Excerpt: ...nation, “the party shall obtain leave of court.” Cal. Civ. Proc. Code § 2032.310(a). A motion for an examination under section 2032.310(a) “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of any of the person or persons who will perform the examination.” Id. § 2032.310(b). The court shall grant the motion for a physical or mental examination under section...

Excerpt: ...bears the burden of persuasion and burden of 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. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not mee...

Excerpt: ...n is simply a suit in equity seeking specific performance of that contract. Little v. Pullman (2013) 219 Cal.App.4 th 558, 565. The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Id. In these summary proceedings, the trial court sits as a tr...

Excerpt: ...erefore unnecessary to the litigation. For the following reasons, M.D.A.'s motion is denied. A prevailing party is usually entitled as a matter of right to recover costs in any action or proceeding. Cal. Civ. Proc. Code § 1032(b). If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable...

Excerpt: ...tlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. Cal. Civ. Proc. Code § 664.6. Defendant contends that Plaintiffs and Defendant entered into a valid and binding settlement agreement before the court on February 25, 2019. In ruling on a motion to enter judgment pursuant to section 664.6, the trial court acts as a trier of fact. Kohn v. Jaymar- Ruby, Inc. (1994) 23 Cal.App.4 ...

Excerpt: ...ommitted misconduct by allegedly relating personal experience during deliberations. See Cal. Civ. Proc. Code § 657(1), (2). Plaintiff also argues that the jury awarded inadequate damages, that the evidence was insufficient to justify the jury's comparative fault finding, and that the verdict was against the law. Seeid. § 657(5), (6). For the following reasons, Plaintiff's motion is denied. Irregularity in Proceedings (Cal. Civ. Proc. Code § 65...

Excerpt: ...” The court's discretion will usually be exercised liberally to permit amendment of the pleadings. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428. Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, this policy should be applied only where no prejudice is shown to the adverse party. Atkinson v. Elk Corp. (2003) 109 ...

Excerpt: ...leading, 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.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. 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...

Excerpt: ...ia Code of Civil Procedure § 2030.220(a) states that “[e]ach answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” “[P]arties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783. “A party may not deliberately m...

Excerpt: ...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.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a c...

Excerpt: ...ense and hardship, and courts carefully weigh the propriety of such an appointment in exercising their discretion to appoint a receiver. Hoover v. Galbraith (1972) 7 Cal.3d 519, 528. The “provisional remedy of receivership is utilized sparingly and only upon a compelling showing of need” for the receiver. IFS Indus., Inc. v. Stephens (1984) 159 Cal.App.3d 740, 756. A court may appoint a receiver only on a ground specified by statute. Marsch v...

Excerpt: ...e likelihood that the party seeking the injunction will ultimately prevail on the merits of its claim and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance and nonissuance of the injunction. Fleishman v. Superior Ct. (2002) 102 Cal.App. 4 th 350, 355-56. The moving party bears the burden of presenting facts establishing the requisite reasonable probability of prevailing on the merits of its claims. Id. at 356....

Excerpt: ...as a substantial interest in the action as a whole and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. Section 36(d) states that, “[i]n its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial med...

Excerpt: ... the following reasons, Plaintiffs' motion is granted. Section 473(b) states that the court may “upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after th...

Excerpt: .... 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.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Be...

Excerpt: ...ons, Defendants' demurrer is overruled. 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.4 th 1395, 1404-05. Questions of ...

Excerpt: ... 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.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests ...

Excerpt: ...ffs' premature filing. The court thus addresses the motion on the merits. See Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4 th 1077, 1986. Plaintiffs' motion is not a motion for reconsideration pursuant to California Civil Procedure Code § 1008. Judge Chaffee's order denying Plaintiffs' prior motion for attorneys' fees and costs was expressly without prejudice. See 01/11/19 Order. Plaintiffs are the prevailing partie...

Excerpt: ...d under California Civil Procedure Code § 581, the trial court lacks jurisdiction to act further other than to award costs and attorney fees. Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 268. Exceptions may apply, however. One such exception is post-judgment sanctions. As the court in Frank Annino & Sons Construction, Inc. v. McArthur Restaurants, Inc.(1989) 215 Cal.App.3d 353 stated “there is no basis in logic or public policy to...

Excerpt: ...ums ICW paid in workers' compensation payments to Cortez. ICW moves in limine to preclude Agar from presenting a defense of comparative negligence on the part of Cortez. For the following reasons, both motions are denied. ICW is the workers' compensation insurer for Cortez's employer at the time of the incident. ICW intervened in the lawsuit to seek reimbursement of its expenditures for medical and disability payments to Cortez. Cortez settled wi...

Excerpt: ... waiver by the commissioner as to matters that are not covered claims, be stayed for 60 days from the date that an order of liquidation or an order of receivership with a finding of insolvency has been entered by a superior court in this state or by a court in the state of domicile of the insurer, and an additional time thereafter as may be determined necessary by the court to permit proper defense or conduct of all pending causes of action by th...

Excerpt: ... is granted. Due to Plaintiff's failure to serve a response to the interrogatory, Plaintiff 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 protection for work product . . . .” Cal. Civ. Proc. Code § 2030.290(a). Plaintiff shall provide a response, without objections, to Defendant's Supplemental Special Inter...

Excerpt: ...laintiff did not file a meet and confer declaration with his motion nor does his motion otherwise reflect any attempt to resolve the issues presented by the motion informally before Plaintiff filed it. A motion to compel further responses to interrogatories must also be accompanied by a separate statement in support of the motion. Cal. R. Ct. 3.1345. Plaintiff did not file a separate statement in support of his motion. As a result, the court cann...

Excerpt: ...gatories (Set Two), and Special Interrogatories (Set Three). California Civil Procedure Code § 2023.030(d)(4) states that the court may impose a terminating sanction by means of, inter alia, an order rendering a judgment by default. Disobeying a court order to provide discovery is a misuse of the discovery process. Cal. Civ. Proc. Code § 2023.010(g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516. A trial court should consider both the...

Excerpt: ...econd order addressing these issues. The court incorporates its prior detailed order here and will not repeat the relevant factual background. See 01/24/19 Order. For all privileges other than the official information privilege, the identity-of-informer privilege, the trade secret privilege, and the attorney work product privilege, the court may not require disclosure of information claimed to be privileged to rule on whether the claim is valid. ...