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: ...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: ...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: ... 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: ...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: ...�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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ... 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: ...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: ... 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: ...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...