Excerpt: ...ter “Plaintiffs”) are DENIED. Discovery, Generally In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (“Sinaiko”) (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, that is relevant to ...

Excerpt: ... motion for a new trial finds both its source and its limitations in the statutes (Malkasian v. Irwin (1964) 61 Cal.2d 738, 745), the procedural steps prescribed by law for making and determining such a motion are mandatory and must be strictly followed (citations).” (Mercer v. Perez (1968) 68 Cal.2d 104, 118.) A party intending to move for new trial “shall file with the clerk and serve upon each adverse party a notice of his or her intention...

Excerpt: ...igation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding.” Subdivision (c) provides that: “The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.” Intervention is mandatory or permissive. A nonparty has a right under Code of Civil Procedure section 387(b) to intervene in a...

Excerpt: ...nts (2007) 148 Cal.App.4th 390, 402 (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, 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 ...

Excerpt: ...naiko”) (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, 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 ...

Excerpt: ...discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, 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 discovery of admissible evidence. [Citati...

Excerpt: ...summary judgment on the following grounds: 1. There is no triable issue of material fact as to the summary judgment sought and the moving parties are entitled to summary judgment as a matter of law pursuant to California Code of Civil Procedure § 437c; 2. The cause of action for Medical Malpractice against defendants fails as a matter of law because plaintiff cannot establish that defendants breached the applicable standard of care as to the car...

Excerpt: ...Plaintiffs' Sixth Cause of Action for Fraudulent Inducement – Concealment fails to state facts sufficient to support a cause of action against FCA US and is barred by the economic loss rule. (C.C.P. § 430.10(e).) (ROA 129 at p. 2.) “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fa...

Excerpt: ...unds for issuance of the order. (Cal. Rules Ct., Rule 3.1110(a).) The court generally cannot grant different relief, or relief on different grounds, than stated in the notice of motion. (See People v. American Sur. Ins. Co., supra, 75 Cal.App.4th at p. 726; Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124; compare Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277-1278, [holding the court had discretion to rule on grounds not stated in motio...

Excerpt: ...AC”). For the following reasons, the Demurrer is OVERRULED. Request for Judicial Notice The Pham Defendants request the court to take judicial notice of the following documents: 1. Preliminary Hearing Transcript from the criminal trial against Stephen Scarpa is attached as Exhibit D. 2. Traffic collision Report related to the incident is attached as Exhibit E. 3. Jury verdict form from Stephen Scarpa criminal trial is attached as Exhibit F[.] 4...

Excerpt: ... the First Cause of Action for Fraud (Intentional Misrepresentation/False Promise/Concealment), the Second Cause of Action for Rescission of Written Contracts Pursuant to Civil Code §1689(b), and the Third Cause of Action for Equitable Indemnity as to Safaei. For the following reasons, the Demurrer is SUSTAINED WITH FIFTEEN (15) DAYS LEAVE TO AMEND as to all causes of action (One, Two, Three, and Four) for Red Rock Dental & Wellness, P.C. For th...

Excerpt: ...TAINED IN PART. Request for Judicial Notice Defendants request the court to take judicial notice of the following: 1) Grant Deed for the property located at 24982 Ravenswood Ave., Lake Forest CA, 92630, recorded on or about 11/20/2012 (a true and correct copy is attached hereto as Exhibit 1); 2) Plaintiffs' First Amended Verified Complaint filed on or about 11/22/2021 (a true and correct copy is attached hereto as Exhibit 2); 3) Complaint, filed ...

Excerpt: ...ty is entitled as a matter of right to recover certain costs. (Civ. Proc. Code § 1032(b).) If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist...

Excerpt: ...sons, the motion to compel Defendants to provide supplemental responses without objections to the Special Interrogatories (the “Motion”) is GRANTED IN PART and DENIED IN PART. Discovery, Generally In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with t...

Excerpt: ...Khechoom Decl. ¶ 2, Ex. A.) The Residential Listing Agreement contains the following provisions: 15. ATTORNEY FEES: In any action, proceeding or arbitration between Seller and Broker to enforce the compensation provisions of this Agreement, the prevailing Seller or Broker shall be entitled to reasonable attorney fees and costs from the non-prevailing Seller or Broker, except as provided in paragraph 19A. 19. DISPUTE RESOLUTION: A. MEDIATION: Sel...

Excerpt: ...a Rule of Court 3.1320 requires: “[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint . . . or to specified causes of action or defenses.” (Cal. R. Ct., Rule 3.1320). “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint . . . are taken. Unless it does so, it may be disregarded.” (Code Civ. Proc. § 430.60.) In this case, the court...

Excerpt: ... (See Cal. Rule Ct., Rule 3.1300 [stating “[n]o paper may be rejected for filing on the ground that it was untimely submitted for filing” and “[i]f the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”] “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accep...

Excerpt: ...electronic filing or services. For the following reasons, Plaintiff's motion is DENIED. On April 7, 2021, this matter came on for trial. (See ROA 594.) The jury deliberated, found that Defendant was not negligent in the maintenance of the subject property, and issued a verdict in favor of Defendant. (See ROA 658, 660.) Judgment was entered on May 19, 2021. (ROA 675.) Notice of Entry of Judgment was served on Plaintiffs' counsel via electronic mai...

Excerpt: ... Contractors (“JJS”), and John Schroeder (“Schroeder”). For the following reasons, Accent's motion for summary judgment against Plaintiff Larson and Plaintiff Zenith (the “Motion for Summary Judgment”) is DENIED. For the following reasons, Accent's motion for summary adjudication against Saddleback, JJS, and Schroeder is DENIED. Accent moves for the following orders: 1. An order granting Accent summary judgment on the complaints filed...

Excerpt: ...lowing reasons, Plaintiff's unopposed motion is GRANTED. Civil Procedure Code Section 473(a)(1) provides that “[t]he court may . . . in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” “[T]he court's discretion will usually be exercised liberally to permit amendment of the pleadings.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 [citations om...

Excerpt: ...ation of Labor Code Section 1102.5 – Defect or misjoinder of parties. Cal. Code of Civ. Proc. (“CCP”) § 430.10(d). Uncertain. CCP §430.10(f). - Second Cause of Action for Retaliation in Violation of Labor Code Section 6310 – Defect or misjoinder of parties. CCP § 430.10(d). Uncertain. CCP § 430.10(f). - Third Cause of Action for Wrongful Termination – Defect or misjoinder of parties. CCP § 430.10(d). Uncertain. CCP § 430.10(f). - ...

Excerpt: ...ave of court. (See Cal. Rules Ct., Rule 3.1113(d) [stating “[e]xcept in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages”]; see also (Cal. Rule Ct., Rule 3.1113(e) [stating “[a] party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum”].) The cour...

Excerpt: ...d fails to state facts sufficient to constitute a cause of action.” (ROA 23.) “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not ...

Excerpt: ...judgment/adjudication motions sought by plaintiffs: [W]here the plaintiff has also moved for summary judgment—or, as in this case, summary adjudication—that party has the burden of showing there is no defense to a cause of action. [Citation.] That burden can be met if the plaintiff has proved each element of the cause of action entitling the party to judgment on that cause of action. [Citation.] If the plaintiff meets this burden, it is up to...

Excerpt: ...s, the unopposed Motions are GRANTED. Discovery and Sanctions, Generally In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (“Sinaiko”) (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, th...

Excerpt: ...d L. Henry against Defendants CATS Communication and Russ McCullough for a temporary restraining order, injunction, breach contract and fiduciary duties, and fraud, in relation to a corporate stock purchase and lending dispute. (ROA 2. [Complaint].) On April 1, 2009, Plaintiff amended the Complaint to name Doe 7 as Joseph Dawson. (ROA 174 [Amendment to Complaint].) Judgment was entered in favor of Dawson on May 10, 2010, when a demurrer was susta...

Excerpt: ...'s late-filed opposition. (Cal. Rules Ct., Rule 3.1300(d); Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614 [overruled on other grounds in Colmenares v. Braemar Country Club, Inc. (1999) 29 Cal.4th 1019].) Here, Plaintiff filed and electronically served its opposition eight court days before the hearing. Defendant, however, filed a Reply substantively addressing each issue raised in the Opposition, waiving any objection based on timeliness. “A...

Excerpt: ...ef can be granted; 2. Plaintiffs Second Cause of Action for Premises Liability, Count Three Dangerous Condition of Public Property, fails to state a cause of action for which relief can be granted.” (ROA 22.) The Complaint alleges two causes of action: (1) Cause of Action One alleges General Negligence (ROA 22 at p. 4); (2) Cause of Action Two alleges Premises Liability under Negligence, Willful Failure to Warn (Civil Code section 846), and Dan...

Excerpt: ...leading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc. § 436.) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc. § 431.10(b).) A motion to strike can also strike ...

Excerpt: ... Code § 452(d), (h); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.) The complaint names Defendant in the following causes of action: (1) The First Cause of Action for Setting Aside Trustee Sale; (2) The Second Cause of Action for Cancellation of Deed; and (3) The Fourth Cause of Action for Breach of Agreement. (ROA 2.) Requests for Judicial Notice Defendant requests the court to take judicial notice of the following: 1. Dee...

Excerpt: ...). (ROA 151, 333.) The First Cause of Action for Breach of Contract was the sole cause of action containing Sealegs in the SAC. (ROA 151.) After taking the matter under submission, on November 19, 2021, the court SUSTAINED WITHOUT LEAVE TO AMEND the First Cause of Action for Breach of Contract in the SAC as to SeaLegs. (ROA 334.) On December 7, 2021, Plaintiff filed the TAC, that included SeaLegs in the First Cause of Action for Breach of Contrac...

Excerpt: ... evidence. (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1131.) However, this burden shifts when a properly executed proof of service has been filed. Filing a proof of service that complies with the applicable statutory standards creates a rebuttable presumption that service was proper. (Floveyor Int'l, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795; American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4...

Excerpt: ...D IN PART. A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc. § 436.) A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with th...

Excerpt: ...ay, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020(a); Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586.) “Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” (Code Civ. Proc., § 2024.020...

Excerpt: ...ion for trial preference must be “supported by a declaration of the moving party that all essential parties have been served with process or have appeared.” (Code Civ. Proc., § 36(c)(1).) In this case, based on the record, the court finds no declaration of service of process is necessary, as both named defendants have been served and appeared in the action. Motions for Trial Preference Code of Civil Procedure Section 36 (“Section 36”) pr...

Excerpt: ...cord indicates that Respondent filed and served the instant Motion for Stay, or in the alternative, Demurrer and its accompanying papers on December 16, 2021. (ROA 27, 29, 31, 34.) Respondent's moving papers set the hearing date for the Motion/Demurrer for January 19, 2022. (See ROA 34.) The court rescheduled the hearing date for January 26, 2022. (See id.; Strauss Reply Decl. ¶¶ 6-8.) Petitioner Lenore Albert (“Petitioner”) timely filed an...

Excerpt: ...rwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 ...

Excerpt: ...uments as follows: NARM requests this Court take judicial notice of (1) its ruling granting NARM's motion for judgment on the pleadings, in part, as to Defendant, Cross-complainant, and Cross-defendant 360 Construction Group, Inc. (“360 Construction”); (2) the case docket; (3) 360 Construction's registration with the California Secretary of State; and (4) NARM Corporation's registration with the California Secretary of State, attached as indi...

Excerpt: ...ing reasons, the unopposed motion is GRANTED IN PART and DENIED IN PART. To seal a record, the moving party must file a motion for such relief, along with a memorandum and a declaration containing facts sufficient to justify the sealing. (CRC 2.551(b)(1).) The motion must be served on all parties, and unless the court orders otherwise, a complete copy of the document must be served on all other parties that already possess copies, along with the ...

Excerpt: ...dmission of attorneys pro hac vice in California. An attorney who is a member in good standing of the bar of another state who has been retained to appear in a particular cause pending before a court of this state may, “in the discretion of such court” be permitted to appear as counsel pro hac vice. (Cal. Rules of Court, rule 9.40(a).) No person is eligible to appear pro hac vice if the person is a California resident, regularly employed in C...

Excerpt: ...2 (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, 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 ...

Excerpt: ...er 8, 2021, Plaintiff Antonio Arroyo (“Plaintiff”) posted jury fees. (ROA 108.) On November 9, 2021, Defendant filed an ex parte application to shorten time for the court to hear the Motion because the trial date at that time was on November 15, 2021, and the Motion was scheduled to be heard on January 12, 2022 (after the scheduled trial date). (ROA 115.) Defendant also filed an ex parte application to continue the trial date 120 days. (ROA 1...

Excerpt: ...re 1281, the California Supreme Court described arbitration agreements: …[a] written agreement to submit to arbitration ... a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. Section 1281.2 provides in relevant part: On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party t...

Excerpt: ...f Dean Chikami, Plaintiff Jeri Chikami, and Plaintiff Steven Hensley (collectively, hereinafter “Plaintiff”). For the following reasons, the motion for summary judgment/adjudication (collectively, the “Motion”) is GRANTED IN PART and DENIED IN PART; the motion for summary adjudication is GRANTED as to only the Third and Fourth Causes of Action; the remainder of the Motion is DENIED. As an initial matter, this court exercises its discretio...

Excerpt: ... parties, with the proposed First Amended Cross-Complaint attached as Exhibit E in ROA 299. Civil Procedure Code Section 473(a)(1) provides that “[t]he court may . . . in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” “[T]he court's discretion will usually be exercised liberally to permit amendment of the pleadings.” (Howard v. County of San Diego (2010) 184 C...

Excerpt: ...iberally to permit amendment of the pleadings.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 [citations omitted].) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. (Id. [citation omitted].) The Court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other p...

Excerpt: ...zalez's Complaint (“Motion Number Two”); and (3) Plaintiffs Leticia Lopez and Pedro Avila's Complaint (“Motion Number Three”). “The proposition that a trial court may construe a motion bearing one label as a different type of motion is one that has existed for many decades. The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words.” (Sole Energy Co. v....

Excerpt: ...HOUT LEAVE TO AMEND as to the First and Third Causes of Action. The court's ruling sustaining without leave to amend the Second Cause of Action for NIED in the First Amended Complaint (“FAC”) forecloses the viability of the Second Cause of Action for NIED in the FAC. Thus, based on the court's ruling here on the First and Third Causes of Action, as well as the court's previous ruling on sustaining without leave to amend the Second Cause of Ac...

Excerpt: .... . . in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” “[T]he court's discretion will usually be exercised liberally to permit amendment of the pleadings.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 [citations omitted].) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. (I...

Excerpt: ... Act, attached as Exhibit B to the Declaration of Cameron N. Verdi. (ROA 101, 105.) Defendant requests that the Court take judicial notice of the default judgment entered in Verdi v. Matrix Solutions, LLC, No. 30-2017-00922930-CU-BC-CJC (Orange County Superior Court). (ROA 48, 50.) In Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCourt (2001) 91 Cal.App.4th 875, 882 (“Lockley”) (internal quotation marks omitted), the appellate co...

Excerpt: ...ng Plaintiffs' First Amended Complaint was decided on November 19, 2021 (ROA 360), rendering this motion MOOT. Defendant Saddleback Memorial Medical Center to give notice. Motion to Deem RFAs Admitted (ROA 357) Defendant Gate Three Healthcare, LLC dba Palm Terrace Healthcare and Rehabilitation (“Defendant Gate Three Healthcare”) moves to deemed admitted by Plaintiffs Doreen Lohnes, Jesse Lohnes, Alexander Delfsage Mayla Lohnes, Mariah Daages ...

Excerpt: ...or sanctions is DENIED. Motion Two Plaintiff moves to compel responses without objections to Form Interrogatories Set One and for Monetary Sanctions against Defendant Lisa Zawistoski (“Motion Two”). (ROA 38.) For the following reasons, Motion Two is DENIED AS MOOT, and the request for sanctions is DENIED. Motion Three Plaintiff moves to compel responses without objections to Special Interrogatories Set One and for Monetary Sanctions against D...

Excerpt: ...128.5 provides the trial court with a mechanism to sanction certain bad faith actions and tactics.” (CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1000 [footnote omitted].) “A motion for sanctions, like a motion for attorney fees, is a matter collateral to the underlying litigation. [Citation.]” (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1315. Section 128.5 provides: (a) A trial court m...

Excerpt: ...on November 17, 2021. (See ROA, 11/17/21 Minute Order.) Although the court posted a tentative ruling for the motion, the court took the matter under submission. (See ROA 55.) After considering the arguments of all parties, both written and oral, and the evidence presented, the court continued the motion to give the parties an opportunity to file supplemental briefs. (ROA 57, 11/29/21 Minute Order.) Although Plaintiff contends that he did not rece...

Excerpt: ...N PART. Motion Two (ROA 237) Reliant moves to quash or modify the deposition subpoena concerning THINKOM Person Most Knowledgeable issued by Plaintiff. (ROA 237 (“Motion Two”).) Plaintiff filed an Opposition (ROA 272). For the following reasons, the Motion to Quash is GRANTED IN PART and DENIED IN PART with MODIFICATIONS. Motion Three (ROA 241) Reliant moves to quash or modify the deposition subpoena concerning James Treinen issued by Plainti...

Excerpt: ...rally Code of Civil Procedure Section 437c(p)(1) provides: A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross- defendant to show that a triable issue of one or mor...

Excerpt: ...5(b)(3), the court continued the hearing/ruling on the Demurrer to be heard concurrently with the Motion to Strike on December 8, 2021, at 10:00 a.m., Department N15. Therefore, the tentative rulings for both the Demurrer and the Motion to Strike are included below. Demurrer to Amended Complaint Defendant Casa Pacifica Nursing Center, LLC dba Cambridge Healthcare Services, LLC (collectively, hereinafter “Defendants”) demur to the First Amende...

Excerpt: ...nal filing date of May 26, 2020, and that Defendant's motion addresses the claims as pled in the FAC, the court shall apply this motion for summary judgment to the FAC. A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is s...

Excerpt: ...lowing reasons, the unopposed motion is GRANTED. Request for Judicial Notice Defendant requests the court to take judicial notice of the following: 1. Exhibit A: A true and correct copy of the deed of trust, recorded against the subject property in the Official Records of Orange County on October 18, 2005 as instrument no. 2005000834201. 2. Exhibit B: A true and correct copy of the assignment of deed of trust to BAC Home Loans Servicing LP, fka C...

Excerpt: ...ervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following: (1) Joining a plaintiff in claiming what is sought by the complaint. (2) Uniting with a defendant in resisting the claims of a plaintiff. (3) Demanding anything adverse to both a plaintiff and a defendant. (c) A nonparty shall petition the court for leave to intervene by noticed motion or ex ...

Excerpt: ...ntiffs' surrender of the vehicle plus a motion for attorney's fees, costs and expenses in which Plaintiffs would be the prevailing party for purposes of the motion. (Id.) Specifically, the record indicates that: WITH REGARD TO FEES, COSTS, AND EXPENSES, PLAINTIFF SHALL BE ENTITLED TO FILE A MOTION AS WELL AS A MEMO OF COST. THAT MOTION AND MEMO OF COST SHALL BE FILED WITHIN 120 DAYS OF TODAY'S DATE. PLAINTIFF WILL BE DEEMED A PREVAILING PARTY IN ...

Excerpt: ...evailing party and she is entitled to recover reasonable attorney's fees and costs. (Bradshaw Dec., Ex. A.) Civil Code section 1794, subdivision (a) states: “Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” Civil Code Section 1794(d) (“Secti...

Excerpt: ...buse and Neglect, fails to state facts sufficient to constitute a cause of action, and 2. The First Cause of Action of plaintiffs' First Amended Complaint, for Elder Abuse and Neglect, is uncertain because it cannot be ascertained from the allegations contained therein on what facts plaintiffs base their claims for relief. (ROA 40.) “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 2...

Excerpt: ... by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen ...

Excerpt: ...d such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255 [citation omitted].) “Thus, the provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the determination of actions on their merits.” (Id. [citation and internal quotation ...

Excerpt: ... state, a court rule or an order of the court. (Code Civ. Proc., § 436.) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10 (b).) A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil P...

Excerpt: ...tion has been filed affecting title or right to possession of the real property described in the notice.” (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647 [citation and internal quotation marks omitted].) The notice may be recorded by any party who “asserts a real property claim” in the action. (§ 405.20.) “A lis pendens clouds title until the litigation is resolved or the lis pendens is expunged, and any party acquiring an interest...

Excerpt: ...ction for Setting Aside Trustee Sale; (2) The Second Cause of Action for Cancellation of Deed; and (3) The Fourth Cause of Action for Breach of Agreement. (ROA 2.) Requests for Judicial Notice Defendant requests the court to take judicial notice of the following: 1. Deed of Trust Recorded as instrument number 2018000474058 [(“Item 1”)]. 2. Substitution of Trustee recorded on March 19, 2020 as instrument number2020000123934 [(“Item 2”)]. 3...

Excerpt: ...f his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this in...

Excerpt: ...xpensively meritless lawsuits that threaten free speech on matters of public interest. When it applies, section 425.16 permits a defendant to file a special motion to strike a cause of action (sometimes referred to as an anti-SLAPP motion) within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. (§ 425.16, subd. (f).)” (Newport Harbor Ventures, LLC v. Morris Cerullo World Evang...

Excerpt: ...t the court to take judicial notice of the following: 1. Complaint for Case No. 30-2019-01118696-CU-MM-CTL attached as Exhibit A hereto and to the Notice of Lodgment; 2. Complaint for Case No. 30-2019-01110346-CU-PO-CJC attached as Exhibit B hereto and to the Notice of Lodgment; 3. Stipulation to Consolidate Case No. 30-2019-01118696-CU-MM-CTL and Case No. 30-2019-01110346-CU-PO-CJC attached as Exhibit C hereto and to the Notice of Lodgment; 4. D...

Excerpt: ...demurrer is SUSTAINED WITH FIFTEEN (15) DAYS LEAVE TO AMEND as to the Second, Third, Fourth, and Fifth Causes of Action. “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal s...

Excerpt: ...y Act provides litigants with the right to broad discovery. In general, 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 discovery of admissible evidence. [Citation.] In establishing the statutory me...

Excerpt: ...n, Generally A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has plea...

Excerpt: ...on for Conversion, the Second Cause of Action for Intentional Fraud, and the Third Cause of Action for Negligent Misrepresentation. The Motion to Strike is DENIED AS MOOT, in light of the court's ruling on the Demurrer. “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in...

Excerpt: ...p.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) A demurrer is limited to the ope...

Excerpt: ...ey, or both to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay…. (b) For purposes of this section: (1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere fili...

Excerpt: ...ere dismissed without prejudice on October 4, 2021. (ROA 41.) “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the f...

Excerpt: ...nal witnesses. For the following reasons, Plaintiff's motion is GRANTED in part and DENIED in part. Discovery, Generally In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regardin...

Excerpt: ...factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal...

Excerpt: ....320(a).) The motion must also specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. (Code Civ. Proc., § 2032.310(b).) “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839 [wher...

Excerpt: ...ary judgment is DENIED. For the following reasons, Defendants' motion for summary adjudication is DENIED. Summary Judgment and Summary Adjudication, Generally A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. It may do this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a ...

Excerpt: ...section 877.6, which provides, in pertinent part: (a) . . . (2) [A] settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order. The application shall indicate the settling parties, and the basis, terms, and amount of the settlement. The notice, application, and proposed order shall be given by certified mail, return receipt requested, o...

Excerpt: ...Cal.App.4th 875, 882 (“Lockley”) (internal quotation marks omitted), the appellate court provided an overview of judicial notice: Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. [Citation.] The court may in its discretion take judicial notice of any c...

Excerpt: ...wing reasons, the Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND. The Demurrer Defendant demurs on the following grounds: 1. The fourth cause of action for fraudulent concealment fails to state a cause of action against DPR. (Code of Civ. Proc.,§ 430.10, subd. (e).) This claim fails because: A. Government Code section 818.8 immunizes public entities from fraud claims; and B. It is not based on statute. 2. The fifth cause of action for unfair...

Excerpt: ...plaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4...

Excerpt: ...rike is GRANTED WITH FIFTEEN (15) DAYS LEAVE TO AMEND. The Demurrer In the Demurrer, Defendant states: AHM demurs to Plaintiff's Seventh Cause of Action for Conversion on the following grounds: under Code of Civil Procedure section 430.10, subdivisions (e) and (f), because the Complaint fails to state facts sufficient to constitute a claim against AHM and the cause of action is uncertain, ambiguous, and unintelligible. This cause of action is als...

Excerpt: ...des out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney's fees” means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or ...

Excerpt: ...nt Huntington Beach Chrysler Dodge Jeep Ram. For the following reasons, the motion is DENIED as to Defendant FCA. Arbitration Agreements In St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1194 (internal quotation marks omitted), citing to Code of Civil Procedure 1281, the California Supreme Court described arbitration agreements: …[a] written agreement to submit to arbitration ... a controversy thereafter arising is...

Excerpt: ...r to the FAC is SUSTAINED WITHOUT LEAVE TO AMEND as to the Second Cause of Action. Defendant's demurrer to the FAC is SUSTAINED WITH FIFTEEN (15) DAYS LEAVE TO AMEND as to the First and Third Causes of Action. The Demurrer “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained...

Excerpt: ...e as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with res...

Excerpt: ...�Motion”) is GRANTED. Code of Civil Procedure Section 415.20 provides: (a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United...

Excerpt: ...ealthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, 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 mo...

Excerpt: ... Leasing, Inc., (d) Modular Transport Specialists, Inc., (e) Phillip O. Hamilton and (f) Rebecca G. Manandic, all of whom are represented by the same attorney, Crabtree Schmidt. Subsequently, on August 12, 2021, a Notice of Stay of Proceedings was filed with respect to Defendant Rebecca G. Manandic. On October 1, 2021, Plaintiff Fidelity and Deposit Company of Maryland filed a Notice of Withdrawal of Motion for Summary Judgment, or, in the altern...

Excerpt: ...ertinent part: (a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter ...

Excerpt: ...iko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (internal quotation marks omitted), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, 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 a...

Excerpt: ...ROA 51.) In St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1194 (internal quotation marks omitted), citing to Code of Civil Procedure 1281, the California Supreme Court described arbitration agreements: …[a] written agreement to submit to arbitration ... a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. Section 1281.2 provides...

Excerpt: ...fice of Cantrell, Green, Pekich, Cruz & McCourt (2001) 91 Cal.App.4th 875, 882 (“Lockley”) (internal quotation marks omitted), the appellate court provided an overview of judicial notice: Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. [Citation.] The...

Excerpt: ...d), the appellate court described the civil discovery process: The Civil Discovery Act provides litigants with the right to broad discovery. In general, 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 t...

Excerpt: ... production (ROA 24) from Plaintiff Eduardo Anaya and Plaintiff Danny Melendez (collectively, hereinafter, “Plaintiffs”). For the following reasons, the motions to compel responses to form and special interrogatories, and to compel production are each GRANTED. Discovery, Generally In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402 (“Sinaiko”) (internal quotation marks omitted), the app...