Excerpt: ...ble issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 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 co...

Excerpt: ...ents also seeks an order striking punitive damages allegations and prayer for punitive damages and attorneys' fees from Plaintiffs' TAC. Defendants James Lee (“Lee”), Jeanette Karla Fuentes (“Fuentes”), and Top Producers A & L dba Re/Max Top Producers (“Top Producers”) (collectively, “Plaintiffs' Agents”) seek an order striking certain allegations, attorneys' fees and cost allegations, and prayer for attorneys' fees from Plaintiff...

Excerpt: ...s activity for the purpose of assisting another in performing a wrongful act.” American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1477. Defendants argue Plaintiff's allegations “are made only on ‘information and belief,'” as opposed to allegations that would “establish specifically how [Defendants] had knowledge of any fiduciary duty owed by Mr. Yamakawa to [Plaintiff], especially since the allegations again...

Excerpt: ...tion of conditional consent: the patient must show his consent was conditional; the doctor intentionally violated the condition while providing treatment; and the patient suffered harm as a result of the doctor's violation of the condition.” Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269. Here, Plaintiff has not alleged facts that support his conclusory allegation that the nurses touched Plaintiff wit...

Excerpt: ...ax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774; see, Thon, 29 Cal.App.4th at 1548 (“To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount.”) “[T]he mere filing of a motion to...

Excerpt: ...ection 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Williams v. Superi...

Excerpt: ...a criminal investigation involving two individuals, Grant Robicheaux (“Robicheaux”) and Cerissa Riley (“Riley”). Complaint (“Compl.”) ¶¶ 12-14, 17. Charges ultimately were filed against both individuals by the Orange County District Attorney (“OCDA”) (Compl. ¶23), and in October 2018, a first amended criminal complaint was filed against them naming additional alleged victims. Id. ¶ 28. While the criminal action was pending, a ...

Excerpt: ... the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The 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 §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable fa...

Excerpt: ...efendant for (1) breach of the duty of good faith and fair dealing; and (2) breach of contractual duty to defend. (ROA 2, Complaint at ¶¶11-25 and 26-31, respectively). (All references herein to the “Complaint” or “Compl.” are references to the complaint filed in this action.) In brief, Plaintiffs allege that Defendant denied the request by Plaintiffs, its insureds, to defend Mr. Fasbender in the Underlying Action, which was a lawsuit b...

Excerpt: ...er is sustained with 15 days leave to amend as to Cross-Complainant Martirosyan and Cross-Defendant Granier, and it is overruled as to Cross-Complainant VDM Biochemicals as against Cross-Defendant BioCorRx. Cross-Defendants' motion to strike portions of the Cross-Complaint is DENIED. Cross-Defendants' request for judicial notice is GRANTED. Demurrer First Cause of Action for Breach of NDA/Confidentiality Agreement The elements of breach of contra...

Excerpt: ...rs none of the papers submitted by any of the parties includes a copy of the challenged subpoenas. According to the moving papers, the subpoenas were issued on or about 1/31/22, with a production date of 3/4/22. (Mot. at 2-3.) It appears the subpoenas are deposition subpoenas for production of business records, but without copies of the subpoenas, the Court cannot confirm this. Plaintiff shall be prepared at the hearing to confirm whether is the ...

Excerpt: ...her, Defendant and its attorney of record, Scott Martin, jointly and severally, are ordered to pay Plaintiff $2,160 in sanctions within 30 days of this Order. A. The Amended Motion is timely filed and served. Defendant takes issue with the fact that the original Motion was not timely served. But the Amended Motion – which is what the Court is ruling on – was timely served. On 1/3/22, Plaintiff served the first set for requests for production ...

Excerpt: ...ffs file an Amended Complaint that includes the referenced exhibits, so that everything is contained in one document. A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached to and incorporated therein) or from matters outside the pleading...

Excerpt: ... is DENIED. As an initial matter, the Court declines to consider the District's response to Plaintiff's separate statement. No such response is permitted under the Code of Civil Procedure or the California Rules of Court. (Code Civ. Proc., § 437c; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Applicable Law In both summary judgment and summary adjudication proceedings, the pleadings determine the scope of the relevant issues. ...

Excerpt: ...he ground that he prevailed on Plaintiffs' claim against him for breach of contract. For the reasons set forth below, the Court GRANTS the motion in part, but awards far, far less than the exorbitant amount requested by Defendant. As an initial matter, Defendant asks the Court to take judicial notice of its Final Statement of Decision, Judgment, the Memoranda of Costs, and the First Amended Complaint – all of which are documents filed in this c...

Excerpt: ...nswer or demurrer. Code Civ. Proc. § 473(a) (1). The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. Code of Civ. Proc. § 473(a) (1). Additionally, any judge, at any time before or after commencement of trial, in the furtherance of...

Excerpt: ...copy of the document must be served on all other parties that already possess copies, along with the redacted version. CRC 2.551(b)(2). The moving party must lodge a complete copy of the document, marked “Conditionally Under Seal,” with a cover sheet stating the case information and that the enclosed record is subject to a pending Motion to Seal. CRC 2.551(d). To grant a motion to seal, the court must expressly find that: (1) an overriding in...

Excerpt: ... motion practice…is that new evidence is not permitted with reply papers…‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case ...' and if permitted, the other party should be given the opportunity to respond.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Reply evidence should not address substantive issues in the first instance but only fill gaps in the evidence creat...

Excerpt: ...iv. Proc., § 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. Code Civ. Proc. § 2030.300(a). No. 12 and No. 17 These interrogatories ask Defendant to “[d]escribe in detail [its] relationship with 12 Towers Engineering,” and “KNS Steel, Inc.” Defendant responded that 12 Towers and KNS Steel were its subcontractors for the Proje...

Excerpt: ...h is intended to cause injury or despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. Similarly, Civil Code §3294(c) defines “oppression” as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. The court in Lackner v. North (2006) 135 Cal.App.4th 1188 offered further guidance and explained “despicable conduct” is conduct t...

Excerpt: ...subject to the mandatory dismissal statute, Civil Procedure Code (“CCP”) 583.320, for failure to bring the action to trial within three years of the 10/22/18 mistrial. Defendant argues that none of the tolling exceptions in CCP 583.340 apply to this case and that CCP 583.360 mandates dismissal. Alternatively, Defendants request the Court to dismiss the action for failure to prosecute. This argument is supported by the facts that occurred afte...

Excerpt: ...with California Rules of Court, rule 3.1110(f)(4). The failure to comply with rule 3.110(f) (4) caused an unnecessary amount of time to be spent to locate exhibits attached to the declaration, approximately 249 pages. Counsel is admonished to comply fully with the requirement of the California Rules of Court. Failure to comply may result in an OSC re sanctions and/or continuance of the motion. The Court also notes that Defendant's Reply brief exc...

Excerpt: ...f Trust recorded on 2/3/21 as document no. 2021000076841 in the Orange County Recorder's Office, is granted. (Evid. Code §§ 452(c), (h), 453.) By the Complaint, Plaintiff alleges that “each defendant,” including MERS, “claims some right, title, or interest in or to the building parcel, each of which claim is junior and inferior to plaintiff's claim.” (Compl. at ¶ 12.) MERS moves for judgment on the pleadings as to the sole cause of act...

Excerpt: ...ant Charles Reiter (“Reiter”) to appear and take a position on whether he wants the claims against him sent to judicial reference; and (2) Plaintiff to respond to Defendant's equitable estoppel argument, which had been raised for the first time on reply. [ROA #150] Since then, Defendant Charles Reiter has filed his answer to the SAC, in which he asserts an affirmative defense based on judicial reference. [ROA #154, Eighteenth Affirmative Defe...

Excerpt: ...ng Common Interest Development Act does not define “prevailing party,” it is well established that the analysis of who is a prevailing party under the Act focuses on who prevailed on a practical level by achieving its main litigation objections. Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 590. The parties do not dispute that Plaintiffs are the prevailing party in this action or that the Court's judgment was based on the C...