Excerpt: ...nt initial case management statement filed on August 2, 2019. While AAG objects to this request, CCP § 453 requires the Court to take judicial notice upon a request that complies with the statute, as Plaintiffs' request does here. AAG's objection is OVERRULED and the request for judicial notice is GRANTED, as the case management statement is properly noticeable under CCP § 452(d). AAG correctly notes, however, that the Court may not take judici...

Excerpt: ...plaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Not every fact which ultimately supports a cause of action needs to be pled, and trial courts are obligated to accept as true even the most improbable factual averments without regard to the pleader's ability to actually prove those facts. See C.A. v. William S. Hart Un...

Excerpt: ...n by MFI. (Prasher Decl., ¶ 7, Ex. A.) The MSA contains a mandatory forum selection clause that states: “[t]his Agreement shall be governed by and interpreted according to the laws of the Province of Ontario and the laws of Canada applicable therein. The parties attorn to the exclusive jurisdiction of the courts in the Province of Ontario in respect of all matters arising out of or in connection with this Agreement.” (Prasher Decl., Ex. A, �...

Excerpt: ...roc., § 437c(b)(3)), the Court has exercised its discretion to excuse noncompliance with the Code of Civil Procedure and reach the merits of the motions. Finally, “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty ….” (Code Civ. Proc., § 437c(f)(1); see also Dunn v. County of Santa Barbara (2006) 1...

Excerpt: ...ement is directed, rather than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. The class definition excludes employees that “executed a release of all claims against Greenstone Materials, Inc.” (Settlement, ¶ A.4.) Does this refer to the release from the DOL settlement? If not, to what does it refer? If it does refer to the DOL settlement, that settlement only appears to release m...

Excerpt: ... leave of court.” Cal. Civ. Proc. Code § 2032.310(a). A motion for an examination under section 2032.310(a) “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of any of the person or persons who will perform the examination.” Id. § 2032.310(b). The court shall grant the motion for a physical or mental examination under section 2032.310 only for good cause sho...

Excerpt: ...tiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “[A] plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action …. There is no need to require specificity in the pleadin...

Excerpt: ...aintiff alleges that he was directed by the Defendants into the patient examination room where he lay down on the examination table awaiting a medical professional to see him. (Complaint ¶ 6.) The doctor opened the door to enter and apparently the door hit plaintiff's body, as he lay on the examination table. (Id.) Plaintiff alleges that the poor placement of the examination table in the examination room was a dangerous condition of the room. (C...

Excerpt: ...ept 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.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 15...

Excerpt: ...quest for monetary sanctions is DENIED. Defendant/Cross-Complainant Patricia Pisani's evidentiary objections to the Declaration of David Beavers are OVERRULED. Procedural Compliance: On 2-5-19, the Court and counsel held a discussion regarding progress made to resolve issues presented in this Motion. The parties agreed and the Court ordered that a motion may be re-filed as to any remaining issues. (See Minute Order dated 2-5-19 [ROA 386].) The Mo...

Excerpt: ... No. 2.5, the Motion is GRANTED. Defendant contends this is a dental malpractice case and any judgment will be paid out through insurance, so Defendant's private residence information is unnecessary to collect any judgment. Although it is true Defendant's residence address may not necessarily be relevant, this interrogatory is a judicially approved form and provides background information of a party. As to Form Interrogatory No. 15.1, the Motion ...

Excerpt: ...an ad litem, is sustained with 15 days leave to amend. AFH's motion to strike is granted with 15 days leave to amend except as to the 10 th cause of action. As to the 10 th cause of action, the motion to strike is granted without prejudice to Plaintiffs bringing a motion for leave to amend or supplement. The Demurrer by Defendants Cinnamon Creek Westminster Associates L.P. and Arker, Inc.'s to Plaintiffs' SAC is sustained with 15 days leave to am...

Excerpt: ... made. (People v. Lim (1941) 18 Cal. 2d 872, 883.) “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.) Generally, a demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine ...

Excerpt: ...neral areas: the partnership concerning the recovery-business, the partnership concerning real-properties for the recovery business, and parties' relationship regarding Plaintiff's Greenleaf personal residence. The court finds that -- in pleading all the areas within the first 80 paragraphs of the complaint and incorporating all the allegations then into the individual causes of action (some of which have little do with others) – the individual...

Excerpt: ... Request/Demand for Production Nos. 3, 7-12, 15, 17, 22, 26- 29. Plaintiff also seeks sanctions relating to each motion. For the reasons set forth below, Plaintiff's motion to compel further responses to form interrogatories is DENIED as to No. 15.1 but GRANTED as to Nos. 16.1-16.7, 16.9, and 16.10. The motion to compel further responses to special interrogatories nos. 6, 7, and 8 is GRANTED, subject to the limitations detailed below. The motion ...

Excerpt: ...mit the award of attorney fees for tort claims. “The limitation of Civil Code section 1717, subdivision (b) (2)—precluding attorney's fees when a complaint is voluntarily dismissed—applies only to contract claims. . . . It does not apply to noncontract claims and thus does not preclude attorney's fees on noncontract claims where the contractual attorney's fees clause is broad enough to encompass noncontract claims.” Drybread v.Chipain Chi...

Excerpt: ...ment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (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 ca...

Excerpt: ... a motion to compel arbitration is simply a suit in equity seeking specific performance of that contract. (Little v. Pullman (2013) 219 Cal.App.4th 558, 565.) The movant bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings,...

Excerpt: ... into contact information for percipient witnesses. Motion to Consolidate Pursuant to CCP §1048(a), “when actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Trials courts have...

Excerpt: ... 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. Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 803. The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271. In the fir...

Excerpt: ... and default judgment under CCP § 473(b) which provides that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” CCP § 473(b) requires that the motion be filed within a reasonable time not exceeding six months after the judgment, dismissal or...

Excerpt: ...erning defendants' alleged failure to properly assess and accommodate his special needs is to show that defendants had adequate notice that a dangerous environment could be created at school. As the United States Supreme Court stated in Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017), Section 1415(l)'s exhaustion requirement “hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education” or “FAPE,”...

Excerpt: ... – (3) provide as follows: “(b) ‘Vexatious litigant' means a person who does any of the following:” “(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial...

Excerpt: ...job or contractor names, dates, invoice numbers, and amounts. The Special Interrogatories (“SROGs”) at issue inquired about specific entries or groups of entries in the Summary. The responses at issue as provided by Plaintiff are inadequate. For SROG No. 52, Plaintiff asserted that a response would require a compilation from “voluminous documents in plaintiff's possession,” referred MP to subpoenaed materials without specifying any specif...

Excerpt: ... FAA applies. A court's role in considering a petition to compel arbitration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” (Chiron Corp. v. Ortho Diagnostic Sys. Inc.(9th Cir.20...