Excerpt: ...033.5, and Civil Code section 1717 is support of the Motion. Civil Code section 1293.2 provides, “The court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code.” Code of Civil Procedure section 1032, subdivision (a)(4), states in part, “ ‘Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dism...

Excerpt: ...d 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 Transportation Tran...

Excerpt: ...e action is pending to expunge the notice. . . . Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” Code of Civil Procedure section 405.31 states, ...

Excerpt: ...le. [¶] (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, states, “If the answer to an interrogatory would ne...

Excerpt: ...s, “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” “ ‘The plain wording of the statute requires the tria...

Excerpt: ...errill 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...

Excerpt: ...der California Rules of Court, rule 2.251(c)(3)(B). At the hearing on 2-9-21, the court sought additional information regarding whether Plaintiff (El Veasta Lampley) consented to electronic service. The court finds that Plaintiff consented to electronic service be served electronically and received proper notice of the below motions to compel before the court. In conjunction with a supplemental brief ordered by the court, Defendants attached Exhi...

Excerpt: ...int (FACC). On 12-24-20, Defendants filed this Motion. Plaintiff's (Jack Zhen Zheng) opposition to the Motion was due on 3-16-21. On 2-17-21 under ROA No. 215, approximately one month before the opposition was due, Plaintiff filed a Request for Dismissal of the Complaint with prejudice. Code of Civil Procedure section 581, subdivision (b) states, “An action may be dismissed in any of the following instances: [¶] (1) With or without prejudice, ...

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: ...rly 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 pa...

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

Excerpt: ...sion (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 violation...

Excerpt: ...ection 483.015 or 483.020, if it finds all of the following: [¶] (1) The claim upon which the attachment is based is one upon which an attachment may be issued. [¶] (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. [¶] (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. [¶] (4) The amount to be secured by the attachment i...

Excerpt: ...he subject of the cause of action alleged in the complaint. [¶] (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.” Eckler v. Neutrogena Corporation (2015) 238 Cal.App.4 th 433, 439 (Eckler), 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 ...

Excerpt: ...tiff (Angelica Hermosillo) dismissed second cause of action without prejudice. On 3-9-21 under ROA No. 150, Plaintiff filed a Request for Dismissal that dismissed the battery cause of action. Based on these dismissals, the second cause of action is no longer pending before the court, and the Motion is MOOT as to the second cause of action. Therefore, the court will address the Motion as to the first cause of action for General Negligence based on...

Excerpt: ...le. [¶] (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, states, “If the answer to an interrogatory would ne...

Excerpt: ...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, testing, or sampling of a particular item or category of item. [¶] (3) An objection t...

Excerpt: ...Cal. Rules of Court, rule 2.551(b)(1).) California Rules of Court rule 2.550(d) states, “The court may order that a record be filed under seal only if it expressly finds facts that establish: [¶] (1) There exists an overriding interest that overcomes the right of public access to the record; [¶] (2) The overriding interest supports sealing the record; [¶] (3) A substantial probability exists that the overriding interest will be prejudiced if...

Excerpt: ...must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551(b)(1).) California Rules of Court rule 2.550(d) states, “The court may order that a record be filed under seal only if it expressly finds facts that establish: [¶] (1) There exists an overriding interest that ...

Excerpt: ...a meet and confer declaration under Section 2016.040. [¶] (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: [¶] (1) The necessity and the reasons for the discovery. [¶] (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that th...

Excerpt: ...f 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 justi...

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

Excerpt: ...eposition, filed in support of their motion for summary judgment. (Motion 2:22-28.) “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551(b)(1).) California Rules of Court rule 2.550(d) states, “The court may...

Excerpt: ...) 73 Cal.App.4th 1300, 1306 and CLD Construction, Inc. v City of San Ramon (CLD) (2004) 120 Cal.App.4 th 1141, 1149-1150.) Motion No. 1: Defendants (George Abuhamad, Joan Abuhamad, Switchboard, Inc., and Switchboard, Inc. dba VK Sports, Inc.) Demurrer to the Complaint of Plaintiff (Demurrer), filed on 11-2-20 under ROA No. 20, is SUSTAINED with 14-days leave to amend. Defendant's (Michael Johnson) Demurrer to Second Amended Complaint (Demurrer), ...

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...

Excerpt: ...oldings, Inc.) Motion to Quash Service of Summons for Lack of Personal Jurisdiction (filed on 5-26-20 under ROA No. 41). The court will discuss a continuance date with the parties. On October 6, 2020, the court continued the hearing on Defendants' Motion to Quash to allow Plaintiffs to conduct further jurisdictional discovery. (10-6-20 Minute Order.) Plaintiffs have shown that on November 24, 2020, Plaintiffs served jurisdictional discovery on ea...

Excerpt: ...ly 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 par...

Excerpt: ...f 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.) 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...

Excerpt: ...ied Defendants' Motion. (7- 21-20 Minute Order.) The court did not adopt its tentative ruling and set the Motion on 9- 22-20 for the parties to provide supplemental briefing as to authentication and evidentiary issues. (7-21-20 Minute Order.) On 9-22-20, the court exercised its discretion to conduct an evidentiary hearing. (9-22-20 Minute Order.) The court conducted this hearing on 11-23-20 and 12-18-20. (11-23-20 and 12-18-20 Minute Orders.) The...

Excerpt: ...t 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. . . .” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part,...

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: ...on contends, “From the date of Order until now, the Parties have not been able to participate in arbitration (per the Order) due to Defendants' failure to pay for the arbitration fees (‘Fee'), despite Defendants being the moving party to compel arbitration. Accordingly, Defendants have effectively waived their right to arbitration, and now, Plaintiff submits this Petition to respectfully request this Court to reinstate the matter back to tria...

Excerpt: ...'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, “The party pr...

Excerpt: ...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.” Code of Civil Procedure section 2020.030 provides, “Except as modified in this chapter, the provisions of Chapter 2 (commencing with Section 1985) of Title 3 of Part 4 of this code, and of Article 4 (commencing with Section 1560) of Chapter 2 of Division 11 of the Evidence Code, apply ...

Excerpt: ... showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Ci...

Excerpt: ...y or the defendant may move the court for an order, upon notice and hearing, requiring the plaintiff to furnish security as hereinafter provided. The motion shall be based upon one or both of the following grounds: [¶] (1) That there is no reasonable possibility that the prosecution of the cause of action alleged in the complaint against the moving party will benefit the limited liability company or its members. [¶] (2) That the moving party, i...

Excerpt: ...¶ 6 and Exhibit B): The deposition subpoena directed to Goldome Warehouse Lending requests, “Any and all records of any kind of type whatsoever pertaining to Victor Hung-Ki Loo aka Victor H. Loo aka Victor Loo. DOB: April 06, 1978, SS#: Unknown. And Titan Mutual Lending, Inc. (NMLS# 1604483).” As noted in the court's 9-16-20 Minute Order, “Defendant testified, ‘. . . our first ability to be able to lend comprises of three items. . . You ...

Excerpt: ...Procedure section 1281.2, states, in part, “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arb...

Excerpt: ...tial justification, an unmeritorious objection to discovery. [¶] (f) Making an evasive response to discovery. [¶] (g) Disobeying a court order to provide 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 opportunit...

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

Excerpt: ...nt's (International Marine Products) Joinder in Other Defendants' Motion for Summary Judgment and, in the Alternative, for Adjudication of Issues (Motion) filed on 5-26-20 under ROA Nos. 827 and 829, is CONTINUED to 3-2-21 at 9:00 a.m. in Department C19 for the reasons set forth below. On 8-25-20 under ROA No. 931, Plaintiffs (Plat Form Inc., Zaal Aresh, and Glenn Cha) filed a Separate Statement in Opposition to Motion of Defendants Chihyang Ho, ...

Excerpt: ...ity 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 libe...

Excerpt: ...accordance with Section 483.015 or 483.020, if it finds all of the following: [¶] (1) The claim upon which the attachment is based is one upon which an attachment may be issued. [¶] (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. [¶] (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. [¶] (4) The amount to be secured by...

Excerpt: ...mental Brief (CD Supp. Brief) filed on 10-7-19 under ROA No. 2571 (1:26-2:4); Cross-Complainants' (William Parrish and E. Timothy Fitzgibbons) Supplemental Brief (CC Supp. Brief filed on 11-12-19 under ROA No. 2583 (1:24-27.) “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 a...

Excerpt: ... Development & Design to allow Defendant—5 Oaks Creative Development & Design to reinstate its corporate status. (10-6- 20 Minute Order.) Thus, this Motion applies only to Defendant—5 Oaks Creative Development & Design. The court GRANTS Plaintiff's (Maxim Flexpac, Inc.) Request for Judicial Notice (RJN), filed on 9-23-20 under ROA No. 51, pursuant to Evidence Code section 452, subdivisions (d) and (h). The court GRANTS Plaintiff's Supplementa...

Excerpt: ...laint.” Eckler v. Neutragena Corporation (2015) 238 Cal.App.4 th 433, 439 (Eckler), 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...

Excerpt: ... sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” Plaintiff seeks to compel Defendant (Lee Vincent Cottone) to comply with the court's 2-11-20 order. (Motion; 1:18-2:10.) Plaintiff states, “Defendant should be ordered to comply with the Order by contacting his agents a...

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

Excerpt: ...ice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” Code of Civil Procedure section 405.31 states, in part, “In proceedings under this chapter, the court shall order the notice expunged if the court finds that the plea...

Excerpt: ...il Procedure section 437c, subdivision (b)(3), and with the format requirements of California Rules of Court, rule 3.1350, subdivisions (f) and (h). Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210 (Parkview Villas), states, “The requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties not...

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

Excerpt: ... answer to a complaint shall contain: [¶] (1) The general or specific denial of the material allegations of the complaint controverted by the defendant. [¶] (2) A statement of any new matter constituting a defense.” South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, states, “Generally speaking, the determination whether an answer states a defense is governed by the same principles which are applicable in determining if a compl...

Excerpt: ...lied 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 Transportation T...

Excerpt: ...ty 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).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains,...

Excerpt: ...erred 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 Dist...

Excerpt: ...pinions of Sandra Higelin (Higelin Declaration filed on 11-22-19 under ROA No. 315) to the extent they apply to physicians. 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 ...

Excerpt: ...where physical injuries or death are suffered in the course of employment, workers' compensation proceedings are the sole means of seeking redress against the employer and co-employee (Cal. Labor Code §§ 3600, 3601 and 3602); (2) at oral argument on September 23, 2020, the Court directed the parties to Newland v. County of Los Angeles (2018) 24 Cal.App.5th 676, which had not been cited by either side in their briefs; (3) the Court based its den...

Excerpt: ... An exercise of the party's option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.260, subdivision (a), provides, in relevant part, “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party . . . .” Code of Civil Procedure section 2030.270, subdivision (a), ...

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

Excerpt: ...defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (Bosch...

Excerpt: ..., 14, 15, 17, 22, 27, 33, 37, 41, 46, 47, 60, 64, 67, 69, and 71. The court OVERRULES the remaining objections. “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 o...

Excerpt: ... moots a motion directed to a prior complaint. [Citation.] Thus, once an amended complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint. [Citation.] As our colleagues in Division Two have explained, ‘a court granting plaintiff leave to amend a cause of action should not at the same time attempt to summarily adjudicate material issues which underlie that same cause of action. After a ...

Excerpt: ...Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 (disapproved on other grounds in Yvanova v. New Century Mortgage Corporation (2016) 62 Cal.App.4 th 919, 939, footnote 13.) Code of Civil Procedure section 438, subdivision (c)(1)(B) states, “If the moving party is a defendant, that either of the following conditions exist: [¶] (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. [¶] (ii) T...

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

Excerpt: ...shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in pa...

Excerpt: ...on award.” Code of Civil Procedure section 1285.4, provides, “A petition under this chapter shall: [¶] (a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement. [¶] (b) Set forth the names of the arbitrators. [¶] (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.” Code of Civil Procedure section ...

Excerpt: ...ories 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, “Within 30 days after service of interrogatorie...

Excerpt: ...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).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal....

Excerpt: ...ration and may name as respondents any other persons bound by the arbitration award.” Code of Civil Procedure section 1286 provides in part, “(a) Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following: [¶] (1) The award was procured by corruption, fraud or other undue means. [¶] (2) There was corruption in any of the arbitrators. [¶] (3) The rights of the party were substantially prejudiced...

Excerpt: ...rovides in part, “(a) Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following: [¶] (1) The award was procured by corruption, fraud or other undue means. [¶] (2) There was corruption in any of the arbitrators. [¶] (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. [¶] (4) The arbitrators exceeded their powers and the award cannot be corrected witho...

Excerpt: ...action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 850-851 (Aguilar), 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 ...

Excerpt: ...rected fails to serve a timely response, the following rules apply: . . . [¶] (b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the request be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010.)” Here, Plaintiff served Defendant (Albertine Omani with “Requests for Admission Set No. One, to Albertine Omani” on 1-2...

Excerpt: ...9-16-20 under ROA No. 24). The court OVERRULES the remaining objections. Toal v. Tardif (2009) 178 Cal.App.4 th 1208, 1219, 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 compel arbitration is filed and accompanied by prima facie evid...

Excerpt: ...ce 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 before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be sho...

Excerpt: ...The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court . . . .” Defendant's Amended Notice of Intention to Move for a New Trial (Amended Notice), filed on 9-8-20 under ROA No. 352 designates the following...

Excerpt: ...sation insurance company) initial decision finding Clausman's injuries were not work related. Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code of Civ. Proc., § 437c(c). A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action ...

Excerpt: ...ty to the action or an officer, director, managing agent, or employee of a party, or a person 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 mo...

Excerpt: ...r 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. . . .” If a party to whom interrogatories were directed fails to serve a timely response, the propounding party may move for an order compelling response and for a monetary sanction. (Code...

Excerpt: ... No. 100), Defendant's Motion to Compel Further Responses to Special Form, Set One (filed on 7-31-20 under ROA Nos. 73 and 79) is off calendar. Motion No. 1: Defendant's (Nicholas Caplanis, D.D.S.) unopposed Motion to Compel Plaintiff Elmira Sibgatova's Further Responses to From Interrogatories, Set One (Motion), filed on 6-26-20 under ROA No. 55, is GRANTED. Code of Civil Procedure section 2030.300, states, in part, “(a) On receipt of a respon...

Excerpt: ...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 relief is made no more tha...

Excerpt: ...nce, 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 . . . Notwithstanding any other requirements of this section, the court shall, whenever an application fo...

Excerpt: ...cedure 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 triable issue...

Excerpt: ...ment states in part, “Further, in any action to enforce this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney fees.” (McDonald Decl., ¶ 3 and Exhibit 1 (Paragraph D(6) of the settlement agreement); Moschopoulos Decl., ¶ 2 and Exhibit 1 (Paragraph D(6) of the settlement agreement.) The settlement agreement also provides, “However, if there is a Default Event, Plaintiff must notify Defendant in writin...

Excerpt: ...ce, 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 the reviewin...

Excerpt: ...itations.]” (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, “T...

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

Excerpt: ...ed upon an express or implied contract where the total amount of such claim is a fixed or ‘readily ascertainable' amount not less than $500. (§ 483.010, subd. (a).) [¶] Before an attachment order is issued, the court must find all of the following: (1) the claim upon which the attachment is based is one upon which an attachment may be issued; (2) the applicant has established ‘the probable validity' of the claim upon which the attachment is...

Excerpt: ...lied 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 Transportation T...

Excerpt: ...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, 797 (Weddington), explains, “Section 664.6 creates only a summary procedure for specifically enforcing certain types of settlement agreements by converting them into judgments. It provides that ‘the court, upon motion, may enter judgment pursuant to the te...

Excerpt: ... concerning each other's expert trial witnesses to the following extent: [¶] (a) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.” Fairfax v. Lords (2006) 138 Cal.App.4 th 1019, 1021 (Fairfax) states, “Secti...

Excerpt: ... essential conditions are found in a classic case in equity which seeks to set aside a judgment: first, the judgment is one entered against a party by default under circumstances which prevented him from presenting his case; second, these circumstances result from extrinsic fraud practiced by the other party or his attorney.' ” ' [Citation.] ‘ “Fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been gi...

Excerpt: ...-11-20, the court issued the following tentative ruling: Defendants' (VRBO Holdings, Inc., Homeaway.com, Inc. (erroneously named as Homeaway, Inc.), and Homeaway Holdings, Inc.) Motion to Quash Service of Summons for Lack of Personal Jurisdiction by Specially Appearing Defendants VRBO Holdings, Inc., Homeaway.com, Inc. (erroneously named as Homeaway, Inc.), and Homeaway Holdings, Inc. (Motion), filed on 5-26-20 under ROA No. 41, is GRANTED. Defen...

Excerpt: ...7.1 states, in part, “(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order qu...

Excerpt: ...deems that either or both of the following apply: [¶] (1) An answer to a particular request is evasive or incomplete. [¶] (2) An objection to a particular request is without merit or too general. [¶] (b)(1) 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...

Excerpt: ...ion of Kurt Baker (filed on 5-26-20 under ROA No 90): The court OVERRULES all of the objections. 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. On...

Excerpt: ...9. The fourth cause of action is for Sexual Relations with a Patient in Violation of Business and Professions Code section 726. Defendant contends, “California Law does not provide for a private cause of action under either Bus & Prof. Code §§ 726 or 729.” (Demurrer; 3:3-4.) Crusader Ins. v. Scottsdale Ins. Co. (1997) 54 Cal.App.4th 121, 126-127, states, “The commentary to Restatement Second of Torts section 874A identifies four categorie...

Excerpt: ... that justice requires to protect any party, deponent, or other natural person or organization 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 following directions: . . . [¶] (2) That the deposition be taken at a different time. . . . [¶] (4) That the deposition be taken at a place other than that specified in the deposition notic...

Excerpt: ...ction. [Citations.]” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 441-442; footnote 7 omitted.) “A trial court deciding whether to issue a preliminary injunction weighs two interrelated factors—the likelihood the moving party will prevail on the merits at trial and the relative balance of the interim harms that are likely to result from the granting or denial of preliminary injunctive relief. [Citations.]” (County of Kern v...

Excerpt: ... 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 . . . .” Ron Burns Constructions Co., Inc. v. Moore (2010) 184 Cal.App.4 th 1406, 1413 (disapproved on other grounds in Even Zohar Constr. & Remodeling, Inc. v. Bellaire Tow...

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