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