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: ...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: ... 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: ... 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: ...gligence. As OCSSA is a public entity, liability for negligence must be authorized by statute. (Branch v. State of Cal. ex. rel. Department of Transportation (1984) 159 Cal.App.3d 340, 343; Gov. Code S 815.) Plaintiff's complaint alleges three statutory bases for OCSSA's liability—Government Code sections 815.2, 815.4, and vicarious liability for the acts or omissions of its employee or independent contractor under sections 815.2 and 815.4, and...

Excerpt: ...ppearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent c...

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...

Excerpt: ...ent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party." (Civ. Proc. Code S 2030.220.) For moving to compel further responses (in relevant part): "(a...

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: ... of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) If the defendant meets his burden, then the plaintiff must show the "challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiffs showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment." (Bara', supra, 1 Cal.5th at 396.) The ...

Excerpt: ...ence may be drawn from various sources, but the evidence relied upon must "speak to the court's concern whether the person in question is able to meaningfully take part in the proceedings." [Citation.] California law adopts a broad view of relevance, and a state court of appeal has emphasized a trial judge's "duty...to clearly bring out the facts." ' " (ld.) "The role of the guardian ad litem is to protect the incompetent person's rights in the a...

Excerpt: ...nc. v. Cnty. of San Mateo (1995) 12 Cal. 4th 1110, 1117—18; Prue v. Brady Co./san Diego (2015) 242 Cal. App. 4th 1357, 1384-85.) The court finds the Complaint fails to state suffcient facts to constitute Plaintiff's three current causes of action ("COA") under the Song- Beverly Act ("Act") as the vehicle in question (used 2018 Chevrolet Camaro with VIN: IGIFB3DX4J0131584 ("Vehicle")) was purchased used. The Act applies only to purchases of new ...

Excerpt: ...e injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued. [Citation.) Weighing these factors lies within the broad discretion of the superior court." (Smith v. Adventist Health Sys./W. (2010) 182 Cal. App. 4th 729, 749.) Symple asserts that it is likely to succeed on its two causes of action for Misappropriation of Trade Secrets and Unfair Competition. under the California ...

Excerpt: ...rly 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 952, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) uncertainty A demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) will be sustained only where the complaint is so poorly pled that a defendant cannot reasonably respond—i.e., he or she cannot re...

Excerpt: ...68, fn. 1, citing Evid. Code, 5452, sbud. (c).) "Except as otherwise provided by statute...[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Gov. Code, 5815.) "In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and ...

Excerpt: ... demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint byway of fact or theory of recovery. (Palm Springs Villas II Homeowners Inc. v. Parth (2016) 248 Cal.App.4th 268, 290) Here, Plaintiff's Second Cause of Acton for Negligent Maintenance is duplicative to her Eighth Cause of Action for Negligence. Both causes of action allege problems with waterproofing, mailbox, lockin...

Excerpt: ....) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.). Cause of Acton On...

Excerpt: ...raw v. Cal. Physicians' Service (2000) 81 Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (G...

Excerpt: ...f California, Inc. (1993) 14 Cal. App. 4th 612, 616.) Here, the causes of action pled against Cross- Defendant are not so unclear as to render them indecipherable. Accordingly, the demurrer based on uncertainty is OVERRRULED. First Cause of Action - Negligence Cross-Defendant again contends the negligence cause of action is barred by the Economic Loss Rule, as this action is purely a contractual dispute. The economic loss rule ordinarily prevents...

Excerpt: ...clude “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or the unavailability of a party, counsel, or expert due to death, illness or other excusable circumstance. The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a cont...

Excerpt: .... U.S. Bank Nat'l Ass'n (2012) 209 Cal.App.4th 182, 199.) The court's sole function on a motion for summary judgment is issue-finding, not issue- determination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” (C.C.P. § 437c(c) (emphasis added); see Zavala v. Arce (1997) 58 Cal.App.4th 915, 926 (citing text); Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 (c...

Excerpt: ...es agreeing to produce (“Motion 2” below); (3) Plaintiff's Motion to Compel Further Responses to Requests for Admission (“RFAs”) Set One, for RFA 14 and to deem the RFAs admitted (“Motion 3” below); (4) Plaintiff's Motion to Compel Further Responses to Special Interrogatories (“SROGs”) Set One, for SROG Nos. 1-6, 21-24, 30-31, 33, 36, and 37-41 (“Motion 4” below); and (5) Plaintiff's Motion to Compel Further Responses to Form ...

Excerpt: ...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 v. Sharp (1975) 5...

Excerpt: ... of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  If the defendant meets his burden, then the plaintiff must show the “challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a fav...

Excerpt: ...a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  If the defendant meets his burden, then the plaintiff must show the “challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.”  (Bara...

Excerpt: ... Elder Abuse. (Opp at 1:12-13) Plaintiffs also concede the propriety of Carol Wilson's demurrer to the SAC. Accordingly, the demurrer is SUSTAINED as to the 2nd and 4th causes of action and as to the claims made against Carol Wilson. The remaining issue in the demurrer is the Negligence cause of action asserted by Thomas and Jailyn Kramer (“Plaintiffs”) against the HOA. The issue is whether the Plaintiffs as tenants have standing to assert th...

Excerpt: ...e, 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 (199...

Excerpt: ... ambiguities can be clarified in discovery. (Khoury v. Maly's of Calif., Inc. (1993) 14 CA4th 612, 616.) Here, the Complaint adequately apprises the Defendant of the nature of and basis for the claim, for pleading purposes. The Demurrer, based on the statute of limitations and C.C.P. § 430.10(e), is OVERRULED. A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. (Lee v. Hanley (2015) ...

Excerpt: ...loyment Arbitration Rules effective January 1, 2023. ROA 20 and 39. Both parties' requests are GRANTED. There is a Valid Arbitration Agreement Between the Parties. Defendant has met its initial burden of demonstrating the existence of an arbitration agreement between the parties. (Rosenthal v. Great Wester Fin. Securities Corp. (1996) 14 Cal. 394, 413; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4 th 951, 972.) Defendant presents evid...

Excerpt: ... (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: ...evidence, which is used in California for disparate-treatment cases under FEHA, the employee must first present a prima facie case of discrimination. The burden then shifts to the employer to produce evidence of a nondiscriminatory reason for the adverse action. At that point, the burden shifts back to the employee to show that the employer's stated reason was in fact a pretext for a discriminatory act. The employer (moving party) must carry the ...

Excerpt: ...r the age of 40 were hired into the same position at a lower salary. These are similar to the allegation in the complaint that Plaintiff was terminated and a younger person was hired into Plaintiff's position at a lower salary. Defendant's response to RFA Nos. 1 – 12 where identical: “RESPONDING PARTY incorporates by reference herein its preliminary statement and general objections and conditions. [RESPONDING PARTY objects to this request on ...

Excerpt: ...ll future motions and oppositions. Here, Henkel seeks a protective order and enforcement under the parties' stipulated protective order (“SPO”). The designating party shall have the burden on any designation motion of establishing the applicability of any confidential designation. (SPO ¶ 6.) The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment...

Excerpt: ...erican Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1119; C.C.P. § 437c(c).) To satisfy this burden, a defendant must establish that one or more of the elements of a cause of action (a “COA”) cannot be established or that a complete defense exists to the cause of action. (Id.; C.C.P. § 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a triable issue of material fact exists as to either the particular ...

Excerpt: ...ion to the motion;" Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 240, fn. 2 (citing text).) Generally, the moving party bears the burden of proving the existence of an agreement to arbitrate by a preponderance of the evidence. (Villacreses v. Molinari (2004) 132 Cal.App.4th 1223, 1230.) If met, the burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of...

Excerpt: ...rovides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) FCA and Dealer move to compel arbitration based on the arbitration agreement contained in the Retail Installment Sale Contract – Simple Finance Charge (with Arbitration Provision) (“RISC”) attached as Exhibit A to ROAs 33 and 38, respectively. As FCA and Dealer both acknowledge, neither is a signatory thereto. A nonsignatory seeking ...

Excerpt: ...ction for Declaratory Relief. The plaintiff alleges that the employee sustained specific injury in 1996 and another specific injury in 2002. At the time of the 1996 Injury, the JPA was insured under a standard employers' workers compensation primary insurance policy issued to it by TAIC. (Complaint, ¶5.) At the time of the 2002 Injury, JPA was permissibly self-insured with an excess workers compensation insurance policy from American Manufacture...

Excerpt: ...nd the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) Defendants move to compel arbitration based on the arbitration agreement contained in the Retail Installment Sale Contract (“RISC”) attached as Exhibit 1 to the Polyakov Declaration. As a preliminary matter, Plaintiffs' object to Exhibit 1 and ¶ 2 of the Polyakov Declaration, based in part on authentication and ...

Excerpt: ...4th 308, 316.) Yamaha's requests for judicial notice are GRANTED. (Evidence Code §§ 452(a) and (d).) Yamaha argues that Cal. Code Civ. Proc. section 361 mandates application of Tennessee's one-year statute of limitations for personal injury claims to Plaintiff's action. The underlying facts are undisputed. Plaintiff, a Tennessee resident at the time of the accident and when this lawsuit was filed, was injured in a single-vehicle golf cart accid...

Excerpt: ...intiff to be filed no later than 05/25/23, a supplemental opposition to be filed no later than 06/01/23, and a supplemental reply brief to be filed no later than 06/08/23. The court specifically noted, “[t]he Court will not consider any additional pleadings not filed by the deadlines listed above.” Instead, Defendants filed their supplemental opposition on 06/09/23, and only state the delay was, “the result of inadvertent mis-calendaring by...

Excerpt: ...party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” “Where a party moves under section 473, subdivision (d) to set aside “a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statuto...

Excerpt: ...firmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (2) A motion for summary adjudication may b...

Excerpt: ...r in evidence at trial; or (2) a statement that the parties does not presently intend to offer the testimony of an expert witness. Under subdivision (c) of section 2034.260, if a party designates an expert witness, the exchange must also include a declaration by the attorney for the party (or by a self- represented litigant) setting forth the qualifications of each expert, the general substance of the expert's anticipated testimony, a representat...