 Provisional Certification of the Class After parties to a putative class action settle the dispute, they must present that settlement to the trial court for approval. If the class has not yet been certified, part...

Excerpt: ...nterested in the action or proceeding.” In 2004, the Court of Appeal held that the relief provisions of CCP §473(b) do not apply to a failure to comply with Public Resources Code §21167.4(a). Nacimiento Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (2004) 122 Cal. App. 4th 961, 968. The court reasoned that the application of the §473(b) relief provisions to CEQA dismissals for failing to request a hearing ...

Excerpt: ... Judicial Council Emergency Order 10 extended the five-year deadline to bring a case to trial contained in CCP §§583.310 and 583.360 by an additional six months. Thus, the five-year mandatory dismissal statute becomes applicable on August 26, 2021, in 41 days. This case is a wage and hour class action lawsuit. Even though the case is more than five years old, plaintiffs have not filed a motion for class certification. The court in Warner Bros. ...

Excerpt: ...mark titles that identify the exhibit number or letter and briefly describe the exhibit.” The parties must comply with this requirement in the future. 2. Civ. Code Civ. Proc. § 664.6 Code Civ. Proc. § 664.6(a) states: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter ju...

Excerpt: ...tories (FROG and SPROG): “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general. (b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declarati...

Excerpt: ...ment as a matter of law. (Code Civ. Proc. § 437c(c).) A moving defendant is entitled to summary judgment if it establishes either one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc. § 437(c)(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the moving defendant meets its initial burden of production to make a prima facie showing that th...

Excerpt: ...Opposition. Burden of Proof: Code Civ. Proc., § 437c (p) (2) provides that “A defendant or cross- defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts t...

Excerpt: ...able limitations periods, which, for all causes of action, are either three or four years. General Principles for Summary Adjudication A defendant moving for summary judgment or adjudication bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact…” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) “A prima facie showing is one that is sufficient to support...

Excerpt: ...tion 17200. Plaintiff dismissed the third cause of action for negligent infliction of emotional distress on 5/25/21. No future events are currently scheduled. The Complaint seeks punitive damages, which Plaintiff acknowledges is improper. She now seeks leave of court to file an amended FAC to claim punitive damages against a medical professional. The motion must be supported by affidavits stating facts sufficient to support a finding that there i...

Excerpt: ... to provide certain evidence to the opposing party as required by the discovery rules, preclusion of that evidence may be appropriate, even if such a sanction proves determinative in terminating the plaintiff's case. But “ ‘[t]he ratio decidendi behind such cases[ ]' ... is ‘that a persistent refusal to comply with an order for the production of evidence is tantamount to an admission that the disobedient party really has no meritorious clai...

Excerpt: ...ertinent part: “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part ther...

Excerpt: ...efendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” (Code Civ. Proc., § 425.16(c)(1).) “It is settled that a plaintiff may not avoid liability for attorney fees and costs by voluntarily dismissing a cause of action to which a SLAPP motion is directed.” (Sylmar Air Conditioning v. Pueblo Contracting Servs., Inc. (2004) 122 Cal.App.4th 1049, 1054; accord Pfeiffer Venice Properties v. Ber...

Excerpt: ... matter to allow the parties to comply, having reviewed the merits of the demurrer and being fully familiar with the facts of the case, the better course is to hear the matter. 2. The opposition papers exceed the page limitation prescribed in California Rules of Court, rule 3.1113(d). Although the court could simply refuse to consider the opposition because of its excessive length (Cal. Rules of Court, rule 3.1300(d); see Weil & Brown, Cal. Prac....