Excerpt: ... new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were, and what new or different facts, circumstances, or law are claimed to be shown." New York Times Co. v. Superior Court (2...

Excerpt: ...4-5, 7 Sustained in Part: 6 Sustained: 3, 8 Objections to Declaration of Karla Kroesch Overruled: 2, 6 Sustained in Part: 1 Sustained: 3, 4-5, 7 Objections to Declaration of Lnri Morgan Overruled: 2, 6 Sustained in Part: 1, 4 Sustained Objections Overruled: Sustained: Objections Overruled: .3,57 Declaration of Laurie Goshe 1, 3-4, 7-8 2, 5-6 Declaration of Robert LaFont 1, 2, 8-9, 11-12, 14-15 to to Sustained in Part: 3, 7, 10, 13 Sustained: 4-6,...

Excerpt: ...g for a permissive intervention. A nonparty has a right under Code of Civil Procedure section 387, subdivision (b) to intervene in a pending action "if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest, unless that per...

Excerpt: ...ted exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues." (Code of Civ. Proc., 5 1281.2; Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.) Similarly, public policy under federal law fa...

Excerpt: ...er is obeyed; (3) dismissing that party's action, or any part thereof; or (4) entering default judgment against that party. (ld., 5 2023.030, subd. (d).) Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992, explains, "The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and its effect on the party seeking...

Excerpt: ...ode of Civil Procedure, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues." (Code of Civ. Proc., S 128...

Excerpt: ...reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due." Here, Defendants provided the following "Material Undisputed Facts" in...

Excerpt: ...vil Code section 1791.1, subdivision (c), provides, "The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new cons...

Excerpt: ... Code of Civil Procedure, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues.” (Code of Civ. Proc., �...

Excerpt: ...Civil Code section 1791.1, subdivision (c), provides, “The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new ...

Excerpt: ...nd 22. Request for Judicial Notice The Mendezes' request for judicial notice of prior filings in this case is granted as to Exhibits 1, 2, 4, 5, 9, 10, 11, 13, 14, 16, 17, 18, 19. (Cal. Evid. Code § 452(d).) Courts “may properly take judicial notice of a party's earlier pleadings and positions as well as established facts from both the same case and other cases.” (Cantu v. Resolution Tr. Corp. (1992) 4 Cal. App. 4th 857, 877.) The Court does...

Excerpt: ...allow an answer to be made after the time limited by this code. Code of Civil Procedure section 576 states, “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” “It is well established that ‘California courts “have a policy of great liberality in allowing amendments at any stage of the pro...

Excerpt: ...en above, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of fact exists. (Code Civ. Proc. § 437c(p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.) The court reviewing a motion for summary judgment must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 3...

Excerpt: ...personal service is relied upon but has not in fact taken place.” (Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1251.) “The filing of a proof of service creates a rebuttable presumption that the service was proper.” (Floveyor Int'l, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) On 6-15-22, Plaintiff filed Proofs of Service (POS) indicating that the Choi Defendants were served as follows: · Young Joo Ch...

Excerpt: ... Code of Civil Procedure section 425.16(g) provides that after an anti-SLAPP motion is filed, “All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this su...

Excerpt: ...n 12/1/22, is granted as to Exhibit A. Cross-Complainants' request for judicial notice, filed on 12/23/22, is also granted as to the Huntington Beach City Ordinances attached as Exhibits A, B, and C. Legal Standard “[T]he party moving for summary judgment 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. That is because of the general principle that a party who...

Excerpt: ...e is devoid of any such alternative motion. Rather, the notice of motion states that defendant Circle K Stores, Inc. “will, and hereby does move for summary judgment in Defendant's favor and against Plaintiff Mendy Nichols.” (Notice of motion, 1:4-5.) It then states that the motion is made under Code Civ. Proc. § 437c “on the ground that there is no triable issue as to any material fact and Circle K is therefore entitled to summary judgmen...

Excerpt: ...p. 16, ¶ 3) is DENIED. Defendants' Motion to Strike Plaintiffs' prayer for pre-judgment interest in its entirety (FAC, p. 16 ¶ 4) is GRANTED. The court notes that it has not considered the declaration of Defendants' counsel Crystal Rorabaugh except for statements/documents regarding meet and confer efforts, as they constitute extrinsic evidence which is not properly considered on demurrer. A demurrer can be used only to challenge defects that a...

Excerpt: ... 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.4th 445, 459.) Code of Civil Procedure section 452...

Excerpt: ...e or more issues of duty, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication...

Excerpt: ...en above, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of fact exists. (Code Civ. Proc. § 437c(p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.) The court reviewing a motion for summary judgment must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 3...

Excerpt: ...th prospective economic advantage, libel and slander. Civ. Proc. Code § 430.10(f) - Uncertainty Code Civ. Proc. § 430.10 (f) provides a defendant may object to a pleading by demurrer when “[t]he pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cann...

Excerpt: ...lleged 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 liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1...

Excerpt: ...s with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a): A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to th...

Excerpt: ...brogation of plaintiff Alliance Schools for Cooperative Insurance Program. In the alternative, Amazon.com moves for summary adjudication of seven issues, which relate to the four remaining causes of action against it. Notice of the motion was shortened to 43 days by stipulation of the parties. Plaintiff opposed the motion, and timely filed and served its opposition and responding separate statement on December 29, 2022, which was 14 days before t...

Excerpt: ...t should be resolved in favor of the application, to the end of securing to a litigant his day in court and a trial upon the merits.” (Frank E. Beckett Co. v. Bobbitt (1960) 180 Cal.App.2d Supp. 921, 928.) Section 473, subdivision (b) provides for two distinct types of relief—commonly differentiated as “discretionary” and “mandatory”—from certain prior actions or proceedings in the trial court. (Luri v. Greenwald (2003) 107 Cal.App....

Excerpt: ... be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” Santa Clara Cnty. C...

Excerpt: ... CCP § 418.10(a)(1) states, in relevant part, as follows: (a) defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her (emphasis added). A defendant who answers the complaint and fails to chall...

Excerpt: ...on. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Code Civ. Proc.,§ 2025.010.) “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, e...

Excerpt: ...y 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 liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4t...

Excerpt: ...�Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Id. § 1032, subd. (a)(4).) Pursuant to section 1033.5, subdivision (c), “(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall...

Excerpt: ...putated, presumably due to diabetes. Plaintiff claims no wheelchair ramp was available at the motel and he was forced to step up a curb with his left leg, which somehow caused an injury to his left leg that resulted in amputation. Therefore, Plaintiff's complete historical treatment for diabetes is crucial to this case. On February 23, 2022, Excelsior served Special Interrogatories, Set One to Plaintiff. This set included Special Interrogatories ...

Excerpt: ...er 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. [¶] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. [¶] (3) An objection to an interrogatory is without merit or too general. [¶] (b)(1) A motion under subdivision (a) sh...

Excerpt: ...dent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following: (1) The decedent's name. (2) The date and place of the decedent's death. (3) “No proceeding is now pending in California for administration of the decedent's estate.” (4) If the decedent's estate was administered, a copy of the final order showing the distribu...

Excerpt: ...per matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.) Motions to strike are used to challenge defects in the pleadings no...

Excerpt: ...ose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a): A party may move for summary judgment in any action or proceeding if it is contended that the...

Excerpt: ...e to state facts sufficient to constitute a cause of action against Defendants and is uncertain and ambiguous. (CCP § 430.10(e) and (f)). · Demurer to the Fourth Cause of Action for Asking Illegal Interview Questions in Violation of FEHA for failure to state facts sufficient to constitute a cause of action against Defendants and is uncertain and ambiguous. (CCP § 430.10(e) and (f)). · Demurrer to the Sixth Cause of Action for Intentional Infl...

Excerpt: ...ornia law favors the resolution of disputes in arbitration “as a speedy and relatively inexpensive means of dispute resolution.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (Moncharsh), internal quotations omitted.) As a consequence, the grounds for challenging an arbitration aware are limited: “[I]t is the general rule that, with narrow exceptions, an arbitrator's decision cannot be reviewed for errors of fact or law.” (Id. at p. 1...

Excerpt: ...to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” Code of Civil Procedure section ...

Excerpt: ...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. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without...

Excerpt: ..., CA 92782 and (3) 319 Lodestar, Tustin, CA 92782. The Motion is otherwise DENIED. [NOTE:The court provides this tentative ruling, but is concerned about the following matters, that counsel should be prepared to discuss: 1. If the court finds that there are questions of fact as to the damages recoverable, may the court rule on the other elements of the causes of action? 2. Conspiracy isn't an independent cause of action. Liability presupposes tha...

Excerpt: ...t may be filed at any time before the court has set the first trial date. (Code Civ. Proc. § 428.50(b).) A party shall obtain leave of court to file any cross-complaint except when one is filed within the time specified in subdivision (a) or (b). (Code Civ. Proc. § 428.50(c).) Leave of court may be granted “in the interests of justice” at any time during the course of the action. (Code Civ. Proc. § 428.50(c).) A Cross-Complaint is compulso...

Excerpt: ...2) plaintiff's performance or excuse for non-performance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.” (CDF Firefighters v. Maldonado (2008) 158 Cal. App. 4th 1226, 1239.) The SAC alleges that in February 2018, Jill agreed with Jeff and Jason that, notwithstanding the terms of the Trust, the three siblings would share equally all the property of the Trust. (SAC, ¶ 30.) As consideration, Jason agreed that he ...

Excerpt: ...licy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. To further that policy, Code of Civil Procedure, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with ...

Excerpt: ...) [re RFPs].) This includes orders that: “a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way.” (Code Civ. Proc., §§ 2025.420(b)(13) [depos], 2030.090(b)(6) [rogs], 2031.060(b)(5) [RFPs], 2033.080(b)(4) [RFAs].) Any motion for protective order “shall be” accompanied by a meet and confer declaration under Section 2016.0...

Excerpt: ...” (Id.) The Court assumes “the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Id.) “A demurrer must dispose of an entire cause of action to be sustained.” (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 119.) “As a general rule in testing a pleading against a demurrer the facts alleged in...

Excerpt: ...ws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.) Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Kamerlingh (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint ...

Excerpt: ...PS in dispute. Page two of Plaintiff's memorandum states, “Plaintiff requests the Court to order Defendant to comply with this Court's December Order by providing full, complete, and truthful code-complaint non evasive responses to RFP Nos. 5, 9, 13, 14, and 30-31 and producing all responsive documents without objections.” (Motion, p. 2:12.) However, Plaintiff's separate statement of discovery in dispute encompasses additional RFPs including ...

Excerpt: ... of Civil Procedure section 2030.300 provides in pertinent part: “(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. [¶] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specificat...

Excerpt: ...is 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 to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause o...