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: ...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: ... 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: ...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: .... . . 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: ...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: ...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: ...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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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...