Excerpt: ...t page 16 of Plaintiff's opposition brief. Code of Civil Procedure Section 2025.450(a) provides that if a party witness fails to appear, without having served a valid objection, the noticing party may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. On 05/12/2022, Moving Defendant served ...

Excerpt: ... by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060.) If the opposing party challenges the validity of that signature, however, the moving party must “establish by a preponderance of the evidence that the signature was authentic.” (Ibid.) Here, Plaintiffs challenge the authenticity of the RISC submitte...

Excerpt: ...g reasons, WDPR's unopposed motion is GRANTED. Contempt proceedings for indirect contempt (contempt that does not occur in the presence of the court) are commenced by filing and serving an affidavit showing the facts necessary to establish contempt. (Code Civ. Proc., § 1211(a).) “ ‘ “The affidavit is in effect a complaint, frames the issues before the court and is a jurisdictional prerequisite to the court's power to punish.” ‘ ” (Ko...

Excerpt: ... Defendant is: 1 Bonanza Court, Pomona, CA 91766 (ROA Nos. 11 and 44); however, Notice of the Continuance was served on 1 Bonanza Ct. Pomona, CA 92766. (ROA No. 46). Per Moghaddam v. Bone (2006) 142 Cal.App.4th 283, “…service of papers to an incorrect address is not acceptable notice.” (Id. at 288). Indeed, identical to the instant circumstances, the error in service at issue in Moghaddam was an incorrect zip code. (Id.). “In the absence ...

Excerpt: ...ative fault.”  Burden of Proof: The law concerning good faith settlements is based on “a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial.” (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.) Therefore, burden of proof concerning whether a settlement was entered into good faith is on the opposing party. Defendant failed to file an Opposition to this motion...

Excerpt: ...llowable as costs under Section 1032. Under Civil Code §1717(a), in any action on a contract where the contract specifically provides that attorney's fees and costs incurred to enforce that contract shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, is entitled to reasonable attorney's fees in addition to other costs. Under §1717(b)(1), the court...

Excerpt: ... disability discrimination; (2) disability retaliation; (3) failure to prevent discrimination, harassment, retaliation; (4) intentional infliction of emotional distress; (5) failure to engage in good faith interactive process; (6) failure to provide reasonable accommodations; (7) failure to provide employment records; (8) violation of California Family Rights Act; (9) unfair business practices; and (10) constructive/wrongful termination. The FAC ...

Excerpt: ...rms the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Cloud v. Northrop (1998) 67 Cal.App.4th 995, 999). In determining a motion for judgment on the pleadings, the court must accept as true all material facts alleged in the challenged pleading. (Hardy v. America's Best Home Loans (2014) 232 Cal.App.4th 795, 802; Bettencourt v. Hennessy Indu...

Excerpt: ... 156 to 201. Special Interrogatories is the appropriate discovery methods to seek facts, witnesses and documents related to contention interrogatories. Legal contention questions are “entirely appropriate for interrogatories, are not proper in the deposition of a party who is represented by counsel.” (Rifkind v. Superior Court (1994) 22 Cal. App. 4th 1255, 1263.) Contrary to Plaintiff's suggestion, a deposition is not a substitute for respons...

Excerpt: ...leave to amend as to Defendant Jack Ray, and OVERRULED as to Defendant Buena Park Elks Lodge No. 2046 of the Benevolent and Protective Order of the Elks (the “Defendant Elks Lodge”). These causes of action are based on an alleged tenancy created by contract. The Complaint alleges that “[i]n or about 2013, Defendant Elks Lodge agreed by oral agreement to rent 7212 Melrose Street Space #6, Buena Park . . . to Plaintiff and his mother, which i...

Excerpt: ...ge whether the vehicle failed to conform with the express warranty or the implied warranty or which warranty term was breached. Statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) The first cause of action is for violation of Civ. Code § 1793.2(d), which requires a manufacturer to “service or repair the Vehicle to conform to the applicable express warranties after a...

Excerpt: ...and SUSTAINED in part without leave to amend. (Code Civ. Proc., 430.10.) First Cause of Action (Breach of Contract). The demurrer to the First Cause of Action is overruled. The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff's performance or excuse for nonperformance; (iii) Defendant's breach; and (iv) damage to plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal....

Excerpt: ...essary to support issuance of a preliminary injunction.” (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) “'In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defe...

Excerpt: ...weighs the foreseeable harm or hardship to the plaintiff if the relief is granted. (Code Civ. Proc. §§ 526, 527; O'Connell v. Superior Court (2006), 141 Cal.App.4th 1452, 1481.) Plaintiffs contend they are entitled to a preliminary injunction because they are likely to prevail on their claim for undue influence upon elderly person. “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overc...

Excerpt: ...arm or hardship to the plaintiff if the relief is granted. (Code Civ. Proc. §§ 526, 527; O'Connell v. Superior Court (2006), 141 Cal.App.4th 1452, 1481.) Plaintiff contends it is entitled to a preliminary injunction because it is likely to prevail on the conversion claim asserted in the Complaint. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wro...

Excerpt: ...ubrogation action stems from an underlying action by neighbors Talya Nevo-Hacohen and William Schenker (the “Neighbors”), who owned the real property adjacent to the Subject Property. (UMF 5.) The Neighbors had filed suit against the Horowitzes (the “Insureds”) based on alleged damage to the retaining wall between the two properties and alleged nuisances and trespasses due to the constructive activities (the “Underlying Action”). (UMF...

Excerpt: ... embarrassment, oppression, or undue burden and expense. (Code Civ. Proc., §§ 2025.420, 2019.030 [containing a nonexclusive list of possible directions a court may include in a protective order].) In general, the burden of establishing good cause for issuance of a protective order denying or limiting interrogatory discovery falls on the shoulders of the party seeking protection. (Coriell v. Superior Court (1974) 39 Cal. App. 3d 487, 492.) PMQ C...

Excerpt: ...ars of litigation and one month before the upcoming trial. Civ. Code, § 1717 (b) (2) provides that “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” The Supreme Court construed Civ. Code, § 1717 (b) (2) “as overriding or nullifying conflicting contractual provisions, such as provisions expressly allowing recovery of attorney ...

Excerpt: ...endant verified her discovery responses. Unverified interrogatory answers are tantamount to no answers at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.). Due to Defendant's failure to serve timely responses to the interrogatories, Defendant has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the prote...

Excerpt: ...discretion that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” The legislative history behind this sub-section helps explain its broad remedial purpose: “This bill … would provide needed statutory authority for a court to refer discovery matters to referees and thus free judges i...

Excerpt: ...moving party is entitled to judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as ...

Excerpt: ...1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) First, Second, Sixth and Eighth Causes of Action for Disability Discrimination, Retaliation, Violation of CFRA, and Wrongful Termination The California Supreme Court has he...

Excerpt: ...Promissory fraud' is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638 [finding allegations established the elements of promissory fraud based on promises related to future employment].) The elemen...

Excerpt: ...ading is so incomprehensible that a defendant cannot reasonably respond.'. . . ‘A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.'” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) The Complaint is adequately plead to survive a Demurrer for uncertainty. First Cause of Action for Fraud b...

Excerpt: ... of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) On March 25, 2020, Plaintiff presented to Dr. Michael Fitzpatrick with complaints of frequent shoulder dislocations over the last 15 years. She indicated to Dr. Fitzpatrick it was very difficult for her to raise her children with her shoulder disloc...