Excerpt: ...egations 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 they may be reasonably inferred from th...

Excerpt: ...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 meet this initial burden, the plaintiff need not oppose t...

Excerpt: ...ns 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 they may be reasonably inferred from the matt...

Excerpt: ...rt 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. Berryman v. Merit Prop. Mgmt., In...

Excerpt: ...emails and files on the computer. In a November 7, 2019 order, the court scheduled the petition for hearing on February 20, 2020 and directed Petitioner, inter alia, to file his opening brief in support of the petition by December 23, 2019 and to file his reply by February 4, 2020. Petitioner did not file either an opening brief or a reply. There are a “Memorandum of Points and Authorities in support of Petition for Writ of Mandate,” two decl...

Excerpt: ... 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 they may be reasonably infe...

Excerpt: .... 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 only the sufficien...

Excerpt: ...985) 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 only the sufficiency of the c...

Excerpt: ...ined in part and overruled in part. 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 fac...

Excerpt: ...10.00. Defendants did not file oppositions. For the following reasons, Plaintiff Brian Sax's application against Convergence is granted in the amount of $912,630.68; Plaintiff Brian Sax's application against T. Hirou is granted in the amount of $665,327.00; and Plaintiff Elliot Sax's application against Convergence is granted in the amount of $50,000.00. Plaintiffs' applications are denied in all other respects. A court shall issue a right to att...

Excerpt: ...e 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. Cal. Civ. Proc. Code § 484.090(a)(1)-(4). If an action is against a defendant who is natural person, an attachment may be issued only on a claim which arises out of the conduct by the def...

Excerpt: ...fourth cause of action alleges trespass. This is a new cause of action that did not appear in Plaintiff's Complaint. Defendant correctly argues that following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4 th 1018, 1023. A plaintiff may not amend a complaint to a...

Excerpt: ... motion is denied. Special Interrogatories Nos. 48 through 55 seek (i) the identities (defined as names, last known residence and employment addresses, and telephone numbers) of each resident of Defendant's skilled nursing facility during the approximately three weeks (see Brief at 4:14- 16) Plaintiff resided at the facility; (ii) the identities of each “responsible party” (defined in a lengthy definition set forth in the interrogatories, and...

Excerpt: ...th, that are frivolous or solely intended to cause unnecessary delay.” To warrant sanctions under section 128.7(b)(1), a paper presented to the court must be presented “primarily” for an improper purpose. Cal. Civ. Proc. Code, § 128.7(b)(1). Sanctions may be imposed pursuant to section 128.7(b)(2) if a paper contains a claim, defense, or other legal contention that is not warranted by existing law or by nonfrivolous argument for the extens...

Excerpt: ...s notice of motion for sanctions pursuant to section 128.7. Alliance appears to concede that the notice of motion served on October 28, 2019 did not contain a hearing date, ostensibly because Alliance could not reserve a hearing date more than 24 hours in advance, but the statute requires a 21-day safe harbor period. See Salisian Supp. Decl. ¶¶ 13-16. Alliance does not address why this issue could not have been raised with the court or court st...

Excerpt: ... 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 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 b...

Excerpt: ...on in a Services and License Agreement (SLA) between Polaroid Mobile, LLC (PLM) and GRBA. In a May 30, 2019 order, the court denied PLM's preliminary injunction motion seeking to enjoin GRBA from pursuing its claims against PLM in a pending arbitration before the American Arbitration Association (AAA). See OCSC Case No. 2019-01061625, 05/30/19 Order. This case has been deemed related to Case No. 2019-01061625. Plaintiff's Managing Member and PLM'...

Excerpt: ...emonstrating 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 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...

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. Magpali v. Farmers Group, Inc. (199...

Excerpt: ...rer 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 court will not consi...

Excerpt: ...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 meet this initial burde...

Excerpt: ...ates, Series 2007-HY5 and Select Portfolio Servicing, Inc. demur to Plaintiff Belinda Lee Cook's Complaint. Plaintiff did not file an opposition. For the following reasons, Defendant's demurrer is sustained without leave to amend. 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 pleadi...

Excerpt: ...ode § 2023.010(g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516. A trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should attempt to tailor the sanction to the harm caused by the withheld discovery. Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992. The discovery statutes evince an incremental approach to discovery sanctions, starting...

Excerpt: .... 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 trier of fact, weighing all the affidavits, declarations, and other documentary eviden...

Excerpt: ...ing and/or retention claims. For the following reasons, Defendants' motion is denied. A defendant seeking summary judgment 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. ...

Excerpt: ...llenges 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 court will not consider fac...

Excerpt: ...s-complaint on Defendant's behalf. Defendant's counsel subsequently filed a motion to be relieved as counsel, which the court granted on June 6, 2019. In its June 6, 2019 order, the court explained that Defendant, a limited liability company, could not represent itself and ordered Defendant to obtain counsel by July 8, 2019. See 06/06/19 Order. No attorney has filed an appearance on Defendant's behalf. Plaintiff argues that Defendant's counsel's ...

Excerpt: ...den 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 meet this initial burden, the plaintiff n...

Excerpt: ...ndar cannot accommodate eight unscheduled motions on its August 29, 2019 law and motion calendar. Accordingly, as the court did with Defendant's prior similar motion, see 07/18/19 Order, the court will construe Defendant's motion as a motion to compel compliance with its subpoena to one of the nine subpoenas, i.e., the subpoena to US Healthworks Medical Center. Defendant's motion to compel compliance with the eight other subpoenas listed in Defen...

Excerpt: ...nce 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 meet this initial burden, the plaintiff need not oppose the motion and the motion mus...

Excerpt: ...tained 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. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a de...

Excerpt: ...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 they may be reasonably inferr...

Excerpt: ... 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 only the su...

Excerpt: ...im 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 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. I...

Excerpt: ....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 trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimon...

Excerpt: ... 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 2032.310 only for good cause sho...

Excerpt: ...ept 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. Berryman v. Merit Prop. Mgmt., Inc. (2007) 15...

Excerpt: ... alsoCal. Civ. Code § 1794(d). 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 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 th765, 773- 74. The party challenging...

Excerpt: ... this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. If the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commenc...

Excerpt: ...roof 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 meet this initial burden, the plaintiff need not ...

Excerpt: ...mployment-based causes of action. On November 3, 2017, Plaintiff dismissed the second, third and fourth causes of action. On September 13, 2018, the court granted Ronald Zambrano and Carlin & Buchsbaum, LLP's motion to be relieved as counsel. On April 17, 2019, Plaintiff dismissed his case. Sanctions Defendant argues that the court should sanction Plaintiff and his former counsel because (i) Plaintiff lacked evidence demonstrating that Cecilio de...

Excerpt: ...cretion will usually be exercised liberally to permit amendment of the pleadings. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Id. No party has identified any prejudice from amendment. Plaintiffs' motion is therefore granted. Plaintiffs are ordered to file and serve the Second Amended Complaint attached to the ...

Excerpt: ...llegations 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 they may be reasonably inferred from t...

Excerpt: ...which the attachment 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. Cal. Civ. Proc. Code § 484.090(a)(1)-(4). A court may order the issuance o...

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: ...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: ...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: ...” 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: ...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: ...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: ...ched to a foundation, the mobile home or manufactured home remains personal property and any security interest in such property is foreclosed pursuant to the California Commercial Code, as modified by the purchase money security interest principles applicable to mobile homes and manufactured homes. SeeCal. Health & Safety Code §§ 18075, 18075.6 & 18551(a). Defendant also argues that Plaintiff must first sell the mobile home, perfect title, serv...

Excerpt: ...verred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint'” subject to demurrer) (citation omitted). Conclusory allegations of defenses that do not apply to a plaintiff's claim are also subject to demurrer. See id. (conclusory allegation that plaintiff's claim barred by laches, where that equitable defense did not apply to plaintiff's claim, subject to demurrer); see also Quan...

Excerpt: ...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 trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony r...

Excerpt: ...Ret.)) dismissed this case on November 2, 2017. If requested by the parties, a trial court may retain jurisdiction over the parties to enforce a settlement until performance in full of the terms of the settlement. Cal. Civ. Proc. Code § 664.6. “Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” Mesa RHF Partners, L.P. v....

Excerpt: ...g evidence that Defendant's employee(s) acted with recklessness or malice. The jury returned a verdict for Plaintiff Underwood on her negligence cause of action and for Plaintiff Swalve on her wrongful death cause of action. The jury awarded Plaintiff Underwood $600,000 on her elder abuse claim and $49,308.73 on her negligence claim. The jury awarded Plaintiff Swalve $750,000 on her wrongful death claim. The elder abuse and wrongful death awards ...

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: ...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: ...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: ...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: ... 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: ...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: ...ff incurred $165,619.00 in attorneys' fees, Muse-Fisher Supp. Decl. ¶¶ 5, 6, 7 & 8, and that the invoices reflecting the fees incurred are attached to the Muse-Fisher Supplemental Declaration as Exhibits A and B. This order addresses only the amount of fees to be awarded. All other issues raised by Plaintiff's motion were addressed in the court's April 18, 2019 order, which should be read together with this order. On August 30, 2018, the court ...

Excerpt: ...he following reasons, Defendants' demurrer is sustained with leave to amend. 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....

Excerpt: ...ourt 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. Berryman v. Merit Prop. Mgmt., I...

Excerpt: ...pt 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. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152...

Excerpt: ...l from introducing evidence regarding any bodily injuries, medical provider(s), medical treatment(s) or other damages related thereto that Plaintiff has not disclosed in discovery as of the date of this order. For the following reasons, Defendant's motion is granted in part and denied in part. The court issued an order on November 15, 2018 directing Plaintiff Susan Firooz to provide complete and responsive further responses to Form Interrogatory ...

Excerpt: ...rty-two days before the May 20, 2019 trial date. The court granted Defendants' ex parte application to advance the hearing on this motion to enable it to be heard before trial. The court's order granting Defendants' ex parte application states that the May 20, 2019 trial date remains, as does the court's order following the parties' unsuccessful Mandatory Settlement Conference. See 04/19/19 Order & 04/26/19 Order. A motion for judgment on the ple...

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

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: ...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: ... 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: ... 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: ...iling party is usually entitled as a matter of right to recover costs in any action or proceeding. Cal. Civ. Proc. Code § 1032(b); see alsoCal. Civ. Code § 1794(d). 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 or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2...

Excerpt: ...act. 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 trier of fact, weighing all the affidavits, declarations, and other docum...

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.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 c...

Excerpt: ...ot repeat that analysis here. As explained in detail in the September 27, 2018 order, the California Uniform Trade Secrets Act (CUTSA) displaced the first, third, fourth and sixth causes of action in Plaintiff's Complaint. Plaintiff's FAC has not changed the allegations material to the analysis in the court's September 27, 2018 order. The gravamen of Plaintiff's FAC remains trade secret misappropriation. Each of Plaintiff's causes of action alleg...

Excerpt: ...greement clause in Plaintiff's employment agreement with Defendant. Amezcua-Moll Decl. (01/16/19) ¶¶ 2-4 & Exs. A & B. Paragraph 12.11 of the agreement, entitled “Governing Law; Jurisdiction; and Venue,” states: This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflict of law. In the event of a dispute arising out of or relating to this Agreement, the p...

Excerpt: ...subpoena. The letters appear to be letters sent from a medical provider to Defendant Katherine Beisel. See Queen Decl. Ex. A (attachments). Plaintiff's subpoena seeks documents protected by Defendant's right to privacy. Manela v. Superior Ct. (2009) 177 Cal.App.4 th 1139, 1150 (“There is no question that medical records are highly sensitive materials that fall within the scope of the right to privacy.”). Plaintiff has not identified counterva...

Excerpt: ...efendant argues that the jury's $49,308.73 verdict in favor of Plaintiff Underwood on her negligence cause of action should be reduced by the amount set forth in Defendant's sealed brief to account for Plaintiffs' settlement with Defendant Spring Valley Post Acute Skilled Nursing Center. Third, Defendant argues that Plaintiffs are not entitled to prejudgment interest on attorneys' fees and costs. For the following reasons, the court sustains Defe...

Excerpt: ... Defendant's arbitration agreement with Plaintiff. The arbitration agreement states that “[t]his Agreement and the arbitration shall be governed by the Federal Arbitration Act.” Id. (¶ 5). The agreement also states: 8. Authority to Resolve Disputes Regarding This Agreement. Except as set forth in this paragraph, or by the written mutual agreement of the parties, the arbitrator, and not any court, shall have exclusive authority to resolve any...

Excerpt: ...d several days of work to attend doctor's appointments related to the subject accident. Opp. at 5:19-26; id. at 7:26- 8:2. Defendant correctly states that those topics are relevant to the case. Defendant's statement also, however, demonstrates that the subpoena is overbroad. The subpoena is limited as follows: All documents and other records for the period August 25, 2016 to April 30, 2018 relating to any claims by Betty Duenas (DOB 06/25/1981) o...

Excerpt: ... individuals. Defendants oppose Plaintiff's motion. The individuals have not filed oppositions. For the following reasons, Plaintiff's motion is granted. Plaintiff served subpoenas on the four individuals seeking production of a copy of each person's settlement agreement with Defendants and testimony about “[t]he claims, damages, and terms of [each] settlement.” See Liu Decl. Exs. I-L. In response, the individuals objected to the subpoenas on...

Excerpt: ...nc.'s First Amended Complaint (“FAC”). Defendant Mark Artukovich (“Artukovich”) moves for summary judgment of the same causes of action against him. Neither VAS nor Artukovich moves for summary adjudication of any issues or claims. For the following reasons, VAS's motion is denied and Artukovich's motion is denied. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to...

Excerpt: ...ruth 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 they may be reaso...

Excerpt: ...1794(d). 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 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 th765, 773- 74. The party challenging costs does not meet th...

Excerpt: ...sponding 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 misconstrue a question for the purpose of supplying an evasive answer.” Id. Special Interrogatory No. 1 asks Defendant to state how she believes the “INCIDENT” occurred. The interrogatory d...

Excerpt: ... is granted. A defendant seeking summary judgment 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) 2...

Excerpt: ...d effect as a general demurrer, i.e., the trial court is asked to determine whether the complaint raises an issue that can be resolved as a matter of law. Smiley v. Citibank (1995) 11 Cal.4 th 138, 146; Westly v. Board of Admin. (2003) 105 Cal.App.4 th 1095, 1114. Like a demurrer, a motion for judgment on the pleadings admits, for purposes of the motion, the truth of all material facts that have been pleaded. Consolidated Fire Protection Dist. v....

Excerpt: ...ased 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. Cal. Civ. Proc. Code § 484.090(a)(1)-(4). A court may order the issuance of a writ of attachment on...

Excerpt: ...utomatic stay on all state and federal proceedings against the debtor outside of the bankruptcy court, subject to certain statutory exceptions not relevant here. State courts in which action against the debtor are pending do not have the power to modify the automatic stay; only the bankruptcy court can do so. In re Gruntz (9 th Cir.2000) 202 F.3d 1074, 1082-83 (en banc). The automatic stay is self-executing and is effective upon filing the bankru...

Excerpt: ...equests for Production (Set One) propounded to each within twenty days of service of the order. Caspino Decl. Ex. E. The order states that “[d]uring the hearing, the parties acknowledged that most if not all of the responsive documents will be produced by SCSA and they agreed that [the Dewykes were] not required to produce duplicative documents.” Id. The discovery referee ordered David Dewyke and Johnnie Dewyke to produce responsive documents...

Excerpt: ...nst Defendants on January 31, 2019. For the following reasons, Defendants' motion for summary judgment is granted. A defendant seeking summary judgment 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 judgm...