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: ...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: ...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...