Excerpt: ...es were also rendered moot as to the first set of requests for production and form interrogatories. The court grants the motion to compel Brianna Stanko to serve responses to the second set of requests for production and form interrogatories. The court grants Plaintiff's motion to deem admitted the first set of requests for admission as to Skin Truth. The court grants Plaintiffs motion to deem admitted the first and second sets of request for adm...

Excerpt: ... 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 facts...

Excerpt: ...ments that were produced in response to requests for production of documents, set two, to comply with Code of Civil Procedure section 2031.280, subdivision (a), it is granted. The motion is otherwise denied. Defendant belatedly-filed his opposition to the motion. He explained that at the time the opposition was due, he was in the process of changing counsel. (Stewart Decl., at ¶¶ 4- 6.) Plaintiffs filed a reply on the merits. The court exercise...

Excerpt: ...roduction 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 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 act...

Excerpt: ... 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) 238 Cal.App.4th 200, 208.) The purpose of the anti- SLAPP law is “not [to] insulate defendants from any liability for claims ar...

Excerpt: ... another case. (See, e.g., Mot., at pp. 23- 24 [referring to expert fees, postage and telephone charges], and 26-27 [referring to District No. 40 and “costs incurred after Judgment was entered on December 28, 2015”].) The court once again reminds Plaintiff that litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. (Rappleyea v. Campbell (1994) 8 C...

Excerpt: ...t deposition. The motion must be accompanied by either a meet and confer declaration stating “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” or “a declaration stating that the moving party contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).) Defendant has been trying to take Plaintiff's deposition since August 2021. The...

Excerpt: ... in part as set forth below. In light of the ruling on the demurrer, Defendants' motion to strike paragraph 68 is denied as moot. Pursuant to Code of Civil Procedure section 436, the Court may: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. “The grounds for a mot...

Excerpt: ...h of Contract With respect to the first cause of action, Cross-Complainants allege that their subcontract with Cross-Defendant included a provision requiring Cross-Defendant to indemnify and hold harmless Cross-Complainants from claims, liabilities, etc. arising out of Cross-Defendant's work. (CC, at ¶¶ 17-18.) Cross-Complainants further allege that Cross-Defendant's contract with Aerotek led to an insurance claim being filed against Cross-Comp...

Excerpt: ... entry of judgment, or 180 days after entry of judgment, whichever is first. Here, there has been no judgment or dismissal. None of the cases cited are directly on point. The parties did not reference any provision in their settlement agreement regarding the timing of the fee motion. Civil Code section 1794, subdivision (d) provides: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as pa...

Excerpt: ...r details to support this statement. Defendant has not laid the foundation that Dr. Klein is an expert as to the standard of care and treatment for cryotherapy. (Evid. Code, § 720; Kelley v. Trunk (1998) 66 Cal.App.4th 519, 525; Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467; McAlpine v. Norman (2020) 51 Cal.App.5th 933, 940-941.) Plaintiff's second and eighth evidentiary objections to Dr. Klein's declaration are sustai...

Excerpt: ...aption to the conditionally lodged under sealed documents, refer to California Rule of Court 2.551(b)(3), which is the procedure for a party not intending to file a motion or application to seal a record. However, it does not appear that Plaintiff complied with Rule 2.551(b)(3)(B), which requires a party that does not intend to request to have the records sealed to give written notice to the party that produced the records that the records and th...

Excerpt: ...discretion to consider Plaintiffs' opposition. PV Holding and Avis move to transfer pursuant to Code of Civil Procedure sections 395, subdivision (a), 395.5, and 396b, subdivision (a). PV Holding and Avis contend venue is improper in Orange County because the incident causing the injuries occurred in Kern County and no defendant resides in Orange County. Fresenius moves to transfer pursuant to Code of Civil Procedure sections 395, subdivision (a)...

Excerpt: ...y, 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 result in ...

Excerpt: ...Lease, then the non-prevailing party in such action or proceeding shall reimburse the prevailing party for its actual attorneys' fees, and all fees, costs and expenses (including any actual expert fees and court costs) incurred in connection with such action or proceeding, including any post-judgment fees, costs or expenses incurred on any appeal or in collection of any judgment." (Park Decl., at Exh. 1, § 21.11.) Similarly, the Guarantee of Lea...

Excerpt: ... agreement to arbitrate and the same controversy, and any such subsequent petition shall be filed in the same proceeding.” However, Plaintiffs do not show how this statute is applicable to the instant case. On July 12, 2019, Defendants' motion to compel arbitration and stay proceedings was granted. (7/12/2019 Minute Order.) Code of Civil Procedure section 1281.4 requires a court to stay an action submitted to arbitration. The court's role is th...

Excerpt: ...onses to document demands, Code of Civil Procedure section 2031.310, subdivision (b)(1) requires the moving papers to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. To establish “good cause,” the burden is 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) specifi...

Excerpt: ... to demur to the complaint has expired.” (Code Civ. Proc., § 438, subd. (f)(2).) Thus, this motion is procedurally improper. Furthermore, the motion is also denied on the merits. Second Cause of Action for Unfair Business Practices Lee contends that this claim fails to state a claim because Criscione's only damages are those he would suffer if the note is left outstanding, and that any other damages are “future, speculative, and non-monetary...

Excerpt: ... construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) A demurrer “admit[s] all the properly pleaded material facts...

Excerpt: ...cation for the order and writ with the court in which the action is brought. (Code Civ. Proc., § 484.010.) The application must be executed under oath and must include the following statements: (1) the attachment is sought to secure the recovery on a claim on which the attachment may be issued; (2) the amount to be secured by the attachment; (3) the attachment is not sought for a purpose other than the recovery on the claim on which the attachme...

Excerpt: ...other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 4...

Excerpt: ...the examination . . . and be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.310, subd. (b).) The moving party must show good cause for the mental examination. (Code Civ. Proc., § 2032.320, subd. (a).) Plaintiff does not dispute that her mental condition is at issue or that there is good cause for a neuropsychological examination. She opposes the motion because Defendant failed to comply with Cod...

Excerpt: ...bstantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. . . . (e) Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. (f) Upon the granting of such...

Excerpt: ...�� and wrote in response to “Relationship to Resident(s)”, “SON POA”. (Not. of Errata [ROA 64].) Kris Shook also initialed the arbitration provision of the Agreement. (Not. of Errata, at page 10 of 12.) The Federal Arbitration Act (“FAA”) Defendants contend that the FAA applies. (Mot., at pp. 3-7.) The FAA (9 U.S.C. §§ 1-14) governs contractual arbitration in written contracts involving interstate or foreign commerce or maritime tra...

Excerpt: ...he Federal Arbitration Act (9 U.S.C. § 1 et seq.) and not by any state law concerning arbitration. (12/8/2021 Ihara Decl., Exh. 1, at p. 2.) In any event, California and federal arbitration law are identical for the purposes of this motion. Under the FAA, state law governs the question whether a nonsignatory party may enforce an arbitration agreement. (Kramer v. Toyota Motor Corp. (9th Cir. 2013) 705 F.3d 1222, 1228, 1132, fn. 6.) Arbitrability ...

Excerpt: ...low HOA (“HOA”) and J.C. Ultimate Property Management Consulting, Inc.'s (“J.C. Ultimate”) ex parte application to continue trial to August 2, 2021. (4/12/2021 Minute Order [ROA 160].) All parties had agreed that trial in this matter should be continued to allow the parties to complete further and necessary discovery, and explore all settlement possibilities before preparing for trial. (McGah Decl., at ¶ 3 [ROA 153].) The court denied th...

Excerpt: ..., $6,773.38 for broker's commission, for a combined amount of $27,466.30.” The judgment provided: “[a]ny prejudgment interest, attorney's fees, and costs shall be determined in post-judgment motions.” (Judgment [ROA 141].) Prejudgment Interest Plaintiff contends it is entitled to $5,385.98 in prejudgment interest, for the period from March 1, 2019 through October 6, 2021, with interest accruing at the daily rate of $5.67, until an amended j...

Excerpt: ...ill effectuate a “stay” of the production until further order of the Court. 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).) Furthermore, under Code of Civil Procedure section 2019.030, the court may restrict discovery where it is “unreasonably cumulative or dup...

Excerpt: ...he 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. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the positi...

Excerpt: ...-011996671. Evidentiary Objections Floorit Financial's evidentiary objections nos. 1 through 4 are sustained. Law Regarding Contempt “The substantive issues involved in a contempt proceeding are (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience. (Weil & Brown, supra, pars. 9:337–9:340.)” (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) A contempt proceeding is ...

Excerpt: ...ship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1245; CACI no. 2342.) Like a Tameny claim, constructive discharge is premised on the wrongful termination of an employment relationship. “There can be no Tameny cause of action without the prior e...

Excerpt: ...irst Amended Complaint or, in the alternative, summary adjudication on the two cause of action alleged therein. Summary Judgment 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 prima facie showing is one th...

Excerpt: ...h 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 Motors, Inc. (2009) 174 Cal.App.4th 967, 998.) The lodestar method is applicable to calculating attorney's fees under the Song...

Excerpt: ...LC v. Anthem Blue Cross Life and Health Insurance Company (U.S. District Court, C.D. Cal., case no. 8:20-cv-00102-JWH (ADSx) is denied as irrelevant. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) Pending Motion for Leave to File Fifth Amended Cross-Complaint Cross-Complainants argue that the demurrer should be overruled based upon their pending motion for leave to file a fifth amended cross-complaint. They point to case auth...

Excerpt: ...ch are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) Merits Intentional Interference With Prospective E...

Excerpt: ...fore the hearing. Fraud Based on False Promise (First Cause of Action) The court previously ruled that it was unclear if Plaintiff was alleging a claim for misrepresentation or false promise, and that the claim was not alleged with specificity. (3/5/2021 Minute Order.) Plaintiff now makes clear that she is alleging a claim for false promise. “Promissory fraud” is a subspecies of fraud and deceit. A promise to do something necessarily implies ...

Excerpt: ... Federal Arbitration Act (9 U.S.C. §§ 1-14) governs contractual arbitration in written contracts involving interstate or foreign commerce or maritime transactions. (9 U.S.C §§ 1, 2.) However, the Voluntary Alternative Dispute Resolution (ADR) Agreement expressly provides that California law applies. (Exh. 8, Arts. I & V.) Thus, the California Arbitration Act is controlling. In any event, California and federal arbitration law are identical fo...

Excerpt: ...(2004) 33 Cal.4th 780, 806, quoting Trope v. Katz (1995) 11 Cal.4th 274, 278.) The rule has been codified in Code of Civil Procedure sections 1021 and 1033.5, subdivision (a)(10). Civil Code section 1717, subdivision (a) provides that: “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevaili...

Excerpt: ...ial interrogatories, nos. 5, 14, 23, 40, and 42. Each answer in the response to an interrogatory must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subds. (a) & (b).) Where the question is specific and explicit, an answer that supplies only a portion of t...

Excerpt: ...reed to. It must state that the production and inspection will be allowed (in whole or in part); and that the documents or things in the demanded category that are in the responding party's possession, custody, or control will be produced. (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 representati...

Excerpt: ...ty with the laws of this state, a court rule, or an order of the court. “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) California courts have held that punitive damages may, under appropriate circumstances, be recoverable for nondeliberate or unintentional torts. A vicariously liable employ...

Excerpt: ...jection. (Code Civ. Proc., § 2031.220.) An agreement to comply must be rather specific as to what is agreed to. It must state that the production and inspection will be allowed (in whole or in part); and that the documents or things in the demanded category that are in the responding party's possession, custody, or control will be produced. (Code Civ. Proc., § 2031.220.) On receipt of the response, the demanding party may move to compel further...

Excerpt: ... 2016.040.) Here, Plaintiff's counsel made a reasonable and good faith attempt to informally resolve the issues. (Shumake Decl., at ¶¶ 9-11; Exhs. 4- 6.) Merits In moving to compel further responses to requests for production of documents, Code of Civil Procedure section 2031.310, subdivision (b)(1) requires the moving papers to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. To establish �...

Excerpt: ...ns. Co. (2004) 33 Cal.4th 780, 806, quoting Trope v. Katz (1995) 11 Cal.4th 274, 278.) The rule has been codified in Code of Civil Procedure sections 1021 and 1033.5, subdivision (a)(10). (Code Civ. Proc., § 1021 [“Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proc...

Excerpt: ..., § 437c, subd. (q).) Summary Judgment 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 nonexiste...

Excerpt: ... active license report is granted to the extent that the court may take judicial notice of the existence of Web sites and blogs, but not as to the truth of their contents. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193; see Searles Valley Minerals Operations, Inc. v. State Board of Equalization (2008) 160 Cal.App.4th 514, 519; Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737.) Plaintiff Robert Alexander Saurman's request f...

Excerpt: ...emnity and implied contractual indemnity. (Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1032 [“good faith settlement bars a claim for implied contractual indemnity”]; Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 817 [a tort defendant who has entered into a good faith settlement within the meaning of section 877.6, subdivision (c) is absolved of any further liability for all equitable indemnity claims”].) Whe...

Excerpt: ...Admission to Plaintiff. (11/20/2020 Minute Order [ROA 419].) Motion for Summary Judgment 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 producti...

Excerpt: ...rty may “simply call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9:53.1a.) Plaintiff's request for judicial notice of Elite's responses to Plaintiff's request for production of documents, set one is denied. (TSMC North America v. Semiconductor Manufacturing Internat. Corp. (2008) 161 Cal.App.4th 581, 594, fn. 4; Del E. Webb Corp. v. Structural Materials Co....

Excerpt: ....App.4th 571, 574.) “In many cases, considerations of comity and the prevention of multiple and vexatious litigation will most often militate in favor of stay. However, other factors weigh in the balance, and where judicial economy, the interests of the forum, and the convenience of the parties weigh in favor of allowing the action to proceed, the trial court has discretion to deny the stay.” (Id. at p. 575.) The California Supreme Court expl...