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: ...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: ...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: ...." (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: ... 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: ...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: ...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: ... 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: ...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...