Excerpt: ...anted. Defendants' request on reply to judicially notice state court orders is granted. Merits The moving party on a motion to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The trial court sits as the trier of fact, weighing all ...

Excerpt: ...Plaintiff's oppositions. Although Plaintiff has elected to proceed in pro per, litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. See Rappleyea v Campbell (1994) 8 Cal.4th 975, 984- 985; Nwosu v Uba (2004) 122 Cal.App.4th 1229, 1246-1247. A self-represented litigant is not entitled to any greater consideration than other litigants and attorneys. Se...

Excerpt: ...sition, which was not served on Defendants. On its own motion, the Court continues the February 21, 2023, trial of this action to October 2, 2023 at 9:00 a.m. in Department C31. A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 3...

Excerpt: ... the Custodian of Records for Alaska National to appear for deposition on a mutually agreeable date that is within 20 days of this order. Pursuant to CCP section 1987.1, the Court may, upon motion reasonably made by a party to the action, issue an order compelling compliance with a subpoena. Additionally, pursuant to CCP section 2025.480(a), “[i]f a deponent fails to answer any question or to produce any document…that is specified in the depo...

Excerpt: ...ading in the court's file for this action. For such a document, the request for judicial notice is unnecessary. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 9.53.1a.) Under the Civil Authority provision in its insurance policy with Defendant, Plaintiff seeks coverage for lost donations and income sustained as a result of t...

Excerpt: ...for Judicial Notice (ROA No. 47) is GRANTED, pursuant to Evidence Code sections 452(d) and 452(h). Similarly, Plaintiff's Request for Judicial Notice (ROA No. 71) is GRANTED, pursuant to Evidence Code section 452(d); however, the Court takes judicial notice only of the identified documents, not the summary of the documents offered by Plaintiff. First Cause of Action – Breach of Contract To prevail on a breach of contract claim, a plaintiff must...

Excerpt: ...red to water the dirt on the construction site in order to control dust. The water truck overturned when it drove close to the edge of the “haul road” Plaintiff was driving on, and Plaintiff alleges he sustained injuries as the result of the “roll-over.” Plaintiff brought this action against, among others, OHL-USA, Inc., which was the general contractor for the project. Plaintiff alleges a single cause of action for negligence. Plaintiff ...

Excerpt: ... Plaintiff's Motion for Summary Judgment and Summary Adjudication (the “Motion”) is DENIED in its entirety. As an initial matter, the parties appear to agree that Iowa contract law applies by reason of a choice of law provision contained in the agreement at issue. But neither party directly addresses the enforceability of this provision. (Declaration of Stephanie Steele [“Steele Decl.”] ¶8 & Exh. 3.) “California courts enforce contract...

Excerpt: ...be granted only if the court finds there is a “substantial probability that the plaintiff will prevail” on his or her claim for punitive damages. (Civ. C. § 3295(c) (emphasis added); see Kerr v. Rose (1990) 216 CA3d 1551, 1565.) To obtain such an order, plaintiff must file a motion supported by “appropriate affidavits” – i.e., affidavits (or declarations) sufficient to establish “oppression, fraud or malice” under Civil Code sectio...

Excerpt: ... challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of wha...

Excerpt: ... IN PART and, otherwise, is moot. Defendant's Request for Judicial Notice As an initial matter, the Court denies Defendant's request for judicial notice. Defendants ask the Court to take judicial notice of the “Report of Fullerton Police Department dated April 9, 2020,” pursuant Evidence Code sections 450, 451 and 452. The request is denied for two reasons. First, Defendants do not identify the specific subdivision of Evidence Code section 45...

Excerpt: ... denial of the Motion. Plaintiff is a minor student suing defendant SAUSD for an alleged sexual assault that occurred on or about 2/14/19 at SAUSD's Middle College High School (“MCHS”), which is located on the campus of Santa Ana College (“SAC”). One of the college students, Kenji Kina (“Kina”), allegedly sexually assaulted Plaintiff. Plaintiff originally named both SAUSD and the Rancho Santiago Community College District (“RSCCD”...

Excerpt: ...ecord, Randall Koenig, of Koenig Law Firm. As an initial matter, the Court notes that Plaintiff filed an Amended Declaration of Mr. Rossini and Amended Notice of Motion and Motion, which was not served with 16 court days' notice. On Reply, Plaintiff advises that there were no substantive changes to the Amended Motion and it was provided simply to advise the Court of the parties' continued meet and confer efforts. Thus, the Court considers the Ame...

Excerpt: ...sonable monthly amount. The Court is inclined to make that sum equal to the amount of the Karimis' monthly mortgage, property tax, and insurance payments. The Court will hear argument from the parties at the hearing as to that amount. When there are actions involving common questions of law or fact pending, a court may order a joint trial of any or all of the matters in issue in the actions or may order all the actions consolidated, or may make s...

Excerpt: ...laintiffs”) oppose. For the reasons set forth below, the Court GRANTS the Motion. Legal Standards A party moving to compel arbitration under Code of Civil Procedure (“CCP”) section 1281.2 must establish that: 1. the parties entered into a written agreement to arbitrate; 2. one or more of the claims at issue are covered by that agreement; and 3. the responding party refused a prior demand for arbitration under the agreement of the claims at ...

Excerpt: ...– plus costs and expenses of $22,820.19. The Motion is GRANTED in part. The Court awards Plaintiff attorneys fees of $216,036.50 and costs and expenses of $22,820.19. As explained below, the Court calculated the fees using the lodestar method, but reduced the lodestar amount to account for duplication/inefficiency/overbilling by the nine attorneys and six unidentified (other than by initials) paralegals, law clerks and legal assistants who bill...

Excerpt: ...t. Specifically, the Court invited briefing on whether Rains v. Superior Court (1984) 150 Cal.App.3d 933 has any impact on the Court's tentative ruling. For the reasons set forth below, the Demurrer is sustained in part and overruled in part, and the Motion to Strike is moot. [1] Defendant Herbert Lee, M.D.'s Demurrer to Plaintiff Rosanna Narvaez's Complaint is sustained in part and overruled in part. Having now reviewed the parties' supplemental...

Excerpt: ...iff is granted 15 days leave to amend. 1st COA – Breach of Contract – SUSTAIN “To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307. “A written contract may be pleaded either by its terms—set out verbatim in the ...

Excerpt: .... Facts This action stems from a dispute between a general contractor, Plaintiff Escobar, and its landscaping subcontractor, Defendant Marina, related to payment for work on a construction project. Plaintiff alleges: “In November 2021, Escobar Construction, as the general contractor, entered into a written contract (“the Contract”) with Defendants, who were subcontracors, whereby Marina Landscape Inc. agreed to install landscaping, drains a...

Excerpt: ...tion Agreement, before arbitration can be compelled. (See 9 U.S.C. §2 and C.C.P. §1281.2.) "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.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4 th 951, 972; See also Green Tree F...

Excerpt: ...nd discretion of the trial court.” (Carr v. Barnabey's Hotel Corp. (1994) 23 Cal.App.4 th 14, 20.) However, “[t]he greatest liberality is to be encouraged in the allowance of such amendments in order to see that justice is done.” (Id.) As explained by the Court in Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4 th 117, the law is unsettled as to the scope of CCP section 187. As the court explained, section 187 is...

Excerpt: ...sserted to the evidence presented by Plaintiff in support of the Motion. As explained further below, Plaintiff carried its burden of proving each element of each of the causes of action on which summary adjudication is sought. The burden therefore shifts to Defendants to show that a triable issue of one or more material facts exists as to the cause of action. See CCP § 437c(p)(1). Because Defendants did not oppose the Motion, they did not carry ...

Excerpt: ...CP”) section 438(e) provides: “No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” (Civ. Proc. Code § 438.) HOM argues that, because there was no pretrial conference order pursuant to Section 575, the motion is untimely and should be denied for that...

Excerpt: ...s overruled as to the first and second causes of action; it is sustained with 21 days leave to amend as to the third cause of action. The Demurrer of Cross-Defendant BDR, Inc. (“BDR”) to Surterre's Cross-Complaint is SUSTAINED with 21 days leave to amend. Plaintiff James Lemastus alleges in his Complaint that both DLI and Surterre (through Defendant Walsh) knew about serious construction defects in the house he purchased that were hidden by r...

Excerpt: ...an initial matter, the Motion is properly brought by Defendants Paul and Cathy Schroeder pursuant to Code of Civil Procedure (“CCP”) section 1987.1, which permits a motion to quash by parties to an action. (CCP §1987.1(a) and (b).) However, non-party Schroeder Farms, LLC is not authorized to move under CCP section 1987.1, as it is neither a party, witness, consumer or employee, nor an individual exercising free speech rights, as contemplated...