Excerpt: ...utside 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.” The elements that must be met pursuant to section 664.6 are as follows: 1. There is a valid a...

Excerpt: ...en release bond. Defendant contends it is entitled to judgment because: (1) Plaintiff's preliminary notice was defective in that it failed to adequately estimate the value of its services; (2) Defendant is a “contractor” as defined by B&P Code section 7026.1 and cannot recover for unlicensed electrical work because it did not possess an electrical license; and (3) Plaintiff served its preliminary notice more than 20 days after it commenced se...

Excerpt: ...interference with contractual relationship, based on the allegation that Cross-Defendant Fu interfered with the “business relationships between Cross-Complainant B Body Fitness, LLC and the member of the B Body Fitness center” by making statements and taking actions that caused “the Members to terminate the membership agreement or breach the membership agreement by failing to pay dues to B-Body”. (XC ¶¶ 5, 11.) More specifically, Cross-...

Excerpt: ... proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest. Code Civ. Proc. § 377.31. Basically, all causes of action survive death except as provided by statute. Code Civ. Proc. § 377.20. Section 377.31 of the Code of Civil Procedure (“CCP”) provides: On motion after the death of a person who commenced an action or proceeding, the court shall allow a pendin...

Excerpt: ... an initial matter, the Court notes Defendants did not properly serve their reply on Plaintiff, a self-represented litigant. (Cal. Rules of Ct., Rule 2.251(c)(3).) There is no showing Plaintiff affirmatively consented to electronic service. Accordingly, the Court declines to consider Defendants' reply. In any event, the reply is improper for an additional reason: because Plaintiff did not file an Opposition to the Demurrer, there is literally not...

Excerpt: ...ited States or 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.” This section is to be construed broadly. Code Civ. Proc. § 425.16(a). There are certain specified claims against which a special motion to strike under Code Civ. Proc. § 425.16 may not be...

Excerpt: ...n's and Biller's motion for summary judgment, as well as their motion for summary adjudication on the five issues on which they seek summary adjudication. The Court is inclined to GRANT the motion for summary judgment by Defendant Peters. The elements of breach of fiduciary duty are (1) existence of a fiduciary duty, (2) breach of that duty, and (3) damages. Twomey v. Mitchum, Jones & Templeton Inc. (1968) 262 Cal. App. 2d 690. Defendants' Resign...

Excerpt: ...iable 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 ...

Excerpt: ...perties, and Cathy Ramirez (collectively, “BHHS”) is sustained with 15 days leave to amend. BHHS's motion to strike is moot. Bowers Termite First Cause of Action for Breach of Contract For their breach of contract action, Plaintiffs expressly allege the purchase agreement with sellers. [SAC, ¶ 15 and Ex. 1.] They also allege that “Defendants” hired moving Defendant Bowers Termite. [SAC, ¶ 20 and Ex. 3.] Plaintiffs allege that the “mot...

Excerpt: ...igently inflicted emotional distress,” thus, a cause of action to recover emotional distress does not “fail to state a claim.” See Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071 (discussing “confusion” in the “law of negligent infliction of emotional distress” with respect to whether and under which theory, “bystander” or “direct,” a family member may recover). None of the authority cited by Defendant Gonzalez support...

Excerpt: ...ailing to stop the conduct of a third party” (i.e., Cross-Defendant Ertz), and that “California case law has long held that absent a special relationship, there is no tort liability of a person for the acts of others.” The Glenns argue the FACC “does not allege (nor can it) that any such special relationship existed.” (ROA 100 [Memo. of P&A at 1].) Under California law, “[e]veryone is responsible, not only for the result of his or her...

Excerpt: ...ammer under the doctrine of “tort of another.” CHM's Right to Fees against Plaintiff Under Code Civ. Proc. § 1032(b), a prevailing party is entitled as a matter of right to recover costs. Under Code Civ. Proc. § 1033.5(a)(10)(A), attorney's fees authorized by contract are allowable as costs under CCP § 1032. The “prevailing party” is the party with a net monetary recovery or for whom judgment is entered, or the party who recovers “gr...

Excerpt: ...tantial factor in causing the plaintiff- patient's harm. (See CACI Nos. 400, 500; see also Code Civ. Proc., § 340.5; Uriell v. Regents of University of California (2015) 234 Cal.App.4th 735, 743.) “Medical providers must exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances.” (Powell v. Kleinman (2007) 151 Cal.App.4 th 112, 122.) “Whenever the plaint...

Excerpt: ...on by Defendant Burlington Coat Factory of Texas, Inc. for summary judgment/adjudication on Plaintiff's Complaint is DENIED. Evidentiary Objections Plaintiff's objections are sustained as to no sustain as to nos. 1 and 3; overruled as to no. 2. Otis Elevator's objections are sustained as to nos. 6, 7, 8, 9, 12, 19, and 20. They are otherwise overruled. Burlington's objections are sustained as to nos. 6, 7, 8, 9, 12, 19, and 20. They are otherwise...

Excerpt: ... 2022 at 9:00 a.m., at which time Defendant is to provide the Court information regarding the status and anticipated progress of the criminal investigation and/or charges brought against him. Pursuant to CCP section 128(a)(3), every court has the power to provide for the orderly conduct of proceedings, including the power to stay discovery in a civil action pending the outcome of a related criminal case. Evidence Code section 940 states: “To th...

Excerpt: ...ogatory No. 8.8, Plaintiff stated: “At this time, plaintiff does not know if she will lose income in the future. Any possible future loss of earnings will depend on Plaintiffs [sic] recovery [from] the injuries sustained in this incident.” (Prescott Decl., Ex. B.) She additionally states: “Plaintiff will need to rely upon the opinion of an expert economist to calculate any claim for future income.” (Id.) The subpoena at issue was issued o...

Excerpt: ...ial A notice to attend and/or produce documents at trial has the same effect as a subpoena, and the same limitations. (Code Civ. Proc. § 1987(b), (c); Amoco Chemical Co. v. Certain Underwriters at Lloyd's of London (1995) 34 Cal. App. 4 th, 554, 559.) A notice to attend may be used only to compel the attendance and production of documents by persons who are residents of California at the time the notice is served. (See Code Civ. Proc. § 1989; A...

Excerpt: ... Plaintiff did not show the motion is timely. (Code Civ. Proc., 2030.300, subd. (c) [“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.”].) Plaintiff d...

Excerpt: ...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.” (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 elemen...

Excerpt: ..., and (4) damages. First Commercial Mortgage Co. v. Reece, 89 Cal. App. 4 th 731, 745 (2001). A written contract may be pleaded either by its terms—set out verbatim in the complaint or via a copy of the contract attached to the complaint and incorporated therein by reference— or by its legal effect. Holcomb v. Wells Fargo Bank, NA (2007) 155 Cal. App. 4 th 490, 501. An oral contract may be pleaded generally as to its effect because it is rare...

Excerpt: ...n by participating in discovery, the Court accepts and considers the new evidence, but will allow Plaintiff an opportunity to address the new evidence at the hearing. CCP § 1281.2 provides, inter alia: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the re...

Excerpt: ...ar” figure based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” Serrano v. Priest (1977) 20 Cal.3d 25, 48. “The reasonable hourly rate is that prevailing in the community for similar work.” PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (internal citation omitted). As to the reasonableness of the hours, “trial courts must carefully re...

Excerpt: ...action for wrongful death. In all other respects, the Motion is denied. Defendant is ordered to file and serve its answer to the Complaint within 15 days. Although some of the allegations Defendant seeks to strike are relevant factual allegations, the Motion seeks to strike them on the ground that they all fall under the category of “punitive-damage-allegations.” Punitive damages are requested in the Prayer for Relief generally, and thus appe...

Excerpt: ...gh his or her mistake, inadvertence, surprise, or excusable neglect.” CCP § 473(b). Relief under CCP section 473(b) may be based either on: • An “attorney affidavit of fault,” in which event, relief is mandatory; or • Declarations or other evidence showing “mistake, inadvertence, surprise or excusable neglect,” in which event relief is discretionary. In short, CCP section 473(b) consists of two distinct parts: “a discretionary pr...

Excerpt: ...d he had not yet formulated his opinion on the issue of prognosis, but expected to do so “[p]robably early next week.” Libbey Decl., Ex. 1, Bernhoft Depo. at 253:8-254:9. Defendant's counsel responded: “Okay. Then I would ask that you notify your counsel when you've had an opportunity to do that and develop any additional opinions in connection with that so that we can set up something further to get those opinions. . . . I may have to ques...