Excerpt: ...�� the controversy. (Code C iv. Proc., § 1281.2.) The Court shall grant the petition unless the petitioner waived the right to compel arbitration or other grounds exist for rescission of the agreement. (Id.) “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp....

Excerpt: ...laim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.] Premises liability ‘“is grounded in the possession of the premises and the attendant right to control and manage the pre mises” '…” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “However, ‘[a] defendant cannot be held liable for the defective or dangerous condition of property w...

Excerpt: ...en of showing that a cause of a ction has no merit 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 crossdefendant 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...

Excerpt: ...to protect any party “fr om unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) At issue here are two depositions which Hillstone seeks to prevent Plaintiff, Georgina Puglisi (“Plaintiff”) from conducting. The first is the deposition of Hillstone's custodian of records with a request to produce at deposition videos of former defendant Mario Jaramillo (“Jaramillo”) enga...

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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...; 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: ... 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...