Excerpt: ...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....

Excerpt: ...vices 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 staffing business generated by the assignment of laborers from an Agency location.” World would supervise activities of the laborers working at Client Companies and PSG would perform various services, including payment of all wages to the laborers. The MSA states PS...

Excerpt: ...spond, and no reasonable excuse for that discourtesy was presented. However, a full reply was timely presented without a request for continuance. In light of the preference for resolution on the merits, the Court has nonetheless elected to consider the untimely submission here. But Plaintiff should not assume that similar consideration will be provided for any future delinquent submissions. The Motion presents 7 issues for adjudication, as to the...

Excerpt: ...und of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (Rutter CPBT §9:328, citing New York Times Co. v. Sup.Ct. (Wall St. Network, Ltd.) (2005) 135 Cal.App.4th 206, 212-213.) The party seeking reconsideration must also provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing o...

Excerpt: ...id 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 Development (US), LLC (2012) 55 Cal.4 th 223, 236.) “Thus, ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'” (Id.) “If a party to a civil action ask...

Excerpt: ... related to the policies and procedures in handling customer requests for repurchase or replacement under the Song Beverly Act are relevant to Plaintiff's claims that Defendant willfully failed to comply. Further, documents sought relating to recall and TSB documents, and customer complaints and warranty repairs for vehicles in California of the same year, make, and model as the subject vehicle are undoubtedly relevant to the claims presented. In...

Excerpt: ...) in the XC, as asserted against Lanick, and as to COAs 6-9, as to both MPs. The Demurrer is SUSTAINED as to COAs 7-9, with 15 days leave to amend from the date of service of notice of this ruling, but otherwise OVERRULED. For COAs 8 and 9, the claims are not pled with adequate specificity. For fraud claims, every element must be alleged in full, factually and specifically. The policy of liberal construction of pleading will not be invoked to sus...

Excerpt: ...n (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 cour...

Excerpt: ...ation 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 to be resolved in favor of arbitration. (Vil...

Excerpt: ...entitled to enforce the Retail Sales Installment Contract ("RISC") pursuant to equitable estoppel and as such, Defendant failed to meet its burden to establish an applicable arbitration agreement. "Arbitration is favored in this state as a voluntary means of resolving disputes, and this voluntariness has been its bedrock justification. As we stated recently: "[P]olicies favoring the efficiency of private arbitration as a means of dispute resoluti...

Excerpt: ... moving for summary judgment must establish that one or more of the elements of a cause of action cannot be established or that a complete defense exists to the cause of action. (ld.; C.C.P. S 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a triable issue of material fact exists as to either the particular cause of action or the proffered defense thereto. (ld.) The plaintiff must set forth specific facts ...

Excerpt: ...ion." (ld.) As explained by the Court in Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, "[i]f the plaintiff makes a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case, the plaintiff must be given the reasonable opportunity to obtain that evidence through discovery before the motion to strike is adjudicat...

Excerpt: ...on Act ("FAA") applies to the instant motion. ( 112 of Shapiro Declaration and Exhibit 1 thereto; See also Victrola 89, LLC v. jaman Properties 8 LLC (2020) 46 cal.App.5th 337, 346-348 and com/ey v. Giant Inland Empire RV Center, Inc. (C.D. Cal. 2013) 2013 WL 12131180 at 3.) The Federal Arbitration Act requires the existence of a valid arbitration agreement, before arbitration can be compelled. (See g U.S.C. 52). "[I]t is a cardinal principle tha...

Excerpt: ... heart of both motions is the defendants' argument that the plaintiff has failed to comply with CCP 52019.210. Defendants bring both motions pursuant to CCP 52025.420 which requires that a motion for protective order must be accompanied by a declaration under Section 2016.240. Here, the meet and confer was insufficient. The rule requiring a good faith effort to meet and confer about discovery disputes "is designed to encourage the parties to work...

Excerpt: ...rsuant to Civ. Proc. Code SS 473, 580, and 663. "Section 580 provides in relevant part that "[t]he relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint. The primary purpose of this section is to insure that defendants in cases which involve a default judgment have adequate notice of the judgments that may be taken against them. [Citation.] "If a judgment other than that which is ...

Excerpt: ...calculated from November 5, 2020, at a rate of $34.04 per day, to the date of the hearing on May 8, 2023), and to award Defendants monetary sanctions against Sheldon for reasonable attorney's fees in the amount of $18,720, pursuant to Civ. Proc. Code S 2023.010(g). It appears the legal basis for this request is Civ. Proc. Code 2023.010(g), which states, "misuses of the discovery process include, but are not limited to . . . (g) disobeying a court...

Excerpt: ...s to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense. [Citations.]" (Caloroso v. Hathaway (2004) 122 Cal .App.4th 922, 926.) "The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.]" (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) "When a person is in...

Excerpt: ...on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial. " (Rutter CPBT sg:328, citing New York Times Co. v. Sup.Ct. (Wall St. Network, Ltd.) (2005) 135 Cal.App.4th 206, 212-213.) The party seeking reconsideration must also provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a s...

Excerpt: ...d 6, and DENIED as to Issue Nos. 1, 2 and 4. The motion of the TAC defendants is GRANTED as to Issue No. 1 (with respect to TAC only), GRANTED as to Issue Nos. 2, 8, and g, and DENIED as to Issue Nos. 3 through 7 and 10. MOTION 1: IPC's motion Issue No. 1: First Cause of Action (Breach of Contract) Plaintiff asserts that IPC breached the 2013 Consulting Agreement between Plaintiff and IPC by, among other things, failing to pay in accordance with ...

Excerpt: ..., to produce documents pursuant to a deposition notice and therefore this Code section does not apply. The correct section for a motion to compel a further production of documents from a deponent who appears for a deposition but fails to produce documents is CCP 52025.480(a) which states: "If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that i...

Excerpt: ...ive defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (2) A motion for summary adjudication may be made...

Excerpt: .... [Citation.) We also consider matters which may 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.) "Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief...[the court's] task is to determine whether the pl...

Excerpt: ...enges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (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 ...

Excerpt: ...allocating burdens of proof and producing evidence, which is used in California for disparate-treatment cases under FEHA, the employee must first present a prima facie case of discrimination. The burden then shifts to the employer to produce evidence of a nondiscriminatory reason for the adverse action. At that point, the burden shifts back to the employee to show that the employer's stated reason was in fact a pretext for a discriminatory act. T...

Excerpt: ... for Production On a motion to compel further RFP, the moving party must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) “[A]bsent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal....

Excerpt: ...neglect.” (Civ. Proc. Code, § 473, subd. (b), emphasis added.) “As a general rule, [ ] the negligence of an attorney is imputed to the client. [Citation.] [¶] California courts recognize an exception to this rule in those cases ‘where the attorney's neglect is of that extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence.' [Citation.] This exception is premised on the concept suc...

Excerpt: ...d plaintiff. Defendants demur generally to the third cause of action for conversion. Special demurrer. Defendants contend that plaintiff's wife, Stephanie McCain, is an indispensable party who must be named as a party. The rules regarding joinder of parties is found in Code of Civil Procedure section 389. Pinto Lake MHP LLC v. County of Santa Cruz (2020) 56 Cal.App.5th 1006, 1013. Subdivision (a) of section 389 defines persons who should be joine...

Excerpt: ...esentations were tendered,'” “it is harder to apply this rule to a case of simple nondisclosure.” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4 th 1356, 1384). “One of the purposes of the specificity requirement is ‘notice to the defendant, to furnish the defendant with certain definite charges which can be intelligently met.'” (Id.). “Less specificity should be required of fraud claims ...

Excerpt: ...rd cause of action on the ground of uncertainty. Despite the simplicity and brevity of the complaint, defendants make several arguments in support of the demurrer, and ask for judicial notice of 10 documents and 30 facts that they contend can be gleaned from those documents and other public sources. The complaint is based on defendants' representation of plaintiff and her former husband in the defense of a federal trademark infringement action. (...

Excerpt: ...plaint (“FAC”), 1st through 3rd and 7th causes of action for breach of written contract, breach of oral contract, breach of implied contract and violation of the Uniform Trade Secrets Act. The 1st Cause of Action for Breach of Written Contract. Defendants DIN and ENTEZAM demur to the 1st cause of action for breach of written contract on the grounds it is uncertain, ambiguous and unintelligible because the FAC alleges the existence of several ...

Excerpt: ...l have the right to designate as “Confidential” any Documents, Testimony or Information that the Designating Party in good faith believes to contain non-public information that is entitled to confidential treatment under applicable law.” (SPO ¶ 2.) The Designating Party shall have the burden on any Designation Motion of establishing the applicability of its “Confidential” designation. (SPO ¶ 6.) Here, the parties followed the proper p...

Excerpt: ...emurrer to the 4 th cause of action by Plaintiff Hang is OVERRULED, by Plaintiff Bao is SUSTAINED WITHOUT LEAVE TO AMEND. The demurrer to the 6 th cause of action for breach of written contract is SUSTAINED WITHOUT LEAVE TO AMEND. The demurrer to the 7 th and 8 th causes of action for common count – money had and received is SUSTAINED WITHOUT LEAVE TO AMEND. The demurrer to the 10 th cause of action for unfair business practices is SUSTAINED WI...

Excerpt: ...st Lal's candidacy for incompatible offices enforced an important right affecting a public interest. The action conferred a significant benefit on the general public. The most significant area of disagreement between the parties is whether Reddish met his litigation objective. Respondent Lal correctly says that the relief sought by the Petition was to remove him as a candidate from the City of Anaheim City Council ballot and that the Court did no...

Excerpt: ...on is necessarily barred. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232.) Here, although the FAC asserts that “the claim” was “unilaterally closed in December of 2018,” it also alleges that Plaintiffs thereafter were requesting additional payments within policy limits for costs incurred for necessary code upgrades, repair costs under their additional replacement cost coverage, and their living expenses incurred during the repair of their ho...

Excerpt: ...ymphony Risk Solutions Insurance Services, Inc. Fka Maroevich, O'shea & Coghlan Insurance Services (“MOC”) is GRANTED. At issue here are a set of emails which contain or attach an email communication by Attorney Catherine Johnson to Jordan Ritter, Essex's then general counsel, and Lily Myint, an Essex employee (the “Johnson Email”), and email communications attaching the Johnson Email between Myint and Paul Perlite, an employee of insuran...

Excerpt: ... 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. Grant (1992) 6 Cal.App.4th 1...

Excerpt: ...bits A through E, F and I and DENIED as to Exhibit J. Plaintiff's objections to Bean's RJN are DENIED as to Exhibits A through E, F and I and GRANTED as to Exhibit J. JBT's RJN of Exhibits A through D is GRANTED. Plaintiff's objections to JBT's RJN are DENIED as to Exhibits A through D. The court takes notice of the existence of the court records but not the truth of the matters therein. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal...

Excerpt: ...§ 128.5 and the Client Agreement (“Agreement”) that parties entered into for COCO to collect any judgment awarded in this action. (ROA #269.) The court found Plaintiffs had filed three ex parte applications and two combined noticed motions that required COCO to oppose. (Id.) The court awarded $5,123 in attorney fees and costs associated with those oppositions. Since the 04/12/22 ruling, Plaintiffs have filed a combined 11 motions and ex part...

Excerpt: ...e Court will exercise its discretion and consider the untimely opposition. Under C.C.P. § 1987.1(a), in response to a motion to quash subpoena, the court may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. Defendant argues that the materials at issue are irrelevant, overbroad and improperly seek to invade her financ...

Excerpt: ... owner and his father, the defendant, owns the remaining 90%. Defendants demur to the causes of action for Breach of Contract, Breach of Fiduciary Duty, Fraud, Conversion, Dissolution and Injunctive Relief. 1 st Cause of Action for Breach Of Contract “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's...

Excerpt: ...2”); (3) as to Plaintiff, to provide further responses to some of WRG's Form Interrogatories (“FROGs”), Set Two (“Motion 3”); (4) as to GGO, to provide further responses to some of WRG's FROGs, Set One (Motion 4”); and (5) as to Plaintiff, to provide further responses to some of WRG's Requests for Production (“RFPs”), Set Two (“Motion 5”). Each of the Motions is GRANTED IN PART. As a preliminary matter, all of the motions here...

Excerpt: ... the complaint and states that CCP §430.40 makes this a mandatory requirement. CCP §430.40 states: “(a) A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross- complaint, demur to the complaint or cross-complaint.” CCP §435(b)(1) states in part: “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or ...

Excerpt: ...ng party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124. “There is no obligation on the opposing party … to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element … necessary to sustain a judg...

Excerpt: ... objections were waived because responses were not timely served. Jaguar's counsel states in his declaration that he spoke with plaintiff's counsel on May 20, 2022 and was given a verbal extension to provide responses up through May 27, 2022. However, Jaguar does not attach a written agreement regarding the extension and does not state that a written agreement exists. CCP §2030.300(c) states that discovery responses can be served “on or before...

Excerpt: ...aterial fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Civ...

Excerpt: ...at are merely duplicative of one another and which adds nothing to the Complaint by way of fact or theory. (Awards Metals, Inc. v. Superior Court, 228 Cal.App 3d 1128, 1135.) Here, Defendants argue that Plaintiffs' allegations of nuisance mirror their allegations of negligence citing El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349. In Opposition, Plaintiffs argue that causes of action for negligence and nuisanc...

Excerpt: ... without leave to amend, DENIED, in part, and deemed MOOT, in part, as set forth below. Cross-Defendants are to file and serve an answer to the TACC as modified in accordance with this ruling, within 20 days. Cross-Defendants' request for judicial notice is GRANTED with respect to Exhibits 1-8 and 10-11, as to the existence of and legal effects of said records, but not as to the truth of any disputed facts asserted therein. (Ev. Code §452(d); Fo...

Excerpt: ...o seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) The Court finds that Plaintiff has demonstrated good cause for at least some of the discovery sought. At issue here are 150 document requests directed to Defendant. The requests are facially overbroad because they seek all documents related to removal of Plaintiff's sta...

Excerpt: ...Ct. (Fleur Du Lac Estates Ass'n) (2010) 181 Cal.App.4th 633, 640-641.) Here, Cross-Complainants' opposition concedes that they have refused to arbitrate. Cross-Defendants have shown that a valid written agreement to arbitrate exists. The arbitration agreement is contained at attachment A to the Master Sales Agreement (“MSA”), which is attached as Exhibit 1 to the Finkelstein Declaration. In the MSA, Higgins acknowledged that he received the a...

Excerpt: ...Denied as to COA Nos. 1-2. “[T]he 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. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a...

Excerpt: ...al effects of the records, but not as to the truth of any disputed facts asserted therein. (Ev. Code §452(d); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) As a preliminary matter, the Court notes that Defendant failed to file proof of service of the motion and the reply. (CRC 3.1300(c)). Plaintiff opposed the motion on the merits and thus waived th...

Excerpt: ...in the Notice of Motion, Defendant asks this court to strike out language which he contends is false based on reference to documents attached to complaint and to the Request for Judicial Notice. The document attached to the complaint does not go to the foundation of any cause of action and is instead attached to illustrate the claim that the document was not valid. The documents attached to the Request for Judicial Notice are not relevant as the ...

Excerpt: ...dant has sufficient “minimum contacts” with the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. Ibid. In other words, the defendant's contacts with the forum state must be such that the defendant had “fair warning” that its activities might subject it to personal jurisdiction in the state. Id. at pp. 1166-1167. Each defendant's contacts with the forum State must be...

Excerpt: ...ired Notice of Right to Arbitrate (“Notice”) regarding a fee dispute in the underlying matter of Merrell v. Ford Motor Company, Orange County Superior Court Case No. 30-2020-01147752-CU-BC-NJC (“Underlying Case” or “UC”). Plaintiff's opposition provided no evidence showing a Notice had ever been served on Defendants as required under Bus. & Prof. Code § 6201(a). Bus. & Prof. Code § 6201 and the Mandatory Fee Arbitration Act (“MFAA...

Excerpt: ...sible for the day to day operations of Doe 2, (3) that between 1997 and 2008 Doe 1 worked at temples owned by Doe 2, (4) that between 1997 and 2008 Doe 1 was in contact with minor children at temples owned by Doe 2, (5) that between 1997 and 2008 Doe 1 sexually molested or otherwise inappropriately touched minor children in or around the temples owned by Doe 2 and (6) that between 1997 and 2008 he worked at temples owned by Doe 2. (ROA #93) On 7/...

Excerpt: ...sam” individually) and Danielle Darwish (“Plaintiffs” together with Hassam). The court finds a preliminary injunction (“PI”) should not be issued in this instance. The Temporary Restraining Order (“TRO”) that was granted on 08/15/22 is also ordered to be terminated. The court notes Plaintiffs have put forth almost no, or at most excessively minimal, legal basis, arguments, and evidence in support of their request for a PI. Instead, ...

Excerpt: ...iled by plaintiff against the two defendants, and both defendants filed a single opposition to all six, which prompted plaintiff to file a single reply. Defendants contend that the vast majority of discovery requests at issue are moot because they served a supplemental response to the discovery, i.e., a “second amended and supplemented omnibus objections and responses of defendants Dyllon and Chase Whitaker to form interrogatories, requests for...

Excerpt: ... itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.” (Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1169) (emphasis in original.) Here, Plaintiff does not dispute that she signed the “Self-Service Storage Rental Agreement” (“the Agreement”) which contains the arbitration provision at issue. Rather, she contends that because the Agreement was signed...

Excerpt: ...fendants' evidentiary objections are all overruled. Summary Adjudication Plaintiffs move for summary adjudication in their favor and against Doe 1 on the first four causes of action pled in their complaint which are respectively for: (1) sexual assault, (2) sexual battery, (3) Gender Violence and (4) sexual harassment. Plaintiffs move for summary adjudication against Doe 2 on the fourth cause of action only. Standards A plaintiff moving for summa...

Excerpt: ...er of RFAS (an additional 132 RFAS bringing the total to 257) was warranted under CCP §2033.040 to establish liability and damages and that the number of SROGS was warranted (an additional 102 SROGS bringing the total number to 371) “because of the complexity of the existing and potential issues of the particular case”. No party may propound more than thirty-five (35) RFAs that do not relate to genuineness of documents. (CCP §2033.030(a).) ...

Excerpt: ...2030.290(a).) Motion for Judgment on the Pleadings A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by CCP § 438, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (citing text); Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227; Templo v. State of Calif. (201...

Excerpt: ...face European Master Distributor Agreement” as the written contract at issue, and attaches it as Exhibit D. It identifies the parties to the agreement, reflects signatures, and states the agreement terms. Performance is also alleged, as is breach, in failing to promote and market RPs' product and in failing to order at least 100 “big brake kits,” and damages for costs incurred for manufacturing the brakes (see ¶¶ 57- 59, 62-66, 73.) Wheth...

Excerpt: ...tice of the truth of the hearsay matters stated therein or a particular interpretation of the laws cited therein. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1374-1375) A. Plaintiff's Objection to the Declaration of Mokhtar Ramadan is OVERRULED. (See ROA #138) A. Defendant's Objections to documents Nos. 1-3 below are OVERRULED. 1. Declaration of Laurent Fabre and Exhibits A through E thereto 1. Declaration of Sacha E...

Excerpt: ...vides that all papers relating to the same motion may be combined, “[i]t should not be read to authorize combining papers relating to separate motions.” (See Weil & Brown (The Rutter Group 2021) Cal. Prac. Guide Civ. Pro. Before Trial, Law and Motion §9:24.3) Procedural Deficiency The motions are denied based on plaintiff's failure to file separate statements for all of the motions or submit a concise outline of the discovery requests and ea...

Excerpt: ...duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095. Here, the FAC pleads that Nabavian, as an insurance professional, owed a duty to Plaintiff to fulfill promises made and services contracted for by Plaintiff; that Nabavian breached its duty by failing to obtain fire insurance as...

Excerpt: ...9 and served on January 24, 2019 3. Substitution of Attorney filed on July 5, 2019 in the matter of Kamell v. Del Taco, LLC, Court of Appeal for the Fourth District, Case No. G057498 Demurrer Standards While a demurrer admits all material facts properly pleaded (Blank v. Kirwan (1985) 39 Cal.3d 311, 318), the complaint may be read as containing judicially noticeable facts even when the pleading contains express contrary allegations. (Jocer Enterp...

Excerpt: ...0, the time to bring the case to trial would have run, but for any applicable exceptions, by 6/14/21. (See C.C.P. § 12a and 583.310.) However, under Emergency Rule 10 (“ER 10”), that was extended by six months. (See DRJN Ex. 3.) The 5-year deadline for both cases was thus extended to 12/14/21. It is undisputed that Plaintiffs John Duffy and Laura Duffy (“Plaintiffs”) did not bring the cases to trial by that time. Dismissal is thus warran...

Excerpt: ...nt. (CCP § 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287 (citing text) (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.) COA 1: Breach of Equipment Financing Agreement The first cause of action asserts a breach of contract claim against MS Physicians. The elements of a breach of contra...

Excerpt: ...rned upon Defendants' demand. (Ernby Decl. ¶ 5, Ex. C at p. 4, instruction No. 10.) Significantly, the Devices were returned after this lawsuit was filed. Nonetheless, Defendants admit to discarding the Devices without any prior notice to Plaintiff. Plaintiff seeks a court order for purpose of restoring data from the Devices it retained from the seizure in which Defendants will bear the costs of the restoration and the cost of a referee to revie...

Excerpt: ...ntiffs and judgment creditors that sought to unwind the assignment, all of which were denied by the Court. Moving party contends that the agreement with the plaintiffs afford them a basis for attorneys' fees, as does Code of Civil Procedure section 128.5. The agreement with the plaintiffs (Exhibit B to moving papers) contains the following provision in paragraph 10: Attorneys' Fees and Costs. In any legal proceeding between the Parties arising ou...

Excerpt: ...ust consider two factors: (1) the likelihood the moving party ultimately will prevail on the merits, and (2) the balance of the interim harm that the moving party is likely to sustain if the injunction is denied and the harm to the opposing party is likely to suffer if the injunction is granted. White, supra, at 554; Teamster Local 856 v. Priceless, LLC, (2003) 112 Cal. App.4th 1500, 1509. “The granting or denial of a preliminary injunction doe...

Excerpt: ...real property. . .” (Civ. Proc. Code § 405.4.) “The statute provides no further definition of “affect ... title to, or the right to possession of,” specific real property, nor has case law provided any abstract definition. [Citations.] Case law has determined that certain types of actions clearly do, or clearly do not, affect title or possession. [Citations.] At one extreme, “[a] buyer's action for specific performance of a real proper...

Excerpt: ...compel compliance. This motion is made pursuant to CCP §2031.320(a). Here, Andersson responded that she would comply with the RFPS at issue. That response was adequate for Razzo. There is no dispute over his right to inspect the responsive documents. The 45-day time limit for motions to compel further discovery responses does not apply to a motion brought pursuant this section. (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903). Ande...

Excerpt: ... Because April does not seek judgment on all causes of action stated in her complaint, this motion is one for summary adjudication. (CCP §437c(f)(1)) April bears the burden of persuasion that there is no triable issue of material fact and that she is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850) Preliminary Matter – April's RJN April's request for judicial notice, pursuant to Evid. C...

Excerpt: ...lied warranty of merchantability by the manufacturer of consumer goods and, where applicable, an implied warranty of fitness for a particular purpose or need by the manufacturer, distributor, or retailer. (Civ. Code, §§ 1792, 1792.1, 1792.2.) As used in the Act, the term “buyer” is defined as “any individual who buys consumer goods from a person engaged in the business of manufacturing, distributing, or selling consumer goods at retail.�...

Excerpt: ...e multiple procedural defects with the pleadings in this matter. First, although Plaintiffs' pleading is titled a “demurrer,” no actual demurrer was filed, which is in violation of CA ST CIVIL RULES Rule 3.1320 and Civ. Proc. Code § 430.60. Plaintiffs' Notice contains the incorrect time, date, and location (in Dept. 38 of Los Angeles County Superior Court) of the hearing in the body of the Notice, but has the correct department (N17) in the ...

Excerpt: ...based upon Civ. Proc. Code § 430.10(e) is overruled. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. Blank v. Kirwan (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. ...

Excerpt: ...Mark D. Homes (“Defendant”) to be appropriate throughout the course of this matter. First, the court ordered the parties to arbitration on 10/21/19. ROA #20. Despite that order, it was represented that parties had agreed to first proceed with mediation. Plaintiff did not appear at three of the four ADR status conferences, did not appear at or oppose the motion to compel arbitration, and never notified the court of any potential issues pertain...

Excerpt: ...irst cause of action alleges that defendant breached the CC&Rs by failing to provide security to its members and residents, including plaintiff. (Complaint, ¶ 13.) It alleges that the CC&Rs require defendant “to provide security to its members and residents, including [plaintiffs], by virtue of the security guards, guard gate guard gate structure, and the surrounding 8-foot-high perimeter walls as described in the CC&Rs, and particularly secti...

Excerpt: ...29 Cal.App.4th at p. 276. The test is whether lack of jurisdiction is clear or virtually unattainable. Id. at p. 277. This standard involves an evaluation of the amount fairly in controversy, not an adjudication of the merits of the claim, and requires a high level of certainty that the damage award will not exceed $25,000. Ibid. A court must deny a motion to reclassify the case as limited and keep the matter in the unlimited civil court unless i...

Excerpt: ...nting a discovery referee for future discovery disputes. Ford's Discovery Verifications Plaintiff contends that Ford's Verifications of its discovery responses are inadequate because Ford has not “sworn to the truth of the response under oath.” Ford counters that because it is a corporation, no one person has knowledge of all of the responses to plaintiff's discovery and that its Verification “is substantively identical to” that suggested...

Excerpt: ...him from important team meetings where his position was required to be present. He reported these acts to Human Resources which failed to investigate. In 2/12/2020, plaintiff suffered some type of accident on the job, which is not disclosed in the complaint, following which MPS failed to provide requested time off and accommodations. On May 11, 2020, he attended a meeting with Human Resources where he was accused of not being injured despite prod...

Excerpt: ...ve, and to reject or execute, requests from abroad for service on its citizens.  Alternatively, Article 8 permits service to be effected through diplomatic or consular agents of the country in which the process originated, unless the country in which the service is to be made has declared its opposition to such service on persons other than nationals of the originating country.  Or, under Article 9, the papers may be forwarded through consu...

Excerpt: ...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 court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sh...

Excerpt: ...al employee, on August 11, 2018. (SSUF No. 1). This date is more than a year prior to the initiation of this action, on October 17, 2019. Notably, while Plaintiff indicates he did not become of aware of his injury and its negligent cause, until April 15, 2019, he does not dispute that a reasonable person under the circumstances would have been on inquiry notice, prior to this date. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111). Inst...

Excerpt: ...tice.). CCP §425.16(c)(1) provides that a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's fees and costs. The trial court must first determine if the defendant would have prevailed on the special motion to strike before awarding such fees. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1457) Anti-SLAPP Motion – Prong 1 Unlike general motions to strike, there is no requirement that a...

Excerpt: ...v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, “a Plaintiff is required…to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a Defendant with the nature, source and extent of his cause of action.” (Id. at 608.) When the complaint names two or more defendants, the sufficiency of the complaint against one defendant does not immunize the plaintiff against another defendant's ...

Excerpt: ... identify any provision of the Master Sales Agreement (“MSA”) that was breached. The MSA is not attached to the TACC; however, a copy of the MSA (the one page that Higgins alleges was shown to him upon signing) is attached to the Second Amended Cross Complaint (“SACC”) as Exhibit 1. (SACC [ROA 196] ¶ 15, Ex. 1.) The Court takes judicial notice of the attachments to the SACC, on its own motion, pursuant to Evidence Code §452(d). The MSA ...

Excerpt: ...e deposition subpoena stating Saghafi was scheduling deposition for September, indicating Saghafi was willing to sit for a deposition, but Defendant was not willing to work on reserving a mutually agreed upon deposition date. Although at the time the motion was filed trial was in early September, on 08/25/21, trial was continued to the present date of 03/14/22. This would have given Defendant almost six-months to work on rescheduling Saghafi's de...

Excerpt: ...defense as to any cause of action…or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” [CCP §437c(f)(1)] “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if tha...

Excerpt: ...d and enforceable, unless they are revocable for reasons under state law that would render any contract revocable. [Citations.] Reasons that would render any contract revocable under state law include fraud, duress, and unconscionability.” Tiri v. Lucky Chances, Inc. (2014) 226 Cal. App. 4th 231, 239. Defendants have put forth evidence that a valid and enforceable written arbitration agreement exists within the signed contract (“Contract”) ...

Excerpt: ... on the grounds that plaintiff noticed the deposition to harass, oppress and cause undue burden and expense to APF and Shapiro. Code of Civil Procedure, §2025.420(b) authorizes the court, for good cause shown, to make any order that justice requires to protect any party or deponent from unwarranted annoyance, embarrassment or oppression or undue burden and expense. The court shall limit the scope of discovery if it determines that the burden, ex...

Excerpt: ...t's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850, as modified (July 11, 2001). “The motion for summary judgment ...

Excerpt: ...g the management of the company, acquiring the controlling shares to do so, and placing the defendant Margaretis into the role of operating the company. In early 2019, there was also a joint interest of the clients to stave off alleged holders of convertible notes who were seeking to gain a foothold into the company as shareholders. (See Plff's Dec ¶ 6, Obeid Dec. ¶ 4; Opp. Obeid Dec. at exhibits 1 to 3; Def. Suppl. Reply at exhibits A, B at PL...

Excerpt: ... Cal.App.4th 731, 745). Given this Court's October 19, 2020 order granting Motions to Deem Requests Admitted, Defendant Infinity Interests, Inc. has admitted to executing the Lease dated January 11, 2016 as well as the First Amendment to the Lease dated October 24, 2018, which were attached to the Requests for Admission. (See ¶12 of Weinberg Declaration and Exhibit D thereto). Additionally, Defendant Infinity Interests, Inc. has admitted that it...

Excerpt: ... the business Okbingsul. (See ¶13-¶14 and ¶17 of Cross-Complaint). “A promise made without any intention of performing it constitutes fraud.” (Union Flower Market v. Southern Cal. Flower Market (1938) 10 Cal.2d 671, 676). Additionally, pursuant to Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, “the falsity of [a] promise is sufficiently pled with a general allegation the promise was made without intention of performance.” (Id. at 1060)....

Excerpt: ... ¶ 3.) On or about 7/20/20, the Court granted, in part, Plaintiff's motion to compel further SROG responses. (ROA 59.) On or about 9/3/20, Defendant provided supplemental responses to SROGs, Nos. 4-11 and 16-17, which in turn referred to documents produced by Defendant. (Chae Decl., ¶ 11, Ex. 2; C.C.P. § 2030.210.) On or about 9/16/20, the Court granted, in part, Plaintiff's motion to compel further RFP responses. (ROA 74.) On or about 10/21/2...

Excerpt: ...yers, dates of employment, job titles, full or part-time) is protected by a right of privacy. . . [Alch v. Sup.Ct. (Time Warner Entertainment Co.) (2008) 165 CA4th 1412, 1426-1427.” Cal. Prac. Guide Civ. Pro. Before Trial (Rutter Group) 8:307.10. “[D]ocuments and communications [Plaintiff's] personnel, tenure, and promotion files, whether relating only to his initial employment, or also to his ‘promotion, additional compensation, or termina...

Excerpt: ... triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850, as modified (July 11, 2001). “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material ...

Excerpt: ...reliminary matter, the Court finds that Defendant's demurrer does not constitute a motion for reconsideration of Judge Hunt's ruling on Defendant's demurrer to Plaintiff's First Amended Complaint, in which Judge Hunt overruled Defendant's demurrers to the 2 nd and 3 rd causes of action on essentially the same grounds as in Defendant's current demurrer to the 4AC. “[W]hen a plaintiff files an amended pleading in response to an order sustaining a...