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

Excerpt: ...be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749. “...

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

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

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

Excerpt: ...ve the court for an order compelling that answer or production.” Civ. Proc. Code § 2025.480(a). “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasona...

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

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

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

Excerpt: ... favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850, as modified (July 11, 2001). “The motion for summary judgment shall be granted ...

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

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

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

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

Excerpt: ...tories (FROG and SPROG): “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general. (b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declarati...

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

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

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

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

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

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

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

Excerpt: ...vision (b) . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (b) The following persons may make a motion...

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

Excerpt: ...es of action. MOOT as to 4th (Armin, Wess, and Wilber only) cause of action. A demurrer challenges the defects appearing 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 o...

Excerpt: ...llegations 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 FAC, 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.4...

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

Excerpt: ...nd negligent misrepresentation are SUSTAINED with leave to amend. Plaintiff must allege facts with greater specificity, such as the dates of the representations, the speakers, the manner of their communication, the location, the plaintiff's reliance thereupon, and other elements. Conclusory and general allegations are not sufficient. (See Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184; Robinson Helicopter Co., Inc. v. Dana Corp. (2004)...

Excerpt: ...e claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. (Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.) If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts ...

Excerpt: ... would produce waste, or great or irreparable injury, to a party to the action. (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual. . .” Civ. Proc. Code § 526(a). The burden is on the moving ...

Excerpt: ...the arbitration and Award are governed by the Federal Arbitration Act (“FAA”). ROA #69, Ex. B § 8; Pla. Lodging, Ex. B § 5.8. Regarding vacating or correcting the Award: “(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration-- (1) where the award was procured by corruption, fraud, or undue means;...

Excerpt: ...v. Proc. Code § 1032. Plaintiff seeks to strike the entirety of the cost bill pursuant to Gov't. Code § 12965(b), which in relevant part states: “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant...

Excerpt: ...and Priore Dec., Ex. A, see Cross-Complaint ¶ 10, 12, 17.) The Agreement has a broad arbitration provision calling for binding arbitration of all matters and disputes that relate in any way or arise out the Agreement or any resulting transaction. The argument of Defendant regarding its different understanding of the transaction, and regarding oral statements by an NPA representative, do not appear to illustrate fraud in the entry into the arbitr...

Excerpt: ...f limitations defense. (C.C.P. § 439(a); Howard Decl., ¶ 3, Ex. 1.) “A defendant may move for judgment on the pleadings on the ground that the complaint does not state facts sufficient to state a cause of action against that defendant. [Citations]. A motion for judgment on the pleadings ‘is equivalent to a demurrer and is governed by the same de novo standard of review.' [Citation]. Leave to amend ‘is properly denied if the facts and natu...

Excerpt: ...declining to take judicial notice of materials not “necessary, helpful, or relevant”].) Demurrer: Defendants' demurrer to the FAC's third cause of action for fraud on the basis of uncertainty is OVERRULED. (C.C.P. § 4301.0(f).) A demurrer on the ground of uncertainty is disfavored and should be sustained only when a complaint is so incomprehensible that a defendant cannot reasonably respond since ambiguities may be clarified in discovery. (L...

Excerpt: ...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. “In our examination of th...

Excerpt: ...n at all times to the inspection of any partner. (SAC ¶ 19-20). Defendant argues that Plaintiff hasn't properly alleged damages from any breach of this term. (SAC ¶20, 32, 33.) This is a general demurrer as noticed (See Notice of Dmrr at 2:7, citing CCP 430.10(e).) A general demurrer must be overruled if the complaint states any cause of action, under any theory. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) Here, if t...

Excerpt: ...t. As a general principle, the party resisting enforcement of an arbitration provision has the burden to establish the defenses. (See Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633.; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) Unreasonable Delay/Waiver The record does not support unreasonable delay by the Defendants in seeking to arbitrate the matter. What constitutes a reasonable time to assert the arbitra...

Excerpt: ...o meet and confer letters was without substantial justification and left Plaintiffs with virtually no choice but to file the current Motion by or on the extended motion cutoff deadline. Defendant's opposition to the current Motion, on the ground that it is somehow premature because the meet and confer process is incomplete – through some purported fault of Plaintiff by “only” sending two meet and confer letters and not receiving any respons...

Excerpt: ...the sake of example and to punish the defendant, they are proper when tortious conduct rises to levels of extreme indifference to the plaintiff's rights, which decent citizens should not have to tolerate. (See e.g. Lackner v. North (2006) 135 Cal.App.4th 1188, 1212; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894; American Airlines, Inc. v. Sheppard, Mullin, Richter & H...

Excerpt: ...aintiff to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232-1233.) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. (Id. at 1233.) “Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate tha...

Excerpt: ...property to share an identity of interest with the property-owners for purposes of seeking the statutory remedy of expungement of the recorded lis pendens. For this reason, the Court does not grant any relief to the party on the “joinder”. (See Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149) (noting that a “purported [monetary] interest does not go to legal title or possession of the subject property”); see CCP § 405.30.) ...

Excerpt: .... By way of her opposition to the demurrer, Plaintiff asserts that she will amend her 1st through 7th causes of action with respect to individual defendants and will amend her 8th cause of action with respect to entity defendants. Plaintiff also asserts that she will amend her 15th cause of action by way of eliminating the negligent training allegation therein. Plaintiff further asserts that she will “delete” her 10th, 13th, 14th, 16th, and 1...

Excerpt: ...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. “In our examination of the co...

Excerpt: ...rior Court as Family Law Case No. 18D006202 (the “Divorce Case”). (See Complaint, ¶¶ 1- 4.) Plaintiff's Complaint alleges that during their representation of Ms. Krafve, Defendants hired a paralegal, Bernadette Ratti (“Ms. Ratti”) who was previously employed by Plaintiff's counsel and who had substantively worked on Plaintiff's case and obtained confidential information regarding Plaintiff's position(s) in connection therewith. Plaintif...

Excerpt: ...431, 1438- 39.) The purpose of the requirement is to encourage the parties to work out the differences informally, to reduce the unnecessary expenditure of resources on litigation, and to reduce the burdens upon the court. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.) The particular effort required in each situation depends on the circumstances. Among the factors considered are the breadth of the discovery demands, whether there is an im...

Excerpt: ...oprietary information readily available to the public. In the alternative Intersect moves for summary adjudication on four issues which will be discussed if necessary. A. Some Procedural History Because both the moving party (Intersect) and responding party (Plaintiff) cite to Plaintiff's procedural history in the United States District Courts before filing the current action in this Court, the following procedural background is provided. On Apri...

Excerpt: ...ially certain that battery would result from his/her conduct. (CACI 1320; Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.) Here, Plaintiff has made only conclusory assertions as to MP's alleged knowledge of bedbug infestation when Plaintiff stayed there. The only actual “fact” asserted as to such knowledge is that “other guests who had stayed at the Subject Property prior to Plaintiff's stay complained to Defendant's employees specifically...

Excerpt: .... shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affid...

Excerpt: ...o be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Under Civil Code §1794(d), a prevailing buyer in a Lemon Law case to recover fees and costs, including attorney'...