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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...(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...