Excerpt: ... to provide discovery.” Code of Civil Procedure section 2023.030 provides in relevant part, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: [¶] (a) The cour...

Excerpt: ...ero 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 constructi...

Excerpt: ...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.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose o...

Excerpt: ...nce Code section 452, subdivisions (d) and (h). Defendants challenges each cause of action in the Complaint, filed on 5-27-20 under ROA No. 2, pursuant to Code of Civil Procedure section 430.10, subdivision (b), as it applies to Plaintiff—Valkyrie Partners Five, LLC (VPF). (Notice.) Defendants rely on Corporations Code section 17708.07, subdivision (a), to assert that VPF is not qualified to transact business in California. (Memorandum; 3:16-5:...

Excerpt: ...18-2020, the trial date was set for 10-5-2020. (ROA 43.) This motion was filed on 3-25-2021. Therefore, the statutory motion is procedurally improper. However, the common law motion may still proceed. “A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.” (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) 2nd COA – Trespass: Defendants argue (1) the trespass claim is duplicative ...

Excerpt: ...was entered into in good faith. These factors are: (1) a rough approximation of the plaintiff's total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) the recognition that a settlor should pay less in settlement than he would if he were found liable at trial; (5) the financial conditions and insurance policy limits of settling defendants; and (6)...

Excerpt: ...xhibit J.) Accordingly, the motions are moot except for the issue of sanctions. Plaintiff seeks $4,258.50 in sanctions on each motion (a total of $8,517, calculated at $700 per hour.). The discovery was electronically served on 2/16/21. (Orland Dec., (ROA 2158), Exhibit D). Responses were due on Monday, 3/22/21. On Thursday, 3/18/21 at 8:59 a.m., Defendant's Riptide's counsel wrote, asking for two additional weeks. (Sampson Dec. (attached to ROA ...

Excerpt: ...ent with Defendants under which Heartland financed Defendants' purchase of equipment identified as “Cutera Trusculpt 3d Workstation” (UMF 1). Defendants were obligated to make six monthly payment of $99, followed by 60 monthly payments of $2,466.20 (UMF 2). In July 2018, Heartland assigned the agreement to Plaintiff Midland (UMF 3). Heartland and Midland fully performed their end of the agreement (UMF 3). Defendants made 25 payments—12 to H...

Excerpt: ...nent part: “All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:...

Excerpt: ...ditions is satisfied: . . . (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties. The First Amended Complaint (“FAC”) filed by VForce Inc. (...

Excerpt: ...al.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. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complai...

Excerpt: ...4th 1244, 1255 [elements].) This claim is not based solely on defendant's misrepresentation that the vehicle was in “excellent condition,” but also on its alleged misrepresentation that the vehicle had “passed a vehicle inspection” (see Compl. ¶ 13), and defendant's failure to disclose the true, substandard condition of the vehicle (see id. ¶¶ 12- 13, 16). Further, to the extent the claim is based on the misrepresentation that the vehi...

Excerpt: ...h order and writ of attachment by filing an application for the order and writ with the court in which the action is brought. (Code Civ. Proc., § 484.010.) The application must be executed under oath and must include the following statements: (1) the attachment is sought to secure the recovery on a claim on which the attachment may be issued; (2) the amount to be secured by the attachment; (3) the attachment is not sought for a purpose other tha...

Excerpt: ...202 Cal.App.4th 464, 474–476 [“A judgment against a trust, rather than against its trustees, is not enforceable.”].) As a result, a trust “‘“is simply a collection of assets and liabilities. As such, it has no capacity to sue or be sued, or to defend an action.”'” (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 522 [quoting Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 293; accord, Prob. Code, § 18004; Moeller v. Superior...

Excerpt: ...ic Substances Control (DTSC) separately demur to the fourth cause of action, for declaratory relief, of the third amended cross-complaint (3AXC) of Cross-Complainant Soco West, Inc. The demurrers are OVERRULED. Soco's request for judicial notice is DENIED as immaterial. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748 fn. 6 [declining to take judicial notice of materials not “necessary, helpful, or relev...

Excerpt: ...uled. 1st cause of action: misrepresentation. The demurrer to the first cause of action for misrepresentation is sustained, with leave to amend, on grounds of failure to state facts sufficient to constitute a cause of action. (CCP 430.10(e).) This cause of action does not allege all of the elements of fraud with the required specificity. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73 [elements]; Lazar v. Superior Court (1996) 12 Cal.4 th ...

Excerpt: ...able fault of his own, no actual notice of the action in time to appear and defend, and had not made a general appearance; (2) a default or default judgment has been entered against him by the court; (3) he acted with reasonable diligence in serving and filing the notice of motion to set aside the default or default judgment; and (4) he has a meritorious defense.” (See Goya v. P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886, 890–91.) Additional...

Excerpt: ...lemental briefing shall be filed on or before July 26, 2021. If a revised settlement agreement and/or proposed notice is submitted, a redline version showing all changes, deletions and additions must be submitted as well. In addition, Zimmers must provide proof of service of any revised settlement agreement and supplemental papers on the LWDA. Likewise, the motion for attorney fees brought by objector Mikhail Hutchins is continued from July 2, 20...

Excerpt: ...val of a PAGA settlement. The gross settlement amount (“GSA”) is $575,000.00, which is intended to cover approximately 2,115 non-exempt hourly employees suffering one of many wage/hour violations sometime between 11/22/13 and 08/01/18. This is a non-reversionary settlement. The proposed deductions/allocations from the GSA are as follows: Attorney Fees: $191,666.00 Litigation Costs: $20,000.00 Administrator Costs: $19,500.00 Service Enhancemen...

Excerpt: ...nd Tuan A. Nguyen (“Motion to Quash”) or the Motion to Strike the Cross-Complaint (“Motion to Strike”) (collectively, the “Motions”), or that the information he now submits could not, with reasonable diligence, have been discovered or produced before the hearing on March 1, 2021. (Code Civ. Proc. § 1008(a); In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468; New York Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 213...

Excerpt: ...itial 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 the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cann...

Excerpt: ...apira v. Superior Court (1990) 224 Cal. App. 3d 1249, at page 1255, the court held that Code of Civil Procedure sections 2032.310 and 2032.320 do permit more than one physical examination of a plaintiff upon a showing of good cause, and reversed and remanded the matter back to the trial court as it denied a motion to compel a third mental examination without considering whether there was good cause for such an exam. Here, Defendant has demanded t...

Excerpt: ...ver attorney's fees and costs associated with the present motion by no later than July 21, 2021. Retrolock's request for additional sanctions is DENIED. I. Factual Background This case involves a contract dispute arising from the construction of a hotel in Buena Park. Greenland was the general contractor, Retrolock was a subcontractor, and Hotel was the project owner. Retrolock alleges that Greenland failed to make payments for work performed, an...

Excerpt: ..., which “is a comprehensive scheme defining and setting penalties for crimes involving controlled substances.” (Ramirez v. Tulare County Dist. Attorney's Office (2017) 9 Cal.App.5 th 911, 925 (Ramirez).) The purpose of the forfeiture statutes is to remove the tools and profits from those engaged in the illicit drug trade. (Id.) The statutory procedures for forfeiture are set forth in Health & Safety Code sections 11488.4 and 11488.5, which pr...

Excerpt: ...ivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. Such order shall not be considered to be a determination on the merits of the claim or any defense thereto and shall not be given in evidence or referred to at the trial.” As cited by Defendant, in Jabro v. S...