Excerpt: ...lish “constitutionally cognizable” minimum contacts by a preponderance of the evidence. (Thompson v. Anderson (2003) 113 Cal.App.4th 258, 266.) A trial court has the discretion to continue the hearing on a motion to quash service of summons for lack of personal jurisdiction to allow a plaintiff to conduct discovery on the jurisdictional issues presented by the motion. (HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1173.) ...

Excerpt: ...132, 135, 136, 139, 140, 143, 144, 147, 150, 153, 156, 159, 162, 163, 166, 169, 172, 173, 176, 179, 182, 185, 188, 191, 192, 195, 198, 201, 204, 207, and 214. The motion is granted as to nos. 215-223. Floorit's motion to compel further interrogatory responses from Cross-Defendant John Thompson is denied. OC Autosource SI Nos. 1, 4, 7, 10, 13, 16, 19, 22, 25, 28, 31, 34, 37, 40, 43, 46, 49, 52, 55, 58, 61, 64, 67, 70, 73, 76, 79, 82, 85, 88, 91, 9...

Excerpt: ...alleges Defendants breached various “statutory and common law duties” owed to Decedent, which ultimately led to her death on October 31, 2018. Plaintiff's wrongful death claim is premised on the same alleged breaches of “statutory and common law duties” owed to Decedent that are alleged in the survivor claims (i.e., the first, second third, and fifth causes of action). (Compl., at ¶¶ 97- 102.) Defendants contend that “all of Plaintiff...

Excerpt: ...ble 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.3d...

Excerpt: ...y 3, 2019. However, Ms. Acosta has not obtained, through a motion or an ex parte application, an order substituting her as Plaintiff's personal representative or successor in interest. (Code Civ. Proc., § 377.31.) Plaintiff's evidentiary objection numbers 1 and 2 are sustained. Plaintiff's evidentiary objection number 3 is overruled. The Court considered the corrected declarations of Jan P. Abbs and James W. Convy. Code of Civil Procedure sectio...

Excerpt: ...rate 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 action or special proceeding with a third party, arising out of the same transaction or series of related transactions and th...

Excerpt: ...on to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) 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 prima facie showing is one t...

Excerpt: ...v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) But allegations consisting of contentions, deductions, or conclusions of law are not. (Verizon California Inc. v. Board of Equalization (2014) 230 Cal.App.4th 666, 681; Kiseskey v. Carpenters' Trust for So Cal. (1983) 144 Cal.App.3d 222, 228.) Pursuant to Government Code section 815, subdivision (a), a public entity is not liable for an injury, whether such injury arises out of an act or ...

Excerpt: ...ability 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 should be attached (Code Civ. Proc., § 512.010, subd. (b)(1))  defendant's possession, i.e., how it came into possession of the property  defendant's wrongful detention  defendant's reason for possession, i.e...

Excerpt: ...tle holder of the vehicle, was present at the inspection site and had consented to the inspection prior to July 8, 2019. (Hansen Decl., ¶ 21.) Plaintiff contends the inspection was cancelled because of a misunderstanding regarding whether the keys to the vehicle were available. (Pastore Decl., ¶¶ 9-11, and 13, Exh. 3.) Plaintiff offered no explanation as to why Plaintiff's counsel cancelled the inspection without confirming the keys were not a...

Excerpt: ...dicial notice of Craig J. Beauchamp's biography page on Plaintiffs' former counsel's website, the stipulation regarding their former counsel's suspension, and records in four other matters in which Plaintiffs have filed actions against storage companies. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 21.) Business and Professions Code section 17200, et seq. (“UCL”) prohibits unfair competition, including unlawful, unf...

Excerpt: ...trictly 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 sho...

Excerpt: ...ney 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 having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” The statute lists examples of neglect. (See, e.g., Welf. & Inst. Code, §§ 15610.57(b)(1) [failure to assist in personal hygiene, or in the p...

Excerpt: ... Chris Pappas, Mark Serventi, and Ralph Nudo (collectively, the “Lessees”) allege that Cross-Defendants published false, “libelous statements” about the Lessees to Lessor in an email dated December 5, 2015. (FACC at ¶¶ 53-36, Exh. 5.) Lessees further allege that, as a result of the publication of those “libelous statements,” Lessor was induced to breach a “right of first refusal” provision in the lease agreement between him and ...

Excerpt: ...on 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 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 th...

Excerpt: ...oe City is an unincorporated community located in Placer County, California. Defendant's motion is timely. (Code Civ. Proc., § 396b, subd. (a).) Defendant has presented evidence that he resides in San Mateo County and that the promissory note was not entered into in Orange County. (Reyff, Jr. Decl., at ¶¶ 2, 5-7.) As to where the contract was to be performed, the place of making is deemed to be the place of performance unless a different place...

Excerpt: ...icient 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 expressly finds that the requirements of Rule 2.550(d) have been met. (Cal. Rules of Court, Rule 2.550(d).) The sealing rules, however, are inapplicable to “discovery motions and records filed or lodged in connection with discovery motions or proceedings,” unless the “discovery materials” are “used at ...

Excerpt: ...ing him to record his medical expert's examination of Plaintiff, Plaintiff recorded it. Thus, Plaintiff created a document with information relevant to this case. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants(2007) 148 Cal. App. 4th 390, 402.) Code of Civil Procedure section 2017.010 provides that any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pe...

Excerpt: .... (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, 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. Bent...

Excerpt: ...h a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc., § 2032.220, subd. (a).) The physical examinat...

Excerpt: ...re Before Trial (The Rutter Group 2017) ¶ 9.53.1a.) APPLICABLE LAW The standard governing motions for summary judgment and summary adjudication 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 prima faci...

Excerpt: ... to amend pleadings are directed to the sound discretion of the court. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc., § 473, subd. (a)(1); see also 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 i...

Excerpt: ...ause of Action for Breach of Contract The Lessees allege Lessor breached the parties' restaurant lease (the “Lease”) by failing and refusing to offer Lessees the “right of first refusal” to renew their lease of the property located at 2318 West Newport Blvd., in Newport Beach, which is operated as a restaurant. The “right of first refusal” can be found in Article XX, section 20.02 of the Lease, under the heading, “Lessee's Rights Ex...

Excerpt: ...o Determine the Construction, Validity, Ascertainment of Beneficiaries and Removal of Trustee; (2) Statement of Decision of the Court issued 1/28/19; and (3) Notice of Appeal filed by Respondent Veronica Orozco. Defendants' special demurrer is on the ground of another pending action, pursuant to Code of Civil Procedure section 430.10, subdivision (c). “A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or a...

Excerpt: ...defense and allegations “neither pertinent to nor supported by an otherwise sufficient claim or defense.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 7:178.) Defendant moves to strike paragraphs 7, 8 and 9 of the Complaint because they concern “damage purportedly caused to Plaintiff's property in 2003 and repairs that were made in 2004.” Defendant contends these allegations are subject to a ...

Excerpt: ...need not rule on Defendant's objections to the evidence. Attorney's Fees Plaintiff as the prevailing party is entitled to recover for hours reasonably spent in the litigation. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) It is within the court's discretion to decide which of the hours expended by the attorneys were “reasonably spent” on the litigation. (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 449.) Ad...

Excerpt: ...cts complained of.” (Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 941.) Defendants TD Bank USA, N.A. and Capital One Bank (USA) were named as DOE Defendants. There are no allegations in the Complaint as to Defendants TD Bank USA, N.A. and Capital One Bank (USA) or that they were responsible in some way for the acts complained of. Because the alleged facts in the Complaint only concern certain Defendants, Defendants TD Bank USA, N.A. an...

Excerpt: ...� 452, subd. (d).) Accounting The superior court sitting in probate has exclusive jurisdiction over proceedings concerning the “internal affairs” of trusts. (Estate of Bowles (2008) 169 Cal.App.4th 684, 695; Prob. Code, § 17200, subd. (a).) Settling accounts and passing upon acts of the trustee are exclusively within the jurisdiction of the probate court, and not concurrent with the court's civil department. (Prob. Code, § 17200, subd. (b)(...

Excerpt: ...as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).) To the extent Defendant was purporting to exercise Code of Civil Procedure section 2030.230, Defendant has not shown that the option was available or appropriate. Defendant is ordered to provide a further responses to form interrogatory no. 17.1, subpart (b), within five days of the notice of rulin...

Excerpt: ... ground that the court lacks jurisdiction over defendant. (Code Civ. Proc., § 418.10, subd. (a)(1).) “Where a nonresident defendant challenges 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...

Excerpt: ...ositions were properly and timely served. Hospital submitted a timely reply to the initial opposition and did not object to the initial opposition on the ground of improper service. The Court declines to consider the amended oppositions. Code of Civil Procedure section 418.10, subdivision (a) provides: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serv...

Excerpt: ...re sought only on his behalf. Applicable Law Allowable costs must be reasonable and necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation. (Code Civ. Proc., § 1033.5, subd. (c)(2); see Moss v. Underwriters' Report (1938) 12 Cal.2d 266, 274; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [whether cost item was reasonable and necessary presents question of fact for trial co...

Excerpt: ... on February 25, 2019 or any other document that may be recorded in furtherance of foreclosing on the Property at issue until judgment or dismissal of this case. Code of Civil Procedure section 526, subdivision (a)(3) provides that an injunction may be granted: “When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the right...

Excerpt: ...provides: "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." (Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335, 1339; Stubblefield Construction Co. v. City of San Bernardino (19...

Excerpt: ...indication that the parties, including Plaintiff, expressly agreed to a settlement. Defendant argues that pursuant to principles of contract law, the Court should enforce the settlement. “A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) However, Defendant's authorities do not assist him in th...

Excerpt: ..., marital status, sex, gender, gender identity, gender expression, age, sexual orientation or military and veteran status of any person, to . . . discharge the person from employment . . . or to discriminate against the person. . . .” (Govt. Code, § 12940, subd. (a).) Plaintiff must allege facts to demonstrate that: (1) she was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the...

Excerpt: ...ment that may be filed by Defendant, until the final resolution of this action is had. The Motion is denied. 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...

Excerpt: ... 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.) In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supreme Court ruled that non-intentional torts ma...

Excerpt: ...Business and Professions Code section 17200; (4) negligence; and (5) equitable relief. Defendants Westpark Corte Bella Community Association, Optimum Professional Property Management, and Josephine Perez demurred to the Complaint. Because Plaintiff failed to oppose the demurrer, the demurrer was sustained with 15 days leave to amend. On December 31, 2018, Plaintiff filed a Second Amended Complaint (“SAC”). Defendants Westpark Corte Bella Comm...

Excerpt: ...aration 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 should be attached (Code Civ. Proc., § 512.010, subd. (b)(1))  defendant's possession, i.e., how it came into possession of the prope...

Excerpt: ...ice was not provided pursuant to Code of Civil Procedure section 1005, subdivision (b). “Generally, leave to amend must be liberally granted [citation], provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.) If, however, the party seeking the amendment has been dilato...

Excerpt: ...erest in the property or controversy which is the subject of the cause [of action] brought against him.” (Code Civ. Proc., § 428.10 subd. (b).) Defendants may cross-complain against any person from whom they seek equitable indemnity. Defendants need only allege that the harm for which they are being sued is attributable, at least in part, to the cross-defendant. (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 607; Paragon Re...

Excerpt: ..., or tangible thing described in the deposition notice” if, “after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically ...

Excerpt: ...0.) Furthermore, Defendants have not shown on the merits that joinder should be compelled. A party is indispensable where the plaintiff seeks a type of affirmative relief that, if granted would affect the interest of a third person not joined. (Sierra Club, Inc. v. California Coastal Comm. (1979) 95 Cal.App.3d 495, 501; Code Civ. Proc., § 398, subd. (a).) In other words, Plaintiff is required to join as parties to the action any person whose int...

Excerpt: ...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. Schnitt (2016) 1 Cal.5th 376, 393.) However, if the allegations are “merely incidental” or “collateral” to the claim, in the first instance, i.e., “they merely provide context, without supp...

Excerpt: ...d is immediately enforceable through execution. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.) The Newland court stated: “Weil and Brown observe that many attorneys seem to be unaware that monetary sanction orders are enforceable through the execution of judgment laws. [Citation.] These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may o...

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

Excerpt: ... with Global Sourcing Solutions, Inc.; (2) its claim is for a fixed or readily ascertainable amount; (3) it is probably valid; and (4) the attachment is sought for no other purpose than to secure Plaintiff's claim. (Code of Civ. Proc., § 484.090, subd. (a).) Accordingly, the court grants the requested attachment in the amount of $228,951.57, which includes: the principal sum due, (i.e., $221,487.57); interest from August 20, 2018 (i.e., $4,824);...

Excerpt: ...on and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." Avis does not meet this burden. Furthermore, to the extent that Avis' motion for summary adjudication of the negligent entrustment claim is new, that issue does not completely resolve a cause of action, defense, damages claim or duty...

Excerpt: ...s 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 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 di...

Excerpt: ...very purposes, information should be regarded as “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating a settlement thereof. (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information ...

Excerpt: ...nchbook: Civil Proceedings— Discovery (CJER 2018 update) Inspection Demands, § 19.15; see Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) However, if a response to an inspection demand is a hybrid (i.e., contains both responses and objections), the response is effective to preserve the objections even though it is unverified. Where the response contains both answer and objections, there is no need to verify that portion of the resp...

Excerpt: ...ust be within the “reasonable range” (i.e., within the “ballpark”) of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc.(1985) 38 Cal.3d 488, 499.) The factors to determine good faith, include: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds amon...

Excerpt: ...ruling re: Defendants' demurrer to Plaintiff's Second Amended Complaint with attached February 15, 2019 Minute Order, 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 2018) ¶ 9:53.1a.) Business and Professions Code section...

Excerpt: ...f points and authorities may not exceed 15 pages in length (exclusive of exhibits, attachments and/or table of contents) without a prior court order. The court may properly refuse to consider memoranda that exceed this limit. (Cal. Rules of Ct., rules 3.1113(d), (e), (g), 3.1300(d).) Plaintiff's counsel filed an oversized opposition, without having first obtained a court order. The court declines to strike the oversized opposition, as requested b...

Excerpt: ... the court.” On January 4, 2019, the Court sustained in part and overruled in part Defendant's demurrer to Plaintiffs' initial complaint. Plaintiffs were granted 15 days leave to amend. The parties waived notice, as noted in the minute order for the hearing. Plaintiffs' deadline to file the FAC was January 22, 2019. (Code Civ. Proc., § 472b.) Plaintiffs filed the FAC on January 23, 2019 -- one day late. Plaintiffs' counsel indicate they failed...

Excerpt: ...arified 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 within defendant's knowledge. (Khoury,14 Cal.App.4th a...

Excerpt: ...25 (Any and all documents relating to maintenance, repairs, inspections, invoices, or work performed at the premises for a period of three (3) years preceding the incident). To date, Defendant has not produced responsive documents. Defendant also has failed to provide documents responsive to Requests for Production relating to the PMK Deposition of Mr. Cho. Specifically, Defendant has not produced documents responsive to Requests 6 (Defendant's p...

Excerpt: ... a new trial based on inadequate damages. (Code Civ. Proc., § 657, subd. (5).) However, “[a] new trial shall not be granted . . . upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.) When the court determines ...

Excerpt: ...as sufficient here. Code of Civil Procedure section 2025.480 provides in relevant part: “If a deponent fails to answer any question or to produce any document . . . that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).) Furthermore, “[i]f the court determines that the answer or productio...

Excerpt: ...ubd. (a); see Collin v CalPortland Co. (2014) 228 Cal.App.4th 582, 590.) When an interrogatory cannot be answered completely, it must be answered to the extent possible. (Code Civ. Proc., § 2030.220, subd. (b).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Here, Defendant...

Excerpt: ... motion for nonsuit under Code of Civil Procedure section 581c or a motion for directed verdict under Code of Civil Procedure section 630 should have been granted. (Code Civ. Proc., § 629.) The purpose of a motion for JNOV is not to afford a review of the jury's deliberations, but to prevent a miscarriage of justice in a case in which the verdict rendered is without foundation. (Oakland Raiders v. Oakland- Alameda County Coliseum, Inc. (2006) 14...

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. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving party's showing has es...

Excerpt: ...” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:53.1a.) The motion is entitled “Motion to Appeal Judgment.” But, the footer for the motion states: “Motion to Set Aside.” The memorandum of points and authorities also indicates that it is in support of a motion to set aside. To the extent Plaintiff seeks to appeal the court's ruling on Defendants' motion for summary judgment, this motion is ...

Excerpt: ...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. (Ibid.) 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...

Excerpt: ...s not have the ability to comply, or (3) an objection. (Code Civ. Proc., § 2031.220.) On receipt of the response, the demanding party may move to compel further response if any of the following apply: (1) a statement of compliance is incomplete; (2) a representation of inability to comply is inadequate, incomplete or evasive; (3) an objection is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth sp...

Excerpt: ...thout leave to amend. Declaratory Relief (Fourth Cause of Action) To maintain a declaratory relief claim, Plaintiff must show two essential elements: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [Plaintiff's] rights or obligations.” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582.) Plaintiff has sufficiently alleged in the TAC that he ...

Excerpt: ...s. 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 discovery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) 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, 9...

Excerpt: ...ndants Helite, SATRA, and Dover Saddlery of the settlement amount. (Ocrant Decl., at ¶ 10.) Applicable Law There is no precise yardstick for measuring “good faith” of a settlement with one of several tortfeasors. But the court must harmonize the public policy favoring settlements with the competing public policy favoring equitable sharing of costs among tortfeasors. To accomplish this, the settlement must be within the “reasonable range”...

Excerpt: ...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 within defendant's knowle...

Excerpt: ...position is untimely, Pacifica Defendants did not object to the opposition based on untimeliness and the court exercises its discretion to consider the late opposition. (Code Civ. Proc., § 1290.6; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847.) Evidentiary Objections Plaintiffs evidentiary objection numbers 1 and 2 are sustained. Applicable Law Code of Civil Procedure section 1281.2 provides, inter alia: On petition of a pa...

Excerpt: ...ters' Report (1938) 12 Cal.2d 266, 274; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [whether cost item was reasonable and necessary presents question of fact for trial court and its decision is reviewed for abuse of discretion].) Allowable costs must also be reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(3).) If the items on their face appear to be proper charges, the verified memorandum of costs is prima fa...

Excerpt: ...lication for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. A motion for reconsideration ma...

Excerpt: ...tevens v. Superior Court (1999) 75 Cal.App.4th 594, 601 [“For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice.”].) First Cause of Action - Breach of Fiduciary Duty “‘The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.'” ...

Excerpt: ...ce Violence Restraining Order action ([“WVRO action”]; OCSC case no. 30-2018-00973679), and the Certificate of Death, and amendments thereto, of Tim A. Grandcolas, are granted. (Evid. Code, §§ 452, subds. (c), (d); 453.) However, the court does not take judicial notice of the truth of matters stated in the documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC(2007) 152 Cal.App.4th 1106, 1117-1118.) Plaintiff served three subp...

Excerpt: ...92) 6 Cal.App.4th 1548, 1563.) Defendants' request for judicial notice is denied as to nos. 2, 3, and 5, as 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 2014) ¶ 9.53.1a, p. 9(l)-33.) A demurrer presents an issue of law regarding ...

Excerpt: ... that any claim, dispute or other difference between them shall be exclusively resolved pursuant to binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association with arbitration to occur at Irvine, California (except to the extent that Court action is necessary to enforce SeneGence's rights to injunctive relief under Section 27). Louisiana Distributors arbitrate at New Orleans, Louisiana. (Kieff Decl., ...

Excerpt: ...r v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving p...

Excerpt: ...to any further claims against the settling tortfeasor.” (Singer Co. v. Superior Court(1986) 179 Cal.App.3d 875, 890.) Because the nonsettling joint tortfeasor has a “property interest” in the settlement, the nonsettling joint tortfeasor “must be afforded notice and an opportunity for a hearing.” (Ibid.) In Britz, Inc. v. Dow Chemical Co. (1999) 73 Cal.App.4th 177, the court explained, “[t]he due process right to be heard is satisfied ...

Excerpt: ... circumstances of oppression, fraud, or malice. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation].”].) A motion to strike should be granted where the request for punitive damages are based on conclusory allegations. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042 [issuing w...

Excerpt: ...under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.” (Evid. Code, § 940.) Where a civil defendant faces possible criminal prosecution involving the same facts as a civil action, and receives no immunity against the use of his or her deposition answers or evidence derived from those answers in any criminal proceeding, the defendant �...

Excerpt: ...ingly, the motion to quash is denied as unripe. Defendant Val Fridman shall give notice of the ruling to all parties and to CashCall Mortgage. MOTION TO QUASH LENDERS CHOICE ESCROW, INC. SUBPOENA Defendant Val Fridman's motion to quash subpoena served upon Lenders Choice Escrow, Inc,. is granted. Plaintiff served upon Lenders Choice Escrow, Inc., a deposition subpoena for business records requesting eight categories of documents from the nonparty...

Excerpt: ...n to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:53.1a.) Judicial notice of the existence and filings of these exhibits 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 matters asserted therein. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) Merits A nonre...

Excerpt: ...ged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” (Code Civ. Proc., § 428.10, subd. (b).) Defendant...

Excerpt: ...nation. Thus, where the nonsettling defendant does not oppose a motion for good faith settlement determination on the good faith issue, “a barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.” (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.) Here, Bobrick has met its burden. The court finds that the settlement is withi...

Excerpt: ...anted. 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.3d 905...

Excerpt: ...djudication.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208, fn. 25; see Cal. Rules of Ct., Rule 2.550(c) [“Unless confidentiality is required by law, court records are presumed to be open.”].) Although that right is not absolute, the moving party has the burden to meet the requirements set forth in California Rules of Court 2.550- 2.551. To grant a motion to seal, the court must expressly find that: (1) an ...

Excerpt: ... motion for JNOV and motion for new trial. (See Code Civ. Proc., § 659a.) Plaintiff was able to timely file substantive replies in response to the oppositions. A court must grant a motion for JNOV when the facts show that either a defendant's motion for nonsuit under Code of Civil Procedure section 581c or a motion for directed verdict under Code of Civil Procedure section 630 should have been granted. (Code Civ. Proc., § 629.) The purpose of a...

Excerpt: ...debtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.' ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [internal citations omitted]; CACI no. 372.) Here, the Complaint alleges that Defendant Hoa Canh Nguyen became indebted to Plaintiff in the amount of $27,371.93 based on a written open book account where Defendant used a credit card and breached the agreement to make periodi...

Excerpt: ...., § 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, 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. ...

Excerpt: ...fices of David Yerushalmi, P.C. was counsel for Hazak Associates, whose ex parte application to file a complaint in intervention had been denied. (See ROA nos. 308, 326.) Given that Defendant Shavolian has not filed any documents to indicate either a change in counsel of record or association of counsel, service of the motion on David Yerushalmi is insufficient. Plaintiff shall promptly serve its motion upon Defendant's counsel of record in this ...

Excerpt: ...erg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) Additionally, the Court construes the absence of a memorandum as a waiver of all grounds not supported. (Cal. Rules of Ct., Rule 3.1113(a).) Plaintiff also al...

Excerpt: ...spicable 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.) In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supreme Court ruled that non-intentional torts may form the ba...

Excerpt: ... creates a rebuttable presumption that service was proper. (Floveryor Intl., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Here, Defendant has rebutted the presumption. On its face, the proof of service appears invalid. The proof of service states that another individual (Lance Sarrington), other than Defendant, was served. But, the proof of service represented that Defendant was personally served. The proof of service did not indicate ...

Excerpt: ...the continuance is discovered.” (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 o...

Excerpt: ...nded response. Plaintiff shall serve a verified, Code-compliant supplemental response to request number 5 within 15 days of the notice of the ruling. Although the parties dispute the sufficiency of Defendant Peace's meet and confer efforts, Plaintiff does not explain why attorney Mazza did not respond to Defendant Peace's meet and confer correspondence. The court finds that Defendant Peace's meet and confer efforts were adequate. The court awards...

Excerpt: ...ing served a valid objection under Section 2025.410.” (Code Civ. Proc., § 2025.450, subd. (a).) A written objection to a deposition notice must be served at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) The record demonstrates that on October 18, 2018, Plaintiff initially served a notice of the deposition of Decker Prairie RV Park's PMK, scheduled for November 2, 2...

Excerpt: ...r v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving p...

Excerpt: ...ion 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 mater...

Excerpt: ... of Lodgment filed in support of the demurrer and concurrently filed motion to strike. The only complaint on file is the complaint Plaintiff filed on 10/5/2018. This is the operative pleading and the Court considers Association's demurrer as to Plaintiff's 10/5/2018 complaint. Plaintiff did not oppose Association's demurrer. Failure to oppose the demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 13...