Excerpt: ...nciples Re Motion for Judgment on the Pleadings " 'A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review.' " (People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777; see Marzec v. Public Employees' Retirement System (2015) 236 Cal.App.4th 889, 900 '[b]ecause a moton for judgment on the pleadings is the functional equivalent of a general demurrer, the ...

Excerpt: ...filed a late reply, which the court has also reviewed and considered. A. Legal Standard for Writ of Attachment "Provisional relief in the form of an attachment is available for money claims based on breach of contract." (Pech v. Morgan (2021) 61 Cal.App.5th 841, 854.) Statutory Requirements. A moving party must establish the following for a writ of attachment: Upon the filing of a complaint or anytime thereafter, a plaintiff may apply for a right...

Excerpt: ...act in which Defendant purchased from Plaintiff's assignor a 2016 Ford-150, VIN FTEWIEP8GKE17123. Plaintiff alleges that it is the holder of a first priority security interest in the motor vehicle. Plaintiff alleges that Defendant is in default and stopped making payments starting from 4/21/2022. There is, as of the time of the complaint, $31,461.60 still owed under the contract. On July 6, 2023, Plaintiff applied for writ of possession ofthe veh...

Excerpt: ...1.310(b)(1).) To establish cause," the burden is on the moving party to demonstrate both: (1) relevance to the subject matter (e.g„ how the information in the documents would tend to prove or disprove some issue in the case), and (2) specific facts justifying discovery (e .g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.App.4th 1113, 1117.) Specifi...

Excerpt: ...v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) "A party may move for summary judgment in an action or if it is contended that the action has no merit or that there is no defense to the action or (CINIe Civ. Proc., S 437c, subd. (a)(l).) "The motion for summary judgment shall be granted all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law...

Excerpt: ...: Sex Discrimination (FEHA) • C/A 2: Harassment (FEHA) • C/A 3: FEHA Retaliation Plaintiff alleges that while she was an employee for the LLC Defendants, Antonio Perez and other kitchen staff were sexually harassing her. Plaintiff alleges that Perez had previously worked for the LLC Defendants and had been fired for sexual harassment, but was rehired. Plaintiff alleges that because she refused Perez's advancements, Perez refused to help Plain...

Excerpt: ... of Contract, (2) Account Stated, and (3) 800k Account. Plaintiff alleges that it entered into a written commercial agreement with Defendant, where Plaintiff agreed to provide services to Defendant for a fee. (Complaint, 11 & Ex. 1.) The parties signed the agreement on November 23, 2020, and, pursuant to the agreement, Defendant agreed to pay service fees to Plaintiff through April 2024. (ld., "1 12 & 16.) The agreement also provided that Plainti...

Excerpt: ...51-452.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal suffciency 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 d...

Excerpt: ...pleading on any one or more of the following grounds: (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible." (CINIe Civ. Proc., S 430.10, subds. (e) & (f)l ; see S 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].) 1 All further statutory references a...

Excerpt: ...f Implied Warranty of Fitness, (3) Breach of Express Warranty, (4) Failure to Promptly Repurchase Product, (5) Failure to Commence Repairs Within a Reasonable Time, (6) Failure to Complete Repairs Within 30 days, (7) Failure to Maintain Sufficient Service and Repair Facilities, (8) Failure to Make Service Literature and Parts Available, (9) Advertising Defective Merchandise without Disclosing Defects, (10) Conversion, (11) Negligence, and (12) Vi...

Excerpt: ....30.) A cross-complaint is "related" to the complaint if it arises out of the same transaction, occurrence, or series of transactions or occurrences as the complaint. (Code Civ. Proc., S 426.10(c).) All other cross-complaints are permissive crosscomplaints. Code of Civil Procedure Section 426.50 provides that: "A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistak...

Excerpt: ...terminating, issue, evidentiary and/or monetary sanctions in the amount of $6,009.50. Plaintiffs contend that the parties attended an informal discovery conference before the court on July 7, 2023, after which the parties met and conferred. The parties later entered into a stipulation, which the court signed as an Order on August 10, 2023. The Order required Defendant to serve responses to multiple sets of discovery without objection, to produce ...

Excerpt: ...20) 55 Cal.App.5th 136, 145.) "under section 187, the trial court is authorized to amend a judgment to add additional judgment debtors.... As a general rule, 'a court may amend its judgment at any time so that the judgment will properly designate the real defendants.'.... Judgments may be amended to add additional judgment debtors on the ground that a person or entity is the alter ego of the original judgment debtor.... 'Amendment of a judgment t...

Excerpt: ...t to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work ... ." (Code Civ. Proc., S 2030.290(a).) Plaintiff Sunshine Care Centers, LLC shall provide responses, without objections, to Defendant's Form Interrogatories, Set One within 30 days of service of notice of ruling. Defendant's request for sanctions is granted. Sunshine...

Excerpt: ...e all three actions or, alternatively, to consolidate the instant action (Case 1) with Four Seasons Restoration, Inc. v. Douglas R. oods, et al.; Case No. 30-2021- 01190072 (Case 3). Douglas oods and April 20akum join in the instant moton and, in the alternative, stipulate to consolidate the instant action (Case 1) with Four Seasons Restoration, Inc. v. Douglas R. oods, et al.; Case No. 3C)-2021-01190072 (Case 3). For the following reasons, the m...

Excerpt: ... court's discretion, they are reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (Sanford v. Rasnick (2016) 246 cal.App.4th 1121, 1132; see code Civ. Proc., S Defendant seeks $1,895.00 in filing and motion fees, for: - $435 answer; - $840 for 14 motions in limine; - $500 MS]; and - $120 for two ex parte applications to contnue trial The filing and motion fees appear on their face ...

Excerpt: ...o indication any of the Defendants served objections to the Notices of Taking Deposition. Plaintiff Jennifer Young and Defendants exchanged emails and engaged in a telephonic conference on June 24, 2023. (J. Young Decl. 14.) Following the call, Defendants' counsel sent an email indicating that Defendants do not oppose a deposition. (J. Young Decl. 918, Ex. 11.) Defendants contend, however, that questions regarding a party's immigration status, in...

Excerpt: ...time in its discretion, strike out "any irrelevant, false, or improper matter inserted in any pleading." "Irrelevant" matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim, or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., S 431.10, The grounds for a moton to strike must appear on the face of the pleading...

Excerpt: .... (2001) 25 Cal.4th 825, 843.) "A party may move for summary judgment in an action or proceeding if it is contended that the acton has no merit or that there is no defense to the action or proceeding." (Code Civ. Proc., S 437c, subd. (a)(l)l . ) "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of...

Excerpt: ...ar v. Atlantic Richfield Co. 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (ld. at 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (CINIe Civ. Proc. ("CCP"), S 437c(p)(2).) The scope of this burden ...

Excerpt: ...the first and fourth causes of action and OVERRULED as to the third cause of action. The demurrer of Defendants Marlene Goren, Shari Ten Eyck, and Ten Eyck Real Estate to the eight cause of achon is SUSTAINED with leave to amend. The motions to strike the punitive damages allegations are GRANTED with leave to amend. FACTS/OVERVIEW On June 15, 2023, Plaintiff Charles Castro filed the operative First Amended Complaint against Defendants: • Cies F...

Excerpt: ...Agreement The Arbitration Agreement at issue prov-des in pertinent part: It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered or not rendered, will be determined by submission to arbitration as provided by the Federal Arbitration Act, 9 U.S.C. Section 1 etseq ("F.A.A.").... It ...

Excerpt: ...ac vice applications. For the reasons set forth below, the Motion to Intervene and the pro hac vice applications are all GRANTED. Pending Motions On April 6, 2023, Gulfstream filed a motion to intervene. Gulfstream argues that mandatory intervention applies because Gulfstream claims an interest in property that is the subjection of this action—the Tooling. Cadence, which is not a party to the contracts that memorializes Gulfstream's alleged own...

Excerpt: ...P Nos. 76-78 request documents relating to the subject store's vault, including the training provided to employees regarding verification of the contents of the vault, policies and procedures regarding verification of the contents of the vault, and policies and procedures for filling out the "Vault Admittance" document. Defendant Costco responded asserting various objections. In its supplemental responses, Defendant Costco states: "Costco is will...

Excerpt: ...subd. (b).) The court 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." (Code Civ. Proc., S 473, subd. (bj.) "Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after en...

Excerpt: ...is that a section 998 offer must be strictly construed in favor of the party sought to be subjected to its operation." (Barella v. Exchange Bank, supra, 84 Cal.App.4th at p. 799, 101 Cal.Rptr.2d 167; **849 Elite Show Services, Inc. v. staffpro, Inc., supra, 119 cal.App.4th at p. 268, 14 cal.Rptr.3d 184.) Timed Out LLC v. 13359 corp. (2018) 21 Cal.App.5th 933, 942 [230 Cal .Rptr.3d 842, 848—849] " ' "[Closts" of a civil action consist of the exp...

Excerpt: ...cause of action (civil rights violations) is SUSTAINED without leave to amend. The demurrer to the third cause of action (civil rights violations) is OVERRULED as to Defendant Brown and SUSTAINED without leave to amend as to Defendant Journey. The demurrer to the fourth cause of action (negligence) is OVERRULED The demurrer to the fifth cause of action (negligent retention and supervision) is OVERRULED. A demurrer challenges the defects appearing...

Excerpt: ...t to attach order and writ of attachment. (Code Civ. Proc., S 484.010.) Following a hearing on the application, the court shall issue a right to attach order it finds all of the following: (1) The claim upon which the attachment is based is one upon which an attachment may be issued; (2) The plaintiff has established the probable validity of the claim upon which the attachment is based; (3) The attachment is not sought for a purpose other than th...

Excerpt: ...considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. "A demurrer tests the pleading alone, and not on the evidence or facts alleged." (E-Fab, Inc. v. Accountant...

Excerpt: ...t prejudice to the extent it seeks the production of additional documents. On receipt of a response to a demand for inspection, the demanding party may move for an order compelling a further response if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete; (2) A representation of inability to comply is inadequate, incomplete, or evasive; (3) An objection in the response is without ...

Excerpt: ...d this requirement. (McNeil Dec.) A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1125.) 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 SS 451 or 452. Although California cou...

Excerpt: ...d that Plaintiff "is informed and believes [that Circelli] is (l) an officer of CHICAGO TITLE INSURANCE COMPANY; (2) a member of the executive team of defendant FIDELITY NATIONAL FINANCIAL, INC. and (3) Chief Human Resources Offcerfor FIDELITY NATIONAL FINANCIAL, INC." (ld.) The Circelli Deposition Notice lists 9 categories of inspection demands. (ld.) CTIC served objections to the Circelli Deposition Notice on May 1, 2023. (Lucal Dec., '1 7 and ...

Excerpt: ...adding or striking out the name of any party, or by correcting a mistake in the name of a party, 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, al ow, 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 tme limit...

Excerpt: ...laintiffs Vince Rinner ("Vince"), Diana Rinner ("Diana"), Nicholas Estanislau ("Nicholas"), and Laura Estanislau ("Laura") (collectively, "Plaintiffs") commenced this action against defendants Brian Hoyt ("Brian"), Alain Hoyt ("Alain"), William Kalpakoff ("William"), and Sandra Kalpakoff ("Sandra") (collectively, "Defendants"). (ROA 2). Plaintiffs allege they own real property adjacent to an easement that included a flood control channel ("Carbon...

Excerpt: ... or her through his or her mistake, inadvertence, surprise or excusable neglect." Relief under Code of Civil Procedure section 473, subdivision (b) may be based either on an "attorney affdavit of fault," in which event, relief is mandatory, or on declarations or other evidence showing "mistake, inadvertence, surprise or excusable neglect," in which event relief is discretionary. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Th...

Excerpt: ...quest for judicial notice is DENIED as to the remaining exhibits. (Eivd. Code S 452.) The webpages do not consist entirely of facts "that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." (Evid. Code S 452(h).) California's long-arm statute permits courts in California to exercise jurisdiction "on any basis not inconsistent with the Constitution...

Excerpt: ..., or the economy and effciency of handling the litigation would be promoted thereby, on moton of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except fo...

Excerpt: ...gh contnuances of trials are disfavored, each request for a continuance must be considered on its own merits. (Cal. Rules Ct., Rule 3.1332(c).) A party moving to continue trial must make an affrmatve showing of "good cause" justifying the requested relief. (See Cal. Rules Ct., Rule 3.1332(c).) In addition, the motion must be made "as soon as reasonably practical once the necessity for the continuance is discovered." (Cal. Rules Ct., Rule 3.1332(b...

Excerpt: ...pril 26, 2023, the court ordered Defendant Anthony Bell to serve verified responses without objections to Plaintiff's Form Interrogatories , Set Two, Special Interrogatories, Set Two, and Requests for Production of Documents, Set Two within 30 days of service of notice of ruling. (ROA No. 183, [04/25/23 Minute Order].) Plaintiff's counsel served notice of the ruling on Defendant Robert Bell on April 27, 2023. (Stark Decl. '1 8, Ex. A; ROA No. 201...

Excerpt: ...me of a party, 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." (Code Civ. Proc., S 473, subd. (a)(l).) Amendments to pleadings...

Excerpt: ...onstitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible." (Code Civ. Proc„ S 430.10, subds. (e) & (f)l; see S 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].) "A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demu...

Excerpt: ... following reasons, the unopposed motion is GRANTED. 1. Code of Civil Procedure section 877.6 & Overview of “Tech-Bilt” Factors Code of Civil Procedure section 877.6 provides in pertinent part: (a)(1) Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other c...

Excerpt: ...s confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c); In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1079.), However, “[t]hese rules do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings. However, the rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other ...

Excerpt: ...he deposition until the day before (Id. at ¶ 4.) On January 30, 2023, Plaintiff's counsel stated that he was unable to confirm whether his client would appear for deposition on January 31, 2023. (Id. at ¶ 4.) On January 31, 2023, neither Plaintiff nor her counsel appeared for the deposition. (Id. at ¶ 5.) Defendant took a Certificate of Non-Appearance. (Id. at Ex. C.) On February 1, 2023, Defendant served a Notice of Second Continuance of Taki...

Excerpt: ...mation the employee “has reasonable cause to believe ... discloses a violation of state or federal statute” or of “a local, state, or federal rule or regulation” with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709, citing Labor Code § 1102.5, subd. (b).) Defend...

Excerpt: ...d from interfering in any way with or attempting to dissuade any borrower from making payments to Plaintiff's attorney. Judgment Debtors file no opposition. For the following reasons, the unopposed motion for assignment order and restraining order is GRANTED. On 09/09/2022, this court entered judgment in favor of Judgment Creditor and against Defendants/Judgment Debtors Assent Mortgage, LLC, and Mahyar Kazemi aka Matt Kazemi [ROA 242]. Notice of ...

Excerpt: ... cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f) [1]; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].) “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur...

Excerpt: ...e 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 complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff i...

Excerpt: ... in presenting his grievances, and fully recognizes the personal investment plaintiff has in his case, the court must treat a pro per party the same as a represented party, i.e., uniformly applying the procedural and substantive rules. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) “ ‘A litigant has a right to act as his own attorney [citation] “but, in so doing, should be restricted to the same rules of evidence and procedure as is...

Excerpt: ...ded in Section 430.30, to the pleading on any one or more of the following grounds: … (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f) [1]; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therei...

Excerpt: ...e sixth cause of action of the Cross-Complaint filed by Cross-Complainant Dehong Liu pursuant to Code Civ. Proc. § 425.16. For the following reasons, the anti-SLAPP motion to strike is GRANTED. ---------------------------- Motion # 1 ---------------------------- Demurrer to Cross-Complaint 1. Meet and Confer A party demurring or moving to strike a pleading is required to meet and confer “in person or by telephone” with the party that filed t...

Excerpt: ... The Motion to strike is DENIED. Legal Standard on Demurrer A demurrer presents an issue of law regarding the sufficiency of 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 sections...

Excerpt: ...igned “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order . . . . This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016 [quoting Townsend v. Super. Ct. (1998) 61 Cal....

Excerpt: ...int.” (Code Civ. Proc., § 426.10, subd. (c) [3].) “[T]he phrase ‘related cause of action' in section 426.30 is defined as ‘a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.' [Citation.] Because of the liberal construction given to the statute to accomplish its purpose of avoiding a multiplicity of actions, �...

Excerpt: ... Defendant's MSJ to be heard 07/05/2023. Defendant later decided against filing that motion. (Hernquist Decl. ¶ 11.) Plaintiff's counsel believed that on 06/09/2023, the parties had orally agreed to continue the cross-motions for summary judgment from 07/05/2023 to a date sometime in August. (Mogavero Decl. ¶ 4.) The court notes that the record shows that at that time, neither party had filed an MSJ or cross-MSJ. At some point between 06/09/202...

Excerpt: ...(a).) The court may also “order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Ibid.) The purpose of consolidation is to enhance trial court efficiency (i.e., to avoid unnecessary duplication of evidence and procedures), and to avoid the substantial danger of inconsistent adjudications (i.e., different results when matters are tried before different ju...

Excerpt: ...errogatory No. 17.1 states: Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible thing...

Excerpt: ...antic Richfield Co. (2001) 25 Cal.4th 826, 843.) “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1) [1].) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled t...

Excerpt: ...by that date, the motion may be taken off-calendar. A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.) The meet and confer requirement is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order….This, in turn, will...

Excerpt: ...fornia courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal. App. 3d 451, 461.) Because the policy favoring amendment is so strong, “it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.” (Morgan v....

Excerpt: ...action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f) [1]; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].) “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the co...

Excerpt: ...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 alleged in the complaint unless they may be reasonably inf...

Excerpt: ..., 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, 1404-05.) 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 cou...

Excerpt: ...h of Implied Covenant) is OVERRULED. “A demurrer tests the legal sufficiency of factual allegations in a complaint.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 225.) In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (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...

Excerpt: ...uncertain, and/or ultimately fail to plead adequate facts to put Plaintiff on notice of the basis and allegations supporting each of the defenses. Furthermore, affirmative defenses number six (6), and sixteen (16) through twenty-six (26) do not identify the specific cause of action referred to as required by Code of Civ. Proc. § 431.30(g). In response, Defendants argue they have sufficiently plead each affirmative defense to put Plaintiff on not...

Excerpt: ...P.C., NPB Management Group, Inc., and Global Pharmacy Services, Inc. (“Defendants”) demur to the second, third, fourth, fifth, sixth, and eighth causes of action of Plaintiff Roatchhada and Cindy, LP's Second Amended Complaint (“SAC”). For the following reasons, the demurrer is OVERRULED. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A ...

Excerpt: ...s 452(d), 453, and 454 of the following documents: 1. Complaint filed by the State of California against Mr. Eichman in Orange County Superior Court, case number 19WF2624 2. General misdemeanor guilty plea form in Orange County Superior Court case no. 19WF2624 3. Sentence recommendation in Orange County Superior Court case no. 19WF2624 4. Contractor's license detail for license #794154 “‘Judicial notice may not be taken of any matter unless a...

Excerpt: ... 2017.010. The test for determining if something is discoverable is whether the requested matter “appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Information is “relevant to the subject matter of the litigation” if it possibly assists the party in evaluating the case, preparing for trial, or aiding in settlement of the case. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546). “A trial court mus...

Excerpt: ...rike. A. Demurrer Defendants' primary argument is that Plaintiffs failed to plead sufficient facts amounting to egregious abuse or neglect. Instead, Defendants contend the allegations merely sound in negligence. The Court disagrees. Neglect is defined as “The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (...

Excerpt: ...s' Fees The lodestar method for calculating attorneys' fees applies to any statutory attorneys' fees award, unless the statute authorizing the award provides for another method of calculation. (Galbiso v. Orosi Pub. Util. Dist. (2008) 167 Cal.App.4th 1063, 1089; see also K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.) In order to calculate an attorney fee award under the FEHA, courts generally use the well-established lodestar method. (Caldera...

Excerpt: ...ion pursuant to the doctrine of equitable estoppel as articulated in the Court of Appeal's decision in Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486. The Court follows the recent opinions issued in Ford Motor Warranty Cases (Ochoa) (2023) 89 Cal.App.5th 1324 and Montemayor v. Ford Motor Company (Cal. Ct. App., June 26, 2023, No. B320477) 2023 WL 4181909. “Under the doctrine of equitable estoppel, ‘as applied in ‘both federal and Califor...

Excerpt: ...les Defendant's objections to paragraphs 3, 5-10, 12-13, and 15-25 of the Teasta Declaration in Opposition to the Arbitration Motion. Standard for Motion to Compel Arbitration A court shall order arbitration if it determines an agreement to arbitrate exists, unless the moving party waived arbitration, grounds exist for revocation of the agreement, or a party to the agreement is also a party to a pending action involving the same transaction with ...

Excerpt: ...nst Defendants Coldwell Banker, LLC (“Coldwell”), Casey Lesher Real Estate, Inc. (“Lesher Inc.”), Casey Lesher (“Lesher”), Daniel Tsarik, Mariner's Escrow Corporation (“Mariner's Escrow”), Deborah Johnson, and Lisette Anderjack, alleging the following causes of action: C/A 1: Negligence C/A 2: Breach of Fiduciary Duty C/A 3: Intentional Infliction of Emotional Distress C/A 4: Negligent Infliction of Emotional Distress C/A 5: Fraud...

Excerpt: ...ient particularity. For the following reasons, Defendant's demurrer is OVERRULED. As an initial matter, Plaintiffs assert Defendant did not comply with California Rule of Court 3.1320, which requires that each ground of demurrer be in a separate paragraph and state whether it applies to the entire complaint or specified causes of action or defenses, and Code of Civil Procedure section 430.60, which requires that a demurrer distinctly specify the ...

Excerpt: ...t properly served on Defendant (see Code Civ. Proc., § 482.070(d); however, Defendant filed and served an opposition addressing the merits of the application, thereby waiving any objection based on defective service. Upon the filing of a complaint or at any time thereafter, the plaintiff may apply for a right to attach order (“RTAO”) and writ of attachment by filing an application for the order and writ with the court in which the action is ...

Excerpt: ...oot. However, if the deposition did not take place as scheduled on June 13, 2023, then the motion is GRANTED. Motion for Summary Judgment The basis for Defendant's Motion for Summary Judgment is that, pursuant to the “Going and Coming Rule,” Defendant Carlos Reveles was not acting within the scope of his employment for Defendant at the time of the accident. The Court finds this argument unpersuasive. “Under the ‘going and coming' rule, an...

Excerpt: ..., challenging only defects on the face of the complaint.' [Citation.] As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.' [Citations.]” (Eckler v. Neutrogena (2015) 238 Cal.App.4th 433, 439; § 438, subd. (d); see Hopp v. City of Los Angeles (2010) 183 Cal.App.4th 713, 717 [“A motion for judgment on the pleadings...

Excerpt: ...oc. §§ 2030.260; 2031.260; 2033.250.) Plaintiff responded to form interrogatory 1.1 by incorporating a preliminary statement and general objections and then by responding substantively. The separate statement does not appear to take issue with the substantive response. Instead, Defendant seems only to take issue with the objections because Plaintiff had waived objections by failing to serve timely responses. If the party to whom an interrogator...

Excerpt: ...ourt granted a 30-day extension to serve an answer or responsive pleading. The clerked entered default against both defendants on September 30, 2022, (over 30 days after the August 23, 2022, case management conference.) On October 28, 2022, Defendant John Darling, now through counsel, filed a motion to set aside entry of default due to mistake, inadvertence, surprise, or excusable neglect. The motion was based on the following facts, according to...

Excerpt: ..., complete, and Code compliant responses to discovery may result in an extension of this time. The parties are limited to propounding one set of special interrogatories, one set of requests for admission, and one set of production demands, not to exceed 25 questions each. The subject of that discovery must be limited to defendants' contacts with California, defendants' contact with plaintiff, and defendants' contact with any underlying insureds. ...

Excerpt: ...es to the foregoing exhibits [ROA # 455] are sealed. “Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c); In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1079.), However, the presumption of public access to the court file may not apply to a company's confidential and proprietary business records (McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal.App.4th 974, 988-98...

Excerpt: ...n agreement will be controlled by the Federal Arbitration Act (FAA), which includes both procedural and substantive provisions. The FAA states that written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) The United States Supreme Court has described this provision as reflecting both a “liberal federal policy favori...

Excerpt: ...re is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., §437c, subd. (c).) “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that bur...

Excerpt: ...defense to the cause of action. (Code Civ. Proc. (“CCP”), § 437c(p)(2).) A cause of action “cannot be established” if the undisputed facts presented by the defendant prove the contrary of the plaintiff's allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Once the moving party meets that burden, the burden shifts to the party opposing MSJ to show, by reference to specific facts, the existence of a triab...

Excerpt: ...le attached to a forklift that was protruding approximately six inches above the ground. (Mot. at 3:7-8.) On 09/09/2022, Plaintiff amended the complaint to identify Defendant Sunstate Equipment Co., LLC (Doe 13). Defendant Sunstate (Doe 13) appeared in the action on 10/24/2022, filing an answer to the original complaint. (ROA 93.) About five months later, on 03/29/2023, Defendant/Cross-Defendant Sunstate Equipment Co. (Doe 13) filed the instant m...

Excerpt: ... or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. Code Civ. Proc. § 431.10(b). A motion to strike can also strike legal conclusions. Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 ...

Excerpt: ... on January 12, 2017. They allege that Defendants failed to name a certain party as a defendant in the Brokaws' underlying suit. (ROA No. 2 [Complaint].) In October 2018, Bonnie Brokaw voluntarily dismissed her case against Defendants, leaving only Dennis as Plaintiff. Defendants filed a (renewed) motion to compel arbitration. On December 13, 2018, Judge Fell granted Defendants' motion and stayed this action pending resolution of the arbitration....

Excerpt: ...sts for admission are due 30 days after service (plus appropriate time for method of service). (Code Civ. Proc. §§ 2030.260; 2031.260; 2033.250.) A motion to compel further response to discovery “shall” (1) be made within 45 days of the service of the response or on or before any specific later date to which the parties have agreed in writing, (2) demonstrate a reasonable, good faith meet and confer attempt at informal resolution of each is...

Excerpt: ...aw Under the Civil Discovery Act, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any ...

Excerpt: ...ail service is used) is mandatory. (ld; see Lackner v North (2006) 135 Cal.App.4th 1188, 1207-1208.) Plaintiff filed the motion for summary judgment on April 6, 2023, with a May 31, 2023, hearing date. It was served by regular mail. Thus, the motion could not be heard any earlier than June 26, 2023, 80 days from April 6, 2023. Plaintiff did not give sufficient notice of the motion and, for that reason, it is denied. Further, Plaintiff did not mee...

Excerpt: ... no duty to light its streets, and that the alleged lack of light strips for pedestrians at the intersection does not constitute proof of a dangerous condition. Defendant further contends that Plaintiff has not shown why the intersection constituted a dangerous condition such that it required light strips for pedestrian crossing. According to Defendant, the fact that Plaintiff may have relied on the light strips to function at the time he crossed...

Excerpt: ...eposition On 01/12/2023, Defendant AMLNA produced witness Simon Andrew for all categories of examination. Plaintiff contends that Mr. Andrew was not sufficiently qualified to testify on category Nos. 1, 2, 5, 7, 10, 16, 17, 18, and 19. Code of Civil Procedure Section 2025.450(a) provides that if a party witness fails to appear or produce documents, without having served a valid objection, the noticing party may move for an order compelling the de...

Excerpt: ...ispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) "A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (Code Civ. Proc., S 437c, subd. "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitl...

Excerpt: ...lied with its meet-and-confer obligation prior to filing the Motion. (Code Civ. Proc., S 439.) First of Action — Breach of contract It is well-established that "the elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. [Citation.]" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal...

Excerpt: ...expended multiplied by the reasonable hourly rate.' [Citation.) To determine the reasonable hourly rate, the court looks to the 'hourly rate prevailing in the community for similar work.' [Citation.] Using the lodestar as the basis for the attorney fee award 'anchors the trial court's analysis to an objective determination of the value of an attorney's services, ensuring that the amount awarded is not arbitrary. [Citation.]' [Citation.]" (Bernard...

Excerpt: ... 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. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court ma...

Excerpt: ...ia Hearing Department Decision from In the Matter of Lenore Luann Albert, Case No. 16-0-12958-YDR (16- 0-10548); Exhibit C: The January g, 201 g, State Bar Court of California Hearing Department Decision from In the Matter of Lenore Luann Albert, Case No. 16-0-12958-YDR (16- 0-10548); Exhibit D: The July 10, 2019, Order of the California Supreme Court from In the Matter of Lenore Luann Albert on Discipline, Case No. SD254967, State Bar Court case...

Excerpt: ...itigation would produce great or irreparable injury to a party to the action," (3) the challenged act may violate a party's rights, (4) "pecuniary compensation would not afford adequate relief, (5) "it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief," (6) "Where the restraint is necessary to prevent a multiplicity of judicial proceedings." (Code Civ. Proc., 5 526, subd. The Court may also gr...

Excerpt: ...nce arising from Plaintiff's use of Defendant's "Surf City Seniors on the Go!" service. (Complaint, 12 & 14). Plaintiff alleges that "Surf City Seniors on the Go!" is a "curb-to-curb transportation service" offered by the City, which she used on June 27, 2018, to travel to her physical therapy session at "Southern California Aquatic and Physical Therapy." (ld.) Plaintiff alleges she was 65 years old at the time, legally blind and physically disab...

Excerpt: ... Laura Estanislau ("Laura") (collectively, "Plaintiffs") commenced this action against defendants Brian Hoyt ("Brian"), Alain Hoyt ("Alain"), William Kalpakoff ("William"), and Sandra Kalpakoff ("Sandra") (collectively, "Defendants"). (ROA 2). Plaintiffs allege they own real property adjacent to an easement that included a flood control channel ("Carbon Canyon Flood Control Channel") and a gravel road ("Gravel Road"). This easement, along with a ...