Excerpt: ...e court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Code Civ. Proc., § 664.6 (effective 1/1/21). Subsection (b) of the statute provides that “For purposes of this sect...

Excerpt: ...uous. (Dem. at 3, citing Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) Defendant Timmes makes the additional argument that the claim fails against him because he is not a party to the construction agreements. “Every contract imposes on each party an implied duty of good faith and fair dealing. Simply stated, the burden imposed is ‘that neither party will do anything which will injure the right of th...

Excerpt: ...ability to comply is inadequate, incomplete, or evasive; and (3) an objection in the response is without merit or is too general. Section 2031.310(b)(1) requires the moving papers to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. To establish “good cause,” the burden is on the moving party to show both: (1) relevant to the subject matter (e.g., how the information in the document would te...

Excerpt: ...ively, “Cross-Complainants”) and the first three causes alleged therein. Demurring Parties also seek an order striking the punitive damages allegations and prayer for punitive damages from the FACC. Demurrer Demurring Parties demur to the FACC on the grounds that ZXRV lacks capacity to bring this action and Burns lacks standing. Demurring Parties also contend the FACC does not state sufficient facts to support the first, second, and third cau...

Excerpt: ... injuries she allegedly suffered while a passenger on one of Defendant's buses. (SAC at ¶ 6.) “A party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” 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 851. Where a ...

Excerpt: ... Defendant Haddadin) and DENIED IN PART (as to Defendants Radii and Arisohn). As an initial matter, the Court notes that Plaintiff's Complaint originally alleged three causes of action, for breach of express contract, money lent, and account stated. On 12/22/2020, however, Plaintiff dismissed the Doe defendants and also dismissed its causes of action for money lent and account stated. Request for Dismissal, ROA No. 40. Thus, there is only one cau...

Excerpt: ...hey also allege that “Defendants” hired moving party Defendant Bowers Termite. [Complaint, ¶ 20 and Ex. 3.] Plaintiffs attach Defendant Bower Termite's inspection report – titled Standard Notice of Work Completed and Not Completed – and allege that it was incorporated “into the agreement.” [Complaint, ¶ 21.] A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached t...

Excerpt: ...o be entitled to relief, the defendant has the burden of showing the neglect was excusable: i.e., that the default could not have been avoided through the exercise of ordinary care. [Jackson v. Bank of America (1983) 141 CA3d 55, 58—“the acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances”]. The party moving for relief on the basis of “mistake, inadvertence, surprise, or...

Excerpt: ...respond.” (Code Civ. Proc., § 2031.280, subd. (a).) It is insufficient to merely label the documents by Bates number in response to separately propounded interrogatories. (See van Loben Sels decl., Ex. B.) Plaintiff shall pay $2340 in discovery sanctions to defendant. (See Code Civ. Proc., § 2031.310, subd. (h); see also Amaro decl. ¶ 22.) The motion was timely filed and served within 45 days after plaintiff provided verifications on 10/5/20...

Excerpt: ...al Notice is denied as irrelevant. On August 13, 2020, Plaintiff served her Notice of Taking Defendant Yong Hans' Deposition, for Defendant's deposition to be continued to October 28, 2020. (Ma Decl., ¶19). Defendant failed to appear for his deposition. (Ma Decl., ¶ 22). On November 13, 2020, Plaintiff sent out another deposition notice for a December 2, 2020 deposition. (Ma Decl., ¶ 23). Again, Plaintiff did not appear for his deposition. (Ma...

Excerpt: ...eld; (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) there is a suggestion of discriminatory motive. Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 130; Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355; see also CACI 2500. Defendant contends Plaintiff has not alleged an adverse action as he has not been demoted or terminated, or something equally definitive. CACI ...

Excerpt: ...otes Medical Center did not show the moving papers were properly served on Defendant Sevak H. Darbinian, M.D. (“Dr. Darbinian”). After a defendant appears, that “defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant.” Code Civ. Proc., § 1014. The Clerk of the Cour...

Excerpt: ...an 10 days late. Code Civ. Proc., § 1005(b). Plaintiff explains he intended to request a continuance at the 2/8/21 hearing and hoped Defendants would stipulate to a continuance, but these explanations do not demonstrate “good cause” for his tardiness or disregard of procedural rules. Although Plaintiff is representing himself, his pro per status does not entitle him to any special treatment. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–...

Excerpt: ... absence of an agreement for recovery of fees or specific statutory provision, attorneys' fees generally are not recoverable by the prevailing party in a lawsuit. Trope v. Katz (1995) 11 Cal. 4 th 274, 278-79. Accordingly, in the absence of a basis for recovery, Plaintiff's prayer for attorneys' fees is subject to being stricken. Such basis must appear on the face of the pleading or by matters that may properly be judicially noticed. Code Civ. Pr...

Excerpt: ...iled the following motions against Defendant Conny Bergstrom as a result of her failure to serve discovery responses: (1) Motion to Compel Responses to Form Interrogatories; (2) Motion to Compel Responses to Special Interrogatories; (3) Motion to Compel Production; and (4) Motion to Deem Facts Admitted. After the motions were filed, responses were ultimately served, rendering the motions largely moot. However, Plaintiff has requested sanctions ag...

Excerpt: ...tthew Timmes (collectively, “Defendants”) oppose the motion. Plaintiff contends their dispute is subject to binding arbitration under identical “Dispute Resolution” provisions in the two subject construction contracts—one relating to construction work at Mr. Glasser's residence (the “Residential Agreement”) and the other relating to construction work at a restaurant (the “Restaurant Agreement”). The provisions state: “DISPUTE ...

Excerpt: ...uction, nos. 34-45; and (iv) Requests for admission, nos. 26-28. The Court rules as follows: (i) Motion denied as to nos. 77 and 78; otherwise granted. (ii) Motion granted. (iii) Motion granted. (iv) Motion granted. Sanctions of $11,550 are awarded to Defendant against Plaintiff. Motion to Compel Further Responses to Special Interrogatories A party may move to compel further responses to interrogatories on the grounds that the answer is evasive o...

Excerpt: ...rocedure section 1008. In addition, Plaintiff does not show new or different facts, circumstances, or law to support a motion for reconsideration. Code Civ. Proc., § 1008. In addition, the relief Plaintiff seeks cannot be addressed with a nunc pro tunc order. A nunc pro tunc correction is proper if it reflects the court's intention in entering the original order and does not “alter the meaning or legal effect of the original decree.” Estate ...

Excerpt: ...r Breach of Implied and Express Warranty Defendants contend the breach of warranty claims are subject to demurrer because there is no privity between Defendants and Plaintiffs. (Dem. at 2.) There generally is no question that privity is required for a breach of implied warranty claim. U.S. Roofing, Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1441 (citing Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 682, 695–696; Osborne v. Subaru...

Excerpt: ..., subd. (a)(1).) “Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.” (Elkman v. Nat. States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-1313.) If there is no conflict in the evidence, “the question of jurisdictio...

Excerpt: ...oes not list the opposition as one of the documents served. In addition, Artedi Cortez did not state his email address on the proof of service. Code Civ. Proc., § 1013b, subd. (b)(1). Furthermore, a party cannot serve documents by mail. Code Civ. Proc., § 1013a, subd. (1). Because the Association did not file any reply, it is unclear whether the Association received the opposition. Subject to any objection by the Association regarding service, ...

Excerpt: ...the demurrer. This dispute arises out of an option to lease the premises on which an restaurant is operated. Plaintiff alleges he and his former business partner, Abed Elhaj, purchased the business from the previous tenants, the Chaos, in 1994. In connection with the acquisition, a total of five agreements were executed, “none of which would have occurred without the others[.]” (FAC at ¶ 16.) Included in the five agreements was an “Option ...

Excerpt: ...tiff must allege facts establishing that defendant: “(1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was...

Excerpt: ...late reasonable attorneys' fees. Meister v. U.C. Regents (1998) 67 Cal. App. 4th 437, 448-49. The court determines a lodestar figure based on a careful compilation of the time spent and reasonable hourly compensation of each attorney involved. Serrano v. Priest (1977) 20 Cal. 3d 25. A reasonable fee is determined in the trial court's discretion. PLCM Group v. Drexler (2000) 22 Cal. 4 th 1084. To determine reasonable attorneys' fees, the court sho...

Excerpt: ...cause Instant Tuck USA LLC did not propound the discovery, it is not entitled to seek further responses, and the motions as to it are denied. As to the proper moving party, Plaintiff Instant Tuck, Inc. (“Plaintiff”), the Court rules as follows: (1) The motion to compel further responses to special interrogatory nos. 1 and 2 is denied; (2) The motion to compel further responses to document requests nos. 8 (erroneously identified as 1 in the Mo...

Excerpt: ...are procedurally flawed in that (1) they do not provide a legal basis for the motion, (2) Defendant did not plead any settlement in its answer, and (3) there was no settlement between the parties. “A basic tenet of motion practice is that the notice of motion must state the grounds for the order being sought (Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a)), and courts generally may consider only the grounds stated in the notice o...

Excerpt: ... for which notice is requested. Furthermore, based on the Court's review of the documents included with the requests, it does not appear that any of them is a proper subject of which to take judicial notice under Evidence Code Sections 451 or 452. Cross-Complainant's evidentiary objections are all overruled. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of...

Excerpt: ...s of action in the Complaint. Defendants have met their burden to show a valid written arbitration agreement that covers the disputes asserted in the Complaint. (Code Civ. Proc., § 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) The Court finds that the Federal Arbitration Act applies to the arbitration and the California Arbitration Act applies procedurally per the terms of the parties' arbitration agreement (“Agreement”...

Excerpt: ...s, no. 17.1; (iii) Requests for production, nos. 34-45; and (iv) Requests for admission, nos. 26-28. An opposition separate statement was filed only as to the motion to compel further responses to special interrogatories. But that separate statement was filed three times. [See ROA ## 482-84.] If this was an error, counsel may address with the Court at the hearing whether a continuance of the remaining motions is appropriate to enable Plaintiff to...

Excerpt: ...Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Plaintiff's two evidentiary objections are overruled. Ben's Asphalt's evidentiary objection nos. 1-9 are all overruled. Defendants Crystal Cay Condominium Association's and Amber Property Management's joinder to the opposition filed by Plaintiff is moot. In any event, it was untimely. “[F]rom commencement to conclusion, the party moving for summ...

Excerpt: ...fer obligation. Butler Decl., ¶ 2a. First cause of action for fraud intentional misrepresentation The essential elements for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231. Every element of fraud must be pleaded with specificity, which requires the pleading o...

Excerpt: ... causes of action. Except for items 1 and 7 in its first request for judicial notice, the City's requests for judicial notice are granted. As to Nos. 1 and 7, these are orders in the pending action so no request for Judicial notice is required. The Court can consider anything in the file of the action before it. First Cause of Action for Violation of 42 U.S.C. §1983/Equal Protection 14 th Amendment Although Cross-Complainants now identify this c...

Excerpt: ...fer obligation. Butler Decl., ¶ 2a. First cause of action for fraud intentional misrepresentation The essential elements for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231. Every element of fraud must be pleaded with specificity, which requires the pleading o...

Excerpt: ... causes of action. Except for items 1 and 7 in its first request for judicial notice, the City's requests for judicial notice are granted. As to Nos. 1 and 7, these are orders in the pending action so no request for Judicial notice is required. The Court can consider anything in the file of the action before it. First Cause of Action for Violation of 42 U.S.C. §1983/Equal Protection 14 th Amendment Although Cross-Complainants now identify this c...

Excerpt: ...Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Plaintiff's two evidentiary objections are overruled. Ben's Asphalt's evidentiary objection nos. 1-9 are all overruled. Defendants Crystal Cay Condominium Association's and Amber Property Management's joinder to the opposition filed by Plaintiff is moot. In any event, it was untimely. “[F]rom commencement to conclusion, the party moving for summ...

Excerpt: ... California. The Motion is DENIED. As an initial matter, the Court notes that it appears the moving party filed this motion three times, on 1/22/2019, 10/23/2019 and 10/29/2019. See ROA Nos. 30, 35, and 40. It appears to the Court that all three motions and their proofs of service are identical. See ROA Nos. 30, 31, 35, 36, 40, and 41. Plaintiff filed one opposition and did not raise any issue with the multiple filings. Similarly, Staffing Soluti...

Excerpt: ...s, no. 17.1; (iii) Requests for production, nos. 34-45; and (iv) Requests for admission, nos. 26-28. An opposition separate statement was filed only as to the motion to compel further responses to special interrogatories. But that separate statement was filed three times. [See ROA ## 482-84.] If this was an error, counsel may address with the Court at the hearing whether a continuance of the remaining motions is appropriate to enable Plaintiff to...

Excerpt: ...in any other respect; and may, upon like terms, enlarge the time for answer 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 a...

Excerpt: ...e 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 facts relied upon with sufficient precision to inform the defendant of what plaintiff i...

Excerpt: ...d warranty of merchantability and fraud, respectively. The Court overrules the Demurrer to the third and fourth causes of action. (1) The Demurrer is overruled as to the third cause of action for violation of Song- Beverly Consumer Warranty Act under Civil Code §1793.2(A)(3). Defendant contends Plaintiffs' claim for violation of Civil Code Section 1793.2(a)(3) is subject to demurrer because it is predicated on nothing more than the conclusory al...

Excerpt: ...��) provides: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement....

Excerpt: ...f 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 “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the positi...

Excerpt: ...the plaintiff comes forward with conflicting expert evidence. (Munro v. Regents of the University of Calif. (1989), 215 Cal. App. 3d 977, 985.) A defendant moving for summary judgment bears an initial burden of producing admissible evidence sufficient to show that the plaintiff's action has no merit; i.e. that, as to each cause of action, one or more elements of the cause of action cannot be established or there is a complete defense. (Code Civ. ...

Excerpt: ...e to mistake under CCP section 473(b). On 11/23/2020, the Court found a waiver of the 45-day cutoff, although jurisdictional, may be subject to relief under Code of Civil Procedure section 473, subdivision (b). Plaintiff contends the 45-day deadline is mandatory and jurisdictional, relying on Sexton v. Superior Court (1997) 58 Cal.App.4th 1403. However, in Sexton, the Court noted that it did not believe “the 45-day limitation is ‘jurisdiction...

Excerpt: ...or to matters outside the pleading that 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 what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On demurrer, ...

Excerpt: ...ill not constitute a waiver of the taxpayer privilege. The Court finds this to be a reasonable compromise. Tax returns, and the information contained in them, are privileged. Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6-7. The California Supreme Court has made clear that the privilege is not absolute and can be waived. Schnabel v. Superior Court (1993) 5 Cal.4th 704, 721. There are three situations where the privilege does not apply...

Excerpt: ... of Record are jointly and severally ordered to pay Plaintiff a monetary sanction in the amount of $2,100 to Plaintiff. Such sanction shall be paid by delivering a check in the sum of $2,100 to Plaintiff's counsel within 30 days. Each answer in an interrogatory response must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be ...

Excerpt: ...anctions; Memorandum of Points and Authorities; Pursuant to 18 U.S. Code s/s 1621 Title 18 and California Penal Code 118 PC.” However, in his Reply Brief, Cross-Complainant clarifies that “Cross-complainant's Original Notice of and Motion for ‘Perjury' should have apply [sic] been named, ‘Motion for Sanctions' against cross-defendants and/or their opposing counsel” Reply, ROA #488, at 7:21-22) and asserts that “Cross-complainant attem...

Excerpt: ...'s August 12, 2019 discovery order (the “Discovery Order”). For the reasons set forth below, the Motion is granted in part and denied in part. Plaintiff's Objections to the Declaration of Kellian Summers are overruled. Pursuant to CCP Section 2023.030, a court may issue terminating, evidentiary, issue, and/or monetary sanctions against a party that has engaged in conduct that is a misuse of the discovery process. Misuse of the discovery proce...

Excerpt: ...F CYPRESS, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 0235, PAGE(S) 42 TO 45 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. The court grants Defendants' Request for Judicial Notice as to the Order granting summary judgment and the Lis Pendens. At any time after a notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected b...