Excerpt: ... for inspection with: (1) a statement that the party will comply with the particular request; (2) a representation that the party lacks the ability to comply; or (3) an objection to the particular demand for inspection, copying, testing, or sampling. (Code Civ. Proc., § 2031.210(a).) A statement that the party will comply shall state that the production, inspection, copying, testing, or sampling, will be allowed either in whole or in part, and t...

Excerpt: ...ond motion filed by plaintiffs' counsel seeking an order to consolidate these cases. In the first motion, plaintiffs filed the motion in Case No. 2020-01161967. That motion was denied on 1/14/22 with a detailed minute order which was filed in this action at ROA 64. In the Court's 1/14/22 order, the Court noted that plaintiffs had failed to comply with California Rule of Court Rule 3.350. In this motion, Plaintiffs have again failed to comply with...

Excerpt: ...on must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The arbitration agreement at issue is purported to be part of the Retail Installment Sale Contract (“RISC”) attached as Exhibit 4 to the Chung Declaration. However, the RISC attached as Exhibit 4 is only a one-sided document and the Arbitration Provision referenced on the front of Exhibit 4 is not part of the document. To get around this deficiency, NNA su...

Excerpt: ...es of Action, as the Court finds the same do not arise from protected activity. Pursuant to C.C.P. §425.16(b)(1), “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintif...

Excerpt: ...g the income limits for eligibility for CalFresh benefits. The Department contends that it correctly determined that Petitioner was not eligible for CalFresh benefits. The Department contends that Petitioner does not meet the requirements needed to qualify for a child care (dependent care) deduction. California's CalFresh program enables low-income California households to receive Supplemental Nutrition Assistance Program (SNAP) benefits, previou...

Excerpt: ...l realized that he had served the §998 offer to the wrong plaintiff. Defense counsel immediately telephoned plaintiff and made efforts to resolve this matter informally but plaintiff's counsel took the position that the $500,000 settlement must be paid. An ex parte was then filed on 1/10/23 and plaintiff opposed the ex parte and asked for further time to file a more detailed opposition. As a result, the motion was set for hearing on 2/27/23. Def...

Excerpt: ...otice of motion is defective. Defendants apparently seek to strike “the Complaint,” when the operative pleading is the First Amended Complaint. Furthermore, the notice of motion fails comply with Rule of Court 3.1322(a) because it does not quote in full the portions sought to be stricken or note the cause of action. Nevertheless, because there is only one cause of action charged against the moving defendants and it appears that the moving def...

Excerpt: ...iling (with an acknowledgment of receipt) to a party (§ 415.30), or, if a party is out of state, by any of the preceding means or by first class mailing, requiring a return receipt (§ 415.40). Finally, if service upon a party by these enumerated means proves impossible, service may be effected through publication, which must be authorized by court order. (§ 415.50.) To obtain an order directing service by publication, section 415.50, subdivisi...

Excerpt: ... Hyundai Sonata. HMA demurs to the Second Cause of Action for Violation of Civil Code §1793.2(b) and the Third Cause of Action for Violation of Civil Code §1793.2(a)(3) on the grounds that the complaint fails allege sufficient facts to support these two causes of action. It is the plaintiff's pleading burden to show that the Song-Beverly Act applies to her claims. (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 917). 1. Second Cause of Ac...

Excerpt: ...to (1) Robert A. Lotter, (2) RA Lotter Insurance Marketing, Inc., (3) The Agent Builders Company Insurance Marketing, Inc., (4) The TDS Group Inc. (“Defendants”) The four applications are GRANTED. The within action arises out of four separate Guarantees the Defendants signed relating to a Note for a loan made by CNB to RA Lotter Holdings, Inc. which has defaulted on the loan. Under C.C.P. §483.010, attachment may be issued only if the claim ...

Excerpt: ... of its teacher, Doe 2; and (2) Plaintiff fails to sufficiently allege how the District or any of its employees knew or should have known that Doe 2 had engaged in “unlawfully sexually-related conduct” with minors in the past or that such conduct was continuing. Plaintiff failed to rebut the District's contention that it cannot be vicariously liable for Doe 2's sexual abuse of Plaintiff. Thus, Plaintiff appears to have conceded this point. Th...

Excerpt: ...met and conferred with regard to RFP Nos. 50 and 52 and have reached an agreement to limit these requests to posts about Plaintiff and posts about the harassment. Thus, the motion is GRANTED subject to the stipulated limitations. Plaintiff has WITHDRAWN her request to compel a further response to RFP No. 53. RFP Nos. 40 and 43 seek the cell phone(s) Anderson had in 2020. Defendant Anderson contends his responses are full and complete as he testif...

Excerpt: ...ly tolled prior to the filing of her official complaint on October 1, 2019. “The exhaustion of an administrative remedy is a procedural prerequisite to an action at law, and the failure to exhaust it does not divest a trial court of subject matter jurisdiction. As a result, courts can resort to equitable exceptions to this condition precedent.” (Holland v. Union Pac. R.R. Co. (2007) 154 Cal.App.4th 940, 946). One exception arises when DFEH re...

Excerpt: ...eges that when Starbuck's lease ended, an unidentified Starbucks employee improperly went on the adjacent property and removed the “grease trap.” Plaintiff alleges this was a violation of the lease which only allowed removal of fixtures/equipment Starbucks installed on the leased premises. Based on these facts, plaintiff alleges breach of contract, trespass and conversion. In paragraph 18 of the trespass cause of action, plaintiff alleges the...

Excerpt: ...of or inexcusable neglect. Jeon states he was improperly substitute served at 735 Gramercy Dr., #209, Los Angeles, CA 90005 (“Property”), which is an address Jeon states he, “never used . . . as his address for any purpose whatsoever.” (Jeon Decl. ¶ 5.) Jeon provided his residential address, which is different from the Property. (Jeon Decl. ¶ 5.) Jeon also provided a copy of his proposed answer. (Jeon Decl. ¶ 9, Ex. A.) Having complied...

Excerpt: ...trial and moves for fees under CCP §2033.420, which provides: “(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay t...

Excerpt: ... request must be considered on its own merits. A court may grant a trial continuance only on an affirmative showing of good cause. The Court finds good cause has been shown to grant the motion as Cross-Defendants recently appeared in the action, discovery is ongoing and trial counsel is unavailable. (CRC 3.1332(c)(3), (5), (6).) In addition, no oppositions were filed, thus no prejudice to any party has been shown. Accordingly, the motion is grant...

Excerpt: ...A US, LLC. The arbitration agreement at issue at issue is found at page 5 of the Retail Installment Sale Contract (“RISC”) attached as Exhibit A to the Lambert Declaration. The RISC, dated 4/21/17, is between plaintiffs Angela Earthman and Stoney Earthman (“Plaintiffs”) as “Buyer” and Surf City Auto Group as “Seller-Creditor.” FCA acknowledges that it is not a signatory to the RISC. A nonsignatory seeking to enforce an arbitration...

Excerpt: ...s that it is not a signatory to the RISC. A nonsignatory seeking to enforce an arbitration agreement bears the burden to establish standing to enforce the agreement. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 15.) Nissan has failed to meet this burden. Felisilda v. FCA USA LLC (2020) 53 Cal.App.5th 486 (Felisilda), upon which Nissan relies, is distinguishable. Unlike in Felisilda, the complaint in this case does not allege or otherwise indicate...

Excerpt: ...action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plai...

Excerpt: ...(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.” “If the items appearing in a cost bill appear to be proper ch...

Excerpt: ...seeking an order taxing the memorandum of costs filed by the defendants. The motion for attorney fees is DENIED. The motion to tax costs is GRANTED in part. This case arises from a dispute between various parties as to the use/improvement of a piece of vacant land in Dana Point. A court trial was conducted on multiple dates in 2021 and 2022 resulting in a verdict for the defense on all causes of action. Statements of Decision were entered on 12/1...

Excerpt: ...ty managed by Western National Securities. Based on this alleged contractual relationship, plaintiff asserts that Western acted in contravention of his rights as a tenant by preventing him from entering the apartment. Plaintiff alleges this gives rise to the causes of action for (1)Breach Of Contract, (2) Breach Of Covenant Of Good Faith And Fair Dealing, (3) Breach Of Covenant Of Quiet Enjoyment Of The Premises, (4) Intentional Infliction Of Emo...

Excerpt: ...sonably subject to dispute under Evidence Code section 452(h). Defendant Kidder also asserts that courts routinely take judicial notice of documents incorporated into a complaint. Evidence Code section 452, subdivision (h) permits judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” “It is int...

Excerpt: ...the prevailing party in this action. (Civ. Proc. Code §§ 1032.) As the prevailing party in a civil rights action, Plaintiff is entitled to recovery of attorney fees and expert witness fees. (Civ. Proc. Code § 1033.5(10)(B); Civ Code. §§ 52 and 54.3; 42 U.S.C.A. § 12205.) “[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate...

Excerpt: ...hed by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. After an initial prima facie showing of discrimination from the employee (which is not at issue in this case), the employer, as the moving party, has the burden to present admissible evidence showing either that: (1) one or more elements of plaintiff's prima facie case is lacking; or (2) the adverse employment action was based upon legitimate, nondiscr...

Excerpt: ... party's statement of compliance, the demanding party may move for an order compelling compliance. (Code Civ. Proc., § 2031.320(a).) The Court deems the motion moot as Aptim's opposition shows that it has produced all documents responsive to Request No. 23. (See Miner Decl. [ROA 619], ¶¶ 2, 5-6, 8, Exs. A and C; Rankovich Decl. [ROA 615], ¶¶ 3-6.) While Plaintiff contends that 1,740 closeout packages exist (or 1,793 based on what is stated i...

Excerpt: ... shall be made a sufficient time in advance of the time limit for the completion of discovery (the 15th day before the date initially set for trial) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. (Code Civ. Proc. §§ 2034.610, subd. (b) and 2024.020, subd. (a).) Under exceptional circumstances, the court may permit the motion to be made at a later time. (Code Civ. Proc., § 2034.610, subd. (...

Excerpt: ...act and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Plaintiff is a title insurance company that issued a policy of title insurance to the Millers in connection with their purchase of the subject Carnation property in 2008. At the time of issuing the policy, plaintiff erred and did not address the existence of the Wells Fargo home equity line of credit deed of trust (HELOC ...

Excerpt: ... Motion to Strike filed by HOA as to Complaint filed by plaintiff Anthony Aulisio, Jr. 4. Demurrer filed by Feldsott as to Complaint filed by plaintiff Anthony Aulisio, Jr. 5. Demurrer filed by Austin Nichter as to Complaint filed by plaintiff Anthony Aulisio, Jr. 6. Motion to Strike filed by defendant Austin Nichter as to Complaint filed by plaintiff Anthony Aulisio, Jr. Special Motion To Strike [SLAPP] The Special Motion To Strike Portions of P...

Excerpt: ...s set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under (Evidence Code §§ 451 or 452.) As to causes of action Nos. 1-16, Defendants bring their Demurrer on the bases that Plaintiff is judicially estopped from pursin...

Excerpt: ...tate parks in order to provide ready access thereto by the public and to provide means of ingress and egress to highways and roads across state parks from lands separated from such highways and roads by state parks, and for that purpose may enter into contracts or agreements with cities, counties, and other political subdivisions of the State and with other state agencies or with persons, firms or corporations for the acquisition, construction, a...

Excerpt: ...omplaint on the basis that they fail to state sufficient facts to constitute COA against Defendants. (Civ. Proc. Code § 430.10(e).) 1) COA No. 2 – Intentional Misrepresentation “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable relianc...

Excerpt: ...ain (Civ. Proc. Code § 430.10(f)); and 3) Plaintiff has failed to join indispensable parties (Civ. Proc. Code §§ 430.10(a) and (d)). 1) COA No. 1 – Breach Of Civil Code § 2924m Civ. Code § 2924m provides means and requirements for the sale of property containing between one to four residential units through a foreclosure sale. For purposes of this matter, Plaintiff has alleged he is an “eligible tenant buyer” and provided a declaration...

Excerpt: ...separate pleading. (CRC 3.1354(b); Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8-9—court did not abuse its discretion in refusing to consider objections not filed separately as required by rule). The City's evidentiary objections are OVERRULED. Allegations in the Complaint: Plaintiff's complaint asserts causes of action for premises liability and negligence based on general negligence and dangerous condition of public pro...

Excerpt: ...fendants Tesla, Inc., and Tesla Energy Operation, Inc. demur generally to all seven causes of action in the complaint. First and second causes of action for intentional and negligent misrepresentation, respectively. At the previous hearing of August 8, 2022, the court had issued a tentative ruling sustaining the demurrer to the first and second causes of action based on the economic loss rule. (See Food Safety Net Services v. Eco Safe Systems USA...

Excerpt: ...f. In demurring, cross-defendant has asked for judicial notice of documents, including a minute order, that have been filed in this case. A request for judicial notice is not needed for the Court to review matters already on file in the case. In opposing the demurrer, the cross-complainants have submitted a declaration by counsel with exhibits consisting of extraneous matter recently produced by cross-defendant in discovery. The Court cannot cons...

Excerpt: ... (“Aptim”) employees, David Gunn, Mark Matten, Jonathan Hunt and Sonjay Redway, to appear and produce documents at deposition is moot as the four witnesses have appeared for deposition. (Miner Declaration in Support of Opposition, ¶ 2; Reply at 1:28- 2:3.) The Court finds that sanctions are not warranted against either party. (C.C.P. § 2025.450(g)(1).) The correspondence shows that defense counsel was engaging in meet and confer efforts to ...

Excerpt: ... Amended Cross-Complaint This motion originally came on for hearing on August 8, 2022. In its ruling, the Court indicated that The One Solution had failed to comply with the procedural requirements of Rule 3.1324(a). The Court permitted The One Solution an opportunity to submit further briefing. (See ROA 549.) The One Solution submitted further briefing on August 16, 2022, as requested by the Court. Based on the moving papers and the further brie...

Excerpt: ...party is likely to sustain if the injunction is denied and the harm the opposing party is likely to suffer if the injunction is granted. (White v. Davis (2003) 30 Cal.4th 528, 554; Teamster Local 856 v. Priceless, LLC (2003) 112 Cal.App.4th 1500, 1509.) The moving party bears the burden of presenting facts establishing that it is reasonably probable that the moving party will prevail on the merits. (Fleishman v. Superior Court (2002) 102 Cal.App....

Excerpt: ... in the case, despite two prior orders specifically addressing such conduct. (See M.O.s of 10/18/21 and 4/18/22.) As previously noted, personal attacks on opposing counsel are unprofessional and inappropriate. (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 130, 132–134.) Yet Plaintiff's Opposition to this motion again refers to defense counsel having acted “with their usual, deceptive, and dishonest practices.” (See ROA 654 at pp. 2 and 5...

Excerpt: ...e motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” “In the anti-SLAPP context, ‘good cause' requires ‘a showing that the specified discovery is necessary for the plaintiff to oppose the [anti-SLAPP] motion and is tailored to that end.' [Citation.]” (Balla v. Hall (2021) 59 Cal.App.5th 652, 692 (Balla).) (emphasis added.) Here, Plaintiffs hav...

Excerpt: ...or violation of Civ. Code § 5105. That code section in relevant part states: “(a) An association shall adopt operating rules in accordance with the procedures prescribed by Article 5 (commencing with Section 4340) of Chapter 3, that do all of the following: (1) Ensure that if any candidate or member advocating a point of view is provided access to association media, newsletters, or internet websites during a campaign, for purposes that are rea...

Excerpt: ... used by Defendant's technicians. This would include, for example, repairs for things such as flat tires, broken tail lights, or windows that won't go up/down, none of which are related to the specific issues which Plaintiff sought to be repaired on his Vehicle. The definition of “TRANSMISSION DEFECT” also contains “include, but not limited to,” which explicitly does not limit the defects as to those allegedly suffered by the Vehicle. Pla...

Excerpt: ...the matters on which examination is requested, and the deponent must designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent. (Code Civ. Proc. § 2025.230.) Code of Civil Procedure Section 2025.480 provides, in part: “(a) If a deponent fails to ...

Excerpt: ... unauthorized writ of attachment. “An attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.” § CCP 483.010. Here, the complaint asserts a tort claim within unknown damages. Furthermo...

Excerpt: ...aint by plaintiff Colleen Windsor (“plaintiff”) is SUSTAINED WITH 30 DAYS LEAVE TO AMEND. Individual defendants demur to the third cause of action for hostile work environment (Gov. Code §§12923 & 12940(j)) pled in plaintiff's complaint. A demurrer tests the legal sufficiency of the pleading, accepting as true the material facts properly pleaded, but not assuming the truth of contentions, deductions or conclusions of fact or law. (Brown v. ...

Excerpt: ...terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Civ. Proc. Code § 2031.310(i).) The court's 04/05/21 order in relevant part states: “No. 16 – This request is granted as to all non-privileged documents, including emails and ESI. Plaintiff is ordered to produce a list of relevan...

Excerpt: ...force an arbitration agreement bears the burden to establish standing to enforce the agreement. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 15.) FCA has failed to meet this burden. Felisilda v. FCA USA LLC (2020) 53 Cal.App.5th 486 (Felisilda), upon which FCA relies, is distinguishable. Unlike in Felisilda, the complaint in this case does not allege or otherwise indicate that the sales contract between Plaintiff and the nonparty dealer is the so...

Excerpt: ... (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124.) Where plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (CCP § 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287 (citing text) (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826)...