Excerpt: ...rms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” “A court ruling on a motion under CCP § 664.6 must determine whether the parties entered into a valid and binding settlement. A settlement is enforceable under section 664.6 only if the parties agreed to all material settlement terms. The court ruling on a ...

Excerpt: ...been guilty of oppression, fraud, or malice. Under section 3294(c), “[m]alice 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 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...

Excerpt: ...ed. The existence and legal effect of documents in a court file are subject to judicial notice under Evid. Code §452(d). The truth of matters stated in those documents is not, however. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal. App. 4th 987, 881-87) (and cases cited there) (overruling sustaining of demurrer on statute of limitations ground for improper judicial notice of fact stated in court of appeal opinion...

Excerpt: ... (Code Civ. Proc., § 1211(a).) The elements of contempt include: (1) a valid order, (2) knowledge of the order, (3) ability to comply with the order, and (4) willful failure to comply with the order. [Citations.]' ” (Wanke, Industrial, Commercial, Residential, Inc. v. Keck (2012) 209 Cal.App.4th 1151, 1168.) Here, Plaintiffs fail to show Defendants willfully violated this court's 06/14/2021 order. There was a notice of automatic bankruptcy sta...

Excerpt: ...e legal sufficiency of factual allegations in a complaint.” A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) “Because a demurrer tests only the legal sufficiency of the pleading, the facts alleged in the pleading are deemed to be true. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1190 [citation omitted]...

Excerpt: ...roposed FAC and states the claim to be added. The previous Motion did state exactly what allegations are proposed to be added to the previous pleading and where, by page, paragraph, and line number, the additional allegations are located. The Plaintiff has sufficiently addressed this defect, identifying the new allegations to be located at FAC ¶¶ 49-52. The declaration specifies why the amendment is necessary, and the effect of the amendment is...

Excerpt: ...ides that “Where a motion is granted pursuant to this section with leave to file an amended complaint or answer, as the case may be, then the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint or answer, as the case may be.” “‘The motion for judgment on the pleadings performs the function of a general demurrer. Therefore, it “‘admits all material and issuable facts pleaded.' . . . I...

Excerpt: ...�� and its legal effect is the same as a demurrer or motion for judgment on the pleadings. (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.) If the court concludes that the complaint or any claim therein is insufficient as a matter of law, it “may elect to treat the hearing of a summary judgment motion as a motion for judgment on the pleadings and grant the opposing party an opportunity to file an amended compla...

Excerpt: ...he order may, within ten days after service on the party of written notice of entry of the order and based on new or different facts, circumstances, or law, apply to the judge or court that made the order to reconsider the matter and modify, amend, or revoke the prior order. (Code Civ. Proc., § 1008(a).) On December 23, 2020, Plaintiff John Nord filed a motion to compel Defendant Assisting Hands Home Care of N.B., Inc. to provide further respons...

Excerpt: ...996) 14 Cal.4th 434, 444.) Due process requires that a defendant have certain minimum contacts with the forum state such that exercising jurisdiction does not offend “traditional notions of fair play and substantial justice.” (International Shoe Co. v. Washington (1945) 326 U.S. 310, 316.) This ensures that a defendant has “fair warning” of possibly being subjected to jurisdiction in the forum state. (Anglo Irish Bank Corp., PLC v. Superi...

Excerpt: ...se declarations were filed after the Reply. The general rule of motion practice is that court will not consider late evidence. Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537. This case presents a complex fact pattern. After Plaintiff Stephany Zamora invested $100,000 in a record label and band, she filed this action to recover this sum. This suit is complicated by Plaintiff's adult daughter's involvement in the band. Defendant Vanessa Carlisle...

Excerpt: ...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, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys' fees in addition to other costs. (See also Code Civ. Proc., § 1033.5(a)(10)(A).) Reasonable attorneys' fees shall be fixed by the court and shall be an element of the costs of...

Excerpt: ...nitial 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 a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrat...

Excerpt: .... (Herman Feil, Inc. v. Design Ctr. of Los Angeles (1988) 204 Cal.App.3d 1406, 1414; see Air Line Pilots Ass'n v. Miller (1988) 523 U.S. 866, 876.) Both state and federal law provide for enforcement of arbitration agreements. (Code Civ. Proc., §§ 1280 et seq.; 9 U.S.C. §§ 1 et seq.) Here, it is undisputed that the Federal Arbitration Act (“FAA”) applies. A petition to compel arbitration must show: (1) the existence of a dispute between th...

Excerpt: ...mplete 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 Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demons...

Excerpt: ...laint. Fitness International's motion is denied as to Issue Nos. 2 and 3. Civil Code section 2778 provides: “In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears.” Subdivision (3) states: “An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in go...

Excerpt: ...rty at trial. The Complaint requested $63,146.00. A judgment for $56,340.00 was returned. “When a party obtains a ‘simple, unqualified win' by completely prevailing on, or defeating, the contract claims in the action and the contract contains a provision for attorney's fees, the successful party is entitled to attorney's fees as a matter of right, eliminating the trial court's discretion to deny fees under [Civil Code] section 1717.” Silver...

Excerpt: ...t leave to amend. Defendants Select Portfolio Servicing & Deutsche Bank's Motion to Strike is moot considering the rulings on the Demurrers. Requests for Judicial Notice: Defendants' Request for Judicial Notice are granted. Pursuant to Evid. Code, § 451 and 452, the court may take judicial notice of certain documents. Defendants' Request for Judicial Notice is granted. Under Evid. Code, § 452 (d), the court may take judicial notice of records o...

Excerpt: ... properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the mat...

Excerpt: ...dure section 378 permits joinder of plaintiffs if they assert any right to relief “arising out of the same transaction, occurrence, or series of transactions or occurrences and 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...

Excerpt: ...ved Defendant with the special interrogatories (set one). Defendant has not served any responses. Given Defendants' failure to respond to Plaintiff's Special Interrogatories, Set One, Plaintiff is entitled to an order compelling response without objection. (Code Civ. Proc. § 2030.290.) Defendant is ordered to serve responses without objections within 20 days of this ruling. Defendant is ordered to pay sanctions of $360 to Plaintiff within 20 day...

Excerpt: ...ion agreement between the parties that covers the controversy or claims at issue. (Lifescan, Inc. v. Premier Diabetic Servs., Inc. (9th Cir. 2004) 365 F.3d 1010, 1012; see also Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 83-85.) “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.�...

Excerpt: ...., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. C...

Excerpt: ..., 527; O'Connell v. Superior Court (2006), 141 Cal.App.4th 1452, 1481.) Plaintiff contends that is likely to prevail on the merits of its breach of contract claim. “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th...

Excerpt: ...or Neglect (Pursuant to Welfare and Institutions Code section 15600, et. seq.) Defendants contend that the Fourth Amended Complaint fails to allege facts to show that Defendants had a custodial relationship with the decedent. In order to allege “neglect” or “abuse” under the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”, Welf. & Inst.C. § 15600 et seq.), plaintiff must begin by alleging that the defendant had “car...