Excerpt: ... and on any terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc., § 473, subd. (a)(1); see Code Civ. Proc., § 576.) The court's discretion will usually be exercised liberally so as not to deprive a party of the right to assert a meritorious cause of action or defense. The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the gran...

Excerpt: ...y Cooper, and Cliff Higgerson, are granted. Requests for Judicial Notice Defendants' request for judicial notice is granted as to exhibits 1 through 18. (Evid. Code, § 452, subds. (d), (h).) The court may not take judicial notice of the truth of the matter stated in the documents. (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.) However, the truth of statements “may be accepted when made by a party but not th...

Excerpt: ...ever comes first. (Code Civ. Proc., § 340.5.) For purposes of the one–year statute, “the accrual date is delayed until plaintiff is aware of her injury and its negligent cause.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.) “In order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reaso...

Excerpt: ...tice of the truth of the matter stated in the documents. (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.) However, the truth of statements “may be accepted when made by a party but not those of third parties or an opponent.” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103.) In addition, “the contents of a document may only be accepted ‘where there is not or cannot be a factual dispute c...

Excerpt: ... 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 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 all...

Excerpt: ...d 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.” (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....

Excerpt: ...blic entity for money or damages must first present a claim to the public entity. Generally, no suit for money or damages may be brought until a timely claim has been filed and acted upon by the public entity. (Govt. Code, § 945.4.) “Under [Government Code] section 911.2, ‘[a] claim relating to a cause of action for death or for injury to person or to personal property ... shall be presented as provided in Article 2 (commencing with Section ...

Excerpt: ... Procedure does not provide for a sur-reply to be filed. (Code Civ. Proc., § 1005.) Defendant did not seek prior court order before filing these documents. Code of Civil Procedure section 2031.220 requires a party responding to an inspection demand to respond with (1) a statement that it will comply, (2) a representation that it does not have the ability to comply, or (3) an objection. (Code Civ. Proc., § 2031.220.) An agreement to comply must ...

Excerpt: ...demurrer to the first, second, third, tenth, and seventeenth through twentieth causes of action as to Dad's lack of standing. These causes of action are claims derived from a physician or health care provider relationship. No facts were pled showing that Dad was Defendants' patient. Dad is not a proper plaintiff for these claims. He does not have standing to assert these causes of action. (Keene v. Wiggins (1977) 69 Cal.App.3d 308, 313 [a health ...

Excerpt: ...ere 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 fa...

Excerpt: ...s an “affirmative defense”), and thus must be specially pleaded in the answer. (See California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442 [failure to plead equitable defenses waived those defenses].) A defendant raising such new matters must allege ultimate facts sufficient to prove the defense with the same level of detail that a plaintiff is required to allege ultimate facts to support a cause of action in a co...

Excerpt: ...d of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' A defendant's conduct is ‘outrageous' when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.' And the defendant's conduct must be ‘intended to inflict injury or engaged in wi...

Excerpt: ...ests for Judicial Notice The court denies Plaintiff's requests for judicial notice of the federal complaint filed in United States v. Hossein Wasiri, a/k/a "Frank Wasiri" (USDC SDNY case no. 1:19-cr-00423-ALC); judgment filed in Nazari v. Wasiri (OCSC case no. 30-2013-00663025); declaration of Samuel Yu filed in Nazari v. Wasiri (OCSC case no. 30-2015-00778844); and judgment filed in Aska Sakan, Inc. v. Wasiri (OCSC case no. 30-2018-00982440), as...

Excerpt: ... are overruled as to nos. 1- 5, and sustained as to the remaining objections. Code of Civil Procedure section 1987.1, subdivision (a) provides: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivisi...

Excerpt: ...Violation of Elder 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 ...

Excerpt: ...ssed, or stayed pending the action they have already initiated in Delaware. Pursuant to Code of Civil Procedure section 418.10, subdivision (a)(2), a defendant, on or before the last day of her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion to stay or dismiss the action on the ground of inconvenient forum. “When a case involves a mandatory forum selection clause, it will u...

Excerpt: ...roc., § 1010 [“Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.”]; Cal. Rules of Ct., rule 3.1110(a) [“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”].) Although Plaintiff raised this deficiency in its ...

Excerpt: ...1 and Special Interrogatories nos. 4-6 Plaintiff requests the settlement agreement in case number 30-2012-00540874 and information about the underlying settlement. Defendant objected to the discovery request on the grounds that the settlement agreement was confidential and that disclosure would violate the right to privacy of the parties to the agreement. The California Supreme Court recently recognized the role that confidentiality plays in faci...

Excerpt: ... attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attorney's fees, as set forth above, that provision sha...

Excerpt: ... mediate any dispute or claim arising between them out of this Agreement or any resulting transaction before resorting to court action. Mediation fees, if any, shall be divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation or refuses to mediate after a request has been made then that party shall not be...

Excerpt: ...; (2) the claims, defenses, or other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support, or if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further Investigation or discovery; and (4) the denials of...

Excerpt: ...Act and for breach of express and implied warranties, Plaintiffs allege that Defendant is liable for fraud by omission. Specifically, Plaintiffs allege Defendant “committed fraud by allowing the Vehicle to be sold to Plaintiff[s] without disclosing that the Vehicle and its Diesel Engine and attendant fuel and exhaust system was defective and susceptible to sudden and premature failure.” (FAC, at ¶ 51.) Defendant allegedly knew, “since 2010...

Excerpt: ...esent. After Defendant objected to the subpoena, the DMV sent a letter dated June 19, 2020, stating that it would not produce the requested records “until further notice from the Objector or by court order.” (Robinson Decl. [ROA 121] at ¶ 20, Exh. 11.) The DMV further explained that, “once the production moves forward,” a number of “confidential information objections would apply.” Under “additional information,” the DMV explaine...

Excerpt: ...Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Evidentiary Objections Plaintiffs' evidentiary objections are all overruled. Defendant's evidentiary objections are overruled as to nos. 1, 2, 5, 6, and 9, and sustained as to nos. 3, 4, and 7-8. 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 fa...

Excerpt: ... 26 are overruled. The remaining evidentiary objections are sustained. Request for Judicial Notice Defendant's request for judicial notice is denied as irrelevant. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) Merits Civil Code section 1794, subdivision (d) states: “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 ...

Excerpt: ...ion for Breach of Contract The elements of breach of contract are (1) existence of a contract, (2) plaintiff's performance or excuse from non-performance, (3) breach by defendant, and (4) damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.) A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference�...

Excerpt: ...must” be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551(b)(1).) The court may order that a record be filed under seal only if it expressly finds facts that establish that: there exists an overriding interest that overcomes the right of public access to the record; the overriding interest supports sealing the record; a substantial probability exists that the o...

Excerpt: ...g 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 ordered by the court to provide responses to discovery, continued failure to r...

Excerpt: ...rmity with the laws of this state, a court rule, or an order of the court. Strict Liability (Second Cause of Action) Defendants seek to strike the second cause of action on the ground that the Complaint does not allege anywhere that Plaintiff's injuries arise from a dog bite and has not pled facts to show the strict liability dog bite statute applies. (Mot., at pp. 3-4, 8-9.) Defendants' motion to strike the entire cause of action is improper. Su...

Excerpt: ... (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing. (Code Civ. Proc., § 391, subd. (b)(1).) “Finally determined” means that all avenues for direct review (appeal) have been exhausted or the time for appeal has expired. (Childs v. PaineWebber Inc. (1994) 29 Cal.App.4th 982, 994.) Voluntarily dismissing the action counts as an adve...

Excerpt: ...der 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 within defendant's knowledge. (Khoury v. Maly's of California, I...

Excerpt: ...hat is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Code of Civil Procedure section 664.6 provides: “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...

Excerpt: ...part. The motion is granted as to request numbers 14 and 15. The motion is denied as to request numbers 8-13 and 16. Pursuant to Code of Civil Procedure section 2031.210, subdivision (a), a party responding to a request for production shall respond by: (1) a statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to par...

Excerpt: ...020, B296194) __ Cal.App.5th __ [2020 WL 4187851], is granted. (Evid. Code, § 452, subd. (a).) Defendants' request for judicial notice of documents filed with the North Carolina Secretary of State is granted. (Rose Supp. Decl., Exh. 6.) Judicial notice of the existence and filings of Exhibit 6 is appropriate, as well as the clear legal effects thereof, pursuant to Evidence Code section 452, subdivisions (c) and (h), but not the truth of any matt...

Excerpt: ...at: (d) The right to compel arbitration has been waived by the petitioner; or (e) Grounds exist for the revocation of the agreement. (f) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. . . . (Code Civ. Proc., § 1281.2.) Ca...

Excerpt: ...or demurrer. (Code Civ. Proc., § 473, subd. (a)(1).) The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code of Civ. Proc., § 473, subd. (a)(1).) Additionally, any judge, at any time before or after commencement of trial, in the ...

Excerpt: ...ability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' A defendant's conduct is ‘outrageous' when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.' And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realiz...

Excerpt: ...(1994) 7 Cal.4th 1057, 1063.) Moving Defendants generally and specially demur Plaintiffs' first cause of action for negligence. Their primary contention is the FAC fails to allege facts showing that they owed a duty to Plaintiffs. 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,...

Excerpt: ...at 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 to the arbitration agreement is also a party to a pending court act...

Excerpt: ...y 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 ordered by the court to provide responses to discovery, co...

Excerpt: ...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 orders. In addition, the court may make any other order as may be appropriate to protect...

Excerpt: ...interrogatories on the grounds that the answer is evasive or incomplete. (Code Civ. Proc., § 2030.300, subd. (a)(1).) Prior to filing such a motion, the moving party must meet and confer with the responding party in a reasonable and good faith attempt to informally resolve each issue that would be presented by the motion. (Code Civ. Proc., § 2030.300, subd. (b); see Code Civ. Proc., § 2016.040.) If a timely motion to compel has been filed, the...

Excerpt: ...ence 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...

Excerpt: ...alifornia discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process,'” which is defined in Code of Civil Procedure section 2023.030. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) “The general rule . . . is that if it is sufficiently egregious, misconduct committed in connection with the failure to produce evidence in discovery may justify the imposition of nonmonetary sanctio...

Excerpt: ...ted 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 pleadi...

Excerpt: ...C); and (4) the Notice of Trustee's Sale recorded on August 21, 2017 (Exh. D). The court may take judicial notice of a fact or proposition contained in a recorded document that cannot reasonably be controverted. (Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 536, disapproved on other grounds in Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 939, fn. 13; see generally, Fontenot v. Wells Fargo Bank, N.A. (2011) 198 C...

Excerpt: ...l further response to special interrogatory number 15. Special interrogatory number 15 requested: “IDENTIFY, by name, address, and National Provider Identifier (“NPI”) number, all CONTRACTED PROVIDERS where YOU could have transferred MEMBERS.” (Cox Decl., Exh. 1.) The motion is denied. 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 produ...

Excerpt: ...(The Rutter Group 2019) ¶ 9:53.1a.) Evidentiary Objections All documentary evidence must be presented in admissible form. Basically, the evidence must be properly identified and authenticated, admissible under the secondary evidence rule, and nonhearsay or admissible under some exception to the hearsay rule. The contents of documents attached to a declaration do not become admissible simply because they are incorporated by reference therein. If ...

Excerpt: ... issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (See Code Civ. Proc., § 2025.420(b).) The “burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; see also Nativi v. Deutsche Bank National Trust Co. (2014) 223 ...

Excerpt: ...ther responses to her first sets of form interrogatories, requests for admission, and requests for production of documents, and to compel responses to her first set of special interrogatories. Plaintiff has improperly combined five separate motions into one document, and paid only one filing fee. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 9:23.4 [each motion “should normally be set forth in a...

Excerpt: ...e clerk (or any party) mails out notice of dismissal or entry of judgment. The memorandum must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. (Cal. Rules of Ct., Rule 3.1700; Daniels v. Robbins (2010) 182 Cal.App.4th 204, 228.) No proposed judgment is required in order to perfect the memo of costs. (Fries v. Rite Aid Corp. (2009) 173 Cal.App.4th 182, 185.) Allowable costs must be reasonable and...

Excerpt: ...overy, LLC (see ROA 155); Harry L. Haroutunian, M.D. (see ROA 154); and, Dr. Harry Recovery & Wellness Network (see ROA 153). Each subpoena requests the same nine categories of documents. In her separate statements, Plaintiff did not include categories 4 and 5. Thus, Plaintiff only challenges categories 1 through 3, and 6 through 9. (See Cal. Rules of Court, rule 3.1345(a)(5).) Code of Civil Procedure section 1987.1, subdivision (a) provides: “...

Excerpt: ... second cause of action is alleged against Jacquet and Freedom Capital Partners, LLC. The seventh cause of action is alleged against Jacquet, E.A. Jacquet, and Kohen-Leasure. The demurrer is overruled in part and sustained in part. The demurrer as to the first, second, and seventh causes of action is overruled. The demurrer as to the third, fourth, and fifth causes of action is sustained without leave to amend. A demurrer presents an issue of law...

Excerpt: ...essary 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 2019) ¶ 9.53.1a.) Ozuna's objection to the statement in paragraph 59 of the Hariri Declaration that Alta is not a successor to IPCE, is sustained. Ozuna's remaining evidentiary objections are ove...

Excerpt: ...k is ordered to indicate in the Court's records that Defendant El Toro Warehouse, Inc. is not represented by Abir Cohen Treyzon Salo, LLP and has not responded to the Complaint. DEMURRER The Court considered this demurrer as having only been made by Bonilla. Bonilla's demurrer to Plaintiffs Tyral B. Edmundson, Osbelia G. Edmundson, and Daniel Perales' Complaint, is sustained in part and overruled in part. The demurrer as to the fourth and fifth c...

Excerpt: ...in the body of the answer, it stated: “Defendant Matt Kolta, an individual, hereby answers Plaintiff's (“Plaintiff”) complaint.” Matt Kolta is not a named defendant in this action. Furthermore, almost all of the affirmative defenses refer to “Defendants”. The ninth, eleventh, and twelfth affirmative defenses refer to a “Defendant Satish.” Satish is also not a named defendant in this action. Most importantly, Mina Kolta is not iden...

Excerpt: ...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 judgment satisfies his or her initial burden by showing that one or more elem...

Excerpt: ...are and breached it proximately causing the emotional distress damage to the plaintiff. (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 127; Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204; Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 206.) As for a bystander claim, such a claim requires that the victim has suffered severe distress as a result of witnessing physical injury to a person who is closely rela...

Excerpt: ...ice of the moving papers to be filed no later than five court days before the time appointed for the hearing. On March 2, 2020, Plaintiff filed a document entitled “Plaintiff's Response to Defendant FCA US LLC's Opposition to Plaintiff's Motion to Amend Complaint to Reinstate Punitive Damages.” To the extent Plaintiff intended for this document to be considered a reply, it was untimely filed and served. (Code Civ. Proc., § 1005, subd. (b).) ...

Excerpt: ...dered Defendant's reply to the opposition. On March 3, 2020, Plaintiff filed a document entitled “Plaintiff's Reply to Defendant's Reply.” Plaintiff did not obtain prior leave of Court to file this document. Accordingly, the Court did not consider this document. In ruling on a demurrer or motion for judgment on the pleadings, the trial court examines the pleading to determine whether it alleges facts sufficient to state a cause of action unde...

Excerpt: ...ion of emotional distress (“NIED”) is sustained without leave to amend. Defendant Bhumy Dave Heliker's demurrer to Plaintiff's third cause of action for IIED is sustained with 15 days leave to amend. Heliker's demurrer to the fourth cause of action for NIED is sustained without leave to amend. Third Cause of Action for IIED “A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous...

Excerpt: ...te permitted by the court, the untimely amendment is subject to a motion to strike. (Cal. Rules of Ct., Rule 3.1320.) Statute of Limitations A three-year statute of limitation applies to fraud claims. (Code Civ. Proc., § 338, subd. (d).) Where, as here, the running of the statute clearly and affirmatively appears from the dates alleged in the SAC, the Plaintiffs bear the burden of pleading and proving they did not discover, or have reason to dis...

Excerpt: ... 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 2018) ¶ 9:53.1a.) As to nos. 6, 7, and 8, the declarations in an exhibits are hearsay. Judicial notice of other court records and files is limited to matters that are indisputably true. Thi...

Excerpt: ...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 ordered by the court to provide responses to discovery, continued failure to respond may re...

Excerpt: ...nt is “guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) Malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Oppression is defined as “despicable conduct that subjects a person to cruel and unjust har...

Excerpt: ... stricken, and Verona Collection's default should be entered, because Verona Collection is a foreign corporation that “does not hold a valid certificate from the California Secretary of State in violation of [Corporations Code] Section 2105,” and “lacks the right and the capacity to defend and/or maintain any action or proceedings in any court of this state” under Corporations Code section 2203. (Mot., at p. 3.) Corporations Code section ...

Excerpt: ...lemental briefing from the parties regarding the applicability of Donovan v. Dan Murphy Foundation (2012) 204 Cal.App.4th 1500. 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) 23...

Excerpt: ...5.16, subd. (b)(1); Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 208.) An “ ‘act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written o...

Excerpt: ...h and nineteenth causes of action respectively. Where a court grants leave to amend after sustaining a demurrer, the scope of permissible amendment is limited to the causes of action to which the demurrer has been sustained. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [ruling that adding new cause of action after demurrer is improper]; People v. Clausen (1967) 248 Cal. App. 2d 770, 785-86 [finding that adding new party aft...

Excerpt: ...re disfavored. (Cal. Rules of Ct., Rule 3.1332(c).) The Court “may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailabili...

Excerpt: ...ed.” (Cal. Rules of Ct., Rule 3.1332(b).) Trial continuances are disfavored. (Cal. Rules of Ct., Rule 3.1332(c).) The Court “may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death,...

Excerpt: ...e prior to or at the hearing showing the papers were properly served on Defendant. Plaintiff's motion is entitled motion to reconsider and Plaintiff seeks reconsideration of the dismissal. However, Plaintiff essentially moves for relief pursuant to Code of Civil Procedure section 473 and not Code of Civil Procedure section 1008. In addition, Plaintiff does not show any new or different facts, circumstances, or law to support a motion for reconsid...

Excerpt: ...10(c)) provides that a lawyer will not, without informed written consent from each client, represent a client with an interest adverse to another client. In considering conflicts of interest in a concurrent representation, the court must focus on the attorney's duty of loyalty. (Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 428.) “A per se or automatic disqualification rule applies when counsel's representation of one client is ...

Excerpt: ...e and testimony at deposition. Here, Defendant conducted the first session of Plaintiff's deposition on June 17, 2019. However, it was cut short. The parties stipulated to a second session. (Grandy Decl., ¶ 4.) On three occasions, Defendant attempted to notice Plaintiff's continued deposition, with the latest date being December 5, 2019. (Grandy Decl., ¶¶ 5- 10.) However, on December 4, 2019 at 4 pm, counsel was advised that Plaintiff was unav...

Excerpt: ...se of action, the fourth cause of action as to Plaintiffs Donovan and Curtis Reale only. The remainder of the demurrer is overruled. Request for Judicial Notice In support of both Motions, Defendants request that the court judicially notice the Complaint. The request 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 ...

Excerpt: ... October 18, 2019 as to the same causes of action. The court ruled that none of Plaintiff's allegations rendered any assignment or deed void, but rather voidable at best. The SAC mostly the same as the FAC. Plaintiff now makes two categories of additional factual allegations in the SAC. First, Plaintiff alleges that Cameron Financial Group Inc. was suspended by the California Franchise Tax Board and the California Secretary of State suspended Cam...

Excerpt: ...mits 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 motion may be used to attack portions of a cause of action, even if the motion does not defeat the entire purported cause of action. (Baral v...

Excerpt: ...enges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts 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 Enterta...

Excerpt: ...ry 14, 2020, without a proof of service. On January 15, 2020, they filed a notice of errata with respect to the opposition that contained a proof of service showing mail service on January 15, 2020. The Court has considered the opposition, but admonishes Plaintiffs' counsel to timely-file and properly serve papers in future motions. Plaintiffs may recover exemplary damages in an action for the breach of an obligation not arising from contract if ...

Excerpt: ...ng relief from default.” (Ibid.) If a party moves promptly for default relief, or if the granting of the relief from default will not prejudice the opposing party (other than losing the advantage of the default), only slight evidence will justify an order granting such relief. (Iott v. Franklin (1988) 206 Cal.App.3d 521, 526.) Code of Civil Procedure section 473, subdivision (b), permits a court to grant relief from a judgment, dismissal, order...

Excerpt: ...use Plaintiff failed to timely file a torts claim with OCFA and the court denied the application for relief. Failure to timely present a claim to a public entity bars the lawsuit, “ ‘even in face of the public entity's actual knowledge of the circumstances surrounding the claim.' “ (California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1591.) This motion to quash is not the proper vehicle to determine wh...

Excerpt: ...S Plaintiff moves to compel further response to request for admission no. 1. The court exercises its discretion to consider the parties' untimely filed opposition and reply to the motion to compel further response to request for admission. Pursuant to Code of Civil Procedure section 2033.290, subdivision (a), a party may move for an order compelling a further response to requests for admission if that party deems that either or both of the follow...

Excerpt: ...ere, as here, the running of the statute clearly and affirmatively appears from the dates alleged in the Complaint, the Plaintiffs bear the burden of pleading and proving they did not discover, or have reason to discover, the claim sooner. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472 [internal citations omitted].) In addition, “plaintiff also must plead ‘facts showing that he was not negligent in failing to make the discovery...

Excerpt: ...iled 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 2018) ¶ 9.53.1a.) Code of Civil Procedure section 473, subdivision (b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect” so long as t...

Excerpt: ... motion for summary judgment. The requests are 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 2018) ¶ 9:53.1a.) Plaintiff's Separate Statement is Noncompliant Plaintiff filed a document entitled “Plaintiff Jason Gardner's...

Excerpt: ...rt a meritorious cause of action or defense. The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only...

Excerpt: ...Civ. Proc., § 2025.420, subd. (a).) The motion shall be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2025.420, subd. (a).) 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).) The protective order may i...

Excerpt: ...y 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 fact. . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A p...

Excerpt: ...bey 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 ordered by the court to provide responses to discovery, ...

Excerpt: ...for release of records. The motion is granted in part. The motion was properly served upon Bonar Law Group. No opposition was filed by Bonar Law Group. Plaintiff opposed the motion, but only as to the request for an order compelling him to execute authorization for release of records. Here, the subpoena seeks non-privileged records. (See Exh. B.) Therefore, Bonar Law Group's concerns of attorney-client privilege and attorney work product, are unw...

Excerpt: ...essary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) “[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 ...

Excerpt: ...ld 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 judgment satisfies his ...

Excerpt: ...p. (2015) 242 Cal.App.4th 651, 659-660.) However, the truth of statements “may be accepted when made by a party but not those of third parties or an opponent.” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103.) In addition, “the contents of a document may only be accepted ‘where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.'…And the general rule is that the truthfu...

Excerpt: ...connection with a public issue is subject to a special motion to strike unless the plaintiff demonstrates a probability of prevailing on the claim. (Code Civ. Proc., § 425.16, subd. (b)(1); Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 208.) An “ ‘act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) a...

Excerpt: ...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 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 el...

Excerpt: ...nsel or access to California law books. He does not have funds to make copies of court documents for service of process on the two defendants. (Mot. at pp. 2 & 3 of 4.) Although not addressed by Plaintiff in the motion, it appears that Plaintiff is presently incarcerated. On July 31, 2019, the Court granted Plaintiff's request for a fee waiver. (Register of Action [“ROA”] 6.) An indigent prisoner who initiates a bona fide civil action has a r...

Excerpt: ...able conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Allegations of intoxication, without more, do not state a claim for punitive damages. (Dawes v. Superior Court (1980) 111 Cal.App.3...

Excerpt: ...ssion, fraud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Allegations of intoxication, without ...

Excerpt: ...for judicial notice of the following documents filed in Saurman, et al. v. Gnirob Capital Corporation, et al. (Orange County Superior Court case no. 30-2015-00784439 [“the Related Case”): the complaint, order denying motion for judgment notwithstanding the verdict and granting in part motion for new trial, the notice of appeal, and Rucci Declaration. Plaintiff's request for judicial notice of the First Amended Complaint filed in the instant a...

Excerpt: ...objection to Adam Sorini's report. A deposition subpoena is the proper tool to obtain discovery from a nonparty to the action. (Code Civ. Proc., § 2020.220, subd. (c)(2).) Either the nonparty witness who has been subpoenaed, or any party to the action, may challenge the deposition subpoena. (Code Civ. Proc., § 1985.3, subd. (g).) Code of Civil Procedure section 1987.1, subdivision (a) provides: “If a subpoena requires the attendance of a witn...