Excerpt: ...hree causes of action. Code of Civil Procedure section 425.16 permits a special motion to strike Strategic Litigation Against Public Participation (“SLAPP”) lawsuits. A SLAPP suit is “a meritless suit filed primarily to chill the defendant's exercise of First Amendmen t rights.” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 208.) The purpose of the anti - SLAPP law is “not [to] insulate defendants fro...

Excerpt: ...inter alia, complexit y of case, skill exhibited, and results achieved. The prevailing buyer has burden of showing that fees incurred are allowable, reasonably necessary to conduct of litigation, and reasonable in amount.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App .4th 99, 104 -105.) Here, it is undisputed that Plaintiffs are the prevailing party entitled to recover fees pursuant to Civil Code §1794(d). While Defendant contends g...

Excerpt: ...23 Order requiring Wilshire and its former counsel, Jaime Kim, to jointly and severally pay Cross -Defendants Zenbu USA, Inc., Time Escrow, Inc., Paramount Realty and Omni Realty (collectively, “Cross -Defendants”) $5,300 in monetary sanctions related to several discovery mot ions filed by Cross- Defendants against Wilshire. As an initial matter, it is noted Wilshire did not submit an attorney affidavit of fault. Thus, relief under the manda...

Excerpt: ... issued its ruling on the MTQ on 10/30/23. (ROA #212.) Plaintiff Balboa Capital Corporation (“Plaintiff”) also filed and served a Notice of Ruling on the MTQ on 10/30/23. (ROA ##208, 210.) That Notice of Ruling was served via express mail, which extends the time to file a reco nsideration motion by two-court days. (Civ. Proc. Code § 1013(c).) Thus, Defendant had until 11/11/23 to file the present Motion. Instead, Defendant did not file t...

Excerpt: ...h violation, in addition to any other penalty established by law (H&S Code §25249.7(b)(1)). These violations may be enforced by, inter alia, persons in the public interest. (H&S Code §25249.7(c) -(d).) If there is a settlement of an action brought by a person in the pub lic interest, the plaintiff shall submit the settlement to the court for approval upon noticed motion, and the court may approve the settlement only if the court makes all of th...

Excerpt: ...ment. (See Govt. Code §§ 911.2(a) and 945.4 [setting forth claims presentation requirements].) The FAC alleges Government Code section 905(m), which was amended by AB 218, exempts any requirement that Plaintiff comply with the claim presentation requirement. The District argues that the change to Government Code section 905(m) made by AB 218 was unconstitutional as an improper gift of public funds under Article XVI, section 6 of the California ...

Excerpt: ...f, Hospitality Marketing Conc epts, LLC (“HMC”). For th e reasons set forth b elow, both motions are DENIED. Motion 1: The Ramadans' Motion A. Issues One and Two (Alter Ego Liability as to HMC) “In California, two conditions must be met before the alter ego doctrine will be invo ked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation ...

Excerpt: ...'s breach and resulting damage.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307.) “If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement mus t be attached and incorporated by reference.” (Id.) Here, Plaintiff alleges that on or about March 28, 2022, Plaintiff and Defendant entered into a “purported contract�...

Excerpt: ...eement signed by Plaintiff Milton Crews Clark (“Plaintiff”) permits a contractu al fee claim here. (ROA 1499, Ex. 2, at ¶ 15.) Although the fees provision therein allows fees to be recovered by the prevailing party only to the extent incurred “to enforce the compensation provisions of this Agreement,” the right to recovery is recipro cal under Civil Code §1717(a). So fees may be recovered on an action either to enforce the compensation ...

Excerpt: ...is entitled to mandatory attorney fees [and costs].” (Ketc hum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum); Code Civ. Proc, § 425.16, subd. (c)(1).) The “prevailing defendant on a motion to strike be allowed to recover attorney fees and costs only on the motion to strike, not the entire suit.” (LaFayette Mor ehouse, Inc. v. The Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383; S.B. Beach Properties v. Berti (2006) 39 Cal.4th 3...

Excerpt: ...Plaintiffs”) (“Motion 2” below). I. Motion 1 Motion 1 is DEN IED. In determining whether exercise of state -court jurisdiction is consistent with due process, the inquiry must focus on the relationship among the defendant, the forum, and the litigation. (Rush v. Savchuk (1980) 444 U.S. 320, 327.) The presence of pr operty in a state may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the...

Excerpt: ...n or proceeding until an arbitration is had in accordanc e with the order to arbitrate or until such earlier time as the court specifies.” (Code Civ. Proc., § 1281.4.) “The purpose of the statutory stay [required pursuant to section 1281.4] is to protect the jurisdiction of the arbitrator by preserving the st atus quo until arbitration is resolved. [Citations.] [¶] In the absence of a stay, the continuation of the proceedings in the trial ...

Excerpt: ...aken on 3/7/24 and the transcript has not yet been prepared . He says the deposition was originally noticed for 1/30/24 but defendants delayed such that the deposition did not go forward until 3/7. Plaintiff summarizes portions of Mr. Ip's deposition at ¶¶3, 5, 6, 7, 15, 16, 18, 19, 21, 28, 30, 31, 32 & 35 of his declaration. However, he requests a continuance pursuant to CCP §437c(h) so that the actual transcript can be submitted with the spe...

Excerpt: ...istake, inadvertence, surprise, or excusable neglect. Application for this r elief…shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's swor...

Excerpt: ...a. 42 and Para. 3 of the Prayer. I. DEMURRER 1st cause of action: Gender/Pregnancy Dis crimination (vs. EWL) A prima facie case for a discrimination requires a showing by the plaintiff of the following elements: (1) that he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or that he or she was performing competently in the position he or she held; (3) that he or she suffered an adverse ...

Excerpt: ...in connection with a Motion for Summary Judgment (¶23, ¶24, ¶28, ¶30, ¶31, ¶32, ¶34, ¶35, ¶39, ¶40, ¶41, ¶43, ¶44- ¶83, ¶85-¶97 and ¶99 -¶103 of SAC) and Declarations filed in support of Plaintiff's Ex Parte Application for a TRO. (¶30, ¶31, ¶32, ¶33 and ¶36 of SAC.) As a demurrer assumes the truth of factual allegations (Blank v. Kirwan ( 1985) 39 Cal.3d 311, 318), Plaintiffs' intention in offering these citations is uncl...

Excerpt: ...toppel; and (2) Plaintiff failed to exhaust administrative remedies. (Defense Supplemental Brief: 2:17 -21.) While Defendant does not include an additional request for judicial notice, which addresses the resolution of this appeal, a copy of the relevant opinion is attached to a Notice of Ruling which was filed by Defendant on Augus t 15, 2023. (ROA No. 147.) The Court takes judicial notice of this opinion, pursuant to Evidence Code section 452,...

Excerpt: ... From Defendant Cheol Kim, etc. (“Motion 2” below , filed as ROA 66); (3) Motion to Compel Further Responses Without Objections to Special Interrogatories (Set One) From Defendant Cheol Kim, etc. (“Motion 3” below, filed as ROA 94); (4) Motion to Compel Further Responses Without Objections to Special In terrogatories (Set One) From Defendant Pinebrook Acupuncture, etc. (“Motion 4” below, filed as ROA 78); (5) Motion to Compel Furth...

Excerpt: ...nts' request for judicial notice, Nos. 1 -4. 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 3.) Plaintiff's Evidentiary Objections. The Court declines to rule on plaintiff's objections as such rulings w...

Excerpt: ...trike are DENIED. I. DEMURRER BY LEGACY The within action is brought under the Elder Abuse and Dependent Adult Civil Protection Act (“Act”) and arises out of the death of Andrew Chavez (“Andrew”), an alleged drug addict. The Act creates a civil cause of action for a “dependent adult” who suffers “neglect” or “de privation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (...

Excerpt: ...iff Qi. By way of the subject motion, Verde seeks leave to file a FAXC against plaintiff Qi. Rule 3.1324 sets forth the requirements for a motion for leave to amend. Here, the motion fails to state what allegations are to be added and deleted. Therefore, the motion fails to comply with 3.1324(a)(2)&(3). Additionally, the Motion does not include an attached copy of the proposed amended XC. However, on the same day the motion was filed, Verde als...

Excerpt: ...e § 430.10(e) and (f).) “To state a cause of action for breach of contract, a party must plead the existen ce of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage. [Citation.] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body o f the complaint or a copy of the written agreement must be attached and incorpo...

Excerpt: ...; C.C.P. § 437c(c).) To satisfy this burden, a defendant must establish that one or more of the elements of a cause of action (a “COA”) cannot be established or that a complete defense exists to the cause of action. (Id.; C.C.P. § 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a triabl e issue of material fact exists as to either the particular COA or the proffered defense thereto. (Id.) The plainti...

Excerpt: ...writing, the demanding party waives any right to compel a further response to the demand.” Here, plaintiff submits evidence that NorCal served verified responses to RFP, Set One, on 7/17/23 by email. The subject motion was not filed until 10/5/23 which is more than 45 days after the responses were served. Plaintiff did not submit evidence of an agreement by NorCal to extend the motion deadline. Accordingly, the motion is untimely and denied. ...

Excerpt: ... on 08/20/24. (Ortega -Carrillo Decl. ¶ 6, Ex. A.) While the criminal trial is only approximately five -months away from the date of this hearing, that does not support staying the entirety of this action. The court recognizes a criminal prosecution should not be able to obtain information through civil proceedings to which it was not entitled under the criminal discovery rules and that to allow the prosecutors to monitor the civil proceedings ...

Excerpt: ... burden of showing that a cause of action has no merit if the party has shown that one or mo re elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or crossdefendant has met that burden, the burden shifts to the plaintiff or cross -com plainant to show that a triable issue of one or more material facts exists as to the cause of actio...

Excerpt: ...NIED in part. The two motions and arguments are largely duplicative and t hus will be handled together. Plaintiff seeks to compel Defendant Marriot to produce all documents and ESI responsive to Requests for Product (“RFP”) (Set One) Nos 2, 6, 14, and 26. As to Defendant Lerma, Plaintiff seeks to compel him to produce all docu ments and ESI responsive to RFP (Set one) Nos 2, 6, 14, 18, 20, 26, 30, and 32. As to the format of the ESI, Under C....

Excerpt: ...(Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 14041 405.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) “Because a demurrer tests only the legal sufficiency of the pleading, the facts alleged in the pleading are deemed to be true. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1190 [citation omitted].) As to the Trespass cause of action, the disputed issue is ...

Excerpt: ...it if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross- defendant has met that burden, the burden shifts to the plaintiff or cross -complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross - com...

Excerpt: ...FP, Set Two, Þled by Gorla and directed to Plainti
¯/Cross-Defendant, Hospitality Marketing Concepts, LLC (“HMC”). The RFP propounded to HMC that were the subject of the January 8th order are identical to the RFP propounded on the Ramadan brothers. The court notes the arguments raised in the four motions to compel are nearly identical. Because the document requests to the Ramadan brothers and to HMC are identical and because the Ramadan bro...

Excerpt: ...a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her.” Once a defendant challenges the Court's jurisdiction, it is up to the plainti
¯s to prove, by a preponderance of the evidence, that personal jurisdiction exists. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449. This must be shown by a
¯idavits, declarations, or other competent evidence. (In re Automobile ...

Excerpt: ...inti
¯ sets forth the allegations to be amended. Plainti
¯ also submits the declaration of counsel which explains the e
¯ect of the amendment and why the amendment is necessary and proper, including reference to the red-line version attached. The declaration also states when the facts were discovered. Counsel states “It was only after defendants Þled their answer to the original complaint after remand that I realized the First Amended Compl...

Excerpt: ... plainti
¯.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 154.) “[I]n cases involving automobiles or other vehicles, it is su
¯icient to aver that defendant negligently operated the vehicle without alleging how or in what respect it was done.” (Id. at 155.) Likewise, it is su
¯icient to allege damages “as a direct and proximate consequence and result” of the negligence. (Id. at 156.) “[N]egligence and proximate cause m...

Excerpt: ...he Þrst ground and does not reach the second. 1) COA No. 5 – Fraudulent Inducement – Concealment Concealment is, “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact” (Civ. Code § 1710(3).) “To state a claim for fraudulent concealment under California law, a plainti
¯ must allege: “ ‘(1) a misrepresentation (fal...

Excerpt: ...here is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1119; C.C.P. § 437c(c).) Where a defendant is the moving party, it must establish that one or more of the elements of a cause of action cannot be established or that a complete defense exists to the cause of action. (Id.; C.C.P. § 437c(o).) If the defendant meets this burden,...

Excerpt: ...1350. Additionally, the proof of service which lists all of the documents served by Verde in connection with the MSJ does not mention that a separate statement was served, even though it appears plainti
¯ received the document because she provided a response. In the motion, Verde seeks summary judgment as to the Complaint Þled by plainti
¯ Ying Qi in which she alleges a single cause of action for Premises Liability against Verde. Verde is alle...

Excerpt: ...ain circumstances as laid out in Civ. Proc. Code § 2031.310(a). “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the disc...

Excerpt: ...ng Companies, Inc. ("SBC"), Bisher Aljazzar ("Aljazzar"), Deenna S. Elsherif ("Elsherif") (individually and as trustee of the Deenna Elsherif Living Trust etc.), and Stolac LP ("Stolac") (collectively the "Defendants"). Under C.C.P. S 437c(p)(1), on a motion for summary judgment or adjudication, a moving plaintiff has the initial burden of showing each element of the cause of action entitling the party to judgment thereon and that there is no def...

Excerpt: ...th]; and (2) the Motion for Summary Judgment, filed on 4/26/23. Both Motons are GRANTED. Summary judgment is proper where the evidence shows there is no triable issue of material fact and the moving party is entitled to judgment as a Where a defendant is the moving party, it must establish that one or more of the elements of a cause of action cannot be established or that a complete defense exists to the cause of action. (ld.; C.C.P. S 437c(o).) ...

Excerpt: ...summary judgment bears the burden of showing that a cause of action has no merit if the defendant shows that one or more elements of the cause of achon cannot be established, or that the defendant has a complete defense to the cause of action. (CCP S 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.) If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied....

Excerpt: ...h 826, 843, citations omitted.) Courts "'construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in fawr of the party opposing it.'" (Unilab Corp. v. Angeles-IPA (2016) 244 cal.App.4th 622, 636, quoting Seo v. All—Makes overhead Doors (2002) 97 cal.App.4th 1193, 1201 1202.) Plaintiffs seek summary adjudication as to Defendants Amazon.com, Inc. a...

Excerpt: ...en identify available dates for Plaintiff, rejected proposed dates suggested by Plaintiff's counsel, and then informed Plaintiff's counsel that Mr. Lomax had gone to work for an allegedly unaffiliated entity and thus could no longer be produced for deposition at all. (Trujillo Decl. '1 25; Bennett Decl. "16—9, and Ex. 2.) The Court finds a troubling lack of detail in the explanation of the circumstances which led to that claim, as to what posit...

Excerpt: ... of $209,000 was reached at a mediation on 11/11/22. Although Medina had been invited to attend and had recently filed her answer, Medina opted to not participate in the mediation. (Dorr Decl. 912) The settlement agreement is attached to Dorr's declaration and states that it is "expressly conditioned on court approval of Petitions for Minor's Compromise." (Exh. 1, 913) Section 877.6 allows a settling defendant or cross-defendant to obtain a deter...

Excerpt: ...), Set Two, filed by Mr. Gorla. 80th motons are GRANTED IN PART as discussed below. Motion 1 Pursuant to Code Civ. Proc. S 2025.290(a), the court shall allow additional time for deposition, beyond the seven-hour limit imposed by this section, "if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination." The Court finds Cross-Defendants have shown good cause for a furthe...

Excerpt: ...Christian (1968) 69 cal.2d 108.) The duty to warn of or remove a dangerous condition of property created by a third party arises only when the landowner had actual or constructve knowledge, or by ordinary investigation should know, of the dangerous condition. (Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 806); see also Ortega v. Kmart Corp. (2001) 25 Cal.4th 1200, 1206 (Ortega).) California courts have also repeatedly held that landowners are ...

Excerpt: ...ing the demurrer in part with leave to amend, the Court deems the motion to strike MOOT. Statute of Limitatons In ruling on a general demurrer based on statute of limitations grounds, the running of the statute must appear "clearly and affirmative y" from the face of the complaint. It is not enough that the complaint might be time-barred. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Stueve Bros...

Excerpt: ... 39 Cal.3d 311, 318.) Defendant demurs to the fourth cause of action for fraudulent inducement/concealment, arguing the FAC fails to allege any pre- or post- transacton communications, knowledge of the defects, or intent to induce reliance. Further, Defendant argues that absent a fiduciary relationship between the parties, a duty to disclose only arises where (1) the defendant had exclusive knowledge of the material fact; (2) the defendant active...

Excerpt: ...s and unintelligible as pled. (Code Civ. Proc. S 430.10(f).) 1) COA No. 2 —Negligent Failure to Carry Out a Mandatory Duty Pursuant to Education Code S 44807 & 44808 This is a negligence per se COA as it is based upon two statutes. "The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of acton for negligence." (Turner v. Seterus, Inc. (2018) 27 C...

Excerpt: ...ng Companies, Inc. ("SBC"), Bisher Aljazzar ("Aljazzar"), Deenna S. Elsherif ("Elsherif") (individually and as trustee of the Deenna Elsherif Living Trust etc.), and Stolac LP ("Stolac") (collectively the "Defendants"). Under C.C.P. S 437c(p)(1), on a motion for summary judgment or adjudication, a moving plaintiff has the initial burden of showing each element of the cause of action entitling the party to judgment thereon and that there is no def...

Excerpt: ...dice or the status of the case as a whole are unavailing. It is undisputed that Plaintiff Aiden Bravo is under the age of 14 and that this case is a wrongful death/personal injury case. The question is whether the minor plaintiff has a substantial interest in "the case as a whole." The court is unaware of case law that sets out any test or boundaries to determine whether the minor has a substantial interest in the case as a whole, leaving this as...

Excerpt: ...vacy exists as to a party's employment records. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528-529.) However, privacy protections are not absolute, and courts must carefully balance the right of privacy against the need for discovery. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion t...

Excerpt: ... to relief under the discretionary provision of secton 473(b) for at least some of what is requested. 1) The June 15, 2023 Order Wilshire seeks to set aside the June 15, 2023 Order dismissing its cross-complaint. It contends it is entitled to relief based on "surprise" or "excusable neglect" because its former attorney, Ms. Kim, failed to inform Wilshire of the June 15, 2023 ex parte hearing, failed to appear at said hearing on Wilshire's behalf,...

Excerpt: ...Plaintiff has failed to show that it did not adequately comport with C.C.P. S 2015.5. On the merits, for Form Interrogatory ("FROG") Nos. 1.1, 15.1, and 17.1 as directed to RFA 14, each response is incomplete and lacking in adequate specificity. The Motion is therefore GRANTED for FROG Nos. 1.1, 15.1, and 17.1 as directed to RFA 14. The Motion is DENIED as to FROG 2.8, as Plaintiff has not shown why the response is insufficient given the context ...

Excerpt: ...r both state and federal law." (Tiri v. Lucky Chances, Inc. (2014) 226 Cal. App. 4th 231, 240.) "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense." (Engalla v. Permanente Medical Group, Inc. (1997) 15 cal.4th 951, 972; Green Tree Financial ...

Excerpt: ...ty or was regarded as suffering from a disability; (2) he could perform the essential duties of the job with or without reasonable accommodations; and (3) he was subjected to an adverse employment action because of the disability or perceived disability. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160.) Because Plaintiff's claims are asserted against a public entity and are based on FEHA, a statutory scheme, his causes of achon must ...

Excerpt: ...ding company that owns Flagstone Healthcare Central, LLC which owns Empire. TEG also owns ESI which had a consulting agreement with Empire to provide various services. l. MOTION BY THE ENSIGN GROUP, INC. Plaintiff's Objections to Decl. of Robert Shephard Plaintiff asserts objections to 17 statements made in the declaration of Robert Shephard. The objections are OVERRULED. Plaintiff's Request for Judicial Notice Plaintiff asks the Court to take ju...

Excerpt: .... Code S 210.) In terms of expert evidence, such testimony must be "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code S 801.) Here, the City's expert evidence is relevant to the City's defenses in this action. Petitioner alleges the City illegally imposed water and sanitation fees and charges on residents that exceed the cost of providing said services a...

Excerpt: ...'s discovery response from September 25, 2022 indicating she was being treated by the Witness as a result of the subject incident and Plaintiff's claim for wrongful death damages based on loss of society, comfort, care, and protection afforded by the decedent. However, Plaintiff amended her discovery response just two days after the initial responses to indicate that the Witness had been erroneously identified and to clarify that Plaintiff was no...

Excerpt: ...tion to compel a nonparty to comply with a deposition subpoena for document production. At least one court applied the good cause showing requirement to a nonparty production, "since it is unlikely the Legislature intended to place greater burdens on a nonparty than on a party to the litigation." (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223-224.) To establish "good cause," the burden is on the moving party to demo...

Excerpt: ...ent between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Management, LLC (9th Cir. 2016) 655 Fed.Appx. 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F. 3d 559, 555.) In determining the validity or "the rights of parties to enforce an arbitration agreement within the FDA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower ...

Excerpt: ...nd cause of action for battery. "A battery is any intentional, unlawful and harmful contact by one person with the person of another.... A harmful contact, intentionally done is the essence of a battery.... A contact is "unlawful" if it is unconsented to....' [Citation.) The elements of a civil battery are: ' "1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiffs person; [9] 2. Plaintiff did no...

Excerpt: ...exemption. l. MOTION TO VACATE DEFAULT The motion to vacate is based on CCP "473.5 and 473(b). The subject motion is made on behalf of both RND Genetics and Richard Santos. With regard to RND Genetics, Hensley submits proof that it served the complaint on RND Genetics. (Exh. 5 to Murray Decl.) There is no evidence submitted by RND Genetics, LLC showing that it was not pro#rly served with the complaint. Further, Santos states in his declaration th...

Excerpt: ...discussed below. On Item 1, Plaintiff asserts that $90 of the sum claimed should be taxed. The Court, however, has found that only $30 of the sum claimed should be taxed, for five "check advance" fees at $6 each. The Mohon is therefore granted as to $30 of the sum claimed, but otherwise denied. On Item 5, the charges claimed appear appropriate, except as to those for picking up exhibits ($81.50) and for the entry showing "2/28/23 Copy to Court" (...

Excerpt: ...discovery into similar defects on similar automobiles as the vehicle at issue. Plaintiff has not made sufficient arguments showing that information is relevant to the issues in the present Moton. Thus, the court denies that request. Plaintiff also argues Defendant did not strictly comply with CA Rules of Court, Rule 3.1350(b). The court finds Defendant's notice and separate statement were sufficiently similar to on the merits of the Moton. The co...

Excerpt: ...ttling Defendants"). Where a non-settling defendant contests "good faith," the moving party must make a sufficient showing on all Tech-Bilt factors. (City of Grand Terrace v. Sup.Ct. (1987) 192 CA3d 1251, 1261-1252; Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 cal. 3d 488, 499.) The settlement must be within the "ballpark" of the settling party's share of potential liability. (Tech-Bilt, supra, 38 Cal.3d at 499.) But the party asserti...

Excerpt: ... with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." ' " (Ramos v. Su#rior Ct. (2018) 28 Cal. App. 5th 1042, 1051.) When a party petitions a court to compel arbitration under the FAA, "the district court's role is limited to determining whether a valid arbitration agreement exists and, if so, whether the agreement encompasses...

Excerpt: ... for negligent infliction of emotional distress, the elements of duty, breach of duty, causation and damages apply. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) The facts as alleged do not permit such a claim here. When asserting a "direct victim" claim such as that alleged here, a plaintiff may recover in only three types of factual situations: (1) the negligent mishandling of corpses (Christensen v. Superior Court ...

Excerpt: ...contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Cause of Action 2: Sexual Harassment To allege a claim for hostle work environment, plaintiff must plead 1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of...

Excerpt: ...nd the declarations then provide page and line references for the identified exhibits. The Motion thus adequately complies with the requirement. On the merits, TIC has shown that the subject curb where Plaintiff fell was not a "dangerous condition" as a matter of law. The uncontradicted evidence reflects that it was and comports with industry standards. (UF 19, 20.) Whether a condition is dangerous may be resolved as a question of law if reasonab...

Excerpt: ...pear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (CCP S438(d).) "In reviewing the motion, [the Courtl deem[s] true all properly pleaded material facts, but not contentions, deductions, or conclusions of fact or law, and we may also consider judicially noticed matters. [Citation.]" (Bear Creek Master Assn. v. Southern California Investors, Inc. (2018) 28 Cal.App.5th 809, 817.) ...

Excerpt: ...that it is reasonably probable it will prevail on the merits. (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442; Weil & Brown, 9:632.1.) Additionally, "[i]n deciding whether to issue a preliminary injunction, a trial court we-ghs two interrelated factors: [1] the likelihood the moving party ultimately will prevail on the merits, and [2] the relative interim harm to the parties from the issuance or noninsurance...

Excerpt: ... Sales, Inc. ("Truxas") is off calendar per notice of withdrawal at ROA 464. The Second Amended Motion On 04/10/23, after Engs had filed ffs opposition to Emilio's initial MS] filed 10/11/22, the court continued the hearing on the initial MSJ to 08/28/23. The court's minute order did not authorize Emilio to file an amended motion. Emilio also never sought leave of court to file an amended motion. Thus, at that point, Emilio's options were to file...

Excerpt: ... be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Here, the only allegations asto Defendant Wag Labs, Inc. ("Defendant" or "Wag ...

Excerpt: ... recovery of punitive damages." (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405) "The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Citations omitted) Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury "must be plea...

Excerpt: ... Core Lending's demurrer as to the first cause of action for quiet title as alleged in the Second Amended Complaint on the grounds that the first cause of action is not brought against Core Lending. The demurrer is again OVERRULED as to the first cause of action for quiet title on the same grounds. Second cause of action for breach of contract. The second cause of action is for breach of contract. The elements of the cause of action are the exist...

Excerpt: ... paying attention. As the result, Defendant allegedly hit the rear of Plaintiff's vehicle, which had been stopped at a light, causing Plaintiff damages. Plaintiff sought punitive damages as part of the Complaint. Defendant moved to strike the punitive damage language pursuant to Civ. Proc. Code SS 435, 436, and 431.10(b)(2). he availability of punitive damages is laid out in Civ. Code S 3294 and requires sufficient allegations of malice, oppressi...

Excerpt: ...low, Motion 1 is DENIED. Motion 2 is GRANTED, but with reduced sanctons. Moton 3 is GRANTED in part, deemed MOOT in part, and DENIED as to sanctions. MOTION 1 Sanctions are warranted when there are "[m]isuses of the discovery process," such as "[flailing to or to submit to an authorized method of discovery" or "[d]isobeying a court order to provide discovery." (C.C.P. SS 2023.010; 2023.030.) C.C.P. S 2030.290(c) [re rogs] provides that if a party...

Excerpt: ...ndant O Hill as well. As a preliminary matter, Defendants request judicial notce of a number of court records in the underlying family law matter, as well as the Complaint in this case. That request is unopposed, and the request for judicial notice is granted. In ruling on a special motion to strike made under S 425.16, the trial court engages in a two-step process. "First, the defendant must establish that the challenged claim arises from activi...

Excerpt: ...idered the Opposition papers filed on 9/25/23, as they would otherwise have been timely. But the Court will not consider Buyers' additional submissions filed on 9/29/23, as they were plainly untimely, and effectively deprived Seller of an opportunity to respond thereto. On the merits, both sides ask the Court to "enforce" their settlement agreement (the "Agreement") in accordance with C.C.P. S 664.6. However, Seller asks the Court to enter a Judg...

Excerpt: ...azavi's ("Mortazavi") various responses to sets two and three of requests for production. A motion to compel further responses is proper under certain circumstances as laid out in Civ. Proc. Code S 2031.310(a). RFP, Set Two: RDI seeks Primevere and Zibasara's further responses to RFP Nos. 106, and Mortazavi's further response to RFP No. 111. These requests and the responses thereto are identical. The issue here is that RD' seeks documents relatin...

Excerpt: ... summary judgment, a plaintiff has met its burden of showing that there is no defense to a cause of achon if it has proved each element of the cause of action entitling the party to judgment on the cause of action. Code Civ. Proc. S 437c(p)(1). Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc. ...

Excerpt: ...n — Elder Abuse Elder abuse is defined in Welfare & Institutions Code section 15610.07 as physical abuse, neglect, abandonment, isolation, abduction or other treatment resulting in physical harm, pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (Welt & Inst. Code S 15610.07(a)(1)-(2).) Neglect is defined in secton 15610.57 as "[tlhe negligent fai...

Excerpt: ...iency of factual allegations in a complaint." (Rakestraw v. Cal. Physicians' Service (2000) 81 Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibili...

Excerpt: ...sserts a claim for "Fraud and Deceit." Where fraud is alleged, every element must be alleged in full, factually and specifically. The policy of liberal construction of pleading will not be invoked to sustain a pleading defective in any material respect. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the repr...

Excerpt: ...be performed by the parties. Defendant contends that Plaintiff's failure to specify the terms of the contract creates ambiguity as to what the agreement entails, making it difficult for Defendant to ascertain what the claims are as against Defendant and thus the claim is uncertain and unintelligible. A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty ...

Excerpt: ...arity "plaintiff's efforts to secure from the board such action as plaintiff desires, or the reasons for not making such effort." To evaluate a demand futility claim in a shareholder derivative action, court must be apprised of facts specific to each director from which it can conclude that that particular director could or could not be expected to fairly evaluate claims of shareholder. (Shields v. Singleton (1993) 15 Cal.App.4th 1611.) Here, Pla...

Excerpt: ...f limitations. As such, the arguments and oppositions are essentially identical and the court will issue a combined ruling as to both Defendants' demurrers. Pursuant to Civ. Proc. Code SS 430.10(e) and 340.5, both demurrers are SUSTAINED without leave to amend. "A complaint showing on its face the cause of action is barred by the statute of limitations is subject to general demurrer." (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal. Ap...

Excerpt: ...fy, could and would testify competently to them" and that the documents are "true and correct copies" of what they are purported to be. This is simply not sufficient to authenticate these documents. (Evid. Code S 1401(a); Cont'l Baking Co. v. Katz (1968) 58 Cal. 2d 512, 525—26.) Major's declaration also shows a lack of personal knowledge regarding the authenticity of the documents. (Evid. Code S 702.) Major states that he has personal knowledge...

Excerpt: ...dequately met and conferred with Defendant to attempt to resolve this dispute, Specifically, it appears from the Opposition that: (a) Plaintiffs are asserting that they were obligated under the "agreement" at issue to fund only the first and second deposits under the two relevant purchase and sale agreements, in the maximum total sum of $500,000; (b) Plaintiffs are not asserting that they personally had sufficient resources to fund those first an...

Excerpt: ...asonably certain." (Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618, 1623.) With respect to claims premised upon a contract, a complaint must either: (a) set forth the terms of the contract verbatim; or (b) attach a copy of the contract and incorporate it by reference. (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307 ("If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the bo...

Excerpt: ...11, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Defendant bases this demurrer on the premise that "Directors or officers of a corporation do not incur personal liability for torts of the corporation merely by reason of their offcial position, unless they participate in t...

Excerpt: ...g (hereafter, the "XDs") ("Motion 3" below); and (2) an additional Petiton to Vacate Arbitration Award, filed on 7/26/23 by Buyer ("Motion 4" below). For the reasons discussed below, Motion 1 is GRANTED; Motons 2 and 4 are DENIED; Motion 3 is thus MOOT. Motion 1 presents a request to confirm the underlying "Final Award," which comports with C.C.P. S 1285.4. The court thus must confirm that Award as made, unless "in accordance with this chapter it...

Excerpt: ... 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 555.) In determining the validity or "the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) "The party seeking arbitration bears the burden of provin...

Excerpt: ... shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or crossdefendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense th...

Excerpt: ...at- will basis, which means that either you or the School may terminate the employment relationship at any time without cause or notice.” Plaintiff argues that the document also references execution of a contract of employment, making the terms of the contract ambiguous. However, she does not allege that a second employment contract as referenced was ever executed or that the terms of such a contract contradict the at-will provision she undispu...

Excerpt: ...mely filed within the six-month limitation period of the Gov't Claims Act Although CalOptima was not named in the caption of the original Complaint, it is clear from the allegations in body of the Complaint that CalOptima was the intended defendant in this matter. Plaintiff brought this action against “County of Orange, which includes its subdivision CalOptima.” (9/6/22 Complaint, Preamble Paragraph). Furthermore, the complaint alleges employ...

Excerpt: ...reach and resulting damage. [Citation.] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307.) Plaintiff has pled the existence of a valid contract between it and defendant/cross- complainant Rezidential Development, Inc. ...

Excerpt: ...ices, Inc. (the “entity defendant”). With regard to the individual defendant, the motions are GRANTED. With regard to the entity defendant, the motions are GRANTED – subject to the filing of a supplemental declaration attaching the discovery requests and the proofs of service. According to the declaration of plaintiff's counsel, all three discovery devices were served on the defendants and no responses were received. California Code of Civi...

Excerpt: ...urrer First, Second, Third and Fourth Causes of Action: Negligence-Based Causes of Action As an initial matter and as the Court recognized in its ruling on the first demurrer, the District cannot be vicariously liable for Doe 2's sexual abuse of Plaintiff. (See ROA 74; see also, John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447; Steven F. v. Anaheim Union High School Dist., (2003) 112 Cal.App.4th 904, 909.) Plaintiff's opposition ...

Excerpt: ...ion of the Prayer seeking prejudgment interest, Civil Code § 3291 does not apply to wrongful termination actions. (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1436; 6 Witkin, Summary 11th Torts § 1828 (2023); Gourley v. State Farm Mut. Auto. Ins. Co. (1991) 53 C.3d 121.) As the gravamen of the claim here is wrongful termination, § 3291 is inapplicable, and no other basis for prejudgment interest is apparent. The Complaint, as ...