Excerpt: ...ant. (Compl., at ¶ 7, Exh. A [“Lease Agreement”].) In connection with the lease, “Plaintiff received an express written warranty in which Defendants undertook to preserve or maintain the utility or performance of the Subject Vehicle to provide compensation if there is a failure in utility or performance for a specified period of time.” (Compl., at ¶ 8.) The defects developed during the warranty period, the Vehicle “contained or develo...

Excerpt: ...y Dr. Mark Reed, a podiatrist, and Dr. Andrew Vardanian, a plastic surgeon. (See Objections [ROA 151 & 152]; Reply, at p. 2.) “Expert testimony is admissible only if based on matter of a type that may reasonably be relied on by an expert in forming an opinion on the subject to which his testimony relates.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519 523 [citing Evid. Code, § 801, subd. (b)].) “There is only one standard for admissibility of...

Excerpt: ...ed wage and hour violations. In relevant part, the Complaint alleges: 6. Plaintiffs are informed and believe that defendant SAM METCALF is, and at all relevant times was, a legal resident in Orange County, California. At all relevant times, defendant SAM METCALF has been an owner, director, officer, and/or managing agent of defendant NOVO MISSION INC. He is, therefore, subject to liability for “acting on behalf of an employer” under Californi...

Excerpt: ...ated that the demurrer was as to "each cause of action asserted therein against Moving Party." (Demurrer, at p. 2.) The first cause of action for trespass is only against Ms. Andrews. The Court already overruled Ms. Andrews' demurrer as to the first cause of action. (See 11/15/2019 Minute Order [ROA 84].) The Memorandum of Points and Authorities also makes clear that the demurrer is not as to the first cause of action for trespass. (See Demurrer,...

Excerpt: ...imely filed motions to compel answers. Legal Standard If a deponent fails to answer a deposition question or produce documents or things designated in the deposition notice or subpoena, the examiner may either complete the examination on other matters or adjourn the deposition. (Code Civ. Proc., §§ 2025.460, subd. (e); 2025.480, subd. (a).) The motion to compel must be accompanied by a declaration stating facts showing “a reasonable and good ...

Excerpt: ... and on any terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc., § 473, subd. (a)(1); see Code Civ. Proc., § 576.) The court's discretion will usually be exercised liberally so as not to deprive a party of the right to assert a meritorious cause of action or defense. The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the gran...

Excerpt: ...y Cooper, and Cliff Higgerson, are granted. Requests for Judicial Notice Defendants' request for judicial notice is granted as to exhibits 1 through 18. (Evid. Code, § 452, subds. (d), (h).) The court may not take judicial notice of the truth of the matter stated in the documents. (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.) However, the truth of statements “may be accepted when made by a party but not th...

Excerpt: ...ever comes first. (Code Civ. Proc., § 340.5.) For purposes of the one–year statute, “the accrual date is delayed until plaintiff is aware of her injury and its negligent cause.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.) “In order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reaso...

Excerpt: ...tice of the truth of the matter stated in the documents. (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.) However, the truth of statements “may be accepted when made by a party but not those of third parties or an opponent.” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103.) In addition, “the contents of a document may only be accepted ‘where there is not or cannot be a factual dispute c...

Excerpt: ... 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)(2).) The scope of this burden is determined by the all...

Excerpt: ...d 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 complete defense to the cause of action. (Code Civ....

Excerpt: ...demurrer to the first, second, third, tenth, and seventeenth through twentieth causes of action as to Dad's lack of standing. These causes of action are claims derived from a physician or health care provider relationship. No facts were pled showing that Dad was Defendants' patient. Dad is not a proper plaintiff for these claims. He does not have standing to assert these causes of action. (Keene v. Wiggins (1977) 69 Cal.App.3d 308, 313 [a health ...

Excerpt: ... Procedure does not provide for a sur-reply to be filed. (Code Civ. Proc., § 1005.) Defendant did not seek prior court order before filing these documents. Code of Civil Procedure section 2031.220 requires a party responding to an inspection demand to respond with (1) a statement that it will comply, (2) a representation that it does not have the ability to comply, or (3) an objection. (Code Civ. Proc., § 2031.220.) An agreement to comply must ...

Excerpt: ...blic 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 death or for injury to person or to personal property ... shall be presented as provided in Article 2 (commencing with Section ...

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

Excerpt: ...s 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 support a cause of action in a co...

Excerpt: ...d of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' A defendant's conduct is ‘outrageous' when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.' And the defendant's conduct must be ‘intended to inflict injury or engaged in wi...

Excerpt: ... are overruled as to nos. 1- 5, and sustained as to the remaining objections. Code of Civil Procedure section 1987.1, subdivision (a) provides: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivisi...

Excerpt: ...ests for Judicial Notice The court denies Plaintiff's requests for judicial notice of the federal complaint filed in United States v. Hossein Wasiri, a/k/a "Frank Wasiri" (USDC SDNY case no. 1:19-cr-00423-ALC); judgment filed in Nazari v. Wasiri (OCSC case no. 30-2013-00663025); declaration of Samuel Yu filed in Nazari v. Wasiri (OCSC case no. 30-2015-00778844); and judgment filed in Aska Sakan, Inc. v. Wasiri (OCSC case no. 30-2018-00982440), as...

Excerpt: ...ssed, or stayed pending the action they have already initiated in Delaware. Pursuant to Code of Civil Procedure section 418.10, subdivision (a)(2), a defendant, on or before the last day of 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 to stay or dismiss the action on the ground of inconvenient forum. “When a case involves a mandatory forum selection clause, it will u...

Excerpt: ...Violation of Elder 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 ...

Excerpt: ...roc., § 1010 [“Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.”]; Cal. Rules of Ct., rule 3.1110(a) [“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”].) Although Plaintiff raised this deficiency in its ...

Excerpt: ...1 and Special Interrogatories nos. 4-6 Plaintiff requests the settlement agreement in case number 30-2012-00540874 and information about the underlying settlement. Defendant objected to the discovery request on the grounds that the settlement agreement was confidential and that disclosure would violate the right to privacy of the parties to the agreement. The California Supreme Court recently recognized the role that confidentiality plays in faci...

Excerpt: ... 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 attorney's fees, as set forth above, that provision sha...

Excerpt: ... mediate any dispute or claim arising between them out of this Agreement or any resulting transaction before resorting to court action. Mediation fees, if any, shall be divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation or refuses to mediate after a request has been made then that party shall not be...

Excerpt: ...; (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 for further Investigation or discovery; and (4) the denials of...

Excerpt: ...Act and for breach of express and implied warranties, Plaintiffs allege that Defendant is liable for fraud by omission. Specifically, Plaintiffs allege Defendant “committed fraud by allowing the Vehicle to be sold to Plaintiff[s] without disclosing that the Vehicle and its Diesel Engine and attendant fuel and exhaust system was defective and susceptible to sudden and premature failure.” (FAC, at ¶ 51.) Defendant allegedly knew, “since 2010...

Excerpt: ...esent. After Defendant objected to the subpoena, the DMV sent a letter dated June 19, 2020, stating that it would not produce the requested records “until further notice from the Objector or by court order.” (Robinson Decl. [ROA 121] at ¶ 20, Exh. 11.) The DMV further explained that, “once the production moves forward,” a number of “confidential information objections would apply.” Under “additional information,” the DMV explaine...

Excerpt: ...Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Evidentiary Objections Plaintiffs' evidentiary objections are all overruled. Defendant's evidentiary objections are overruled as to nos. 1, 2, 5, 6, and 9, and sustained as to nos. 3, 4, and 7-8. 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 fa...

Excerpt: ...rmity with the laws of this state, a court rule, or an order of the court. Strict Liability (Second Cause of Action) Defendants seek to strike the second cause of action on the ground that the Complaint does not allege anywhere that Plaintiff's injuries arise from a dog bite and has not pled facts to show the strict liability dog bite statute applies. (Mot., at pp. 3-4, 8-9.) Defendants' motion to strike the entire cause of action is improper. Su...

Excerpt: ...must” be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551(b)(1).) The court may order that a record be filed under seal only if it expressly finds facts that establish that: there exists an overriding interest that overcomes the right of public access to the record; the overriding interest supports sealing the record; a substantial probability exists that the o...

Excerpt: ...g answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to r...

Excerpt: ... 26 are overruled. The remaining evidentiary objections are sustained. Request for Judicial Notice Defendant's request for judicial notice is denied as irrelevant. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) Merits Civil Code section 1794, subdivision (d) states: “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 ...

Excerpt: ...ion for Breach of Contract The elements of breach of contract 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 written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference�...

Excerpt: ... (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing. (Code Civ. Proc., § 391, subd. (b)(1).) “Finally determined” means that all avenues for direct review (appeal) have been exhausted or the time for appeal has expired. (Childs v. PaineWebber Inc. (1994) 29 Cal.App.4th 982, 994.) Voluntarily dismissing the action counts as an adve...

Excerpt: ...der modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumptively within defendant's knowledge. (Khoury v. Maly's of California, I...

Excerpt: ...ability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' A defendant's conduct is ‘outrageous' when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.' And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realiz...

Excerpt: ...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 of Civ. Proc., § 473, subd. (a)(1).) Additionally, any judge, at any time before or after commencement of trial, in the ...

Excerpt: ...020, B296194) __ Cal.App.5th __ [2020 WL 4187851], is granted. (Evid. Code, § 452, subd. (a).) Defendants' request for judicial notice of documents filed with the North Carolina Secretary of State is granted. (Rose Supp. Decl., Exh. 6.) Judicial notice of the existence and filings of Exhibit 6 is appropriate, as well as the clear legal effects thereof, pursuant to Evidence Code section 452, subdivisions (c) and (h), but not the truth of any matt...

Excerpt: ...at: (d) The right to compel arbitration has been waived by the petitioner; or (e) Grounds exist for the revocation of the agreement. (f) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. . . . (Code Civ. Proc., § 1281.2.) Ca...

Excerpt: ...part. The motion is granted as to request numbers 14 and 15. The motion is denied as to request numbers 8-13 and 16. Pursuant to Code of Civil Procedure section 2031.210, subdivision (a), a party responding to a request for production shall respond by: (1) a statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to par...

Excerpt: ...hat 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.) Code of Civil Procedure section 664.6 provides: “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...

Excerpt: ...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 orders. In addition, the court may make any other order as may be appropriate to protect...

Excerpt: ...at 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 to the arbitration agreement is also a party to a pending court act...

Excerpt: ...y an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, co...

Excerpt: ...(1994) 7 Cal.4th 1057, 1063.) Moving Defendants generally and specially demur Plaintiffs' first cause of action for negligence. Their primary contention is the FAC fails to allege facts showing that they owed a duty to Plaintiffs. 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,...

Excerpt: ...interrogatories on the grounds that the answer is evasive or incomplete. (Code Civ. Proc., § 2030.300, subd. (a)(1).) Prior to filing such a motion, the moving party must meet and confer with the responding party in a reasonable and good faith attempt to informally resolve each issue that would be presented by the motion. (Code Civ. Proc., § 2030.300, subd. (b); see Code Civ. Proc., § 2016.040.) If a timely motion to compel has been filed, the...

Excerpt: ...ence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452; Stevens v...

Excerpt: ...alifornia discovery law authorizes a range of 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 sanctio...

Excerpt: ...ted 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 pleadi...