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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ... 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 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 actio...

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...