Excerpt: ...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 sanctions even absent a prior order compelling discovery, or its equivalent. Furthermore, a prior order may not be necessary where it is reasonably clear that obtaining such an order would be futile.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4...

Excerpt: ... any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” (Code Civ. Proc., § 128.7, subd. (c)(1).) Strict compliance, not substantial compliance, with the safe harbor notice provisions is required. (CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1007; Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 15.) This serves the ...

Excerpt: ...est for judicial notice of documents filed in the instant case 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.) Relevant Background As relevant here, the Complaint in this action alleges that Plaintiffs T...

Excerpt: ... than five court days before the time appointed for the hearing”].) However, because Plaintiff has actually obtained a copy of the motion and has opposed it on the merits without asking for a continuance or contending it was prejudiced, the Court will reach the merits of the motion. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 696-697.) Defendant moves to vacate the judgment entered on March 25, 2022 and to remove the lien from his house. (...

Excerpt: ...ly speaking, violation of a discovery order is required for imposition of issue or evidentiary sanctions. While Plaintiff contends Sandoval's responses to written discovery were insufficient, Plaintiff did not move to compel further responses to that discovery. Failing to respond 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 dis...

Excerpt: ...d, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.' ” (Id. at p. 387, fn. omitted.) “‘Section 474, however, . . . is restricted to the knowledge of the plaintiff at the time of the filing of the complaint.' [Citations.] “The lack of knowledge of the true name of the defendant ... must be 're...

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

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

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

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

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

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

Excerpt: ...vide for filing a document after a reply has been filed. Plaintiff did not seek prior leave of court to file the document. A special demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be for...

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

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

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

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

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

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

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

Excerpt: ... regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it ...

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

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

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

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

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

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

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

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

Excerpt: ... (4) the resulting damages to plaintiff.” (Coles v. Glaser (2016) 2 Cal. App. 5th 384, 391.) A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated by reference—or by its legal effect, i.e., by alleging the substance of its relevant terms. (Construction Protective Servs., Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199; Heri...

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

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

Excerpt: ...construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be o...

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

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

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

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

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

Excerpt: ...w, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code of Civ. Proc., § 473, subd. (a)(1).) Additionally, any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. (Cod...

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

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

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

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

Excerpt: ...Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452; Stevens v. Sup...

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

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

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

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

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

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