Excerpt: ...against the Cross-Complainants (filed on 5-7-19 under ROA No. 469.) Code of Civil Procedure section 916, subdivision (a), states, “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may...

Excerpt: ...to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more...

Excerpt: ...al, whether contested or uncontested or stipulated to by the parties, must make the requests for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” California Rules of Court, rule 3.1332(c) and (d) set forth the circumstances an...

Excerpt: ... information sought to be discovered. [¶] (2) An exercise of the party's option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.260, subdivision (a), provides, in relevant part, “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party . . . .” Code of Civil...

Excerpt: ...may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to...

Excerpt: ...but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” ...

Excerpt: ... only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantia...

Excerpt: ...s determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. [¶] Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of...

Excerpt: ...lso of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez...

Excerpt: ...ides, “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be ju...

Excerpt: ...ements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense t o t h a t c au se o f a c ti o n . On c e the . . . cross-defendant has met that burden, the burden shifts to the . . . cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in...

Excerpt: ...a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to prote...

Excerpt: ...ly: [¶] (1) An answer to a particular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without merit or too general. . . . [¶] (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any speci...

Excerpt: ...the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5. The court, on its own motion, may make such an order at any time.” Code of Civi...

Excerpt: ...pressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal...

Excerpt: ...e expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209...

Excerpt: ..., cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgm...

Excerpt: ...ed, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial ...

Excerpt: ...ss-Complaint. Proposed Interveners “. . . seek leave to intervene in this matter so that there will be no question whether the Court has all the parties before it, and whether it can issue an order determining that it can make a ruling on arbitrability of claims.” (Motion; 3:7- 9.) Defendant's/Cross-Defendant's (Leona Horowitz) Non- Opposition (Non-Opposition), filed on 7-2-19, states, “. . . she does not oppose the Court granting them the ...

Excerpt: ...from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (...

Excerpt: ...ns, “As the Court of Appeal herein observed, the fee setting inquiry in California ordinarily begins with the ‘lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.' [Citation.] The reasonable hourly ra...

Excerpt: ...y, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only ...

Excerpt: ...o the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrato...

Excerpt: ...tis (2011) 192 Cal.App.4 th 1474, 1479.) Thus, the court does not have the authority to determine Motion Nos. 1, 2, 3, 4, and 5 (discussed below) based on the defaults entered as to the Second Amended Cross- Complaint. The court notes, however, that Stoll Nussbaum & Polakov filed a Complaint against Eagan Avenatti, LLP, Michael Avenatti, Lisa Storie Avenatti, and Avenatti & Associates, a California corporation on 1-30-13 under Orange County Super...

Excerpt: ...ny pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivi...

Excerpt: ...f.” Code of Civil Procedure section 512.060, states, “(a) At the hearing, a writ of possession shall issue if both of the following are found: [¶] (1) The plaintiff has established the probable validity of the plaintiff's claim to possession of the property. [¶] (2) The undertaking requirements of Section 515.010 are satisfied.” Code of Civil Procedure section 511.090 explains, “A claim has ‘probable validity' where it is more likely ...

Excerpt: ... properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469, states, “In determining whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all mater...

Excerpt: ...). Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show t...

Excerpt: ...s immaterial. (Code Civ. Proc., § 437c, subd. (q).) The court does not consider the supplemental evidence submitted with Defendant's Reply to Plaintiff's Opposition, filed on 7-11- 19. (Jay v. Mahaffey(2013) 218 Cal.App.4th 1522, 1537.) Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements o...

Excerpt: ...a deposition subpoena for the production of business records. Code of Civil Procedure section 1987.1, subdivision (a), states in relevant part, “If a subpoena requires the . . . production of books, documents, electronically stored information, or other things . . . the court, upon motion reasonably made by any person described in subdivision (b) . . . may make an order . . . directing compliance with it upon those terms or conditions as the co...

Excerpt: ...ter judgment pursuant to the terms of the settlement. If requested, by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4 th 793, 809-811, states, “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. ...

Excerpt: ...scribed in Section 663, shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict, either: . . . [¶] (2) Within 15 days of the date of mailing of notice ...

Excerpt: ...rnia courts “have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.” [Citation.] Indeed, “it is a rare case in which ‘a court will be justified in refusing a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her] case.' ” [Citation....

Excerpt: ...s ruling discussed below. Code of Civil Procedure section 2030.090 states in part, “(a) When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (b) The court, for good cause shown, may make any order that justice requires to protect any pa...

Excerpt: ...lar request.” Code of Civil Procedure section 2033.250, subdivision (a), provides, in part, “Within 30 days after service of the requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared . . . .” Code of Civil Procedure section 2033.260, subdivision (a), explains, “The party requesting admis...

Excerpt: ...and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by...

Excerpt: ...ment, 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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken...

Excerpt: ... the terms of the settlement. If requested, by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4 th 793, 809-811, states, “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citation.] . . . Althou...

Excerpt: ...gment pursuant to the terms of the settlement. If requested, by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4 th 793, 809-811, states, “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citati...

Excerpt: ...with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. [¶] (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. [¶] (3) An objection to the particular deman...

Excerpt: ...tion for Right to Attach Order and Writ of Attachment as to The Steven Martin Rees and Ann Marie Rees Revocable Trust, filed on 5-1-19. The court's 5-1-19 Minute Order deemed the Ex Parte Applications as the moving papers. Code of Civil Procedure section 484.040, states, “No order or writ shall be issued under this article except after a hearing. At the times prescribed by subdivision (b) of Section 1005, the defendant shall be served with all ...

Excerpt: ...set forth in Chapter 5 . . . by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition . . . of that party or person is in controversy in the action.” Code of Civil Procedure section 2032.310, states in relevant part, “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or ...

Excerpt: ...e following: [¶] (a) A copy of the summons and complaint. [¶] (b) A notice of application and hearing. [¶] (c) A copy of the application and of any affidavit in support of the application.” “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Cal. Rules of Court, rule 3.1300(c).) “ . . . [A]n attachment may be issued only in an action on a claim or claims for mo...

Excerpt: ...The court OVERRULES Cross-Defendant's Objections filed on 6- 13-19. Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has me...

Excerpt: ...omplaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, pr...

Excerpt: ...otice of Exhibits 5 and 6. Code of Civil Procedure section 438, subdivision (c)(1)(B) states, “If the moving party is a defendant, that either of the following conditions exist: [¶] (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. [¶] (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.” Code of Civil Procedure section 438, subdivision (d)...

Excerpt: ..., Request for Admission (set 3), Form Interrogatories (Set 5), and Request for Production Set 8.” (Motion; 2:5-8.) Defendant requests a protective order as to these discovery requests pursuant to Code of Civil Procedure sections 2030.090, 2031.060, and 2033.080. (Motion; 2:10- 13.) The parties have adequately met and conferred. (Code Civ. Proc., §§ 2030.090, subd. (a), 2031.060, subd. (a), and 2033.080, subd. (a); 3-15-19 Berman Decl., ¶¶ 3...

Excerpt: ...ission (set 3), Form Interrogatories (Set 5), and Request for Production Set 8.” (Motion; 2:5-8.) Defendant requests a protective order as to these discovery requests pursuant to Code of Civil Procedure sections 2030.090, 2031.060, and 2033.080. (Motion; 2:10- 13.) The parties have adequately met and conferred. (Code Civ. Proc., §§ 2030.090, subd. (a), 2031.060, subd. (a), and 2033.080, subd. (a); 3-15-19 Berman Decl., ¶¶ 3, 4, and Exhibits...

Excerpt: ...of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of...

Excerpt: ...ly 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. If requested, by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Code of Civil Procedure section 664.6 states, “If parties to pending litigation stipulate, in a writing signed by the parties outs...

Excerpt: ...scadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Defendant demurs to the second cause of action in Plaintiff's Complaint (filed on 8-1-18) pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). Defendant contends, “. . . Plaintiff's Complaint is replete with conclusory allegations, unsupported by necessary facts and therefore fails to meet the heightened pleading requirements for a ...

Excerpt: ... or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of ...

Excerpt: ...he obligation to stay the state court action. [Citations.]” “ ‘In exercising its discretion the court should consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject...

Excerpt: ...obtain leave of court. [¶] (b) A motion for examination under subdivision (a) shall 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. . . . .” Code of Civil Procedure section 2032.320, subdivision (a), provides, “The court shall grant a motion for physical or mental examination under Section 2032.310 o...

Excerpt: ...“. . . [A] court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face...

Excerpt: ...e aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” Fountain Valley Chateau Blanc Homeowner's Association v. Department of Veteran Affairs (Fountain Valley) (1998) 67 Cal.App.4 th 743, 750-751, states, “At the outset we must confront a serious anomaly in California's procedural law regarding attacks on decisions made by juries...

Excerpt: ...xpressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Ca...

Excerpt: ...37c, subd. (q).) The court does not consider the Declaration of Jeffrey M. David in Support of Reply to Plaintiff's Opposition to Motion for Summary Judgment. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) It appears that Defendant/Cross-Complainant Frank Walter Peters used his “Responses to Defendant, Lab Expresses Separate Statement of Undisputed Facts,” to filed on 5-21-19, as objections. The court OVERRULES these objections bec...

Excerpt: ... . . . .” Code of Civil Procedure section 2031.300, subdivision (b), provides, “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: . . . [¶] (b) The party making the demand may move for an order compelling response to the demand.” Code of Civil Procedure 2031.310, states, in part, “On receipt of a response to a demand for inspectio...

Excerpt: ...bject to the demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. . . . [¶] (3) The demurring party shall file and serve with the demurrer a declaration stating either of the following: [¶] (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement res...

Excerpt: ...y, breach of duty, causation, and damages apply.” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4 th 120, 126). Defendant's Demurrer, however, does not demonstrate that the Complaint insufficiently alleges a cause of action for negligence. Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4 th 992, 998, states, “Moreover, we may affirm the sustaining of a demurrer only if the complaint fails to state a cause of action under any possible...

Excerpt: ...g apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] A representation of inability to comply is inadequate, incomplete, or evasive. [¶] An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with both of the following: [¶] (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall ...

Excerpt: ...he parties to the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint t...

Excerpt: ...Association (Ladas) (1993) 19 Cal.App.4 th 761, 773-774, states, “ ‘[S]ection 1033.5, enacted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action. [Citation.]' [Citation.] An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of t...

Excerpt: ...vernment Code, the court, at the request of the alleged victim, may order the identity of the alleged victim in all records and during all proceedings to be either Jane Doe or John Doe, if the court finds that such an order is reasonably necessary to protect the privacy of the person and will not unduly prejudice the prosecution or the defense . . . .” Here, Plaintiff seeks to seal the declarations of Alexis Bastedo, filed on 11-26-18 and 11-29...

Excerpt: ...e or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what app...

Excerpt: ...f the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. [¶] (b)(1) . . . Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” A prevailing p...

Excerpt: ...equest for Judicial Notice as to Exhibit 4 pursuant to Evidence Code section 452, subdivision (d). The court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) Code of Civil Procedure section 430.41, subdivision (b), states, “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall no...

Excerpt: ...es, “(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars ($500) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker. . . . [¶] (2) Between merchants if within a r...

Excerpt: ...e are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) The FAC alleges the eighth (Common Count for Services Rendered), ninth (Implied-In-Fact Contract/Unjust Enrichment), t...

Excerpt: ...ts for Judicial Notice within the meaning of Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565 and Fontenot v. Wells Fargo Bank (2011) 198 Cal.App.4 th 256, 264-267 [disapproved on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4 th 919, 939, fn. 13.]). “Code of Civil Procedure section 438, subdivision (c)(1)(B) states, “If the moving party is a defendant, that either of the following conditions exist: [¶] (i) The ...

Excerpt: ...ion (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts...

Excerpt: ...287, 288, held, “We affirm the trial court's order denying Code of Civil Procedure section 473 . . . relief for plaintiffs' failure to timely file a motion to tax costs.” “The ‘failure to file a motion to tax costs constitutes a waiver of the right to object. [Citations.]' [Citation.]” (Id., at pp. 289-290.) Here, Defendant served, by mail, the Memorandum of Costs on 11- 13-18. Plaintiffs had 20 days to file their Motion to Tax Costs. (...

Excerpt: ...otion for Judgment on the Pleadings, filed on 11-26-18, is GRANTED. The court notes that the operative pleading in this action is Plaintiff's Second Amended Complaint, filed on 10-12-17. Code of Civil Procedure section 438, subdivision (c)(1)(B), states in part, “If the moving party is a defendant, that either of the following conditions exist: [¶] (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint...

Excerpt: ...e unwilling to get involved in this lawsuit or open up a probate in the Orange County Superior Court,” and that Moving Counsel does “. . . not have the authority to settle, dismiss, or try this case without some direction from a client or court appointed figure.” (Safion Supp. Decl., ¶¶ 29 and 34.) At this stage of the proceedings, the court does not that there is good cause Moving Counsel's withdrawal. Moving Counsel's Supplemental Decla...

Excerpt: ...ely pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes o...

Excerpt: ...he defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or ...

Excerpt: ...l of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any...

Excerpt: ...by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Weddington Productions, Inc. v. Flick (Weddington) (1998) 60 Cal.App.4 th 793, 809-810, states, “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citations.] The judgment in the instant case specifica...

Excerpt: ...he case of Langley v. Schumacker (1956) 46 Cal.2d 601, 297 P.2d 977, and the Legislature's response to it, demonstrates that the tort labels of fraud and deceit are by themselves irrelevant. Courts must look to the substanceof the lawsuit.” (Id., at p. 954; Italics in Askew.) Askew explains, “If there is anything clear from the swift reaction to Langley, it is that the fact of false representations, even fraudulent representations, is not eno...

Excerpt: ... assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Third Cause of Action (Violation Civil Code section 1793.2, subdivision (a)(3)): Plaintiff's FAC adequately alleges a cause of action for a violation of Civil Code section 179...

Excerpt: ...f not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (q), states, in part, “In granting or denying a motion for summary judgment or summ...

Excerpt: ...ili) opposes this motion on the merits. Therefore, the court will resolve this motion on the merits. Code of Civil Procedure section 425.16, subdivision (b), states, in part, “(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special m...

Excerpt: ...rrers on 2- 14-19. Therefore, the court will decide Defendant's Demurrer filed on 2-14-19 under Register of Action No. 121. The court takes off calendar Defendant's Demurrer filed on 2-14-19 under Register of Action No. 134. Defendant challenges the first cause of action (Dependent Adult Abuse) for failing to state facts sufficient to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subds. (e) and (f).) (Defendant's Notice of...

Excerpt: ...c issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” Code of Civil Procedure section 425.16, subdivision (e) “As used in thi...

Excerpt: ...mation sought to be discovered. [¶] (2) An exercise of the party's option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.260, subdivision (a), provides, in relevant part, “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party . . . .” Code of Civil Proce...

Excerpt: ... inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an a...

Excerpt: ...ists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. . . .” “In deciding whether to issue a preliminary injunction, a trial court must evaluate two interrelated factors: (i) the likelihood that the party seeking the injunction will ultimately prevail on the merits of his [or her] claim, and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance ...

Excerpt: ... ‘The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer. A ruling on a general demurrer is thus a method of deciding the merits of a cause of action on assumed facts without a trial.' [Citation.]” (McKenney v. Purepac Pharmaceutical Company (2009) 167 Cal.App.4 th 72, 77.) Luri v. Greenwald (2003) 107 Cal.App.4 th 1119, 1125, states, “A basic principle of motion practice is that the moving ...

Excerpt: ...he complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of law. [Citations.]” “The rules of pleading require, with limited exceptions not applicable here, only general allegations of ultimate fact. [Citation.] The plaintiff nee not plead evidentiary facts supporting the allegations of ultimate fact. [Citation.] A pleading is adequate so long as it apprises the defendant of...

Excerpt: ...al examination, the party shall obtain leave of court. [¶] (b) A motion for examination under subdivision (a) shall 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” Code of Civil Procedure section 2016.040 explain...

Excerpt: ...ess include, but are not limited to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery. . . . [¶] (g) Disobeying a court order to provide discovery.” Code of Civil Procedure section 2023.030, provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after ...

Excerpt: ... and 6068(e)(1) (filed on 3-4-19) is DENIED; Defendant's (Nili Alai) Request to Stay Case Pending Resolution of Defendant's Based Case in This Court (filed on 3-4-19) is DENIED. The court notes that Defendant filed all three of these motions in one document. Initially, the court DENIES Defendant's request for judicial notice. In Defendant's moving papers, Defendant requests the court to take judicial notice of various items. (For example, see Def...

Excerpt: ... County Global Medical Center, to Special Interrogatories, Set One (filed on 12-14-18) is GRANTED as to SI Nos. 4, 7, 16, 17, 18, 20, 21, 23, and 28. Based on Plaintiff's Reply in Support of Plaintiff's Motion to Compel Further Responses from Orange County Global Medical Center, Inc. dba Orange County Global Medical Center to Special Interrogatories, Set One (Reply), filed on 3-25-19, Plaintiff withdraws Plaintiff's Request as to Special Interrog...

Excerpt: ...l examination, the party shall obtain leave of court. [¶] (b) A motion for examination under subdivision (a) shall 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” Code of Civil Procedure section 2016.040 explains...

Excerpt: ... attorney's fees which may be awarded in the action or special proceeding. . . . [¶] (b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points an...

Excerpt: ... 6068(e)(1) (filed on 3-4-19) is DENIED; Defendant's (Nili Alai) Request to Stay Case Pending Resolution of Defendant's Based Case in This Court (filed on 3-4-19) is DENIED. The court notes that Defendant filed all three of these motions in one document. Initially, the court DENIES Defendant's request for judicial notice. In Defendant's moving papers, Defendant requests the court to take judicial notice of various items. (For example, see Defenda...

Excerpt: ...be justified in refusing a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her] case.' ” [Citation.]' [Citation.] Thus, absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. [Citation.]” (Board of Trustees v. Superior Court (2007) 149 Cal.App.4 th 1154, 1163.) “Courts must apply a policy of liberality in permitting amendme...

Excerpt: ... contracts specifically referenced in the operative complaint . . . .” (Defendant's Request for Judicial Notice in Support of Demurrer to Second Amended Complaint, filed on 1-25-19; 2:2-5.) Plaintiff disputes the authenticity of these agreements. The declaration of Neil Moses attaches the Master Application Service Provider Agreement as Exhibit 1. This Master Application Service Provider Agreement designates the effective date of this agreement...

Excerpt: ... subdivision (g). Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4 th 612, 616, states, “An oral contract may be pleaded generally as to its effect because it is rarely possible to allege the exact words. [Citation.] A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” First Cause of Action for Breach of Contract...