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...

Excerpt: ...orders on Defendant JRMK Investment LLC's demurrers, which resulted in judgment in favor of JRMK. JRMK purchased the property in a foreclosure sale and Plaintiff alleges the same cause of action based on the same conduct as the Moving Defendants. (SAC, at ¶¶ 21-27, 28.) All of the court's analysis equally apply to the instant motion. (See 10/18/2019 & 1/31/2020 Minute Orders [ROA 94 & 137].) 1. The Statute of Limitations has run on all claims. ...

Excerpt: ..., or person to compel the performance of an act which the law specially enjoins… .” (Code Civ. Proc., § 1085, subd. (a); Johnson v. Langond (1902) 135 Cal. 624, 625 [mandamus to compel secretary of corporation to allow stockholder to inspect books].) A writ will issue only “upon the verified petition of the party beneficially interested.” (Code Civ. Proc., § 1086.) The petitioner must have a “clear, present and beneficial right” to ...

Excerpt: ...s objection no. 3 is sustained. Merits 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 part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and p...

Excerpt: ...d concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the defendant in fairness needs such detail which can be conveniently provided by the plaintiff. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Under normal circumstances, there is no need for specificit...

Excerpt: ...er stones as well as stage 3-4 prostate cancer.” (Complaint, at ¶¶ 12- 14.) “[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...

Excerpt: ...gence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has ela...

Excerpt: ...ic, all civil trials, hearings, and proceedings were suspended from March 23, 2020 to May 22, 2020, with the exception of time sensitive matters. The Court resumed processing civil matters on May 23, 2020. (See Fourth Amended Administrative Order No. 20/06 Civil Order Regarding Court Closure, at ¶ 1.) The Clerk's Office scheduled the motions to compel arbitration for November 12, 2020. On November 9, 2020, the Court rescheduled the hearing on th...

Excerpt: ...around December 8, 2020. Plaintiff's counsel made efforts to meet and confer, including written correspondence and telephonic conferences. Plaintiff's counsel also pared down the requests. TagTrends never agreed to supplement any of the responses, even after it became clear that at least one of TagTrends' objections, regarding the discovery cut- off deadline, was wrong. Plaintiff met his initial burden of showing that there is good cause for the ...

Excerpt: ...construed under the laws of the State of California without reference to its principle of conflicts of law and is deemed to have been made and performed in Orange County, CA. You submit to the jurisdiction of CA and agree that the CA state courts and/or the United States District Court for the Central District of California, Santa Ana Division, shall have exclusive jurisdiction over any action or proceeding to enforce this EFA or any action or pr...

Excerpt: ...ontacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.” (Elkman v. Nat. States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-1313.) If there is no conflict in the evidence, “the question of jurisdiction is purely one of law.” (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) California's long-arm statute authorizes California courts to exercise jurisdiction on any basis not...

Excerpt: ...s sustained without leave to amend. 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 (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 Ca...

Excerpt: ...n of “writing”] & 1014 [authentication of a writing is required before the writing or secondary evidence of its content may be received in evidence].) “Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” (Cal. Rules of Court, rule 3.1306(a).) A motion for reconsideration made by a party must be b...

Excerpt: ...l stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal.App.3d 451, 461.) It is a “rare case” in which denial of leave to amend can be justified. (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158.) The liberal policy of permitting amendments is not without limitation or qualification. The policy of liberality in permitting amen...

Excerpt: ...granted and the lawsuit is stayed, “the action at law sits in the twilight zone of abatement with the trial court retaining merely vestigial jurisdiction over matters submitted to arbitration.” (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1796.) During that time, under its “vestigial” jurisdiction, a court may; appoint arbitrators if the method selected by the parties fails (§ 1281.6); grant a provisional remedy “b...

Excerpt: ...bitration 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 determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocatio...

Excerpt: ...videntiary Objections Defendant's objections to Plaintiff's evidence are overruled. Applicable Law “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of product...

Excerpt: ...equest for judicial notice is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 9.53.1a.) The Court sustained Defendant's demurrer on the grounds that Plaintiffs failed to file a timely certificate of merit pursuant to...

Excerpt: ...der and Dependent Adult Civil Protection Act The first cause of action is for elder abuse/neglect. “The purpose of the [Elder Abuse Act] is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) Pursuant to Welfare and Institutions Code section 15610.57, neglect means the “negligent failure of any person havi...

Excerpt: ... 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 inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper...

Excerpt: ...ccordingly, the Court exercises its discretion to consider Plaintiff's untimely opposition. Defendant's Response to Plaintiff's Separate Statement Defendant submitted a response to Plaintiff's separate statement. No such response is permitted under the Code of Civil Procedure or the California Rules of Court. (Code Civ. Proc., § 437c; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Accordingly, the Court declines to consider Def...

Excerpt: ...nstant motion on January 25, 2021, after they already filed the FAC, apparently seeking retroactive relief. Such relief is not provided for in the Code of Civil Procedure. A party wishing to amend a pleading after the time has passed must file a motion with the Court pursuant to Code of Civil Procedure section 473 and California Rule of Court 3.1324. But, Plaintiffs have not complied with California Rules of Court 3.1324. Plaintiffs fail to “[s...

Excerpt: ...ble as unfair competition under Business & Professions Code section 17200. (Lueras v. BAC Home Loans Servicing, LP, 221 Cal.App.4th 49, 81.) “An unfair business practice occurs when that practice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers . . . An unfair business practice also means the public policy which is a predicate to the action must be ...

Excerpt: ...ation supporting an application for a writ of possession must set forth the facts with particularity and with personal knowledge. The declaration can rely on information and belief only upon a proper showing of the reliability of the information. The application must show the following elements:  right to possession, i.e., plaintiff must show the evidence forming the basis of a claim for possession; if based on a written document, the document...

Excerpt: ...t liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal.App.3d 451, 461.) It is a “rare case” in which denial of leave to amend can be justified. (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158.) The liberal policy of permitting amendments is not without limitation or qualification. The policy of liberality...

Excerpt: ...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.) 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...

Excerpt: ...es were directed waived “any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product.” (Code Civ. Proc., § 2030.290, subd. (a).) On September 29, 2020, Plaintiff properly served her form interrogatories-general, set two, on Wesco and Melkonian by mail and email. (Chavos Decl., at ¶ 2.) Defendants' response...

Excerpt: ...the lease agreement requires Plaintiff to arbitrate its claim against Defendant. “Because arbitration is a matter of contract, generally one must be a party to an arbitration agreement to be bound by it or invoke it. [Citation] However, both California and federal courts have recognized limited exceptions to this rule, allowing nonsignatories to an agreement containing an arbitration clause to compel arbitration of, or be compelled to arbitrate...

Excerpt: ...endant Kendra Klassen, and the sixth cause of action against Defendant Greg Klassen. Plaintiff's complaint alleges that Defendants are both psychologists. Plaintiff alleges her search for a Christian therapist led her to Greg Klassen, who in turn referred Plaintiff to his wife, Kendra Klassen “despite his obvious knowledge of Mrs. Klassen's ability to maintain therapeutic boundaries with her patients.” Plaintiff attended therapy with Kendra K...

Excerpt: ...the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits ...

Excerpt: ...any whose business decisions and personnel policies are determined in Dallas, Texas. Therefore, Employee understands and agrees that venue of any action brought to enforce or relating to this Agreement or relating to any aspect of Employee's employment shall be brought exclusively in the district courts of Dallas County, Texas, or the United States District Court for the Northern District of Texas, Dallas, Texas. Employee expressly consents to th...

Excerpt: ... an intentional misrepresentation, duty, justifiable reliance, or damages with the requisite specificity. It is unclear whether Plaintiffs' first cause of action is based on an intentional misrepresentation or concealment. (Opp., 8:13-18, 8: 24-28, and 9:2-9; SAC, ¶¶ 50, 52- 56, 61-64, and 69.) Under either theory, Plaintiffs did not allege sufficient facts with the requisite specificity to support a cause of action for fraud. Plaintiffs did no...

Excerpt: ...f alleges that in January of 2019, Plaintiff and Defendant Hwang entered into a business partnership, but Hwang had no intention of performing. (Complaint, at ¶ 12.) It is unclear if Plaintiff is alleging intentional misrepresentation or false promise. (See, e.g., Complaint, at ¶¶ 11-15; see CACI nos. 1900 & 1902.) “A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent ...

Excerpt: ...the Kirk Defendants. (Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660-662.) The joinders are granted. The demurrer as to the second cause of action is sustained without leave to amend. The motion to strike is granted without leave to amend as to the portions of the first cause of action at issue, and moot as to the portions of the second cause of action at issue. REQUEST FOR JUDICIAL NOTICE Defendants request judicial notice for two...

Excerpt: ...e 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 determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. (c) A party...

Excerpt: ...is or her interest as a shareholder,' or a ‘derivative action filed on behalf of the corporation for injury to the corporation for which it has failed or refused to sue.' . . . ‘[Ordinarily,] The two actions are mutually exclusive: i.e., the right of action and recovery belongs either to the shareholders (direct action) or to the corporation (derivative action).' . . . When the claim is derivative, the ‘shareholder is merely a nominal plain...

Excerpt: ...iconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.) Special Demurrer for Uncertainty Defendants specially demurrer to the first through fourth causes of action. A special demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created...

Excerpt: ... approximately two weeks before Dr. Holzner filed his demurrer to the SAC. (See ROA 157.) Dr. Holzner contends the SAC is a sham pleading because it omits certain factual allegations previously alleged in the FAC. Generally, after an amended pleading has been filed, courts will disregard the original pleading. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) But an exception to this rule occurs when an amended complaint attempts to avoid defe...

Excerpt: ...retion, at any later time upon terms it deems proper. (Code Civ. Proc., § 425.16, subd. (f).) This statute permits a motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier. When more than 60 days have passed since service of the original complaint, a special motion to strike may be brought only against causes of action that were not pled in the original ...

Excerpt: ...ng the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the p...

Excerpt: ...under general rule of motion practice, new evidence not permitted with reply papers and is only allowed in exceptional cases].) Upon the filing of a complaint or at any time thereafter, the plaintiff may apply for a right to attach 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 th...

Excerpt: ...cifically; general 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 mus...

Excerpt: ...able for the acts of OCFA's employee. Evidentiary Objections Tustin's objections to paragraphs 5 and 6 and corresponding Exhibits 4 and 5 in the Roberts Declaration, are sustained. The court declines to consider Tustin's objections in its response to Plaintiff's separate statement of additional facts. Those objections are denied as improper. The written objections must be served and filed separately from papers supporting or opposing the motion. ...

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

Excerpt: ...endant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the defendant in fairness needs such detail which can be conveniently provided by the plaintiff. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Under normal circumstances, there is no need for specificity in pleading evidentiary facts. However, bare conclusions of la...

Excerpt: ...�452, subds. (d) & (h).) Geocon's request for judicial notice of documents filed in the instant matter (Exhs. A-C) is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. A party may “simply call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 9:53.1a.) In this action, it is undisputed Geocon, via Jospeh...

Excerpt: ...$4,290.50 to defense counsel. Plaintiff contends he did not file the correct expert declaration due to his counsel's mistake and inadvertence. 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. Application for this relief shall be accompanied by a...

Excerpt: ... statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; and (3) an objection in the response is without merit or is too general. 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 ...

Excerpt: ... contacted Plaintiff “from 06/2018 till 03/2019 to make financial arrangements,” and, “while other financial organizations worked with Defendant to make arrangements,” Plaintiff “would not agree.” (Answer at p. 2, ¶ 4.) Applicable Law A motion for judgment on the pleadings has the same function as a general demurrer. (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691.) Where, as here, the plaintiff is moving for judgment...

Excerpt: ...dant of the issues it is being asked to meet, failure to label each cause of action is not ground for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of labels . . . does not substantially impair [defendant's] ability to understand the complaint.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 fn. 2.) Plaintiff's opposition acknowledges that she has pled three distinct causes of action all within t...