Excerpt: ...s 998 Offer The Supreme Court has not expressed whether section 998 has an implied term that an offer must be reasonable and in good faith. (See Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 531 (“Assuming without deciding that … section 998 entails such a requirement, we conclude that the trial court did not abuse its discretion in awarding fees and costs”); and id. at 531 (“the City satisfied whatever g...

Excerpt: ...hall or shall not operate as a general or special appearance.” (Slaybaugh v. Superior Court (1977) 70 Cal.App. 628, 632.) If a party seeks relief on any basis other than lack of personal jurisdiction, it is a general appearance. “One cannot alter by reservation the personal jurisdiction conferred by minimum contacts or consent.” (Szynalski v. Superior Court (2009) 172 Cal.App.4 th 1, 10.) CCP § 418.10 authorizes a motion to quash service s...

Excerpt: ...ead of filing and serving the opposition nine court days prior to the hearing (12/03/19), Plaintiff allegedly served the opposition five court days before the hearing (12/09/19) and filed it four court days before the hearing (12/10/19), both of which are improper. Id. Additionally, it was not properly served as Plaintiff states she was the serving agent, which, as a party to the lawsuit, is not permitted. CCP § 414.10. The proof of service stat...

Excerpt: ...the inducement is a subset of the tort of fraud. It ‘occurs when ‘ “the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294–295.) The Supreme Court has expressed, “An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff t...

Excerpt: ...ers and (2) plaintiff's former and current employers. As such, plaintiff is seeking relief on two separate issues and is required to pay, at least, two separate filing fees, and has only filed one. Kashini Decl., at ¶7. The Court's order will not be effective until the additional filing fee is paid. Although a separate statement is required for this motion (CRC Rule 3.1345) and plaintiff failed to file any, the Court may exercise its discretion ...

Excerpt: ... causing the harm.” Ralphs Grocery Co. v. Victory Consultants, Inc., 17 Cal. App. 5th 245, 262, 225 Cal. Rptr. 3d 305, 317 (Ct. App. 2017), as modified (Nov. 6, 2017). Here, the Complaint is devoid of any facts supporting any of the elements of trespass, other than plaintiff La Floresta Regency, LLC's, (“Plaintiff”) ownership of the Village at La Floresta, located in Brea, California. Facts supporting a cause of action for trespass should i...

Excerpt: ... least some information and facts supporting his defenses, including in the least his own name and contact information, if he is the one alleging those defenses. As there were no objection to FROG No. 15.1, and as Defendant did not provide a proper response, a further substantive response is necessary. As to FROG 17.1, many of Defendant's objections to the RFAs are unmerited (see ruling on Motion to Compel Further Responses to Requests for Admiss...

Excerpt: ...5:1). Defendant asserts the Complaint includes insufficient facts and is uncertain, “[e]specially given the context set forth above.” (See Demurrer: 5:2). The context referenced by Defendant and heavily relied on in this Demurrer, are factual allegations included within Defendant's Texas Petition; however, while the Court may take judicial notice of the fact such a petition has been filed, the Court cannot take judicial notice of the truth of...

Excerpt: ...f a receiver is a drastic remedy, may involve unnecessary expense and hardship and courts carefully weigh the propriety of such appointment in exercising their discretion to appoint a receiver particularly if there is an alternative remedy.”]) When it appears that no reasonably certain benefit will result to one litigant, and a distinct disadvantage will result to another, courts should carefully weigh the propriety of appointing a receiver. (C...

Excerpt: ...atutes, case law, and facts, the Court will give a combined analysis. Defendant All Pro (“All Pro”) has failed to abide by the Court's 09/23/19 order to provide responses to sets one of Form Interrogatories and Requests for Production propounded by Plaintiff within 10-days of service of the Notice of Ruling (“Notice”) and to pay combined monetary sanctions in the amount of $1,121.25 within 60-days of service of the Notice. Additional sanc...

Excerpt: ...grant the present Motion. To the extent that this Court has the jurisdiction to grant the Motion under a different code section, Defendant's failure to cite to such a code section prohibits granting the Motion. In addition to not citing to a statute that permits the Court jurisdiction to grant the Motion, the Court finds that in reviewing the arguments by the parties, that it is not convinced the jury should have reached a different verdict or de...

Excerpt: ...mma faced by a defendant who must choose between defending the civil litigation by providing testimony that may be incriminating on the one hand, and losing the case by asserting the constitutional right and remaining silent, on the other hand. At the same time, courts must also consider the interests of the plaintiff in civil litigation where the defendant is exposed to parallel criminal prosecution. Plaintiffs are entitled to an expeditious and...

Excerpt: ...on itself, “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. . .” CCP § 435(b)(1). “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems roper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” CCP § 436(a). Regarding punitive damages under Civ. Code...

Excerpt: ...tiff resides out of state or is a foreign corporation, and (2) there is a “reasonable possibility” the moving defendant will prevail. (CCP § 1030(a).) A “reasonable possibility” does not require defendant to show that there was no possibility that plaintiff could win at trial, but only that it was reasonably possible that defendant would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432 [“reasonable possibility” s...

Excerpt: ...ed materials. The “taxpayer” privilege is thus directly at issue here. (See Webb v. Standard Oil Co. of Calif. (1957) 49 Cal.2d 509, 513-514.) But that privilege is not absolute. (Schnabel v. Sup.Ct. (Schnabel) (1993) 5 Cal.4th 704, 721.) Plaintiffs' Complaint puts the financial performance of Griffin's Grill (“Grill”) during the 2017- 2018 period directly at issue. (Complaint ¶¶ 9-17.) For example, Plaintiffs claim that they were damag...

Excerpt: ...CP § 2031.220 or § 2031.230 as applicable. In addition, Plaintiff must produce its responsive documents to the Defendant within 10 days. Defendant is awarded sanctions of $3,512, payable by Plaintiff within 45 days. Defendant shall give notice of this ruling. Motion to Compel Compliance or Further Responses Plaintiff has waived the ability to object to Defendant Wright Finlay's' RFPs 66 and 67 in RFPD Set Two. As such, Plaintiff is not in a pos...

Excerpt: ...nce or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury." In addition, CCP § 598 provides that, within the same trial, the court may, “when the convenience of witnesses, the ends of just...

Excerpt: ...y Larwin, the court must accept that construction on demurrer. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.) The Demurrer as those COAs is therefore overruled. For COAs 9 and 10, the XDs assert that the names of the individual tenants and the terms of the contracts with each must be alleged, citing The Kind & Compassionate v. City of Long Beach (2016) 2 Cal.App.5th 116, and Westside Center Associates v. Safeway Stores 23...

Excerpt: ...lectively Plaintiffs”) on 8/22/18, and (b) on the First Amended Cross-Complaint (the “FAXC”) filed by Advance on 2/25/19. For the reasons discussed below, Advance's Motion is GRANTED IN PART. Summary adjudication in favor of Advance on Issues 1-3 is GRANTED, which results in judgment on the Complaint in favor of Advance, and renders Issue 4 moot. However, summary adjudication on Issues 5-9 is DENIED, as Advance has not met its burden on the...

Excerpt: ...al.App.4th 1371, 1378. In deciding whether to issue a preliminary injunction, a court must weigh two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. “The trial court's determination must be guided by a mix of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one,...

Excerpt: ...r defendant herein. Demurrer SUSTAINED. Plaintiff must provide an offer of proof in order to secure leave to amend. Theresa Van Haeren. There is no mention of this individual anywhere within the operative pleading, save for an averment regarding her county of residence. There is mention of her in the opposition papers as having acted in a fiduciary capacity regarding plaintiff's deceased mother. It is not clear why plaintiff alleges conversion ra...

Excerpt: ..., this Court notes that the opposition papers were late. However, the principal purpose behind the statutory timing requirements is to insure that both sides have adequate time to respond. That purpose is served if the aggrieved party can still prepare a responsive memorandum. See In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 828-829; Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 343; Carlton v. Quint (2000) 77 Cal.App.4th 6...

Excerpt: ...has considered all of the papers submitted in connection with that application, but finds that reconsideration is not warranted here, and that even if the Court were to reconsider the prior ruling, it would reach the same result. Under C.C.P. § 1008, reconsideration may be sought based upon new or different facts, circumstances, or law. The moving party must also provide a satisfactory explanation for failing to produce such evidence for the hea...

Excerpt: ... Defendants to give notice. Defendant Crescent Moon is not a Proper Party to the Motion Defendant Crescent Moon Foundation Inc. joins in the motion. (See the Notice of Motion p. 1, Fears Dec. ¶ 1.) But this defendant did not serve or propound the discovery here. (See Moving Fears Decl. Ex. B, the RFPs, p. 1.) Under the Code (CCP §§ 2031.310(a) and 2031.010), it is the “demanding party” who can bring the motion to compel the further respons...

Excerpt: ...he Court to set aside judgment under the discretionary basis of CCP § 473(b). Plaintiffs and their daughter actively participated in the mediation process with aid of a Spanish interpreter. Modarelli Decl. ¶¶ 5-15; Nunez Decl. ¶¶ 4-10. The interpreter also verbally translated the settlement agreement to Plaintiffs prior to Plaintiffs signing the agreement. Id. Although Plaintiffs' former attorney attests that Plaintiffs did ask about the aff...