Excerpt: ...e facts of defendan t's oppression, fraud, or malice. (CC § 3294(a).) “Malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (CC § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disreg...

Excerpt: ...rmation for individual independent service centers co -defendant/non -parties, but GM does have the duty to make an inquiry into any of its employees that may have information relating to the Vehicle and its repair history. (Civ. Proc. Code § 2030.220.) Merely stating “GM call center advisors with whom Plaintiff may have communicated” does not comply with the requirement to make a reasonable and god faith inquiry. Additionally, vague referen...

Excerpt: ...4) 226 Cal. App. 4th 2 31, 240; See also, 9 U.S.C.A. § 2; Civ. Proc. Code § 1281.4.) "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.4th 951, 972 (“Engalla”); Green Tr...

Excerpt: ...er. While the petition was pending, the plaintiff also made a request for documents relating to the petition. The FAC asserts claims based on the failure to allow inspection of the documents requested in October and November 2021 as well as the request to review the recall petition on 8/17/22. (FAC at ¶¶15, 17.) HOA's Request for Judicial Notice The HOA's request for judicial notice is GRANTED as to Item Nos. 13. (Evid. Code §452(d)) The reque...

Excerpt: ... summarily adjudicate claims or defenses as to which no triable issue was raised unless requested in the notice of motion. (Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial, §10:88, citing Homestead Sav. v. Sup.Ct. (Dividend Develop. Corp.) (1986) 179 Cal.App.3d 494, 498 (citing text).) Further, even if the notice of motion could be deemed to set forth a request for summary adjudication in the alternative, the motion is procedurally defec...

Excerpt: ...subdivision (q), suc h that Plaintiff's claims would not expire until June 27, 2023. Emergency Rule 9 provides that “[n]otwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until Oct ober 1, 2020.” Thus, according to Plaintiff, her Complaint filed on June 22, 2023, is timely. Plaintiff's argument is well -taken. Plaintiff relies on Roe v. Doe (...

Excerpt: ...es to Interroga tories Nos. 4.1, 15.1, 16.1, 17.1 and 50.1 - 50.6. Code of Civil Procedure section 2030.300, states, in part, “(a) On receipt of a response to interrogatories the propounding party may move for an order compelling a further response if the propounding par ty deems that any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without m...

Excerpt: ...o Parikh are MOOT except for sanctions. The motion directed to Fazeli is GRANTED in part and DENIED in part. Motions Directed to Parikh (ROA 190 and 198) The oppositions indicate Parikh served verified substantive supplemental responses to the at issue discovery on February 7, 2024. (ROA 249 at Exhibit 3; ROA 251 at Exhibit 3.) The court thus deems these motions MOOT, except for the issue of sanctions. (Sinaiko Healthcare Consulting, Inc. v. Pac...

Excerpt: ...pplies? D efendants contend that the Federal Arbitration Act (“FAA”) applies to this action because the Mutual Agreement to Arbitrate Claims expressly states that “[t]he Federal Arbitration Act (9 U.S.C. § 1 et seq.) (‘FAA') governs this Agreement, which evidences a transaction involving commerce.” (See Gralak Decl., ¶ 10, Exh. A, p. 1, lines 4 -5). Defendants also present evidence that Defendant HEARTLAND operates more than 62 health...

Excerpt: ...Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profess ion under similar circumstances.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 983- 984.) Here, the undisputed evidence demo...

Excerpt: ...s 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross- defendant has met that burden, the burden shifts to the plaintiff or cross- complainant to show that a triable issue of one or more material facts exists as to the cause ...

Excerpt: ...c denial of the material allegations of the complaint controve rted by the defendant. (2) A statement of any new matter constituting a defense.” CCP §430.20 authorizes a party to object by way of demurrer to an “answer that does not state facts sufficient to constitute a defense.” A defendant raising new matters in an answer must allege ultimate facts sufficient to prove the defense with the same level of detail that a plaintiff is require...

Excerpt: ...he cause of action, even if not separately pleaded, cannot b e established, or that there is a complete defense to the cause of action. Once the defendant or cross- defendant has met that burden, the burden shifts to the plaintiff or cross -complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or crosscomplainant shall not rely upon the allegations or denials of...

Excerpt: ...e motion, the court must treat all of the defendant's allegations as being tru e, and the motion should be denied if the defendant's pleading raises a material issue or sets up an affirmative matter constituting a defense. (Id. at p. 331; accord, Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1380; see also, Engine Manuf acturers Assn. v. State Air Resources Bd. (2014) 231 Cal.App.4th 1022, 1034.) Here, the answer of Plaintiff/Cross ...

Excerpt: ... procedures, including enforcement proced ures, for each discovery method. The issue here is that Genera moves to compel a non- party to produce further documents pursuant to a subpoena. Non -party discovery is governed by CCP §§ 1985, et seq. and 2020.010, et seq. Where a non- party refuses to co mply with a deposition subpoena, the requesting party must move under the appropriate code section seeking enforcement of said subpoena, and not CCP ...

Excerpt: ...forth below. The motion as to the RFP is DENIED. As an initial matter, t he court notes the motion was improperly filed as one motion, when it is actually three motions to compel further responses to discovery. Form Interrogatories With the exception of Form Rog 200.6 discussed below, the court finds Plaintiff's responses to the at issue Form Rogs are code compliant. It appears Defendant is not satisfied with the responses and believes additio...

Excerpt: ...y concedes that supplementation is warranted for Nos. 1 -31 and 34, and the Motion demonstrates that this is so. It does not suffice to merely claim that an interrogatory is “premature,” or to just point to records without complying with C.C.P. § 2030.230. Nor does it appear that C.C.P. § 2030.230 applies for many of thos e responses. The Motion is therefore GRANTED for Nos. 1 -31 and 34. For Nos. 32 and 33, the Motion is GRANTED IN PART. W...

Excerpt: ... verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.” (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molinari (2...

Excerpt: ...e of a valid Arbitration Agreement, before arbitration can b e compelled. (See 9 U.S.C. §2 and C.C.P. §1281.2). “If a party to a civil action asks the court to compel arbitration of the pending claim, the court must determine in a summary proceeding whether an ‘agreement to arbitrate the controversy exist.'” (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 754.) “Because the existence of the agreement is a statutory prerequisite to ...

Excerpt: ...oses of motions for summary judgment and summary adjudication : . . . (2) A 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, even if not separately pleaded, cannot be established, or that there is a compl ete defense to the cause of action. Once the defendant or cross- defendant has met that burden, the burden shifts to the plaintiff o...

Excerpt: ...Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to the second cause o f action for negligent infliction of emotional distress on the grounds the cause of action is uncertain and does not plead facts sufficient to state a cause of action. To plead negligent infliction of emotional distress (“NIED”), Plaintiffs must plead 1) the defendant was negligent, 2) the Plaintiff suffered serious emotional distress, and 3) Defendant's negl...

Excerpt: ...second and third causes of action (each a “COA”) in the Complaint. But the supporting Separate Statement presents evidence only for those 2 issues. (See ROA 168.) The Motion as presented thus fails to support the request for summary judgment. The alternative request for summary adjudication on Issues 2 and 3 fail here, because Plaintiffs have presented adequate evidence in their Opposition to defeat the Motion. Plaintiffs have shown a clear r...

Excerpt: ...s in a complaint.” (Rakestraw v. Cal. Physicians Service (2000) 81 Cal.App.4th 39, 42.) Plainti
¯s well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Third Cause of Action: Breach of Implied Warranty Defendants argue that the third cause of action for breach of implied warranty must fail because...

Excerpt: ...f contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Fifth Cause of Action: Intentional Inßiction of Emotional Distress (“IIED”) To state a claim for IIED, a plainti
¯ must allege "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plainti
¯'s su
¯ering severe or extreme emotion...

Excerpt: ... contract. Under Code of Civil Procedure section 1032, attorney's fees are recoverable as costs when authorized by contract, statute or law. (Code Civ. Proc. § 1033.5(a)(10)(A)-(C).) As set forth in the Statement of Decision (“SD”), the Court found against the Defendants on two claims: Sexual Assault (First Cause of Action) and Sexual Battery pursuant to Civil Code section 1708.5 (Second Cause of Action). In plainti
¯s' closing brief, Tina ...

Excerpt: ...robable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (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. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Gran...

Excerpt: ...ems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Civ. Proc. Code § 436(a).) Regarding punitive damages under Civ. Code § 3294: “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plainti
¯, in addition to the actual damages, may recover damages f...

Excerpt: ...50(d). However, again, Plainti
¯ did not make an issue of this in the reply brief, and the court may consider the merits of a case absent a proper separate statement when the case involves a single simple issue” with minimal evidentiary support, such as here. (Gilbertson v. Osman (1986) 185 Cal. App. 3d 308, 316.) The court will proceed on the merits, but cautions defense counsel to comply with code requirements in the future. “(p) For purpo...

Excerpt: ...28, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity or “the rights of parties to enforce an arbitration agreement within the FAAs scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) “The party seeking arbitration bears the burden of pr...

Excerpt: ...to June 30, 2023, as well as identiÞcation of each category of patients' responsible parties. Defendant requests a protective order as to these requests, citing privacy concerns for the residents at issue. “In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circum...

Excerpt: ...v. Code §§ 1717 and 5975(c). (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal. App. 4th 761, 773.) While fees are recoverable, they must be reasonable incurred and are subject to the lodestar method for determination of the proper sum. (PLCM Grp. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) Although there was apparently a contractual agreement between Plainti
¯s and their counsel for a $250/hr. billing rate, Plainti
¯s' counsel in...

Excerpt: ...which the manufacturer has made an express warranty shall: . . . (3) Make available to authorized service and repair facilities su
¯icient service literature and replacement parts to e
¯ect repairs during the express warranty period.” Civ. Code § 1793.2(A)(3). Plainti
¯ largely just parrots the language in the code, without making any actual factual allegations regarding what authorized service and repair facilities Plainti
¯ presented to ...

Excerpt: ...d Motion to Strike Dr. Raney is correct that the complaint is uncertain. (Code Civ. Proc., S 430.10(f).) The caption of the complaint lists causes of achon for Wrongful Death and Survival Acton, Medical Negligence, and Medical Malpractice. However, the body of the complaint contains causes of action (Counts I-III) for Negligence-Medical Malpractice, Negligence- Medical Malpractice, and Negligence/Medical Malpractice/Respondeat Superior/Agency. Mo...

Excerpt: ... ruling. For COAS 1, 2 and 4, each asserts a variation of a negligence claim. Under the Tort Claims Act all governmental tort liability is based on statute, so those COAS must be pleaded with particularity: "to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity." (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Plaintiff has not...

Excerpt: ...ntions, deductions, or conclusions of fact or aw (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) Defendant demurs to the second cause of action for violation of Civil Code S 52.1, which states, in part: "(b) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of...

Excerpt: ...ates: "If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including...

Excerpt: ... two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued. [Citation.) Weighing these factors lies within the broad discretion of the superior cou...

Excerpt: ...urden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a 'summaryjudgment-like procedure.' [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts t...

Excerpt: ...nst plaintiff Yneges based on a rejected Civ. Proc. Code S 998 offer Defendant served on Yneges on 08/19/21. This is the only 998 offer presented into evidence on this motion. Civ. Proc. Code S 998 in relevant part states: "(c)(l) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from t...

Excerpt: ...e petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party "to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute." (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molinari (2005) 132 Cal.App.4t...

Excerpt: ...ourt will exercise its discretion to consider the opposition, but admonishes Plaintiff to abide by court rules for all future filings. Plaintiff does not dispute the Federal Arbitration Act (FAA, 9 U.S.C. S 1, et seq.) applies here. Under the FAA, the moving party on a motion to compel arbitration must demonstrate the existence of an arbitration agreement between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Managemen...

Excerpt: ...staffng agency, entered into a Managed Services Agreement ("MSA") with PSG, a national temporary staffing agency. According to the MSA, World operated "as a marketing and client services agent of PSG for all temporary staffng business generated by the assignment of laborers from an Agency location." Pursuant to the MSA, World would perform certain activites for laborers working at Client Companies and PSG would perform other activities, including...

Excerpt: ...y be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) It is not an abuse of discretion to sustain a demurrer without leave to amend if there is no reasonable possibility that the defect can be cured by amendment. (See Jenkins v. County of Orange (1989) 212 Cal.App.3d 278.) As a preliminary matter, Defend...

Excerpt: ...us XM Radio Inc. (9th Cir. 2014) 771 F. 3d 559, 565.) In determining the validity or "the rights of parties to enforce an arbitration agreement within the FDA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 235.) "The party seeking arbitration bears the burden of proving the existence of an arb...

Excerpt: ...o mistake, inadvertence, and/or surprise, and due to no prejudice be suffered by plaintiff from the relief sought." (Motion at 3:4-7.) CCP 5473(b) states in pertinent part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this reli...

Excerpt: ...such, should plaintiffs/DlG indicate the reply was not served on them, then the court will contnue the hearing to permit time for plaintffs/DlG to review the reply and prepare for the hearing. Andersson brings her Motion pursuant to Civ. Proc. Code SS 426.50 and 426.10. "A motion to file a cross-complaint [under Civ. Proc. Code S 426.50] at any time during the course of the action must be granted unless bad faith of the moving party is demonstrat...

Excerpt: ...cts supporting the statutory elements of the violation." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.) aut here, COA 9 essentially just recites the elements of the statute without identifying what GM allegedly did or did not state in any advertising or publication which could trigger liability under Bus. & Prof. Code 517531. The claim thus fails as pled. For COA 10, a cause of action for conversion requires allegations of...

Excerpt: ...s discretion will therefore not consider the very late filed opposition. (CRC Rule 3.1300(d).) As to the merits of the demurrer, Defendant argues Plaintiff's causes of action ("COA") Nos. 3 and 5 fail to state sufficient facts to constitute a COA against Defendant. (Code Civ. Proc. S 430.10(e).) The court agrees. 1) COA No. 3 — Violation of Civ. Code S 1793.2(a)(3) "(a) Every manufacturer of consumer goods sold in this state and for which the m...

Excerpt: ...the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or crosscomplainant sh...

Excerpt: ...nd thereto, and for $1,280.88 in sanctions on each such motion, against Gill and Kaur, respectively; b) Motions 3-5 (ROAS 62, 82 and 50): Plaintiff moves to compel responses without objections to Requests for Production, Set One, as directed to Defendant Mickle & Lucky Estates, LLC (here, "Owner"), Kaur and Gill, for failure to respond thereto, and for $1,280.88 in sanctions on each such motion, against Owner, Kaur, and Gill, respectively; c) Mot...

Excerpt: ...rom limited to unlimited jurisdiction, i.e., that a greater recovery "could not be obtained" or is "virtually unobtainable." ld. at p. 269-270. Appellate courts have underscored the high threshold set by Walker: "[The plaintiff] may well not prevail on the factual disputes regarding the extent of his injuries .... But a [Walker] hearing is not to be perceived as a minitrial or an opportunity for a trial judge to put forth a well-educated guess of...

Excerpt: ...n. (O'Connell v. Superior Court (2006) 141 Cal.App. 4th 1452, 1481.) The moving party has the burden to show that it is reasonably probable it will prevail on the merits. (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442; Weil & Brown, 9:632.1.) Additionally, "[i]n deciding whether to issue a preliminary injunction, a trial court weighs two interrelated factors: [1] the likelihood the moving party ultimately w...

Excerpt: ... it will not be automatically allowed; there must then be a "careful balancing" of the "compelling public need" for discovery against the "fundamental right of privacy."' " (Bd. of Trustees v. Superior Court (1981) 119 Cal. App. 3d 515, at 525.) "The party asserting a privacy right must establish [1] a legally protected privacy interest, [2] an objectively reasonable expectation of privacy in the given circumstances, and [3] a threatened intrusio...

Excerpt: ... truth of contentions, deductions, or conclusions of fact or law. (alankv. Kirwan (1985) 39 Cal.3d 311, 318.) Cause of Acton 1: Breach of Contract To allege a claim for breach of contract plaintiff must plead: (1) the existence of a contract; (2) the plaintiff's performance or excuse for nonperformance; (3) the defendant's breach; (4) resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman, (2011) 51 Cal. 4th 811, 821.) Defendant a...

Excerpt: ..., Mr. Xu challenges service of the Summons. "When a defendant challenges the court's personal jurisdiction on the ground of improper service of process 'the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.'" (Summers v. McClanahan (2W5) 140 Cal.App.4th 403, 413.) The plaintiffs have submitted evidence show-ng Mr. Xu was served by substitute service. under Code o...

Excerpt: ...plaint; the request for entry of default. „ and a copy of the judgment." Code Civ. Proc., S 670, subd. (a). Ajudgment, void on its face, is not governed by Code of Civil Procedure S 473. [Citation.] Such a judgment may vacated upon motion or may be set aside by the court on own motion. Montgomery v. Norman (1953) 120 Cal.App.2d 855. A trial court has the inherent power to set aside a judgment void on its face at any time. Connelly v. Castillo (...

Excerpt: ... is a substantial probability they will prevail on the claim for punitive damages. (Civ. Code S 3295(c); Jabro v. Superior Ct. (2W2) 95 Cal. App. 4th 754, 757 ("Jabro").) "[B]efore a court may enter an order permitting discovery of a defendant's financial condition, it must (1) weigh the evidence submitted in favor of and in opposition to motion for discovery, and (2) make a finding that it is very likely the plaintiff will prevail on his claim f...

Excerpt: ...ne any of the following: ... "(4) Reported a work-related ... injury „ except in cases where the employee alleges they have been retaliated against because they have filed or made known their intention to file a workers' compensation claim pursuant to Section 132a, which is under the exclusive jurisdiction of the Workers' Compensation Appeals Board. Plaintiff alleges that he injured his head and neck while entering a car, and as a result of rep...

Excerpt: ...n, Set One ("Motion 3" below). Plaintiffs' motions are procedurally deficient. First, they improperly purport to compel responses to three different discovery devices in the motion. Inexplicably, Plaintiff attempts to remedy the problem not by separating the motons but in filing the same moton three times. For each, Plaintiffs failed to submit a declaration evidencing meet and confer efforts as required by C.C.P. SS 2016.040, 2031.310(b)(2), and ...

Excerpt: ...wed "only to issues related to the new Cause of Action." The new cause of action which plaintiffs sought to add was for "Violation of Labor Code 5970, Soliciting Employment Through Misrepresentation." CCP 5599 did not extend the discovery cut-off because that section only applies "unless ordered otherwise by a court" and in this instance, the Court made a specific order as to the limited scope of additional discovery that would be allowed. With r...

Excerpt: ...ween the parties that covers the controversy or claims at issue. (Roes v. SFBSC Management, LLC (9th Cir. 2016) 656 Fed.Appx. 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity or "the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower Assn. v....

Excerpt: ...rent hearing was set as a motion to compel further responses to RFAs, the Court will consider the RFAs at this time. The next procedural problem is that Plaintiff failed to concurrently file a declaration with the motion evidencing meet and confer efforts as required by CCP S Plaintiff attempted to remedy the problem by filing three Notces of Errata attaching the full motions with the declarations on the last court day before the hearing. Further...

Excerpt: ...t recovery of punitive damages." (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405) "The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Citations omitted) Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury "must be ple...

Excerpt: ... will appear and discuss what arrangements have been worked out as to this matter. B) Demurrer Defendant Jason Krieck's (Krieck) Demurrer to plaintiffs John Pressney and Pamela Pressney"s (Plaintiffs together) Fourth Amended Complaint (FAC) is OVERRULED. Krieck demurs to causes of action (COA) No. 3 for Elder Abuse, and No. 4 for Unfair Business Practices. Although Krieck made general arguments as to why the FAC does not state facts sufficient to...

Excerpt: ...d 2 are MOOT, except for the issue of sanctions. Motion 3 is DENIED. Motions 1 and 2: Motions to Compel Answers to Discovery Plaintiff seeks to compel 1st Pass' responses to its first set of Requests for Production of Documents and Special Interrogatories. In the Oppositions, 1st Pass contends it provided full and complete responses to the subject discovery after the motions were filed. The Oppositions show initial responses were served on August...

Excerpt: ...State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774-776, Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989, and Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 [mere statements in MPAs and declaration of counsel insufficient to rebut prima facie showing].) As such, Plaintiff's assertion that the entire Memorandum of Costs is defective because it does not include any affdavits or receipts fails as there is no such requirement in the...

Excerpt: ...Consulting, Behrooz Entezam aka Bruce Entezam and Behzad Entezam, aka Ben Entezam (collectively "Green" or "RP") is SUSTAINED in part and OVERRULED in part. RP objects to the demurrer on the ground that it was filed six days late. RP argues that it only granted a one week extension to "answer" and not to file a demurrer. Based on the Court's review of the correspondence and declarations, there appears to have been some confusion on the use of the...

Excerpt: ...88-89; Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733.) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal. 4th at 89.) "As used in this section, "act in furtherance of a person's right of petition or free s#ech under the United States or Califo...

Excerpt: ...ion under Section 2016.040. [9] The court, for cause shown, may make any order that justice requires to 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: [9] (1) That the deposition not be taken at all." (Code Civ. Proc., S 2025.420, subds. (a),...

Excerpt: ...nintelligible" (Code Civ. Proc., 5430.10, subd. (f)), "[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Additionally, "[d]emurrers for uncertainty are disfawred, and are granted only if the pleading is so incomprehensible that a defendant cannot rea...

Excerpt: ...e Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant's argument is based on the 2022 Release, signed between the parties to settle a dispute about the profit-sharing clause in the original employment agreement. While the General Release signed in 2020 specifically excluded issues related to the profit-sharing clause, the 2022 Release cove...

Excerpt: ... demurred to all ten affrmative defenses. Code Civ. Proc. S 430.30 lists three grounds for demurrer to answer: (1) the answer does not state facts sufficient to constitute a defense; (2) the answer is "uncertain," which includes ambiguous, and unintelligible; and (3) when the answer pleads a contract, it cannot be ascertained whether the alleged contract is written or oral. Each ground must be in a separate paragraph and state whether it is direc...

Excerpt: ... claims. On a fraud claim, every element must be alleged in full, factually and specifically, including facts that show how, when, where, to whom, and by what means the representations were tendered, and when alleged against an entity, the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. (Lazar v. Sup. Court (1996) 12 C...

Excerpt: ... Civil Procedure sections 2030.290(c) and 2031.300(c) provide that if a party fails to obey an order compelling discovery responses, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction, and/or monetary sanctions. "Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctons should be tailored to serve t...

Excerpt: ...e Constitution. (Cal. Const., art. l, S 1.)" (Williams v. Superior Court (2017) 3 Cal. 5th 531, 552 ("Williams").) "unless otherwise limited by order of the court . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discov...

Excerpt: ...was not served with a summons in the manner prescribed by statute is wid." (Dill v. Berquist Constr. Co. (1994) 24 Cal. App. 4th 1426, 1444 ("Dill").) "A motion to vacate a judgment on the ground that it is void is timely if made within a reasonable time (8 Witkin, Cal.Procedure, supra, Attack on Judgment in Trial Court, S 186, pp. 587—588), which has been determined to be any time within two years of the entry of the judgment. (Dill, supra, 24...

Excerpt: ...ure production. The Court finds good cause has been shown for some of what is requested as documents related to Defendant's policy and procedures used to evaluate customer requests for repurchase or replacement under the Song Beverly Act would be relevant to Defendant's good faith compliance with said Act. Further, documents regarding diagnostic/repair procedures followed is probative of whether Defendant followed the appropriate repair procedure...

Excerpt: ...e and the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party "to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute." (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is ...

Excerpt: ... or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party "to demonstrate that an arbitration clause cannot interpreted to require arbitration of the dispute." (Buckhorn v. St. Judge Heritage Medical Group (20134) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molinari (2W5) 132 Cal.App.4th 1223, 1229....

Excerpt: ...n a continuance, the opposing party must submit affidavits showing that facts "essential to justify opposition may exist but cannot, for reasons stated, be presented." "It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show 'facts essential to justify opposition may exist.' " (Roth v. Rhodes (1994) 25 Cal.App.4th 53...

Excerpt: ...." (Rakestraw v. Cal. Physicians' Service (20!W) 81 Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendmen...

Excerpt: ...he court for an order requiring Plaintiff to appear. (Civ. Proc. Code § 2032.310.) “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Civ. Proc. Code § 2032.320(a).) Plaintiff previously underwent a physical IME with Luke Macyszyn, M.D. (“Macyszyn”), which focused solely on Plaintiff's alleged spine injuries. (Opposition, Ex. 5 at p. 1 ¶ 5.) Defendants now seek a sec...

Excerpt: ...brought under this section, the court, in its discretion may award to the prevailing party reasonable attorney fees and costs....' (Gov.Code, § 12965, subd. (b).) We review the trial court's failure to award attorney's fees under an abuse of discretion standard.” (Steele v. Jensen Instrument Co. (1997) 59 Cal. App. 4th 326, 331) Hotel does not contest the plaintiff's right to recover fees under FEHA. The Court has discretion as to determining ...

Excerpt: ...ee also, Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 - general demurrer may be upheld “only if the complaint fails to state a cause of action under any possible legal theory” (emphasis added).) The first cause of action is for Promissory Estoppel. “The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance mus...

Excerpt: ...subject motions are brought following the deponents' failure to appear at deposition. CCP §2025.450 authorizes a motion to compel attendance and production following a failure to appear. Because the motions are similar in many respects, and because the separate “non-oppositions” filed by the defendants are nearly identical, the two motions are discussed together. Green establishes that on 1/19/23, it served a Notice of Deposition of Persons ...

Excerpt: ...urther Responses and to Deem Requests Admitted, filed on 2/22/23 by Plaintiff; -Motion 5: Motion to Compel Further Responses and Responses Under Oath (as to Form Interrogatories), filed on 2/22/23 by Plaintiff; -Motion 6: Motion to Compel Further Responses and Responses Under Oath (as to Special Interrogatories), filed on 2/22/23 by Plaintiff; Motion 1 is GRANTED, with 30 days leave to amend. In Motion 1, GM seeks judgment on the pleadings as to ...

Excerpt: ... by the motion. (Code Civ. Proc., §§ 2030.300(b), 2031.310(b), and 2033.290(b).) Code Civ. Proc. § 2016.040 requires a good faith attempt to resolve “each issue presented by the motion.” There must be a serious effort at negotiation and informal resolution. (Clement v. Alegre (2009) 177 Cal.App. 4th 1277, 1294.) While meet and confer efforts certainly could and should have been more robust, the court has already addressed that by ordering ...

Excerpt: ... that the deposition notice was served on 1/19/23 for a deposition on 2/9/23 and a copy is attached as Exh. B. (Macaulay Decl. at ¶8) ACE did not serve objections to the form of the notice of deposition or the requests for production of documents. (Macaulay Decl. at ¶10) ACE argues in the Opposition that its 1/23/23 email constituted objections on the grounds that (1) the trade secret designation was insufficient, (2) they had a priority agreem...

Excerpt: ... certain work, and that the plaintiff is an employee (or independent contractor) thereof, who was injured in the course of the work, the burden then shifts to plaintiff to produce evidence raising a triable issue of fact as to application of a Privette exception. It is undisputed that Plaintiff owned and operated Live Wire Electric as a sole proprietor and that Live Wire Electric was hired by VFS as an independent contractor to perform electrical...

Excerpt: ...an (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 for the purpose of ruling on the demurrer. (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 cou...

Excerpt: ...ns 1 and 2 are DENIED. Plaintiff here has plainly put her mental health at issue. (ROA 68, Ex. C at 6.2 and 6.3, and Ex. D, at 122:5-123:2, 144:5-21.) She has thus also put the cause(s) for her distress at issue. “[B]y asserting a causal link between her mental distress and defendants' conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.�...

Excerpt: ...-party beneficiary to the relevant agreement. Initially, it is undisputed the Federal Arbitration Act (“FAA”) applies to the instant motion. The Federal Arbitration Act requires the existence of a valid arbitration agreement, before arbitration can be compelled. (See 9 U.S.C. §2). “[I]t is a cardinal principle that arbitration under the FAA ‘is a matter of consent, not coercion.'” (Pinnacle Museum Tower Assn. v. Pinnacle Market Develop...

Excerpt: ...cata applies if “(1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” (Federation of Hillside Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.) California's res judicata doctrine is based upon the primary ri...

Excerpt: ...r the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” Cal. Govt. Code §11425.30(a)(1) states that “A person may not serve as pr...

Excerpt: ...m against a defendant in a civil action is given by service of a summons on the person. Ibid. The summons is issued by the clerk of the court and must comply with various requirements set forth by statute. Ibid. Mere knowledge by a defendant of a plaintiff's action does not satisfy the requirement of adequate service of a summons and complaint. Ibid. The proofs of service filed by plaintiff on 2-28-23 (ROAs 10 and 12) indicate that specially appe...

Excerpt: ...n order compelling the California Department of Motor Vehicles (“DMV”) to produce documents in response to a business records subpoena issued on January 30, 2023. In addition to the DMV's position that it required a signed consent or a court order to release the records, the DMV also objected to the subpoena on the grounds that a notice to consumer was not served pursuant to Code of Civil Procedure section 1985.3. Plaintiff argues in the Sepa...

Excerpt: ...s GRANTED as to both motions. WFG moves for summary judgment on its SAXC on the grounds “that there is no defense to the action or proceeding." (Code Civ. Proc., §437c(c).) “[F]rom commencement to conclusion, the 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 85...

Excerpt: ...p, Inc. (2014) 228 Cal.App.4th 1200, 1211.) Second Cause of Action – Breach of the Covenants of Good Faith and Fair Dealing Defendants contend the second cause of action fails because there is no special relationship between the parties of the type similar to what exists in the insurance context. Defendants cite Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018. Although the Harris court recognized the general rule precluding tort re...

Excerpt: ...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.” (Civ. Proc. Code § 436.) Plaintiff's Prayer included a request for attorney fees under Civ. Proc. Code § 1021.5. Attorney fees under that section are awardable only in specific inst...

Excerpt: ...t to be stricken. The Court does not find prejudice sufficient to justify disregarding the additional filing. The trial court has “substantial latitude in allowing fees to be awarded without strict compliance with statutory temporal and procedural limitations.” (Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal. App. 4th 1301, 1305) The right to recover costs of suit is determined entirely by statute. (Code Civ. Proc., § 1032 et seq.) Unles...