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: ...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: ...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: ...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: ...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: ...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: ...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...

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: ... 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: ...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: ...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...