Excerpt: ...iciency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been all...

Excerpt: ...hallenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider...

Excerpt: ...“(a) The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring the person's attendance at a particular time and place to testify as a witness. It may also require a witness to bring any books, documents, or other things under the witness's control which the witness is bound by law to produce in evidence.... [¶] (b) A copy of an affidavit shall be served with a subpoen...

Excerpt: ...equest for Judicial Notice is DENIED. “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. Unnecessary Delay: This case has been pending for almost two years. On 2/1/22, the court granted leave to file the Second Amended Cross-Complaint pursuant to stipulation. (ROA 281) Defendant/ Cross-Complainant waited over three months before...

Excerpt: ...ther response to requests for admission if that party deems that either or both of the following apply: an answer to a particular request is evasive or incomplete; and/or an objection to a particular request is without merit or too general. Notice of such motion must be given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding pa...

Excerpt: ...eld Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc. § 437c, subd. (p)(1).) “Once the plaintiff ... has met that burden, the burden shifts to the defendant ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the s...

Excerpt: ...ty, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. (Code Civ. Proc., § 473(a)(1).) 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. (Code Civ. Proc., § 473(a)(1).) Additiona...

Excerpt: ...ost substantial funds with WFP. She brought an arbitration proceeding against Respondents WFP, Schooler, and Sathre, claiming they were negligent in recommending the investments. Respondents prevailed at arbitration and obtained an award of costs (later incorporated into the judgment) against Petitioner in the principal amount of $135,755.89. Respondents obtained the judgment in 2012. Sathre began making efforts to collect in 2018, when he filed ...

Excerpt: ...as yet to respond. Given Plaintiff's failure to engage in the meet and confer process and Plaintiff's failure to file an opposition, the court will proceed to the merits of the motion. ANALYSIS: A. Legal Authority A party may move to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under California Code of Civil Procedure section 2030.230 is unwarra...

Excerpt: ...e voting rights of MPT. Plaintiff contends that Defendant Sturdivant mismanaged the company for his personal gain, misappropriated corporate assets for his personal gain, and failed to provide Plaintiff with timely access to the corporate books and records. Plaintiff was eventually terminated from MPT. On 4/27/22, the court granted Plaintiff's Motion to Compel Request for Production of Documents (Set One) and imposed sanctions in the sum of $3,06...

Excerpt: ...f the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complai...

Excerpt: ...assistance by obtaining a writ of possession through the claim and delivery procedures. Claim and delivery is a statutory remedy by which a party with a superior right to a specific item of personal property may recover possession of that specific property before judgment. (Waffner International Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271.) Code of Civil Procedure section 512.010(a), provides: “Upon the filing of the complaint or at any...

Excerpt: ... the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 C...

Excerpt: ...otice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-1405.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer ...

Excerpt: ...merits and that harm will result if a preliminary injunction is not granted. (Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 356; Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal. App. 3d 827, 838.) In determining whether to issue a preliminary injunction, the court should balance the equities: (1) are the plaintiffs likely to suffer greater injury from a denial of the injunction than the defendants are likely to suffer...

Excerpt: ...e out of the employment context. Apex Energetics and I each agree that any claim, dispute, and/or controversy that either I may have against Apex Energetics (or the owners, directors, officers, managers, employees, agents, and parties affiliated with their employee benefit and health plans) … arising from, related to, or having any relationship or connection whatsoever with my … employment by, or other association with Apex Energetics shall b...

Excerpt: ...ent forum (often referred to as forum non conveniens) allows courts to ‘exercise their discretionary power to decline to proceed in those causes of action which they conclude, on satisfactory evidence, may be more appropriately and justly tried elsewhere.' ” (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 609; see also Zhi An Wang v. Fang (2021) 59 Cal.App.5th 907, 917.) “ ‘In determining whether to grant a motion based on forum non conv...

Excerpt: ...y to the action. (Code Civ. Proc., § 2025.010.) The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency. (Id.) The service of a deposition notice 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, electronic...

Excerpt: ...nsitioning to a new management company, Generations. From May to September, 2020, Plaintiff was on disability due to left elbow surgery. On 9/3/20, when she was released to return to work, she was informed the transition had occurred. Her application for employment was declined, because she was on work restriction. (Complaint, Paragraphs 6, 7 & 8.) Limited Exceptions: “[W]ith limited exceptions only parties to an arbitration agreement can enfor...

Excerpt: ...s were filed. Plaintiff does not take issue with these responses. Therefore, insofar as the motions seek to deem admitted the requests for admission or compel Defendant to provide further responses to the discovery requests, the motions are denied as moot. The motions, however, are not moot as to the issue of sanctions. (Cal. Rules of Ct., Rule 3.1348(a).) For the reasons set forth below, the request for sanctions is DENIED. Code of Civil Procedu...

Excerpt: ...s. ¶ 19, Ex. N.) Defendant's two emails were sent the same day as the parties' meet and confer telephone call on 01/03/2022. (See id.) The emails admonish Plaintiff to “please respond immediately” “[i]f there is anything in this email that does not comport to your understanding and agreement.” (See id., Ex. N.) There is no evidence that Plaintiff responds to either email to correct the purported discrepancy between the two parties' recol...

Excerpt: ...2022. See, Franco Decl. in support of Opposition, ¶ 24 and Ex. 59. In Reply, Plaintiff acknowledges the supplemental responses but argues that the supplemental responses are still insufficient. Because supplemental responses were served by Defendant County on 04/01/22, there is nothing left to compel. The instant motion seeks to compel further responses to Defendant County's initial responses to production of documents. Plaintiff received supple...

Excerpt: ...is appropriate. “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4 th 1217, 1227). Indeed, “for an original complaint, regardless whether the plaintiff has requested leave to amend, it has long been the rule that a trial court's denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face th...