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