Excerpt: ...d 7th (Violation of Consumers Legal Remedies Act) causes of action in Plaintiffs' Second Amended Complaint. On 4/15/21, the Court sustained Defendant's demurrer to the third, fifth, sixth, and seventh causes of action in the original complaint with leave to amend. On 5/5/22, the Court sustained the demurrer to the 3rd, 5th, 6th, and 7th COAs in the First Amended Complaint with leave to amend. Plaintiffs filed the Second Amended Complaint (SAC) on...

Excerpt: ...urt 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 failed to state facts ...

Excerpt: ...oceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a)(1).) “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, if the party contends that the cause of action has no merit, that there is no affirmative defense to the ...

Excerpt: ...(b). Defendants' Objections Nos. 1 and 2 to the Declaration of Cristina Flores, RN, BSN, Ph.D. are SUSTAINED and No. 3 is OVERRULED. The court refers the objections as Nos. 1-3 even though the Defendants failed to number them consecutively in compliance with the California Rules of Court, rule 3.1354(b). Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of act...

Excerpt: ...as a substantial interest in the action as a whole. [¶] (2)The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” Section 36.5 states: “An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis o...

Excerpt: ...made after the time limited by this code.” Code of Civil Procedure section 576 provides, “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 proceeding so as to ...

Excerpt: ...ke shall be entitled to recover his or her attorney's fees and costs.” “[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) However, “when a defendant cannot in any realistic sense be said to have been successful, fees need not be awarded. (Moran v. Endres, (2006)135 Cal. App. 4th 952, 956.) In Mann v. Quality Old Time Service, Inc. (2006)...

Excerpt: ... BALC challenges the second and third causes of action alleged in the FACC on the grounds that the causes of action are precluded by the express terms of the financing agreement. In the FACC, Vivera alleges it entered into two separate contracts. First, the FACC alleges that “Vivera and Oracle entered into a written Subscription Services Agreement (“Service Agreement”) whereby Oracle promised and agreed to deliver and install its licensed a...

Excerpt: ...yan declaration are overruled. Plaintiff's objections to the Neeloufar Mahrouyan declaration are overruled. Legal Standard Code of Civil Procedure section 425.16(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 petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a sp...

Excerpt: ...ons.]” (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 1228, 1238, provides, “This rul...

Excerpt: ...de all of the following: [¶] (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any. [¶] (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the tit...

Excerpt: ...ed. . . . 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, states, “In the construction of a pleading, for the ...

Excerpt: ...aintiff's objections to the declaration of Defendant Waki, filed under ROA 376, are overruled. Defendants' objections to Plaintiff's declaration are sustained as to the legal conclusion in paragraph 2 that Plaintiff was an independent contractor, and the remaining objections are overruled. “[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 a...

Excerpt: ... considered to be an arbitration agreement subject to the statutory contractual arbitration law. [Citation.] Those statutory provisions represent a comprehensive statutory scheme for the arbitration of disputes. As such, the Legislature's use of the word “shall” in the statutory provisions which we now discuss makes them mandatory, not precatory. [Citation.]” (Louise Gardens of Encino Homeowners' Assn., Inc. v. Truck Ins. Exch., Inc. (2000)...

Excerpt: ...10, subd. (a)(1).) “[I]t is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where 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 C...

Excerpt: ...ny 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 accompanied by a meet and confer declaration under Section 2016.040 ...

Excerpt: ...very because a dispute leads a party to move for an order compelling [compliance with a discovery mechanism].” (See Clement v. Alegre, (2009) 177 Cal.App.4th 1277, 1291.) “Unless otherwise limited by order of the court . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to ...

Excerpt: ...ocedure, 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., § 1281.2; Acquire...

Excerpt: ... ROA 113. However, the objections do not comply with California Rules of Court, Rule 3.1354(b), which states that written objections to evidence at summary judgment must specifically identify the evidence objected to. Rule 3.1354 provides an example of how objections should be formatted. Here, Defendant objects to Plaintiff's additional material facts, which include citations to evidence. Many of the additional facts which Defendant objects to ci...

Excerpt: ...as the title and the causes of action of this lawsuit affecting title thereof are resolved is GRANTED. Defendant's request for judicial notice of Exhibits 1 through 5 is GRANTED. Code of Civil Procedure section 527, subdivision (a) provides: “A preliminary 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 ...

Excerpt: ...e to do either or both of the following: [¶] (1) Augment that party's expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.” Section 2034.610, subdivision (b) provides: “A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the depos...

Excerpt: ...int. [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 1228, 1238, provides,...

Excerpt: ...rly 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, 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 par...

Excerpt: ...uling, the court explained the deficiencies in Urquharts' (and Plaintiff's) showing of the Tech-Bilt factors and expressly noted that: · Neither Urquharts nor Plaintiff presented any evidence to show a rough approximation of Plaintiff's total recovery. There is no evidence regarding Plaintiff's current condition and/or his future prognosis, whether he is claiming any lost past or future earnings or future medical expenses. · Neither Urquharts n...

Excerpt: ...ity in permitting amendments to the pleadings “at any stage of the proceedings, up to and including trial” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Indeed, even if the plaintiff delayed in seeking leave to amend, if the delay had not misled or prejudiced the other side, the liberal policy of allowing amendments prevails and it is an abuse of discretion to deny leave. (Higgins v. Del Faro ...

Excerpt: ...ality in permitting amendments to the pleadings “at any stage of the proceedings, up to and including trial” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Indeed, even if the plaintiff delayed in seeking leave to amend, if the delay had not misled or prejudiced the other side, the liberal policy of allowing amendments prevails and it is an abuse of discretion to deny leave. (Higgins v. Del Far...

Excerpt: ...rities Corporation Mortgage Pass-Through Certificate Series 2005-16, The Wolf Law Firm, APC, and Aurora Loan Services, LLC for: (1) wrongful foreclosure; (2) quiet title; (3) cancellation of instruments; (4) slander of title; (5) violation of the HBOR; and (6) violations of the Unfair Competition Law. Notice of declaration of nonmonetary status (filed 6-16-17): By defendant The Wolf Firm. Notice of recording of pendency of action (filed 8-25-17)....

Excerpt: ...onsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Plaintiff moves to compel a further response to Form Interrogatories, Set One, number 15.1 from O'Keefe. Procedural Requirements Pursuant to California Rules of Court, rule 3.1345 subdivision (...

Excerpt: ...tion to Compel Response to Requests for Admissions 12. Motion to Compel Response to Requests for Admissions MOTION NOS. 1-3: Motions to Compel Further Responses to Form Interrogatories Defendant Ragini Patel's motion to compel plaintiffs Harshad Ray Patel (“Harshad), Akash Patel (“Akash”) and Akash Winery & Wineyards, LLC (“Akash Winery”) to provide supplemental, verified responses, without objections to Form Interrogatories (Set One) i...

Excerpt: ...o serve supplemental, verified responses to Form Interrogatories, Set One, number 15.1 within 20 days of this date. Gary Milo Chamness is also ordered to pay monetary sanctions of $4,500 to Plaintiffs and their counsel within 45 days of this date. Plaintiffs' Motion is MOOT as to the request for supplemental responses to Requests for Production, Set One, numbers 1, 2, 7, 8-10, 20-22, 27-28 and production of documents. Plaintiffs' Motion is DENIED...

Excerpt: ...e Section 1085, subdivision (a) provides that: “A writ of mandate may 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 i...

Excerpt: ...n 30 days of this date. PMH and its attorney, Burris Law are ordered to pay sanctions of $2,000 jointly and severally to WG within 30 days of this date. On receipt of responses to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (See Code Civ. Proc., §§ 2030.300, subd. (a)(1)-(3).) The...

Excerpt: ...tter generally styled D. Thomas v G. Thomas, Orange County Superior Court Case #: 15D011067. Ex. 6. Second District Court of Appeal, Division 6, State of California, Case Docket (Register of Actions) for Case #: B270906 in re Thomas v Thomas. Ex. 7. Fourth District Court of Appeal, Division 3, State of California, Case Docket (Register of Actions) for Case #: G053595 in re Thomas v Thomas. Ex. 8. April 6, 2016, Minute Order – D. Thomas v G. Tho...

Excerpt: ...e 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.” Plaintiff contends the motion for attorney fees is premature. The Court granted summary judgment as to Moving Defendants Moore and Quilligan, but the case proceeds as to the remaining ...

Excerpt: ...y the reasonable hourly rate prevailing in the community for similar work.” (Id. at 1320-1321.) “The Legislature, however, did not intend recovery of fees and costs as a windfall. . . .The prevailing party is entitled to a reasonable award . . . consequently, the trial court need not simply award the sum requested. . . To the contrary, ascertaining the fee amount is left to the trial court's sound discretion.” (Id. at 1321.) “Trial judges...

Excerpt: ...Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Additionally, a defendant may demurrer on the grounds that the pleading is uncertain. (Code Civ. Proc., § 430.30, subd. (f).) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly p...

Excerpt: ...ding, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Additionally, a defendant may demurrer on the grounds that the pleading is uncertain. (Code Civ. Proc., § 430.30, subd. (f).) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising question...

Excerpt: ...pectively). Plaintiff also challenges two Health Directives issued on December 3, 2020 and December 6, 2020. (Complaint ¶ 3.) Plaintiffs allege causes of action for: (1) violation of Cal. Gov't Code § 8572, (2) just compensation under California Code; (3) violation of the California Constitution, and (4) violation of the Due Process Clause of the 5th and 15th Amendment of the United States Constitution. Judicial Notice Defendants' request for j...

Excerpt: ..., 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 protect the person from unreasonable or oppressive demands, including unreasonable violations of the...

Excerpt: ...this equitable remedy, Plaintiff must anticipate a future injury. (Ibid.) Here, Plaintiff alleges at paragraphs 80-83, that Defendants owe money to Plaintiff in relation to Plaintiff's subrogation cases which were handled by Defendants, and Defendants have failed to make a reserve to repay Plaintiff's funds. At paragraphs 84-87, Plaintiff requests a judicial decree holding Defendants to account for all proceeds distributable to Plaintiff in conne...

Excerpt: ...ry judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” Code Civ. Proc. § 437c(h); see also CRC 3.1350(b). Here, the notice of motion indicates that Schindler is seeking summary adjudication and then sets four multi-sentenced grounds addressing purported deficienci...

Excerpt: ...lief and in situations other than as specified, the ‘prevailing party' shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” Code Civ. Proc. § 1032, subdivision (b) states: “Except as otherwise expressly provided by statute, a prevailing party...

Excerpt: ... 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 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 app...

Excerpt: ...it requires the trial court to become involved in discovery because a dispute leads a party to move for an order compelling [compliance with a discovery mechanism].” (See Clement v. Alegre, (2009) 177 Cal.App.4th 1277, 1291.) Code Civ. Proc. section 2017.010 provides in relevant part that “[u]nless otherwise limited by order of the court … any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject m...

Excerpt: ...s or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1.) Similarly, “[i]f a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thin...

Excerpt: ...is holding funds in a bank account that belongs to Michael D. Hooton (“Hooton”), over which Cruse and Collins claim ownership. Collins has cross-complained against Cruse for the right to the funds, which Cruse has answered. The interpleader statute permits “[a]ny person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give ris...

Excerpt: ...Res judicata' describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen). It “acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties.” (DKN Holdings LLC v. ...

Excerpt: ... are ordered to provide responses, without objections, to Shellpoint's Form Interrogatories, Set One and Special Interrogatories, Set One within 30 days of service of the court's order. Plaintiffs are ordered to pay monetary sanctions in the amount of $1,387.50 within 30 days of service of the court's order. Merits Shellpoint moves for an order compelling Plaintiffs to provide responses, without objection, to Shellpoint's Form Interrogatories, Se...

Excerpt: ...s of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no 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...

Excerpt: ...the Court discretion to amend a pleading “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper.” Subdivision (a) of CRC 3.1324 requires a motion for leave to amend a pleading before trial to: (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in t...