Excerpt: ...deposition is GRANTED. CCP §2025.450(a) provides “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelli...

Excerpt: ... (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.) “(f)(1) A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmat...

Excerpt: ... hearing, it was the same as an initial trial setting On 10/8/20, the Court “vacated” the trial date. When the trial date was “vacated” it would seem reasonable to believe that there was no cut-off on discovery. Typically, when a court vacates an order, it is as though the order has never existed. If that were the case, then when the court vacated the trial date, it was as though no trial date had ever been set. Therefore, when the court ...

Excerpt: ...5(a).). The document noticed was offered as authority rather than to show some fact that would be properly subject to judicial notice. Plaintiff's Evidentiary Objections are SUSTAINED as to Obj. Nos. 1, 2 [as to “warranted”] and 4 [foundation, legal conclusions] but OVERRULED on Obj. No. 3. The Reply Objections, as to the La Torre Decl. are SUSTAINED on Obj. Nos. 3 -7 as to the characterization of the records [foundation; best evidence] but o...

Excerpt: ...the Court issued “Minute Order No. 1” (ROA #45) regarding actions defined as the “Hotel Website Cases”. Per that Minute Order, Garcia vs. Resort Rental LLC is the lead action, and for all of the Hotel Website Cases filed by the Center for Disability Access as counsel for plaintiffs: “(d) All motions, petitions and applications brought to the court for adjudication in any case subject to this order shall be served on all parties having r...

Excerpt: ... is to be liberally applied. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696 {Fasuyi).) “The law favors judgments based on the merits, not procedural missteps.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.) As such, “‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].'” (Id., at p. 134-135.) Defendant seeks relief from default on the ground that his failure t...

Excerpt: ...985) 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 court ma...

Excerpt: ...torney should be disqualified is a matter that is addressed to the sound discretion of the trial court. National Grange of Order of Patrons of Husbandry v. California Guild (2019) 38 Cal.App.5th 706, 713. In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. Ibid. An attorney may not represent a new client whose interests are ad...

Excerpt: ...7), Belenardos are admonished to timely file proof of service for all future motions. Notice of Appeal The filing of a notice of appeal of this court's ruling on Bales demurrer to the Belenardos' FACC does not stay the proceedings as to the present motion. (CCP §916(a); See also Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461). Merits “If the court finds that a special motion to strike is frivolous or is solely intended to c...

Excerpt: ... “they will face actual physical violence, the threat of physical violence, immediate deportation to China or their country of origin, likely arrest upon arrival in China or their country of origin and an order by China and other authorities accelerating the repayment of debt incurred for recruitment fees” and that they “reasonably fear that their families may face similar threats of physical and economic retaliation if their true identity ...

Excerpt: ...w disabled individuals to discern if the hotel is accessible to them. On 8/30/2021, the court issued “Minute Order No. 1” (ROA #45) regarding actions defined as the “Hotel Website Cases”. Per that Minute Order, Garcia vs. Resort Rental LLC is the lead action, and for all of the Hotel Website Cases filed by the Center for Disability Access as counsel for plaintiffs: “(d) All motions, petitions and applications brought to the court for ad...

Excerpt: ...g sanctions against Margareta based on her failure to respond to discovery propounded on 12/27/2019, including form interrogatories (“FROGS”), requests for production of documents (“RFPS”) and requests for admission (“RFAS”) and her failure to obey two court orders (entered on 12/13/2021 and 4/14/2022) compelling responses to that discovery, citing CCP §§2030.290(c) and 2023.010 (d) and (g). CCP §2030.290(c) authorizes the court to...

Excerpt: ... apple”): • [7:141] At least one case holds such demurrers are improper because the court is “foreclosed from rendering a new determination on the viability of those claims” absent a timely motion for reconsideration under CCP § 1008 (see ¶ 7:155.2 ff., 9:324 ff.). [Bennett v. Suncloud (1997) 56 CA4th 91, 96-97, 65 CR2d 80, 83] • [7:142] Other courts have allowed demurrers to amended pleadings on grounds previously overruled because �...

Excerpt: ...e 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 or other exhibits when ruling on a demurrer. (Day ...

Excerpt: ...facie showing of the existence of a triable issue of material fact.” (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124.) Under Section 437c(p)(2), a defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause...

Excerpt: ...retion” in allowing amendments to pleadings. (Foot's Transfer & Storage Co. v. Superior Ct. (1980) 114 Cal. App. 3d 897, 901.) “[W]hat constitutes “good faith”-or lack of it-under Code of Civil Procedure section 426.50 must be determined in light of and in conformity with the liberality conferred upon the trial courts by the section and by prior law. We conclude that this principle of liberality requires that a strong showing of bad faith...

Excerpt: ...ion, like the present one, that is brought under Civ. Proc. Code § 473(d) as a void judgment can be attacked at any time. (Westport Oil Co. v. Garrison (1971) 19 Cal. App. 3d 974, 978; Falahati v. Kondo (2005) 127 Cal. App. 4th 823, 830; Yeung v. Soos (2004) 119 Cal. App. 4th 576, 582 (“Yeung”).) Although there is a time limit under Civ. Proc. Code § 473.5, that code section does not apply here as the default judgment was void on its face, ...

Excerpt: ...of the demurrer. (See Arce v. Kaiser Foundation Health Plan (2010) 181 Cal.App.4th 471, 482). Merits This action arises out of an installment promissory note by plaintiff payable to Wells Fargo for $885,000 secured by a first trust deed in connection with plaintiff's property in Corona del Mar. (FAC ¶¶2, 7) In April or May of 2017, plaintiff defaulted on the note and applied to Wells Fargo for loan modification, which was denied. (FAC ¶6) On 4...

Excerpt: ...ransport van owned and operated by defendant Medlink. (Id.) Plaintiffs allege that the decedent was ejected from her wheelchair in the motor vehicle collision because Medlink failed to properly restrain her during transport. (FAC ¶12). They further allege that Defendants maintained a policy and practice of failing to compensate its employees for all hours worked, requiring employees to inspect equipment and supplies used to transport patients, i...

Excerpt: ...an inference that CRA was in fact a party to the Option Agreement. As Parman points out, the Option agreement contains representations and warranties specifically being made to CRA and by CRA, not Thompson. (TACC Ex. 1, ¶ 8.) The TACC also alleges that Parman and CRA and Thompson entered into the Option Agreement. (TACC ¶ 85.) Given the ambiguity raised on the face of the documents, the Court finds CRA's argument to be a factual issue that shou...

Excerpt: ...r an order compelling third party JPMorgan Chase Bank N.A. to comply with a subpoena for the production of documents. Plaintiff also moves for an order imposing a monetary sanction of $4522.50 against JPMorgan Chase Bank. MP CONTENTIONS: Plaintiff brought this action after defendants acted as an escrow holder for plaintiff's $1.55 million investment into a company that defendants represented and beneficially owned. Under the escrow instructions p...

Excerpt: ...djudicated in other actions, etc.), which are not properly the subject of this Motion. The only issue before this court is whether or not Districts are permitted to file a Complaint in Intervention (Motion, Ex. 1 - “CII”) in this matter. As such, while the court will address the general allegations in plaintiffs Orange County Board of Education, Children's Health Defense, and Children's Health Defense-California Chapter's (“Plaintiffs” to...

Excerpt: ...Action (Negligence, Intentional Infliction of Emotional Distress [IIED], Negligent Infliction of Emotional Distress [NIED]) As the Court previously stated in the first round of demurrers, negligence, IIED and NIED all fall within the 2-year period of limitations set forth in CCP §335.1 for injury caused by the wrongful act or neglect of another. The statute of limitations begins to run for negligence when the plaintiff has discovered or through ...

Excerpt: ...ents. The court therefore will disregard the Requests for Admission and responses Defendants produced in its reply. The court also notes, even if it were to consider the new evidence in Defendant's reply brief, that evidence would not change the court's ruling on this Demurrer. “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal...

Excerpt: ...ent, in violation of C.C.P. § 437c(b)(3), which defect alone “may constitute a sufficient ground, in the court's discretion, for granting the motion.” However, as a responsive Separate Statement was very belatedly filed by Plaintiff on 7/7/22, the Court has elected to consider it here, despite the pages of improper argument presented as a preliminary statement at pp. 1-4 therein. The Complaint asserts two causes of action (each a “COA”) ...

Excerpt: ...Per that Minute Order, after defendants failed to comply with certain terms of the settlement agreement, the property was to be sold under court supervision. On 7/9/2020, the court found that although there was no formal written settlement agreement between the parties, there is a valid and binding settlement agreement of the entire action between plaintiff and defendants Hermelinda Zamora and Maria Zamora that was placed on the record orally bef...

Excerpt: ...of service complying with the 8/30/2021 Minute Order. He failed to do so. 2. Demurrer by USA Hotel Group LLC to FAC by Rafael Arroyo in 30-2020- 01173676 (ROA #306, 308, 311, 313, 314) The demurrer was served only on the plaintiff's counsel in violation of Judge Hunt's 8/30/2021 Minute Order. On 5/26/2022, moving party was ordered to file proof of service showing compliance with the 8/30/2021 Minute Order, and plaintiff was ordered to file the FA...

Excerpt: ...bjections pursuant to Evid. Code §§ 970, 971, and 980, and objections against self-incriminating pursuant to 5th Amendment rights. The court finds none of these objections are applicable to the questions at this present time. 1) Marital Privilege Objections (Evid. Code §§ 970, 971, 980) As to the marital privilege objections, none of the questions request any information about Lamberto's wife, co-defendant Meredith Anne Castillo (“Meredith�...

Excerpt: ... is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed.” (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16, citation omitted.) A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action. (Code Civ. Proc., § 1161(2); Cal-American Income Property Fund IV v. Ho (1984) 161 Cal.App.3...

Excerpt: ...e, that date was 6/17/2022. The opposition papers were woefully late, filed and served on Cape Frio only 2 days before the court hearing. Nevertheless, although the court has broad discretion under CRC rule 3.1300(d) to refuse to consider papers served beyond the deadline, (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765) the court has considered plaintiff's opposition here. Cape Frio's Request for Judicial Notice Cape Frio's unopposed r...

Excerpt: ...vidence showing either that: (1) one or more elements of plaintiff's prima facie case is lacking; or (2) the adverse employment action was based upon legitimate, nondiscriminatory factors. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, citing Guz v. Bechtel National, Inc., (2000) 24 Cal.4th 317, 357.) If the employer's moving papers satisfy the initial burden, the burden shifts to the employee to “demonstrate a triable issue ...

Excerpt: ...Amended Complaint (the “FAC”), based on the recent decision in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (“Rodriguez”). Kia argues that under Rodriguez, Plaintiff's claims in COAs 1-5 are barred, because the subject vehicle was purchased as a used car from a retail seller unaffiliated with the manufacturer, and thus does not qualify as a “new motor vehicle” under the relevant portions of the Song- Beverly Consumer Warranty Ac...

Excerpt: ..., Plaintiff argues that Moving Party is liable pursuant to Education Code §44808, which imposes liability on school districts where they have “undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school- sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.” (Cal...

Excerpt: ...filed on 2/17/22 by Plaintiff Luis Alvarez (“Plaintiff”). Motion 1 – the MSJ/MSAI The MSJ/MSAI is GRANTED IN PART. As a preliminary matter, the Regents' papers contains multiple defects. The Motion's MPAs and Reply brief both substantially exceed the page limit under C.R.C. 3.1113(d), and also fail to comply with C.R.C 2.108(1) and (4). While the violation on the moving papers could be attributed to oversight, the same is not true for the r...

Excerpt: ...nt 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 discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of ...

Excerpt: ...hat they were not reasonable or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1...

Excerpt: ...tivity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  Prong 1: Protected activity   A claim may be struck pursuant to section 425.16 only “if the speech or petitioning activity itself is the wrong complained of, and not just evidence...

Excerpt: ...torney Roofian and his client Tylor Johnson between 2017 and the present relating to plaintiff's investment in a cannabis company through Yellowstone Holdings 2020 and Johnson's direction to Roofian regarding transfer of funds received on behalf of plaintiff to third parties. Roofian has asserted the attorney-client privilege in response to all RFPS and produced a privilege log. Attorney-Client Privilege A confidential communication between clien...

Excerpt: ...s DENIED. AGA is ordered to file and serve an answer to the TAC within 10 days. Demurrer A claim for intentional infliction of emotional distress must plead the following elements: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of ...

Excerpt: ...5/19/22 is also ordered to be terminated. The court notes Plaintiff has put forth almost no, or at most excessively minimal, legal basis, arguments, and evidence in support of her request for a PI. Plaintiff failed to cite to any code section that permits the court to grant a PI, and Plaintiff only cited to two cases, neither of which involves a foreclosure action. There are multiple possibilities for requesting a PI under Civ. Proc. Code § 525,...

Excerpt: ...that ruling based on CCP sections 128(a)(8) and 663a. That filing was 70 days after notice had been served on the MSJ and it was originally set for hearing on 11/4/21. On 9/24/21 MP served the instant motion for sanctions, giving plaintiff more than 21 days “safe harbor” to withdraw the Motion to Vacate prior to the then hearing date. Subsequently, the Court, on its own motion continued that hearing to 1/27/22. On that date the Motion to Vaca...

Excerpt: ...bpoenas filed on 7/10/20 by Plaintiffs (“Motion 5”); and 5) two Motions to Compel filed on 9/25/20 by Plaintiffs, as to five sets of discovery (“Motion 6 and Motion 7”). Motion 1-Motion for Summary Judgment/SA Motion 1 is GRANTED. In the legal malpractice context, the elements of causation and damage are particularly closely linked. (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579, 591.) The pl...

Excerpt: ...efendant's property on 10-22-20 in the amount of about $1,313,182; and (2) awarding defendant its attorneys' fees of $10,625.00. Lambert v. Superior Court (1991) 228 Cal.App.3d 383, 388-389 and Civil Code §§ 8422, 8430, 8488. Under Lambert v. Superior Court, supra, 228 Cal.App.3d 383, a property owner may bring a motion to remove an unjustified mechanic's lien without waiting for trial on the action to foreclose the lien. The inquiry made on su...

Excerpt: ...ional non-privileged responsive documents located on Mr. Pittman's computers and agreed that if Mr. Pittman produced additional responsive documents, he would sit for another deposition session limited to the topics affected by the supplemental production. (Supp'l Ledingham Decl. at ¶ 13 and Exhibit J thereto.) Nonetheless, Bryan Industrial maintains its request for a Court order compelling Mr. Pittman's deposition and document production based ...

Excerpt: ...he existence of the contract, the plaintiff's performance or excuse for failure to perform, defendants' breach and damage to plaintiff resulting therefrom. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1031) The complaint must allege the ultimate facts necessary to state an actionable cause of action, and it is insufficient to simply plead the evidence by which he hopes to prove such ultimate facts. (Careau & Co....

Excerpt: ...le, 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 (19...

Excerpt: ...t”), together once annually for four years between 1/2019 and 1/2022 in Denver, Colorado. (FAC ¶11) Outdoor Retailer + Snow Show is defined in the Agreement as the “Event”, “an annual winter industry trade show that takes place each winter in the Colorado Convention Center in Denver, Colorado”. The obligations of the parties under the contract are defined in sections 1 and 2 of the Agreement and relate to conducting an in person event ...

Excerpt: ...tion, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy...

Excerpt: ...ory allegations are contradicted by the prior allegations that this reference was a mere scrivener's error on the part of the cross- defendants. Furthermore, there are no allegations to show that either agreement failed to embody “the real agreement” agreement between the parties. The timeliness issue will be quickly addressed. Both parties agree that the limitations period for a cause of action for reformation is 3 years. Moving cross-defend...

Excerpt: ...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, 850) A plaintiff moving for summary judgment must prove each element of the cause of action. (Id. at p. 853) A plaintiff meets his burden of showing there is no defense to a cause of action by proving each element of...

Excerpt: ...Court (2010) 186 Cal.App.4th 414, 426 [C.C.P. § 998 offer made while motion to quash pending]; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 214 [anti-SLAPP motion made while motion to quash pending].) As Carlyle had a Motion to Quash pending when its other filings occurred, those filings did not constitute a general appearance here. On the merits, Plaintiff Plutos Sama Holdings, Inc. (“Plaintiff”) has failed to meet its burden on this...

Excerpt: ...a business tenant at the Property, while Defendants are the owners and/or managers of the Property. Plaintiff was physically assaulted one afternoon by a transient individual who allegedly lived on the Property. The transient began by hitting Plaintiff and his co-workers' vehicle' with a metal bar, at which time Plaintiff confronted the individual initially, but then retreated back to his office to call the police. While on the phone with police,...

Excerpt: ...monstrating the claim at issue is a commercial claim for money based upon an express contract for a fixed or readily ascertainable amount not less than $500, secured by personal property; the probable validity of its claim, that attachment is not sought for a purpose other than recovery on the claim upon which the attachment is based and that the amount to be secured by attachment is greater than zero. (CCP§§ 483.010, 484.090 (a).) Wells has es...

Excerpt: ...ch alleges in its entirety: Upon information and belief, AT&T's long lines network became obsolete and AT&T ceased operation of the network, and use of the Olinda Site as a microwave radio relay station or for any purpose, in the 1990s, more than two years prior to its Quitclaim Deed to ATL in 2000. By the terms of the Grant of Easements, the easements reverted to Plaintiff upon AT&T's cessation of use of the easements for their intended use, or ...

Excerpt: ...cie case of discrimination must include circumstances suggesting that the employer acted with a discriminatory motive. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.) But the FAC here has presented only conclusory assertions about discriminatory animus which do not suffice to support the claim. Nor is the “adverse employment action” upon which he bases his claim clearly articulated. Facts in support of...

Excerpt: ...ting that Mirza was ever paid or offered consideration pursuant to the oral contract. (See Bennett v. Potter (1919) 180 Cal. 736 [Consideration is essential to the validity of a contract.].) In addition, Mirza is correct that the oral agreement as alleged appears illusory because it is not limited to any specified timeframe and, as a result, Niaki Productions, Inc. essentially assumed no obligation. An agreement is illusory and there is no valid ...

Excerpt: ...free speech in connection with a public issue as defined in the statute (“Prong 1”). (C.C.P. § 425.16(b)(1); Simpson Strong-Tie Company, Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) The moving party meets that burden by demonstrating that the act underlying the cause fits one of the categories in § 425.16(e). (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043)...

Excerpt: ...el to Inn in March 2020 (Compl. ¶12) and chose to stay at Inn because of the desirable price and location (Compl. ¶13). Due to his physical disability, plaintiff is unable to or seriously challenged in his ability to stand, ambulate, reach objects, transfer from his chair to other equipment and maneuver around fixed objects (Compl. ¶14). He therefore requires an accessible guestroom and information about accessible features in hotel rooms so h...

Excerpt: ...e of action on behalf of Ball Road Industrial Park (“Ball Road”) in the same lawsuit in which Plaintiff brings five other, direct claims in his personal capacity as partner of Ball Road. The Court did not previously rule on this issue. Bryan Industrial cites several cases in support of its demurrer. In Shenberg v. De Garmo (1943) 61 Cal.App.2d 326, the Court stated: “An action of a personal nature resulting in injury to the plaintiff indivi...

Excerpt: ...against Sevilla for breach of contract of the duty to defend and indemnify Antis in this litigation. “[T]he 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, 850) A plaintiff or cross-complainant meets his burden of showing there is no defense to a cause of action if ...

Excerpt: ...hat the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative 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 o...

Excerpt: ... Anti-SLAPP motions are governed by CCP § 425.16 which provides at subd. (b)(1) that “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the Court determines that the plaintiff has established that there is a probability ...

Excerpt: ...ection below. Civ. Proc. Code §§ 2030.220 and 2030.230 contain the requirements for responding to FROG. The court finds Defendants current response to FROG No. 12.1 as potentially deficient and grants the present motion pursuant to Civ. Proc. Code § 2030.300. Although the definition of “INCIDENT” is slightly vague as to relates to a lemon law matter and to multiple repairs and potential requests for repurchase, it is not so vague as to pro...

Excerpt: ...d to an award of punitive and exemplary damages in an amount to be decided at the time of trial.” ¶38 is pleaded in connection with the second cause of action for fraud based on intentional misrepresentation. ¶46 is pleaded in connection with the third cause of action for negligent misrepresentation. Plaintiff also seeks to strike Item 4 from the prayer for relief which states: “4. Punitive, special and/or exemplary damages; and/or” When ...

Excerpt: ...y of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are ...

Excerpt: ...n, the time runs from the service of notice of the decision or order, unless the notice is waived. Here, as the proposed order submitted with the prior demurrer did not comport with the Court's subsequent ruling, a revised proposed order was lodged on 7/26/21 and signed on 8/10/21. As Plaintiffs filed the FAC on 8/12/21, it was not clearly untimely. The Motion is therefore denied. Defendant's Request for Judicial Notice is GRANTED under Ev. Code ...

Excerpt: ...a claim for assault and battery is 2-years. Here, the Complaint indicates this action arises from an incident which occurred on October 27, 2016, nearly five years prior to the filing of this action. (¶7 of Complaint). Based on this allegation, Plaintiff's claims are barred, absent allegations which demonstrate delayed discovery, tolling or equitable estoppel. “When a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equ...

Excerpt: ...h 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Leave to amend is properly denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of America (1985) 1...

Excerpt: ...r or agent who is not an attorney.” Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal. App. 4th 1094, 1101. Since Roxy is unable to represent itself and it did not file any opposition whatsoever, the MSJ is granted in its entirety as to Roxy. While Otero filed an opposition, he did not file the required separate statement of material facts. CA ST CIVIL RULES Rule 3.1350(e)(2). “Failure to comply with this requireme...

Excerpt: ...n may be stated for the negligent infliction of serious emotional distress. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 930). “A direct victim cause of action for negligent infliction of emotional distress will lie ‘where a duty arising from a preexisting relationship … is negligently breached.” (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 108). Plaintiffs have pled sufficient facts to constitute a caus...

Excerpt: ... Realty's (“HSIR” individually; HOM together with Shapiro) Demurrer to Daniel C. Kwock's (“Kwock”) First Amended Cross-Complaint (“FACC”) is SUSTAINED in part and OVERRULED in part. Sustained with leave to amend as to COA Nos. 2, 10, and 14. Overruled as to COA Nos. 1, 3-9, 11-13, and 15. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. Blank v. Kirwan (...

Excerpt: ...) 39 Cal.App.4th 1379, 1383; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320 [“The defendant may recover fees and costs only for the motion to strike, not the entire litigation.”].) And such fees cannot be claimed by an attorney representing himself or a law firm represented by the firm's attorneys. (Witte v. Kaufman (2006) 141 CA4th 1201, 1207- 1211; Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 494.) Fees her...

Excerpt: ...3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. “Face of the complaint” includes matters shown in exhibits attached to the complaint and incorporated by reference. Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 (“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader's allegations as to the legal effect...

Excerpt: ...-complaint without leave of Court Moving cross-defendant initially contends that the first amended cross-complaint was improperly filed, suggesting that leave of Court was required. Moving cross-defendant is incorrect. The moving cross-defendant is also the plaintiff. A cross-complaint must be filed against any party who filed a complaint or cross-complaint against him or her before or at the time of the answer to the complaint or cross-complaint...

Excerpt: ... motion, substantially compliant responses, the court has no discretion but to deny the motion. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776). Plaintiff's motion to deem the first set of Requests for Admission propounded to WSH admitted is DENIED as MOOT. On 10/28/2021, this court denied the identical motion involving identical issues brought by plaintiff Thomas Davidson (“Davidson”). The court detailed its reasoning for denyin...

Excerpt: ...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). “A defendant . . . has met his or her burden of showing that a cause of actio...

Excerpt: ...l services rendered in his court.'” Ketchum v. Moses (2001) 24 Cal.4th 112, 1132.   “The reasonable hourly rate is that prevailing in the community for similar work.”  PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.  Based on the court's experience, the billing rate of $325.00/hour for Scott W. Perlin is reasonable. Additionally, the billing rate of Rebecca Van Loon of $425.00/hour is reasonable. Ms. Van Loon is a cert...

Excerpt: ...e demurrer and objects to the request of judicial notice as to both documents. Moving cross-defendant challenges all causes of action as untimely and as barred by a release in the settlement agreement for which it asks judicial notice. It then specifically challenges the fourth and fifth causes of action for violation of Bus. & Prof. Code § 17200 and unjust enrichment, respectively. Request for judicial notice. The request for judicial notice is...

Excerpt: ...he legislative analysis of AB 1871, including: 1. Assembly Committee on Insurance (May 4, 2010) 2. Senate Floor Analysis (July 29, 2010) 3. Assembly Floor Analysis (June 1, 2010) The request for judicial notice is GRANTED. The request was properly made, and the documents constitute cognizable legislative history properly subject to judicial notice. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31) H...

Excerpt: ...ases I & II (2005) 135 Cal. App. 4th 100, 110 (“In re Auto”). “When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.] Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable. [...

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 court ...

Excerpt: ...). SPROG Nos. 14-17 are identical except that they seek the same records from different years (2014-2020). These SPROG are improper as they improperly incorporate other materials, specifically they require Plaintiff to go through Depala's medical records to determine a response. “Each interrogatory shall be full and complete in and of itself.” Civ. Proc. Code § 2030.060(d). “This rule was violated here by interrogatories which necessarily ...

Excerpt: ...ce of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, th...

Excerpt: ...an (2018) 23 Cal.App.5th 685, 690. Rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness. Ibid. Money paid upon a mistake of fact may be recovered under the common count of money had and received. Thresher v. Lopez (1921) 52 Cal.App.219, 220. The plaintiff may recover the money, even if negligent, if his or her conduct has not altered the position of the defendant to his or her d...

Excerpt: ...red the supplemental briefing. APRB moves for a Right to Attach Order/Writ of Attachment against Michael Roofian, individually. (CCP §483.010; §484.020; 484.030) Attachment may issue only in an action on a claim for money based upon a contract, express or implied, where the total amount of the claim is a fixed or readily ascertainable amount not less than $500. (CCP §483.010 (a)). Roofian disputes the existence of a contract upon which attachm...

Excerpt: ...the same or similar causes of action. Defendant generally demurs to the second, sixth, and seventh causes of action. Defendant specially demurs to the second, sixth and seventh causes of action on the ground of uncertainty. The special demurrer of defendant Ford Motor Company to the entire first amended complaint of plaintiff Mark Johnson on the ground of another action pending is OVERRULED. Moving defendant contends that the second, sixth, and s...

Excerpt: ...w. That is because of the general principle that a party who seeks a court's action in his 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 8...

Excerpt: ... to prevent prejudicing the party's interest in the litigation. Section 36 “was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be able to realize redress upon the claim asserted.” (Looney v. Super. Ct. (1993) 16 Cal.App.4th 521, 532.) In support of the motion, the moving party's attorney may submit the supporting affidavit based upon information and...

Excerpt: ...ing her to appear for deposition, by Zoom, on 3/12/2021, and to produce all emails and text messages exchanged between Cerda and plaintiff from 2/12/2020 to present. (Buus Decl. ¶10; Ex. 3) On 3/10/2021, Buus called Cerda's cell phone and left a voicemail about her deposition, but Cerda did not return the call. (Buus ¶12) Cerda did not appear for her deposition on 3/12/2021, and the court reporter prepared a certificate of nonappearance. (Buus ...

Excerpt: ....P. § 1281.2.) The provisions of the written agreement to arbitrate 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 doubt o...

Excerpt: ...e making which allegation(s). Defendant demurs solely to the 3rd cause of action (“COA”) for Fraudulent Inducement- Concealment on the basis that is fails to state facts sufficient to establish a COA (Civ. Proc. Code § 430.10(e)) and that it is barred by the economic loss rule. Concealment is, “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of co...

Excerpt: ...ate Services, Inc. (“Bondcorp”) and Stacie's former husband, Bryan K. Bond (“Bryan”). The Agreement is attached to the complaint as Exhibit A. Stacie was not a party to the Agreement. Attached to the FAC as Ex. B is a single letter dated 8/8/2019 to Bryan and Stacie attaching invoices and stating an amount owed for legal services rendered by plaintiff. None of the invoices are addressed to Stacie. Plaintiffs seek to hold Stacie accountabl...

Excerpt: ...eclines to do so in this instance. New matters cannot be raised for the first time in a reply brief. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 641). The elements of fraud are (1) misrepresentation (false representation, concealment or nondisclosure) (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal....

Excerpt: ... as to El Gaucho #2 and El Gaucho #11 because Plaintiff failed to allege any facts identifying the location where she worked and/or whether El Gaucho #2 or El Gaucho #11 actually employed her such that they should be included in this lawsuit and held liable for her claims. The FAC alleges that El Gaucho #2 and El Gaucho #11 were operated by, managed by, wholly owned by, alter-egos of, and for all purposes existed as one-in the same with defendant...

Excerpt: ...ended pleading remain within the court's cognizance and the alteration of such statements by amendment designed to conceal fundamental vulnerabilities in a plaintiff's case will not be accepted.” (Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1061). Likewise, if a party files an amended pleading and attempts to avoid the defects of the original Complaint by either omitting facts that rendered the prior Complaint defective or by adding facts ...

Excerpt: ...dered all of the documents which petitioner indicated were part of the record, but which he was concerned did not make it into the record, including the expert report from Mr. Daleo. Request for Judicial Notice: As a preliminary matter, City requests judicial notice of various provisions of the California Residential Code (Ex. A-H); California Building Code (Ex. I-M) and Newport Beach Municipal Code (Ex. N-Q). The Court may take judicial notice o...

Excerpt: ...alls for confidential information which would only be provided under an appropriate protective order.” The court construes this objection as one based on Civil Code §3295. “[T]here is a right to privacy in confidential customer information whatever form it takes, whether that form be tax returns, checks, statements, or other account information.” (Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 481.) The privacy right exists as to ...

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). “...