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