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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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 ...