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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...an (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the cou...

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

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

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

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

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