Excerpt: ...eged 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.App.4 th 1...

Excerpt: ...aintiff's Response to Statement of Undisputed Material Facts in Opposition to John and Natalia A. Leehey's Motion for Summary [sic], filed on 12-10-19, as they are procedurally improper. The Separate Statement is not evidence. Any objections to evidence must comply with California Rules of Court, Rule 3.1354. As to Defendants' Objections to Evidence Offered in Support of Plaintiff's Opposition to Motion for Summary Judgment, filed on 12-18-19, th...

Excerpt: ...harm to the parties from issuance or nonissuance of the injunction. [Citation.]” “The trial court's determination must be guided by a ‘mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. [Citation.] Of course, ‘[t]he scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at tria...

Excerpt: ...ivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.' [Citation.] [¶] If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put ...

Excerpt: ...l 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 admissions and the responding par...

Excerpt: ...urden, 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 summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition to the motion.” Aguilar v. Atl...

Excerpt: ...rately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.” Code of Civil Procedure section 128.7, subdivision (c)(1), states, “A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b).” Since Cross-Defendan...

Excerpt: ... 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, provides, “This rule of liberal construction means that ...

Excerpt: ...� 9 and Exhibit 7.) The central dispute between the Plaintiff and Bryan Cave pertains to whether Bryan Cave has validly asserted the attorney-client privilege and attorney work product doctrine to the documents listed in the privilege log. “Code of Civil Procedure section 2025.480 provides in part, “(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponen...

Excerpt: ...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, provides, “This rule of lib...

Excerpt: ...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 substantial justice...

Excerpt: ... oath separately to each interrogatory by any of the following: [¶] (1) An answer containing the 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 s...

Excerpt: ... 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 subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we no...

Excerpt: ...ivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.' [Citation.] [¶] If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put ...

Excerpt: ...ant the motion and enter an order for reclassification only if both of the following conditions are satisfied: [¶] (1) The case is incorrectly classified. [¶] (2) The moving party shows good cause for not seeking reclassification earlier.” Walker v. Superior Court (1991) 53 Cal.3d 257, 270, states, “We conclude section 396 permits a superior court to transfer a matter if, during the course of litigation, it reasonably concludes that the ver...

Excerpt: ...ve been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Robertson v. Fleetwood Travel Trailers of California, Inc. (Robertson) (2006) 144 Cal.App.4 th 785, 817- 818, states, “The plain wording of the statute requires the trial court to base the fee award upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of time spent and the amou...

Excerpt: ...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.App.4 th 1228, 123...

Excerpt: ...nd 17.1). Code of Civil Procedure sections 2030.090, 2031.060, and 2033.080 provide the authority for the court to issue a protective order regarding the discovery requests at issue. Plaintiff first contends, “Here, the duty to warn, train or educate USA Swimming's staff or minor swimmers on the issue of child hood sexual abuse simply did not exist at the time of Plaintiff's alleged abuse. Defendants cannot be liable for the breach of a nonexis...

Excerpt: ...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 v. Golden Empire Transporta...

Excerpt: ...ause 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 claims f...

Excerpt: ...er seeks to compel arbitration: ‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving...

Excerpt: ...ged 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.App.4 th 12...

Excerpt: ...� 801.) The court OVERRULES all of Plaintiff's objections in the Response to the Separate Statement as they are procedurally improper. The Separate Statement is not evidence. Any objections to evidence must comply with California Rules of Court, Rule 3.1354. 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 o...

Excerpt: ...s 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 the nonexistence of any triable issue...

Excerpt: ...e 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 protect the person from unreasonable or oppressive deman...

Excerpt: ...tronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. [¶] (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” On 4-24-1...

Excerpt: ...perly 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 substantial justice between the ...

Excerpt: ...iologist, and Dr. Alexander did not testify at the trial. (Motion; 5:9-10:11.) Plaintiff asserts, Defense counsel's insinuations that plaintiff did not call the aforementioned doctors to testify because they would have testified adversely to plaintiff induced prejudicial juror speculation and constituted attorney misconduct.” (Motion; 5:20-23.) The court overruled Plaintiff's objection to this aspect of Defendant's argument. Plaintiff relied on...

Excerpt: ...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, provides, “This rule of liberal ...

Excerpt: ...g alone, and not the evidence 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, state...

Excerpt: ...lleged 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.App.4 th...

Excerpt: ...ust 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 a pleading, for the purpose of determining its effect, its allegations must be liberally construed, w...

Excerpt: ... 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 v. Golden Empire Transport...

Excerpt: ...ts 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 v. Golden Empir...

Excerpt: ... 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, provides, “This rule of liberal construction mea...

Excerpt: ...rprise, 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 . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relie...

Excerpt: ...as barred by Code of Civil Procedure section 340.5. “A demurrer tests the pleading alone, and not the evidence 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...

Excerpt: ... Her Counsel (C.C.P. § 128.7) (Motion), filed on 4-9-18 under ROA No. 892, is DENIED. The court construes Defendant's Motion as a Motion for Reconsideration or a Motion for Renewal. Code of Civil Procedure section 1008 states in part, “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 da...

Excerpt: ...ach interrogatory by any of the following: [¶] (1) An answer containing the 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 origin...

Excerpt: ...he motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” Hamilton v. Orange County Sheriff's Department (Hamilton) (2017) 8 Cal.App.5 th 759, 764-766, explains, “The court denied the con...

Excerpt: ... 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 v. Golden Empire Transportation Transit ...

Excerpt: ... moves to file Defendant's Cross-Complaint under seal because it “. . . includes confidential material, referenced attorney work product privilege material and a court-ordered anonymized confidential matter. . . .” (Defendant's Notice of Motion and Motion for Leave to File Cross-Complaint and Parties' Answers to Complaint Under Seal Pursuant to C.R.C. 2.551(b) (Motion), filed on 11-14-18; 3:9-12.) California Rules of Court, rule 2.551 (b)(4),...

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: ...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.) As to federal preemption, Defendant failed to establish that Plaintiff's claims are preempted by the Food Drug and Cosmetics Act (FDCA). Defendant contends, “Congress has specifically authorized th...

Excerpt: ...s to the first cause of action for Breach of Contract, Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98, “To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the defendant's breach, and (4) resulting damages to the plaintiff. [Citations.]” The court SUSTAINS Defendants' Demurrer to the first cause of ac...

Excerpt: ...mited 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 opportunity for hearing, ma...

Excerpt: ...pon 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 protect the person from unreaso...

Excerpt: ...] (2) An exercise of the party's option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.220, states, “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. [¶] (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. [¶] (c) I...

Excerpt: ... similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: [¶] (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. [¶] (2) The claims, defenses, and other legal co...

Excerpt: ...ourt 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 opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: . . . [¶] (d) The cour...

Excerpt: ...to each item or category of item by any of the following: [¶] (1) A statement that the party will comply 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, te...

Excerpt: ...ly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Williams v. Beechnut Nutrition Corporation (1986) 185 Cal.App.3d 135, 139, footnote 2, states, in part, “However, under our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for unce...

Excerpt: ...itation.]” Doe v. City of Los Angeles (2007) 42 Cal.4 th 531, 550, explains, “It would be inconsistent with this purpose, or with the mandate to broadly construe these provisions, to apply more stringent rules of pleading than those that ordinarily apply. (See § 425.10, subd. (a) [a complaint is sufficient if it contains ‘[a] statement of the facts constituting the cause of action, in ordinary and concise language.'].) Thus, the complaint ...

Excerpt: ...4 th 242, 250.) California Constitution, article I, § 28, states, in part, “(a) The People of the State of California find and declare all of the following: . . . (3) The rights of victims pervade the criminal justice system. These rights include personally held and enforceable rights described in paragraphs (1) through (17) of subdivision (b). . . . (b) In order to preserve and protect a victim's rights to justice and due process, a victim sh...

Excerpt: ...ed to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery.” Code of Civil Procedure section 2023.030, subdivision (c), 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 opportunity for hearing, may impose the following sanctions against anyone ...

Excerpt: ...ing date. Code of Civil Procedure section 2032.310, states, in relevant part, “(a) If any person desires to obtain discovery . . . by a mental 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, aw well as the identity and the specialty, if any, of the person or persons who will perform the examination...

Excerpt: ...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 and nonissuance of t...

Excerpt: ...ed. [¶] (2) An exercise of the party's option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.220, provides, “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. [¶] (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. [...

Excerpt: ...judicial notice pursuant to Evidence Code section 452, subdivision (d). The court limits this notice to the documents themselves. The court does take judicial notice of Defendant's interpretation of these documents. Under Evidence Code section 452, subdivision (d), the court GRANTS judicial notice of the following Minute Orders, within this action: (1) October 4, 2018; (2) July 13, 2018; (3) September 14, 2017; (4) June 15, 2017; and (5) February...

Excerpt: ...of the documents and the clear legal effects, the court is not required to accept the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) The court GRANTS Defendants' request for judicial notice of Exhibits 10, and 12-15 pursuant to Evidence Code section 452(d). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sos...

Excerpt: ...nt's Request for Judicial Notice as to Exhibit 2 pursuant to Evidence Code section 452, subdivision (d), and DENIES the Request for Judicial Notice as to Exhibit 1. Kim v. Westmoore Partners, Inc. (Kim) (2011) 201 Cal.App.4 th 267, 282, states, “When a plaintiff attaches a written agreement to his complaint, and incorporates it by reference into his cause of action, the terms of that written agreement take precedence over any contradictory alle...

Excerpt: ...venth Cause of Action (Fraud and Deceit); Eighth Cause of Action (Conversion); Ninth Cause of Action (Fraudulent Transfer under Uniform Voidable Transactions Act); Tenth Cause of Action (Common Law Fraudulent Transfer); Eleventh Cause of Action (Money Had and Received); Twelfth Cause of Action (Unjust Enrichment and Restitution); Thirteenth Cause of Action (Willful Misconduct); Fourteenth Cause of Action (Negligence); and Fifteenth Cause of Actio...

Excerpt: ...g. [¶] (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 subdivision (e).�...

Excerpt: ...ally 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.” Weddington Productions, Inc. v. Flick (Weddington) (1998) 60 Cal.App.4 th 793, 809-811, states, “Section 664.6 was enacted to pr...

Excerpt: ...rom 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.) Lazar v. Superior Court (Lazar) (1996) 12 Cal.4 th 631, 645, explains, “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] ‘Thus “ ‘the policy of liberal construction of the pleadings . . . will not ordinarily be invok...

Excerpt: ...l 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.) “Under the Claims Act, no suit for ‘money or damages' may be brought against a public entity until a written claim has been pr...

Excerpt: ...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.) “Under the Claims Act, no suit for ‘money or damages' may be brought against a public entity until a written claim has been presented to the public entity and the claim either has been acted upon or is deemed to have bee...

Excerpt: ... asserted in these documents. (Sosinsky v. Grant(1992) 6 Cal.App.4th 1548, 1564-1570.) The court DENIES the Motion because Cross-Defendants/Cross- Complainants fail to submit a separate statement in support of the Motion to Quash as required by Cal. Rules of Ct., Rule 3.1345(a). The court further DENIES the Motion for the reasons below. On 3-7-13, the court granted Cross-Complainants' motion for discovery regarding financial condition (filed on 1...

Excerpt: ...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 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 co...

Excerpt: ...hat 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 summary adjudication, the court need rule only on those o...

Excerpt: ...4 th 394, 420-421, County of Riverside v. Public Employment Relations Board (2016) 246 Cal.App.4 th 20, 32, and Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1404) cited by Plaintiffs do not support their request for a stay. Code of Civil Procedure section 425.16, subdivision (c)(1), states, “Except as provided in paragraph (2), in an action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to re...

Excerpt: ...urt's fundamental power to hear or determine a case, we are persuaded it is more appropriate and just to treat a corporation's failure to be represented by an attorney as a defect that may be corrected, on such terms as are just in the sound discretion of the court. First and foremost, this approach honors the cornerstone jurisprudential policies that, in furtherance of justice, complaints are to be liberally construed (§ 452) and disputes shoul...

Excerpt: ...ck of jurisdiction of the court over him or her.” “When a defendant challenges the court's personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to effective service.' ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 (footnote 35 omitted); Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) Lebel v. Mai (201...

Excerpt: ...rt, 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.” 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 ...

Excerpt: ...ction 452, subdivision (d), as to the existence of the documents marked as exhibits, but not as to the truth of the matters asserted in these documents. (Sosinsky v. Grant (1992) 6 Cal.App.4 th 1548, 1564-1570.) On 3-7-13, the court granted Cross-Complainants' motion for discovery regarding financial condition (filed on 11-28-12). (3-7- 13 Minute Order.) On 7-29-14, the court appears to have confirmed the 3-7-13 ruling. (7-29-14 Minute Order.) On...

Excerpt: ...re section 170.6, subdivision (a)(2), provides, in relevant part, “The fact that a judge, court commissioner, or referee has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion prior to trial, and not involving a determination of contested fact issues relating to the merits, shall not preclude the later making of the motion provided for in this paragraph at the time and in the manner herein pr...

Excerpt: ...rder. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” Code of Civil Procedure section 2031.060, subdivision (b), provides, “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the foll...

Excerpt: ...urprise, 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 . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for reli...

Excerpt: ...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. The defendant . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause...

Excerpt: ... section 452, subdivision (h). Code of Civil Procedure section 526, states, in part, “(a) An injunction may be granted in any of the following cases: [¶] (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or an part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. . . . [¶] (3) When it appears, during th...

Excerpt: ...n designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for i...

Excerpt: ...ck of jurisdiction of the court over him or her.” “When a defendant challenges the court's personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to effective service.' ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 (footnote 35 omitted); Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) Lebel v. Mai (201...

Excerpt: ...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.) As to the first cause of action for medical malpractice, the court finds that the statute of limitations does not bar this cause of action. Committee for Green Foothills v. Santa Clara County Bd. of Superv...

Excerpt: ...act, shall be awarded either to one of 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) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, wheth...

Excerpt: ...e 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 o r mo r e mat er ia l f a c t s ex is t s a s t o th a t c a u s e o f a c t io n o r a d ef en s e thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 82...

Excerpt: ...ng the 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...

Excerpt: ... 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 protect the person from unreasonable or oppressive demands, including unreasonable v...

Excerpt: ...Notice of Intent to Introduce Oral Testimony at Hearing and Notice to Attend Hearing or Trial and Bring Documents and Things are SUSTAINED. 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 publi...

Excerpt: ...ourt 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.]' (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158, 263 Cal.Rptr. 473.) 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 1...

Excerpt: ...e information concerning expert trial witnesses may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] The court, for good cause shown, may make any order that justice requires to prevent any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. The protective order may include, but is not limited to, one or more of the following ...

Excerpt: ...ation for this relief shall be accompanied by a comply 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.” Ron Burns Constructions Co., Inc. v. Moore (2010) 184 Cal.App.4 th1406, 1413 (disapproved on other grounds in Even Zohar Constr. & Remodeling,...

Excerpt: ...sert against the plaintiff the related cause of action not pleaded.” Code of Civil Procedure section 426.50 explains, “. . . The court after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. . . .” “Code of Civil Procedure section 428.10 states, in part, �...

Excerpt: ...Civil Procedure section 428.10 states, in part, “A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: . . . [¶] (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same tr...

Excerpt: ...e consumer does not initiate the transaction, the report may only be provided, if the transaction “involves a firm offer of credit to the consumer . . . .” (Civ. Code, § 1785.11, subd. (b)(2).) Civil Code section 1785.3, subdivision (h), “firm offer of credit” as “[A]ny offer of credit to a consumer that will be honored if, based on information in a consumer credit report on the consumer and other information bearing on the creditworth...

Excerpt: ... 2.) The declaration from Plaintiff's attorney (file on 7-24-18) indicates he “. . . placed the discovery responses for the aforementioned propounded discovery on the desk of my assistant to be formatted and served.” (Chambers Decl., ¶ 9.) Plaintiff's attorney believed the service of the discovery responses occurred in May of 2018. (Chambers Decl., ¶ 11.) The declaration states, “If the Defendants were not served with Discovery Responses,...

Excerpt: ...ce 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 Procedure section 2030.270, subdivision (a), explains, “The party propounding interrog...

Excerpt: ...edure section 2024.050, subdivision (b), lists the criteria a court should consider in exercising it discretion to grant such a motion. On 3-7-13, the court granted Cross-Complainants' Motion for Discovery re Financial Condition. (3-7-13 Minute Order.) On 5-16- 16, the court granted Plaintffs'/Cross-Defendants' motion for stay. (Keathley Decl., ¶ 6 and Exhibit B.) The court has considered the factors under Code of Civil Procedure section 2024.05...

Excerpt: ...for this relief shall be accompanied by a comply 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.” Ron Burns Constructions Co., Inc. v. Moore (2010) 184 Cal.App.4 th1406, 1413 (disapproved on other grounds in Even Zohar Constr. & Remodeling, Inc. ...

Excerpt: ...�� Code of Civil Procedure section 1286.2, subdivision (a)(4), states, “Subject to section 1286.4, the court shall vacate the award if the court determines any of the following: . . . [¶] The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” Defendants assert that the arbitrator exceeded his power by awarding attorney fees because the contract for...

Excerpt: ...ested admission, or set forth an objection to the particular 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,...