Excerpt: ...e interests of justice support doing so. Defendants Spertus, Landes & Umhoffer, LLP and James Spertus' Motion to Compel Arbitration, however, limits the court's subject matter jurisdiction. Once a motion to compel is made, a court has jurisdiction to determine that (1) there is a valid agreement to arbitrate; (2) one party is refusing to arbitrate; and (3) the lawsuit must be stayed and the dispute ordered into arbitration. (Office & Professional...

Excerpt: ...shall provide responses, without objections, to Plaintiff's Form Interrogatories One within 15 days of service of Notice of Ruling. The Motion by Plaintiff Eric J. Hardeman to Compel Responses to Request for Production of Documents by Defendant Rock Advantage, Inc. is GRANTED. As a result of Defendant Rock Advantage, Inc.'s failure to serve timely responses, Defendant has “waive[d] any objection to the demand, including one based on privilege o...

Excerpt: ...tention,” or “retained limit,” generally refers to the amount of a loss or liability that the insured agrees to bear before coverage can arise under the policy. Although a self-insured retention ordinarily differs from a deductible in some respects, the term “self-insured retention” or “retained limit” in an insurance policy can reasonably connote to the insured no more than what is expressly stated in the policy. In other words, th...

Excerpt: ...Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.) If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (Civ. Proc. Co...

Excerpt: ... removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” Therefore, the ambiguously written cause must be construed against the drafter. Under the American rule, each party to a lawsuit ordinarily pays its own attorney fees. . . . Code of Civil Procedure section 1021, which codifies this rule, provides: ‘Except as attorney's fees are specifically pr...

Excerpt: ...as granted as to half of the factual allegation paragraphs and two of the three causes of action that Defendants sought to strike. As such, Defendants are entitled to an award of fees. Mandatory attorney's fees awarded under Section 425.16, subdivision (c), are those fees that the court deems reasonable. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132.) It is Defendants' burden of proof to show the fees it incurred and that the fees were reasonab...

Excerpt: ...mitations, Plaintiff raises various tolling arguments. Statute of Limitations. First, Plaintiff contends that the claims are tolled by the discovery rule. “Although a cause of action generally accrues, triggering the statute of limitations, when it is complete with all of its elements, accrual is postponed until a plaintiff discovers, or has reason to discover, the cause of action.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 147...

Excerpt: ...Cal.App.4th 471, 485 (when considering a demurrer, trial court may take judicial notice of answers to requests for admission.).) Defendants argue that the First Amended Complaint (“FAC”) is a sham pleading because the original Complaint alleged that Defendants' statements regarding imminence were fraudulent, but the FAC now claims Plaintiff actually agreed with the decision to delay the liquidity event, contradicting his prior pleading. The s...

Excerpt: ...ng for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff's complaint, as “the pleadings set the boundaries of the issues to be resolved at summary judgment.” (Oakland Raiders v. National Footb...

Excerpt: ...nt bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment...

Excerpt: ...default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.'” Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385–386. If Plaintiff had not taken Defendant's default, then the Court ...

Excerpt: ...0) 184 Cal.App.4th 1422, 1428.) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Id. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. (Higgins v. Del Faro (1981) 123 CA3d 558, 564- 565.) Cabrillo seeks leave to amend the Cross-Complaint to add causes of action for breach of implied duty to perform ...

Excerpt: ...agraph 10 permitted limited discovery. Interrogatories was limited to identification of witness. Request for Production was limited to 25 requests. Depositions consisted of two eight-hour depositions of fact witnesses and one two eight-hour deposition of expert witnesses. Upon request of the parties, the arbitrator had authority to allow additional discovery. “The arbitration will be administered by the American Arbitration Association (‘AAA'...

Excerpt: ...framework for evaluating potential invasions of privacy, explaining: “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Id. at 552). “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party se...

Excerpt: ...at p. 2.) Instead, Defendant offered to supplement responses on the condition that Plaintiff respond to a settlement offer by the next business day. (Id.) Plaintiff's decision not to accept that conditional offer does not evidence a failure to meet and confer in good faith. Code of Civil Procedure section 2033.220 provides that should the responding party give lack of information or knowledge as a reason for failure to admit all or part of an RFA...

Excerpt: ... bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment i...

Excerpt: ... Richfield Co. (2001) 25 Cal.4th 826, 850-51.) If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc., § 437c(p)(2); Aguilar, 25 Cal.4th ...

Excerpt: ... beyond a broken contractual promise,” in order to recover tort damages]; see also Aas v. Superior Court (2000) 24 Cal.4th 627, 632 [economic loss rule bars an action in tort for purely economic losses in the absence of personal injury or damage to property other than the product itself], superseded by statute in construction defect actions as stated in Burch v. Superior Court (2014) 223 Cal.App.4th 1411, 1417; KB Home v. Superior Court (2003) ...

Excerpt: ...cate any intent to seek relief pursuant to this provision. Applying the 3-year statute of limitation, the Complaint makes clear Plaintiffs were entitled to a reconveyance on or about July of 2015. (See ¶14 of the Complaint). While Plaintiffs' Opposition asserts the claim did not accrue until 2019, when Plaintiffs incurred legal costs in pursuing this action, the Complaint alleges the Deed of Trust damaged Plaintiffs by impairing the “vendibili...

Excerpt: ...ply with Corporations Code section 2105, the court sustained the demurrers of Defendants DynaPass, Inc. (“DynaPass”) and Miguel Medina (“Medina”) (together, “Defendants”) on the basis that Plaintiffs lacked capacity to maintain the instant action. (Id.) On May 13, 2019, Plaintiffs filed their Fourth Amended Complaint (“4AC”). Defendants demur to the 4AC, inter alia, on the grounds that Plaintiffs lack capacity to sue. California l...

Excerpt: ...more favorable judgment or settlement in the action in which the malpractice allegedly occurred. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) The “but for” test of causation applies to a legal malpractice claim re settlement of litigation. (Id. at 1242.) The plaintiff need not prove causation with absolute certainty: he can present evidence “which affords a reasonable basis for the conclusion that it is more likely than not that the condu...

Excerpt: ...ements with the public policy favoring equitable sharing of costs among tortfeasors. To accomplish this, the settlement must be within the “reasonable range” (within the “ballpark”) of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) The California Supreme Court in Tech-Bilt v. Woodward-Clyde & Assoc., 38 Cal.3d 488 (1985), set forth the fact...

Excerpt: ...�1237. Tolling of Statute of Limitations: In the FAC, the new Paragraphs 41 to 47 set forth Plaintiff's health history. Plaintiff has Type I Diabetes, urea toxicity and numerous other symptoms. He underwent dialysis, which lead to dialysis dementia. He developed fading eyesight and decline in short term memory. Plaintiff contended that he was incapable of caring for his property, transact business and understand the effects of his action. Code Ci...

Excerpt: ...idence of malice, oppression or fraud warranting punitive damages; (2) Defendants are entitled to Summary Adjudication as to Plaintiffs' request for punitive damages as to their Second Cause of Action for Violation of Civil Code Section 1942 as Plaintiffs have not provided clear and convincing evidence of malice, oppression or fraud warranting punitive damages; (3) Defendants are entitled to Summary Adjudication as to Plaintiffs' request for puni...

Excerpt: ...e convenient forum. (See Code Civ. Proc., § 410.30, subd. (a).) A nonresident Plaintiff's choice of forum is entitled to “due deference” under all circumstances, but not a “strong presumption” of appropriateness. (National Football League v. Fireman's Fund Insurance Company (2013) 216 Cal.App.4th 902, 929- 930.) When Defendant seeks a dismissal of the action, Defendant must establish that this forum is a “seriously inconvenient” foru...