Excerpt: ...rsuant to Evidence Code section 452, subdivision (d), Defendants have not identified or provided the specific court records for which judicial notice is being sought. Evid. Code 5453, subd. (b) and California Rules of Court, rule 3.1305(c). Additionally, the request is denied as irrelevant. Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1474, fn. 5. The criminal case referenced by Defendants is against an unidentified non-party and no relevance ...

Excerpt: ...ions; and (2) fails to state fact suffcient to allege a cause of action. "A fraud cause of action, whether based on intentional misrepresentation or concealment, is governed by the three -year limitations period set forth in Code of Civil Procedure section 338, subdivision (d)." Ivanoffv. Bank of America, NIA. (2017) 9 Cal.App.5th 719, 734. The FAC alleges Plaintiffs purchased the Subject Vehicle on March 21, 2019. (FAC, '14.) The lawsuit was fil...

Excerpt: ...child abuse" (Amended Complaint, pp. 1-2), such causes of achon are insufficiently pled because the Amended Complaint does not plead the elements of defamation and "child abuse" is not a cause of action. Pursuant to Code of Civil Procedure secton 430.10(f), a party against whom a Complaint has been filed may object by demurrer when the pleading is uncertain. "Uncertain" includes ambiguous or unintelligible. (ld.) Additionally, pursuant to Code of...

Excerpt: ...n their entirety. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, holds: "[W]e may summarize a court's task in ruling on an anti-SLAPP motion to strike as follows. Section 425.16, subdivision (b)(l) requires the courtto engage in a two-step process. First, the court decides whether the defendant has made a threshold showng that the challenged cause of achon is one arising from protected activity. The moving defendant's burde...

Excerpt: ...Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2023) '1 9:82.5; see also Code Civ. Proc., S 1014 ["After appearance, a defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given"]. ) Here, the proof of service for the Moton to Strike only establishes Defendant Cheryl Walsh served Plaintiff and Defendant Nadia K. Starner (pro per). Walsh failed to serve the Motion on Su...

Excerpt: ...0, 11 and 12. 18 Platinum failed to comply with California Rules of Court, Rule 3.1110(f)(4), which provides: "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 expects...

Excerpt: ...ss, knowing he was deceased. Accordingly, Defendants were ordered to re-serve 7 the motion at Plaintiff's law firm address and his last known home address by certified mail. Defendant's counsel Steven Wysocky submitted his declaration regarding attempts to locate the successor in interest to Plaintiff Hugh Greg. (ROA 115). Those attempts included phone calls to numbers listed for Mr. Gregg, as well as property record searches, emails, and regular...

Excerpt: ...only to the first cause of action for violation of the California Self-Service Storage Act (Act) and second cause of acton for violation of the Unfair Competition Law (Demurrer, 1:26-2:11), while the memorandum of points and authorities argues all four causes of achon are insufficiently pled. The notice of motion must state in the first paragraph exactly what relief is sought and the grounds on which the relief is sought. Code of Civil Procedure ...

Excerpt: ...e limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues." Code of Civil Procedure S 1281.2; Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967. Similarly, public policy under federa...

Excerpt: ...ty of Fresno (1987) 192 Cal.App.3d 1436, 1442 [failure to plead equitable defenses waived those defenses]. A defendant raising such new matters must allege ultimate facts sufficient to prove the defense with the same level of detail that a plaintiff is required to allege ultimate facts to support a cause of action in a complaint. FPI Development, Inc. v. Nakashima (1991) 231 cal.App.3d 367, 384; 5 Witkin, cal. Proc. 5th (2008) Pleading, S 1082, p...

Excerpt: ...he tme for response, or unless on moton of the responding party the court has extended the time for response." Code of Civil Procedure S 2030.250. "If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: ['ll (a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Secton 2030.230, as well as any objection to the interrogatories, i...

Excerpt: ...ed on theories of equitable estoppel and third-party beneficiary. Defendant, a non-party to the Retail Installment Sale Contract (RISC) containing the arbitration clause, relies on the Court of Appeal's decision in Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 (Felisilda). Plaintiff opposes the motion based on the more recent appellate decision in Ochoa v. Ford Motor Company (2023) 89 Cal.App.5th 1324 (Ochoa). In Ochoa, the Court of Appeal re...

Excerpt: ...he party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Secton 2031.030 and any related activities. (2)...

Excerpt: ...t of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." "As a general rule, it is well established in California that a corporation cannot represent itself in a court of record either in propria persona or through an officer or agent who is not an attorney." Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals ad. (2002) 99 cal.App.4th 1094, 1101; CLD const., Inc. v. City of ...

Excerpt: ...h this Guaranty and the other Loan Documents shall be tried and litigated only in the state courts located in the county in which notice shall be sent to Lender pursuant to this Guaranty, or the applicable federal district court that covers said County." (FAC, Exhibit 2, '1 26.) Paragraph 1 of the Guaranty provides in part that Plaintiff Pramukh Financial Services' address for purposes of the Guaranty is in Union City, California, in the County o...

Excerpt: ...) the fourth cause of action is time-barred, (2) the fourth cause of action fails to plead with the required specificity, (3) the fourth cause of action fails to plead facts giving rise to a duty to disclose. 171. Statute of Limitatons Defendant contends the Complaint should have been filed by no later than July 2022 because it alleges Plaintiffs purchased the Vehicle on 7-27 - 19. (Demurrer, 7:7-20.) Further, the delayed discovery rule does not ...

Excerpt: ...ts 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 Transpo...

Excerpt: ...on, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” “Irrelevant matter” includes allegations not essential to the claim. Code of Civil Procedure §431.10(b).) A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Conclusory allegations are permitted, however, if they are supported by other factual ...

Excerpt: ...n, filed under ROA No. 744. Objections 6 and 9-11 are SUSTAINED. The Court declines to rule on ROI's Objections to Evidence in Support of Reply filed under ROA 756 as such objections are not dispositive to the Court's ruling on this motion. ROI's Request for Judicial Notice in Support Opposition, filed under ROA No. 752, is GRANTED pursuant to Evidence Code section 452, subdivisions (d) and (h). INC moves for an order striking ROI's Cross-Complai...

Excerpt: ..., LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, the parties to an agreement may incorporate the FAA into its terms. Id. at 346-348. Moreover, the undisputed Declaration of Tabraz Rashid establishes 24 Hour Fitness is headquartered in Carlsbad, California and is a leading fitness industry pioneer with nearly four million members that span in 11 states. 24 Hour Fitness owns and operates approximately 300 clubs throughout 11 states.” (R...

Excerpt: ...n of Matthew Pardo, filed 3-1-23 under ROA No. 240 are OVERRULED. A motion for summary judgment shall be granted where there is no triable issue of any material fact and the moving party is entitled to judgment as a matter of law. Code of Civil Procedure § 437c, subd. (c).) “A defendant moving for summary judgment meets his burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the ca...

Excerpt: ... to Defendant's improper evidence. Given that Plaintiffs have had an opportunity to respond, the Court considers the Declaration on Reply and Plaintiffs' Sur-Reply. A. Legal Authority Code of Civil Procedure § 425.16 provides for a “special motion to strike” when a plaintiff asserts claims against a person “arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constituti...

Excerpt: ...discloses a complete defense.” Id. The Court assumes “the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” Id. “A demurrer must dispose of an entire cause of action to be sustained.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 119. Defendant demurs to the Complaint's second cause of a...

Excerpt: ...the fifth cause of action for inducing breach of contract and the sixth cause of action for intentional interference with contractual relationship. First, Defendants contend that as officers/directors of Defendant Festival of Arts of Laguna Beach (Festival), they cannot be held liable for interference with a contract to which Festival was a party. Second, Defendants contend the FAC fails to allege facts supporting elements of the fifth and sixth ...

Excerpt: ... granted. The Complaint alleges Plaintiff is a T-Mobile dealer which operated on premises owned by Defendant. (¶¶ 6-7.) Plaintiff and Defendant executed a License Agreement allowing Plaintiff to operate on the premises between 2/1/22 and 4/30/22. (Complaint, Ex. A.) Plaintiff discovered that in November 2021, Defendant entered into a lease agreement with non- party Pokeworks. (¶ 8.) Plaintiff reached an agreement with Pokeworks wherein Pokewor...

Excerpt: ...iff entered into on 05-12-2020 (the “Lease”). The Lease contained an indemnification clause which required OCCA to indemnify Ostraka from any losses, claims or damages caused by the misuse of the Property. Ostraka hired a general contractor Service First to renovate the Property. Service First was required to obtain approval from Plaintiff for the specific work. After the Lease was entered into, OCCA instructed Service First to perform other ...

Excerpt: ...ch are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. . . Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.” Further...

Excerpt: ...amination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” “The court shall grant a motion for a physical or men...

Excerpt: ...otice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii)...

Excerpt: ..., the court “shall” grant the motion if it determines that a written agreement to arbitrate exists. Plaintiff makes two arguments attacking the showing of the existence of the Agreement. The first is the document has not been properly authenticated. The second is there was no mutual asset because the document presented to Lopez Cruz was in English, and Plaintiff does not read or understand English. Spanish is his native language. With respect...

Excerpt: ...ng party may move for an order compelling responses and for a monetary sanction. Code Civ. Proc § 2030.290(b). With regard to sanctions, the court “shall” impose a monetary sanction against the losing party on a motion to compel unless it finds that party acted “with substantial justification” or other circumstances render the sanction “unjust.” Code Civ. Proc. § 2030.290. No meet and confer is necessary when a party has failed to r...

Excerpt: ...es and request for documents. According to the Proof of Service, on 12-19- 2022 at 7:30 AM Defendant was served with the post judgment written interrogatories as follows: “Substitute served documents to "John Doe", front desk / security (description: Asian, male, 55 yrs., 5'9”, black hair, 190 lbs.). He told me that they would let me up at 9:00 AM, but not before. I told them that I had made previous attempts at other times and that I wanted ...

Excerpt: ... met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross- defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the c...

Excerpt: ...1018, 1027. Civil Code § 1717 provides as follows: “(a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded ... to the prevailing party, then the party who is determined to be the party prevailing on the contract ... shall be entitled to reasonable attorney's fees in addition to other costs ... Reasonable attorneys' fees shall be fix...

Excerpt: ...mplication, but not conclusions of fact or law, are deemed admitted by the demurring party. The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. [¶] In addition to the facts actually pleaded, the court considers facts of which it may or must take judicial notice. Moreover, a party may not avoid demurrer by omitting facts pleaded in the original complaint or by suppressing facts which prove the pleade...

Excerpt: ...ueras v. BAC Home Loan Servicing, LP (2013) 221 Cal.App.4th 49, 62. “‘Duty is not universal; not every defendant owes every plaintiff a duty of care. A duty exists only if “ ‘the plaintiff's interests are entitled to legal protection against the defendant's conduct.' ” [Citation.] Whether a duty exists is a question of law to be resolved by the court.' [Citation.] ‘A duty of care may arise through statute' or by operation of the commo...

Excerpt: ..., or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. 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 particulars; and may upon like terms allow an answer to be made after the time limited by this code.” Additionally, any judge, at any time before or after commencement of trial...

Excerpt: ...ty's interest in the litigation.” Plaintiff's complaint was filed on 6/22/22, alleging causes of action against Defendant for (1) domestic violence, (2) intentional infliction of emotional distress, (3) false imprisonment, and (4) negligent infliction of emotional distress. In support of the motion, Plaintiff declares the following: “3. I was born January 12, 1947, making me 76 years old. 4. I have multiple health issues, which are as follows...

Excerpt: ...spondents' evidentiary objections to the Serrano Declaration. The Court sustains Respondents' evidentiary objections 1 through 21 to the late-filed Mendez Declaration. Code of Civil Procedure, § 527 (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 affidavits in the other, show satisfactorily that sufficient grounds exist the...

Excerpt: ...itted with Reply: “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537. However, where the evidence is to fill in gaps raised by the opposition or goes to the admissibility of evidence submitted in opposition to the motion, the evidence may be properly considered. (Id. at 1538 [“[t]o the extent defendants argue they had the rig...

Excerpt: ... Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, the parties to an agreement may incorporate the FAA into its terms. Id. at 346-348. Moreover, the undisputed Declaration of Tabraz Rashid establishes 24 Hour Fitness is headquartered in Carlsbad, California and is a leading fitness industry pioneer with nearly four million members that span in 11 states. 24 Hour Fitness owns and operates approximately 300 clubs throughout 11 s...

Excerpt: ...7 provides: “(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: [¶] (1) the lawyer's testimony relates to an uncontested issue or matter; [¶] (2) the lawyer's testimony relates to the nature and value of legal services rendered in the case; or [¶] (3) the lawyer has obtained informed written consent from the client. If the lawyer represents the People or a governmental entity, the conse...

Excerpt: ...s 2, 5-8 and 10 are sustained. Objections 1 and 9 are sustained in part as follows:  Objection 1: sustained in part as to first sentence of paragraph 10 and Figure 1. Lacks personal knowledge as to figure 1, lacks authentication.  Objection 9 sustained in part as to “It is well known that large trees near sidewalks cause damage resulting in uplifts that pose a danger to pedestrians. The City knew or should have known about the change in e...

Excerpt: ...tions of the HOA, Appendix D; 3. The entirety of Plaintiff's Second Cause of Action for Breach of CC&Rs; and 4. 19 affirmative defenses asserted in the HOA's answer. The HOA's Objections to Evidence do not comply with California Rules of Court, Rule 3.1354(b)(3) because they do not quote or set forth the objectionable statement or material as to each objection. The Court declines to rule on Defendant's objections as immaterial to the Court's deci...

Excerpt: ...ntiff 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 more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of ma...

Excerpt: ...declines to rule on ROI's Objections to the Declaration of James C. Diefenbach as they are immaterial to the Court's ruling. Cross-Complainants ROI Property Group Management, LLC and ROI Property Group 2, LLC (ROI)'s Request for Judicial Notice in Support of Opposition is GRANTED as to Exhibits 1-8 pursuant to Evidence Code sections 452 (d) and (h). The Court otherwise declines to take judicial notice as the remaining documents are immaterial to ...

Excerpt: ...ny regarding mental and emotional distress. (Opposition, 5:20-24.) Plaintiff also contends she has already undergone a defense neurological examination. Plaintiff testified at her deposition she has experienced memory loss, irritability, slurring speech, tremors in her arm, problems sleeping, irritability, and headaches as a result of the slip and fall incident. (Motion, Ex. A at p. 137.) Therefore, Defendant is entitled to conduct a neuropsychol...

Excerpt: ...ompelled. 9 U.S.C. §2. “[I]t is a cardinal principle that arbitration under the FAA ‘is a matter of consent, not coercion.'” Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4 th 223, 236. “Thus, ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'” Ibid. “If a party to a civil action asks the court to compel arbitration of the pending claim, the c...

Excerpt: ...4th 1079, 1090[“Courts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.”] A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. Code of Civil Procedure § 430.30, ...

Excerpt: ...t under the Song-Beverly Act are not viable because moving Defendant did not issue a warranty for the subject vehicle, which was used at the time of purchase. Plaintiff only opposes the demurrer as to the fourth and fifth causes of action. (See Opposition, pp. 2:13-15, 3:14-15, 4:12-13.) Plaintiff does not argue the first, second, or third causes of action are viable. Therefore, the demurrer is sustained without leave to amend as to the first, se...

Excerpt: ...deceased husband's estate. 3) Plaintiff has failed to name a necessary and indispensable party – the Estate of Antonio A. Hernandez. “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996. The Court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court assumes �...

Excerpt: ...that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.” Code Civ. Proc. § 1008(c). Code of Civil Procedure section 1008, subdivision (c), provides: “If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.” If the court wishes to, it has the power to ...

Excerpt: ... 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 University of California (2008) 162 Cal. App. 4th 343, 364– 365 provides that “[o]n a demurrer a court's function is limited to testing the legal sufficiency of the complai...

Excerpt: ...tice (“RJN”) of Exhibits A and B is GRANTED. Code of Civil Procedure section 425.16, subdivision (b), states, “(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plainti...

Excerpt: ... Pools, Inc. v. Turner Const. Co. (2000) 79 Cal.App.4th 1254, 1268; Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1027. Here, Plaintiffs accepted a statutory 998 offer that states: “Defendants agree to pay Plaintiffs' attorneys' fees and costs, as awarded by the Court following a motion for attorneys' fees and costs, pursuant to statute and other applicable law.” Moreover, Plaintiffs are entitled to fees under Labor Code § 21...

Excerpt: ... under an agreement with non-party Flip Funding. (¶ 19.) White's appraisal allegedly contained Fannie Mae Certification #23, which states: “The borrower, another lender at the request of the borrower, the mortgagee or its successors and assigns, mortgage insurers, government sponsored enterprises, and other secondary market participants may rely on this appraisal report as part of any mortgage finance transaction that involves any one or more ...

Excerpt: ...); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Additionally, a defendant may demur on the grounds 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 conclusion...

Excerpt: ...eit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5...

Excerpt: ...“trial dates are firm” and “[a]ll parties and their counsel must regard the date set for trial as certain.” Cal. Rules of Court, rule 3.1332(a). “The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Id., rule 3.1332(c).) Listed ground for a continuance include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;...

Excerpt: ..., or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” A party seeking reconsideration also must satisfactorily explain the f...

Excerpt: ...ver occurs first. Code of Civil Procedure § 340.5. The term “injury” means both a person's physical condition and its negligent cause. Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896. “[T]he plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof – when, simply put, he at least ‘suspects…that someone has done something wrong' to...

Excerpt: ...ED. New evidence submitted with Reply: “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537. However, where the evidence is to fill in gaps raised by the opposition or goes to the admissibility of evidence submitted in opposition to the motion, the evidence may be properly considered. Id. at 1538 [“[t]o the extent defendants ar...

Excerpt: ...or the same. Code Civ. Proc. § 2025.410(b)(1). Defendant's Request for Judicial Notice is GRANTED. 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 examination, or to proceed with it, or to produce for inspection any document…the party giving the notice may move for an order compelling th...

Excerpt: ...s elected to the Board by Soura and who has been in a romantic relationship with Soura for several years.” “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Code of Ci...

Excerpt: ...d. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Additionally, a defendant may demur on the grounds 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 concl...

Excerpt: ...on, and damage resulting from that justifiable reliance.” Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 72–73. “Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” (Id. at 73.) This “strict requirement” of pleading “necessitates pleading facts whic...

Excerpt: ...ED. Code of Civil Procedure section 425.16, subdivision (b), states, "(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability ...

Excerpt: ...s follows: No. 1 is SUSTAINED--lack of foundation; Nos. 2, 3, 4, and 5 are SUSTAINED-- hearsay; Nos. 6 and 7 are OVERRULED. The Courts OVERRULES all objections to the Declaration of Defendant Christina Erickson-Taube. The Court rules on Defendant's evidentiary objections to the Declaration of Plaintiff Rajesh Punjabi as follows: No 1 is SUSTAINED--lack of foundation/speculation; No. 2 is SUSTAINED--lack of authentication; Nos. 3, 4, 5, 6, 7, g, 1...

Excerpt: ...reenergy Company). Movants' objections are overruled as immaterial to the Court's ruling on the motion. Movants request summary adjudication of (1) all causes of action in Plaintiff Solar Tec Systems, Inc.'s (Solar Tec) First Amended Complaint (FAC), (2) of Plaintiff's claim for punitive damages; and (c) of the First and Second Causes of Action in the Cross-complaint, in favor of SP NA and against Plaintiff/Cross-Defendant Solar Tec. Because the ...

Excerpt: ... S 1021. Civil Code, section 1717, subdivision (a) provides in relevant part: In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be ...

Excerpt: ...facts properly pleaded, but not contentions, deductions, or conclusions of fact or law." Rakestraw v. California Physicians' Service (2000) 81 cal.App.4th 39, 42-43. Plaintiff's complaint alleges she went to an appointment with Defendant, her gynecologist, on 7/9/21. Plaintiff allegedly consented to a visual examination but without warning or permission, Defendant inserted an eight-inch device with a swab into her vagina. (Complaint, Tl 4.) Defen...

Excerpt: ...l act or disposition of property rights; and (3) damages...." Lee v. Hanley (2015) 61 Cal.4th 1225, 1240, (quotations and citation omitted). The Cross-complaint alleges Cross-complainant and William Patrick Lally ("Patrick") opened a joint bank account which required two signatures to withdraw funds. (Cross-complaint, 26.) Cross-complainant and Patrick deposited $290,000 into their joint bank account which included approximately $100,000 in proce...

Excerpt: ...omplaint. [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 Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, "T...

Excerpt: ...hearsay. Defendant's Objections to Plaintiff's Deposition are OVERRULED. Code of Civil Procedure section 437c, subdivision provides, "A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . has met that b...

Excerpt: ...s evasive or incomplete. Code of Civil Procedure, S 2030.300, subd. (a)(1)-(3). The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. California Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. Fairmont Ins. Co....

Excerpt: ...s incident and shocks the conscience of any decent person. Trudeau must have known that her conduct would cause severe physical pain and emotional distress given the speed and force of impact. Trudeau's actions were patently done with malice aforethought and oppression and/or with total disregard for the health and safety of Buie. Buie did not consent to this act and a reasonable person in Buie's situation would have been offended and astonished ...

Excerpt: ...y system when it requires the trial court to become involved in discovery because a dispute leads a party to move for an order compelling [compliance with a discovery mechanism]." Clement v. Alegre, (2009) 177 cal.App.4th 1277, 1291. Code of Civil Procedure section 2017.010 provides in relevant part that "[u]nless otherwise limited by order of the court any party may obtain discovery regarding any matter, not privileged, that is relevant to the s...

Excerpt: ... to Code of Civil Procedure section 685.040, "there are two requirements before a motion for an award of post-judgment attorney fees may be awarded as costs: (1) the fees must have been incurred to enforce a judgment; and (2) the underlying judgment had to include an award of attorney fees . . . authorized by contract." Guo v. Moorpark Recovery services, LLC (2021) 60 cal.App.5th 745, 750 (citing Jaffe v. Pacelli (2008) 165 cal.App.4th 927). Here...

Excerpt: ...terest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing patties." Code Civ. Proc. 387(d)(1) Alternatively, "Ct]he court may, upon timely application, permit a nonparty to intervene in the action or proce...

Excerpt: ...alifornia Rules of Court, rule 3.110(d). A demurrer must be noticed for hearing not more than 35 days after filing or on the first available court date thereafter. California Rules of Court, rule 3.1320(d). An untimely demurrer may be considered by the court in its discretion. Jackson v. Doe (2011) 192 cal.App.4th 742, 750. Here, Defendant was served by substitute service on 11-23-22. Thus, Defendant had until 1-2-23 to respond. Code Civ. Proc. S...

Excerpt: ...dgment writs of attachment are governed by Code of Civil Procedure section 481.010 et seq. Generally, an order of attachment may be issued only in an action for a claim of money that is based upon an express or implied contract where the total amount of such claim is a fixed or 'readily ascertainable' amount not less than $500. (S 483.010, subd. (a). ) [TI] Before an attachment order is issued, the court must find all of the following: (1) the cl...

Excerpt: ...d upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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." The grounds for a motion to strike must "appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." Code Civ. Proc., S 437. ...

Excerpt: ...ing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. Code of Civil Procedure, 2016.040. "CA] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing) counsel.... Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." Clement v. Alegre (2009) 177 cal.App.4th 1277, 1294. Defendant c...

Excerpt: ...t also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion." Parkview Villas Assn., Inc. v. State Farm Are & Cas. Co., ...

Excerpt: ...laint. [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 Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, "This...

Excerpt: ...il Procedure, 36, subd. (a). "'The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party's 'health is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.' [Citation.]" Fox v. Supe...

Excerpt: ...aph that provides for arbitration.' 'The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.' Ibid: italics added. Thus, under this nule: unless there is a dispute over authenticity: it is sufficient for a party moving to compel arbitration to recite the tenns of the governing provision. " Because Plaintiff does not contest the authenticity of the arbitration ag...

Excerpt: ...mpel arbitration of, or be compelled to arbitrate, a dispute arising within the scope of that agreement. DMS Services, LLC v. Superior Court (2012) 205 Cal .App.4th 1346, 1352—1353. The recognized exceptions include "(a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estop#l; and (f) third-party beneficiary." (ld. at 1353) "These exceptions to the general rule that one must be a party to an arbitrati...

Excerpt: ...te division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action." Accordingly, the orders shall not be reviewed or considered. The Court also DENIES Defendants' request for •udicial notice. Califomia statutes create a "summary proceeding" for resolving petitions or motions to compel arbitration. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal_4th 951: 972. "...

Excerpt: ...a court's action in his favor bears the burden of persuasion thereon. (See Evid.Code, S 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 825, 850. A defendant moving for summary judgment must "show" that ei...

Excerpt: ...jections. Defendants' Evidentiary Objections to Declaration ofBrad P. A-VI-it: P CXLT is OVERRULED as to Objection Nos. 1-5, 7, 13, and 15-16 and SUSTAINED as to the remaining objections. The Complaint alleges causes of action for Negligence and Premises Liability against Defendants (ROA No. 2.) Plaintiffs claims for Negligence and Premises Liability have the same elements ' '(1) 'a legal duty of care:' (2) 'breach of that duty:' and (3) 'proxima...

Excerpt: ...iter u Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, The running of the statute must ap#ar "clearly and affirmatively" from the dates alleged. It is not sufficient the complaint might be barred. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403. If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy "is to asce...

Excerpt: ...(2004) 33 Cal.4th 642, 647. The notice may be recorded by any party who "asserts a real property claim" in the action. Code of Civil Procedure S 405.20. "A lis pendens clouds title until the litigation is resolved or the lis pendens is expunged, and any party acquiring an interest in the property after the action is filed will be bound by the judgment." Slintak v. Buckeye Retirement Co., L.L.C., Ltd. (2006) 139 cal.App.4th 575, 586-587. Code of C...

Excerpt: ...tion, which was filed and served one day late, because Defendant was able to file a reply brief and the untimely opposition did not prejudice Defendant or change the outcome. In the future, the parties shall ensure all briefs are timely filed and served per Code or the briefs may be disregarded. The Court also notes Defendant's motion is over 400 pages long, including exhibits, plus a 54-page separate statement. The accompanying motion is nearly ...

Excerpt: ...having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing ...

Excerpt: ...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 conclusions of fact or law. Berkley v. Dowds (2007) 152 cal.App.4th 518, 525. "In the construction of a pleadin...

Excerpt: ...an order compelling [compliance with a discovery mechanism].” Clement v. Alegre, (2009) 177 Cal.App.4th 1277, 1291. Code of Civil Procedure section 2017.010 provides in relevant part that “[u]nless otherwise limited by order of the court … any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved … if the matter either is itself admissible in evidence or appears reasonably calcula...

Excerpt: ... or private corporation, a partnership, an association, or a governmental agency.” Code of Civil Procedure § 2025.010. “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and cop...

Excerpt: ...ns 3-8, 11-23. The remaining objections are sustained. “The anti-SLAPP legislation in section 425.16 was crafted to provide an efficient means of dispatching a plaintiff's meritless claims at the inception of the lawsuit to promote ‘continued participation in matters of public significance.' (§ 425.16, subd. (a).) Accordingly, the filing of a section 425.16 motion to strike stays discovery until the motion is ruled on, although the court has...

Excerpt: ...N PART as set for the below. Whether Plaintiff's Claims Are All Time Barred? Plaintiff's SAC alleges causes of action for breach of oral contract, breach of the implied covenant of good faith and fair dealing, money had and received, common count, conversion, and breach of trust. Defendants demur to all six causes of action alleged in the SAC on the grounds they are time barred pursuant to Code of Civil Procedure section 338(c)(1) or 339. Specifi...