Excerpt: ... 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 thereof shall precede the trial of any other issue or any part thereof in the case,. . . .” (Emphasis added.) Beyond section 598, Code of Civil Procedure section 1048(b) states: The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expeditio...

Excerpt: ...irror Co. (1975) 51 Cal.App.3d 879, 884.) Mistake must be pleaded with some particularity so that there is “a clear recitation of facts showing how, when and why the mistake occurred.” (citations omitted) (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1243.) As to the 2 nd COA, Rescission based on Mutual Mistake, Cross-Complainants plead, in part, the following: 25….In fact, MASRI informed TOBIN that the ...

Excerpt: ...on, Plaintiff must allege that Defendant KPRS had the ability to pay and willfully or deliberately chose not to pay Plaintiff; and that the Complaint fails to do so. In Opposition, Plaintiff contends all Plaintiff needed to allege was the existence of a contractor's license bond, that plaintiff is a proper claimant, and that the contractor for whom the bond was issued violated the law. Business and Professions Code section 7071.5 states: “The c...

Excerpt: ...facts. Every element of fraud must be pleaded with specificity. The particularity requirement for fraud requires the pleading of facts showing how, when, where, to whom, and by what means the representations were made. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) This is to provide the defendant with notice and to give the court enough information to assess whether there is a foundation for the charge of fraud. (Committee on Children's T...

Excerpt: ...ted with his Reply of discovery and items from websites, is denied. The court declines to turn the hearing on the demurrer “into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff. [Citation.]" (See Del E. Webb Co...

Excerpt: ...iary Objections Plaintiff's objections to the Morales Declaration are overruled. Special Demurrer Uncertainty A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading...

Excerpt: ...urrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis supplied.) Defendant attempted to meet and confer via email and Plaintiff responded indicating disagreement. Defendant did not attempt to ca...

Excerpt: ...m for negligent misrepresentation as the Complaint fails to allege a misrepresentation and does not set forth facts demonstrating reasonable reliance or proximate causation of harm. Gates further contends that Plaintiff claims contractual damages which is recoverable through the other causes of action such that the cause of action is deficient, redundant and improper. Plaintiff Mindi Miller (“Plaintiff”) contends that the negligent misreprese...

Excerpt: ...ortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. Upon a showing of good cause, the court may shorten the time for giving the required notice to permit the determination of the issue to be made befor...

Excerpt: ...uiz Declaration filed as of the date of the hearing on this Motion. Initially, proofs of services herein were filed on May 7, 2020 indicating the summons, complaint, and statement of damages were served on Defendants United States Karate Organization, Inc. and Joseph Anthony Pagliuso, Jr. [See ROAs, 8, 9] The filing of a proof of service creates a rebuttable presumption that the service was proper. [Floveyor Internat., Ltd. v. Superior Court (199...

Excerpt: ...sed in Plaintiff's Complaint. Plaintiff filed a verified complaint on 11/15/16 against Defendants relating to a residential foreclosure. Plaintiff alleges the following causes of action: 1. Breach of loan modification; 2. Breach of the implied covenant of good faith and fair dealing; 3. Violation of Civil Code section 2923.6; 4. Violation of Civil Code section 2923.7; 5. Violation of Civil Code section 2924.10; 6. Negligence; and 7. Unfair Busine...

Excerpt: ...e parties. Preliminary Question - Is a Cross-Action, “Maintaining an ‘Action or Proceeding”? The RP argues that Section 2203 doesn't apply, because a cross-complaint is not “maintaining an action or proceeding” under § 2203(c). The statute does not say that a foreign corporation shall not “maintain a lawsuit” but that it “shall not maintain an action or proceeding.” “An action is an ordinary proceeding in a court of justice b...

Excerpt: ...d to serve timely responses, Defendant filed a motion to compel which was granted on 1/21/21. Plaintiff served verified responses on 1/21/21. Defendant seeks further responses to form interrogatories 2.1, 2.2, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 2.12, 2.13, 6.7, 8.4, 8.5, 9.1, 12.1, 12.2, 12.3, 12.6, 14.1, 14.2, 17.1, 50.1, 50.2. Code of Civil Procedure section 2030.220 states: “(a) Each answer in a response to interrogatories shall be as comp...

Excerpt: ... attempts to meet and confer and EMI's repeated assurances that responses would be provided. ROA 95, Lin Decl., at ¶12; ROA 105, Lin Decl., at ¶¶8-12; ROA 118, Lin Decl. re Meet and Confer Efforts, at pp. 4-5 and Ex. 1. The motions to compel responses to RPD #1 and SI #2 are GRANTED. EMI is ordered to provide responses to RPD #1 and SI #2, without any objections, within 30 days. Plaintiff also requested to inspect and copy all documents respon...

Excerpt: ...deposition of the three parties and of third-party witness Kimberly Nordstrom have not yet occurred and a dispute concerning scheduling of the depositions exists; and (3) the parties are faced with a discovery cut-off date of July 8, 2021 and a motion cut-off date of July 23, 2021 in light of the August 9, 2021 trial date. In Opposition, Plaintiff contends there is no good cause for a continuance of the trial date because all four depositions hav...

Excerpt: ...rt: “A foreign corporation subject to the provisions of Chapter 21 (commencing with Section 2100) which transacts intrastate business without complying with Section 2105 shall not maintain any action or proceeding upon any intrastate business so transacted in any court of this state, commenced prior to compliance with Section 2105, until it has complied with the provisions thereof and has paid to the Secretary of State a penalty of two hundred ...

Excerpt: ...the public policy states that the parties “and their attorneys must not include, or must redact” those identifiers and other private information “from all pleadings and other papers filed in the court's public file [] unless otherwise provided by law or ordered by the court.” The defendant's filings included personal identifying information the plaintiff states are not otherwise available on the Internet. A review of the offending documen...

Excerpt: ...be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in prepar...

Excerpt: ...010) 186 Cal.App.4th 383, 388 (internal quotation marks omitted), the appellate court 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 th...

Excerpt: ... LLC and OC Burger Boys, LLC is GRANTED IN PART AND DENIED IN PART as set forth below. Defendants are ordered to provide further responses as set forth below by August 2, 2021. I. RFPs 31-34 (directed to both Defendants) RFPs 31-34 appear to be identical as to both Defendants. They seek emails in which Business Managers either reported working more than an hour of time off-site or sought pre-approval to work overtime. Defendants' timekeeping poli...

Excerpt: ...t to enforce these provisions. Similarly, defendants have not shown that Maryland law applies to determine standing. Further, as previously noted, the court will not make standing rulings at the pleading stage, in the absence of full briefing and the opportunity for an evidentiary showing. This court also rejects defendants' statute of limitations argument. Defendants argue that plaintiff's allegations of delayed discovery fail, but absent a deta...

Excerpt: ..., Fourth, Seventh and Eighth Causes of Action. The Demurrer to the Second Amended Complaint by Defendant Northwood Investors, LLC is SUSTAINED with 15 days leave to amend as to the First, Second, Third, Fourth, Seventh and Eighth Causes of Action. Based on the Request for Dismissal plaintiff filed on June 21, 2021, the Demurrers to the Fifth and Sixth Causes of Action are MOOT and off calendar. Plaintiff's Request for Judicial Notice is GRANTED. ...

Excerpt: ...Defendant Brandon Burkhart. Mackenzie Alston is/was the wife of Kenneth Alston, one of the owners of Route Four and a defendant in the consolidated case, Burkhart v. Route Four LLC, et al., Case No. 2020- 01130231. According to the papers filed in support of the motion, in September 2020, Kenneth Alston witnessed his wife receive a call from a “Brandon Burkhart” on her phone. Burkhart is a defendant in this action and the plaintiff in the con...

Excerpt: ...laintiffs to the following identical Requests: (1) “All tax return YOU filed with the Internal Revenue Services from 2016 to the present.” (2) “All tax return YOU filed with the California Franchise Tax Board from 2016 to the present.” Entity Plaintiffs object to these Requests on the grounds of taxpayer privilege. “There is no recognized federal or state constitutional right to maintain the privacy of tax returns. [Citations.] Californ...

Excerpt: ... Defendant, by signing an arbitration agreement on February 11, 2019 (the “Agreement”), which encompasses all of Plaintiff's claims in this lawsuit. Defendant also contends that the Federal Arbitration Act (“FAA”) governs the Agreement and that both the FAA and California law require arbitration of Plaintiff's claims as the Agreement is enforceable, and that neither the narrow carve out permitting Defendant to file an action in court for ...