Excerpt: ... judicial notice of the existence of a contract between private parties].) Legal Standard A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Furthermore, the court must accept the allegations as true regardless of how �...

Excerpt: ...are 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 among plaintiffs; (4) the recognition that a settlor should pay less in settlement than he would if he were f...

Excerpt: ... within the time allowed by the court and either party moves for dismissal. Dismissal is not mandatory, and the decision whether to dismiss is within the trial court's sound discretion. (Harlan v. Dept. of Transportation (2005) 132 Cal.App.4th 868, 874; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.) But any dismissal under this section shall be with prejudice. (Cano v. Glover (2006) 143 Cal.App.4th 326, 331.) Califo...

Excerpt: ...n 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 position of the party in que...

Excerpt: ...s for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) The moving party need only show the failure to obey the court's earlier discovery orders. Thereafter, the burden of proof shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Puritan Ins. Co. v. Superior Court (Tri...

Excerpt: ...rporate Status 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.4th 1599, 1603-1604 [“suspension of corporate powers results in a lack of capacity to sue, ...

Excerpt: ...1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) A self-represented litigant is not entitled to any greater consideration than other litigants and attorneys. (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594 [self-represented litigants are entitled to same treatment as represented parties].) Requests for Judicial Notice The court grants Plaintiff's request for judicial notice (“RJN”) of the opinion ...

Excerpt: ...ction is sustained without leave to amend. The demurrer as to the first cause of action is overruled. Request for Judicial Notice Defendants request judicial notice of the District Court's July 30, 2019 Order granting summary judgment in favor of Defendants in a prior federal case brought by Plaintiff arising from the same events. The court grants the request only to establish the contents of the judicial orders, findings, conclusions and judgmen...

Excerpt: ...r the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) Where the question is specific and explicit, an answer that supplies only a portion of the information sought is improper. It is also improper to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne (1978)...

Excerpt: ...st Construction Co. (1994) 24 Cal.App.4th 1426, 1441- 1442.) Electronic service is an acceptable method of service. (See Code Civ. Proc., § 1010.6, subd. (e)(1); Orange County Superior Court rule 352.) Defense counsel did receive the motion, even if he described finding the motion as having “stumbled on the One Legal mail of July 15, 2021, and out of curiosity opened the email only to realize that it was a motion for attorney's fees.” (Opp.,...

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

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

Excerpt: ...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 inf...

Excerpt: ...leging facts material to the case occurring after the former complaint or answer.” (Code Civ. Proc., § 464, subd. (a).) The primary injury alleged in the existing complaint is that Defendant Niguel Pointe Homeowners Association has failed to meet its duties and obligations under the CC&Rs, by failing to properly repair and maintain certain “Common Areas,” which has led to “structural deficiencies” in Plaintiff's unit, i.e., the “crac...

Excerpt: ...an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) The interrogatories at issue ask for information as to the number of babies delivered at Orange County Global Medical Center between Ma...

Excerpt: ...n the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 8:1495.6.) Declarations are generally used to show good cause. They mu...

Excerpt: ...urt 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 the impos...

Excerpt: ...pplicable Law For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352, 359.) Negligence (First Cause of Action) “ ‘The elements of a cause of ...

Excerpt: ...ode Civ. Proc., § 1987.1, subd. (a).) Grounds for the motion include that the records sought are not within the permissible scope of discovery, are protected by privacy rights, are not relevant to the subject matter, or are unjustly burdensome or oppressive demands. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 8:598.) A deposition subpoena that commands production of business records for copying “...

Excerpt: ... 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 “uncertainty” grounds must specify how and why the p...

Excerpt: ...fendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppre...

Excerpt: ...ntiff submitted new evidence with its reply to fill gaps in the original evidence created by the opposition regarding Defendant's argument that Plaintiff failed to mitigate. While it would be appropriate to consider such evidence, the Court exercises its discretion and declines to consider that evidence as unnecessary. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) Plaintiff's claims for breach of lease and breach of guaranty are contra...

Excerpt: ...facts. Every element of fraud must be pleaded with specificity. The particularity requirement for fraud requires the pleading of facts showing how, when, where, to whom, and by what means the representations were made. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) This is to provide the defendant with notice and to give the court enough information to assess whether there is a foundation for the charge of fraud. (Committee on Children's T...

Excerpt: ...ted with his Reply of discovery and items from websites, is denied. The court declines to turn the hearing on the demurrer “into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff. [Citation.]" (See Del E. Webb Co...

Excerpt: ...iary Objections Plaintiff's objections to the Morales Declaration are overruled. Special Demurrer Uncertainty 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...

Excerpt: ...it of attachment have been met, including that: 1. the claim upon which the attachment is based is one upon which an attachment may issue; 2. plaintiff has established the probable validity of the claim; 3. the attachment is not sought for a purpose other than recovery of the claim upon which the attachment is based; and, 4. the amount to be secured by the attachment is greater than zero. (Code of Civ. Proc., § 484.090, subd. (a).) Plaintiff has...

Excerpt: ...2 Cal.4th 1110, 1118; Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375-1376, 1384; Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1244.) When a motion for summary judgment is used to test whether the complaint states a cause of action, the court must accept the allegations of the complaint as true. It cannot consider facts alleged in opposing declarations. (American Airlines v. County of San Mateo, sup...

Excerpt: ...n Plaintiff Icon Servicing, Inc. is wholly owned by Lawson, who is its CEO, sole officer, sole director, and sole shareholder. Lawson is licensed wholesale motor vehicle dealer. Lawson alleges he is dependent on the revenue of Icon for his income. (4AC, at ¶ 6.) The vehicle seized by Floorit was owned by Icon. (4AC, at ¶ 22.) All of the causes of action alleged are premised on interference with a property right. That property was owned by Icon,...

Excerpt: ...Code Civ. Proc., § 877.6, subd. (a)(2).) Or, a settling party may file a motion for determination of good faith settlement. (Code Civ. Proc., § 877.6, subd. (a)(1).) Defendant Schmidt had filed an application for good faith settlement determination without hearing. (ROA 37.) Defendant Brander filed an opposition to the application, but did not file any motion. (Opp. [ROA 41].) On March 30, 2021, the Court denied the application. (3/30/2021 Minu...

Excerpt: ...apira v. Superior Court (1990) 224 Cal. App. 3d 1249, at page 1255, the court held that Code of Civil Procedure sections 2032.310 and 2032.320 do permit more than one physical examination of a plaintiff upon a showing of good cause, and reversed and remanded the matter back to the trial court as it denied a motion to compel a third mental examination without considering whether there was good cause for such an exam. Here, Defendant has demanded t...

Excerpt: ...itial 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 cann...

Excerpt: ...202 Cal.App.4th 464, 474–476 [“A judgment against a trust, rather than against its trustees, is not enforceable.”].) As a result, a trust “‘“is simply a collection of assets and liabilities. As such, it has no capacity to sue or be sued, or to defend an action.”'” (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 522 [quoting Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 293; accord, Prob. Code, § 18004; Moeller v. Superior...

Excerpt: ...h order and writ of attachment by filing an application 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 tha...

Excerpt: ...at Keith did not serve Plaintiffs Haque Dental Corporation and Trucheck Health, LLC with the motion. (Carlsen Decl., at ¶ 7.) Because there is a substantive opposition on the merits, the court exercises its discretion and will hear the motion. The court notes 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: ...ourt noted that the matter remained stayed pending completion of the arbitration. (See e.g., Minute Orders [ROA 65, 70, 86, 94, 99, 102, 107, 116].) A stay of a civil action pending arbitration constitutes a stay for purposes of section 583.340, subdivision (b). (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1797; Byerly v. Sale (1988) 204 Cal.App.3d 1312, 1314; Blake v. Ecker (2001) 93 Cal.App.4th 728, 737 [“Once the trial c...

Excerpt: ...., at p. 4.) 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....

Excerpt: ... proof of service again does not show that the notice of demurrer, demurrer, and reply were properly served on CareMore Medical Group. (Code Civ. Proc., § 1014.) Dr. Holzner demurs again to the third cause of action for medical negligence on the ground that it is barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340.5. The limitations period for a medical malpractice claim is three years after the date of...

Excerpt: ...eral and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [citing Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74].) “This particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.) In cases against corporate employers, “the plaintiff must ‘allege th...

Excerpt: ...lar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A 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 ...

Excerpt: ...ns nos. 1 through 3 are overruled. Objection nos. 4 through 7 are sustained. Summary Judgment and Summary Adjudication 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...

Excerpt: ...r 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 directing compliance with it upon those terms or conditions as the court shall declare, including protective orde...

Excerpt: ...eponent's attendance and testimony at 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).) Code of Civil Procedure section 2025.480, s...

Excerpt: ...spond 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.) 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, ter...

Excerpt: .... Proc., § 438, subd. (d); Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers . . . ‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . . ' and if permitted, the other party should be given the opportunity to respond.”]; see Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 10...

Excerpt: ...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 (National Union Fire Ins. Co. of Pittsburgh, Pa.) (1997) 53 Cal.App.4th 1113, 1117.) After Defendant moved to amend its Answer to include affirmative defenses of assumption of ri...

Excerpt: ...50.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the...

Excerpt: ...complied with the requirements of California Rule of Court 3.1345(c); and, in any event a separate statement is not required in all instances because a concise outline may be allowed pursuant to California Rule of Court 3.1345(b). (Reply, at p. 8.) Plaintiffs document is labeled a "Separate Statement." It does not comply with California Rule of Court 3.1345(c). As to Plaintiffs' argument that a separate statement was not required, effective Janua...

Excerpt: ..., § 2030.220, subds. (a) & (b).) Where the question is specific and explicit, an answer that supplies only a portion of the information sought is improper. It is also improper to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) A motion to compel also lies where the party to whom the interrogatories were directed gave responses deemed improper b...

Excerpt: ...v. Superior Court (1998) 61 Cal.App.4th 1431, 1435, citations omitted [explaining “This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order.'”].) Here, the record shows St. George's counsel sent a single letter, on January 25, 2021, to defense counsel to address four sets of discovery responses. (Williams Decls., at ¶ 4, Exh. C.) Defense counsel sent a response...

Excerpt: ... it. “On a challenge to personal jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of jurisdiction. . . The plaintiff must come forward with affidavits and other competent evidence to carry this burden and cannot simply rely on allegations in an unverified complaint. . . If the plaintiff meets this burden, ‘it becomes the defendant's burden...