Excerpt: ...ation and Production of Documents, Set One to OSL (“Motion 1”); (2) Plaintiff's Motion to Compel Further Responses, etc., filed as ROA 49 on 1/18/24, concerning Plaintiff's Form Interrogatories, Set One to OSL (“Motion 2”); (3) Plaintiff's Motion to Compel Further Responses and Documents, etc., filed as ROA 123 on 2/8/24, concerning Plaintiff's Request for Identification and Production of Documents, Set One to OMG (“Motion 3”); and...

Excerpt: ...ting defendant is e ntitled to be served by an amended complaint when the amendment is as to a matter of substance and not a mere matter of form. The reason for this rule is plain. A defendant is entitled to opportunity to be heard upon the allegations of the complaint on whi ch judgment is sought against him.' [Citations.] An amendment which significantly increases the amount of damages sought is an amendment of substance which must be served b...

Excerpt: ...on is requir ed. Personal service on a corporation is governed by CCP § 416.10, which states in part: A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods: (a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, incl...

Excerpt: ...ct. CCP §1974( d) says a prevailing buyer “shall recover . . . attorney's fees and costs based on the actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” [Emphas is added] However, CCP §1794(d) does not say the Court has to give Plaintiff's counsel everything they ask for. For claims under the Song -Beverly Act claims, a prevailing b...

Excerpt: ...d a valid objection under S ection 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, …the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production...” (Code Civ. Pro c., § 2025.450.) “[A]ny party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or i...

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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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...