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: ...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 The HOA's Objections to Evidence do not comply with California Rules of Court, Rule 3.1354(b)(3) because they do not quote or set forth the objectionable statement or material as to each objection.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: ...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: ...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: ... 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: ... 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: ...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: ...); 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: ...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: ...“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: ...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: ... 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: ...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 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: ...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 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...