Excerpt: ...s to the deposition notice. (Nguyen Decl., at ¶ 6.) Defendant produced Maria DeSagun to testify as the PMK as to categories 3 [“ALL safety training that PLAINTIFF received from DEFENDANT.”] and 60 [“DEFENDANT'S policy concerning safety complaints, during the timeframe of PLAINTIFF'S employment.”]. DeSagun testified that she was the PMK as to categories 3 and 60, starting from mid-2014. From mid-2014 and before the person who had knowledg...

Excerpt: ...d 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.) Plaintiff asserts that the Court's decision was based on an “incomplete consideration of the evidence.” (Mot. at pp. 5-10.) But, Plaintiff is simply disputing the Court'...

Excerpt: ...act, 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 prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attor...

Excerpt: ...address and was sufficient. (Code Civ. Proc., § 1013, subd. (a).) He asserts that he did not receive the declarations or exhibits, that he had disclosed to the parties and the Court that his mailing address was no longer able to accept mail, and that he had filed a notice of change of address that only included a fax number and did not include a new mailing address. This assertion is inaccurate. Plaintiff filed a notice of change of address in G...

Excerpt: ...270.) The consent of the parties to a contract must be communicated by each party to the other. (Civ. Code, § 1565, subd. (3).) “Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.” (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141.) “A p...

Excerpt: ...ement must 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 proce...

Excerpt: ...auses of action is overruled. Special Demurrer for Uncertainty Ohr argues that the causes of action against him are uncertain. Ohr's special demurrer based on uncertainty is overruled. 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 conf...

Excerpt: ...laint and not judicially noticeable. Therefore, the court will not consider arguments based on the extrinsic purchase order on demurrer. The court denies Defendant's request to judicially notice Exhibit B, Plaintiff's Registration filed with the California Secretary of State, as irrelevant. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 21.) The lack of registration does not appear relevant to any of Defendant's arguments...

Excerpt: ... (a)(3) In the third cause of action, Plaintiffs alleged that Defendant failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. (Complaint, at ¶ 91.) Defendant contends Plaintiffs' claim fails to identify any facility relevant to Plaintiffs' claim or to allege “in even cursory fashion” what literature or replacement part...

Excerpt: ...iff has opposed the motion on the merits and has not claimed any prejudice due to the untimeliness, the Court finds that the notice defect has been waived. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Plaintiff issued a “deposition subpoena for personal appearance and production of documents and things,” on October 28, 2019, and served the subpoena on nonparty Lawrence Zabaneh. The deponent appears to have been served as the purported c...

Excerpt: ...scovery at issue on September 11, 2019. Defendant telephoned and sent Plaintiff's counsel a meet and confer letter regarding the deficiencies in the responses on October 3, 2019. As of the time the motions were filed, Plaintiff had not responded to Defendant's meet and confer efforts. It was not until after the motions were filed, on November 19, 2019, that Plaintiff's counsel sent a letter and spoke with defense counsel on the phone about the is...

Excerpt: ... unopposed motions to compel responses from Defendants Estrada Trucking Company, Caleb Estrada Vasquez, Gabriel Estrada, and Romeo Estrada to special interrogatories, form interrogatories, and requests for production of documents, are granted. A propounding party may move for an order compelling responses to interrogatories at any time “[i]f a party to whom interrogatories are directed fails to serve a timely response.” (Code Civ. Proc., § 2...

Excerpt: ... of Civil Procedure section 395, subdivision (a), because the individual Defendants reside in Orange County. (Opp. at p. 2; FAC, at ¶ 14.) However, the general rule applies only if no special venue rules apply. (See Cal. Judges Benchbook: Civil Proceedings Before Trial (CJER 2019) Venue § 9.5 [the phrase “except as provided by law” is “a subordinating declaration that permits application of the general venue rule of CCP § 395(a) only if ...

Excerpt: ...iary objections in opposition to that motion. MOTION FOR PROTECTIVE ORDER AND ORDER APPOINTING DISCOVERY REFEREE Defendants Irvine Company LLC, The Irvine Company Apartment Communities, Inc., Newport Bluffs LLC, and The Newport Bordeaux Apartments' motion for protective order and order appointing a discovery referee is granted in part and denied in part. Defendants are granted four additional hours to depose Plaintiff. Further, the court will app...

Excerpt: ...1) it is not being presented primarily for an improper purpose; (2) the claims, defenses, or other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support, or if specifically so identified, are likely to have evidentiary support after a reasonable opportunity ...

Excerpt: ... Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumptively within defendant's knowledge. (Khoury v. Maly's of California, Inc., supra, 14 Cal.App.4th at p. 616.) A party attacking a pleading on “uncertain...

Excerpt: ...4) 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 omission of the public entity or a public employee or any other person, except as otherwise provided by statute. (Gov. Code, § 815.) “It is a well-settled rule that ‘[t]here is no common law gov...

Excerpt: ...(Govt. Code, § 900, et seq.) provides that, with certain specified exceptions, a person seeking to sue the state or a local public entity for money or damages must first present a claim to the public entity. Generally, no suit for money or damages may be brought until a timely claim has been filed and acted upon by the public entity. (Govt. Code, § 945.4.) “Under [Government Code] section 911.2, ‘[a] claim relating to a cause of action for ...

Excerpt: ...��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 serve and file a notice of motion for one or more of the following purposes: (1) To quash service of the summons on the ground of lack of jurisdiction of the court over him or her. (2) To stay or dismiss the action on the ground of inconvenient forum. . . .” “On a challenge to personal jurisdiction by a ...

Excerpt: ...matter with the reply should only be permitted in the exceptional case. . ." (Ibid.) This Court exercises its discretion and declines to consider the new evidence submitted by Defendant. In any event, Plaintiff himself pled that LegalShield received notices of levy from the IRS. (FAC, ¶ 7, p. 2.) Plaintiff admits he worked for Defendant because he alleges that he earned commissions. He believes he was an independent contractor: “(I am not an e...

Excerpt: ...tervenor shall give notice of the ruling. DEMURRER BY ESTHER ANDREWS The demurrer by Plaintiff/Cross-Defendant Esther Z. Andrews (“Ms. Andrews”) is sustained in part and overruled in part. The demurrer is overruled with respect to Defendant/Cross- Complainant Eric Hess' (“Mr. Hess”) first cause of action. The demurrer as to the second through fourth causes of action is sustained with 15 days leave to amend. The Court grants Ms. Andrews' r...

Excerpt: ...ction) Plaintiff alleges each of JC Ultimate, Rogers, and Divalentin converted money belonging to Plaintiff by taking money from Plaintiff's account for their own benefit. The elements of a conversion claim are (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1404...

Excerpt: ...ettlement until performance in full of the terms of the settlement.” Pursuant to Code of Civil Procedure section 664.6, the following must be shown: (1) there is a valid and binding settlement agreement of all or part of the case; (2) the parties agreed to all material settlement terms; (3) if it is a written stipulation, the writing is signed by both parties; (4) the settlement agreement was made pending litigation; and (5) a motion to enforce...

Excerpt: ...romise cannot recover its post-offer costs and shall pay the defendant's costs from the time of the offer. (Code Civ. Proc., § 998, subd. (c)(1).) The purpose of Code of Civil Procedure section 998 is to encourage the settlement of litigation without trial. To effectuate this purpose, a 998 offer must be made in good faith. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262; Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1529 [settlement ...

Excerpt: ... no. 30-2016-00888891, is granted. Code of Civil Procedure section 1281.2 provides, inter alia: On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it...

Excerpt: ...ears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action ...

Excerpt: ...and a mandatory relief component and provides, in relevant part, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.... Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than...

Excerpt: ... the merits of Plaintiffs' motion for reconsideration and motion to vacate and denied Plaintiffs' motion. (See ROA 303 [Minute Order].) A motion for reconsideration must be filed within 10 days of service on him of notice of entry of the order in question. (Code Civ. Proc., § 1008, subd. (a).) As provided in section 1013, the five-day extension of time for mail service applies in the absence of a specific exception. (Code Civ. Proc., § 1013, su...

Excerpt: ...��any incident, injury or emergency” occurring at the museum. Defendant agreed to produce responsive documents limited to those relating to choking injuries. In moving to compel a further response, Plaintiffs argue that evidence of similar accidents or injuries is relevant to prove: (1) the existence of a defective or dangerous condition; (2) the cause of the subject accident; (3) knowledge/notice of the condition; and (4) negligence in permitt...

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

Excerpt: ...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 prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in ad...

Excerpt: ...issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a comple...

Excerpt: ...tions to the declarations of Michael Chu and Thomas D. Shambaugh are overruled. The court notes that Defendant's separate statement fails to comply with Rule of Court 3.1350(b), because it does not “repeat, verbatim,” the specific causes of action or issues of duty from the notice of motion. Nevertheless, the Court exercises its discretion to treat the motion as one for summary judgment or summary adjudication. Applicable Law "[F]rom commence...

Excerpt: ..., Plaintiff cannot file a First Amended Complaint. (Code Civ. Proc., § 472.) Therefore, the court rejects the First Amended Complaint submitted to the court on October 16, 2019. Plaintiff also requests a continuance of the hearing, asserting that counsel will be unable to physically appear for the scheduled case management conference as he will be out of state at a conference. Plaintiff's counsel was aware of the scheduled motions and the case m...

Excerpt: ...the ruling on a demurrer, all facts pleaded in the complaint are assumed to be true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Breach of Fiduciary Duty (First Cause of Action) Padron argues that the first cause of action is fatally deficient because it does not include Tim A. Grandcolas (“Grandcolas”), who is a necessary and indispensable party. A party is indispensable where the plaintiff seeks a type of...

Excerpt: ...at Corte Bella (“Villas”) and as an individual. The demurrer is overruled in part and sustained in part with 30 days leave to amend. The demurrer as to the second and third causes of action is overruled. The demurrer as to the first, fourth, and fifth causes of action is sustained with 30 days leave to amend. The demurrer as to the third and fourth causes of action as to Defendant Perez only, is sustained with 30 days leave to amend. Californ...

Excerpt: ...are hereby judicially noticed. (Evid. Code, § 452; Ellenberger v. City of Oakland (1946) 76 Cal.App.2d 828, 835.) Quiet Title/Injunctive Relief/ Declaratory Relief (Third, Fifth, and Sixth Causes of Action) The FAC alleges that the sale of the property was void for a variety of reasons including: (1) Deed of Trust was assigned to the RALI mortgage pool trust after the February 27, 2007 trust closing date (FAC, ¶¶ 17, 61, 62, 86, 97); (2) MERS ...

Excerpt: ...r 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 facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonabl...

Excerpt: ...]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.) 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 ...

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

Excerpt: ...construe Business and Professions Code section 7031. Section 7031, subdivision (a) provides in relevant part that “no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract for which a license is required by this chapter without alleging that he o...

Excerpt: ...OA 189.) First Cause of Action for Negligence The elements of a negligence cause of action are: (1) a legal duty to use due care; (2) a breach of such legal duty; and (3) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) In the first cause of action, MR Construction alleges that Cross- Defendants including Accurate Termite: “…provided substandard work that damaged the...

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

Excerpt: ...m of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) Thus, health care providers who engage in “simple professional negligence” are not subject to the heightened remedies available under Welfare and Institutions Code section 15657. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 781, 784; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 331, 337.) Here, Plaintiff alleges that whi...

Excerpt: ...tice of documents filed in the instant matter 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 2016) ¶ 9:53.1a.) Fleming's evidentiary objections to Shirley Bridwell's declaration are sustained as to nos. 1, 2, 5, and 8, t...

Excerpt: ...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 at 616.) A party attacking a pleading on “uncertainty” grou...

Excerpt: ...iff's full response, verbatim, in the separate statement. Sufficient responses were provided to form interrogatory no. 7.3 and special interrogatory no. 25. The Motion is denied as to form interrogatory nos. 6.4, 7.3 and special interrogatory no. 25. Form Interrogatory No. 4.1 Plaintiff provided his auto insurance information in response to this interrogatory, but does not provide his medical insurance information. In Plaintiff's separate stateme...

Excerpt: ...lly to the twelfth and thirteenth causes of action of Plaintiffs Wendy A. Burgo and Devion N. Coleman's Complaint. Defendant Intermatic Incorporated demurs generally to the sixteenth, nineteenth, and twenty-second causes of action in Plaintiffs' Complaint. The demurrers are sustained without leave to amend. The twelfth, thirteenth, and sixteenth causes of action are for negligent infliction of emotional distress. The nineteenth cause of action is...

Excerpt: ...s to the second cause of action. First Cause of Action for Violation of Business & Professions Code § 17200 by way of violation of Business & Professions Code § 21713.5 Business and Professions Code section 17200, et seq. (“UCL”) prohibits unfair competition, including unlawful, unfair, or fraudulent business acts. (Cel-Tech Comm., Inc. v. Los Angeles Cellular Tele. Co. (1999) 20 Cal.4th 163, 180.) A UCL action is equitable in nature and da...

Excerpt: ...certain, 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...

Excerpt: ...Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to...

Excerpt: ...f Tadeusz McMahon, Esq. The court grants Defendants' Request for Judicial Notice in its entirety. Plaintiff's objections to the request for judicial notice are overruled. The court can take judicial notice of the records in the pending action, or in any other action pending in the same court or any other court of record in the United States. (Evid. Code, § 452, subd. (d); see Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 192 [court took judi...

Excerpt: ...nses prior to the hearing on the “deemed admitted” motion will defeat a propounding party's attempt to have the requests deemed admitted].) A copy of the responses were attached to the opposition. (Zacher Decl. at ¶ 2.) Monetary sanctions are granted in favor of Plaintiff and against Defendant. Within 30 days of the notice of ruling, Defendant Jaridly Corporation shall pay $215 to Brett M. Murdock. Plaintiff shall give notice of the ruling. ...

Excerpt: ...]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 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...

Excerpt: ...�� from the trial court's order denying leave to amend. (Id. at p. 297.) Plaintiffs concede that they have delayed for two months in seeking leave to amend. (Reply at 3.) However, absent prejudice, delay is an insufficient basis to deny leave to amend. If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. It is an abuse of discretion to deny leave in such a case even...

Excerpt: ...m the matters admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220”]; see also St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 782 [actual compliance not required where the proposed response is facially a good-faith effort to respond to requests...

Excerpt: ...show both: (1) relevant 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.) In the Motion, Defendant argues that “good cause exists for the production of the re...

Excerpt: ...tice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 9:53.1a.) PPP's remaining requests for judicial notice are granted. (Evid. Code, § 452, subds. (d), (h); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) Evidentiary Objections Plaintiff's evidentiary objection no. 4 to the James Smith declaration is sustained. Plaintiff's evidentiary objection nos. 1 and 2 to James Smith's supplemental declaration are su...

Excerpt: ... of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p...

Excerpt: ...13-cv-00093AG(DFMx) (“Federal Action”). This request is overbroad and imprecise. To the extent this request seeks for the court to take judicial notice of the entire Federal Action, the request fails to comply with California Rule of Court 3.1306(c). Defendants have only attached four documents to the request. (See Cal. Rules of Court, Rules 3.1113(l) & 3.1306(c).) Nevertheless, the court takes judicial notice of the documents attached to the...

Excerpt: ...26/14 Grant Deed, and 9/13/16 Corrective Grant Deed). (Evid. Code, § 452, subds . (c) & (h).) The remainder of the request for judicial notice is denied, 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)-3...

Excerpt: ...rer. (Code Civ. Proc., § 473, subd. (a)(1).) The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473, subd. (a)(1).) California courts generally allow great liberality, at all stages of the proceeding, in permit...

Excerpt: ...(The Rutter Group 2014) ¶ 9.53.1a p.9(l)-33.) Plaintiff and Defendant Newport Medical Group, Inc. entered into an agreement entitled “Physician Independent Contractor Agreement” (“Agreement”). The arbitration clause is found in section XIX. Section XIX provides in relevant part: “if any controversy or claim arises out of or relates to this Agreement, such controversy or claim shall be settled by arbitration in accordance with Sections ...

Excerpt: ... judicially noticed under Evidence Code section 452, subdivision (f) as to the existence of the recorded documents and their legal consequence. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264.) The court may not take judicial notice of the truth of matters stated in the recorded documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-1118.) The request of judicial notice is denied...

Excerpt: ...�� 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., the reason for defendant's detention of the property – and a declaration o...

Excerpt: ...t 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.) “The court shall direct that the party prevailing on any motion ... be awarded the reasonable attorney's fees and costs of making or opposing the motion unless the court finds that the ot...

Excerpt: ...e of action (buyer's damages for purchase or acquisition of property – lost profits) is sustained without leave to amend, based on the representation in the Opposition that this cause of action will be dismissed. As to the contention that each of the causes of action fails to state a claim, the Court concludes otherwise. Cross-Defendants argue facts and theories outside of the allegations of the Cross- Complaint, which cannot be considered on d...

Excerpt: ...to deny leave in such a case, even if sought as late as the time of trial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564- 565.) Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. (Magpali v. Farmers Group, Inc.(1996) 48 Cal.App.4th 471, 486-488; see P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332,...

Excerpt: ... judicially noticed under Evidence Code section 452, subdivision (f) as to the existence of the recorded documents and their legal consequence. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264.) The court may not take judicial notice of the truth of matters stated in the recorded documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-1118.) The request of judicial notice is denied...

Excerpt: ...umbers 63, 65-71, 77, and 80. Sufficient responses have already been provided. Within 15 days, Defendant Knolls West Enterprises is ordered to provide verified, further responses to numbers 1, 19, 53, 61, 62, 76, and 79, as set forth below. Numbers 1, 19, and 53 In the supplemental responses for numbers 1, 19, and 53, some of the witnesses' contact information provided were to post office boxes. Plaintiff's counsel is understandably concerned tha...

Excerpt: ...ady passed. The statutes setting time limits on discovery should be construed in a way which is consistent with the overall purposes of discovery which are well known. They are intended, among other things, to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and t...

Excerpt: ...ia Medical Malpractice Voluntary Binding Arbitration Agreement” and “California Voluntary Binding Arbitration Agreement.” (Exhs. B and C to Thacker Decl.) Exhibit B includes the following relevant provisions (emphasis added): Article I: It is understood that any dispute as to medical malpractice (that is, whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incomplete...

Excerpt: ...ntract are (1) existence of a contract, (2) plaintiff's performance or excuse from non- performance, (3) breach by defendant, and (4) damages. (First Commercial Mortgage Co. v. Reece(2001) 89 Cal.App.4th 731, 745.) A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (w...

Excerpt: ...located at 14077 Peyton Drive, Chino Hills, CA 91709 on April 30, 2018. Ms. Jin failed to appear for her deposition on May 18, 2018. Plaintiffs/Cross- Defendants' counsel met and conferred with no response. If a nonparty disobeys a deposition subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena under either Code of Civil Procedure section 2025.480 (applicable to depositions generally) or Code ...

Excerpt: ...ly, discovery sanctions should be tailored with the goal of remedying the offending party's discovery abuse. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) On April 20, 2018, the court ordered Defendant Steven Coe to provide written responses to Requests for Production of Documents, Set One, without objections, within 20 days of notice of the ruling. On April 20, 2018, Plaintiff served Defendant with a notice of the ruling. Altho...

Excerpt: ...se of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (Code Civ. Proc., §§ 2030.290, subd. (c) [interrogatories], 2031.300, subd. (c) [requests for production]; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before...

Excerpt: ...d, Code of Civil Procedure section 128.5 (in its current and previous versions) require the moving party to comply with the safe harbor waiting provisions. (Nutrition Distribution v. Southern Sarms, Inc. (2018) 20 Cal.App.5th 117, 130 [discussing 2017 amendment legislative history noting intention to clarify previous legislative intent]; see Code Civ. Proc., § 128.5, subd. (f).) In other words, Cross-Defendants were required to provide Cross- Co...

Excerpt: ...unsel--Civil (form MC-053) and must be lodged with the court with the moving papers. Here, there is no Proposed Order filed the Moving Papers. However, the court notes that the Proof of Service filed on 6/13/18 indicates that a Proposed Order was served on all parties. Therefore, the court orders Mr. Jacobs to file and submit a courtesy copy of a Proposed Order. The order must specify all hearing dates scheduled in the action or proceeding, inclu...

Excerpt: ...rred by now. If it did not, the court cannot provide an order compelling her attendance based on this Motion. A new motion addressing her non-appearance would have to be made. Plaintiff's request for sanctions is denied. MOTION TO COMPEL FURTHER REPONSES TO FORM INTERROGATORIES Plaintiff Mark Matthew's Motion to Compel Further Responses to Form Interrogatories Set One is granted only as to Form Interrogatories 12.1 and 17.1. Defendant's objection...

Excerpt: ...on February 4, 2018. (Exh. A.) Plaintiff has also the declaration of Julie Saunders, to dispute Defendant's assertions. Plaintiff has met his burden to prove the facts requisite to an effective service. When Defendant's first motion to quash was denied, his motion to expunge lis pendens became a general appearance. (Code Civ. Proc., § 418.10, subd. (e).) In any event, the declarations provided by Defendant are not properly sworn and are therefor...

Excerpt: ...'s fees are allowable as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (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 prevailing party, then the party who is determined to be the party...

Excerpt: ...ion 877.6, subdivision (d), the burden of proof is on the party opposing the motion for good faith determination. 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) ...

Excerpt: ...hese identical arguments regarding the allegations and determined that the allegations are sufficient. (See 6/8/18 Minute Order.) For the same reasons, the demurrer as to the sixth cause of action is overruled. The IIED claim, however, fails to state a cause of action. “A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or ...

Excerpt: ... 17, and 21. Defendant's remaining objections are overruled. Plaintiff's objections to the declaration of Mark Atilano are sustained as to nos. 2, 3, 4, 5, 6, and 7. Plaintiff's remaining objections are overruled. A writ of possession is an extraordinary pre-judgment remedy. A declaration supporting an application for a writ of possession must set forth the facts with particularity and with personal knowledge. The declaration can rely on informat...

Excerpt: ...oppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (Code Civ. Proc., §§ 2030.290, subd. (c) [interrogatories], 2031.300, subd. (c) [requests for production]; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 8:852.) The moving party n...

Excerpt: ...een 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) 144 Cal.App.4th 1175, 1194.) Given the constitutional right to a jury trial, a court has limited discretion to grant a motion for JNOV. (Fountain Valley C...

Excerpt: ...total of the assets and liabilities of a decedent, or of an incompetent, or of a bankrupt.” (Ibid.) Although the Caption lists the Estate as a party, the body of the Complaint (¶¶ 12-15) show that Plaintiff Justiniani is the personal representative of the Estate. Although the personal representative may sue on behalf of the estate and its heirs, the suit may not be brought in propria persona unless the personal representative is a licensed at...

Excerpt: ... “preposterous,” the allegation that the description of a different property in the MOU was a clerical error. This allegation is one of fact that cannot be decided on a demurrer. As to the contention that each of the causes of action fails to state a claim, the Court concludes otherwise. Cross-Defendants argue facts and theories outside of the allegations of the Cross-Complaint, which cannot be considered on demurrer. (Ion Equipment Corporati...

Excerpt: ...cal services, as required to state a cause of action under Welfare and Institutions Code section 15610. (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 407- 410.) As to the second cause of action for negligent hiring and supervision, there are no allegations that any particular employee presented a particular risk of the alleged harm. Furthermore, should the Complaint be amended, a broad allegation that all employees ...

Excerpt: ...h Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618.) Section 473 is applicable because the dismissal of the Does 1-50 is the equivalent of a default. Relief is mandatory because there is an attorney affidavit of fault. (Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604.) Here, Plaintiffs' Counsel Allen V. Feghali now properly declares in a sworn declaration that he accidentally dismissed Does 1-50 when he in fact meant to dismiss Does ...

Excerpt: ....) At the ex parte hearing, the court encouraged the parties to stipulate to discovery extensions, to avoid motions from being filed. A week later, the court extended the expert discovery cutoff only. The court indicated that parties could file a motion to extend the discovery cutoff. (10/13/2017 Minute Order.) More than three months later, Plaintiff filed a Motion to Reopen Discovery on January 26, 2018. But, service of the Motion was deficient....

Excerpt: ...egents of the University of California's broad document requests. (Evid. Code, § 996 [no physician-patient privilege for communications relevant to an issue concerning the plaintiff's condition if such issue has been tendered by the patient or party claiming through him or her].) But this exception applies only to communications and information relevant to the very injury or impairment tendered by the patient in the lawsuit. (Slagle v. Superior ...

Excerpt: ...laration of Steven Blake and nos. 1 and 2 to the Declaration of Louis A. Galuppo. The court sustains all five objections as to each Motion to Mr. Watts' declaration. The court overrules Defendants' objections to the Declaration of Elaine Alston nos. 1-3, 5-13 and sustains nos. 4, 14-16. DEFENDANTS' REQUEST FOR ATTORNEY'S FEES UNDER CODE OF CIVIL PROCEDURE SECTION 425.16, SUBDIVISION (C)(1) Legal Standard A “prevailing defendant” on an anti-SL...

Excerpt: ....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 supporting a claim for recovery,” they are not subject to the statute and cannot be st...

Excerpt: ... May 9, 2018. May 28, 2018 was a court holiday. Counsel did not give sufficient notice of the motion to his client. Thus, the Motion is denied without prejudice. MOTION FOR SANCTIONS The court grants in part Defendant Versa Technology, Inc.'s motion for sanctions. 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 ...

Excerpt: ...d faith, that are frivolous or solely intended to cause unnecessary delay . . . . (b) For purposes of this section: (1) "Actions or tactics" include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute "actions or tactics" for purposes of this section...

Excerpt: ...des: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Code ...

Excerpt: ...reclosure causes of action. On June 1, 2018, Cross- Complainants filed a notice of appeal. Pursuant to Code of Civil Procedure section 405.30, anyone with an interest in real property may move a court for an order expunging a lis pendens. “[O]n a motion to expunge a lis pendens after judgment against the claimant and while an appeal is pending, the trial court must grant the motion unless it finds it more likely than not that the appellate cour...

Excerpt: ... declines to consider the untimely filed oppositions. DEMURRER Defendant Michelle J. Woodward, an individual and as Trustee of the Ray F. Swift Family Trust, filed a demurrer to the sixth cause of action for fraud/concealment of Plaintiffs Arthur, Audra, Maverick, and Adelle Paine's Complaint. The demurrer is overruled. Uncertainty A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambi...

Excerpt: ...forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds in Katzberg v. Regents of the ...