Excerpt: ...n obtained thereby. [See CCP S 2025.420] The court is empowered to issue whatever order "justice requires" to protect a party or depnent against "unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." [CCP S 2025.420(b); see Nativi v. Deutsche Bank Nat'l Trust Co. (2014) 223 CA4th 261, 315—5 2025.420(b) provides "nonexclusive list of permissible directions that may be included in a protective order" (emphasis in orig...

Excerpt: ... from the FAC. DEMURRER As an initial matter, as Defendant points out, Plaintiffs' opposition to Defendant's demurrer did not comply with CRC Rule 3.1113(f). The Court exercises its discretion and considers the opposition. The rules do not allow the use of footnotes and the entire document must be of specified font size, or larger. First cause of action for violation of California Labor Code SS 510 & 1198: Plaintiff alleged suffcient facts to sta...

Excerpt: ...uests for production of documents, set one. Plaintiffs also request monetary sanctons in the amount of $2,3100.00 against Defendant and counsel plus an additional $1,500.00, as well as issue/evidenbary sanctions. The subject requests were served over a year and a half ago on 1/12/22. Defendant served objection-only responses on 2/11/22. The parties agreed to extensions until 3/17/22 for Defendant to serve further substantive responses. Plaintiffs...

Excerpt: ...pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the cou...

Excerpt: ...2, is granted as to Exhibit A. Legal Standard “[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.11 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 ev...

Excerpt: ...p-It Recycling, Inc. (2001) 91 Cal. App. 4th 678, 695.) The plaintiff has the burden of proof to show “upon a verified complaint, or upon affidavits” all elements necessary to support the issuance of a preliminary injunction. (Code Civ. Proc., § 527, (a); O'Connell v. Sup. Ct. (2006) 141 Cal.App.4th 1452, 1481.) Code of Civil Procedure section 526(a) provides, “(a) An injunction may be granted in the following cases: (1) When it appears by...

Excerpt: ... order compelling responses and DENIED as to the request for sanctions. Responses to special interrogatories are due “within 30 days after service” of the requests or interrogatories.  (Code Civ. Proc., §2030.260, subd. (a).) If a party served with special interrogatories fails to timely respond, the propounding party may move for an order compelling responses.  (Code Civ. Proc., § 2030.290, subd. (b).) Pursuant to Code of Civil Procedu...

Excerpt: ...gment in favor of Advantage and against Crown for all amounts due and owing under the terms of the Contract is GRANTED. Advantage moves pursuant to Code of Civil Procedure Section 664.6. Code of Civil Procedure Section 664.6 provides in pertinent part: “(a) If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, t...

Excerpt: ...arate Statement is improper and the Court declines to rule on the objections. The Court does note that Plaintiffs violated California Rules of Court, rule 3.1350 by not citing their evidence in response to Defendants' material undisputed facts. Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defens...

Excerpt: ... Plaintiff's unauthorized sur-reply filed under ROA No. 175. “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a)(1).) “A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, ...

Excerpt: ...aintiff's Request for Judicial Notice pursuant to Evidence Code § 452(h). The court OVERRULES Defendant Roxanne Chamouille's (Defendant) objections to Declaration of Judy Hirahara, filed 11-9-22 under ROA No. 93. Defendant's objections to Declaration of David Bourguignon, filed 11-9-22 under ROA No. 90 are SUSTAINED as to objections 1-2, 7-8, sustained in part as to objections 5-6 and OVERRULED as to objections 3 and 4. Lydig Construction, Inc. ...

Excerpt: ...g summary judgment / adjudication].) Defendants' request for judicial notice is GRANTED as to plaintiff's Second Amended Complaint. (Evid. Code, § 452, subd. (d)(1) [court records]; 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1211 [on summary judgment, a party may rely on admissions of fact contained in the opposing party's pleadings as evidence].) The request is DENIED as to plaintiff's deposition testimony. 2nd cause of...

Excerpt: ... California Rules of Court, Rule 3.1320(a). Plaintiff did not oppose the demurrer on this ground. In addition, Thomas did not address uncertainty in his memorandum. Plaintiff also did not oppose the demurrer on this ground. Eighth cause of action for intentional interference with contractual relations The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid cont...

Excerpt: ...deposition for the production of business records and things. (Code Civ. Proc., § 2020.010, subd. (a).) To pursue the deposition of a nonparty, a party must generally serve a deposition subpoena. (Id., § 2020.010, subd. (b).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particu...

Excerpt: ...h 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving 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, subd. (p)(2).) The scope of this burden is determined by the allegation...

Excerpt: ...ruled. The court is inclined to grant Defendant The Ritz Carlton Hotel Company, LLC's motion for summary judgment on Plaintiff's complaint. Under Code Civ. Proc. § 437, a party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirma...

Excerpt: ... trial by jury although there may have been a waiver of a trial by jury. (Code Civ. Proc. § 631(g).) Plaintiffs to give notice. Motion No. 2 Plaintiffs, Kimberly Jarrad and Hobie Jarrard's Motion to Compel the Deposition of Defendant General Motors, LLC's Person Most Knowledgeable (“PMK”) and Production of Documents is GRANTED, in part, and DENIED, in part, as follows. Categories GM provides that it has already agreed to produce its PMK to a...

Excerpt: ...e. Motion #2 Plaintiff/Cross-Defendant Calculated Risk Analytics, LLC [“CRA”] seeks an order compelling compliance by Defendant/Cross-Complainant Maryam Parman, Trustee of the Maryam Parman Revocable Trust Dated January 19, 2009 [“Parman”], as follows: 1. Production of the documents bates-stamped PARMAN 729-732; PARMAN 777-778; and PARMAN 804-805, without redactions; and 2. Compliance with Parman's verified response to Request for Product...

Excerpt: ...Rules of Court, rule 3.1345(a) states that a separate statement must be included for motions: “(4) To compel answers at a deposition; (5) To compel or to quash the production of documents or tangible things at a deposition.” This motion seeks further answers to deposition questions and to compel production of documents relating to Dr. Macyszyn's compensation as an expert. Accordingly, plaintiff's failure to provide a separate statement violat...

Excerpt: ...trial, 2. By any party upon the written consent of all other parties. Subsection (c) again states that a plaintiff may dismiss prior to actual commencement of trial. The commencement of trial is defined as “the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evi...

Excerpt: ...e to amend. The motion to strike is DENIED. Defendants shall file an Answer within 10 days. DEMURRER Meet and Confer: The parties met and conferred via telephone and could not agree on the issues. (Code Civ. Proc., § 430.41.) (Plummer Decl., ¶ 3.) First Cause of Action – Breach of Written Contract: This claim is being made by Caldarella and CCI against Neal Weisman and Interactive. “To prevail on a cause of action for breach of contract, th...

Excerpt: ... The complaint sufficiently alleges foreseeability, as it alleges that Defendant knew – unlike the John Y. defendant in John Y. –that Fishbaugh had previously engaged in sexual relations with at least one other resident at the facility (Compl. ¶ 27) and Defendant let Fishbaugh be alone with Plaintiff and to dispense medications to her (Compl. ¶ 28). It is not so “unusual or startling that it would seem unfair to include the loss resulting...

Excerpt: ... legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have n...

Excerpt: ...a complete defense entitling it to judgment as a matter of law. (Civ. Proc. 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 dem...

Excerpt: ... the excessive redaction of the description of the work performed and time spent. Governing Documents: Civ. Code, § 5975 (c) provides that “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs.” Plaintiff specifically invoked this statute in the Complaint. Plaintiff prayed “For an award in favor of Plaintiff for all attorneys' fees and other fees incurred by Plaintiff i...

Excerpt: ...r the INCIDENT; (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCIDENT by any individual at the scene; (d) and who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034). As defined in the form interrogatories, “INCIDENT includes the circumstances and events surrounding the alleged accident, injur...

Excerpt: ...urrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not c...

Excerpt: ...ion, fraud, or malice.” In order to survive a motion to strike punitive damages, the Plaintiff must plead ultimate facts to show it is entitled to such relief. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Conclusory characterization of defendant's conduct as intentional, willful, and fraudulent is a patently insufficient statement of “oppression, fraud, or malice” within the meaning of Section 3294. (Brousseau v. Jarrett (197...

Excerpt: ...Defendant Brenda Hendricks asserted the following objections to this interrogatory, as it relates to Requests for Admission Nos. 1-8: The requests are vague and ambiguous and call for legal and expert conclusions. The requests also invade the province of the jury. However, subject to and without waiving the foregoing objections. Responding Party responds as follows: Deny. Requests for Admission Nos. 1-8 ask Plaintiff to admit she has never and is...

Excerpt: ..., it shall be answered to the extent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” For No. 14, Defendant objected, because the service on th...

Excerpt: ...no merit because each is premised on a legally unenforceable promise of marriage; (2) Plaintiff's first, second, third, fourth, and sixth causes of action have no merit because there is insufficient evidence of a Marvin Agreement as a matter of law; and (3) Plaintiff's fifth cause of action has no merit because there is no legal basis for the Plaintiff to take back funds that were gratuitously given. For the following reasons, the court is inclin...

Excerpt: ... legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have n...

Excerpt: ... supplemental responses to RFP Nos. 29, 30, 59, 78, and 94 on March 4, 2021, rendering this portion of Plaintiff's motion moot. (Gonzales Decl., ¶ 13, Ex. N.) Plaintiff does not dispute Defendant's statement. The motion to compel further responses is denied as to RFP Nos. 29, 30, 59, 78, and 94. RFP Nos. 37 and 66 seek evidence of discrimination experienced by employees other than Plaintiff, otherwise known as “me too” evidence. (Schmidt v. ...

Excerpt: ... reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (CCP § 2016.040.) The meet and confer requirement is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order….This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolu...

Excerpt: ...31.240 (c) (1) required that “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” Nos. 13, 14, 22 & 23: Plaintiff limited the requests only to documents sufficient to determine funding, not all documents. Plaintiff alleged tha...

Excerpt: ...n furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16(b)(1).) Resolution of an anti-SLAPP motion involves two steps. First,...

Excerpt: ...son Form Interrogatory Decl., ¶ 9, Ex. A.) However, Defendant's responses to Form Interrogatories (Set One) include general objections. (See Dickson Decl., ¶ 9, Ex. A.) Due to Defendant's failure to serve timely responses to the interrogatories, Defendant has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protect...

Excerpt: ... RFP 1-2 - Deny RFP 1 states: “Produce all written records of each payment you made for legal services at any time since June 24, 2011.” RFP 2 states: “Produce all electronic records of each payment you made for legal services at any time since June 24, 2011.” CBL objected to these requests based on attorney-client and work-product privileges, as well as relevance. Attorney-Client and Work Product Privileges CBL contends the requested pay...

Excerpt: ...o protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: (1) That the deposition not be taken at all. . . .” Plaintiffs have noticed the deposition of Defendant's attorney. “Depositions of opposing counsel are presumptively improper, severely res...

Excerpt: ...y. The Court makes no order concerning production of documents at deposition. This issue is not properly before the Court at this time. The Court notes that Opposition to this Motion was filed by defendant/cross- complainant on March 5, 2021. Service by email was not done until March 8, 2021. The Court again reminds both parties of their statutory obligation to properly serve their papers on all party. CCP §§1005, 1010, et seq. Future failure t...

Excerpt: ...onderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. (Civ. Proc. 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...

Excerpt: ...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.” Here, Plaintiff seeks attorney's fees incurred in this action for breach of contract. (For example, see Complaint filed on 2/27/19 under ROA No. 2 which alleges Breach of Contract as the first cause of action.) Defendants (Tucker Family Restaurants, LLC and Michael Tucker) did not file an Opposition. Therefore, D...

Excerpt: ...hat Mutual Arbitration Agreement provides, in part: If you and Irvine Management Company, Irvine Holding Company, the Irvine Company, or any of affiliate or successor of the foregoing persons, or any past or present officer, director, employee, agent, benefit plan or, benefit plan sponsor, fiduciary, or administrator of any such person (collectively, the “Company”), have a legal dispute regarding any claim or matter arising out of or relating...

Excerpt: ...has had an opportunity to amend the complaint in response to the demurrer. Oakland Bulk and Oversized Terminal, LLC v. City of Oakland (2020) 54 Cal.App.5th 738, 751. Regardless of the order of the court's rulings, the court provides this tentative ruling as to the SLAPP motion. Defendant Toni Nelson moves pursuant to Code of Civil Procedure Section 425.16 to strike portions of the First Amended Complaint of Plaintiff Brandon Day. For the followi...

Excerpt: ...nk v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556. Because a demurrer tests only the suffici...

Excerpt: ...nterference with expected inheritance, and 4) invasion of privacy. The first cause of action for conversion alleges that Defendants took without consent various guns to which Plaintiff had a right of possession. (Complaint, ¶¶ 9-12.) Similarly, the fourth cause of action for invasion of privacy alleges Defendants invaded Plaintiff's privacy beginning in 2015 by entering Defendant's residence and searching certain areas, included locked or close...

Excerpt: ...ring on the face of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-1405.) The general and special demurrers to the Third Cause of ...

Excerpt: ... alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” “The date of injury in a wrongful death cause of action is the date of death. Kleefeld v. Superior Court (1994) 25 Cal.App.4th 1680, 1684. Decedent, Kristy Murdock died on 1/26/18...

Excerpt: ...3, Defendants improperly moved to strike the Second Cause of Action for Negligence/ Negligence Per Se. The court is inclined to overrule the Demurrer to this cause of action. First Cause of Action for Elder Abuse and Neglect: Decedent was elder and a resident at Defendants' skilled nursing facility. Defendants were entrusted with the care and custodian care of decedent. Defendants willfully and recklessly breached their duties to decedent so that...

Excerpt: ...001) 25 Cal.4th 826, 850.) A defendant moving 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. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–82 (pleadings s...

Excerpt: ...arbitration. On August 24, 2020, the Court of Appeal issued an Opinion in which it remanded the case for a determination in the first instance whether the arbitration provision in the 2015 Provider Manual is unconscionable. For the following reasons, the court is inclined to find the Arbitration Provision in the 2015 Provider Manual unconscionable and, thus, deny Optum's motion to compel arbitration. Generally applicable contract defenses, such a...

Excerpt: ... policy of the law is to have every litigated case tried on its merits. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.) Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. Id. at 695. In such situations, very slight evidence will be required to justify a court in setting aside the default. (Id.) Moreover, beca...

Excerpt: ...how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (See Day v. Sharp (1975) 50 Cal.3d...

Excerpt: ...ntiff Dena L. Lowry. For the following reasons, the court is inclined to overrule the demurrer. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true fo...

Excerpt: ...ury. (see, e.g., Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983). Further, the statement of undisputed facts does not show that plaintiff cannot show “breach, causation, and damages.” The central issue is whether Defendants met their burden to show that Plaintiff cannot show they could have obtained a more favorable result but for Defendant's acts or omissions. “[...

Excerpt: ...rate statement of undisputed material facts.” (Cal. Rules of Ct., Rule 3.1350(b); see also Code Civ. Proc., § 1010.) The question whether a defendant breached a duty, however, is generally a question of fact for the jury (see, e.g., Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983). A party moving for summary adjudication bears an initial burden of production to make a...

Excerpt: ...to the complaint, beyond the dec relief claims, should have been made by motion. On 10/8/20, the court sustained with leave to amend the Demurrer to the Second Cause of Action, which consisted of two declaratory relief causes of action. On 10/19/20, the Third Amended Cross-Complaint was filed. The causes of action were (1) Breach of Contract- Rescission and (2) Unfair Competition. Motion to Strike: “Following an order sustaining a demurrer or a...

Excerpt: ...ke available the corporate and financial records of CEATS. Pursuant to C.C.P. § 529, Plaintiff is required to post a bond or undertaking of $10,000.00 within fifteen (15) days. The court grants Plaintiff's Request for Judicial Notice. Plaintiff's Objection to Evidence: Declaration of Katlyn Matsuda: Nos. 1 & 2: Overruled. Declaration of Daniel Gallagher: Sustained for failure to execute declaration. Declaration of Mark Coate: No. 1 to 7: Overrul...

Excerpt: ...disparaged. The elements of a cause of action for slander of title are: “(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.” (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.) “The main thrust of the cause of action is protection from injury to the salability of property [citations], which is ordinarily indicated by ...

Excerpt: ...endant has made a threshold showing that the challenged cause of action arose from the defendant's protected activity. . . . If the defendant fails to satisfy this burden, then the special motion to strike must be denied. . . . If the trial court finds that such a showing has been made, then the court must decide whether the plaintiff has demonstrated a probability of prevailing on the challenged cause of action.” Copenbarger v. Morris Cerullo ...

Excerpt: ...ormance of that contract. (Little v. Pullman (2013) 219 Cal.App.4th 558, 565.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, decla...

Excerpt: ...this lawsuit; this lawsuit involves Plaintiff Bona Terra Energy, LLC and Defendant DFV Holdings LLC, both of whom are parties to two Development Services Agreements (DSAs). The forum selection clause in the PSA provides: This Agreement and all amendments hereof and waivers and consents hereunder shall be governed by the Law of the State of Delaware, without regard to the conflicts of law principles that would result in the application of any Law ...

Excerpt: ...egligence (i.e., medical malpractice). “In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to laymen. [Citation.]” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) Expert testimony is also required to demonstrate...

Excerpt: ...ip in need of capital to finance business expenses. (Compl., ¶ 18.) Defendants convinced Plaintiffs to enter into lease agreements by using misleading Lease Proposals and then, once Plaintiffs were locked into an agreement, adding extra “rent” and other charges. (Compl.¸¶¶ 3-6.) The Lease Proposals identified the material terms of the agreement, such as the lease duration, a description of the equipment at issue, the estimated total cost ...

Excerpt: ...agreement exists covering the claims in this action. Specifically, the parties agree that: (1) the matter should be arbitrated; (2) the arbitrator should be the Honorable Diane Wayne (Ret.); (3) the arbitration shall make final determinations regarding discovery and pleadings; and (4) Defendants will pay the cost of arbitration. (See Opp. at 2:4-8; Defs.' Prop. Order.) The sole remaining issue is which set of procedural and discovery rules will a...

Excerpt: ...o's refusal to return excess insurance funds constitutes an unfair business practice. Those insurance funds were to be used for no other purpose than the repair of the Property. (SACC ¶ 35.) The repairs were never completed, and Wells Fargo's refusal to return those excess funds, in part, prevented Kirton from further repairing her Property. (See SACC ¶ 16) Plaintiff also sufficiently alleges standing. “[U]nder the UCL, standing extends to �...

Excerpt: ...iability. The opposition filed to this OSC only says that, perhaps, a portion of the money loaned by plaintiff to Tri-Emerald (a debt documented by notes from Tri-Emerald and guarantees from the other defendants) may have ended up with Lend Plus. It is still not clear what Lend Plus did that makes it liable to plaintiff. The court's purpose in setting this OSC was partially to determine whether Lend Plus was derivatively liable based on an unlawf...

Excerpt: ...1,200 in monetary sanctions. Despite several meet and confer letters from Defendant's counsel, Plaintiffs have failed to respond and have failed to pay the monetary sanctions. The Court is inclined to find that it would be premature and improper to impose terminating sanctions at this time, for three reasons. First, as a rule, it is a violation of due process and an abuse of discretion for the trial court to impose terminating sanctions as punish...

Excerpt: ... the Request for Production of Documents, Set One, and agreed to produce supplemental documents pursuant to a protective order. (Livedalen Decl., ¶ 5, Ex. C.) Plaintiff does not dispute that Defendant served Supplemental Responses to Plaintiff's Request for Production of Documents, Set One on 04/12/19, but contends that the motion is not moot because several of the Supplemental Responses are still deficient. To the extent, Plaintiff contends the...

Excerpt: ...wers Admitted as to Brenda Watson 9. Motion to Deem Answers Admitted as to Chase Knight 10. Motion to Deem Answers Admitted as to Georgina Knight Motion to Compel Responses from Plaintiff Chase Knight to Form Interrogatories, Set Two: Failure to timely respond to interrogatories results in a waiver of any objections to the requests. CCP §§ 2030.290(a). If a party to whom interrogatories were directed fails to serve a timely response, the propou...

Excerpt: ...es that defendants were aware of clearly material information contained in the preliminary title report for the property and the home inspection report, and not only failed to disclose said information to plaintiffs, but pressured plaintiffs to follow through with the purchase. 1st COA – Fraudulent Concealment The title report is alleged to have shown the existence of a Code Enforcement action against the property as well as a lis pendens. Firs...

Excerpt: ......

Excerpt: ...aintiff to compel Defendant to provide verified responses, without objection to Request for Production of Documents, Set One. Defendant does not dispute that the aforementioned discovery requests were properly served via mail on him on 02/22/19. To date, Defendant has not served any responses to the Form Interrogatories, Set One; or the Request for Admissions, Set One. Defendant has thus waived any objections to the Form Interrogatories and the R...

Excerpt: ...g held in 11/17 and 03/18. Plaintiff has failed to comply with the provisions of California Rules of Court Rule 3.1324(a)(2) and (3) which requires that Plaintiffs state by page, paragraph, and line number what allegations in the previous pleading are proposed to be deleted or what allegations are proposed to be added. Accordingly, the court is inclined to deny the motion without prejudice. ...

Excerpt: ...rt agrees that the first and second causes of action are deficient. Plaintiff alleges the breach of a written contract without quoting the terms of the agreement verbatim or attaching a copy. And his second cause of action for fraud is alleged with insufficient specificity. Plaintiff may file an amended complaint within 20 days. The motion to strike is mooted by this ruling. ...

Excerpt: ...the borrower's financial situation and explore options for the borrower to avoid foreclosure,” or 30 days after satisfying due diligence requirements to attempt to contact the borrower. Civil Code § 2923.5(a)(1)(A), (a)(2), (g). Civil Code § 2923.5(e) also requires at least one written communication: (e)(1) A mortgage servicer shall first attempt to contact a borrower by sending a first-class letter that includes the toll-free telephone numbe...

Excerpt: ... It alleges that defendant Robert James Medina contends that he is the owner of the mobile home based on a purported bill of sale that he obtained by defrauding Blick. (Complaint, ¶¶ 11 and 13.) It alleges that, in 6-16, plaintiff found out about the purported bill of sale to Medina and that he had registered his alleged ownership of the mobile home and paid the 2016 registration fee. (Complaint, ¶ 14.) The verified complaint seeks the followi...

Excerpt: ..., the burden of proof is on the plaintiff to show that service was proper. Bolkiah v. Superior Court, 74 Cal. App. 4th 984, 991 (1999) (“once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court's jurisdiction over the defendant.”) Here, Defendant has filed a declaration in which he attests that contrary to the Proof of Service filed by Plainti...

Excerpt: ...ault, who, for understandable reasons, could not address the case until recently. In light of the public policy in favor of hearing matters on their merits, the court errs on the side of granting the motion. ...

Excerpt: ...oth willful and malicious. The court notes that there is no binding authority interpreting the language of Section 7952. However, to the extent that malice in this context is to be construed in accordance with Civil Code §3294, plaintiff's allegations fail to make out despicable conduct. ...

Excerpt: ...upporting all of the elements of promissory fraud have not been alleged. Counsel for plaintiffs is advised that there is no need to repeat the allegations in the challenged pleading in the opposition verbatim, let alone in single-space text. The first amended complaint is in the Court's filings and the Court has access to it when ruling on the demurrer. 2. Demurrer to Plaintiff Darcy Pascual's 1st Amended Complaint The Court is inclined to sustai...

Excerpt: ... employer, Christiansen Amusements. Thus, the first deposition notice compelling Mr. Hahn individually to testify designated a 12/12/18 deposition date. Mr. Hahn failed to appear on this date, and the court is inclined to order that he appear within 20 days at a date, time, and place that is mutually agreeable to the parties. However, given the context provided in the opposition, the court is not inclined to award any monetary sanctions against M...

Excerpt: ...ation as to why the new defendants have not been served and why they have not appeared in the case 5 months after they were named, the court will consider vacating the trial date. The court is hesitant to set a new trial date because the “new” defendants should have a say in when the trial will be. ...

Excerpt: ...tion. ...

Excerpt: ...stated therein, any contract can be modified. See Civ. Code §1698; see also Vella v. Hudgins, 151 Cal.App.3d 515, 519 (1984)(“It is axiomatic that the parties to an agreement may modify it.”). Plaintiff alleges that it sent an amendment to the agreement, and that defendant accepted that amendment. As to the Second and Third Causes of Action for quantum meruit and unjust enrichment, these are quasi-contractual theories that do not rely on the...

Excerpt: ...ege log within 10 calendar days. Subject to those objections, Plaintiff states that he has produced the write-up, but Defendants insist that he has not produced the workup. It is difficult for Defendants to prove a negative, so the burden was on Plaintiff to provide the court with a copy of the allegedly responsive document, along with proof that it was previously produced. Without a copy of the document, the court is unable to confirm Plaintiff'...

Excerpt: ...on was set for 12/11/18. The Irvine Company did not appear for the deposition and did not object to the deposition subpoena. The court is not persuaded by The Irvine Company's contention that the deposition subpoena for the deposition of its PMK was served in violation of California Rules of Professional Conduct, Rule 2-100(A). The unpublished Ninth Circuit opinion, SEC v. ACI Investors Protective Ass'n (9th Cir. Oct. 22, 1996, No. 95-56644) 1996...

Excerpt: ...refore the authority cited by Plaintiff do not apply. Lastly with regards to Plaintiff's request that “clarification from the Court regarding what disciplinary steps has to be taken to ensure that this type of conduct is not condoned. There must be consequences,” the Court is not authorized to give legal advice. Plaintiff should seek the advice of counsel if further steps are wanted. OSC re: Dismissal Case Management Conference ...

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Excerpt: ...oc. §340.6. Plaintiff has not alleged any facts to show that his claims were tolled under Code of Civil Procedure §340.6(a)(1)-(4). Defendant's demurrer to the Second Cause of Action for Breach of Fiduciary Duty is OVERRULED. Plaintiff has sufficiently alleged that Defendant breached his fiduciary duty by failing to provide Plaintiff with the Proof of Service showing service on Linda Rogers. Rules of Professional Conduct, Rule 3-700(D)(1). Plai...

Excerpt: ... would be pretty cool. The court is inclined to GRANT Defendants' motion to compel. The court is inclined to order Plaintiff to serve responsive documents after service of notice of this ruling. Defendants make a prima facie showing that they propounded discovery on 12/26/17 and that on 1/30/18 Plaintiff agreed to produce documents responsive to RFP's 1-6 and 8-22, but has yet to produce any documents. Defendants argue that Plaintiff refused to p...

Excerpt: ...e individual defendant and corporation such that it would promote an injustice to recognize the corporate form. It is insufficient to merely allege that the individual defendant owns all of the corporate stock and manages the corporate affairs. See Leek v. Cooper, 194 Cal.App.4th 399, 415 (2011). Here, plaintiff alleges, in essence, that Mr. Wang owns and controls defendant AXP and uses it to carry on his business. (FAC, ¶3.) Given that this is ...

Excerpt: ... file their proposed 2AXC, but must redraft their proposed amended pleading to squarely address the defects noted below. A 1st COA: Breach of Contract The court is inclined to OVERRULE the demurrer to the 1st COA. KCR now attaches as Ex. A a copy of the Merger Agreement and the Affidavit of Debt Disclosure. KCR alleges that Fiesler breached the agreement by failing to fully disclose all payroll, tax, and vendor liabilities, so that KCR was forced...

Excerpt: ...serves the right to make any such further provision, at the time of final judgment in the action, for assumption of such costs and attorney fees by one or more of the adverse claimants as may appear proper pursuant to CCP 386.6.(a). The court deems plaintiffs Lee's Sandwiches, International, Inc. and LQNN, Inc.'s Application for Writ of Possession moot in light of the Court's ruling on defendant David K. Tran's motion for an order of discharge of...

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Excerpt: ... set forth clearly in the response. Dynamic moves to compel a further response pursuant to CCP 2033.290. Aramexx's response to the RFA is an unequivocal denial. There is really nothing left to compel. If Dynamic is successful, after trial, it can move for costs in having to prove the “denial.” Aramexx's denial of the genuineness of the document does not preclude Dynamic's discovery into how Aramexx will prove its liquidated damages, or whethe...

Excerpt: ...ce. So assuming service by mail, Defendant should have filed and served his moving papers by 6/8/18. But Defendant did not file his motion until 6/18/18 and did not attach any proof of service to his motion. In Opposition, Plaintiff argues that he was not served until 6/20/18 and asks the court to consult Defendant's proof of service. But the copy of the motion imaged in the court computer does not appear to include any proof of service. Regardle...

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Excerpt: ... out for service (12/11/17), that the case was this close to settlement (2/26/18), and that counsel had not served defendant because they thought the case had been settled (3/26/18). At the March 26 th hearing, counsel wanted a continuance to “clear things up,” including setting aside a dismissal in another case. The court allowed plaintiff until May 7 th to get this case back on track. The court has had no indication that the case is moving ...

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