Excerpt: ...ful disobedience." (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) A contempt proceeding is commenced by the filing of an affidavit showing the facts satisfying these four requirements (the "charging allegations"). (Code Civ. Proc., S 1211.) The affidavit frames the issues to be tried. (Reliable Enterprises, Inc. v. Superior Court (1984) 158 Cal.App.3d 604, 616.) The filing of a sufficient affidavit is a "jurisdictional prerequisite" to ...

Excerpt: ...erein) 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 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 ...

Excerpt: ...nperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff." (Coles v. Glaser (2015) 2 Cal.App.5th 384, 391.) Plaintiffs allege that the parties entered into a series of contracts: In 2015, Plaintiffs and Defendants entered into a series of contracts related to the opening of a potential Weinerschnitzel franchise including: (1) Advertising Association Agreement, (2) Franchise Agreement, (3) Addendum to the Franchise Agreemen...

Excerpt: ...07, 813 [statute requires payment of only those costs and fees that were reasonably incurred].) "[Tlhe Legislature intended the word 'expenses' to cover items not included in the detailed statutory definition of 'costs.'" "Expenses" may "cover such out-of-pocket expenses as filing fees, expert witness fees, marshall's fees, etc., [which] should open the litigation process to everyone." (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 1...

Excerpt: ...ries on the grounds that the answer is evasive or incomplete. (Code Civ. Proc., S 2030.3W, subd. 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 (2ff)O) 22 Cal.4th 245, 255.) No. 4 This interrogatory seeks the number of residents who developed sepsis and/or septic shtNk while residing at the facility fro...

Excerpt: ...is required to set the matter for trial within 120 days. Civ. Proc., S 35, subds. (a), "An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Sect...

Excerpt: ...ions do not comply with California Rules of Court, rule 3.1354(b) which provides that written objections to evidence must "[i]dentify the name of the document in which the specific material objected to is located," "[state] the exhibit, title, page and line number of the material objected to," and "[qluote or set forth the objectionable statement or material." Plaintiff objects to portions of Defendants' undisputed material facts in their separat...

Excerpt: ...ditional 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 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. (Id. at p. 1538.) Here, the court exercises its discretion and declines to consi...

Excerpt: ...Civil Procedure section 2031.310,subdivision (b)(1). 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) 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...

Excerpt: ...n employer who drafts an arbitration agreement does not pay its share of required fees or costs to initiate arbitration within 30 days after they are due, the employer is in “material breach” of the agreement, in default of the arbitration, and waives it right to compel arbitration. (Code Civ. Proc., § 1281.97, subd. (a).) In the event of that material breach by the employer, the employee can elect to withdraw her claim from arbitration and ...

Excerpt: ... consider this document to be the ordered Second Amended Complaint ("SAC"). This document was sent by express mail to defense counsel on May 3, 2023. (ROA 80, last page.) Plaintiff makes a vague reference to having sent defense counsel a "correction using U.S. Mail Express". ("Plaintiff's Response to Defendant's Motion and Motion to Strike Portions of Plaintiff's Second Amendments to First Complaint" [ROA 97].) Defendant's demurrer to SAC and mot...

Excerpt: ... (4) requests for admissions, set one, nos. 1-54, and 56-58. Separate Statements As noted in this July 21, 2023 rulings, co-Defendant HCI Systems, Inc.'s separate statements fail to comply with California Rules of Court, rule 3.1345. The separate statement is to be “a separate document filed and served with the discovery motion . . .” (Cal. Rules of Court, rule 3.1345(c) [emphasis added].) Here, Defendant's separate statements have the same d...

Excerpt: ...equests at issue. (See ROA 53, 55, 57, 64, 68.) For all of the motions at issue, Defendant's separate statements also failed to include the text of Plaintiffs' initial responses and thus failed to comply with California Rules of Court, rule 3.1345. Rule 3.1345(c)(2) requires the separate statement to include the text of each response, answer, or objection, and any further responses or answers. The separate statement is supposed to provide all the...

Excerpt: ...hi (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 remains essential that a complaint set forth the actionable facts relied upon with sufficien...

Excerpt: ...titions to correct arbitration award, are denied. Procedural Issues The court treats Tear Drip's second petition to correct arbitration award (ROA 126) as a response to Oakshire's petition to confirm award. (Code Civ. Proc., § 1285.2.) The court notes that both sides failed to file timely responses. (Code Civ. Proc., § 1290.6 [response shall be served and filed within 10 days after service of the petition]; see Law Finance Group, LLC v. Key (20...

Excerpt: ...urt 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 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).) “...

Excerpt: ...t information for the court to determine when the 45-day period expired. Specifically, the court was not provided with the method of service of GM's verification. Depending on the method of service, it is possible that the motion was timely filed on July 5, 2023. Merits On receipt of the response to a document demand, the demanding party may move to compel a further response if any of the following apply: (1) a statement of compliance is incomple...

Excerpt: ...o nos. 1 and 3. Defendant filed a reply declaration of Mark Kimball in support of its 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 respond.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1...

Excerpt: ...cessor in interest to The Bank of New York, National Association, as Trustee f/b/o holders of Structured Asset Mortgage Investments II Inc., Bear Stearns ALT-A Trust 2005-10, Mortgage Pass-Through Certificates, Series 2005-10) (collectively, “Moving Parties”) demur, and in the alternative, move for judgment on the pleadings, to the sixth cause of action for violation of Business and Professions section 17200 on the ground that Plaintiff Ariel...

Excerpt: ...agraph 9 and Exhibit 3 Abdullah's objections to Joseph Dib's declaration:  Sustained: Paragraphs 6-31 and Exhibits A-C  Overruled: Paragraph 4 Abdullah's objections to Monica Dib's declaration:  Sustained: Paragraphs 6-9, 11-14 and Exhibits 2-3  Overruled: Paragraph 10 and Exhibits 1-4 Merits California courts “may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Co...

Excerpt: ...osition subpoenas on Pan's insurance company. Yassa sought testimony from State Farm's custodian of records and person most knowledge authenticating two letters he had received from State Farm and describing facts and conclusions supporting the latter. (Meunch Decl., Exhs. A and B.) Applicable Law Any party to the action or the witness may bring a motion to quash a subpoena and may request the court to quash it entirely, modify it, or direct comp...

Excerpt: ...1.) “Where a complaint is based on a written contract which is set out in full, a general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.” (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239.) The Employment Protection Agreement stated in its recitals that it was only “intended to impose obligations on the ...

Excerpt: ...buyer in connection with the commencement and prosecution of such action.” Defendant General Motors, LLC does not dispute that Plaintiff is the prevailing parties under the Song- Beverly Act, as reflected in their settlement agreement. Plaintiff's right to seek an award of attorney fees and costs is a term of the settlement agreement. (See Barry Decl., Exh. 7, at p. 2 of 5.) To recover attorney's fees, a prevailing party bears the burden of dem...

Excerpt: ... 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.) Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. (Leek v. Cooper (...

Excerpt: ...howing good cause justifying the discovery sought by the inspection demand pursuant to Code Civ. Proc., § 2031.310, subd. (b)(1).) 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) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or...

Excerpt: ...e nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, rule 3.1346.) Michael Bakkers did not show that the notice or moving papers were properly served on nonparty Nigel Burns. (See Proof of Electronic Service and Overnight Mail [ROA 305].) Accordingly, the unopposed motion is denied. MOTION TO ...

Excerpt: ... Caza, California 92679 (“Subject Property”) during the pendency of this action. The request for preliminary injunction is granted. Service Deficiency As an initial matter, Plaintiffs did not show that they served the summons, complaint, moving papers in support of their request for a preliminary injunction, or OSC on HOA. Plaintiffs filed a proof of service showing Stuart Smith served the summons, complaint, supporting papers, and OSC on Leg...

Excerpt: ...lifornia Rules of Court, rule 3.1345. The separate statement is to be “a separate document filed and served with the discovery motion . . .” (Cal. Rules of Court, rule 3.1345(c) [emphasis added].) Here, Defendant included the separate statements in with the notice, memorandum of points and authorities, and evidence, in the same document. Despite this, the court will consider the moving papers in their entirety, but cautions defense counsel to...

Excerpt: ...) 18 Cal.2d 872, 883.) A 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 forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 22...

Excerpt: ...eu of the defendants,” and for an award of attorneys' fees. Section 664.6 provides, in pertinent part: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” “If requested by the parties, the court may retain jurisdiction ove...

Excerpt: ...on as to each matter in dispute. Here, Plaintiffs propounded 65 demands. Each section as to why a further response is required is the same, including arguments and facts not relevant to the specific demand. The separate statement was largely unhelpful. Legal Standard On receipt of the response to a document demand, the demanding party may move to compel a further response if any of the following apply: (1) a statement of compliance is incomplete;...

Excerpt: ...order to protect the party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) “The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).) Generally, the party seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in the di...

Excerpt: ...d because: (1) Plaintiff already recovered fees for the discovery motions; (2) the fees incurred in connection with Plaintiff's summary judgment motion are “excessive” and should be reduced by half; (3) the fees incurred for “Covid research” are not warranted because Defendants did not assert a “Covid defense”; and (4) other unspecified line items should be reduced by $2,501.40. A court assessing attorney fees begins with a touchstone...

Excerpt: ...nce September 22, 2022. In that time period, they had discussed potential informal resolution of the matter or his office would file an answer on Defendant's behalf. He was even copied with discovery requests that were emailed to Defendant on November 11, 2022. (Fakhimi Decl., at ¶¶ 2-4.) On November 10, 2022, Plaintiff attempted to file a request for entry of judgment, which was rejected by the Clerk's office because of a deficiency. (ROA 11.)...

Excerpt: ...n.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208, fn. 25; see Cal. Rules of Ct., rule 2.550(c) [“Unless confidentiality is required by law, court records are presumed to be open.”].) 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 declara...

Excerpt: ...bility imposed by law” and that Plaintiff repeatedly informed Defendants of the defects. Defendants contend that since Plaintiff took possession of the Property in January 2016 and the conditions existed “at all relevant times” then Plaintiff's claims began to accrue in January 2016 and this action filed in December 2022 is untimely. “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily...

Excerpt: ...e, "if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded." (Code Civ. Proc., § 426.30, subd. (a).) Here, Defendants' proposed claims for defamation, harassment, and in...

Excerpt: ...n the grounds of “mistake, inadvertence, surprise or excusable neglect.” A court may grant discretionary relief upon the moving party's showing of mistake, inadvertence, surprise or excusable neglect. (Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615-616.) A defendant carries the burden of establishing inadvertence, surprise, mistake or excusable neglect by a preponderance of the evidence. (Transit Ads, Inc. v. Tanner M...

Excerpt: ...terms and 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 moving party from unreasonable or oppressive demands including unreasonable violations of the moving party's right of privacy. (Code Civ. Proc., § 1987.1.) Grounds for the motion include that the records sought are not within the permissible scope of discovery, are protected by privacy ...

Excerpt: ... court has treated the motion as one to compel further responses from Kenneth Oda, as opposed to Defendant Kyle Oda, who is listed in the caption of the motion, notice of motion, and notice of errata. Legal Standard A party 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 section 2030.230 is unwarranted or t...

Excerpt: ...3, 5, 6, and 9. The request is denied as to nos. 1, 2, 4, 7 and 8. It is not necessary to request judicial notice of documents in the court file. “[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) ¶ 9.53.1a.) Evidentiary Objections Bakkers' evidentiary objections are overruled. Summary Judgment/Adjudication Standard In both summar...

Excerpt: ...filing. But the court, in its discretion, may refuse to consider these papers in ruling on the motion. (Cal. Rules of Court, rule 3.1300(d); Kapitanski v. Von's Grocery Co., Inc. (1983) 146 Cal.App.3d 29, 32- 33.) Plaintiff's counsel points to the press of business as the reason he filed the opposition with only four court days' notice, in violation of Code of Civil Procedure section 1005, subdivision (b), which requires nine court days' notice. ...

Excerpt: ...provides: (a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good fai...

Excerpt: ...rty's showing of mistake, inadvertence, surprise or excusable neglect. (Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615-616.) A defendant carries the burden of establishing inadvertence, surprise, mistake or excusable neglect by a preponderance of the evidence. (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 279.) “[T]he law favors disposing of cases on their merits.” (Fasuyi v. Permatex, Inc...

Excerpt: ...orners” 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.) Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient d...

Excerpt: .... The deposition lasted for two hours. Roughan has been paid $500. There is a balance of $500. (Jones Decl., at 5-7, Exh. A.) Defendants do not oppose payment, and explain that a request for payment was sent to their insurance carrier on January 18, 2023. (Opp., at p. 4.) Defendants' carrier has had several months to pay the balance. The balance was originally due within five days of receipt of the itemized statement dated November 7, 2022. (See ...

Excerpt: ...hout leave to amend. Special Demurrer Defendant argues that the first through sixth and tenth through twelfth causes of action are uncertain. A 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 b...

Excerpt: ...o the extent Plaintiffs seeks to compel further responses from Selman Chevrolet Co., it is denied. 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., S 2031.010, subd...

Excerpt: ...able 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 that is sufficient to support the position of the party in question." (ld. 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 complet...

Excerpt: ...caused by untimely responses to interrogatories, requests for production of documents and requests for admission. To obtain relief, the party that waived objections must make a motion and the court must find "both of the following conditions are satisfied": (1) subsequent service of a substantially compliant response; and (2) that the "failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect." (Code Civ. Pr...