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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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 the amended complaint … on grounds that could have been raised by demurrer to the earlier version of the complaint….” This demurrer, however, is the first demurrer filed by Defendant Todd Spitzer. Further, Plaintiff previously agreed to amend his complaint in response to Defendant's efforts to meet and confer in anticipation of filing a demurrer. The Court declines to overrule the demurrer on this basis. Second Cause of Action for Violat...

Excerpt: ...e court in which the action is brought. (Code Civ. Proc., § 484.010.) To obtain an RTAO, the plaintiff has the burden of proving: (1) the claim is one on which an attachment order may be issued; (2) the probable validity of the claim; and (3) that the attachment is not sought for any other purpose than to secure recovery on the claim. Evidence proffered in support of, or in opposition to, an application for an RTAO must be set forth with particu...

Excerpt: ...bers of Wilson Choe's Advisory Team are directly responsible for any harm to Moving Cross-Defendants. (Cross-Compl. ¶¶ 48-51.) California law recognizes only two basic types of indemnity: express indemnity and equitable indemnity. [Citation.]” (Prince v. Pac. Gas & Elec. Co. (2009) 45 Cal.4th 1151, 1157.) The elements of a cause of action for indemnity are: (1) a showing of fault on the part of the indemnitor; and (2) resulting damages to the...

Excerpt: ...well settled that in testing the validity of a complaint against a demurrer, courts must look exclusively to facts alleged in the complaint, ignoring contrary allegations”].) First Cause of Action for Breach of Fiduciary Duty of Loyalty: Code Civ. Proc., § 430.10 (g) provides that “In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” “ If pla...

Excerpt: ...quires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) A protective order may include directions that the deposition not be taken at all. (Code Civ. Proc., § 2025.420(b)(1).) The burden is on the party seeking the protective order to show “good cause” for whatever order is sought. (Fairmont Ins....

Excerpt: ...�It is well settled that in testing the validity of a complaint against a demurrer, courts must look exclusively to facts alleged in the complaint, ignoring contrary allegations”].) 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.) A demurrer is l...

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...

Excerpt: ... proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant 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, 850-51.) If a defendant does not meet this initial burden, the plaintiff need not o...

Excerpt: ...es that a successful action for liability of consumer reporting agency is entitled to recover “reasonable attorney's fees as determined by the court.” Plaintiffs were the prevailing parties and are entitled to recover reasonable attorney fees and costs. Lodestar Calculation: “Under the lodestar method, attorney fees are calculated by first multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate of c...

Excerpt: ...f sanctions. Plaintiffs' request for sanctions is granted. Defendant Alexandra S. Taylor shall pay sanctions in the amount of $455.00 to Plaintiffs James John Gray, III and Lisa Marie Gray within 30 days of service of notice of ruling. (Code Civ. Proc., §§ 2023.010(d), 2030.290(c).) Plaintiffs to give notice. Motion 2: Motion to Compel Responses to Form Interrogatories, Set No. One. Moving Party: Plaintiffs James John Gray, III and Lisa Marie G...

Excerpt: ... her claims, based upon the language in the Arbitration Provision of the Retail Installment Sale Contract – Simple Finance Charge (With Arbitration Provision) (“Contract”) Plaintiff allegedly signed with Stevens Creek Chrysler Jeep Dodge. (Azemoon Decl., Ex. B.) Parties moving to compel arbitration “may meet their initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the oppo...

Excerpt: ...ble estoppel, and agency. Litigants who are not parties to an arbitration agreement may invoke or be compelled to submit to arbitration under the FAA if allowed under the relevant state contract law— typically, under principles of equitable estoppel, agency or third-party beneficiary. (Arthur Andersen LLP v. Carlisle (2009) 556 U.S. 624, 632; see Murphy v. DirecTV, Inc. (9th Cir. 2013) 724 F.3d 1218, 1229-1234.) Third-Party Beneficiary. Civil C...

Excerpt: ...seeks the full names of Plaintiff's prior sexual partners. In the First Amended Complaint (FAC), Plaintiff alleges that he contracted herpes (HSV-2) from Defendant after Defendant claimed she was “free” and “clean” of any sexually transmitted diseases. Plaintiff alleges Defendant later admitted to Plaintiff that she had herpes and had been taking medication for it for years. (FAC, ¶ 12.) Critical to Defendant's defense of this case is de...

Excerpt: ...tablished the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. (Code Civ. Proc. § 484.090(a)(1)-(4).) A court may order the issuance of a writ of attachment only if the plaintiff's claim has probable validity; i.e., where it is more likel...

Excerpt: ...ing himself in pro per, a self-represented litigant is “treated like any other party and is entitled to the same ... consideration” as other litigants and attorneys, but no greater consideration. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) In resolving the merits of a demurrer, “all material facts pleaded in the complaint and those that arise by reasonable implication, but not conclusions of fact or la...

Excerpt: ...and BR Rainbow North OP, LLC were and are Nevada limited liability companies. Their principal place of business is at 940 Calle Negocio, Suite 200, San Clemente, CA 92673. Defendants Black Rock Coffee Bar LLC (BRCB) in an Oregon LLC with its principal place of business in Oregon. Defendants Jeffrey Hernandez, Jake Spellmeyer and Bryan Pereboom are residents of Oregon. Defendant Daniel Brand is a resident of Arizona. Plaintiffs alleged that Defend...

Excerpt: ...vice of notice of ruling. Civil Code section 3294(a) provides that in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant “has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” A corporate defendant may not be liable for punitive...

Excerpt: ...osts, Item No. 5: Service of Process and Item No. 15: Hosting Electronic Documents. Prevailing Party: Code Civ. Proc., § 1032 (b) provides, “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Defendants were the prevailing parties and are entitled to recover reasonable and necessary costs. (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 65...

Excerpt: ...reach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. Civ. Code § 3294(c) provides the following definitions: (1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety o...

Excerpt: ...ore of the following purposes . . . To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” Due Process: “The California Code of Civil Procedure section 410.10 provides as follows: ‘A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.' Section 410.10 authorizes California courts to exercise jurisdiction over a forei...

Excerpt: ... MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681.) “California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process.' [Citations.] ... [M]isuses of the discovery process include ‘[f]ailing to respond or to submit to an authorized method of discovery' (Code Civ. Proc., § 2023.010(d)); ‘[m]aking, without substantial justification, an unmeritorious objection to discovery' (id., § 2...

Excerpt: ...est Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Plaintiff alleges in the First Amended Complaint (FAC) that pursuant to the Renewal Agreement, Defendant agreed to provide many miscellaneous services to Plaintiff. (FAC, ¶ 34, Ex. A.) Plaintiff alleges Defendant breached the agreement by failing to open the property for the general public until June 15, 2021, by reducing its services such as removing its reception where Plaintiff's clients...

Excerpt: ...endant has demonstrated that Plaintiff Thong Pham, through his agent Plaintiff Trang Pham, executed an Arbitration Agreement which encompasses the claims asserted in this action. (¶1 and ¶3 of Khachatryan Declaration and Exhibit A thereto). Defendant has produced a Declaration from Jerry Tran, Admissions Coordinator for Defendant Garden Park Care Center. The Declaration of Mr. Tran indicates that Thong Pham affirmatively represented to Defendan...

Excerpt: ...e defined as the Covenants, Conditions and Restrictions, or CC&Rs, the Association's Bylaws, and the Rules and Regulations. (Complaint, ¶¶ 7, 16.) The Complaint alleges Defendant breached the Governing Documents by committing several violations, including adding, making, and installing unauthorized improvements on the Property without obtaining prior written approval from the Association's Architectural and Landscaping Committee. (Id., ¶ 12.) ...

Excerpt: ...Los Angeles (2021) 60 Cal.App.5th 327, 274 Cal.Rptr.3d 493, 498.) On Demurrer, Plaintiff are not required to prove the allegations. A demurrer admits “all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (San Diego Hospital Assn. v. Superior Court (1994) 30 Cal.App.4th 8, 12.) Uncertainty: “‘[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensib...

Excerpt: ...l distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' A defendant's conduct is ‘outrageous' when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.' And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.' ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.) “'Be...

Excerpt: ...riable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) The parties must set forth admissible evidence. (Code Civ. Proc., § 437c(d) [[though note: An objection based on the failure to comply with the requirements of this subdivision, if not made at the hearing, shall be deemed waiv...

Excerpt: ...ticed.” Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2021) 60 Cal.App.5th 327, 274 Cal.Rptr.3d 493, 498. On Demurrer, Plaintiff are not required to prove the allegations. A demurrer admits “all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” San Diego Hospital Assn. v. Superior Court (1994) 30 Cal.App.4th 8, 12. Request for Judicial Notice: Defendants' request for jud...

Excerpt: ...uary 14, 2020 and the default judgment entered on April 8, 2021 is granted pursuant to Code of Civil Procedure section 473.5. The Sanders Defendants shall file and serve the Answer attached as Exhibit 21 to the Declaration of Joseph L. Sanders within 15 days of service of notice of ruling. The underling case relates to John and Mabel Watcher. John learned about an investment opportunity and decided to loan money to Defendant American Bankers, LLC...

Excerpt: ...it, that the plaintiff cannot prove an element of the claim, or that the defendant 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, 850-51.) 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 defendan...

Excerpt: ...iculate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once it had been discovered.'” Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5 th 894, 911. “An order granting equitable relief from default is reviewed for an abuse of discretion. . . Under this standard, “ ‘a reviewing court shoul...

Excerpt: ...TO the AGREEMENT (with the exception of YOUR attorneys).” (Wolf Dec., ¶3, Ex. 1.) Plaintiff first contends that Moffitt waived the attorney-client privilege objection because she did not timely assert it. In her initial response, Moffitt objected to the request on the basis that the request was vague, ambiguous, overbroad, and oppressive. Moffitt also objected to the request on the basis that it sought irrelevant documents and it did not suffi...

Excerpt: ...untimely motions. Defendant Shen submits evidence showing she has continuously resided in China since 2020 and did not know of the purported service at 182 Osage, Irvine, or the 12/08 deadline to respond. (Shen Decl. ¶¶ 2-3, 6.) Shen's counsel of record mistakenly believed Defendant had a later deadline to file the motion, based on the later purported service at a separate address in Arcadia. (Niu Decl. ¶¶ 9-11.) Motions to Quash Service of S...

Excerpt: ...wing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-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 action or a defense t...

Excerpt: ... Summary Judgment and/or Summary Adjudication, continued the motion, and granted leave to the parties to file an opposition and reply. (ROA 134 [01/24/22 Minute Order].) The opposition was to be filed and served by 02/23/2022 and the reply by 03/02/2022. (Id.) Defendants gave notice of the ruling as ordered. (ROA 136 [Notice of Ruling].) Court records indicate that Plaintiff has not filed an opposition. A defendant seeking summary judgment bears ...

Excerpt: ... JNOV motion, all evidence supporting the verdict is presumed true. The issue is whether these facts constitute a prima facie case or defense as a matter of law. (Moore v. San Francisco (1970) 5 Cal.App.3d 728, 733; Fountain Valley Chateau Blanc Homeowner's Ass'n v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750; Cal. Prac. Guide Civ. Trials & Ev. Ch. 18-A ¶ 18:54.) The trial judge cannot weigh the evidence or determine the credib...

Excerpt: ...enge the propriety of these claims in this action. (See Code Civ. Proc., § 430.10.) First Cause of Action (Conspiracy to Commit Fraud), Second Cause of Action (Fraud). The demurrers to the First and Second Causes of Action are sustained with leave to amend. The elements of a civil conspiracy are: (i) formation and operation of the conspiracy; (ii) damage resulting to plaintiff; and (iii) from an act done in furtherance of the common design. (Rus...

Excerpt: ...ce is granted. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (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.) Questions of fact cannot be decide...

Excerpt: ... the status quo. Plaintiff is only seeking to maintain the status quo during the arbitration. “Code of Civil Procedure section 1281.8, subdivision (b), authorizes a party to an arbitration agreement to seek a provisional remedy in the trial court pending arbitration “but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief....” This requirement applies in addition ...

Excerpt: ... the status quo. Plaintiff is only seeking to maintain the status quo during the arbitration. “Code of Civil Procedure section 1281.8, subdivision (b), authorizes a party to an arbitration agreement to seek a provisional remedy in the trial court pending arbitration “but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief....” This requirement applies in addition ...

Excerpt: ...uck Ins. Exchange (2003) 31 Cal.4th 635, 648.) “The ordinary rules of contract interpretation apply to insurance contracts. [Citation.] To protect the interests of the insured, coverage provisions are interpreted broadly, and exclusions are interpreted narrowly.” (Stellar v. State Farm Gen. Ins. Co. (2007) 157 Cal.App.4th 1498, 1503.) Issue 1: Whether Defendant's Thirteenth Affirmative Defense, which contends that “there is no coverage for ...

Excerpt: ...� (City of San Diego v. San Diegans for Open Government (2016) 3 Cal.App.5th 568, 577.) Code Civ. Proc., § 430.10 (b) authorizes a Demurrer when “The person who filed the pleading does not have the legal capacity to sue.” First Cause of Action for Breach of Contract: “'A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (...

Excerpt: ...tablished good cause for discovery. Defendants' Request for Discovery is denied. Plaintiffs' Objections to Defendants' Evidence: All Overruled. Declaration of Michelle Hemesath, Esq. Nos, 1 to 7; Declaration of Benjamin Ikuta, Esq., Nos. 1 to 5; Declaration of Mary Carr, Nos. 1 to 13; Declaration of Dr. Robert Kachenmeister, Nos. 1 to 29; Declaration of Chalene Johnson, Nos. 1 to 35; Declaration of Jason Vance, Nos. 1 to 11; Declaration of Polly ...

Excerpt: ...take notice not only of the fact of the document and its recording or publication, but also facts that clearly derive from its legal effect.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754). (Emphasis original). The court can take judicial notice of the legal effect of the Judgment. Date of Entry of Judgment: Defendants moved to vacate the Renewal of the Judgment contending that the renewal occurred more than ten years afte...

Excerpt: ...e or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-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 action or a defense thereto.” First Cause of Action for Nuisance: Plaintiff alleged that D...

Excerpt: ....4th 993, 1020.) Attorney's fees are recoverable as costs, when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5(10)(A)-(C).) The California Uniform Trade Secrets Act (“CUTSA”) provides that if “a claim of misappropriation is made in bad faith . . . the court may award reasonable attorney's fees and costs to the prevailing party. (Civ. Code, § 3426.4.) CUTSA also allows for the recovery of expert fees. (Ibid.) CUTSA “...

Excerpt: ... the Defendants. Pursuant to CCP 473 (b), Defendants had six months or 10/16/22 to move for relief under that statute. Since the motion was filed 1/12/22, Defendants moved for relief under extrinsic mistake. Extrinsic Mistake: “To set aside a judgment based on extrinsic fraud or extrinsic mistake, the moving party must satisfy three elements: ‘First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seek...

Excerpt: ... recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) the recognition that a settlor should pay less in settlement than he would if he were found liable at trial; (5) the financial conditions and insurance policy limits of settling defendants; and (6) the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling ...

Excerpt: ...¶ 2, Ex. A.) Parties moving to compel arbitration “may meet their initial burden to show an agreement to arbitrate 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 e...

Excerpt: ...chment is based is one upon which an attachment may be issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. (Civ. Proc. Code § 484.090(a)(1)-(4).) A court may order the issuance of a writ of attac...

Excerpt: ... if any question of law or fact common to all these persons will arise in the action....” Under this provision, “the action of each plaintiff has been joined in one case, but they remain independent actions.” (Brennan v. Superior Court (1994) 30 Cal.App.4th 454, 461.) “ ‘The code section [section 378] contemplates of course an action single in form, but with each “case” or demand retaining its distinctive identity as though pleaded ...

Excerpt: ...ory. C.C.P. § 426.50 provides that “A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross- complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to ...

Excerpt: ... part: “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the Court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” This section is to be construed ...

Excerpt: ...esides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney's fees” means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section ...

Excerpt: ...laims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. A prevailing party must file and serve a memorandum of costs 15 days after receiving notice of entry of dismissal, eve...

Excerpt: ...x returns and truthful reporting of income, and thus to facilitate tax collection.” (Weingarten v. Super. Ct. (2002) 102 Cal.App.4th 268, 274.) The privilege protects personal and corporate tax returns alike. (Schnabel v. Super. Ct. (1993) 5 Cal.4th 704, 720-721; Deary v. Super. Ct. (2001) 87 Cal.App.4th 1072, 1078; see Rifkind v. Super. Ct. (1981) 123 Cal.App.3d 1045, 1048-1049, disapproved on other grounds by Schnabel, supra, 5 Cal.4th at p. ...

Excerpt: ... 5 (the ‘Nutritional Supplement Products').” Defendant responded: No. Defendant received nonconforming conforming goods, i.e., improperly manufactured gummy bears that were not consistent with defendant's existing product. Plaintiff delivered nonconforming gummy bears that were too hard, smelled bad, and tasted bad and as such were unsaleable. Defendant attempted to return the goods but plaintiff refused to accept them. Plaintiff contends thi...

Excerpt: ... has refused to arbitrate. (Code Civ. Proc., § 1281.2; Mansouri v. Sup. Ct. (Fleur Du Lac Estates Ass'n) (2010) 181 Cal.App.4th 633, 640-641.) Code of Civil Procedure section 1281.2 requires the court to order arbitration pursuant to a written agreement to arbitrate unless the court determines (1) the right to compel arbitration has been waived by the party seeking to compel arbitration, (2) grounds exist for the revocation of the agreement to a...

Excerpt: ...f's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. (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...

Excerpt: ...ut not contentions, deductions or conclusions of fact or law.” The court “also consider matters that may be judicially noticed.” (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2021) 60 Cal.App.5th 327, 274 Cal.Rptr.3d 493, 498.) On Demurrer, Plaintiff are not required to prove the allegations. A demurrer admits “all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (...

Excerpt: ...1) the claim is one on which an attachment order may be issued; (2) the probable validity of the claim; and (3) that the attachment is not sought for any other purpose than to secure recovery on the claim. Evidence proffered in support of, or in opposition to, an application for an RTAO must be set forth with particularity, admissible, competent, and under oath by declarants with personal knowledge of the facts proffered. (Code Civ. Proc., §§ 4...

Excerpt: ... The department, in consultation with the California Department of Tax and Fee Administration, shall create an electronic database containing the electronic shipping manifests to facilitate the administration of the track and trace program …” Demurrer to First Amended Petition: Respondent may demur to the Petition for Writ of Mandate to test its legal sufficiency. (SJJC Aviation Services, LLC v. City of San Jose (2017) 12 Cal.App.5th 1043, 10...

Excerpt: ...rported operative pleading, a reference to the FAC's number on the Register of Actions (ROA), or the relevant procedural history from which the court can determine whether the parties' reference to the purported FAC is in error, or if not, when the purported FAC was filed and served. Plaintiff Peng to give notice. Motion 2: Motion for Protective Order. Moving Party Plaintiff/Defendant Hui Peng. Responding Party None. Ruling 2: The Motion by for P...

Excerpt: ...er evidence at the hearing.” (Code Civ. Proc., § 877.6(b).) The statutory requirement of “good faith” presents an issue of fact, and a finding of good faith must therefore be supported by substantial evidence. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1263-1265.) If, in a contested case, “‘there is no substantial evidence to support a critical assumption as to the nature and extent of a settling defendant's l...

Excerpt: ...ving to deem No. 17 admitted. Plaintiff only served an objection. Code Civ. Proc., § 2033.240 (a) provide that “The party to whom the requests for admission are directed shall sign the response under oath, unless the response contains only objections.” (Emphasis added). “There is absolutely no reason to require a party to verify an objection.” Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657. The fact that ...

Excerpt: ...he Court issued an Order granting Defendants' unopposed motions to compel responses to the first set of form interrogatories, special interrogatories and request for production of documents. (ROA No. 61.) Plaintiff appears to have complied with the Court's order to serve responses. On May 26, 2021, Defendants filed a motion to compel Plaintiff's deposition. Only after the motion to compel deposition was served, Plaintiff's counsel indicated Plain...

Excerpt: ...adings, 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 Indus., Inc. (2012) 205 Cal.App.4th 1103, 1111.) According to the operative complaint, all defendants are co-beneficiaries of the family trust, which holds title to several properties, including the subject property located at 6573 Mount Ripley Dr., Buena Park, Ca...

Excerpt: ... to amend. (Code Civ. Proc., 430.10.) First Cause of Action (Breach of Contract). The demurrer to the First Cause of Action is sustained with leave to amend. 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.4th 811.) Absen...

Excerpt: ...e plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others” and “[o]ppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” Civil Code section 3295(a)(1) and (c) preclude a plaintiff from conducting pretrial discovery to obtain evidence of financial condition to support a puniti...

Excerpt: ...er is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment.” Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852. Factual Allegations: In the Cross-Complaint, Miguel Chavez alleged that he loaned $60,000.00 to Cross-Defendants. The agreement was that ...

Excerpt: ...e. (People v. Lim (1941) 18 Cal. 2d 872, 883.) “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.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4 th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief....

Excerpt: ...ressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1...

Excerpt: ...) 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, Eighth and Tenth Causes of Action for Disability Discrimination, Retaliation, Violation of CFRA, and Wrongful Termination The California Supreme Court has held that “[r]equiring a ...

Excerpt: ...he party contesting them to show that they were not reasonable or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4 th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4 th 765, 773- 74.) The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. (Seever v. Copley Pr...

Excerpt: ...10.) “When a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove . . . the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413, [internal quotes omitted]; see Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.) The burden is generally on the plaintiff to demonstrate by a preponderance of the evidence that all juris...

Excerpt: ...ed admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thi...