Excerpt: ...ourt may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied b...

Excerpt: ...t such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.” (Emphasis supplied.) Code Civ. Proc. § 428.50 pro...

Excerpt: ... Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Additionally, a defendant may demurrer on the grounds that the pleading is uncertain. Code Civ. Proc., § 430.30, subd. (f). The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” Postley v. Harvey (1984) 153 Cal.App.3d 280, 286. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conc...

Excerpt: ...not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459. Unruh-Haxton v. Regents of Univ. of California (2008) 162...

Excerpt: ..., jointly and severally, against Plaintiff and Counsel. The portion of the Motion which seeks an order compelling production is DENIED, however, as Defendant failed to demonstrate “good cause” for the same. C.C.P. §2025.410(b)(1). Pursuant to Code of Civil Procedure §2025.450(a), “[i]f, after service of a deposition notice, a party to the action…without having served a valid objection under Section 2025.410, fails to appear for examinat...

Excerpt: .... Thus, Defendants' motion is timely. In Levine v. Smith (2006) 145 Cal.App.4th 1131, the court stated: “Statements of damages are used only in personal injury and wrongful death.... In all other cases, when recovering damages in a default judgment, plaintiff is limited to the damages specified in the complaint. (Citation omitted.)” Id., at 1136-1137. A default judgment in excess of the amount specifically demanded in the complaint is void as...

Excerpt: ...connected with a judicial proceeding before it, in every matter pertaining thereto.' [Citations.]” People ex rel. Dept. of Corporations v. SpeeDee Oil Change System, Inc. (1999) 20 Cal.4th 1135, 1145. “A court may disqualify an attorney upon ‘“a showing that disqualification is required under professional standards governing avoidance of conflicts of interest or potential adverse use of confidential information.”' [Citation]” Havasu L...

Excerpt: ... WCP IIA, WCP IIB, collectively, “WCP Entities”) for an Award of Attorneys' Fees in the amount of $4,430,905.50 and Non-statutory Costs in the amount of $32,518.47, for a total of $4,463,423.97, against plaintiff Stars and Bars, LLC (“S&B”) is CONTINUED to November 7, 2022, at 1:45 PM in C15.. Entitlement to attorneys' fees and non-statutory costs: Code of Civil Procedure section 1033.5, subdivision (a)(10) authorizes the recovery of atto...

Excerpt: ...0, which included the following affirmative defenses: Failure to State a Cause of Action (First Affirmative Defense); Non-Existent or Limited Contractual Obligations (Seventh Affirmative Defense); and No Duty Owed (Fifteenth Affirmative Defense). The Court grants Wave's request for judicial notice. The existence and legal significance of these documents are proper matters for judicial notice. Evidence Code § 452, subd. (d), (h). Compliance with ...

Excerpt: ...: “Electronic exhibits must meet the requirements in rule 2.256(b). Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” The Court SUSTAINS Defendants' Objections Nos. 5, 27, and 28. The Court OVERRULES Defendants' Objection No. 4. The Court ...

Excerpt: ...4th/15th, and 17th-20th causes of action. Therefore, the Court will do the same. Third and Fourth COAs – Quantum Meruit “A quantum meruit or quasi-contractual recovery rests upon the equitable theory that a contract to pay for services rendered is implied by law for reasons of justice.” Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419 “The requisite elements of quantum meruit are (1) the plaintiff act...

Excerpt: ...ode Civ. Proc., § 430.30, subd. (f).) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” Postley v. Harvey (1984) 153 Cal.App.3d 280, 286. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525. “In the construction of a pleading, for the p...

Excerpt: ...ynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459. Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the r...

Excerpt: ...acts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459. Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire...

Excerpt: ...nically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall...

Excerpt: ...ncement and prosecution of such action.” Civil Code, § 1794, subd. (d). “A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315, 1321. The Court “need not simply award the sum requested. To the cont...

Excerpt: ...and how to allocate attorney fees. [Citation.] They may agree the prevailing party will be awarded all the attorney fees incurred in any litigation between them, limit the recovery of fees only to claims arising from certain transactions or events, or award them only on certain types of claims… [¶] To ensure mutuality of remedy, however, section 1717 makes an attorney fee provision reciprocal even if it would otherwise be unilateral either by ...

Excerpt: ... court has discretion to refuse to consider late-filed papers without a showing of good cause. Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 623, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal. 4th 1019, 1031; see also Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [“A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served ...

Excerpt: ...ing waste to the real property assets purchased with Georgia's money (the “Properties”); and from taking, spending, using, converting, or committing waste to any rents or revenue derived from the Properties is GRANTED. Code of Civil Procedure section 527, subdivision (a) provides: “A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affida...

Excerpt: ...out notice to the opposing party.” Code of Civil Procedure section 526(a) provides, “(a) An injunction may be granted in the following cases: (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. (2) When it appears by the complaint or affidavits ...

Excerpt: ...e not material to the disposition of the Motion. APPOINTMENT OF A RECEIVER: Vivera moves for appointment of a receiver pursuant to Code of Civil Procedure sections 564(b)(1) and 564(b)(9). Code of Civil Procedure section 564, subdivision (b) states in pertinent part: “A receiver may be appointed by the court in which an action or proceeding is pending, or by a judge of that court, in the following cases: [¶] (1) In an action by a vendor to vac...

Excerpt: ...an equitable action by means of which a plaintiff may recover money or property obtained from the plaintiff or persons represented by the plaintiff through unfair or unlawful business practices. It is not an all-purpose substitute for a tort or contract action.” Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173; see also Nationwide Biweekly Administration, Inc. v. Superior Court (2020) 9 Cal.5th 279, 301-305 [UCL is an ...

Excerpt: ... out any irrelevant, false, or improper matter inserted in any pleading[;] . . . [and/or] (b) [s]trike 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.) An “irrelevant matter,” or “immaterial allegation,” means: (1) an allegation that is not essential to the statement of a claim or defense; (2) an allegation that is neither...

Excerpt: ...us, the Court should treat this motion as a general demurrer. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer....

Excerpt: ...ding in essence that decedent simply liked him better. Before the Court this day is a defense motion for what appears to be an actual substantive ruling on the ultimate question in this case, to wit: decedent's mental competency on 11/01/21 when he executed estate documents. Although defendant suggests that the statutory predicate for this motion is Evidence Code §403(b), it appears from the myriad of miscellaneous code sections cited throughout...