Excerpt: ...ee also Fielder v. City of Glendale (1977) 71 Cal.App.3d 71.) The issue of trivial defects is one of duty and breach which plaintiff must plead and prove, per Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26-27. “The trivial defect doctrine originated to shield public entities from liability where conditions on public property create a risk ‘of such a minor, trivial or insignificant nature in view of the surrounding circ...

Excerpt: ...prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) A written contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect. (Bowden v. Robinson (1977) 67 Cal.App.3d ...

Excerpt: ... 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.) Defendant moves for summary judgment/adjudication on both causes of action (“COA”) No. 1 – Motor...

Excerpt: ...a good faith attempt to resolve "each issue presented by the motion." There must be a serious effort at negotiation and informal resolution. (Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1294.) "[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." (ld.) The particular level of effort required in each case depends on the circumstances. (Obregon v. Superior Court (1998) 67 Cal. App. 4th...

Excerpt: ... necessary discovery is DENIED. "[I]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion...

Excerpt: ..., if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (b) Supporting declaration. A separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3...

Excerpt: ...usa Madain to Assign its Rights in its Accounts Receivable, filed on 10/21/22 ("Motion 3" below); (4) the Motion For an Order Compelling Judgment Debtor The Grand Theater, Inc. to Assign its Rights in its Accounts Receivable, filed on 10/21/22 ("Motion 4" below); and (5) the Motion For an Order Compelling Judgment Debtor The Grand Theater, Inc. to Serve Responses to the Post-judgment Requests for Production of Documents, filed on 1/6/23 t Motion ...

Excerpt: ...ot as to the truth of any disputed facts asserted therein. (Evid. Code 5 452(d); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) In ruling on a motion for summary judgment or summary adjudication, the court must "consider all of the evidence" and all of the "inferences" reasonably drawn therefrom (CCP 5 437c(c)) and must view the evidence and inference...

Excerpt: ...he cause of action. (ld.; C.C.P. 5 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 COA or the proffered defense thereto. (ld.) The plaintiff must set forth specific facts demonstrating a triable issue of material fact exists. (ld.; C.C.P. 5 437c(o); Aguilar v. Atlantic Richfield Co. (2001) 25 cal.4th 826, 843.) Here, MP has presented evide...

Excerpt: ...(e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract." B usiness and Professions Code 57026 defines a "contractor" as a person who does work to "alter add to improve" a structure. The issue comes down to whether or not plaintiff has alleged that the defendant w...

Excerpt: ... Steele is to file and serve an answer to the Complaint within 10 days. Ashbrook's Demurrer and Motion to Strike As to the first cause of action, while the allegations appear sufficient to plead isolation (see Compl. 23-25), Ashbrook is correct that the Complaint fails to include facts demonstrating that Plaintiff experienced physical harm, pain or mental suffering as a result of the alleged isolation by Ashbrook. (See We/f. & Inst. Code 55 15610...

Excerpt: ...000) 81Cal.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." (Goodman v. Kennedy (1976) 18 cal.3d 335,...

Excerpt: ... order to turn over monies had and received; (8) conversion; (g) fraud and deceit; (10) constructive fraud; (11) violation of Penal Code 496; and (12) fraudulent conveyance. Moving defendants contend that all of the causes of action are deficient and uncertain because the causes of action in the FAC all assume the existence of a trust or estate planning vehicle that was established outside of California and do not support application of Californi...

Excerpt: ... SUSTAINED with 15 days leave to amend as to the Second and Fifth Causes of Action and OVERRULED as to the Fourth Cause of Action. Cause of Action 2: Elder Abuse Under Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07, a plaintiff pleading a claim under the Elder Abuse Act must plead that defendant 1) had responsibility for meeting the basic needs of the elder or dependent adult, 2) knew of conditions that made the...

Excerpt: ...troversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. . . (Civ. Proc. Code 5 1281.2.) "Arbitration is favored in this state as a voluntary means of resolving disputes, and this voluntariness has been its bedrock justification. As we stated recently: "[P]olicies favoring ...

Excerpt: ...f action" entitling him or her to judgment. (CCP 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1 gg5) 37 Cal.App.4th 1282, 1287 (citing text) (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 cal.4th 826); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. co. (2010) 186 cal.App.4th 383, 388.) Breach of Guaranties As to the third cause of action, Plaintiff has presented evidence to show: (1) that on or about February 2...

Excerpt: ...ce of a valid arbitration agreement, before arbitration can be compelled. (See 9 U.S.C. 52). "Cl]t is a cardinal principle that arbitration under the FAA 'is a matter of consent, not coercion.'" (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) "Thus, 'a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'" (ld.) "If a party to a civil action asks the...

Excerpt: ...ompel arbitration does not automatically stay ongoing proceedings; the party seeking arbitration must request one." (OTO, L.L.C. v. Kho (2019) 8 Cal. 5th 111, 140.) The closest thing to a request to stay this matter comes from the "Notice Of Commencement Of Arbitration And Request For Stay Of Entire Action" ("Notice"), in which Plaintiff included one sentence requesting a stay. However, a party requesting a stay is required to move the court for ...

Excerpt: ...d an order that sustained the defendants' unopposed demurrer to the complaint without leave to amend. The Court heard oral argument on the demurrer on December 15, 2022 and the minute order of that day indicates that the Court determined, among other things, that "Ct)he entire complaint and all three causes of action are defective because plaintiff lacks standing to bring this action." The Court added: The documents for which judicial notice is r...

Excerpt: ...ed Sales Contract, either as a third-party beneficiary or pursuant to equitable estoppel. Consequently, Defendant failed to meet its burden to establish an applicable arbitration agreement. Preliminarily, both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement, before arbitration can be compelled. (See g U.S.C. 52 and C.C.P. 51281.2). "If a party to a civil action asks the court t...

Excerpt: ...ative 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 of a cause of action, an affirmative defense, a claim for dama...

Excerpt: ...t as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract." Business and Professions Code 57026 defines a "contractor" as a person who does work to "alter add to improve" a structure. The issue comes down to whether or not plaintiff has ...

Excerpt: ....290(b)(6).) It does not matter that the newly added party is represented by the same counsel as another party that took the prior deposition. The code is specific to the party, not to party counsel. Plaintiff has not cited to any case or statute that supports her contention that newly added DWIC cannot take its own deposition of Plaintiff even though all defendants in this action are currently represented by the same counsel. The court previousl...

Excerpt: ...ion process. When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a prep...

Excerpt: ...ernmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance.” (Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 376.) “The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.” (Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 369, Fn 1.) Accordingly, the Request for Jud...

Excerpt: ...ar statute of limitations set forth in C.C.P. § 340.5. Medlink cites Canister v. Emergency Ambulance Service (2008) 160 Cal.App.4th 388, in support of its argument that an ambulance and its driver, transporting a patient for medical treatment (as Medlink contends was done in this case), come within the purview of the definition of a health care provider within the meaning of C.C.P. § 340.5. In Canister, the court held that emergency medical tec...

Excerpt: ...��Summary judgment is appropriate where ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” (Wicks, supra, 49 Cal.App.5th 875, citing C.C.P. §437c(c).) Once the defendant has met that burden, “the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of a...

Excerpt: ...as manufactured by FCA. Plaintiff alleges the vehicle has various defects. In addition, Plaintiff also alleges that on at least one occasion, she took the vehicle to Lampe Chrysler Dodge Jeep Ram ("Lampe") for repair and that Lampe negligently repaired the vehicle. The arbitration agreement at issue at issue is found in the Retail Installment Sale Contract ("RISC") attached as Exhibit A to the Rogerson Declaration. The RISC is between Wood, Brook...

Excerpt: ...or, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying." (CCP 2025.280(a).) On November 2, 2022, Ashbrook served a Notice of Deposition of Arnold for November 18, 2022. (Conti Decl., Ex. A.) No formal written objection was served. (Conti Decl., 113.) Arnold's conservator, Jonathan Starr ("Jonathan"), argues in the oppo...

Excerpt: ...s recoverable are those "fees and costs incurred on the motion to strike (not the entire litigation). (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.)" (Rutter CPBT at 7: 1135, emphasis in original.) In addition, CCP 5425.16(c) "is interpreted to allow awards of only such fees as the court deems reasonable. (Robertson v. Rodriguez (1995) 36 cal.App.4th 347, 362)" (Rutter CPBT at 7:1138) "In setting a fee a...

Excerpt: ...e 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 may not consider the contents ...

Excerpt: ...request for judicial notice is GRANTED. (Evid. Code 55 452(c), (d), and First, Second and Third Causes of Action Claims for fraud and negligent misrepresentation must be pleaded with particularity, that is, the pleading must set forth how, when, where, to whom, and by what means representations were made. (Foster v. Sexton (2021) 61 Cal.App. 5th 998, 1028; see also, Borman v. Brown (2021) 59 Cal. App. 5th 1048, 1060 [elements of negligent misrepr...

Excerpt: ...ocuments. Plaintiff did not argue why or how 1) There exists an overriding interest in sealing the Agreement that overcomes the right of the public to access the record; 2) That a substantial interest supports sealing the record; 3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4) The proposed sealing is narrowly tailored; and 5) No less restrictive means exist to achieve the overrid...

Excerpt: ...["only those attorney fees and costs related to the special motion to strike, not the entire action, may be recovered"].) The fees awarded should include services for all proceedings directly related to the special motion to strike, including those relating solely to the fee. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 556.) Aa party who partially prevails on an anti-SLAPP motion must g...

Excerpt: ...h is the Marovic defendants or "Defendant Group which is the City defendants. The FAC alleges the following c/a's against the defendant groups: 1. Breach Of Warranty Of Habitability (Marovic Defs) Specific Performance Of Negligent Maintenance (Marovic Defs) 2. Violation Of Unfair Business Practices Act (Marovic Defs) 3. Wrongful / False Arrest (All Defs) 4. Public Nuisance (City Defs) 5. Private Nuisance (Marovic Defs) 6. Violation Of Cal. Civ. C...

Excerpt: ...up to and including trial,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Absent prejudice, delay alone is not ground for denial. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case, even if sought as late as the time of trial. (Higgins v. Del Faro (198...

Excerpt: ...t provides in pertinent part that, for Pouliot to show a right to judgment thereon, the following must be shown: 1) that Cohen defaulted on the agreed payment schedule; 2) that Cohen was given notice of that default, through his counsel, by mail with return receipt requested, as well as by email; 3) that Cohen then failed to cure the default within 15 days after such notice; 4) that the Pouliot bank account into which Cohen could make the payment...

Excerpt: ...ishing the existence of an arbitration agreement. The Court thus finds the evidence submitted by Defendant is sufficient to support the existence of an agreement to arbitrate as a preliminary matter under Condee. Defendant is not a signatory to the subject arbitration agreement, which appears in the Motor Vehicle Lease Agreement (the “Lease Agreement”) between Ana Bengel (“Plaintiff”) and Perry Infiniti. (See Maugeri Decl. at Ex. 3, Secti...

Excerpt: ...le, 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 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....

Excerpt: ...7/22, in a detailed ruling with which this Court concurs. For similar reasons, this Motion is also denied. The party moving for summary judgment or adjudication “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie ...

Excerpt: ... defendant, that either of the following conditions exist: (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.” (Civ. Proc. Code § 438(c)(1)(B)(i).) “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 m...

Excerpt: ...enth causes of action and SUSTAINED with 30 days leave to amend as to the second, third, fifth, sixth, seventh, eleventh, and twelfth causes of action. The motion to strike is GRANTED as to the punitive damages and attorneys' fees allegations. 1. Demurrer “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not...

Excerpt: ... 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 may no...

Excerpt: ...rden of demonstrating that the offer is a valid one under section 998. (Citation) The corollary to this rule is that a section 998 offer must be strictly construed in favor of the party sought to be subjected to its operation. (Citation)… Finally, our Supreme Court has held that the legislative purpose of section 998 is generally better served by ‘bright line rules' that can be applied to these statutory settlement offers—at least with resp...

Excerpt: ...ce limited to matters that are relevant.) Meet and Confer: CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. (CCP § 430.41.) The demurring party must file and serve a d...

Excerpt: ...ng compliance with it upon those terms or conditions as the court shall declare, including protective orders. Here, the Court finds that the subpoena should not be quashed but should be modified as to any tax records that may be within the scope of the subpoena, and that a protective order should issue, limiting the use of the materials to be produced in response. As a preliminary matter, the Motion correctly observes that for the subpoena at iss...

Excerpt: ...2.1 through 12.5 are “Investigation – General” interrogatories which ask a responding party to identify witnesses to the incident, people who were interviewed regarding the incident, written statements concerning the incident, and photographs, films, videotapes, diagrams, and/or models of the incident. These FROG are generally for personal injury actions, however Plaintiff marked box (a)(1) for the definition of “Incident,” which states...

Excerpt: ...ing text); Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 (citing text). A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party. McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119. Here, Illusions seeks summary judgment in its favor and against Plaintiff, Mischa Denton (“Pla...

Excerpt: ...1, on the request for summary judgment as to Meredith, is GRANTED. The alternative request for summary adjudication is defective here, but in any event is MOOT based on that ruling. As a preliminary matter, Plaintiff has asserted that there are multiple defects in the Motion which preclude relief here. Plaintiff first argues that Issues 2 and 3 are not each sufficient to completely dispose of a cause of action (a “COA”), defense, damages clai...

Excerpt: ...OSPITAL at the hands of Defendant ROSENBERG and that during the surgery, Defendant ORTHOWEST and ROSENBERG negligently placed a surgical screw into his left L-5 nerve root causing him permanent injury and damage to his spine and spinal nerves. Medical Negligence. The elements of a claim for “medical malpractice” are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a b...