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: ...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: ...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...