Excerpt: ...ury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. “Even as against a special demurrer, a plaintiff is required only to ‘set forth in his complaint the essential facts of his case with reasonable precision and with particularity sufficiently specific to acquaint the defendant of the nature, source, and extent of his cause of action.'” “[A] pleading is adequate so long as it apprises the defendant of the factual basis for th...

Excerpt: ...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 1746, 1749. “...

Excerpt: ...o compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. . . “ Civ. Proc. Code § 1281.2. “The party seeking to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by [a] preponderance of the evidence.” Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 622 F.3d 996, 1005 (9th Cir. 2010) (internal quotation marks and citation omitted). “...

Excerpt: ...out leave of court. (CCP §2032.220(a)). Separate injuries do not entitle defendant to more than one exam. Only a single examination can be obtained on demand despite the variety of injuries claimed. (Weil & Brown, The Rutter Group (2021) Cal. Prac. Guide: Civ. Pro. Before Trial, Discovery §8:1516) For example, if plaintiff claims both orthopedic and neurologic injuries resulting from the accident, the medical examination will have to cover both...

Excerpt: ...easonably calculated to lead to the discovery of admissible evidence as OCTA admits that Mr. Beyer was acting in the course and scope of his employment for OCTA at the time of the subject incident…” OCTA cited to Diaz v. Carcamo (2011) 51 Cal.4th 1148 in support of each response. The objections are not well-taken. In Diaz, the court held that an employer's admission of vicarious liability for an employee's negligent driving bars a plaintiff f...

Excerpt: ...ve the court for an order compelling that answer or production.” Civ. Proc. Code § 2025.480(a). “Unless 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 reasona...

Excerpt: ...Baron v. Dillard, Vierra, and Arizona Medical Training Institute, there was a final judgment during the pertinent period, and at least three related appeals, all of which were determined adversely to Mr. Baron. (See RJN Exs. 1 and 2, and Barron v. Dillard, 2016 WL 54832 (Ariz. Ct. App. 2016) [rejecting “Baron's three remaining notices of appeal…”].) Each appeal constitutes a separate “litigation” under the statute. (In re Kinney (2011) ...

Excerpt: ... given, Defendant also late filed its reply based on the present hearing date. Civ. Proc. Code § 1005. As such, the court declines to consider the arguments in the late filed reply brief (ROA #893). CRC 3.1300(d). Although Defendant is the prevailing party, it is not entitled to recover attorney fees from plaintiff Loan Pham (“Plaintiff”) under either Civ. Proc. Code §§ 1717 or 998. Defendant is not entitled to attorney's fees pursuant to ...

Excerpt: ...rer challenges the legal sufficiency of a complaint on the ground that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10(e).) The allegations in the complaint as a whole must be reviewed to determine whether a set of alleged facts constitutes a cause of action. (People v. Superior Court (Cahuenga's the Spot) (2015) 234 Cal.App.4th 1360, 1376.) A complaint need only meet fact-pleading requirements, whic...

Excerpt: ... 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 shall be granted ...

Excerpt: ... Decl. ¶¶ 3-6, Ex. 3.) Courts may permit amendments at any stage in the proceedings, up to and including trial, so long as there is no prejudice shown to the adverse party. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564 (where no prejudice is shown to the adverse party, the liberal rule of allowance prevails). However, leave can be denied where a proposed amendment fails to state a vali...

Excerpt: ...t and confer with Defendants prior to filing the demurrer was insufficient. Plaintiff was required to identify all of the specific defenses believed to be subject to demurrer and identify with legal support the basis of the deficiencies. §430.41(a)(1). Plaintiff failed to satisfy this mandate. Defendant failed to respond to plaintiff's perfunctory meet and confer attempt. However, because a determination that the meet and confer process was insu...

Excerpt: ...mpel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. . . “ Civ. Proc. Code § 1281.2. “The party seeking to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by [a] preponderance of the evidence.” Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 622 F.3d 996, 1005 (9th Cir. 2010) (internal quotation marks and citation omitted). “[T]h...

Excerpt: ... CA ST CIVIL RULES Rule 3.1345, Defendant's separate statement does not comply with that Rule. However, Civ. Proc. Code § 2031.310(b)(3) permits a part to, “[i]n lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” Id. Here, Defendant has produced a concise outline of the discovery request and each re...

Excerpt: ...tories (FROG and SPROG): “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if 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. (b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declarati...

Excerpt: ...e parties. Preliminary Question - Is a Cross-Action, “Maintaining an ‘Action or Proceeding”? The RP argues that Section 2203 doesn't apply, because a cross-complaint is not “maintaining an action or proceeding” under § 2203(c). The statute does not say that a foreign corporation shall not “maintain a lawsuit” but that it “shall not maintain an action or proceeding.” “An action is an ordinary proceeding in a court of justice b...

Excerpt: ...ed evidence that he was been indicted in the Criminal Matter, which is pending for trial on 12/07/21. Bauche argues an immediate stay is necessary to avoid compromising his 5th Amendment right against self-incrimination. A stay, “is in accord with federal practice where it has been consistently held that when both civil and criminal proceedings arise out of the same or related transactions, an objecting party is generally entitled to a stay of ...

Excerpt: ..., where the basic meaning is clear, the responding party must appropriately respond. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783, superseded by statute on other grounds as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.) To the degree the scope of the inquiry is the maintenance performed at the entire Disneyland park, this may draw fair objections to the relevance and breadth. Presumably, however, the definitions...

Excerpt: ...dant represented that the product had characteristics, uses, or benefits it did not have (3) plaintiff was harmed; and (4) the harm resulted from Defendant's conduct. CACI 4700. Here, the allegations contained in the Complaint at paras. 1, 6-7, 10, 11, 13, & 14 are sufficient to state a claim against MBUSA for violations under the CLRA. To prove reliance, it is enough for the plaintiff to prove the representation was a substantial factor in the p...

Excerpt: ..., the court determines if the party moving to strike a cause of action has met its initial burden to show that the cause of action arises from an act in furtherance of the moving party's right of petition or free speech. Then, if the court determines that showing has been made, the court determines whether the opposing party has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Here, Plaintiff...

Excerpt: ...'s informal request for judicial notice of the Peaslee declaration is DENIED, because (1) it constitutes the equivalent of a speaking demurrer, by relying upon a declaration rather than any official records (Evid. Code § 452(d)) or matters of common knowledge (Evid. Code § 452(g)) or indisputable facts (Evid. Code § 452(h)), and (2) it does not comply with CRC Rule 3.1113 [separate document for RJN]. (Evid. Code § 452, CRC Rule 3.1113.) Nonet...

Excerpt: ...eet and confer efforts were more than adequate, and Plaintiff has demonstrated good cause for the requested discovery. Defendants' non-appearance – following only days after confirming their attendance – was without any justification. Defendants' failure to oppose the Motion can be treated as an implied concession to the merits of the same. (See, e.g., Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20; see also, Sexton v. Superior Cou...

Excerpt: ...vision (b) . . . 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. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (b) The following persons may make a motion...

Excerpt: ...f Contract Demurrers are sustained with leave to amend. There are a number of deficiencies in the pleading. Paragraph 29 refers to a breach of the Business Purchase Agreement, which is attached to the pleading as Exhibit 1. (See CC ¶ 16, 29.) However, the exhibit is illegible. The Court therefore orders the cross-complainants to attach a legible copy in the next pleading. The obligations in that writing appear to have been undertaken by a nonpar...

Excerpt: ...ly alleges, in part: “At the time of purchase and/or lease, or within one-year thereafter, the Subject Vehicle contained or developed the defects set forth above.” The Complaint alleges in Paragraph 10 that the Subject Vehicle was purchased on 3/12/2012. Defendant contends, in part, that this cause of action is barred by the 4-year statute of limitations under UCC § 2725(2), because there is no delayed discovery rule unless the “warranty e...