Excerpt: ...(q).) The court DECLINES TO RULE on Defendants' Evidentiary Objections (filed on 8-28-23 under ROA No. 427, 428, and 429) as immaterial to the court's decision as set forth below. (Code Civ. Proc., S 437c, subd. (q).) 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, e...

Excerpt: ...way of email on 12-1-22. (ROA No. 554.) Plaintiff filed this Motion on 2-1-23 which is 62 days after the Notice of Entry of Judgment or Order. Plaintiff's Reply (Reply), filed on 5-25-23 under ROA No. 578, states, "Code of Civil Procedure adds additional two court days to the deadline in the event service is effectuated electronically, as it was here." (Reply; 3:18-20 (Emphasis in Reply.).) California Rules of Court, rule 3.1702(b)(1), state,: "A...

Excerpt: ...bit 4 pursuant to Evidence Code section 452, subdivisions (c) and (h). (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 (disapproved on other grounds in Yvanova v. New Century Mortgage Corporation (2016) 62 Cal.4th 919, 939, footnote 13.) the court DENIES the RJN as to Exhibit 3 as immaterial to the court's decision. Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18 (Silv...

Excerpt: ...- complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-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 def...

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

Excerpt: ...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 bears the burden ...

Excerpt: ...iled on 8-24-23 under ROA No. 141) as immaterial to the court's decision as set forth below. (Code Civ. Proc., § 437c, subd. (q).) 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 ...

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

Excerpt: ...imited by this code. Code of Civil Procedure section 576 states, “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, 41-42 (Royal) , states, “ ‘[Code of Civil Procedure] section 437 permits the trial court in its disc...

Excerpt: ...s and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney's fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff's prosecution of the action was not in good faith.” The court notes that Civil Code section 1780, subdivision (e), allows Plaintiff to seek attorneys' fees and costs. (Motion; 7:17- 18 and Opposition; 10:25-28.) The parties do not appear t...

Excerpt: ...as to Exhibit 4 pursuant to Evid. Code, § 452, subd. (d). The court GRANTS the RJN as to Exhibit 3 pursuant to Evidence Code section 452, subdivision (d), to the extent it requests the court to take judicial notice of its ruling on 10-4-22. The court DENIES the RJN as to Exhibit 1. Code of Civil Procedure section 2033.420, subdivision (a), states, “If a party fails to admit the genuineness of any document or the truth of any matter when reques...

Excerpt: ...fied Petition alleges the following causes of action: (1) Writ of Mandate for Violation of Government Code sections 6250 et seq.; (2) Declaratory Relief; and (3) Injunctive Relief. (Petition.) Respondents (Todd Spitzer and County of Orange) filed their Answer to the Petition on 1-3-23 under ROA No. 21. The Petition pertains to five requests pursuant to the California Public Records Act (CPRA). (Petition; ¶ 3.) The Petition alleges the five reque...

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

Excerpt: ...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. [¶] (b) For purposes of this section, a writing is signed by a party if it is signed by any of the following: [¶] (1) The party. [¶] (2) An attorney who represents the part...

Excerpt: ...inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: C'] (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general. [Tl] (b) A motion under subdivision (a) shall c...

Excerpt: ...onal Payments Systems, LLC, Sabin Burrell, and John Hynes). (Motion 1:3-11.) On 3-28-23, the court ordered the parties to meet and confer in an attempt to reach agreement on the Motion and to file a Joint Statement regarding any remaining discovery dispute. (3-28-23 Minute Order.) On 6-29-23 under ROA No. 286, the parties filed a Joint Status Report (Report.) According to the Report, the parties have resolved their dispute as to SI Nos. 21, 22, a...

Excerpt: ...court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.' [Citation.]” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385–386 (Devlin).) Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301 (Sporn), st...

Excerpt: ...bdivision (d). Code of Civil Procedure section 418.10 subdivision (a) states in pertinent part: “(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [¶] (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” Code of Civil Procedure...

Excerpt: ... contends that it is entitled to attorney's fees from Femtometrix. . . . This claim is without merit. As stated above, the Court found its Final Statement of Decision that the rescission voided the assignment to Ascentium. . . . None of the cases cited by Ascentium involve an assignment, let alone an assignment was [sic] voided by the rescission of the underlying contract.” (Opposition; 4:1-5.) The Opposition further states, “Moreover, in add...

Excerpt: ...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.4th 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.” P e r e z v . G o l d e n E m p i r e...

Excerpt: ...division (h). “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, Inc. (1998) 68 Cal.App.4th 445, 459....

Excerpt: ...) Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure sectio...

Excerpt: ...uiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. 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 reas...

Excerpt: ...Motion also states, “Here, Specially Appearing Defendants have alleged that Defendants were not personally served at any time of the purported service after which the burden then shifts to Plaintiff to show that the purported service of the summons and complaint on Specially Appearing Defendants is valid.” (Motion; 6:4-8.) Plaintiff's (Tonia Gadson) Opposition to Specially Appearing Defendants' Motion to Strike and Motion to Quash Service of ...

Excerpt: ...osition 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. . . .” It is somewhat unclear as to the relief that Plaintiff seeks. The Motion states that Plaintiff seeks “. . ....