Excerpt: ... no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Cal. Civ. Proc. Code § 437c(p)(1). Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Id. In her second and third causes of action, Acevedo alleges that (i) Defe...

Excerpt: ... The right to arbitration depends upon contract; a petition to compel arbitration 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 necessar...

Excerpt: ...ntiff's statement that she did not appear due to a family emergency does not explain Plaintiff's failure to notify Defendants sooner nor does Plaintiff provide any explanation why she could not have returned in time for the long-scheduled medical examination. Plaintiff does not oppose Defendants' motion and states in her opposition that she will appear for the medical examination on or after December 11, 2019. Plaintiff Kennetha Moon is ordered t...

Excerpt: ...rally, violates public policy by allegedly offending the integrity of the legal system. For the following reasons, Plaintiffs' motion is denied. Plaintiff sued Jones Day and four of its current and former attorneys for legal malpractice and other claims related to legal work Defendants performed for Plaintiffs in an unlawful detainer action (the “UD Action”). At the time of the UD Action, Holladay and Lim were associate attorneys at Jones Day...

Excerpt: ...30, 636. Standing may arise from an attorney-client relationship between the moving party and targeted counsel or from a duty of confidentiality owed by the attorney to the moving party despite the absence of an attorney-client relationship. Id. at 636-37. The party seeking disqualification has the burden to establish the attorney-client relationship. Lynn, 15 Cal.App.5 th at 638; Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4 th 719, 729....

Excerpt: ...ition to compel arbitration 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, th...

Excerpt: ...nt 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 ...

Excerpt: ...intiff has the initial burden of demonstrating, by a preponderance of the evidence, facts justifying the exercise of jurisdiction. Ziller Electronics Lab GmbH v. Superior Ct. (1988) 206 Cal.App.3d 1222, 1232-33; Sacramento Suncreek Apts., LLC v. Cambridge Advantaged Props. II, L.P. (2010) 187 Cal.App.4 th 1, 9. The plaintiff must do more than allege jurisdictional facts; the plaintiff must provide affidavits and other authenticated documents that...

Excerpt: ... Lane, Huntington Beach, California 92649-1308. A “proof of delivery” filed with the court on November 27, 2019 purports to show service on Defendant Nicole Bermensolo by substitute service on Danielle Bermensolo, who is identified as “sister/occupant,” on October 22, 2019 at 6510 Ocean Crest Drive, Apt. 301, Rancho Palos Verdes, California 90275-5403. California Corporations Code § 17701.16 governs service on limited liability companies...

Excerpt: ... Inc. seeks the production of ten categories of documents. For the following reasons, Defendants' motion is denied. Defendants did not file a separate statement in support of their motion. California Rule of Court 3.1345(a) requires a separate statement for “[a]ny motion involving the content of a discovery request or the responses to such a request,” including a motion to quash the production of documents. Defendants did not address this arg...

Excerpt: ... Plaintiff Brian M. Sax's Motion to Compel Responses to Form Interrogatories (Set One) Plaintiff Brian M. Sax moves to compel responses to his Form Interrogatories (Set One) from Defendants Convergence Wireless, Inc., Timothy L. Hirou, Nora R. Hirou, Aaron T. Hirou, Hannah N. Hirou, Judy Hirou, Jacob Zepeda, Enrique Zepeda, Otilia Zepeda and Ana Zepeda Boddeker. For the following reasons, Plaintiff Brian M. Sax's unopposed motion is granted. Due ...

Excerpt: ...ce to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” 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. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Id. Plaintiffs seek to add Defendants Jason Godoy and Coldwell Bank...

Excerpt: .... Ex. 2 (4:21-22). Deposition Topic No. 2: Granted in part and denied in part. Defendant is ordered to produce a witness to address all Technical Service Bulletins, if any, applicable to the alleged defect(s) in the Subject Vehicle, including those superseded. Defendant has not provided any evidence substantiating its attorney-client privilege, attorney work product, or trade secret objections. Deposition Topic No. 3: Granted in part and denied i...

Excerpt: ...nt. 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 th...

Excerpt: ...is denied and the City's motion is denied. A. Summary Adjudication As an initial matter, the Eppeldauer Defendants style their motion as a motion for summary judgment, but their Separate Statement identifies two “issues” for adjudication. To the extent the Eppeldauer Defendants intend to move for summary adjudication of these issues, the Eppeldauer Defendants' motion is denied because their Notice of Motion and Separate Statement do not compl...

Excerpt: ...emurrer 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 c...

Excerpt: ...ted 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 facts that have not been alleged in the complaint ...

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: ...es 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 facts th...

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 reas...

Excerpt: ...he 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 in...

Excerpt: ...um equal to the aggregate amount of costs and expenses, “including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Cal. Civ. Code § 1794(d). The plain wording of the statute requires the trial court to base the fee award on actual time expended on the case, as long as such fees are reasonably incurred – ...

Excerpt: ... may include, but is not limited to, a direction that “a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.” Id. § 2031.060(b)(5). Plaintiffs seek a blanket protective order governing documents and information to be produced in discovery in this case. Plaintiffs argue that Defendant's discovery requests seek commercially-s...

Excerpt: ...uction of documents. Cal. Civ. Proc. Code § 1987.1(a), (b). The court “may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” Id. § 1987.1(a). The subpoena seeks a broad category of documents related to any alleged assault, battery, robbery, violent crime, murder, sexual crime, or any other behavior that allegedly...

Excerpt: ...dant's insurance carrier agreed to defend the case under a reservation of rights and filed an answer on Defendant's behalf. Defendant's counsel states that “all efforts to locate Defendant and obtain his cooperation and participation in this litigation have been unsuccessful,” including internet database research and the retention of process servers and a private investigator. Goldman Decl. ¶ 5. The court in Brigante v. Huang (1993) 20 Cal.A...

Excerpt: ...ne 20, 2017, more than two years ago. The court file does not reflect that the case has ever been scheduled for trial. The case was assigned to this department on July 10, 2019. On May 30, 2019, Plaintiff named D. Scott Abernethy as a Doe Defendant. Plaintiff named two additional Doe Defendants on June 19, 2019. The court file does not reflect that Plaintiff has served either of the Defendants Plaintiff added on June 19, 2019. Plaintiff is ordere...

Excerpt: ...) and 1194(a). (Plaintiff also claims entitlement to attorneys' fees pursuant to California Civil Procedure Code § 998, but provides no argument in support of this contention.) Defendants do not challenge Plaintiff's entitlement to an attorneys' fees award pursuant to sections 226(h) and 1194(a). Plaintiff also argue that her section 226 wage statement claim and her section 1194 overtime claim were inextricably intertwined with her other causes ...

Excerpt: ...eading, 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: ...es outside the presence of the court or orally before the court, for settlement 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. Defendants contends that Plaintiffs and Defendants entered into a valid and binding written settlement agreement that Defendants are entitled to enforce pursuant to section 664.6. In ruling on a motion to enter judgment pursu...

Excerpt: .... For the following reasons, Defendants' motion is granted in part and denied in part, subject to the court's comments below regarding the status of Plaintiff Benex, LLC. Defendants' motion to compel Plaintiffs to arbitrate is granted. Plaintiffs agree the case should be arbitrated and have already initiated an arbitration at JAMS. Mason Decl. ¶ 2. Plaintiffs and Defendants also agree that this case should be stayed pending completion of the arb...

Excerpt: ...ance 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 the motion a...

Excerpt: ...egal 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 facts that have not b...

Excerpt: ...ination, “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 sectio...

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 d...

Excerpt: ...t of the professional negligence of a health care provider, the court may allow the filing of an amended complaint claiming punitive damages on a motion by the party seeking the amended pleading and “on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” Id. § 425.13(a)...

Excerpt: ...entation), fourth (negligent misrepresentation), and fifth (negligent infliction of emotional distress) causes of action in Plaintiff's Second Amended Complaint. 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 ...

Excerpt: ...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 Cal.App.4 th 1544, 1556. ...

Excerpt: ...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 the motion and the motio...

Excerpt: ... 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 received at the court's discretion...

Excerpt: ...esponse 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. Plaintiff initially responded to each of the above interrogatories with a statement that she “does not have ...

Excerpt: ...howing of good cause requiring the continuance. Cal. R. Ct. 3.1332(c). California Civil Procedure Code § 2024.050 governs motions to reopen discovery. A motion to reopen discovery shall be accompanied by a meet and confer declaration, id. § 2024.050(a), which Plaintiff's motion is not. In exercising its discretion to grant or deny a motion to reopen discovery, the court “shall take into consideration any matter relevant to the leave requested...

Excerpt: ..., 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 receive...

Excerpt: ...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. Howard Jarv...

Excerpt: ...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 reasonably...

Excerpt: ...nges 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 facts t...

Excerpt: ...denials of factual contentions. The court granted Defendant's summary judgment motion on November 1, 2018. See11/01/18 Order. For the following reasons, Defendant's motion is denied. 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 extension, modification, or reversal of existing law or the establishmen...

Excerpt: ...s granted. Due to Defendant's failure to serve 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 protection for work product . . . .” Cal. Civ. Proc. Code § 2030.290(a). Defendant shall provide responses, without objections, to Plaintiff's Special Interrogatories (Set...

Excerpt: ...t. Davis served the four sets of interrogatories by overnight mail on November 20, 2018. Responses were due December 24, 2018. The parties dispute whether OC Auto Expo Group and Husaini served timely responses. OC Auto Expo Group and Husaini maintain that they served timely responses. Plaintiff's counsel states in his declaration that he served the four sets of responses on December 24, 2018. Walton Decl. ¶¶ 7- 8. Plaintiffs have submitted a Pr...

Excerpt: ...ing 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) 25 Cal.4th 826, 850-51. If a d...

Excerpt: ...y Bank of Nev. v. Superior Ct. (1975) 15 Cal.3d 652, 656 (individual has right to privacy in his or her confidential financial affairs); SCC Acquisitions, Inc. v. Superior Ct. (2015) 243 Cal.App.4 th 741, 756 (corporations have non-constitutional right to privacy; corporate right to privacy is “a lesser right than that held by human beings” and requires balancing discovery's relevance to subject matter in dispute and whether discovery appears...

Excerpt: ...aint. 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 t...

Excerpt: ...emurrer, 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. Berryman v. Merit Pr...

Excerpt: ...he Stipulation and Protective Order states that if a party designates information “confidential” or “highly confidential” under the order, another party objects to the designations, and the parties cannot resolve the dispute, the designating party may either de-designate the information or file a motion to uphold its confidentiality designations. Stipulation & Protective Order (filed 09/21/17) § 6. The designating party bears the burden ...

Excerpt: ...tion (Complaint, Prayer at 11:15) is granted without leave to amend. Punitive damages are recoverable in fraud actions involving intentional, but not negligent, misrepresentations. Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4 th 1226, 1241. Defendant also moves to strike Plaintiff's punitive damages allegations in his second cause of action for intentional misrepresentation and the related prayer for punitive damages (Complaint ¶ 30 at 7:1-...

Excerpt: ...ken. Based on Plaintiffs' stipulation, Defendant's motion to strike those portions of the Complaint is granted and they are stricken. Defendant argues that the phrase “in a reasonable manner” in paragraphs 30 and 31 should be stricken because Defendant is not liable for common law negligence and paragraphs 30 and 31 allege common law negligence. Plaintiffs' second cause of action – the only cause of action alleged against Defendant and the ...

Excerpt: ...ersonal jurisdiction. In the alternative, Klamath moves to dismiss the case based on forum non conveniens. For the following reasons, Klamath's motion to quash is denied. Klamath's alternative motion to dismiss based on forum non conveniens is also denied. A. Personal Jurisdiction 1. Hearing Date Relo argues that Klamath's motion should be denied because the notice of motion to quash did not designate a hearing date not more than thirty days afte...

Excerpt: ... commonly known as 5742 Thelma Avenue, La Palma, California, 90623. Ocwen opposes Plaintiffs' motion. For the following reasons, Plaintiffs' motion is denied. In determining whether a preliminary injunction should issue, a trial court evaluates two interrelated factors: (i) the 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 consequen...

Excerpt: ... For the following reasons, Rush'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 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); Ag...

Excerpt: ...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 court will not ...

Excerpt: ...motion is granted in part and denied in part. A. Document Production On or about July 13, 2018, SITO served Macaluso with a subpoena for records and a subpoena for testimony and records. Crisp Decl. ¶ 15 & Ex. 8. The latter subpoena sought the same records sought in the former subpoena. Id. Macaluso served written objections to the subpoena on August 6, 2018. Id. Ex. 10. Macaluso objected to Request Nos. 9, 10, 11, 13, 15, 15 and 19 on attorney-...

Excerpt: ... Defendant's motion is granted. Due to Plaintiff's failure to serve timely responses to the interrogatories, 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 responses, without objections, to Defendant's ...

Excerpt: ...y and all other diagnostic tests and procedures, including, but not limited to, all records reflecting the date of each visit, exams or treatment and all charges/billings made therefore pertaining to Kambiz Rouindej. All payments received from any source for services provided and the current amount due for treatment rendered. This subpoena requires the production of any and all x-rays, MRI films, tomograms, CT scans, photographs, etc. which may h...

Excerpt: ...d States Court of Appeals for the Ninth Circuit of an order of the United States District Court for the Central District of California dismissing Plaintiff's federal cause of action and remanding Plaintiff's lawsuit against Defendants South Coast Plaza and Rolex Watch USA, Inc. to Orange County Superior Court. Should Plaintiff's appeal succeed, Plaintiff's case would return to federal district court and that court could then determine whether to ...

Excerpt: ...owing that order, Defendants again failed to respond to Plaintiff's pleading, this time failing to respond to Plaintiff's Second Amended Complaint (SAC). The court had granted Plaintiff leave to file its SAC on February 28, 2018. See 02/28/18 Order. Because Defendants failed to respond to the SAC, Defendants' defaults were entered again on April 25, 2018. Defendants, who are self- represented, contend they failed to timely respond to the SAC beca...

Excerpt: ... to Hackler seek: No. 9: Any and all time sheets for any cases which were transferred or referred to you/your firm from A. Nicholas Georggin. No. 10: Any and all time sheets for any cases which were transferred to you/your firm from anyone who worked for Krutcik & Georggin. While billing invoices are generally not made for the purpose of legal representation, the information contained within certain invoices may be within the scope of the attorne...

Excerpt: ...s punitive damages claim. 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. Civ...

Excerpt: ...e on the party of written notice of entry of the order “and based upon new or different facts, circumstances, or law,” apply for reconsideration of the matter and seek an order modifying, amending or revoking the prior order. Cal. Civ. Proc. Code § 1008(a). “The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, ...

Excerpt: ...dies for that claim. The court has read and considered both parties' late-filed briefs. For the following reasons, Defendants' motion for judgment on the pleadings is overruled. Defendants contend that Plaintiffs are required to exhaust a “Grievance Review Procedure” set forth in four Memoranda of Understanding (MOU) between Plaintiff Santa Ana Police Officers Association and Defendant City of Santa Ana before Plaintiffs can bring a breach of...

Excerpt: ...on) in Stateline, Nevada. Buckley alleges that SWAT and Columbia, among others, were negligent in failing to supervise and secure the property where the assault occurred. Columbia provided management services at Horizon in January 2013. Columbia's Responsive Separate Statement No. 11 (undisputed). Columbia filed a Cross-Complaint against SWAT for express and implied indemnity, contribution/apportionment, and declaratory relief. On or about August...

Excerpt: ...cept as true all allegations of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. 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 matters alleged or are proper subjects of judicial notice. Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7. Facts appearing in exhibits attached ...

Excerpt: ...e binding unless adopted by the court; the court must independently consider the referee's findings before acting. Jovine v. FHP, Inc. (1998) 64 Cal.App.4 th 1506, 1522. The consent of the parties is not required; however, such nonconsensual reference is authorized under section 639 only in certain specified circumstances: (a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a ref...

Excerpt: ...leges Defendant terminated him after Plaintiff suffered a heart attack and discriminated against Plaintiff based on disability. Defendant argues that the exclusive remedy provision of the worker's compensation law bars Plaintiff's intentional infliction of emotional distress claim. Defendant's demurrer does not challenge any of Plaintiff's other causes of action. Where the provisions of the workers' compensation system apply, an employer is liabl...

Excerpt: ...rsuasion 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. Plaintiff's theory against Defendant is based on ...

Excerpt: ...ndant previously stated it would produce. Defendant's counsel submitted a declaration stating that Defendant produced the documents responsive to Nos. 31 and 32 on June 19, 2018. Bankhead Decl. ¶ 3 & Ex. A. Plaintiff's motion to compel further responses and document production in response to Nos. 31 and 32 is denied as moot. Request Nos. 23 through 30, 33 and 34 seek documents showing Defendant's sales revenues and commissions paid to third part...

Excerpt: ..., Defendants' Notice of Motion does not state in the first paragraph the proper grounds for Defendants' motion. The Notice states that Defendants move pursuant to California Code of Civil Procedure § 473.5, but, as the court found previously, see05/17/18 Order, section 473.5 does not apply to Defendants' motion because Defendants do not contend that service of summons did not result in actual notice in time to defend the action. See Cal. Civ. Pr...

Excerpt: ...oach. Complaint ¶¶ 8-9. Plaintiff alleges Servite terminated him in September 2017 following the events from which this lawsuit arose. Id. ¶ 10. During a junior varsity basketball game on July 2, 2017, Plaintiff removed Defendant's teenage son, a player on the team, from the game. Id. ¶ 13. Defendant's son walked past Plaintiff as Plaintiff was speaking to him and, to get the son's attention, Plaintiff alleges he “lightly grabbed [Defendant...

Excerpt: ...orting papers largely focus on topics irrelevant to Plaintiff's motion. Indeed, the court could not discern from the briefs which issues the parties believe require court intervention. As a result, while the court has read and considered all of the papers filed in support of and in opposition to Plaintiff's motion, the court relies on Plaintiff's and Defendant's Separate Statements to identify the requests and topics at issue in this motion, whic...

Excerpt: ...desires to obtain discovery by a mental examination must obtain leave of court. The motion must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. Id. § 2032.310(b). The court shall grant a motion for a mental examination under section 2032.310 only for good cause shown. Id. § 2032.320(a). Plaintiff alleg...

Excerpt: ...h 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. Defendant argues that Plaintiffs' Complaint should be dismissed because Plaintiffs have not sufficiently alleged facts demonstrating demand futility. Plaintiffs alleg...

Excerpt: ...anti-SLAPP motion “shall be entitled to recover his or her attorneys' fees and costs.” Cal. Civ. Proc. Code § 425.16(c). Where, as here, a defendant partially prevails on an anti-SLAPP motion, that defendant “must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion.” Mann v. Quality Old Time Service, Inc. (2006) 139...

Excerpt: ...ing out of the professional negligence of a health care provider, the court may allow the filing of an amended complaint claiming punitive damages on a motion by the party seeking the amended pleading and “on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” Id. § 425...

Excerpt: ...reasons, NuEyes's motion is granted in part and denied in part. In determining whether a preliminary injunction should issue, a trial court evaluates two interrelated factors: (i) the 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...

Excerpt: ...enter a judgment of no liability in favor of Southwire. See 07/18/18 Order. No other parties filed oppositions to Southwire's motion and no other parties stated at the July 18, 2018 hearing any opposition to Southwire's motion. See id. 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, th...

Excerpt: ...rthi, Nathan Bedoya, and Kevin Huynh (together, the “FAC Defendants”) move for an order compelling arbitration of Plaintiff MyChoice Software, LLC's First Amended Complaint (the “FAC”) against them and staying this action pending completion of the arbitration. For the following reasons, the FAC Defendants' motion is granted. The FAC Defendants argue that Plaintiff's FAC, which Plaintiff filed in April 2018 and which added the FAC Defendan...

Excerpt: .... Due to Plaintiff's failure to serve responses to the requests, 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 responses, without objections, to Defendant's Form Interrogatories (Set Two) by August 6, ...

Excerpt: ...atutory Offer to Compromise). In relevant part, the offer stated: PLEASE TAKE NOTICE that Defendants DAVID CROFTON and SANDRA CROFTON hereby offer to compromise this litigation for the sum of Fifth Thousand and One Dollars ($50,001) to plaintiff BRYAN PEREZ pursuant to Code of Civil Procedure § 998. . . . This offer to compromise and acceptance thereof is expressly conditioned upon the following: . . . 4. This offer to compromise is subject to d...

Excerpt: ...n for summary judgment or, in the alternative, summary adjudication, because Defendant's motion papers do not comply with California Rule of Court 3.1350(b), the court must treat the motion solely as a motion for summary judgment. Rule 3.1350(b) states: If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is ...

Excerpt: ...nd. Plaintiffs' first and second causes of action do not identify the contract(s) on which each of these causes of action is purportedly based. See CACI 303 & 325. Defendant's demurrer to Plaintiffs' third cause of action for negligence and fourth cause of action for negligent infliction of emotional distress is sustained with leave to amend. Plaintiff's third and fourth causes of action do not identify an actionable duty owed by a foreclosing tr...

Excerpt: ...ise, Defendant obtained summary judgment in its favor. See03/23/18 Order. Defendant thereafter filed a costs memorandum seeking reimbursement for $8,538.86. Defendant's postoffer costs total $5,193.21. Plaintiff does not challenge any of the specific cost items or amounts Defendants claim. Rather, as discussed below, Plaintiff makes two arguments against a costs award in general. Plaintiff first argues that Defendant is not entitled to costs base...

Excerpt: ...solve the issues raised in this motion informally or to meet and confer with Defendant about the responses at issue before filing this motion. See Sorenson Decl. ¶ 8. Plaintiff's motion is therefore denied. Defendant's request for sanctions is granted. Monetary sanctions are mandatory when a party fails to confer as required. Cal. Civ. Proc. Code § 2023.020 (“Notwithstanding the outcome of the particular discovery motion, the court shall impo...

Excerpt: ...arch 22, 2018 and offer competing recollections of the court's comments regarding discovery motions outstanding at the time the stay commenced. While a transcript of the March 22, 2018 hearing apparently exists, neither party provided a copy of the transcript to the court. In addition, it appears from Plaintiff's opposition papers that during some period of the parties' recent correspondence regarding Plaintiff's responses to Defendant's Third Se...

Excerpt: ...acie 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.4th 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 ...

Excerpt: ...tice of Acceptance of Offer to Compromise. Plaintiff accepted Defendants' section 998 offer. In exchange for a dismissal with prejudice of this action, Plaintiff accepted $25,000. On March 1, 2018, the court entered judgment in Plaintiff's favor. 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 a plaintiff recovers a judgment in an unlimited civil case th...

Excerpt: ...nt agreed by the Naman plaintiff and the involved insurance carrier. Plaintiff A. Nicholas Georggin requests that the court issue the order the Receiver requests. Defendant James A. Krutcik filed a “Qualified Opposition” to the Receiver's request. For the following reasons, the Receiver's petition is granted. A receiver is an agent of the court and not of any party. Cal. R. Ct. 3.1179(a). As such, a receiver is neutral, acts for the benefit o...

Excerpt: ...ot limited to, the following:” 1. The necessity and the reasons for the discovery; 2. The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; 3. Any likelihood that permitting the discovery will prevent the case from going to trial on the date set, or otherwise interfere with the trial cale...

Excerpt: ...s procedural and substantive facts, including the court's finding in favor of Defendant Mauricio, see05/11/18 Order, the court does not find that the circumstances of this case or Defendant Mauricio's role in it, including his failure to appear for the April 20, 2018 Mandatory Settlement Conference, warrants an award of attorneys' fees and costs against Defendant Mauricio. Plaintiff's motion is denied. Clerk to give notice. ...

Excerpt: ... Decl. Exs. A & B. This instant motion is directed at seventy- three additional requests for admission from Defendant Dubin Law Firm and a corresponding form interrogatory. See id. Exs. D & E. No party shall request, as a matter of right, that any other party admit more than 35 matters that do not relate to the genuineness of documents. Cal. Civ. Proc. Code § 2033;030(a). Subject to the right of the responding party to seek a protective order un...

Excerpt: ... the following reasons, Defendants' motion is denied. In 2014, Plaintiffs and Lanzon entered into an Agreement for Sale and Transfer of Shares by which Plaintiffs transferred their shares in Defendant Bike Religion to Lanzon, resulting in Lanzon becoming the sole owner of Bike Religion. Lanzon Decl. Ex. A (04/11/14 Agreement) (¶ 1). The Agreement provided that Lanzon would assume various ongoing obligation of Bike Religion: 4. Lanzon Credit Obli...

Excerpt: ...including any party to the action. Cal. Civ. Proc. Code § 2025.010. Plaintiff has twice noticed the deposition of Defendant Jessica Trujillo. Defendant does not contend her deposition cannot or should not be taken. Plaintiff's motion is therefore granted. Defendant Jessica Trujillo is ordered to appear for deposition on June 22, 2018 at 9:00 a.m. at the offices of Carpenter, Zuckerman & Rowley, LLP, 8827 West Olympic Boulevard, Beverly Hills, Ca...

Excerpt: ...7, 2018. Id. Ex. C. Plaintiff did not serve timely responses. Rather, on March 18, 2018, Plaintiff sent Defendant a letter in which Plaintiff set forth various general objections to the form interrogatories as a whole. Id. Ex. D. Despite this untimely response, Defendant granted Plaintiff another extension to April 2, 2018 to respond to the form interrogatories. Id. Ex. E. Plaintiff did not serve timely responses by that date either; Plaintiff se...