Excerpt: ...party desiri ng to obtain discovery by a second physical examination or mental examination must obtain leave of court. (Code Civ. Proc., § 2032.310(a).) The motion must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2032.310(b).) The Court “shal l” grant the motion only upon a showing of good cause. (Code Civ. Proc. §2032.320(a).) The within action arises from an auto accident that occurred on 8/20/20. The complaint w...

Excerpt: ...hin 15 days. Demurrer Movin g Defendants demur to the fifth and sixth causes of action in the complaint on the ground said causes of action fail to state a claim and are uncertain. “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long -settle d rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We a...

Excerpt: ...ust be such that the mo ving party could not, with reasonable diligence, have discovered or produced it at the trial.” (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 of reasonable diligence. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; C...

Excerpt: ... forms part of the defendants' back yard wall. The plaintiffs recently purchased the house and obtained a survey whereupon they discovered that the three -foot area in plaintiff's back yard is actually their property. Plaintiffs submit evidence that their detached garage has experienced repeated water intrusion as a result of dirt being up against the side of their garage to a level approximately 1.5 feet above their garage floor. Plaintiffs all...

Excerpt: ...e motions t o compel deposition testimony of Ritesh Desai and Dawn Mills are GRANTED but the concurrent motions to compel production of documents are DENIED. MOTIONS TO COMPEL DEPOSITIONS OF VAN ALSTINE, GOMEZ AND CHAMBERLAIN CCP §2025.280 states: “(a) The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to att...

Excerpt: ...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.” (Code Civ. Proc., § 436.) Health & Safety Code sec tion 1430 is part of the Long Term Care Act, which “is a ‘detailed statutory scheme regulating the standard of care provided by skilled nursing facilities to their patients....

Excerpt: ...lment” against Ford, based on allege d defects in her vehicle, but asserts only economic losses. Under the economic loss rule (the “ELR”), where a purchaser's expectations in a sale are frustrated because the product is not working properly, the remedy is in contract alone, for he has suffer ed only economic losses. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) Claims for monetary losses between contractual p...

Excerpt: ...initial matter, the court not es Officer Clay was dismissed from Plaintiffs' Complaint on 03/21/24 and Officer Clay dismissed his Cross -Complaint on the same date. (ROA 117, 119.) Thus, Officer Clay is no longer a party to this action. Accordingly, Defendants' request for judgment in f avor of Officer Clay is DENIED AS MOOT. The City raises several arguments in support of its contention that it is entitled to summary judgment in its favor as to ...

Excerpt: ...tion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 8 26, 843.) BREACH OF ORAL CONTRACT – 1ST cause of action In this action, Plaintiff asserts that approximately 60 years ago, it entered into an oral contract with W...

Excerpt: ...nst him. Plaintiff asserts these causes of action against Defendant CITY only. The Court DENIES Defendants' request for judicial notice of Exhibits D and E. These documents are not the proper subject of judicial notice. As to Defendant's special demurrer, the Court OVERRULE S same. These causes of action are not so unintelligible that Defendants cannot reasonably respond. Any ambiguities can be clarified through discovery. (Lickiss v. Financial ...

Excerpt: ...ealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. [Citation.]” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173, internal quotation marks omitted.) In this medical negligence case, Plaintiff alle ges in the FAC that prior to Dr. Hennessy treating him, the defendants “made written affirmative representations ass...

Excerpt: ... 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 593, 604.) Absent court orders or other items subject to j...

Excerpt: ...b)(2).) “‘The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain “an informal resolution of each issue.” [Citations.] This rule is designed “to encourage the parties to work out their differences informally so as to avoi d the necessity for a formal order....” [Citation.] This, in turn, will lessen the burden on the court and reduce t...

Excerpt: ... that no signed order to show cause was issued for the present OSC hearing. Wh ile the Court previously issued a signed OSC for the OSC hearing on 01/25/24, that OSC was taken off calendar and the OSC was then continued to 03/28/24. (See ROA 2222.) The Court only issued a minute order continuing the OSC to the current date of 03/28/2 4. No signed order was issued. Because the OSC must formally notify respondent of the time and place of the contem...

Excerpt: ...intiff Michael Kinney (“Plaintiff”). The Motion is GRANTED as to COAs 5 and 6 but DENIED as to COAs 3 and 4. As a preliminary matter, Plaintiff claims that this Motion is untimely under C.C.P. § 425.16(f). However, although it is based on allegations that were also made in a prior pleading, the statutory deadline is reopened for a new COA in an amended pleading, even if based on protected activity alleged in the original complaint. (Starview...

Excerpt: ...5, 162, 164, and 238 -239). The court GRANTS the motions pursuant to CCP §§ 2031.280, 2031.300, a nd 2031.320. The court first notes that none of the documents that were produced in response to the RFP were produced to the court for its review. Based upon the arguments however, it appears that some redacted documents were produced in the responses. Defendants state that many of the redacted documents were not responsive to the requests, nor to...

Excerpt: ... of Civil Procedure section 425.16(g) provides: “All discovery proceedings in the action sh all be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that s pecified discovery be conducted notwithstanding this subdivision.” “If the plaintiff makes a ...

Excerpt: ... set for this day and Plaintiff has not sought ex parte relie f to continue Defendants' Demurrer and/or Motion to Strike portions of FAC. The court declines to continue the hearing on the Demurrer and Motion to Strike set for this day. The unopposed Request for Judicial Notice is granted. “The court may take judicia l notice of the filing and contents of a government claim, but not the truth of the claim.” (Gong v. City of Rosemead (2014) 22...

Excerpt: ...s Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other i tems 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.Ap p.4th 1746, 1749.) “In our examination of the complaint we are guided by the well settled principles governing the testing o...

Excerpt: ...“RFP”) is GRANTED in part and DENIED in part. On 01/25/24, the court continued the h earing on these motions and ordered Defendants to produce an updated privilege log that complied with the requirements laid out in Catalina Island Yacht Club v. Superior Ct. (2015) 242 Cal. App. 4th 1116 (“Catalina”). (ROA #131.) The court first notes De fendants did not produce a timely privilege log that permitted Plaintiff to review prior to the deadl...

Excerpt: ...inst cross -defendants Joel Farkas (“Farkas” indivi dually), Gateway American Resources, LLC, Kings Co. LLC, Latitude Accounting LLC (“CD” all together), and their attorneys Todd C. Theodora, Esq., Christopher J. Harney, Esq., Adrian L. Canzoneri, Esq. and Theodora Oringher PC. This matter involved a perso nal dispute between an Farkas and his former love interest (Smith). The pair did not split amicably and Farkas accused Smith of using ...

Excerpt: ...alment” against Ford, based on alleged defects in his vehicle, but asserts only economic losses. Under the economic loss rule (the “ELR”), where a purchaser's expectations in a sale are frustrated because the product is not working properly, the remedy is in contract alone, for he has suffered only economic losses. (Robinson Hel icopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) Claims for monetary losses between contractual p...

Excerpt: ...nt Inducement – Concealment” against Ford, based on alleged defects in their vehicle, but asserts only economic losses. Under the economic loss rule (the “ELR”), where a purchaser's expectations in a sale are frustrated because the product is not working properly, the remedy is in contract alone, for he has suffered only economic losses. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) Claims for monetary loss...

Excerpt: ...in. DEMURRER TO FAC A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2 d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. M...

Excerpt: ...Procedure section 2030.300, subdivision (c). On Septemb er 29, 2023, Defense Counsel emailed as follows: “Let's do October 31 as the deadlines for both parties to move to compel on all discovery to date served on each other (unless the current deadline is later than that, in which case the later deadline contro l s ) …” (¶9 of Watson Declaration and Exhibit 5 thereto; See also ¶7 of Rutten Declaration and Exhibit H thereto [ROA No. 101 at...

Excerpt: ....) When considering demurrers, courts read the allegations lib erally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720 -21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) As such, the court assumes the truth of the complaints properly pleaded or implied factual alleg...

Excerpt: ...hysical and mental condition. (ROA 491, Exs. 1 -4.) Riemann here asserts that because Plaintiff had obtained trial continuances and a temporary stay on certain discovery based on neurosurgeries performed in 2022 and her subsequent recuperation requirements, these subpoenas were justified and appropriate. However, the records sought are plainly confidential records subject to substantial privacy protections. Where privacy rights are at issue in ...

Excerpt: ... to Civ. Proc. Code § 2031.310. As to relevance of d ocuments, “[u]nless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the dis...

Excerpt: ...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 was hired by Defendant to perform housekeep ing work at the subject property and that Plaintiff was a self- employed independent contractor (UMF 3, 7). In the course of completing that work, Plai...

Excerpt: ... defendants filed the instant motion for reconsider ation which is largely the same as the papers filed on 10/18/23. Defective Service of Motion The Proof of Service attached to the motion fails to comply with CCP § 1013b. The proof of service for the motion does not list the electronic service address of the person making the electronic service. Instead, only the business physical address and not the email or electronic service address is pro...

Excerpt: ...l be withheld or augmented as provided in this section…[¶] (c)(1) If an off er made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer…(2)(A) In determining whe ther the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the post offer c...

Excerpt: ...e, or evasive; (3) An objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310(a).) The moving party must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310(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...

Excerpt: ...for RFP Nos. 9 -13, 27, 30 -35, and 39 -40. The reply does not meanin gfully attempt to argue contra. The Court has thus ruled here on those categories and RFPs only. For the PMQ categories, the Motion is GRANTED IN PART for Category Nos. 9 and 10, as to GM's warranty policy/procedure manuals or claim handling manuals for the period between Plaintiff's date of purchase and the date of suit, only, and for Category No. 22, also as to the reason or ...

Excerpt: ...chool Dist., (2003) 112 Cal.App.4th 904, 909 [“John R. m akes it clear that a teacher's sexual abuse of a child is not an act for which a school district may be held responsible.”].) Plaintiff makes no argument in the Opposition that the District can be vicariously liable for the conduct of Mills in sexually abu sing Plaintiff. However, as both parties recognize, the District can be vicariously liable for the negligent conduct of its empl...

Excerpt: ...ike the general demurrer to a complaint, the inquiry is not into the statement of a cause of action but whether the answer raises a defense to the plaintiff's stated cause of action. (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879 -880.) Plaintiffs demur to the 15th Affirma tive Defense on the grounds that CCP §340.5 is listed among several statutes of limitation and that it does not apply because it pertain...

Excerpt: ...15610.07, subd. (b), 15610.57, subd. (b); Delaney v. Baker (1 999) 20 Cal.4th 23, 34, 82); (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs (Sababin v Superior Court (2006) 144 Cal.App.4th 81, 85, 90); and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the e...

Excerpt: ...tronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 706– 707.) The “prevailin g” party is the party who recovered greater relief in the action on the contract. (Civ.C. § 1717(b)(1).) Code of Civil Procedure Section 998 provides, in relevant part: “(a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section…[¶] (c)(1) If an offer made by a defendant is not accepted and the plaintif...

Excerpt: ...d Complaint A demurrer for sufficiency tests wheth er the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720 -21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury ...

Excerpt: ...cy of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or impro bable, 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 e...

Excerpt: ...rk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. Here, there has been no entry of judgment or dismissal. Accordingly, the time for filing the memo of costs has not run. With respect to the merits of the motion, except as otherwise provided, a prevailing party is entitled as a matter of right to recover costs ...

Excerpt: ...ons Code §2000. On this Motion, Plain tiff has presented evidence that the amount so incurred is $114,631.43. (ROA 637, 639, 641.) The Opposition presented by Defendants Saeed Sorat (“Sorat”) and Hen House Grill, Inc. (“HHGI”) (here, “Defendants”) does not meaningfully attempt to dispute that those expenses were incurred by Plaintiff for this limited proceeding, except to claim generally that they were “excessive” without showing...

Excerpt: ...ing 4 categories in dispute, the motion is GRANTED for Categories 9 and 22, and DENIED for Categories 10 and 19. Regarding the request for production of documents (“RFP”), the RFP contained in the deposition notice are identical to the RFP at issue in Plaintiff's motion to compel further RFP responses from Defendant, w hich this court granted in part on 10/19/23. (See Minute Order at ROA 90; Prior motion at ROA 43, Ex. 1.) Thus, the court has...

Excerpt: ..., after these motions were filed. In the Replies, Plaintiff contends the supplemental responses remain inadequate. However, there is no indication that Plaintiff attempted to contact Defendant to meet and confer regarding the further responses since said responses were served on Plaintiff in late November and early December. Given the extensive complaints raised by Plaintiff as to the sufficiency of the responses and the lack of meet and confer ...

Excerpt: ...s. If a timely motion to compel has been Þled, the responding party has the burden to justify any objection or failure fully to answer the discovery requests. (Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221.) Request for Admissions The Court Þnds Plainti
¯'s response to RFA 1 is not “as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2033.220(a).) RFA 1 ask...

Excerpt: ...s each appears to exceed the appropriate scope of discovery based on what has been shown here to date. For Interrogatory Nos. 13-18, the Motion is GRANTED IN PART. For Nos. 13 -15, GM is to identify (and produce, on Motion 2 below) its warranty policy/procedure manuals and claim handling manuals for the period between Plainti
¯s date of purchase and the date of suit; the Motion is otherwise DENIED. Motion 2 is GRANTED IN PART. SpeciÞcally, the...

Excerpt: ... the propounding party deems that any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without merit or too general.” Defendant's motion seeks a further response to Form Interrogatories 9.1/9.2 and 17.1. Plainti
¯ objected to 9.1/9.2 on the grounds that manner in which defendant deÞned the term, “incident,” made the interrogatory vague and ...

Excerpt: ...n, and speculation. Mr. Lamkin states that he conducts “internal investigation into Judgment Debtors” for E-Tail. (Lamkin ¶1) Based on his “investigation,” he submits copies of documents that he obtained from the internet and makes several conclusions as to the alter ego and successor corporation theories. E-Tail states that Lamkin “is not an attorney and presents his declaration as a lay witness.” (Reply at 5:16) E-Tail argues that ...

Excerpt: ...r provided.” (Code Civ. Proc., § 1021.) Civil Code section 1717 authorizes an award of reasonable attorney's fees and costs to the prevailing party on contract causes of action. Civil Code section 1717 states: “(a)In any action on a contract, where the contract speciÞcally provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the p...

Excerpt: ...of the second cause of achon be struck. Quality brings its Mohon pursuant to Civ. Proc. Code S 438, which permits motions for judgment on the pleadings. "A motion for judgment on the pleadings is akin to a general demurrer; it tests the sufficiency of the complaint to state a cause of action. [Citation omitted.] The court must assume the truth of all factual allegations in the complaint, along with matters subject to judicial notice." (Wise v. Pa...

Excerpt: ...f the lengthy videos that the court should notice. As the first video is 6.5 hours long and the second is 3.5 hours, the entire recordings are not pertinent, nor can the court easily determine which parts are pertinent. Defendants' objection to Plaintiff's Exhibit 4 is OVERRULED. Defendants' objections to the Declaration of Rick Nehora are SUSTAINED as to objections 6, 7, 9-12, and OVERRULED as to the rest. Defendants' objections to the Declarati...

Excerpt: ...objection or failure fully to answer the discovery requests. (Coy v. Sup.Ct. (Wolcher) (1962) 58 cal.2d 210, 220-221; Kirkland v. superior court (2002) 95 Cal.App.4th 92, 98 [burden shifts to objector after good cause shown for RFPsl; Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [party claiming the privilege has burden of establishing preliminary facts necessary to support objection].) The Court finds Plaintiff has shown go...

Excerpt: ...art and CONTINUED in part. The motions are granted as to Defendants being required to produce a more detailed privilege log ("Log"). (Beral Decl., Ex. 5.) "The purpose of a "privilege log" is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production. [Citation.] The purpose of providing a specific factual description of documents is to permit a judicia...

Excerpt: ...llows: "(b) The inquiry in such a case shall extend to the questions whether 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." In ...

Excerpt: ...amount of $342,000 was reached at a mediation on 11/11/22. Although Medina had been invited to attend, and had recently filed her answer, Medina opted to not participate in the mediation. (Dorr Decl. 912) The settlement agreement is attached to Dorr's declaration and states that it is "expressly conditioned on court approval of Petitions for Minor's Compromise." (ROA 70, Exh. 1, 913) Section 877.6 allows a settling defendant or crossdefendant to ...

Excerpt: ...lank v. Kirwan (1985) 39 Cal.3d 311, 318.) As to the claim that the entire complaint is uncertain based on the fact that the causes of action do not state which Plaintiff is asserting which claim, the parties have been conducting discovery based on a nearly identical complaint for four years. Any confusion as to parties and claims should have been clarified in that time, as the FAC does not add any substantive facts or changes. Accordingly, the g...

Excerpt: ...ter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 (Carter), provides, "From the statutes and cases discussed above, we distill several factors that must be present for conduct to consttute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defe...

Excerpt: ...t" against Ford, based on alleged defects in their vehicle, but asserts only economic losses. under the economic loss rule (the "ELR"), where a purchaser's expectations in a sale are frustrated because the product is not working properly, the remedy is in contract alone, for he has suffered only economic losses. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) Claims for monetary losses between contractual parties are bar...

Excerpt: ...all not be awarded fees and costs unless the court finds the achon was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." Accordingly, the court must determine if the plaintiff's lawsuit was frivolous, unreasonable, or groundless. "Despite its discretionary language, however, the statute applies only if the plaintiffs lawsuit is deemed unreasonable, frivolous, meritless, or vex...

Excerpt: ...136 Cal.App.4th 1110, 1122.) under the FAA, the moving party on a motion to compel arbitration must demonstrate the existence of an arbitration agreement between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Management, LLC (9th Cir. 2016) 656 Fed.Appx. 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity or "the rights of parties to enforce an arbitration agreement...

Excerpt: ...s"], it is undisputed that the same dealer that sold the vehicle to Plaintiff also provided the warranty service at issue here. (UF 1, 6.) The evidence thus establishes that service facilities were available that were "reasonably close" to where the vehicle was sold. For COA 8 ["Failure to Make Service Literature and Parts Available"], it appears undisputed that the same dealer performed warranty work on Plaintiff's vehicle (UF 7; ROA 131 Ex. D) ...

Excerpt: ...the suffciency 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 court may not consider the contents of pleadings...

Excerpt: ...tely, for each COA at issue. And under C.C.P. S 430.50, a demurrer shall distinctly specify the grounds upon which any of the objections to the complaint are taken. Here, there is no separate demurrer, and the Notice (at ROA 46) is directed only to COAS 3-5. Accordingly, although the supporting authorities (at ROA 44) also assert arguments about other COAs, and as to the entre action as directed to Mr. Webb, as those arguments were not properly n...

Excerpt: ...or violation of this certification. (Code Civ. Proc„ S 128.7; see Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619, 623.) The purpose of the statute is "to check abuses in the filing of pleadings, petitions, written notices of motons or similar papers." (Musaelian v. Adams 45 Cal.4th 512, 514.) Whether the certificate is violated is tested objectivel',— i.e., whether the paper filed is frivolous, legally unreasonable or witho...

Excerpt: ...ction of Documents, Set One, and for an Order compelling the Defendants to serve verifications for the subject discovery. The two discovery motions are GRANTED, as set forth herein. MOTION TO BE RELIEVED It is initially noted that while counsel filed a single motion, since this is a motion as to three parties, counsel should have filed three separate motions. Without three separate motions, it is not clear which clients are being referred to in t...

Excerpt: ...cles in California of the same year, make and model as the subject vehicle are relevant because they may be probative of whether Defendant knew of the defects impacting Plaintiffs vehicle. Further, 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. In addition, documents regarding di...

Excerpt: ...e initial Complaint. "A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint...on grounds that could have been raised by demurrer to the earlier version of the complaint[.]" (Code Civ. Proc., S 430.41, subd. Even if the demurrer was properly raised, it fails on the merits as discussed below. With respect to the first cause o...

Excerpt: ...t the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material 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 reaso...

Excerpt: ...st set forth the essential facts of his or her case ' " 'with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent' " ' of the plaintiffs claim. [Citation.] Legal conclusions are insuffcient. [Citations.] 'We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.' [Citation.]" (Annocki v. Peterson Enterpri...

Excerpt: ... as admitting all material facts properly pleaded. (Quelimane co., Inc. v. Stewart Title Guar. co. (1998) 19 cal.4th 25, 38.) BREACH OF CONTRACT on 6/8/23, the Court overruled WF's previous demurrer to the Breach of Contract cause of action as alleged in the Second Amended Complaint. In ruling on that demurrer, the Court granted plaintiff leave to file an amended complaint. In doing so, plaintiff also changed the allegations in the TAC which form...

Excerpt: ...ondition, which is a height differential, is trivial and City has statutory immunity for any design defect. City asks for judicial notice ofa highway easement deed and a parcel map (Exhibits 1 and 2 to the RIN, ROA 18). Plaintiff opposes the demurrer and contends that the first cause of action is sufficiently pled. She contends that it clearly alleges that she was injured as a result of a defect or dangerous condition on public property. She also...

Excerpt: ...Request for Judicial Notice. Defendant TIG requests the Court take judicial notice of: (1) the license contractor's bond history page from the California Contractor's State License Board website relating to Classic Remodeling, License No. 980373 (Exhibit 1); and (2) the Complaint filed in this action on April 11, 2023. The Court GRANTS request for judicial notice of Exhibit 1 pursuant to Evidence Code secton 452(h). The Court GRANTS judicial noti...

Excerpt: ...seized and held until final adjudication at trial." (Lorber Indus. v. Turbulence, Inc. (1985) 175 Cal. App. 3d 532, 535.) Plaintiff seeks a writ of attachment and rightto attach order. A writ of attachment may issued if 1) the claim is for money; 2) based upon a contract; 3) where the amount is readily ascertainable amount not less than five hundred dollars. (Civ. Proc. Code S 483.010(a).) A right to attach order ("RTAO") shall be issued if the c...

Excerpt: ...3d 311, 318.) Cause of Action 2: Breach of Contract To allege a claim for breach of contract plaintiff must plead: (1) the existence of a contract; (2) the plaintiff's performance or excuse for nonperformance; (3) the defendant's breach; (4) resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman, (2011) 51 Cal. 4th 811, 821.) Defendant asserts that though the lease agreement is attached to the complaint, it fails to connect the la...

Excerpt: ...or the delay in that counsel was unaware Indigenous People's Day, now in its second year, was a court holiday. The court will therefore consider Plaintiff's oppositions. Defendant's request to take judicial notice ("RTJN") of the Retailer Services Agreement and amendment thereto ("RSA" together) between Defendant and Hitmobile, lnc„ dba T-Mobile ("HIT") is DENIED. Defendant requests the court take notice of the RSA pursuant to Evid. Code S 452(...

Excerpt: ... the cases Parman cites to support her motion inwlved summary judgment proceedings. In addition, none of the cited cases held that where the claims in a declaratory relief action would necessarily be decided in a previously filed underlying action, the declaratory relief action is invalid as a matter of law. Instead, all the cited cases acknowledge the general principle that it is within the court's discretion to refuse to entertain a declaratory...

Excerpt: ... this ruling. As a preliminary ma
©er, the Court notes that an Opposi
Ÿon was belatedly submi
©ed at almost midnight on Friday, 9/29/23, although it was due on 9/21/23. The Court has thus declined to consider the un
Ÿmely Opposi
Ÿon. On the merits, the primary argument presented in the Demurrer is that each of the claims is
Ÿme-barred, as based on alleged errors or misrepresenta
Ÿons that occurred in mid-2017, which was more than 5 years ...

Excerpt: ... of Randy Mize. In June, 2023 Judge Washington commenced the application process to seek appointment as the Public Defender. On August 3, 2023, Judge Washington was informed that, after consultation with San Diego County Counsel, the County believed that he was ineligible to be appointed as Public Defender, because he had not been a practicing attorney for the year immediately proceeding appointment. (Washington Declaration, 10.) Govt. Cade 52770...

Excerpt: ...r sampling has been directed shall separately to each item or category of item by any of the follovnng: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with th...

Excerpt: ...350(b). It also fails to cogently identify each of the issues to be so adjudicated. The Motion is thus effectively one for summary judgment against Plaintiffs. As noted in the 6/1/23 ruling, Plaintiffs were granted a continuance for this hearing, based on their claim that additional evidence was essential to their Opposition. The Court thus permitted supplemental briefing to "be confined to any new evidence obtained and its significance here." Th...

Excerpt: ...t that might eventually form part of the plaintiffs prtnf need not be alleged." (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 851, 872.) uncertainty: A demurrer for uncertainty under Code of Civil Procedure 430.10(f) will be sustained only where the complaint is so pled that a defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are ...

Excerpt: ...ntentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to the fifth cause of action for Negligent Infliction of Emotional Distress ("NIED"). The NIED claim in the TAC is unchanged from the SAC or FAC. Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct is possible by limiting the right to recover for negligently caused emotional distress to p...

Excerpt: ...ruth of contentions, deductions, or conclusions of fact or aw (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendants demurs to the sixth and seventh causes of action in the SAC. Cause of Action 6: Fraud Plaintiff's fraud cause of action requires allegations showing: 1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) actual and justifiable reliance; and (5) resulting damage. (Chapman v. Skype Inc. (2013) 220 Cal....

Excerpt: ...ant to Code Civ. Proc. S 2023.030, the court may issue terminating, evidentiary, issue, and/or monetary sanctions against a party engaging in conduct that is a misuse of the discovery process. Pursuant to section 2023.010, misuse of the discovery process includes: a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. b) Using a dis...

Excerpt: ...vides: "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." To recover attorney's fees, a preva-ling party bears the ...

Excerpt: ...ion with the Demurrer, which reflects an attempt to present new evidence and argument, was untimely. The Court has thus elected not to consider it here. The Demurrer fails on the merits in any event. It is premised on the argument that the Seventh Cause of Acton fails as a matter of law because B&P Code S 6148(d) states an applicable exception, and that the appellate opinion issued on 11/20/20 found the exception applicable here. But while that e...

Excerpt: ...Court will exercise its discretion to consider the opposition. Defendant is admonished to abide by all filing deadlines for all future filings with this Court. Interrogatory responses "shall be as complete and straightforward as the information reasonably available to the responding party permits." (Code Civ. Proc., S 2030.220, subd. (a).) "If an interrogatory cannot be answered completely, it shall be answered to the extent possible." (ld., subd...

Excerpt: ...by February 1, 2022. As responses were served by email on February 2, 2022, they were a day late and Defendant's objections were waived. Defendant asserts the responses were timely but provides no argument or support for that assertion anv,'here in the papers. As to the Interrogatories, interrogatory responses "shall be as complete and straightforward as the information reasonably available to the responding party permits." (Ccyde Civ. Proc., S 2...

Excerpt: ...protected speech or petitioning; and 2) lack even minimal merit. (Navellier v. Sletten (2002) 29 C4th 82, 88-89 ("Navellier"); Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733.) "Only a cause of action that satisfies both prongs of the ant-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal. 4th at 89.) "As us...

Excerpt: ... has been palpably and manifestly abused. The policy of the law is that controversies should be heard and disposed of on their merits." (Berman v. Klassman (1972) 17 Cal. App. 3d 909.) "'Section 473 of the Code of Civil Procedure is a remedial provision, and is to liberally construed so as to dispose of all cases upon their substantial merits and to give to the party claiming in good faith to have a substantial defense to the action an opportunit...

Excerpt: ...late, on October 16, 2023. The opposing papers do not set forth good cause for the tardiness, nor is there any explanation whatsoever for counsel's neglect. (See Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625, disapproved on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019.) The Court thus exercises its discretion to refuse to consider the late filed paper. (Cal. R. Ct. Rule 3.131W(d).) The Court finds good...

Excerpt: ...ppears that when Mr. Park entered an appearance at the ex parte on 10/2/23 and filed an opposition to the ex parte on 9/29/23, he did so only on behalf of the individual defendants, Hyejin Yu and Michaela Kim. Accordingly, the motion is DENIED as to Liberte Hair Salon. With regard to the request for a preliminary injunction, "[t]he general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of t...

Excerpt: ...urt can take judicial notce of the records in the pending action, or in any other action pending in the same court or any other court of record in the U.S. (Evid. Code 5452(d)) Accordingly, the Request for Judicial Notce is GRANTED. DEMURRER A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 4W.) "Because a demurrer ...

Excerpt: ... straightforward as the information reasonably available to the respond-ng party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent (c) If the responding party does not have personal knowledge sufficient to fully to an interrogatory, that party shall so state, but shall make a reasonable and gtncl faith effort to obtain the information by inquiry to other natural persons or organizations, except whe...

Excerpt: ...baseless and pursued in bad faith, with defendant Interpersonal Management ("1M") to be awarded the same sum, jointly and severally, per its separate motion filed on the same statutory claim. The Lanham Act at 15 U.S.C. 1117(a) provides in pertinent part: "The court in exceptional cases may award reasonable attorney fees to the prevailing party." The parties do not dispute that those "exceptional circumstances" can be found when the non-prevailin...

Excerpt: ...Jacobson Declaration, objections to 7b, 7f, and 9 are SUSTAINED. The remainder are overruled. This action concerns a single cause of action for professional negligence. "The elements of a cause of action for legal malpractice are (1) the existence of an attorney-client relationship or other basis for duty; (2) a negligent act or omission; (3) causation; and (4) damages." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 863.) "'Proof of legal...

Excerpt: ...ecovering damages from the hirer of the contractor for workplace injuries. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) An exception to the Privette doctrine was set forth in Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 and is based on the concept of negligent exercise of retained control. "[A1 hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained con...

Excerpt: ...obable, 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. Sharp (1975) 50 cal.3d 904, 914; sosinsky v. Grant...

Excerpt: ...l.) It is unclear from the Complaint how Defendant made harmful or offensive contact with Plaintiff's person. The demurrer to the first cause of action is thus SUSTAINED with 20 days leave to amend. Third Cause of Acton — IIED: Plaintiff fails to plead extreme and outrageous conduct directed at Plaintiff. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; Chang v. Lederman (2009) 172 Cal.App.4th 67, 86.) The allegations that Defendant fa...

Excerpt: ...d a series of Case Management Conferences were held and on 10/28/22, the case was set for a Court Trial on 4/15/24. All discovery and motions, including experts, are therefore tied to the new trial date of 4/15/24. Noor Must Serve Proper Verifications The "verification" used by Noor appears to be a form used by counsel to cover several types of litigation and documents where the user just has to check the boxes. For example, the form has a place ...

Excerpt: ... was given only to file a FAC against Tara Materials, Inc. (ROA 90) At the 2/2/23 hearing on the Motion to Quash, the matter was fully briefed, oral argument held, and the matter submitted. The Court then issued a final order quashing service based on a lack of personal jurisdiction over Mr. Twite as asserted in the Motion. This second action against Mr. Twite on the same claim is barred by res judicata. Direct estoppel arises when there is a sec...