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: ...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: ... 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: ... 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: ...'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: ...). (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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...