Excerpt: ... Mar, California, 92625 for the purposes of a destructive testing Site Inspection within ten (10) business days of the Court's ruling. Defendants identify five different locations on the Property where they seek to perform subsurface exploration. Defendants seek to excavate a test pit at each location with varying dimensions — the largest being 18 inches by 18 inches, extending to a depth of approximately 36 inches. Defendant argues these excav...

Excerpt: ... amount of costs and ex#nses, including attorney fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.(Civ. Code, S 1794, The plain wording of section 1794, subdivision (d) requires the trial court to base the prevailing buyer's attorney fee award upon actual time expended on the case, as long as such fees are reasonably incurre...

Excerpt: ...(4) violations of Civil Code sections 2924 et seq., (5) violation of Business and Professions Ctxle sections 172W et seq., (6) quiet title, and (7) injunctive relief. The court need not reach the merits of the Demurrer because the Demurrer is untimely. A demurrer must be filed "within 30 days after service of the complaint." (Code Civ. Proc., S 430.40, subd. (a).) The "demurring party shall be granted an automatic 30- day extension of time within...

Excerpt: ..., rather than judgment on a particular issue; that a party is only entitled to damages upon proof of liability for the underlying cause of action; that the amount of damages is merely an element of the cause of action; and that this is not a proper use of the summary adjudication procedure as adjudication must be of an entire “cause of action” or claim. Plaintiffs assert they are not asking the Court to issue an order that they should be awar...

Excerpt: ... Civil Procedure section 1062.3 states: (a) Except as provided in subdivision (b), actions brought under the provisions of this chapter shall be set for trial at the earliest possible date and shall take precedence over all other cases, except older matters of the same character and matters to which special precedence may be given by law. (b) Any action brought under the provisions of this chapter in which the plaintiff seeks any relief, in addit...

Excerpt: ...rises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint. (Code Civ. Proc., S 426.10(c).) When a party fails to file a compulsory cross-complaint at the time of answering the complaint, whether through oversight, inadvertence, mistake, neglect, or other cause, that party may seek leave to file a cross-complaint at any tme during the course of the ac...

Excerpt: ...action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court." (Code Civ. Proc., S 525.) Pursuant to Code of Civil Procedure section 527: "A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affdavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary inj...

Excerpt: ...served, the proof of service fails to identify the individual on whom substitute service was effectuated, and service was not performed by a registered process server. Thus, the proof of service does not create a rebuttable presumption that service was proper. With regards to The Village Delrey Apartments LLC, Defendants argue there is no evidence of service. Plaintiffs do not oppose the instant motion. Unlike most motions where the moving party ...

Excerpt: ... Court finds this Motion was timely filed. (Code Civ. Proc., S 2025.480(b).) The disputed depositon questions are: • Do you agree that if there's two options, the reasonable person would choose the safer or the reasonable person should choose the safer of the two options? • Do you believe it would have been safer for pu to wait for the intersection to be clear pu made pur left — Defense counsel objected and instructed Defendant not to answe...

Excerpt: ...instant motion does not address all issues in Plaintiff's Complaint, and thus, did not negate all theories of liability alleged by the Plaintiff in his Complaint. There is a three-step analysis for the court to determine a summary judgment motion. (Hawkins v. Wilton (21W6) 144 Cal.App.4th 936, 939-940.) "First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that...

Excerpt: ...ormed without a contractor's license. Business and Professions Code secton 7031(a) expressly provides the following: "[NIO person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that they ...

Excerpt: ...a rough approximation of plaintiff's total recovery and the settlor's proportionate liability; • a recognition that the settlor should pay less in settlement than if found liable after a trial; • the financial conditions and insurance policy limits of the settling defendant; and • evidence of any collusion, fraud, or tortious conduct between the settlor and the plaintiffs aimed at making the non-settling parties pay more than their fair sha...

Excerpt: ... with the Court's May 24, 2023 Order granting Defendant's motons to compel production and responses to form and special interrogatories. The trial court should tailor the sanction for such conduct to "fit the crime." (Reedy v. Bussell 148 Cal.App.4th 1272, 1293.) The court cannot impose sanctions as punishment; the choice of sanctions should not give the moving party more than it would have gotten had the discovery been responded to. (Doppes v. B...

Excerpt: ... S 473(a).) When a party seeks to amend a pleading, the motion to amend must include a copy of the proposed amendment, state the allegations to be deleted, and state allegations to be added. (Cal. Rules of Court, rule 3.1324, subd. (a).) Moreover, the moving party must submit a declaration that specifies: "(1) [t]he effect of the amendment; (2) [w]hy the amendment is necessary and proper; (3) [w]hen the facts giving rise to the amended allegation...

Excerpt: ...ar accidents; (3) the City is entitled to design immunity and had no notice of any alleged dangerous condition; and (4) the Cross-complaint is barred by the Government Claims Act because Snell filed his pleading before submit-tng a government claim. Snell's Evidentiary Objections Objections 1-4: OVERRULED. The City's Evidentiary Objections Objections 1-3: OVERRULED. Snell's Cross-complaint against the City alleges a cause of action for Comparativ...

Excerpt: ...to arbitrate.' [Citation]." (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396, emphasis in original.) The court is to determine whether a valid arbitration agreement exists, and if so, whether the agreement encompasses the dispute at issue. (Omar v. Ralphs Grocery co. (2w4) 118 cal.App.4th 955, 960-961, citing Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 84; Lifescan, Inc. v. Premier Diabetic Servs., Inc. (9th Cir. 20434) 363 F.3d...

Excerpt: ... merit if he has shown that one or more elements of the cause of action 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 defense. [Citations.]" (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 926 (Caloroso).) The following facts regarding the...

Excerpt: ...mmons and complaint related to this lawsuit; (2) he is a resident of Montana; (3) he and his wife are separated; (4) his wife lives in Utah with her daughter, Sofia Chapparo, a minor; and (5) he has never resided or stayed at 13311 S. Fort Street in Draper, Utah. [ROA 15, Stringham decl., 2-4.1 "[Clompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]" (Dill v. Berquist Constru...

Excerpt: ...sts in the amount of $18,968.50. Motion is DENIED. No sanctions. Joinder (ROA 35) by Defendants ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP, RACHEL M. SANDERS, and KARINE AKOPCHIKYAN is granted. The only thing that defendant needs to show to invoke the protection of the antiSLAPP statute is that plaintiffs lawsuit "arises from" defendant's exercise of free speech or petition rights as defined in Code of Civil Prmædures secton 425.16(e). [Equi...

Excerpt: ...laintiff's request to postpone the deposition until the question of stand-ng is adjudicated on Demurrer and agrees to limit request numbers 3 and 4 to the years 2022-2023 and to retract request number 7 pertaining to fraud. Thus, the only remaining issues are whether Plaintiff's deposition should be limited to two hours and whether Plaintiff should be protected from producing his tax returns. Plaintiff's only argument in support of the request to...

Excerpt: ... Plaintiff timely amended to add the following material allegations: • Around April 2021, Plaintiff emailed Defendant's agent an offer to stay in the apartment after the expiration of a lease in exchange for no increase in rent (FAC at p. 2, II. 3-5); Defendant's acceptance of the same rent for a year was a manifestation of acceptance, as it would not have happened without Plaintiff's offer (FAC at p. 2, II. 15-18); • There was no explicit re...

Excerpt: ...d the second cause of action fails to allege the element of duty and there was no fiduciary relationship between JMG and Tolman Wiker outside the bounds of the procurement of insurance. The parties were required to meet and confer in person or by telephone. Counsel for the demurring party called Plaintiff's counsel on May 30 and 31, 2023, but her calls were not returned. She sent an email requesting to meet and confer telephonically. On June 1, 2...

Excerpt: ...ion for Breach of the Covenant of Good Faith and Fair Dealing) "A cause of acton for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom." (McKell v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1489.) Defendants contend the first cause of action fails because Exhibit A is not a contract and, even if it was, Plaintiff is ...

Excerpt: ...endant cannot reasonably ' [Citations.] ' "A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." ' [Citations.]" (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) First, the court finds that the Complaint is not so uncertain as to prevent Defendant from providing an informed response. Second, t...

Excerpt: ...he 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 parties." Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provid...

Excerpt: ...Notice, filed on 9-19-23 under ROA No. 34, as immaterial to the court's decision set forth below. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.) "A demurrer tests the pleading alone, and not the evidence or the facts alleged. . 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 ...

Excerpt: ... through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other pro...

Excerpt: ... expressly alleged in the complaint. [Citations.)" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 58 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...

Excerpt: ...tion as to the entire Seventh Cause of Acton based on the grounds set forth in Issue No. 21, but not the grounds set forth in Issue No. 23. There was no piecemeal adjudication of the Seventh Cause of Action. "A motion for summary adjudication shall be granted only it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code Civ. Proc. S 437c(f)(1).) Soderling Defendants to give notice. Plai...

Excerpt: ...ubdivision (h). The court DENIES the Motion as to Exhibits 14 and 15. The court GRANTS Plaintiff's (Ashley Raminfard) Request for Judicial Notice (PRJN), filed on 9-19-23 under ROA No. 254, as to Exhibits 1, 2, 3, 4, and 5 pursuant to Evidence Code section 452, subdivision (h). The court DECLINES to rule upon Defendants' Objections, filed on 9-25-23 under ROA No. 261, as immaterial the court's decision as set forth below. (Code Civ. Proc., S 437c...

Excerpt: ... specified in the notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. [q] (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040... " Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1294-1295, states, "The purposes of Califo...

Excerpt: ...c. ("CTG") and Jeff Oviedo & Associates Inc. The Motion is GRANTED. Only CTG has filed an opposition, asserting that the motion is procedurally defective and fails to satisfy the requirements of CRC, Rule 3.1324(a) and (b); that the County of Orange has unnecessarily delayed in seeking leave to amend its cross-complaint against CTG by filing its motion and setting a hearing date at the eve of trial as trial is 4 months away; and that the County o...

Excerpt: ...g the Siebel document, the Court would be inclined to GRANT the motion as to Ms. Mock. As Plaintiff does not seek to challenge the attorney-client privilege as to the BRC document, GM is not required to produce it, nor is Ms. Mock required to testify as to its contents. Plaintiff has not established he is entitled to another or different PMK as to these categories. Internal Documents (Laurence Braddell, James Oaks and Kimberly Lukas) The crux of ...

Excerpt: ...le under the law of any State or politcal subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if— (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or...

Excerpt: ....00. Code of Civ-l Procedure section 1008(a) provides: "When an application for an order has been made to a judge, orto 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 ...

Excerpt: ...evaluated based on the information available at the time of settlement under the followng factors: • the amount paid in settlement; • a rough approximation of plaintiffs total recovery and the settlor's proportionate liability; • a recognition that the settlor should pay less in settlement than found liable after a trial; • the financial conditions and insurance policy limits of the settling defendant; and • evidence of any collusion, f...

Excerpt: ... not subject to execution (e.g., nonexempt loan value of a life insurance policy, property outside California). • They are also an optional means of reaching property that is subject to levy (e.g„ accounts receivable, chattel paper, general intangibles). They may be used alone or in conjunction with other enforcement procedures. • If the assignment order constitutes an "absolute" assignment and is properly perfected, future payments general...

Excerpt: ...laintiff's stated "dual motivation" as a tester for his visit and his stated reason for his intent to return to do not rise that of being a bona fide patron, Plaintiff has not pled intentional conduct, and the only amount in controversy is a single statutory violation of $4,000 under the Unruh Act. As an initial matter, the Court notes Defendants' Demurrer includes an improper motion to strike in the same document. There is no authority presented...

Excerpt: ...o Code of Civil Procedure secton 473(b) as the basis for the relief requested. Code of Civil Procedure section 473 (b) The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or othe...

Excerpt: ...own. (Code Civ. Proc., 52032.320.) Good cause requires a show-ng of both: (1) relevancy to the subject matter; and (2) specific facts justifying discovery (i.e„ allegations showing the need for the information sought and lack of means of obta-ning it elsewhere). (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) Here, Defendant has met its burden. Plaintiff has squarely placed his mental and physical condition at issue by alleging in the Com...

Excerpt: ...e requests may be resolved depending on the success of the onsite inspection and copying on September 18, 2023 at the office of The Rinker Company. (3-4) Defendant Diane J. Rinker ("Defendant") filed a (3) Demurrer and (4) Motion to Strike. As an initial matter, Defendant's request for judicial is GRANTED as to Exhibit 1, the Complaint filed by Plaintiff on November 14, 2022. The request for judicial notice is DENIED as to all other documents. Th...

Excerpt: ...ervice shows the summons and complaint were served by a registered process server. (ROA 9.) The prtnf of service shows the process server made five attempts at personal service before resorting to substitute service. It shows compliance with the statutory requirements of section 415.20(b), including the mailing requirement. The person who was sub-served declined to provide a name but was described as "Caucasian, female, 38 years old, 5'11" tall, ...

Excerpt: ... the alleged condition. "The elements of a cause of action for premises liability are the same as those for negligence." (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) The elements of a negligence cause of action are a legal duty owed by the defendant to the plaintiff to use due care, breach of that legal duty, causation, and injury to the plaintiff. (Holmes v. Summer (2010) 188 Cal.App.4th 1510, 1528.) The existence of a legal duty...

Excerpt: ...ating to Plaintiff's claim for punitive damages, including: 1. Paragraph 13 in its entirety located on Page 4 of Plaintiff's Complaint. 2. Paragraph 31 in its entirety located on Pages 7 and 8 of Plaintiff's Complaint. 3. Paragraph 35 in its entirety located on Page 8 of Plaintiff's Complaint. 4. Paragraph 36 in fts entirety located on Pages 8 and 9 of Plaintiff's Complaint. 5. Paragraph 42 in its entirety located on Pages 9 and 10 of Plaintiff's...

Excerpt: ...ent to constitute a cause of action and uncertainty. Initially, the Court notes the opposing points and authorities are over the 15-page limit under California Rules of Court, rule 3.1113(d). The Court disregards the last three pages (pages 21-23). (California Rules of Court, rule 3.1300(d).) First Cause of Action for Disability Discrimination in Violation of the FEHA A prima facie case of disability discrimination requires a plaintiff to show th...

Excerpt: ...denied as untimely. There are two ways to seek vacation or correction of an arbitration award: (1) Code of Civil Procedure section 1288 provdes: "A petition to vacate an award or correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner," or (2) Within 10 days of service of a party's petition to confirm the award, file and serve a timely response. (Civ. Proc. C...

Excerpt: ...on, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney." (CLD Construction, Inc. v. City of San Ramon (2CN) 120 Cal.App.4th 1141, 1145.) "It must be represented by licensed counsel in proceedings before courts of record." (Ibid.) Next, the Motion is not accompanied by a proof of service showing the M...

Excerpt: ...n the basis that Plaintiff's compensation was reasonable and approved by the Board, with no self-dealing, and there is insufficient evidence to surmount the business judgment rule. In the alternative, Defendant moves for an order granting summary adjudication in favor of Defendant and against Plaintiff on the following issues: • Plaintiff's cause of action for "injunctive or declaratory relief necessary to change and/or reform Westview's corpor...

Excerpt: ...ss-complaint that Defendants intend to bring a new party into the action, "Cross-Defendant, Gazi Gori." (See Proposed Cross- Complaint93.) As explained by Rutter, "[t]here are no compulsory cross-complaints against parties other than plaintiff." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial Ch. 6-D (The Rutter Group 2022) 96:524.) However, as long as there is one permissible "related" cause of action in the crosscomplaint, defe...

Excerpt: ...herance of justice, and on any terms as may be proper, allow a party to amend any pleading." (Code Civ. Proc., S 473(a)(1).) "If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse ...