Excerpt: ...e verified responses, without objections, to Plaintiff Jamie Askew's Form Interrogatories, Set One is GRANTED. New evidence submitted with Reply: “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537.) However, where the evidence is to fill in gaps raised by the opposition or goes to the admissibility of evidence submitted in opp...

Excerpt: ...endez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal. App. 5th 248, 262. Elements of an action for private nuisance are: (1) plaintiff must prove an interference with his use and enjoyment of his property; (2) invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, that is, that it causes plaintiff to suffer substantial actual damage; (3) interference with the protected interest must not only be substa...

Excerpt: ...rit if that 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 that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (...

Excerpt: ...n for fraud for uncertainty and failure to state a cause of action. 1. Uncertainty When a demurrer is made on the ground of uncertainty, it must specify exactly how or why the pleading is uncertain, and where such uncertainty appears. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds by Katzberg v. Regents of Univ. of Calif. (2002) 29 Cal. 4th 300, 328 fn. 30, [generally, the failure to spe...

Excerpt: ...tiff's entitlements for the development have not yet been issued by the City of Huntington Beach. Plaintiff responds that this is an affordable housing project covered by SB 35 and the City's approval of this particular project is therefore ministerial, not discretionary. To be the proper subject of declaratory relief, a controversy must be “ripe,” as stated in Zolly v. City of Oakland (2020) 47 Cal.App.5th 73, 90–91 (citations and internal...

Excerpt: ... the statement history, BTS records, deposit and withdrawal records of those accounts from inception to the present date now in your custody.” Moving Defendants argue that the subpoena is overbroad and violates their right to financial privacy. SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755–756, holds that corporations have a lesser right to privacy than individuals: “We conclude corporations do not have a right of...

Excerpt: ...uhart collided with Plaintiff in lane #1, causing Plaintiff to land in lane #2. Right before Defendant James Urquhart collided with Plaintiff, Defendant Madison McKeown was driving behind James and when James slowed upon seeing Plaintiff, Madison changed into lane #2 and subsequently ran over Plaintiff when he fell into her lane. “To determine whether a settlement is in good faith, a trial court must inquire ‘whether the amount of the settlem...

Excerpt: ... 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 of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Go...

Excerpt: ...ntain that Defendant's responses are insufficient. Code of Civil Procedure section 2031.220 provides, “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demande...

Excerpt: ...ormance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) In the demurrer, Defendant argues, “It is clear from the language of the contracts that Plaintiff's returns on his investment is a future even that is yet to be determined. To assert a breach of contract cause of action here is premature.” Here, Plaintiff alleges at paragraph 38 of the FAC, “In or ab...

Excerpt: ...�Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall: . . . [¶] (3) Make available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.” In support of the third cause of action the Complaint alleges that: “In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant...

Excerpt: ...l must be injured by his reliance. (US Ecology, Inc. v. California (2005) 129 Cal.App.4th 887, 901.) “[T]he doctrine of promissory estoppel is essentially equitable in nature.” (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8.) It “employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced.” (Raedeke v. Gibraltar Sav. & Loan Assn. (1974)...

Excerpt: ...des, “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 consumer goods to a retail buyer. Where no durati...

Excerpt: ...against Plaintiff Scott Mullins is DENIED. Defendants move pursuant to Code of Civil Procedure Section 1008 which states in pertinent part: “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or di...

Excerpt: ... with your preparation of the accounting attached hereto as Exhibit 1. 2. ALL COMMUNICATIONS between YOU and DEEPAK relating to the accounting attached hereto as Exhibit 1.” The subpoena defines “DEEPAK” to include Defendant's agents or attorneys. If an “expert is solely retained as a consulting expert, the attorney-client privilege applies to communications made by the client or the attorney to the expert in order for the expert to prope...

Excerpt: ...ions] When the parties to an arbitrable controversy have agreed in writing to arbitrate it and one has refused, the court, under section 1281.2, must ordinarily grant a petition to compel arbitration.” (footnotes omitted) The burden is on the party opposing arbitration to show that the contract cannot be interpreted to cover the claims, and any doubt as to whether plaintiff's claims come within the arbitration clause must be resolved in favor o...

Excerpt: ...operty and confirm beneficiary distributions. A Notice of Related Case was filed on 6/18/21. California Rules of Court, Rule 3.300(h)(1)(C) states the Presiding Judge must determine whether a probate case should be ordered related: “(h) Judicial action (1) Related cases pending in one superior court If all the related cases have been filed in one superior court, the court, on notice to all parties, may order that the cases, including probate an...

Excerpt: ...ent to arbitrate the controversy exists,” except under certain situations outlined by statute. (Code Civ. Proc. § 1281.2.) The Court will not order arbitration of the controversy if: (a) the right to compel arbitration has been waived by the petitioner; (b) grounds exist for the revocation of the agreement; (c) a party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out o...

Excerpt: ...xhibit A thereto). Defendant concedes having received these Amended responses and does not dispute that they were properly verified. (Reply: 2:10-12). In response, Defendant refers back to the lack of verification as to the initial responses and “requests that the Court order Plaintiff to verify his December 17, 2021 responses forthwith.” (Reply: 2: 15-16). However, the initial responses have been superseded by the responses served on May 26,...

Excerpt: ...ment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; [¶] (2) State what allegations in the previous previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and [¶] (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the...

Excerpt: ...ney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. . . Reasonable attorney's fees shall be fixed by the court, and shall be an element of the ...

Excerpt: ...s, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the prevailing party.” Application of Civil Code section 3426.4 “naturally raises three questions: Is the defendant the prevailing party? Was the claim made in bad faith? And what is a reasonable fee?” (Cypress Semiconductor Corp. v. Maxim Integrate...

Excerpt: ...rof. Code § 17200, (2) violation of the California False Advertising Act – Bus. & Prof. Code § 17500, (3) violation of the Uniform Trade Secrets Act – Civ. Code § 3426, (4) conversion, (5) breach of written contract [against Defendant Deihimi], (6) breach of written contract [against Defendant Mai], (7) intentional interference with economic relations, (8) breach of agreements memorialized in writing and of the terms of the stipulation fil...

Excerpt: ...le 8.1115(b) applies (that opinion is relevant under the doctrines of law of the case, res judicata or collateral estoppel, or to a criminal or disciplinary action involving the same defendant or respondent in another such action).Thus, the request to judicially notice an order made by a Superior Court is improper. Plaintiff's request for judicial notice is GRANTED. Code of Civil Procedure section 1281.2 states in part, “On petition of a party ...

Excerpt: ...g under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. [¶] (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” Defendant has shown that on August 13, 2021, Defendant s...

Excerpt: ...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) shall be a...

Excerpt: ... with Requests for Production, Set One on October 22, 2021, by mail. (¶4 of Medvei Declaration and Exhibit 1 thereto). As a result, a response was due on or before November 26, 2021. (See C.C.P. §2031.260(a) and C.C.P. §1013(a)). Per Counsel, as of the date this Motion was filed, Defendant had not responded. (¶5 of Medvei Declaration). While Defendant's Counsel declares Defendant provided responses to Plaintiff's Request for Production, Set O...

Excerpt: ...at the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16(b)(1).) “Section 425.16 posits ... a two-step process for determining whether an action is a [strategic lawsuit against public participation]. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court...

Excerpt: ... unobjectionable under our jurisprudence.' [Citation.] 'Nevertheless, a court may decide in its discretion to stay civil proceedings ...' when the interests of justice seem[ ] to require such action.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885). “The decision whether to stay civil proceedings in the face of a parallel criminal proceeding should be made 'in light of the particular circumstances and competing interests invol...

Excerpt: ...40, subd. (b).) “If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff's response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § ...

Excerpt: ...n affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary injunction shall be granted without notice to the opposing party.” The burden is on Plaintiff to show all elements necessary to support issuance of the injunction. (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) “A superior court must evaluate two interrelated factors when r...

Excerpt: ...(only to the extent paragraph 29 states “my supervisor”), 20-21, and 31-52. The remaining objections are OVERRULED. Issue No. 1: Plaintiff's First Cause of Action for discrimination in violation of California's Fair Employment and Housing Act (“FEHA”) on the basis of disability fails because WDPR had a legitimate, non-discriminatory basis for issuing Plaintiff a Performance Development Notice (“PDN”) and terminating his employment and...

Excerpt: ...judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid.Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Rich...

Excerpt: ...his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action. . . . The particularity required in pleading facts depends on the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff; less particularity is required where the defendant may be assumed to have knowledge of the facts equal to that ...

Excerpt: ... file a second amended complaint within 20 days. Defendants' request for judicial notice is denied as irrelevant to this motion. First COA - Violation of California Civil Code Section 2923.55 and/or 2923.5 In the first cause of action of the first amended complaint (“FAC”), Plaintiffs allege Defendants violated statutory provisions related to recordation of the Notice of Default. Plaintiffs allege Moving Defendants were the loan servicer at t...

Excerpt: ...dependent adult' means any of the following: [¶] (1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. [¶] (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. [¶] (3) Financial abuse, as defined in Section 15610.30.” Welfare & Institutions Code § 15610.57, subdivision (a)(1) defines n...

Excerpt: ...e Declaration of Amy Nguyen are OVERRULED. Defendant's Objections to the Declaration of Alyssa Pimentel are SUSTAINED. Defendant's Objections to the Declaration of Chloe Neely are SUSTAINED. Defendant's Objections Nos. 7, 8, 9, and 10, to the Declaration of Corina Pham are SUSTAINED and the remainder are OVERRULED. Defendant's Objections to the Declaration of Josephine Mirra Chhay are OVERRULED. Defendant's Objections Nos. 11, 12, and 14, to the ...

Excerpt: ...lace, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” Here, Defendants seek a psychiatric and neuropsychological examination of Plaintiff. Defendants have shown good cause for the examination based on Plaintiff's claims of psychological i...

Excerpt: ...the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described 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 ...

Excerpt: ... to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included i...

Excerpt: ...ising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.) Here, Petitioner has alleged denial of increased benefits under the Pandemic Unemployment Assistance program. In the operative amended petition, Petitioner alleges a single cause of action with the following title: “EDD has willfully m...

Excerpt: ...4 [260 Cal.Rptr. 183, 775 P.2d 508].) Aiding and abetting requires not agreement, but simply assistance. The common basis for liability for both conspiracy and aiding and abetting, however, is concerted wrongful action. (Howard v. Superior Court (1992) 2 Cal.App.4th 745, 749 [3 Cal.Rptr.2d 575]; Rest.2d Torts, § 876.) A corporate employee cannot conspire with his or her corporate employer; that would be tantamount to a person conspiring with him...

Excerpt: ...ct, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307). Here, while the Complaint alleges an agreement the parties would jointly purchase the relevant property as 50/50 owners, for $250,000 each, the Complaint concedes that Plaintiff was unable to pay $250,000 up front....

Excerpt: ...g of a deposition, the court, upon motion reasonably made by any person described 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 ...

Excerpt: ...t or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought. ¶ (b) The motion shall include all of the following: ¶ (1) Identification of the ...

Excerpt: ... Leffel to file an amended cross- complaint expires. As a threshold matter, on April 21, 2022, Leffel dismissed his Eleventh Cause of Action for intentional misrepresentation/fraud, so the demurrer as to this claim is moot. STANDARD OF LAW “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine “whether the complaint alleges...

Excerpt: ... of limitations. On 4/15/21, the Court sustained Defendant's demurrer to the foregoing causes of action in the original complaint with leave to amend. Plaintiffs' First Amended Complain (“FAC”) filed on 5/5/21 includes the addition of paragraphs 62 and 63, which state: “62. On or about October 18, 2018, with approximately 27,876 miles on the odometer, Plaintiffs had the Subject Vehicle towed to Defendant's authorized repair facility complai...

Excerpt: ...in ten days of service of notice of this order. Defendants' request for judicial notice of the Declaration of Plaintiff's owner, Hyung Kim, is DENIED. “The declaration of an adverse party is not a proper subject for judicial notice.” (Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192.) 1st COA - Misappropriation of Trade Secrets: Plaintiff alleges that it employed Defendant Yoo as a Sales and Delivery Manager...

Excerpt: ...a complete defense.” (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 t...

Excerpt: ...enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. . Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.” Further, Code of Civil Proce...

Excerpt: ...INS the objection to the last sentence based on lack of personal knowledge but OVERRULES the objection as to the first two sentences. For Objection No. 9, the Court SUSTAINS as to “I know from my review of the case file that the main insurance adjuster assigned by Allstate to work on this case file, Mr. Eric Trinidad, disappeared for several weeks during the pendency of this case.” And OVERRULES the Objection to the remainder. The Court OVERR...

Excerpt: ...hat party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show tha...

Excerpt: ...told me that she and Plaintiff were running around and playing underneath the bleachers when Plaintiff struck her head into a metal support beam.” And OVERRULES the remaining portion. The Court OVERRULES the objection to ¶5 the Declaration of Juan Carlos Quezada. The Court OVERRULES Defendant's Objections Nos. 1, 2, and SUSTAINS Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12. Code of Civil Procedure section 437c, subdivision (f)(1), provides, in par...

Excerpt: ...LED. “[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 seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid.Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fa...

Excerpt: ...tive negligence or comparative fault.” (CCP § 877.6(c).) STANDARD OF LAW “Any party to an action in which it is alleged that two or more parties are joint tortfeasors 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 . . . and one or more alleged tortfeasors or co- obligors, upon giving notice[.]” (CCP § 877.6(a).) “A determination by the court t...

Excerpt: ...ustice. It appears AAA's counsel mistook an extension to file an Answer as an extension to file a Demurrer. (Plf.'s Evid., Ex. 8.) STANDARD OF LAW “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Co...

Excerpt: ...arriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071; see Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 291.) The policy disfavoring equitable relief based on an understandable distaste for the forfeiture of a judgment, the policy's basis is weaker when there has been no judgment entered. (Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 982.) This motion was properly brought under Code Civ. Proc. § 473.5 because Defendant claims that service of the...

Excerpt: ...et and confer declaration under Code of Civil Procedure section 2016.040.19 (Code Civ. Proc., § 2031.060, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b); cf. Code Civ. Proc., § 2031.060, subd. (b).) ¶ C...

Excerpt: ..., where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. . . Reasonable attorney's fees shall b...

Excerpt: ...plaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (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 9...

Excerpt: ...r Plaintiff is entitled to a return of the Deposit from Defendant IES. iv. Whether there are any continuing duties between the Parties, and if so, what such duties consist of. v. Whether the Contract between Defendant IES and Plaintiff is terminated by the judgment so that Defendant IES's only remaining duty to Plaintiff is to return Plaintiff's deposit to him in Miami Dade County, Florida.(FAC, ¶ 26.) Code of Civil Procedure section 1060 provid...

Excerpt: ...h reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157 (Rannard).) “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 84...

Excerpt: ... Action for negligent infliction of emotional distress as to Catherine Tiano for failure to plead any duty owed to Plaintiff by Catherine Tiano and the breach of that duty. Tiano Defendants' Demurrer is OVERRULED as to the Second Cause of Action for intentional infliction of emotional distress as to Jack Tiano, and the Fourth Cause of Action for elder abuse. As the Court already granted Plaintiff leave to amend the FAC pursuant to its March 3, 20...

Excerpt: .... Defendants request $2,043.75 in sanctions for needing to oppose the Motion. Prior to Plaintiff filing the motion, Defendants informed Plaintiff numerous times that federal law precluded the production of the documents requested by the third party. Based on the foregoing, the Court declines to award sanctions. Accordingly, Plaintiff Denise Thomas' Motion to Quash is DENIED as MOOT. Moving party to give notice. 2. Motion to Compel Further Respons...

Excerpt: ...intiff's objections 1-2 and 5-17 to the Declaration of Eric Y. Waki, M.D. are overruled and objections 3-4 and 18 to the Waki declaration are sustained. Plaintiff's objections to exhibits attached to the Waki declaration are overruled. Plaintiff's objections to the declaration of George S. Burns are overruled. Defendant's objections to paragraph 11 and 15 of the Declaration of Jason Kim, M.D. are sustained and the remaining objections to the Kim ...

Excerpt: ...nd serve an amended complaint within fourteen (14) days of notice of this ruling. STANDARD OF LAW “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court assumes “the truth of the properly pleaded ...

Excerpt: ...other grounds for demurrer as stated in the below ruling. Cross Comp[lainant is granted 21 days leave to file and serve an amended cross complaint. STANDARD OF LAW “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense...

Excerpt: ...ation of the controversy if: (a) the right to compel arbitration has been waived by the petitioner; (b) grounds exist for the revocation of the agreement; (c) a party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact; or (d) for certa...

Excerpt: ... the action or proceeding until an arbitration is had in accordance with the order to arbitrate[.]”) STANDARD OF LAW “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the con...

Excerpt: ...party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid.Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgmen...

Excerpt: ...n 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 made, and what new or different facts, circumstances, or law are claimed to be shown.” New York Times Co. v. Superior ...

Excerpt: ...4.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” Code Civ. Proc. § 577 states: “A judgment is the final determination of the rights of the parties...

Excerpt: ...n 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 the pleading are deemed to be true, however improbable they may be,” unless the “complaint contains alleg...

Excerpt: ...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 the pleading are deemed to be true, however improbable they may be,” unless the “complaint contains allegations of fact inconsistent with attached documents, or allegations contr...

Excerpt: ...tion in which it is alleged that two or more parties are joint tortfeasors 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. … [¶] … [¶]  (b) The issue of the good faith of a settlement may be determine...

Excerpt: ...udicial 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 the pleading are deemed to be true, however improbable they may be,” unless the “complaint contains allegations of fact inconsistent with attached documents, or allegatio...

Excerpt: ...e taken within that time limit.” (CCP § 2034.710(b).) “Under exceptional circumstances, the court may permit the motion to be made at a later time.” (Id.) “The motion shall be accompanied by a meet and confer declaration[.]” (CCP § 2034.710(c).) “The court shall grant leave to submit tardy expert witness information only if [three] conditions are satisfied[.]” (CCP § 2034.720.) First, “[t]he court has taken into account the ext...

Excerpt: ...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: [¶] (1) Identify the name of the document in which the specific material objected to is located; [¶] (2) St...

Excerpt: ...roversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: ¶ (a) The right to compel arbitration has been waived by the petitioner; or ¶ (b) Grounds exist for the revocation of the agreement. ¶ (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there ...

Excerpt: ... due on or before April 7, 2020, but Defendants requested and Plaintiff granted an extension of time to respond until April 30, 2020. (Pittaluga Dec. ¶ 6.) Defendants did not respond to any of said written discovery by the time the discovery motions were filed on May 27, 2020. (Id.) “If a party to whom interrogatories are directed fails to serve a timely response . . . [the party] waives any right to exercise the option to produce writings . ....

Excerpt: ...ach, for Plaintiff to ask the questions at issue in this Motion, and any follow-up questions as necessary within the scope of the Court's November 21, 2019 Order as discussed in this ruling. IT IS FURTHER ORDERED THAT Defendants' counsel shall only instruct the witnesses not to answer on the basis of an applicable privilege and not based on any other objection. Plaintiff's Motion for Order Appointing Discovery Referee is DENIED. Plaintiff's Reque...

Excerpt: ...r her job, and (3) was subjected to adverse employment action because of the disability. [Citation.] Once the employee establishes his or her prima facie case, ‘the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action.' [Citation.] The employee may still defeat the employer's showing with evidence that the stated reason is pretextual, the employer acted with discriminatory animus, ...

Excerpt: ...at there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more af...

Excerpt: ...ry injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary injunction shall be granted without notice to the opposing party.” Code of Civil Procedure section 526(a) provides, “(a) An injunction may be granted in the following cases: (1) When it appears by the c...

Excerpt: ...he party.” (CCP § 128.7(a).) “An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” (Id.) By their signature, “an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is n...

Excerpt: ...dants demur to the first cause of action on the grounds that it is barred by the 5-year statute of limitations. A claim to recover real property is governed by the Code of Civil Procedure Sections 318 and 321. Section 318 states: “No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the...

Excerpt: ...uling. STANDARD OF LAW Special interrogatory responses shall contain: (1) an answer containing the information sought to be discovered; (2) an exercise of the party's option to produce writings; and/or (3) an objection to the particular interrogatory. (CCP § 2030.210(a).) “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (CCP § 203...

Excerpt: ...dence supported the administrative decision.” (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1567-1568 (Hildebrand).) “If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is not supported by the evidence in the record, the court may order the department to resc...

Excerpt: ...a disposition of cases on the merits. (Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) The Court GRANTS Defendants' Request for Judicial Notice in its entirety. The Court OVERRULES Defendants' objections to Nos. 1, 2, 3, 4, 5, 6, 7. Code of Civil Procedure section 425.16, subdivision (b), states, in part, “(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of ...

Excerpt: ...g objections. Code of Civil Procedure section 410.10, states, “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Code of Civil Procedure section 418.10, subdivision (a)(1), provides, “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 moti...

Excerpt: ...rder 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) ...

Excerpt: ...oodward-Clyde & Assocs. (1984) 38 Cal.3d 488, 499.) In making such a determination, the court considers the following factors: (1) a rough approximation of plaintiffs' 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 after a trial; (5) the fin...

Excerpt: ...City's negotiations to purchase real property near Petitioner's property which is owned by a third party, the Kinstler Family Trust, and was formerly the site of a Stein Mart (“Kinstler Property”). Petitioner's request for judicial notice of City Council meeting minutes, agendas, and official video recordings is granted under Evidence Code section 452. Petitioner's objections to Respondent's evidence are overruled. First COA for Violation of ...

Excerpt: ... served responses on 12-14-21. Defendants further contend that the Metadata of the PDF only indicates the date the PDF was created, meaning the electronic file. Defendants indicate the documents were scanned on 12-23-21. Defendants also provided an email showing that responses were sent from Defendants' counsel to Defendants on 12- 14-21. Based on the foregoing, Defendants have provided sufficient evidence that their responses were timely served....

Excerpt: ...bitration Provision)” on May 21, 2016 (“RISC”) with Courtesy Chrysler Dodge Jeep Ram in San Juan Capistrano (“Courtesy”) for the purchase of a 2019 Jeep Cherokee VIN: 11C4PJLDN6KD325993 (“Subject Vehicle”). (Burkard Decl. ¶2, Ex. A.) Neither defendant FCA not defendant Coastline is a signatory to the RISC. FCA manufactured and distributed the Subject Vehicle and Coastline repaired the Subject Vehicle. (Motion, 6:21-23.) Federal Arb...

Excerpt: ...mplete, an exercise of the option to produce documents under Code of Civil Procedure section 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc. § 2030.300(a).) Answers to interrogatories are to be “as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Pro...

Excerpt: ...n (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that 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 that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts e...

Excerpt: ...tion of the subject of the cause of action alleged in the complaint. ¶(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.” Generally, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999, 79 CR2d 544, 546 (citing text); Southern Calif. Edison Co. v. City of Victorville (2013) 217 CA4th 218, 227; Templo v. State of Calif. (2018) 24 Cal.App.5th...

Excerpt: ...12.4, 12.5, 12.6, 12.7, 14.1, and 14.2, is GRANTED. Code Civ. Proc. § 2030.210 states: “(a) The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: ¶ (1) An answer containing the information sought to be discovered. ¶ (2) An exercise of the party's option to produce writings. ¶ (3) An objection to the particular interrogatory.” Each answer in the ...

Excerpt: ...ides: “Electronic exhibits must meet the requirements in rule 2.256(b). Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” (Emphasis supplied.) The Court considered denying the Motion based on this noncompliance. Code of Civil Procedure sec...