Excerpt: ... sustained. Defendant's remaining objections are overruled. New Evidence Submitted With Reply Plainti
¯s submitted new evidence in support of their reply. “The general rule of motion practice . . . is that new evidence is not permitted with reply papers. . .‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . .' and if permitted, the other party should be given the opportunity to...

Excerpt: ... in some respects uncertain, because ambiguities can be clariÞed under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains su
¯icient facts entitling plainti
¯ to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumpt...

Excerpt: ...Group 2023) ¶ 7:162.1.) The court exercises its discretion to consider the merits of the demurrer and motion to strike. Plainti
¯s opposition exceeded the 15-page limit, without seeking leave to Þle a longer memorandum. The opposition also did not include a table of contents or table of authorities. (Cal. Rules of Court, rule 3.1113(d) & (f).) The court considered the opposition, given that Defendant improperly combined the demurrer and motio...

Excerpt: ...' request for judicial notice of Exhibits A through E (ROA 65), is granted. (Evid. Code, § 452, subd. (c); see Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194.) In taking judicial notice, the court does not take judicial notice of the truth of the matters stated therein. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Violations of California Foreclosure Statutes (Civ. Code §§ 2924 et seq., ...

Excerpt: ...to do so. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 574.) Code of Civil Procedure secton 761.020 provides that in any action to quiet title to real property "[t]he complaint shall be verified." Here, Plaintiffs Complaint is unverified. Accordingly, the motion to strike is granted with 15 days leave to amend. OSC RE: PRELIMINARY INJUNCTION The court grants Defendant's request to issue a preliminary injunction restraining Plaintiff and ...

Excerpt: ...mplainants Michael Akpeke, MO, PL, dba Delta Internal Medicine Center and Michael Akpeke's Crosscomplaint for forum non-conveniens. 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 to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc„ S 418.10, subd. (a)(l).) A par...

Excerpt: ...ned to encourage the parties to work out their differences informally so as to awid the necessity for a formal order. This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293; Code Civ. Proc„ SS 2016.040, 2031.310, subd. (b)(2).) Defense counsel stated that...

Excerpt: ... any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice." (Code Civ. Proc, S 2025.450, subd. (a).) A motion to compel must: (1) "set forth specific facts showing...

Excerpt: ...f service of the signed order upon the clients and other parties. Ms. Birndorf shall give notice of the ruling. MOTION TO COMPEL PRODUCTION Plaintiff Craig Ziegler's motion to compel Defendant Joseph Del Signore's ("Defendant") further responses to his requests for production of documents, set one, is granted in part and denied in part as set forth below. Nos. 1-18, 27-32, 41, and 43 In addition to various objections, Defendant states in his resp...

Excerpt: ...ate a reply separate statement. Defendant did not obtain prior permission from the court to file a reply to Plaintiffs separate statement. Accordingly, this document was not considered. A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc„ S 437c, subd. (c).) The scope of this ...

Excerpt: ...ry Objections The court overrules the Garrett Defendants' evidentiary objections to the opinions expressed in paragraphs 7 and 8 of the Declaration of Albert G. Handelman, as well as the testimony that provides the basis for those opinions in paragraphs 9 and 10. The court liberally construes the declaration of Plaintiff's expert, and determines Handelman adequately states the matters relied on in expressing these opinions and also provides a rea...

Excerpt: ...een a consumer and another person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement." (Civ. Code, S 1751, subd. (e).) Defendant asserts the allegation that "Plaintiff and Defendant transacted for the lease of the Subject Vehicle" (FAC, at '1 63), is directly contradicted by the earlier allegation that "Plaintiff leased a new 2022 Volkswagen ID 4... from N...

Excerpt: ...e "[i]f a party to whom interrogatories are directed fails to serve a timely response." (Code Civ. Proc., S 2030.290, subd. (bj.) ay failing to serve timely responses, Plaintiff waived "any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product." (Code Civ. Proc„ S 2030.290, subd. (a).) A propounding party ma...

Excerpt: ...ed fails to serve a timely response." (Code Civ. Proc., S 2030.290, subd. (b).) By failing to serve timely responses, Plaintiff waived "any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product." (Code Civ. Proc., S 2030.290, subd. (a).) A propounding party may move for an order compelling responses to a deman...

Excerpt: ... may move to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under Code of Civil Procedure secton 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., S 2030.300, subd. (a).) A motion to compel further responses to interroga...

Excerpt: ...bd. (a)(l).) 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 or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code of Civ. Proc., S 473, subd. Additionally, any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may ...

Excerpt: ...rotective order that Defendant filed "to delay" the discovery, contending the motions were untimely and frivolous. (Mot. Memorandum of Points and Authorities ["MPA"], at pp. 11-16 [ROA 781.) The Law on Discovery Sanctions "A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought." (Code Civ. Proc., S 2023.040.) For issue or evid...

Excerpt: ...pear within the "four corners" of the pleading — which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer "admit[s] all the properly pleaded material facts" and "even the most improbable alleged facts" are accepted as true. (Nolte v. Cedars-Sinai Medical Center (2...

Excerpt: .... Rules of Ct., rule 2.550(c) ["Unless confidentiality is required by law, court records are presumed to be open." l.) Although that right is not absolute, the moving party has the burden to meet the requirements set forth in California Rules of Court 2.550-2.551. 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).) To grant ...

Excerpt: ...l service of a summons on such party." (Code Civ. Proc., S 410.50, subd. (a).) " ' "A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service." [Citation.]' [Citations.]" (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.) A defendant appears in an action when the defendant, among other things, answers. (Code Civ. Proc., S 1014.) Furthermore, "...

Excerpt: ... Good cause must be shown. (Code Civ. Proc., SS 2032.310, 2032.320.) As noted by a well-regarded practice guide, under the wording of Code of Civil Procedure section 2032.220, subdivision (a), when there are several defendants, "a plaintiff arguably may be compelled to submit to as many examinations as there are codefendants." (Weil & Brown, Cal. Practce Guide: Civil Procedure Before Trial (The Rutter Group 2023) 8:1522.) "This may be a 'glitch' ...

Excerpt: ...ounsel could have sent the meet and confer letter more than five days prior to the moton deadline. However, the court considers the circumstances leading up to that meet and confer letter, defense counsel's early request for more time to meet and confer, and Plaintiffs counsel's refusal to extend time for a motion to compel. Given that Plaintiff stands on her responses here, the court finds that any further meet and confer effort would have been ...

Excerpt: ...rial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or it may consolidate the actions." The summary procedures of an unlawful detainer action apply in routine cases in which the tenant has failed to pay rent, not a case involving dispute over title. (ld. at pp. 387-390.) Here, Plaintiff and Defendant each assert ownership of the property at issue. ...

Excerpt: ...amily 1998 Revocable Trust, and Defendants Brenda Mandelbaum and Uri Mandelbaum, as trustees of the Mandelbaum Trust dated November 1, 1988. 2. Defendant SNP Pharmacy, LLC received no consideration for transferring all its interests in the Batavia Property to Defendants Bentzion Mandelbaum and Michelle Mandelbaum, as trustees of the Mandelbaum Family 1998 Revocable Trust, and Defendants Brenda Mandelbaum and Uri Mandelbaum, as trustees of the Man...

Excerpt: ...ormed counsel: "No appearance is necessary if the Request for Dismissal is filed five (5) court days prior to hearing, otherwise counsel to appear. [q] If there is no appearance at the Order to Show Cause hearing, the court may dismiss this case without any further notice to parties." (2/27/2023 Minute Order.) The parties waived notce. (2/27/2023 Minute Order.) On May 5, 2023, Plaintiffs' counsel (Chong Roh) appeared at the order to show cause he...

Excerpt: ... to an undivided 50% interest ("The Tiltons") remove an unapproved fence located at 713 Avenida Azor, San Clemente, California, 92673 (the "Property"). The request for preliminary injunction is denied. Legal Standard An injunction may be granted where it appears by the complaint that the plaintiff is entitled to the relief demanded and the relief consists in restraining the commission or contnuance of the act complained of. (See Code Civ. Proc., ...

Excerpt: ....) On May 12, 2023, the court ordered Plaintiff to provide further responses to TWDC Enterprises 18 Corp. motions to compel further responses to form interrogatories, set one, special interrogatories, set one, and requests for production of documents, set one, within 20 days of notice of the ruling. The court also ordered Plaintiff to provide further responses to Defendant Walt Disney Parks and Resorts U.S., Inc.'s motions to compel further respo...

Excerpt: ...aintiff's gross negligence claim (FAC, page 20, 104-106; page 24 at line 22). The remainder of the motion is denied. Defendants move to strike the claim for exemplary and punitive damages and all references supporting the same in the FAC. A plaintiff may recover exemplary damages in an action for the breach of an obligation not arising from contract if the plaintiff proves by clear and convincing evidence that defendants are "guilty of oppression...

Excerpt: ...l. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) '19.53. la.) Failure to Serve Statement of Damages Prior to Entry of Default Defendant contends the default and default judgment are void because Plaintiff Paul Barnat, D.D.S., failed to serve a statement of damages prior to seeking entry of default. Code of Civil Procedure section 425.11 states in pertinent part: (b) When a complaint is filed in an action to recover damages ...

Excerpt: ... However, the Court declines to consider Plaintiffs' supplemental brief filed on November 28, 2023. Evidentiary Objections Omar Daher's objection to paragraph 41 of Joseph Dib's 11/13/2023 Declaration is sustained. Omar Daher's objections to paragraphs 21, 22, 24 (erroneously numbered 21 on page 8, line 12), 25, and 33 of Monica Dib's 11/13/2023 Declaration are sustained. Omar Daher's objection to paragraph 24 of Nassar's Declaration is sustained...

Excerpt: ...s." (Olinick v. BMG Entertainment (20436) 138 Cal.App.4th 1286, 1294.) Code of Civil Procedure section 418.10, subdivision states: "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 cause allow, may serve and file a notice of motion . [t]o stay or dismiss the action on the ground of inconvenient forum." California (and federal) courts presume the validity of forumselecton clauses....

Excerpt: ...ne. "[A]ll that is necessary is to call the court's attention to such papers." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) '1 9.53.1a.) The fourth dtNument, Exhibit D, is the certificate of title and DMV renewal notice for Decedent's car, which Defendant also submitted as evidence. (See Evidence in Support ["EIS"; ROA 1361, Exh. F [LaSola Decl., at 8.) The court will consider certificate of title and D...

Excerpt: ...209 Cal.App.4th 182, 194 [noting that the court may take judicial notice of a recorded deed, but declining to do so where deed was not relevantl.) Evidentiary Objections The court declines to rule on Plaintiff's and Defendants' evidentiary objections. (CINIe Civ. Proc., S 437c, subd. Applicable Law "[Flrom commencement to conclusion, the party moving for summary judgment the burden of persuasion that there is no triable issue of material fact and...

Excerpt: ...ew evidence is not permitted with reply papers ... '[T]he inclusion of additional practice .. evidentiary matter with the reply should only allowed in the exceptional case . and if permitted, the other party should be given the opportunity to respond." (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Reply evidence should not address substantive issues in the first instance but only fill gaps in the evidence created by opposition. (ld. a...

Excerpt: ... Cal.App.4th 1120, 1125.) The challenge is limited to the "four corners" of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to in...

Excerpt: ...(2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff." (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.) A written contract may be pleaded either by its terms set out verbatim in the complaint, or a copy of the contract attached to the complaint and incorporated therein by reference, or by its legal effect. (Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th ...

Excerpt: ...ocuments. The court "may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person." (Code Civ. Proc., S 1987.1, subds. (a), (b).) The party claiming a violation of the constitutional right of privacy must "[1] establish a legally protected privacy interest, [2] an objectively reasonable expectation of privacy in the given circu...

Excerpt: ...lt abuse/neglect. "The purpose of the [Elder Abuse Act] is essentally to protect a particularly vulnerable portion of the from gross mistreatment in the form of abuse and custodial neglect." (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) Pursuant to Welfare and Institutions Code section 15610.57, neglect means the "negligent failure of any person having the care or custody of an elder or a dependent adult to exerc:ise that degree of care that a rea...

Excerpt: ...Appeal issued its opinion. (ROA 179 [case number G051416].) The May 6, 2022 order denying Defendant Sylvia Nuttall's special motion to strike (Code Civ. S 425.16) as to the third, fourth, fifth, eighth, ninth, and tenth causes of action was affirmed. The order was also affirmed with respect to allegations of theft and related misconduct, which in part, support the second, sixth, and seventh causes of acton. (ROA 179.) The Court of Appeal held tha...

Excerpt: ...ed the deposition of Defendant to take place on December 15, 2022. (Bournazian Decl. '14-5, Exh. 3.) aut as the court previously ruled in a nearly identical motion, Defendant was in default from November 21, 2022 to July 7, 2023, and could not appear at the deposition. (See Req. for Entry of Default [ROA 14]; 5/19/2023 Minute order [ROA 521; 7/7/2023 Minute order [ROA 901.) Because defense counsel was unable to obtain a stipulation to set aside t...

Excerpt: ...e of the proof of service filed in this achon on May 24, 2023, is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. A party may "simply call the court's attention to such papers." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) '1 9:53.1a.) Defendants move for an order quashing the service of summons and complaint purportedly effected by Plaintif...

Excerpt: ... properly electronically bookmarked. (See Cal. Rules of Court, rule 3.110(f)(4).) In addition, Plaintiffs filed those exhibits in five volumes, without indices as to what was in each volume. Each of the volumes was over pages, two were over pages. Some of the volumes started in the middle of an exhibit. Besides proper tabbing, a table of contents for each volume would have greatly assisted the court and its staff. Request for Judicial Notice Defe...

Excerpt: ...s.) Merits The only cause of achon alleged against Airbnb is the first cause of action for strict products liability. The FAC alleges that Airbnb "supplied various products, specifically properties for short-term rentals, including but not limited to the property located at 16387 South Pacific Avenue, Sunset Beach, California 90742 (the (FAC, at '1 10.) Airbnb is a "broker of properties for short-term rentals" and placed the "Product into the str...

Excerpt: ...l be an element of the costs of suit." Section 1717, (a) also states in relevant part: In any acton on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, s...

Excerpt: ...ains the same for the entire action's duration. Aquino argues on demurrer that Pinon fails to allege compliance with the claim requirements of Probate Code sections 9351, 9370, and A plaintiffs right to recover against the decedent or the estate is contingent on having filed the claim on which the action is based in the probate proceedings or having presented it to the decedent's personal representative in accordance with the Probate Ctxle. (Prob...

Excerpt: ... entitled "Defendants TWOC Enterprises 18 Corp. Formerly Known as the Walt Disney Company and Walt Disney Parks and Resorts U.S., Inc.'s Motion to Strike Plaintiffs' Untimely Opposition to Defendants' Motion for Contempt, Terminating Sanctions, and Monetary Sanctons in the Sum of and Reply to Plaintiffs' untimely Opposition to Defendants' Motion". (ROA 287.) It appears that because the caption of the document suggested that it was another motion,...

Excerpt: ...o the remainder of that item or category. (b) If the respond-ng party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and th...

Excerpt: ...iality, trade secret, attorney-client privilege or work product but must provide a privilege log for the documents it withholds on these grounds. Meet and Confer Efforts Defendant argues that Plaintiff failed to sufficiently meet and confer. (Opp., at pp. 2-3.) Plaintiff's counsel sent a lengthy letter on May 25, 2023 discussing what it described as Defendant's deficient discovery responses to special interrogatories, form interrogatories, and re...

Excerpt: ...icial notice of a recorded deed, but declining to do so where deed was not relevantl.) Defendant's request for judicial notce of Plaintiff's Complaint previously filed in this case is denied. "[Alll that is necessary is to call the court's attention to such papers." (We-I & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) '1 9.53.1a.) Federal Arbitration Act ("FAA") Defendant contends that the FAA applies. (Mot., a...

Excerpt: ...fidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff. [Citation.]" (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.) Pursuant to Code of Civil Procedure secton 438, subdivision (b)(l), a party may move for judgment on the pleadings. A defendant may move for a judgment on the ple...