Excerpt: ...rporate Status A corporation whose powers have been suspended for nonpayment of the corporate franchise tax lacks capacity to sue in California courts; and, if sued, it lacks capacity to defend. (Rev. & Tax Code, § 23301; Reed v. Norman (1957) 48 Cal.2d 338, 342; see Bourhis v. Lord (2013) 56 Cal.4th 320, 324; Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603-1604 [“suspension of corporate powers results in a lack of capacity to sue, ...

Excerpt: ...1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) A self-represented litigant is not entitled to any greater consideration than other litigants and attorneys. (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594 [self-represented litigants are entitled to same treatment as represented parties].) Requests for Judicial Notice The court grants Plaintiff's request for judicial notice (“RJN”) of the opinion ...

Excerpt: ...ction is sustained without leave to amend. The demurrer as to the first cause of action is overruled. Request for Judicial Notice Defendants request judicial notice of the District Court's July 30, 2019 Order granting summary judgment in favor of Defendants in a prior federal case brought by Plaintiff arising from the same events. The court grants the request only to establish the contents of the judicial orders, findings, conclusions and judgmen...

Excerpt: ...st Construction Co. (1994) 24 Cal.App.4th 1426, 1441- 1442.) Electronic service is an acceptable method of service. (See Code Civ. Proc., § 1010.6, subd. (e)(1); Orange County Superior Court rule 352.) Defense counsel did receive the motion, even if he described finding the motion as having “stumbled on the One Legal mail of July 15, 2021, and out of curiosity opened the email only to realize that it was a motion for attorney's fees.” (Opp.,...

Excerpt: ... 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 remains essent...

Excerpt: ...he 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 remains esse...

Excerpt: ...r the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) Where the question is specific and explicit, an answer that supplies only a portion of the information sought is improper. It is also improper to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne (1978)...

Excerpt: ...leging facts material to the case occurring after the former complaint or answer.” (Code Civ. Proc., § 464, subd. (a).) The primary injury alleged in the existing complaint is that Defendant Niguel Pointe Homeowners Association has failed to meet its duties and obligations under the CC&Rs, by failing to properly repair and maintain certain “Common Areas,” which has led to “structural deficiencies” in Plaintiff's unit, i.e., the “crac...

Excerpt: ...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 sufficient precision to inf...

Excerpt: ...urt 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 the impos...

Excerpt: ...pplicable Law For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352, 359.) Negligence (First Cause of Action) “ ‘The elements of a cause of ...

Excerpt: ...n 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 Trial (The Rutter Group 2016) ¶ 8:1495.6.) Declarations are generally used to show good cause. They mu...

Excerpt: ...an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) 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.) The interrogatories at issue ask for information as to the number of babies delivered at Orange County Global Medical Center between Ma...

Excerpt: ...ode Civ. Proc., § 1987.1, subd. (a).) Grounds for the motion include that the records sought are not within the permissible scope of discovery, are protected by privacy rights, are not relevant to the subject matter, or are unjustly burdensome or oppressive demands. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 8:598.) A deposition subpoena that commands production of business records for copying “...

Excerpt: ... 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 within defendant's knowledge. (Khoury v. Maly's of California, Inc., supra, 14 Cal.App.4th at p. 616.) A party attacking a pleading on “uncertainty” grounds must specify how and why the p...

Excerpt: ...fendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppre...

Excerpt: ...ntiff submitted new evidence with its reply to fill gaps in the original evidence created by the opposition regarding Defendant's argument that Plaintiff failed to mitigate. While it would be appropriate to consider such evidence, the Court exercises its discretion and declines to consider that evidence as unnecessary. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) Plaintiff's claims for breach of lease and breach of guaranty are contra...

Excerpt: ...facts. Every element of fraud must be pleaded with specificity. The particularity requirement for fraud requires the pleading of facts showing how, when, where, to whom, and by what means the representations were made. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) This is to provide the defendant with notice and to give the court enough information to assess whether there is a foundation for the charge of fraud. (Committee on Children's T...

Excerpt: ...ted with his Reply of discovery and items from websites, is denied. The court declines to turn the hearing on the demurrer “into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, 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 Co...

Excerpt: ...iary Objections Plaintiff's objections to the Morales Declaration are overruled. Special Demurrer Uncertainty 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...

Excerpt: ...2 Cal.4th 1110, 1118; Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375-1376, 1384; Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1244.) When a motion for summary judgment is used to test whether the complaint states a cause of action, the court must accept the allegations of the complaint as true. It cannot consider facts alleged in opposing declarations. (American Airlines v. County of San Mateo, sup...

Excerpt: ...Code Civ. Proc., § 877.6, subd. (a)(2).) Or, a settling party may file a motion for determination of good faith settlement. (Code Civ. Proc., § 877.6, subd. (a)(1).) Defendant Schmidt had filed an application for good faith settlement determination without hearing. (ROA 37.) Defendant Brander filed an opposition to the application, but did not file any motion. (Opp. [ROA 41].) On March 30, 2021, the Court denied the application. (3/30/2021 Minu...

Excerpt: ...n Plaintiff Icon Servicing, Inc. is wholly owned by Lawson, who is its CEO, sole officer, sole director, and sole shareholder. Lawson is licensed wholesale motor vehicle dealer. Lawson alleges he is dependent on the revenue of Icon for his income. (4AC, at ¶ 6.) The vehicle seized by Floorit was owned by Icon. (4AC, at ¶ 22.) All of the causes of action alleged are premised on interference with a property right. That property was owned by Icon,...

Excerpt: ...it of attachment have been met, including that: 1. the claim upon which the attachment is based is one upon which an attachment may issue; 2. plaintiff has established the probable validity of the claim; 3. the attachment is not sought for a purpose other than recovery of the claim upon which the attachment is based; and, 4. the amount to be secured by the attachment is greater than zero. (Code of Civ. Proc., § 484.090, subd. (a).) Plaintiff has...

Excerpt: ...h order and writ of attachment by filing an application 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 tha...

Excerpt: ...202 Cal.App.4th 464, 474–476 [“A judgment against a trust, rather than against its trustees, is not enforceable.”].) As a result, a trust “‘“is simply a collection of assets and liabilities. As such, it has no capacity to sue or be sued, or to defend an action.”'” (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 522 [quoting Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 293; accord, Prob. Code, § 18004; Moeller v. Superior...

Excerpt: ...itial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (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.” (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 cann...

Excerpt: ...apira v. Superior Court (1990) 224 Cal. App. 3d 1249, at page 1255, the court held that Code of Civil Procedure sections 2032.310 and 2032.320 do permit more than one physical examination of a plaintiff upon a showing of good cause, and reversed and remanded the matter back to the trial court as it denied a motion to compel a third mental examination without considering whether there was good cause for such an exam. Here, Defendant has demanded t...

Excerpt: ...at Keith did not serve Plaintiffs Haque Dental Corporation and Trucheck Health, LLC with the motion. (Carlsen Decl., at ¶ 7.) Because there is a substantive opposition on the merits, the court exercises its discretion and will hear the motion. The court notes 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: ...ourt noted that the matter remained stayed pending completion of the arbitration. (See e.g., Minute Orders [ROA 65, 70, 86, 94, 99, 102, 107, 116].) A stay of a civil action pending arbitration constitutes a stay for purposes of section 583.340, subdivision (b). (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1797; Byerly v. Sale (1988) 204 Cal.App.3d 1312, 1314; Blake v. Ecker (2001) 93 Cal.App.4th 728, 737 [“Once the trial c...

Excerpt: ...., at p. 4.) 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) 224 Cal.App....

Excerpt: ...ns nos. 1 through 3 are overruled. Objection nos. 4 through 7 are sustained. Summary Judgment and Summary Adjudication 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...

Excerpt: ...lar 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. . . .” (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.” (Id. at p. 851.) A defendant moving for summary ...

Excerpt: ...eral and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [citing Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74].) “This particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.) In cases against corporate employers, “the plaintiff must ‘allege th...

Excerpt: ... proof of service again does not show that the notice of demurrer, demurrer, and reply were properly served on CareMore Medical Group. (Code Civ. Proc., § 1014.) Dr. Holzner demurs again to the third cause of action for medical negligence on the ground that it is barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340.5. The limitations period for a medical malpractice claim is three years after the date of...

Excerpt: ...spond to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) So, too, is disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, ter...

Excerpt: .... Proc., § 438, subd. (d); Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [“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.”]; see Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 10...

Excerpt: ...eponent's attendance and testimony at 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).) Code of Civil Procedure section 2025.480, s...

Excerpt: ...r things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orde...

Excerpt: ...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 (National Union Fire Ins. Co. of Pittsburgh, Pa.) (1997) 53 Cal.App.4th 1113, 1117.) After Defendant moved to amend its Answer to include affirmative defenses of assumption of ri...

Excerpt: ...50.) “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 action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the...

Excerpt: ...complied with the requirements of California Rule of Court 3.1345(c); and, in any event a separate statement is not required in all instances because a concise outline may be allowed pursuant to California Rule of Court 3.1345(b). (Reply, at p. 8.) Plaintiffs document is labeled a "Separate Statement." It does not comply with California Rule of Court 3.1345(c). As to Plaintiffs' argument that a separate statement was not required, effective Janua...

Excerpt: ..., § 2030.220, subds. (a) & (b).) Where the question is specific and explicit, an answer that supplies only a portion of the information sought is improper. It is also improper to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) A motion to compel also lies where the party to whom the interrogatories were directed gave responses deemed improper b...

Excerpt: ...v. Superior Court (1998) 61 Cal.App.4th 1431, 1435, citations omitted [explaining “This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order.'”].) Here, the record shows St. George's counsel sent a single letter, on January 25, 2021, to defense counsel to address four sets of discovery responses. (Williams Decls., at ¶ 4, Exh. C.) Defense counsel sent a response...

Excerpt: ... it. “On a challenge to personal jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of jurisdiction. . . The plaintiff must come forward with affidavits and other competent evidence to carry this burden and cannot simply rely on allegations in an unverified complaint. . . If the plaintiff meets this burden, ‘it becomes the defendant's burden...

Excerpt: ...er stones as well as stage 3-4 prostate cancer.” (Complaint, at ¶¶ 12- 14.) “[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...

Excerpt: ...orders on Defendant JRMK Investment LLC's demurrers, which resulted in judgment in favor of JRMK. JRMK purchased the property in a foreclosure sale and Plaintiff alleges the same cause of action based on the same conduct as the Moving Defendants. (SAC, at ¶¶ 21-27, 28.) All of the court's analysis equally apply to the instant motion. (See 10/18/2019 & 1/31/2020 Minute Orders [ROA 94 & 137].) 1. The Statute of Limitations has run on all claims. ...

Excerpt: ..., or person to compel the performance of an act which the law specially enjoins… .” (Code Civ. Proc., § 1085, subd. (a); Johnson v. Langond (1902) 135 Cal. 624, 625 [mandamus to compel secretary of corporation to allow stockholder to inspect books].) A writ will issue only “upon the verified petition of the party beneficially interested.” (Code Civ. Proc., § 1086.) The petitioner must have a “clear, present and beneficial right” to ...

Excerpt: ...s objection no. 3 is sustained. Merits 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 part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and p...

Excerpt: ...d concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the defendant in fairness needs such detail which can be conveniently provided by the plaintiff. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Under normal circumstances, there is no need for specificit...

Excerpt: ...around December 8, 2020. Plaintiff's counsel made efforts to meet and confer, including written correspondence and telephonic conferences. Plaintiff's counsel also pared down the requests. TagTrends never agreed to supplement any of the responses, even after it became clear that at least one of TagTrends' objections, regarding the discovery cut- off deadline, was wrong. Plaintiff met his initial burden of showing that there is good cause for the ...

Excerpt: ...gence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has ela...

Excerpt: ...ic, all civil trials, hearings, and proceedings were suspended from March 23, 2020 to May 22, 2020, with the exception of time sensitive matters. The Court resumed processing civil matters on May 23, 2020. (See Fourth Amended Administrative Order No. 20/06 Civil Order Regarding Court Closure, at ¶ 1.) The Clerk's Office scheduled the motions to compel arbitration for November 12, 2020. On November 9, 2020, the Court rescheduled the hearing on th...

Excerpt: ...ontacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.” (Elkman v. Nat. States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-1313.) If there is no conflict in the evidence, “the question of jurisdiction is purely one of law.” (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) California's long-arm statute authorizes California courts to exercise jurisdiction on any basis not...

Excerpt: ...construed under the laws of the State of California without reference to its principle of conflicts of law and is deemed to have been made and performed in Orange County, CA. You submit to the jurisdiction of CA and agree that the CA state courts and/or the United States District Court for the Central District of California, Santa Ana Division, shall have exclusive jurisdiction over any action or proceeding to enforce this EFA or any action or pr...

Excerpt: ...n of “writing”] & 1014 [authentication of a writing is required before the writing or secondary evidence of its content may be received in evidence].) “Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” (Cal. Rules of Court, rule 3.1306(a).) A motion for reconsideration made by a party must be b...

Excerpt: ...l stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal.App.3d 451, 461.) It is a “rare case” in which denial of leave to amend can be justified. (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158.) The liberal policy of permitting amendments is not without limitation or qualification. The policy of liberality in permitting amen...

Excerpt: ...s sustained without leave to amend. A demurrer presents an issue of law 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 Ca...

Excerpt: ...equest for judicial notice is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[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.) The Court sustained Defendant's demurrer on the grounds that Plaintiffs failed to file a timely certificate of merit pursuant to...

Excerpt: ...der and Dependent Adult Civil Protection Act The first cause of action is for elder abuse/neglect. “The purpose of the [Elder Abuse Act] is essentially to protect a particularly vulnerable portion of the population 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 havi...

Excerpt: ... 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 inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper...

Excerpt: ...videntiary Objections Defendant's objections to Plaintiff's evidence are overruled. Applicable Law “[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 product...

Excerpt: ...bitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocatio...

Excerpt: ...granted and the lawsuit is stayed, “the action at law sits in the twilight zone of abatement with the trial court retaining merely vestigial jurisdiction over matters submitted to arbitration.” (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1796.) During that time, under its “vestigial” jurisdiction, a court may; appoint arbitrators if the method selected by the parties fails (§ 1281.6); grant a provisional remedy “b...

Excerpt: ...ccordingly, the Court exercises its discretion to consider Plaintiff's untimely opposition. Defendant's Response to Plaintiff's Separate Statement Defendant submitted a response to Plaintiff's separate statement. No such response is permitted under the Code of Civil Procedure or the California Rules of Court. (Code Civ. Proc., § 437c; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Accordingly, the Court declines to consider Def...

Excerpt: ...nstant motion on January 25, 2021, after they already filed the FAC, apparently seeking retroactive relief. Such relief is not provided for in the Code of Civil Procedure. A party wishing to amend a pleading after the time has passed must file a motion with the Court pursuant to Code of Civil Procedure section 473 and California Rule of Court 3.1324. But, Plaintiffs have not complied with California Rules of Court 3.1324. Plaintiffs fail to “[s...

Excerpt: ...ble as unfair competition under Business & Professions Code section 17200. (Lueras v. BAC Home Loans Servicing, LP, 221 Cal.App.4th 49, 81.) “An unfair business practice occurs when that practice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers . . . An unfair business practice also means the public policy which is a predicate to the action must be ...

Excerpt: ...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.) 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...

Excerpt: ...t liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal.App.3d 451, 461.) It is a “rare case” in which denial of leave to amend can be justified. (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158.) The liberal policy of permitting amendments is not without limitation or qualification. The policy of liberality...

Excerpt: ...ation supporting an application for a writ of possession must set forth the facts with particularity and with personal knowledge. The declaration can rely on information and belief only upon a proper showing of the reliability of the information. The application must show the following elements:  right to possession, i.e., plaintiff must show the evidence forming the basis of a claim for possession; if based on a written document, the document...

Excerpt: ...es were directed 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., § 2030.290, subd. (a).) On September 29, 2020, Plaintiff properly served her form interrogatories-general, set two, on Wesco and Melkonian by mail and email. (Chavos Decl., at ¶ 2.) Defendants' response...

Excerpt: ...the lease agreement requires Plaintiff to arbitrate its claim against Defendant. “Because arbitration is a matter of contract, generally one must be a party to an arbitration agreement to be bound by it or invoke it. [Citation] However, both California and federal courts have recognized limited exceptions to this rule, allowing nonsignatories to an agreement containing an arbitration clause to compel arbitration of, or be compelled to arbitrate...

Excerpt: ...endant Kendra Klassen, and the sixth cause of action against Defendant Greg Klassen. Plaintiff's complaint alleges that Defendants are both psychologists. Plaintiff alleges her search for a Christian therapist led her to Greg Klassen, who in turn referred Plaintiff to his wife, Kendra Klassen “despite his obvious knowledge of Mrs. Klassen's ability to maintain therapeutic boundaries with her patients.” Plaintiff attended therapy with Kendra K...

Excerpt: ...the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits ...

Excerpt: ...f alleges that in January of 2019, Plaintiff and Defendant Hwang entered into a business partnership, but Hwang had no intention of performing. (Complaint, at ¶ 12.) It is unclear if Plaintiff is alleging intentional misrepresentation or false promise. (See, e.g., Complaint, at ¶¶ 11-15; see CACI nos. 1900 & 1902.) “A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent ...

Excerpt: ... an intentional misrepresentation, duty, justifiable reliance, or damages with the requisite specificity. It is unclear whether Plaintiffs' first cause of action is based on an intentional misrepresentation or concealment. (Opp., 8:13-18, 8: 24-28, and 9:2-9; SAC, ¶¶ 50, 52- 56, 61-64, and 69.) Under either theory, Plaintiffs did not allege sufficient facts with the requisite specificity to support a cause of action for fraud. Plaintiffs did no...

Excerpt: ...any whose business decisions and personnel policies are determined in Dallas, Texas. Therefore, Employee understands and agrees that venue of any action brought to enforce or relating to this Agreement or relating to any aspect of Employee's employment shall be brought exclusively in the district courts of Dallas County, Texas, or the United States District Court for the Northern District of Texas, Dallas, Texas. Employee expressly consents to th...

Excerpt: ...the Kirk Defendants. (Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660-662.) The joinders are granted. The demurrer as to the second cause of action is sustained without leave to amend. The motion to strike is granted without leave to amend as to the portions of the first cause of action at issue, and moot as to the portions of the second cause of action at issue. REQUEST FOR JUDICIAL NOTICE Defendants request judicial notice for two...

Excerpt: ...e existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. (c) A party...

Excerpt: ...is or her interest as a shareholder,' or a ‘derivative action filed on behalf of the corporation for injury to the corporation for which it has failed or refused to sue.' . . . ‘[Ordinarily,] The two actions are mutually exclusive: i.e., the right of action and recovery belongs either to the shareholders (direct action) or to the corporation (derivative action).' . . . When the claim is derivative, the ‘shareholder is merely a nominal plain...

Excerpt: ...retion, at any later time upon terms it deems proper. (Code Civ. Proc., § 425.16, subd. (f).) This statute permits a motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier. When more than 60 days have passed since service of the original complaint, a special motion to strike may be brought only against causes of action that were not pled in the original ...

Excerpt: ... approximately two weeks before Dr. Holzner filed his demurrer to the SAC. (See ROA 157.) Dr. Holzner contends the SAC is a sham pleading because it omits certain factual allegations previously alleged in the FAC. Generally, after an amended pleading has been filed, courts will disregard the original pleading. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) But an exception to this rule occurs when an amended complaint attempts to avoid defe...

Excerpt: ...iconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.) Special Demurrer for Uncertainty Defendants specially demurrer to the first through fourth causes of action. 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...

Excerpt: ...ng the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the p...

Excerpt: ...under general rule of motion practice, new evidence not permitted with reply papers and is only allowed in exceptional cases].) Upon the filing of a complaint or at any time thereafter, the plaintiff may apply for a right to attach order and writ of attachment by filing an application 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 th...

Excerpt: ...cifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [citing Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74].) “This particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.) In cases against corporate employers, “the plaintiff mus...

Excerpt: ...�452, subds. (d) & (h).) Geocon's request for judicial notice of documents filed in the instant matter (Exhs. A-C) 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 2019) ¶ 9:53.1a.) In this action, it is undisputed Geocon, via Jospeh...

Excerpt: ...l 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) 224 Cal.App.3d 905, 908.)...

Excerpt: ...endant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the defendant in fairness needs such detail which can be conveniently provided by the plaintiff. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Under normal circumstances, there is no need for specificity in pleading evidentiary facts. However, bare conclusions of la...

Excerpt: ...able for the acts of OCFA's employee. Evidentiary Objections Tustin's objections to paragraphs 5 and 6 and corresponding Exhibits 4 and 5 in the Roberts Declaration, are sustained. The court declines to consider Tustin's objections in its response to Plaintiff's separate statement of additional facts. Those objections are denied as improper. The written objections must be served and filed separately from papers supporting or opposing the motion. ...

Excerpt: ...$4,290.50 to defense counsel. Plaintiff contends he did not file the correct expert declaration due to his counsel's mistake and inadvertence. The Court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or 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...

Excerpt: ... statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; and (3) an objection in the response is without merit or is too general. 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 ...

Excerpt: ... contacted Plaintiff “from 06/2018 till 03/2019 to make financial arrangements,” and, “while other financial organizations worked with Defendant to make arrangements,” Plaintiff “would not agree.” (Answer at p. 2, ¶ 4.) Applicable Law A motion for judgment on the pleadings has the same function as a general demurrer. (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691.) Where, as here, the plaintiff is moving for judgment...

Excerpt: ...dant of the issues it is being asked to meet, failure to label each cause of action is not ground for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of labels . . . does not substantially impair [defendant's] ability to understand the complaint.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 fn. 2.) Plaintiff's opposition acknowledges that she has pled three distinct causes of action all within t...

Excerpt: ...2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, 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 ...

Excerpt: ...ant. (Compl., at ¶ 7, Exh. A [“Lease Agreement”].) In connection with the lease, “Plaintiff received an express written warranty in which Defendants undertook to preserve or maintain the utility or performance of the Subject Vehicle to provide compensation if there is a failure in utility or performance for a specified period of time.” (Compl., at ¶ 8.) The defects developed during the warranty period, the Vehicle “contained or develo...

Excerpt: ...y Dr. Mark Reed, a podiatrist, and Dr. Andrew Vardanian, a plastic surgeon. (See Objections [ROA 151 & 152]; Reply, at p. 2.) “Expert testimony is admissible only if based on matter of a type that may reasonably be relied on by an expert in forming an opinion on the subject to which his testimony relates.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519 523 [citing Evid. Code, § 801, subd. (b)].) “There is only one standard for admissibility of...

Excerpt: ...ed wage and hour violations. In relevant part, the Complaint alleges: 6. Plaintiffs are informed and believe that defendant SAM METCALF is, and at all relevant times was, a legal resident in Orange County, California. At all relevant times, defendant SAM METCALF has been an owner, director, officer, and/or managing agent of defendant NOVO MISSION INC. He is, therefore, subject to liability for “acting on behalf of an employer” under Californi...

Excerpt: ...ated that the demurrer was as to "each cause of action asserted therein against Moving Party." (Demurrer, at p. 2.) The first cause of action for trespass is only against Ms. Andrews. The Court already overruled Ms. Andrews' demurrer as to the first cause of action. (See 11/15/2019 Minute Order [ROA 84].) The Memorandum of Points and Authorities also makes clear that the demurrer is not as to the first cause of action for trespass. (See Demurrer,...

Excerpt: ...imely filed motions to compel answers. Legal Standard If a deponent fails to answer a deposition question or produce documents or things designated in the deposition notice or subpoena, the examiner may either complete the examination on other matters or adjourn the deposition. (Code Civ. Proc., §§ 2025.460, subd. (e); 2025.480, subd. (a).) The motion to compel must be accompanied by a declaration stating facts showing “a reasonable and good ...