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,...

Excerpt: ... Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (Rosenthal ), our Supreme Court set forth the procedure to be followed when a petitioner 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...

Excerpt: ...an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence. [¶] (1) 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...

Excerpt: ...ding beyond “. . . its Supplemental Response to Special Interrogatories Nos. 41-42, Set No. 3, or provide further production to Request for Productions Nos. 41-42., Set No. 3 . . . .” (Defendant's Notice of Motion, 2:6- 14.) The court, however, previously ordered Defendant to provide further responses to the subject discovery on April 17, 2018. (Fellmeth Decl., ¶ 3 and Exhibit A; see also, 4-17-18 Minute Order.) Although Defendant contends t...

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.) As to the Second Cause of Action (Harassment Based on Sex), CACI No. 2521A explains the elements a Plaintiff must prove to establish this cause of action. Here, the First Amended Complaint adequately alleges this cause of action. The alleged actions b...

Excerpt: ...ding beyond “. . . its Supplemental Response to Special Interrogatories Nos. 41-42, Set No. 3, or provide further production to Request for Productions Nos. 41-42., Set No. 3 . . . .” (Defendant's Notice of Motion, 2:6- 14.) The court, however, previously ordered Defendant to provide further responses to the subject discovery on April 17, 2018. (Fellmeth Decl., ¶ 3 and Exhibit A; see also, 4-17-18 Minute Order.) Although Defendant contends t...

Excerpt: ...the deleted allegations are located; and [¶] (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. [¶] (b) A separate declaration must accompany the motion and must specify: [¶] (1) The effect of the amendment; [¶] (2) Why the amendment is necessary and proper; [¶] (3) When the facts giving rise to the amended allegations w...

Excerpt: ...ternational USA, Inc. went forward, and “. . . Plaintiff's counsel was present by telephone throughout the deposition.” (Exkigian Decl., ¶ 6.) Defendant's (D'Andrea Visual Communications, LLC) Request for Sanctions as to Motion Nos. 1 and 2: On 6-5-18, the court issued a tentative ruling as to Motion Nos. 1 and 2 that stated, “Based on the Plaintiff's Notice of Withdrawing the Motions for Protective Orders (filed on 5-30-18), these motions...

Excerpt: ...(a), provides, “If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.” Plaintiff has not provided any authority showing that this court may enter an interlocutory judgment by way of a motion. Code of Civil Procedure section 872...

Excerpt: ...-Whitney Co. v. Glen (Bancroft-Whitney) (1966) 64 Cal.2d 327, 345, states, “ ‘ Corporate officers and directors are not permitted to use their position of trust and confidence to further their private interests. While technically not trustees, they stand in a fiduciary relation to the corporation and its stockholders. A public policy, existing through the years, derived from a profound knowledge of human characteristics and motives, has estab...

Excerpt: ...omplete. [¶] 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 be accompanied by a meet and confer declaration. [¶] (c) Unless n...

Excerpt: ...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.) Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4 th 612, 616, states, “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can ...

Excerpt: ...t 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.” “A motion for reconsideration may only be brought if the party moving for reconsideration can offer “new or different facts, circumstances, or law” which it could not, with reasonable diligence, have been discovered and produced at the time of the prior motion. A motion fo...

Excerpt: ...ry and investigation are ongoing. Plaintiff reserves the right to supplement this response in furtherance of discovery.” (Defendant's “Separate Statement in Support of Motion to Compel Further Responses to Special Interrogatories, Set No. Two” (filed on 5-16-18).) Code of Civil Procedure section 2030.300, states, in part, “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further res...

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: [¶] (a) The party to whom the demand for inspection, c9opying, testing, or sampling is directed waives any objection the demand . . . [¶] (b) The party making the demand may move for an order compelling response ...

Excerpt: ...��A prevailing defendant, however, should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so. [Citation.]' (Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4 th 97, 115; italics in original.) Here, there is no opposition to Plaintiff's motion. With respect to the first cause of action, the court finds th...

Excerpt: ...judicial notice of the definition of the words “the, “perform,” and “performance,” pursuant to Evidence Code section 451(e). Toal v. Tardif (2009) 178 Cal.App.4 th 1208, 1209, provides, “In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (Rosenthal ), our Supreme Court set forth the procedure to be followed when a petitioner seeks to compel arbitration: ‘[W]hen a petition to ...

Excerpt: ...on (a), provides, The party to whom interrogatories have been propounded shall respond in writing under 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, “...

Excerpt: ... 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 straight forward 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) If the respondi...

Excerpt: .... Further, Plaintiff failed to meet and confer as required by Code of Civil Procedure section 2025.450, subdivision (b)(2). Code of Civil Procedure section 2025.450, subdivision (b)(2), states, “The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition . . . by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearanc...

Excerpt: ...r, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. [Citation.] “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 impl...

Excerpt: ...Plaintiff within the meaning of Code of Civil Procedure section 2033.280, subdivision (c) and California Rules of Court, rule 3.1348 (a). Although Plaintiff's counsel asserts circumstances make the imposition of sanctions unjust (Chambers Decl., ¶ 8), Code of Civil Procedure section 2033.280, subdivision (c), does not provide the court with authority to deny sanctions on this basis. Code of Civil Procedure section 2033.280, subdivision (c), stat...

Excerpt: ...leges that the parties amended their agreement in 2014. (SACC, ¶ 36.) The SACC pleads breach because, “The promised advertising did not occur. . . .” (SACC, ¶ 36.) Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 stated, “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar . . . to be raised by dem...

Excerpt: ...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, Inc. (1998) 68 Cal.App.4 th 445, 459.) Khoury v. Maly's...

Excerpt: ...ngs. [¶] (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 interrogatories,...

Excerpt: ...n part, “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without merit or too general. . . . [¶] (c) Unless notice of this motion is given within 45 days of the service of the verifie...

Excerpt: ...e plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” “A party may move for summary adjudication as to one or more causes of action within an action . . . if that party contends that the cause of action has no merit . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action . . . .” (Code Civ. Proc., § 437c, sub...

Excerpt: ... convenient, less burdensome, or less expensive. [¶] (2) The selected method of discovery is unduly burdensome . . . .” Code of Civil Procedure section 2025.030, explains, “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers . . . who are m...

Excerpt: ...ty has shown that one or more elements of the cause of action . . . cannot be established. 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 . . . .” (Code Civ. Proc., § 437c, subd. (p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.) Defendants have met their initial burden of establishing that their c...

Excerpt: ...thin the meaning of section 877.6: “(1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, (2) the amount paid in settlement, (3) the allocation of settlement proceeds among plaintiffs, and (4) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include (5) the financial conditions and insurance policy limits of ...

Excerpt: ...unction of a demurrer, challenging only defects on the face of the complaint.' [Citation.]' As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.' [Citation.] “A trial court's determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes. [Citations.] In addit...

Excerpt: ...7 form the basis for Plaintiff's Motion for New Trial as stated in the Notice of Intent. Here, it appears that Plaintiff is requesting a new trial as to damages. Plaintiff asserts, “The court should not have modified the judgment of $286,198.00 awarded by the jury against Defendants . . . .” (Motion for New Trial filed on 5-11-18 (Motion), 1:37-38.) It appears that Plaintiff is claiming that the ambiguity in the verdicts regarding damages req...

Excerpt: ...nted in the following cases: . . . [¶] (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.” Smith v. Adventist Health System/West (2010) 182 Cal.App.4 th 729, 749, provides, “A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the like...

Excerpt: ...s—General” . . . “Set No. Two (Request for Admissions)” on 1-12-18. (Malone Decl., ¶ 2 and Exhibit A.) Defendants have not received any discovery response to this request. (Malone Decl., ¶ 4.) Based on Plaintiff's failure to respond, the court GRANTS Defendants' (Syed Hussein and Nikki Hussein) Motion to Compel Plaintiff's Response to Defendants' Form Interrogatories, Set Two (filed on 4-9-18). The court orders Plaintiff to provide veri...

Excerpt: ...3) An objection to an interrogatory is without merit or too general. . . . [¶] (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 specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” Code of Civil Proc...

Excerpt: ...omplete . . . [¶] (3) An objection to an interrogatory is without merit or too general. . . . [¶] (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 specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.�...

Excerpt: ...ed 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 its existence by a preponderance of the evidence.' . . .” Defendant moves to compel arbitratio...

Excerpt: ...ollowed when a petitioner 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 bear...

Excerpt: ...d, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citations.] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. [Citation.] However, because the right to costs is governed strictly by statute [citations] a court has no discretion to award costs not statuto...

Excerpt: ...acts 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.) Corporations Code section 409, subdivision (a)(1), states, “Shares may be issued: [¶] (1) For such consideration as is determined from time to time by the board, or by the shareholders if the articles so provide, consisting of any or all of the f...

Excerpt: ...for the purpose of reducing the premium, rate, or cost of the insurance. Any person convicted of violating this subdivision shall be punished by imprisonment in a county jail for one year, or pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or five years, or by a fine not exceeding fifty thousand dollars ($50,000), or double the value of the fraud, whichever is greater, or by both that imprisonment and fine.” Paragr...

Excerpt: ...amages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice.” (Turman v. Turning Point Of Central California, Inc. (2010) 191 Cal.App.4 th 53, 63.) Civil Code section 3294, subdivision (b), explains the circumstances under which punitive damages may apply to an ...

Excerpt: ...rally 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 (1998) 60 Cal.App.4 th 793, 810 (Weddington), states, Although a judge hearing a section 66...

Excerpt: ...emanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply… (1) A statement of compliance with the demand is incomplete.” (The court notes that the only party that served the subject discovery request is Defendant Anh Nguyen. (Nguyen Decl., ¶ 4 and Exhibit A.)) CCP § 2031.310(a)(1) provides: “On receipt of a response to a demand for inspection, copying, testi...

Excerpt: ...n part, “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without merit or too general. . . . [¶] (c) Unless notice of this motion is given within 45 days of the service of the verifie...

Excerpt: ...“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 production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. [¶] (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition . . . b...

Excerpt: ...n 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 party may agree to extend the time for service of a response ...

Excerpt: ...ed or readily ascertainable amount not less than $500; (2) The creditor's claim is probably valid; (3) The attachment is not sought for any purpose other than securing the creditor's claim; and (4) The amount secured by the attachment is greater than zero. (Code of Civ. Proc, §§ 483.010 and 484.090.) An attachment may issue only upon a claim for money based upon an express or implied contract. (Code Civ. Proc., § 483.010, subd. (a).) Under Cod...

Excerpt: ...the trial court, that discretion is not unfettered. For instance, except under limited circumstances, the court may not consider the convenience of the parties or of their employees in passing upon the motion. [Citations.] There is, however, an exception to the rule prohibiting consideration of convenience to a party when ‘the serious illness of a party will prevent his traveling to attend the trial in the other county and his testimony is mate...

Excerpt: ...thorizes terminating sanctions for misuse of the discovery process. (See also, Code Civ. Proc., § 2023.010.) Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4 th 967, 992, states, “The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, sho...

Excerpt: ... she stated on the record that she understood and agreed to the terms stated as part of the settlement agreement. In light of the settlement recited in open court, the court dismissed the Complaint and Cross-Complaint with prejudice. Court clerk is to give notice. ...

Excerpt: ...Permanente Billing Department/Civil, and S.C.P.M.G./Radiology. The subpoenas are overbroad because they seek Plaintiff's entire lifetime medical history. Plaintiff's lifetime medical history is not reasonably at issue. The court expects the parties to meet and confer on this issue before filing any subsequent motion related to this discovery. The court imposes sanctions in the amount of $1,125.00 against Defendant because it does not appear that ...

Excerpt: ...s (return receipt requested), Moving Counsel called Plaintiff's last known telephone number, Moving Counsel made attempts to contact Plaintiff's guardian for four months, and Moving Counsel served the guardian with the motion at an email address provided by the guardian in November of 2017. Thus, the above shows that Moving Counsel has complied with California Rules of Court, rule 3.1362. The declaration states, in part, “There has been a compl...

Excerpt: ... without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it . . . the party giving the notice may move for an order compelling the deponent's attendance and testimony . . . .” Code of Civil Procedure section 2025.450, subdivision (b)(2), states in relevant part, “A motion under subdivision (a) shall comply with both of the following: . . . [¶] (2) The motion shall be accompanied by ...

Excerpt: ...calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Civil Code section 1785.19, states, in relevant part, “(a) In addition to any other remedy provided by law, a consumer may bring an action for a civil penalty . . . against any of the following: [¶] (1) A person who knowingly and willfully obtains access to a file other than as provided in Section 1785.11. [¶] (2) Any person who knowingly and willfully...

Excerpt: ...�� 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 admissions and the...

Excerpt: ...own, may make any order that justice requires to protect 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 directions: . . [¶] (6) That a party or a side reduce the list of employed or retained experts designated by that party or side under subdivision (b) of Section 2034.210. Plaintiff has not complied with Code of C...

Excerpt: ...ntial probability of prevailing on a claim as required by Code of Civil Procedure section 425.13. The court disregards the new evidence attached with the reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4 th 1522, 1537-1538.) Defendant's attorney contacted the court clerk on Friday, 5-18-18, and informed the court clerk that Defendant was taking the following motions off calendar: (1) Defendant's Motion to Compel Responses to Defendant's Form In...

Excerpt: ...er impair or impede his ability to protect that interest or (ii) leave any of the person already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.” Plaintiffs seek to join First American Title Insurance Company (First American). The Complaint for Joinder alleges that First Ameri...

Excerpt: ...t, “. . . The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” “It is well established that ‘California 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.” [Ci...

Excerpt: ...tion at law sits in the twilight zone of abatement with the trial court retaining merely vestigial jurisdiction over matters submitted to arbitration.' [Citation.] During that time, under its ‘vestigial' jurisdiction, a court may: appoint arbitrators if the method selected by the parties fails (§ 1281.6); grant a provisional remedy ‘but only upon the ground that the award to which an applicant may be entitled may be rendered ineffectual with...

Excerpt: ...f 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 Procedure section 2030.270, subdivision (a), explains, “T...

Excerpt: ...ompliance 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 be accompanied by a meet and confe...

Excerpt: ...ompanied by a declaration which sets forth a brief background of the case is sufficient.” Here, no opposition has been filed. The Complaint, Defendants' Motion, and the declaration of James M. Goldman together make a showing that the settlement reached Defendants and Plaintiffs was in good faith. Defendants (Eloy Chavez and Donna Chavez) are to give notice. Defendant's (Holt Meyer who is also ca Cross-Complainant and Cross-Defendant) Motion for...

Excerpt: ...t's Motion to Strike (filed on 3-5-18) is MOOT, and off calendar. Defendant's Demurrer challenges the first (Intentional Misrepresentation) and second (Negligence) causes of action. “The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. [Citation.]” (Chapman v. Skype Inc. (2013) 220...

Excerpt: ...e 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.” “A party may move for summary adjudication as to one or more causes of action within an action . . . if that party contends that the cause of action has no merit . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action . . . .” (Code Civ...

Excerpt: ... as a basis for judgment. Because there is but one complaint in a civil action, the filing of an amended complaint moots a motion directed to a prior complaint. Thus, the filing of an amended complaint renders moot a demurrer to the original complaint.” (Internal quotation marks and citations omitted.) ...

Excerpt: ...heir seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) Defendants are to give notice. ...

Excerpt: ...e Second (Negligent Infliction of Emotional Distress), Fifth (Assault and Battery) and Seventh (Failure to Obtain Informed Consent) Causes of Action. Initially, the Demurrer, based on the statutes of limitation, is OVERRULED because Defendant failed to address the “relations-back doctrine.” “ ‘ “ ‘[a] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] . . . .' �...

Excerpt: ...g sanctions pursuant to Code of Civil Procedure section 2023.030, subdivision (d) for misuse of the discovery process. (Code Civ. Proc., § 2030.010.) Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4 th 967, 992, states, “The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and its effect on the party seeking d...

Excerpt: ...eeding. For the purposes of this section, ‘attorney's fees' means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract. [¶] (b) The motion shall be made on the grounds that the plaintiff resides out of the state . . . 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 a...

Excerpt: ...take, 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.” Neglect is excusable where “. . . ‘ “a reasonably prudent person under the same ...

Excerpt: ... to deliver, at the Property, respective letters . . . drafted to each Defendant, providing noticed that the City of Mission Viejo would be appearing ex parte . . . .” (4-16-18 MacMillan Decl., ¶ 5 and Exhibits B and C.) Although this declaration satisfies the ex parte notice requirements of California Rules of Court, rule 3.1204(b), there is no indication Defendants received the moving papers that support the requested relief. Additionally, o...

Excerpt: ...itations.] [¶] ‘There is a difference between the capacity to sue, which is the right to come into court, and the standing to sue, which is the right to relief in court.' [Citation.] ‘Incapacity is merely a legal disability, such as infancy or insanity, which deprives a party of the right to come into court. The right to relief, on the other hand, goes to the existence of a cause of action. It is not a plea in abatement, as is lack of capaci...

Excerpt: ...all be answered to the extent possible. [¶] (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” Code of Civil Procedure section 2030.230, provides, “If t...

Excerpt: ...al.App.4 th 433, 439, states, “ ‘A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.' [Citation.]' As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.' [Citation.] “A trial court's determination of a motion for judgment on the pleadings...

Excerpt: ...pposition to Plaintiff Risi Companies LLC Motion for Attorney Fees and Costs (Opposition 2-21-18), 8:15-9:18.) Initially, the Opposition contends that Plaintiff did not comply with ¶ 26(A) of the contract that conditions the recovery of attorney fees on engaging in mediation before commencing an action. ¶ 26(A) of the contract states, in part, “If for any dispute, or claim to which this paragraph applies, any party (i) commences an action wit...

Excerpt: ...na Rules of Court, rule 3.1350(b) and (d). 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...

Excerpt: ...f 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 be accompanied by a meet and co...

Excerpt: ...ies, 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 (Flick) (1998) 60 Cal.App.4 th 793, 810, states, “Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment, [citation] nothing in section 664.6 authorizes a court to cr...

Excerpt: ... Hose Kim, M.D.,” “West Star Physical Therapy,” Tower Orthopaedics,” “Shin MRI, LLC,” and “Healthcare Partners Medical Group.” The insurance providers receiving a deposition subpoenas is identified as “Anthem Blue Cross Life and Health Insurance Company.” “Healthcare Partners Medical Group” also received a deposition subpoena for its billing records. Code of Civil Procedure section 1987.1 states, “(a) If a subpoena requi...

Excerpt: ...ines 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), explains, “As used in this section, ‘act in furtherance of a person's right of petition or ...

Excerpt: ...ioins], and the burden of showing that an itme is not properly chargeable or is unreasonable is upon the [objecting party].' [Citations.]” Gordon E. Runyon filed a Memorandum of Costs on Appeal on 12-29-17 requesting $5,964.29 in costs. Defendants assert the costs claimed by Mr. Runyon are inflated, unsupported and likely include costs incurred by his former wife, as to her unsuccessful appeal. (Defendants' Notice of Motion and Motion to Tax Co...

Excerpt: ...bjection to a particular request is without merit. [¶] (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 specific later date to which the requesting party and the responding party have agreed in writing, the requesting party...

Excerpt: ...led 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 its existence by a preponderance of the evidence. If the party opposing the pet...

Excerpt: ...s uncertain, because ambiguities can be clarified under modern discovery procedures. [Citation.]” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4 th 612, 616.) The court finds the facts pled as to these causes of action are not so uncertain that Defendant cannot reasonably respond. Third Cause of Action (Breach of Warranty Against Westcoat): “ ‘ “It is a settled rule of the law of agency that a principal is responsible to third ...

Excerpt: ...Opposition to Plaintiff Risi Companies LLC Motion for Attorney Fees and Costs (Opposition 2-21-18), 8:15-9:18.) Initially, the Opposition contends that Plaintiff did not comply with ¶ 26(A) of the contract that conditions the recovery of attorney fees on engaging in mediation before commencing an action. ¶ 26(A) of the contract states, in part, “If for any dispute, or claim to which this paragraph applies, any party (i) commences an action wi...

Excerpt: ... a personal representative, the plaintiff shall join the personal representative as a defendant. [¶] (b) If a person required to be named as a defendant is dead, or is believed by the plaintiff to be dead, and the plaintiff knows of no personal representative: [¶] (1) The plaintiff shall state these facts in an affidavit filed with the complaint. [¶] (2) Where it is stated in the affidavit that such person is dead, the plaintiff may join as de...

Excerpt: ... 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 straight forward 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) If the responding party does not have...

Excerpt: ...ction. 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 causer acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.” It appears that the Cross-Defendants' claims in the proposed Cross-Complaint arise out of same set of c...

Excerpt: ...ion of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide.” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4 th 927, 934.) Plaintiff's Memorandum of Points and Authorities refers to Code of Civil Procedure sections 2020.010,...

Excerpt: ...d Cause of Action for Defamation (filed on 1-5-18) is GRANTED. 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 motion to strike, unless the court dete...

Excerpt: ...onstrating fraud, malice or oppression. Here, paragraphs 45 through 51 of the First Amended Complaint insufficiently plead facts that justify the imposition of punitive damages under a malice, oppression, or fraud theory. (Civ. Code, § 3294.) For example, a conclusory allegation that Defendant (a corporation) was on notice that its trees were causing damage without alleging how Defendant gained this knowledge insufficient to warrant punitive dam...

Excerpt: ...ation of the non-pass through claims, Defendant Liberty has not initiated any proceedings against Plaintiff which would have required Liberty to initiate mediation. Further, while Plaintiff asserts mediation would be futile, there is no provision in the contract which indicates futility is an exception to enforcement of this provision. Finally, the Court notes Plaintiff has nonetheless indicated it is willing to attend mediation. (¶ 8 of Sposeto...

Excerpt: ...e procedures set forth in Code of Civil Procedure section 1011, subdivision (b). Code of Civil Procedure section 1011, subdivision (b), states, in part, “If the party's residence is not known, then service may be made by delivering the notice or papers to the clerk of the court, for that party.” Third, the Proposed Order filed with the court does not include the client's last known telephone number (if any), the next scheduled hearing date, a...

Excerpt: ...¶ 16 and Exhibit 8.) Code of Civil Procedure section 473, subdivision (b), states, in relevant part, “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is m a d e n o mo r e t h a n s i x m o n t h s a f t e r e n t r y of ju d g m e n t , i s i n p r o p e r f or m , a n d i s a c c o m p a n i e d by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise...

Excerpt: ...quest is without merit. [¶] (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 specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel...

Excerpt: ...the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete. [¶] An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. [¶] (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. [¶] (c) Unless notice of this...

Excerpt: ...uested admission, or set forth an objection to the particular request.” Code of Civil Procedure section 2033.220, explains, “Each answer in a response to request for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. [¶] (b) Each answer shall: [¶] (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasona...

Excerpt: ...thdrawing attorneys and firm as to expenses and fees . . . .” Thus, the declaration submitted in support of this Motion supports withdrawal under Rules of Professional Conduct, rule 3-700, subdivision (C)(1)(d) and (f). Moving Counsel is to provide the court with an updated order indicating the future dates of 4-17-18 (Motion to Compel Deposition) and 5-15-18 (Jury Trial). Moving Counsel will remain the attorney of record for Chilemar, Inc. unt...