Excerpt: ...o. 54, and denied as to nos. 55 through 59. Code of Civil Procedure section 2031.010 provides, in relevant part, that “any party may obtain discovery” by “inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” (Code Civ. Proc., § 2031.010, subd. (a).) Section 2031.210 requires a party resp...

Excerpt: ...ubmitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) As a result, the demurrer is sustained with 15 days leave to amend. MOTION TO STRIKE The arguments in Defendants' motion to strike portions of the FAC also have merit. However, the ruling on the demurrer renders moot most of the motion, except for the following. Gross Negligence and Intentional Conduct In the background ...

Excerpt: ...e expressly prohibited by statute, a prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subd. (b).) Code of Civil Procedure section 1033.5, subdivision (a) specifies cost items that are allowable, including filing and motion fees, deposition costs, and court reporter fees. (Code Civ. Proc., § 1033.5, subd. (a)(3).) Allowable costs “shall be reasonably necessary to the conduct of the litigation rather...

Excerpt: ...vide for filing a document after a reply has been filed. Plaintiff did not seek prior leave of court to file the document. A special demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified 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 for...

Excerpt: ...nia Rules of court, rule 3.720(b) provides: “A court by local rule may exempt specified types or categories of general civil cases from the case management rules in this chapter, . . . . The court must include the alternative procedures in its local rules.” Due to the COVID-19 pandemic, this Court approved Local Emergency Rule 1, which suspended case management conferences through March 31, 2021. Local Emergency Rule 1 also set forth that for...

Excerpt: ...ent Standard “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material...

Excerpt: ...ng Defendants were not named in the FAC. (ROA 132.) Defendants were again added by amendments on March 1, 2019, designating them this time as Doe Defendants Nos. 1 and 4. (ROA Nos. 148 and 151.) “It has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them.” (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1142; See also Kuperman ...

Excerpt: ...llowable; (2) reasonably necessary to the conduct of the litigation; and (3) reasonable in amount. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998.) The lodestar method is applicable to calculating attorney's fees under the Song-Beverly Consumer Warranty Act. (Id. at p. 997.) An experienced trial judge is the best judge of the value of professional services rendered in his or her court. (Ibid.) The court's analysis begins with the...

Excerpt: ... regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) 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 ...

Excerpt: ... pages. No reply or closing memorandum may exceed 10 pages. The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.” (Emphasis added.) A memorandum exceeding the permissible page limits “must be filed and considered in the same manner as a late-filed paper”; i.e., the court in its discretion may refuse to...

Excerpt: ...nt, including, that: Martinez “pawned some of your stolen items”; “a majority of the stolen items remain in the possession, custody or control of [Martinez]”; Martinez “continues to have possession, custody or control of the majority of the stolen items”; Martinez “wrongfully converted the stolen items for her own use and possession without plaintiff's knowledge or consent”; Martinez “acted willfully, fraudulently, maliciously, ...

Excerpt: ... moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. (Code Civ. Proc., § 1008, subd. (a).) A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 213...

Excerpt: ...er evidence to show that Defendant Macco Corporation informally does business as Macco Pacific (erroneously sued as Macco Pacific, Inc.) and Shattuck Companies. (Waters Decl., at ¶¶ 5-6; SSUF 19, 25.) In other words, Macco Pacific and Shattuck Companies are fictitious business names of the legal entity Macco Corporation. Because Plaintiff did not oppose the motion, it does not appear that she disputes this assertion. Macco Corporation was Plain...

Excerpt: ...but did not produce any documents. In response to requests no. 44, 48 and 49, Brand Genetix said it would “comply with this request” and that “all responsive documents that are in Plaintiff's [sic] custody or control will be produced.” (Lu Decl., at ¶ 21, Exh. 8 [ROA 1503].) The court has expressed in prior rulings that the trial court should tailor the sanction for such conduct to “fit the crime.” (Reedy v. Bussell (2007) 148 Cal.Ap...

Excerpt: ...ts of a petition to confirm, correct, or vacate the arbitration award. Within this Petition, Petitioners seek confirmation of an appraisal award, pursuant to Code of Civil Procedure section 1286. Code Civil Procedure section 1286 provides that an arbitration award shall be confirmed, unless it is vacated or corrected. “‘[A]greements providing for valuations, appraisals and similar proceedings' are within the definition of ‘agreements' subje...

Excerpt: ...APP law is “not [to] insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) There are four categories of protected speech for an anti-SLAPP motion (Code Civ. Proc., § 425.16, subd. (e)): 1. statements made before a legislative, exe...

Excerpt: ...has been set.” (Code Civ. Proc., § 2024.050, subd. (a).) Plaintiffs contend they are entitled to an order deeming the attorney-client privilege waived and reopening discovery on a limited basis to take discovery “related to any purported advice Defendants received from counsel regarding their submission of claims to Plaintiffs.” Plaintiffs claim that the Equaltox Defendants, in opposing Plaintiffs' motions in limine nos. 1, 3, 4, and 8, pu...

Excerpt: ...ion, whether or not the motion seeks relief against such parties. (See, e.g., Code Civ. Proc., § 1014; Winikow v. Superior Court (2000) 82 Cal.App.4th 719, 727 [service of notice not required on defendants who have not yet appeared].) Legal Standard for Punitive Damages Against Corporate Employer Under California law, an agent's or employee's acts in the course and scope of employment are attributed to the employer for purposes of tort liability...

Excerpt: ...ing good cause for the late submission. (Mackey v. Board of Trustees v. California State Univ. (2019) 31 Cal.App.5th 640, 657; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) On September 6, 2022, Plaintiff Jeanette Easter belatedly filed a document entitled “Opposition to motion for summary judgment and opposition in the alternative to summary adjudication of issues; memorandum of points and authorities in support of opposition; sep...

Excerpt: ...n support of the opposition for the Court to review. Plaintiff has not shown good cause for the late filing. The Court exercises its discretion and declines to consider the opposition and supporting papers. (Code Civ. Proc., § 1005, subd. (b); Cal. R. Ct. Rule 3.1300, subd. (d); Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625, disapproved on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019 [“We conclude t...

Excerpt: ...r counsel in Florida. This mistake is imputable to Defendant, and does not change the fact that Plaintiff was forced to bring these motions in order to obtain compliance. As such, Plaintiff is awarded sanctions against Dr. Akpeke. Within 30 days of the notice of ruling, Dr. Akpeke shall pay monetary sanctions for the discovery motions in a total amount of $1,125 to Balboa Capital Corporation. (Code Civ. Proc., § 2023.030, subd. (a); Cal. Rules o...

Excerpt: ... the accident. The motion is denied as to the requested order that she be required to provide testimony regarding the date of diagnosis of her dementia and the severity of her dementia. Code of Civil Procedure section 2025.450, subdivision (a) provides that when a party deponent is served with a deposition notice and, without having served a valid objection under Code of Civil Procedure section 2025.410, fails to appear for deposition the party g...

Excerpt: ...ision (a) specifies cost items that are allowable, including filing and motion fees, deposition costs, and court reporter fees. (Code Civ. Proc., § 1033.5, subd. (a)(3).) Allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c).) If the items on their face appear to be proper charges, t...

Excerpt: ... (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 by reference—or by its legal effect, i.e., by alleging the substance of its relevant terms. (Construction Protective Servs., Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199; Heri...

Excerpt: ...specifies cost items that are allowable, including filing and motion fees, deposition costs, and court reporter fees. (Code Civ. Proc., § 1033.5, subd. (a)(3).) Allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c).) If the items on their face appear to be proper charges, the verifie...

Excerpt: ...ourt's attention to a previous order and seeks to "modify, amend, or revoke" that order. Merely asking the court to grant relief that is inconsistent with a prior order, whether by the same or a different judge, is not a "motion for reconsideration." (Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 421, fn. 13.) A motion for reconsideration is commonly thought to have two stages. The court must decide whether to grant reconsideration as su...

Excerpt: ...construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified 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 sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be o...

Excerpt: ...testimony is protected under Evidence Code sections 992 and 994. Defendant further contends that she has not put her physical or mental condition at issue. Thus, she has not waived the physician-patient privilege. In opposing the motion, Plaintiff does not dispute that the testimony sought from Dr. Hryniewicki is subject to the physician-patient privilege. Rather, Plaintiff argues that, “[b]y making a claim to incompetence, Ms. Fleer has put at...

Excerpt: ...all the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 9.53.1a.) An answer to a complaint shall contain: (1) the general or specific denial of the material allegations of the complaint controverted by the defendant and (2) a statement of any new matter constituting a defense. (Code Civ. Proc., § 431.30, subd. (b) [emphasis added].) The same pleading of ultimate fac...

Excerpt: ...the Clerk's Office rejected the document because the address was not changing, and counsel of record was changing. The Clerk indicated that a substitution of counsel was needed. (ROA 76.) It was not until April 29, 2022 that Trial Lawyers for Justice filed a substitution of counsel on the correct form indicating that Trial Lawyers for Justice was new counsel of record for Plaintiff. This was electronically served on all parties including Waters' ...

Excerpt: ... to form interrogatories, set one, numbers 50.1-50.3 and 50.5. Plaintiff's motion to compel further responses to request for admissions, set one, numbers 1-5, 9, 10, 22, and 26-28, is granted. Duplicate Motions As a preliminary matter, Plaintiff filed two nearly identical motions to compel further responses to requests for admission, three days apart. The only apparent differences are that the later filed motion includes a proof of service and th...

Excerpt: ...to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete. (Code Civ. Proc., § 2030.300, subd. (a)(1)). If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Merits The interrogatories at issue seek information about Trinity's licenses,...

Excerpt: ...w, 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., § 473, subd. (a)(1).) Additionally, 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. (Cod...

Excerpt: ..., Suket Real Properties, Sukut Real Properties II, LLC, Sean P. McCoy, and Myron Sukut (“Defendants”) filed evidentiary objections and “response to Car Prep, Inc.'s separate statement of undisputed material facts” in opposition to Car Prep's motion. Defendants did not include a memorandum of points and authorities, which is required as part of an opposition to a summary judgment motion pursuant to California Rules of Court, rule 3.1350(e)...

Excerpt: ...aintiff's counsel inadvertently failed to forward it to his paralegal to calendar. At that time, he was preparing for trial (starting April 7, 2022) and his own wedding (which took place on March 27, 2022). (Roberts Decl., at ¶ 3.) Co-counsel at Plaintiff's counsel's firm avers that he did not forward the discovery requests to the paralegal because Mr. Roberts was assigned the case and Mr. Perry assumed Mr. Roberts had it handled. (Perry Decl., ...

Excerpt: ...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 inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452; Stevens v. Sup...

Excerpt: ...respects uncertain, because ambiguities can be clarified 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 sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumptively withi...

Excerpt: ...R Investment Properties, LLC (“Plaintiffs”). Additional Papers Filed Without Leave of Court The hearing on this motion was continued to allow Defendants and Plaintiffs to properly serve their moving, opposing, and reply papers on Cross-Defendants Sunnyside Group and Charles Roh. Plaintiffs and Defendants have shown that the papers were provided to all parties. Since the last hearing, Plaintiffs and Defendants served and filed supplemental pap...

Excerpt: ... is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117; Weil & Brown, Cal. Practice Guide: Civil Procedure Before T...

Excerpt: ...the FAA. Rather, the arbitration provision expressly provides: “This Agreement to arbitrate shall be specifically enforceable under the prevailing California arbitration law.” (Levy Decl., Exh. A, at pp. 31- 32.) Accordingly, the California Arbitration Act applies. (Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 387-393; Mastick v. TD Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, 1265.) In any event, California and fede...

Excerpt: ...ned by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Furthermore, an award of attorney fees is a term of the parties' settlement agreement. To recover attorney's fees, a prevailing party bears the burden of demonstrating that the fees were: (1) allowable; (2) reasonably necessary to the conduct of the litigation; and (3) reasonable in amount. (Doppes v. Bentley Motor...

Excerpt: ...f's TAC is overruled. Sham Pleading Bommarito argues that the allegations of the TAC still contradict what was previously alleged in the Complaint and are sham pleadings that the Court should disregard. (Bommarito Dem., at pp. 10-12.) The “sham pleading” doctrine provides that a party will be bound by a prior, unfavorable allegation absent a satisfactory explanation for the change. (See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751; State ex....

Excerpt: ...ts for admission. Westpark Corte Bella Community Association (“Westpark”) seeks an order compelling Plaintiff to serve responses without objections to Westpark's third set of requests for production. The motions are granted. As an initial matter, Plaintiff Arthur Gross III, as Assignee of the Villas at Corte Bella and as an individual, once again did not timely oppose the motions. (Code Civ. Proc., § 1005, subd. (b).) Optimum and Westpark se...

Excerpt: ...on is settled. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of materi...

Excerpt: ...es were also rendered moot as to the first set of requests for production and form interrogatories. The court grants the motion to compel Brianna Stanko to serve responses to the second set of requests for production and form interrogatories. The court grants Plaintiff's motion to deem admitted the first set of requests for admission as to Skin Truth. The court grants Plaintiffs motion to deem admitted the first and second sets of request for adm...

Excerpt: ... a complaint is in some respects uncertain, because ambiguities can be clarified 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 sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts...

Excerpt: ...ments that were produced in response to requests for production of documents, set two, to comply with Code of Civil Procedure section 2031.280, subdivision (a), it is granted. The motion is otherwise denied. Defendant belatedly-filed his opposition to the motion. He explained that at the time the opposition was due, he was in the process of changing counsel. (Stewart Decl., at ¶¶ 4- 6.) Plaintiffs filed a reply on the merits. The court exercise...

Excerpt: ...roduction to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of act...

Excerpt: ...t deposition. The motion must be accompanied by either a meet and confer declaration stating “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” or “a declaration stating that the moving party contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).) Defendant has been trying to take Plaintiff's deposition since August 2021. The...

Excerpt: ... another case. (See, e.g., Mot., at pp. 23- 24 [referring to expert fees, postage and telephone charges], and 26-27 [referring to District No. 40 and “costs incurred after Judgment was entered on December 28, 2015”].) The court once again reminds Plaintiff that litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. (Rappleyea v. Campbell (1994) 8 C...

Excerpt: ... Code of Civil Procedure section 425.16 permits a special motion to strike Strategic Litigation Against Public Participation (“SLAPP”) lawsuits. A SLAPP suit is “a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights.” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 208.) The purpose of the anti- SLAPP law is “not [to] insulate defendants from any liability for claims ar...

Excerpt: ...aption to the conditionally lodged under sealed documents, refer to California Rule of Court 2.551(b)(3), which is the procedure for a party not intending to file a motion or application to seal a record. However, it does not appear that Plaintiff complied with Rule 2.551(b)(3)(B), which requires a party that does not intend to request to have the records sealed to give written notice to the party that produced the records that the records and th...

Excerpt: ...r details to support this statement. Defendant has not laid the foundation that Dr. Klein is an expert as to the standard of care and treatment for cryotherapy. (Evid. Code, § 720; Kelley v. Trunk (1998) 66 Cal.App.4th 519, 525; Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467; McAlpine v. Norman (2020) 51 Cal.App.5th 933, 940-941.) Plaintiff's second and eighth evidentiary objections to Dr. Klein's declaration are sustai...

Excerpt: ... entry of judgment, or 180 days after entry of judgment, whichever is first. Here, there has been no judgment or dismissal. None of the cases cited are directly on point. The parties did not reference any provision in their settlement agreement regarding the timing of the fee motion. Civil Code section 1794, subdivision (d) provides: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as pa...

Excerpt: ... in part as set forth below. In light of the ruling on the demurrer, Defendants' motion to strike paragraph 68 is denied as moot. Pursuant to Code of Civil Procedure section 436, the Court may: (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. “The grounds for a mot...

Excerpt: ...h of Contract With respect to the first cause of action, Cross-Complainants allege that their subcontract with Cross-Defendant included a provision requiring Cross-Defendant to indemnify and hold harmless Cross-Complainants from claims, liabilities, etc. arising out of Cross-Defendant's work. (CC, at ¶¶ 17-18.) Cross-Complainants further allege that Cross-Defendant's contract with Aerotek led to an insurance claim being filed against Cross-Comp...

Excerpt: ...cation for the order and writ with the court in which the action is brought. (Code Civ. Proc., § 484.010.) The application must be executed under oath and must include the following statements: (1) the attachment is sought to secure the recovery on a claim on which the attachment may be issued; (2) the amount to be secured by the attachment; (3) the attachment is not sought for a purpose other than the recovery on the claim on which the attachme...

Excerpt: ... 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.”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) A demurrer “admit[s] all the properly pleaded material facts...

Excerpt: ... to demur to the complaint has expired.” (Code Civ. Proc., § 438, subd. (f)(2).) Thus, this motion is procedurally improper. Furthermore, the motion is also denied on the merits. Second Cause of Action for Unfair Business Practices Lee contends that this claim fails to state a claim because Criscione's only damages are those he would suffer if the note is left outstanding, and that any other damages are “future, speculative, and non-monetary...

Excerpt: ... agreement to arbitrate and the same controversy, and any such subsequent petition shall be filed in the same proceeding.” However, Plaintiffs do not show how this statute is applicable to the instant case. On July 12, 2019, Defendants' motion to compel arbitration and stay proceedings was granted. (7/12/2019 Minute Order.) Code of Civil Procedure section 1281.4 requires a court to stay an action submitted to arbitration. The court's role is th...

Excerpt: ...Lease, then the non-prevailing party in such action or proceeding shall reimburse the prevailing party for its actual attorneys' fees, and all fees, costs and expenses (including any actual expert fees and court costs) incurred in connection with such action or proceeding, including any post-judgment fees, costs or expenses incurred on any appeal or in collection of any judgment." (Park Decl., at Exh. 1, § 21.11.) Similarly, the Guarantee of Lea...

Excerpt: ...y, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in ...

Excerpt: ...discretion to consider Plaintiffs' opposition. PV Holding and Avis move to transfer pursuant to Code of Civil Procedure sections 395, subdivision (a), 395.5, and 396b, subdivision (a). PV Holding and Avis contend venue is improper in Orange County because the incident causing the injuries occurred in Kern County and no defendant resides in Orange County. Fresenius moves to transfer pursuant to Code of Civil Procedure sections 395, subdivision (a)...

Excerpt: ...onses to document demands, Code of Civil Procedure section 2031.310, subdivision (b)(1) requires the moving papers to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specifi...

Excerpt: ...other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 4...

Excerpt: ...the examination . . . and be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.310, subd. (b).) The moving party must show good cause for the mental examination. (Code Civ. Proc., § 2032.320, subd. (a).) Plaintiff does not dispute that her mental condition is at issue or that there is good cause for a neuropsychological examination. She opposes the motion because Defendant failed to comply with Cod...

Excerpt: ...low HOA (“HOA”) and J.C. Ultimate Property Management Consulting, Inc.'s (“J.C. Ultimate”) ex parte application to continue trial to August 2, 2021. (4/12/2021 Minute Order [ROA 160].) All parties had agreed that trial in this matter should be continued to allow the parties to complete further and necessary discovery, and explore all settlement possibilities before preparing for trial. (McGah Decl., at ¶ 3 [ROA 153].) The court denied th...

Excerpt: ..., $6,773.38 for broker's commission, for a combined amount of $27,466.30.” The judgment provided: “[a]ny prejudgment interest, attorney's fees, and costs shall be determined in post-judgment motions.” (Judgment [ROA 141].) Prejudgment Interest Plaintiff contends it is entitled to $5,385.98 in prejudgment interest, for the period from March 1, 2019 through October 6, 2021, with interest accruing at the daily rate of $5.67, until an amended j...

Excerpt: ...he Federal Arbitration Act (9 U.S.C. § 1 et seq.) and not by any state law concerning arbitration. (12/8/2021 Ihara Decl., Exh. 1, at p. 2.) In any event, California and federal arbitration law are identical for the purposes of this motion. Under the FAA, state law governs the question whether a nonsignatory party may enforce an arbitration agreement. (Kramer v. Toyota Motor Corp. (9th Cir. 2013) 705 F.3d 1222, 1228, 1132, fn. 6.) Arbitrability ...

Excerpt: ...�� and wrote in response to “Relationship to Resident(s)”, “SON POA”. (Not. of Errata [ROA 64].) Kris Shook also initialed the arbitration provision of the Agreement. (Not. of Errata, at page 10 of 12.) The Federal Arbitration Act (“FAA”) Defendants contend that the FAA applies. (Mot., at pp. 3-7.) The FAA (9 U.S.C. §§ 1-14) governs contractual arbitration in written contracts involving interstate or foreign commerce or maritime tra...

Excerpt: ...bstantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. . . . (e) Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. (f) Upon the granting of such...

Excerpt: ...-011996671. Evidentiary Objections Floorit Financial's evidentiary objections nos. 1 through 4 are sustained. Law Regarding Contempt “The substantive issues involved in a contempt proceeding are (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience. (Weil & Brown, supra, pars. 9:337–9:340.)” (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) A contempt proceeding is ...

Excerpt: ...ship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1245; CACI no. 2342.) Like a Tameny claim, constructive discharge is premised on the wrongful termination of an employment relationship. “There can be no Tameny cause of action without the prior e...

Excerpt: ...he burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the positi...

Excerpt: ...ill effectuate a “stay” of the production until further order of the Court. The court, for good cause shown, may make any order that justice requires to protect any party “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) Furthermore, under Code of Civil Procedure section 2019.030, the court may restrict discovery where it is “unreasonably cumulative or dup...

Excerpt: ...irst Amended Complaint or, in the alternative, summary adjudication on the two cause of action alleged therein. Summary Judgment Standard “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one th...

Excerpt: ...h action.” Furthermore, an award of attorney fees is a term of the parties' settlement agreement. To recover attorney's fees, a prevailing party bears the burden of demonstrating that the fees were: (1) allowable; (2) reasonably necessary to the conduct of the litigation; and (3) reasonable in amount. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998.) The lodestar method is applicable to calculating attorney's fees under the Song...

Excerpt: ...LC v. Anthem Blue Cross Life and Health Insurance Company (U.S. District Court, C.D. Cal., case no. 8:20-cv-00102-JWH (ADSx) is denied as irrelevant. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) Pending Motion for Leave to File Fifth Amended Cross-Complaint Cross-Complainants argue that the demurrer should be overruled based upon their pending motion for leave to file a fifth amended cross-complaint. They point to case auth...

Excerpt: ...ch 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 inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) Merits Intentional Interference With Prospective E...

Excerpt: ...fore the hearing. Fraud Based on False Promise (First Cause of Action) The court previously ruled that it was unclear if Plaintiff was alleging a claim for misrepresentation or false promise, and that the claim was not alleged with specificity. (3/5/2021 Minute Order.) Plaintiff now makes clear that she is alleging a claim for false promise. “Promissory fraud” is a subspecies of fraud and deceit. A promise to do something necessarily implies ...

Excerpt: ...ty with the laws of this state, a court rule, or an order of the court. “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) California courts have held that punitive damages may, under appropriate circumstances, be recoverable for nondeliberate or unintentional torts. A vicariously liable employ...

Excerpt: ...ial interrogatories, nos. 5, 14, 23, 40, and 42. Each answer in the response to an interrogatory must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subds. (a) & (b).) Where the question is specific and explicit, an answer that supplies only a portion of t...

Excerpt: ...reed to. It must state that the production and inspection will be allowed (in whole or in part); and that the documents or things in the demanded category that are in the responding party's possession, custody, or control will be produced. (Code Civ. Proc., § 2031.220.) On receipt of the response, the demanding party may move to compel further response if any of the following apply: (1) a statement of compliance is incomplete; (2) a representati...

Excerpt: ... Federal Arbitration Act (9 U.S.C. §§ 1-14) governs contractual arbitration in written contracts involving interstate or foreign commerce or maritime transactions. (9 U.S.C §§ 1, 2.) However, the Voluntary Alternative Dispute Resolution (ADR) Agreement expressly provides that California law applies. (Exh. 8, Arts. I & V.) Thus, the California Arbitration Act is controlling. In any event, California and federal arbitration law are identical fo...

Excerpt: ...(2004) 33 Cal.4th 780, 806, quoting Trope v. Katz (1995) 11 Cal.4th 274, 278.) The rule has been codified in Code of Civil Procedure sections 1021 and 1033.5, subdivision (a)(10). Civil Code section 1717, subdivision (a) provides that: “In any action 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 prevaili...

Excerpt: ...ns. Co. (2004) 33 Cal.4th 780, 806, quoting Trope v. Katz (1995) 11 Cal.4th 274, 278.) The rule has been codified in Code of Civil Procedure sections 1021 and 1033.5, subdivision (a)(10). (Code Civ. Proc., § 1021 [“Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proc...

Excerpt: ... 2016.040.) Here, Plaintiff's counsel made a reasonable and good faith attempt to informally resolve the issues. (Shumake Decl., at ¶¶ 9-11; Exhs. 4- 6.) Merits In moving to compel further responses to requests for production of documents, Code of Civil Procedure section 2031.310, subdivision (b)(1) requires the moving papers to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. To establish �...

Excerpt: ...jection. (Code Civ. Proc., § 2031.220.) An agreement to comply must be rather specific as to what is agreed to. It must state that the production and inspection will be allowed (in whole or in part); and that the documents or things in the demanded category that are in the responding party's possession, custody, or control will be produced. (Code Civ. Proc., § 2031.220.) On receipt of the response, the demanding party may move to compel further...

Excerpt: ..., § 437c, subd. (q).) Summary Judgment Standard “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexiste...

Excerpt: ... active license report is granted to the extent that the court may take judicial notice of the existence of Web sites and blogs, but not as to the truth of their contents. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193; see Searles Valley Minerals Operations, Inc. v. State Board of Equalization (2008) 160 Cal.App.4th 514, 519; Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737.) Plaintiff Robert Alexander Saurman's request f...

Excerpt: ...emnity and implied contractual indemnity. (Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1032 [“good faith settlement bars a claim for implied contractual indemnity”]; Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 817 [a tort defendant who has entered into a good faith settlement within the meaning of section 877.6, subdivision (c) is absolved of any further liability for all equitable indemnity claims”].) Whe...

Excerpt: ...Admission to Plaintiff. (11/20/2020 Minute Order [ROA 419].) Motion for Summary Judgment Standard “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of producti...

Excerpt: ...rty may “simply call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9:53.1a.) Plaintiff's request for judicial notice of Elite's responses to Plaintiff's request for production of documents, set one is denied. (TSMC North America v. Semiconductor Manufacturing Internat. Corp. (2008) 161 Cal.App.4th 581, 594, fn. 4; Del E. Webb Corp. v. Structural Materials Co....

Excerpt: ....App.4th 571, 574.) “In many cases, considerations of comity and the prevention of multiple and vexatious litigation will most often militate in favor of stay. However, other factors weigh in the balance, and where judicial economy, the interests of the forum, and the convenience of the parties weigh in favor of allowing the action to proceed, the trial court has discretion to deny the stay.” (Id. at p. 575.) The California Supreme Court expl...

Excerpt: ...4 [attaching ROA 540, stipulation and proposed protective order electronically received on October 10, 2014].) In any event, because the parties are direct competitors, the court raised with counsel at the April 23, 2021 hearing the possibility of an additional “attorneys' eyes only” highly confidential protective order. The court, however, made clear in its ruling that TagTrends and Brand Genetix failed to proffer any evidence to establish t...

Excerpt: ... judicial notice of the existence of a contract between private parties].) Legal Standard A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Furthermore, the court must accept the allegations as true regardless of how �...

Excerpt: ... within the time allowed by the court and either party moves for dismissal. Dismissal is not mandatory, and the decision whether to dismiss is within the trial court's sound discretion. (Harlan v. Dept. of Transportation (2005) 132 Cal.App.4th 868, 874; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.) But any dismissal under this section shall be with prejudice. (Cano v. Glover (2006) 143 Cal.App.4th 326, 331.) Califo...

Excerpt: ...s for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) The moving party need only show the failure to obey the court's earlier discovery orders. Thereafter, the burden of proof shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Puritan Ins. Co. v. Superior Court (Tri...

Excerpt: ...n that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in que...

Excerpt: ...are of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) The factors to determine good faith, include: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) the recognition that a settlor should pay less in settlement than he would if he were f...