Excerpt: ...ne or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc. ("CCP"), S 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 (1 gg6) 42 Cal.App.4th 1591, 1597.) Once the moving party meets that burden, the burden shifts to the...

Excerpt: ...) 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 Ca/., 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 wil...

Excerpt: ... (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, 1404-05.) 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 o...

Excerpt: ...o Ouash "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly." (Code Civ. Proc., S 474.) "Section 474 allows a plaintiff who is ignorant of a defendant's identity to comm...

Excerpt: ...er meeting minutes, IRS Form 2553, and documents identifying shareholders. The Moving Party argues that the document requests are overbroad, seek irrelevant information, and seek their private/proprietary financial and corporate information. They also seek sanctions in the amount of $5,200 against Plaintiff. On April 27, 2023, Plaintiff filed an opposition to the motion. Plaintiff argues that the Moving Party is one of four restaurants that are o...

Excerpt: ...se of the option to produce documents under California Civil Procedure Code section 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. Cal. Civ. Proc. Code, S 2030.300(a). If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the discovery. Fairmont Ins. Co. ...

Excerpt: ...es, pursuant to the relevant agreement's choice of law provision. As such, Avis has the initial burden to show that New Jersey law materially differs from the law of California, and that New Jersey has an interest in having its law applied. (Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 919-920 [citing Hurtado v. Superior Court (1974) 11 Cal.3d 574, 5801.) Avis does not contend there is a material difference in the laws of b...

Excerpt: ...ng it to judgment as a matter of law. (Code Civ. Proc., S 437c, subd. 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 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion ...

Excerpt: ...tion. (Code Civ. Proc. ("CCP"), S 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 (1 gg6) 42 Cal.App.4th 1591, 1597.) Once the moving party meets that burden, the burden shifts to the party opposing MS] to show, by reference to specific facts, the existence of a triable issue as to that affirmative de...

Excerpt: ...(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., S 430.10, subds. (e) & (f)ß]; 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 af...

Excerpt: ...ax Mortgage Loan Trust 2021 -G, and LoanCare, LLC relating to a non judicial foreclosure sale that Defendants are pursuing against Plaintiff's house. Plaintiff alleges nineteen causes of action based on fraud, alleging that Defendants concealed loan documents from Plaintiff and/or that various documents on which Defendants rely for their non-judicial proceedings are fraudulent (e.g., fraudulent deed of trust, fraudulent assignment of mortgage, fr...

Excerpt: ... action (civil rights violations) is SUSTAINED with leave to amend. The demurrer to the third cause of action (civil rights violations) is SUSTAINED with leave to amend. The demurrer to the fourth cause of action (negligence) is SUSTAINED with leave to amend. The demurrer to the fifth cause of action (negligence per se) is OVERRULED as moot. The demurrer to the sixth cause of action (negligent retention and supervision) is SUSTAINED with leave to...

Excerpt: ...ode Civ. Proc., 5 430.30, subd. "A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible. " (S 430.20.) "A party who has filed a complaint or cross-complaint may, w...

Excerpt: ...4th 558, 565.) The parties may, among other things, agree that the arbitration agreement will be controlled bv 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." (g U.S.C. S 2.) The United States Supreme Court has descri...

Excerpt: ...s to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (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, s...

Excerpt: ...rties produce stock certificates, shareholder meeting minutes, IRS Form 2553, and documents identifying shareholders. The Moving Parties argue that the document requests are overbroad, seek irrelevant information, and seek their private/proprietary financial and corporate information. They also seek sanctions in the amount of $5,200 (each) against Plaintiff. On April 20, 2023, Plaintiff filed a combined opposition to the motions. Plaintiff argues...

Excerpt: ...nancial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) 1st cause of action. negligence. Defendants Thomas Courtney Dubar and Skyler Lambert do not demur to this cause of action. As to demurring defendants Ella Dubar, David Skorheim, and Eric Michael Massimo, the FAC states facts sufficient to constitute this cause of action. (See Ladd v. County of San Mateo (1996) 12 cal.4th 913, 917 [elements]; FAC 74 [duty], 36, 38, 40, 41, 4...

Excerpt: ... triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to ...

Excerpt: ...erial fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. 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. (Code Civ. Proc. (“CCP”)...

Excerpt: .... (Evid. Code, § 452, subd. (d); Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 67, fn. 1.) The Court finds Defendants complied with the meet-and-confer requirement prior to filing their Demurrer. (Code Civ. Proc., 430.41, subd. (a).) Standard for Demurrer “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following ...

Excerpt: ...g apply: “(1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents…is unwarranted…(3) an objection to an interrogatory is without merit or too general.” (Civ. Proc. Code § 2030.300(a)(1)-(3).) “An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not...

Excerpt: ...nial of the material allegations of the complaint controverted by the defendant' and ‘[a] statement of any new matter constituting a defense.' [Citation.] ‘The phrase “new matter” refers to something relied on by a defendant which is not put in issue by the plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as “new matter.” ' [Citation.] Such ‘ne...

Excerpt: ...) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. 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. (Code Civ. Proc. (“CCP”), § 437c(p)(2).) The scope of this burden is determined by th...

Excerpt: ...Code § 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 co...

Excerpt: ...y 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; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter G...

Excerpt: ...relief, along with a memorandum and a declaration containing facts sufficient to justify the sealing. (CRC 2.551(b)(1).) The motion must be served on all parties, and unless the court orders otherwise, a complete copy of the document must be served on all other parties that already possess copies, along with the redacted version. (CRC 2.551(b)(2).) To grant a motion to seal, the court must expressly find that: 1. an overriding interest exists tha...

Excerpt: ...reement. (Ideta Decl. II 4, Ex. A.) Pursuant to the agreement, Defendants agreed to pay Plaintiff an initial payment of $90,000 by 01/27/2023 and $38,000 by 02/05/2023. (Ideta Decl., Ex. A at S 1.) The agreement provides that: Contemporaneous with the execution of this Agreement, Defendants Diya and J. Samtani shall execute a Stipulation for Entry of Judgment (the "Stipulated Judgment"), in the form attached hereto as Exhibit A. The total amount ...

Excerpt: ...no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as t...

Excerpt: ...Second cause of action for violation of california civil Code section Third of action for Fraud in the Concealment, and Sixth cause of action for Negligent Misrepresentation Plaintiff alleges a variety of fraud based claims. Plaintiff alleges Defendants committed fraud by misrepresenting that they were or are the beneficiary of the contract that secured the Note and Deed of Trust. (FAC, '1 31.) Plaintiff alleges that Defendant MERS unlawfully rec...

Excerpt: ...urrer 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 court will not ...

Excerpt: ... Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active member of...

Excerpt: ...t the Agreement is governed by the Federal Arbitration Act. Instead, Plaintiff contends that the Agreement is unconscionable. If the party opposing the petition to compel arbitration raises a defense to enforcement, that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. (See Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4 th 394, 413.) An agreement ...

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: ...; (2) Fraud; (3) Intentional misrepresentation; (4) Negligent misrepresentation; (5) Intentional infliction of emotional distress; (6) Negligent infliction of emotional distress; (7) Negligent hiring, training, supervision, and retention; (8) Violation of Business & Professions Code § 17200; (9) Conversion; (10) Defamation; and (11) Violation of the Rosenthal Fair Debt Collection Practices Act § 1788. (2021 Action, ROA No. 2.) After the parties...

Excerpt: ...e FDA's website are “not the type of agency action we may judicially notice.” (Bridges v. Mt. San Jacinto Community College Dist. (2017) 14 Cal.App.5th 104, 117.) Even if the Court took judicial notice of these documents, which are considered government documents, it may only take judicial notice of their existence, not the truth of their content. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193 [“Although the audit repo...

Excerpt: ...ns of paragraph 6 of the Declaration of Mark Ankcorn in support of the motion for reconsideration. Specifically, the challenged declaration states, On December 5, 2022, I spoke with a Deputy Attorney General from the UCL enforcement division who I knew to be involved in the California Department of Justice's Experian investigation. During that conversation, I learned for the first time that the Attorney General had entered into a tolling agreemen...

Excerpt: ...tration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. (Id.) “ ‘Und...

Excerpt: ...burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, t...

Excerpt: ...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 Supreme Court has described this provision as reflecting both a “liberal federal policy favoring arbitration,” and the “fundamental principle that arbitration is a matter of contract.” (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ...

Excerpt: ..., Ex. A.) Parties moving to compel arbitration “may meet their initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060.) If the opposing party challenges the validity of that signature, however, the moving party must “establish by a preponderance of the evide...

Excerpt: ...n clause, it will usually be given effect unless it is unfair or unreasonable. [Citation.] Moreover, a court will normally reject any claims that the chosen forum is unfair or inconvenient. [Citation.] Also, “[a] court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience.” [Citation.]” (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 661.) A mandatory fo...

Excerpt: ...ation is simply a suit in equity seeking specific performance of that contract. (Little v. Pullman (2013) 219 Cal.App.4th 558, 565.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings, the trial court sits ...

Excerpt: ...below, the motion is GRANTED in part and DENIED in part. Failing to respond to an authorized method of discovery is a misuse of the discovery process warranting sanctions. Code Civ. Proc. § 2023.010(d). So, too, is disobeying a court order to provide discovery. (Id., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal. App. 4 th 1495, 1516.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley ...

Excerpt: ...ency 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 allege...

Excerpt: ...equitable estoppel when the claims against the nonsignatory are “dependent upon, or founded in and inextricably intertwined with,” the obligations imposed by the agreement containing the arbitration clause. (Goldman v. KPMG LLP (2009) 173 Cal.App.4th 209, 217-218; Marenco v. DirectTV LLC (2015) 233 Cal.App.4th 1409, 1419-1420 [equitable estoppel doctrine required employee who signed arbitration agreement with predecessor corporation to arbitr...

Excerpt: ...nislau (“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 Canyon Flood Control Channel”) and...

Excerpt: ...ession, fraud, or malice. Civ. Code § 3294(c) provides the following definitions: (1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's right...

Excerpt: ...t for the revocation of any contract.” (Code Civ. Proc., § 1281 [2]; see Fischer v. Superior Court in and for Los Angeles County (1930) 105 Cal.App. 466, 470 [arbitration statutes contemplate controversy either existing or which may subsequently arise out of a particular contract].) 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 ...

Excerpt: ...a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When 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 ...

Excerpt: ...tion to produce documents under Code of Civil Procedure section 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc. § 2030.300(a).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Cour...

Excerpt: ...bjections and that sets forth legally valid responses to each interrogatory, the untimely response might completely or substantially resolve the issues raised by a motion to compel responses under section 2030.290,” although the court still retains authority to hear the motion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407-409.) Even if valid responses are belatedly served, the Court can ...

Excerpt: ...ceptionally lenient treatment.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) Otherwise, “exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Id. at 985.) “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (...

Excerpt: ...ion. On 11/09/2022, the court continued this motion for further proof of service. The court finds Moving Defendants have submitted sufficient proof of service of the moving papers on Plaintiffs. Although Plaintiffs' opposition papers include no proof of service, the court finds that Defendants' filing a substantive reply brief addressing the opposition papers waives any objection Defendants may have had based on defects in service. Code of Civil ...

Excerpt: ...rits.” (§ 2033.300, subd. (b); Stover v. Bruntz (2017) 12 Cal.App.5th 19, 30-31; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420-1421.) “Section 2033.300 eliminates undeserved windfalls obtained through requests for admission and furthers the policy favoring the resolution of lawsuits on the merits. [Citation.]” (New Albertsons, supra, 168 Cal.App.4th at p. 1418.) While the Court's discretion is not unlimited, any ...

Excerpt: .... On September 21, 2022, Defendant Partners Personnel Management Services, LLC filed a motion to compel arbitration on the grounds that Plaintiff signed an arbitration agreement that covers her claims in this action. On December 21, 2022, Defendant 33 Degrees, LLC filed a joinder in the motion. On January 4, 2023, Plaintiff filed an opposition arguing that the agreement is procedurally unconscionable because the arbitration agreement is an adhesi...

Excerpt: ...he “avoidance of waste of time and money caused by the trial of issues which may be rendered moot.” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135; see Silver v. Shemanski (1949) 89 Cal.App.2d 520, 530 [“section 597 of the Code of Civil Procedure is but a legislative recognition of the power of a trial court under section 2042 of the Code of Civil Procedure and places an imprimatur upon a practice which contemplates a trial first ...

Excerpt: ...4th 826, 850.) 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. (Code Civ. Proc. (“CCP”), § 437c(p)(2).) 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 triable issue as to that a...

Excerpt: ...ere not sufficiently served in connection with that lawsuit. Specifically, Defendant attempted service at 1024 Iron Point Road, Suite 100 Folsom, California, 95630. (Id., ¶ 6.) Plaintiff Intellect IT's office, however, is suite number 1031, not suite 100. (Id., ¶ 7.) Defendant then attempted substitute service at that address. (Id., ¶ 8-9.) Defendant did not attempt to serve Plaintiffs at Plaintiff Dhaliwal's residence on file with the Secreta...

Excerpt: ...��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 is complaining, and wh...

Excerpt: ... Superior Court in and for Los Angeles County (1930) 105 Cal.App. 466, 470 [arbitration statutes contemplate controversy either existing or which may subsequently arise out of a particular contract].) 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 t...

Excerpt: ...ode § 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 cou...

Excerpt: ...022, Order. (06/29/22 Minute Order [ROA No. 84].) On July 26, 2022, Plaintiff submitted an Amended Verification that cured defects in Plaintiff's original verification and properly verified his Complaint. (Amended Verification [ROA No. 99].) Defendants contend that res judicata bars reconsideration of the personal jurisdiction issue. “ ‘Res judicata' describes the preclusive effect of a final judgment on the merits. Res judicata, or claim pre...

Excerpt: ..., materially affecting the substantial rights of the party and entitling the party to a different judgment: 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. 2. A judgment or decree not consistent with or not supported by the special verdict. (Code Civ. Proc., § 663.) The procedural n...

Excerpt: ...de Civ. Proc., § 2031.010, subd. (a).) A party may demand that any other party produce and permit the demanding party to inspect, copy, photograph, or sample the documents or tangible things that are in the possession, custody, or control of the party on whom the demand is made. (Code Civ. Proc., § 2031.010, subds. (b) & (c).) Any doubt about discovery is to be resolved in favor of disclosure. (Advanced Modular Sputtering, Inc. v. Superior Cour...

Excerpt: ...udicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. (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 ...

Excerpt: ...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 must be m...

Excerpt: ...recting 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, 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, subd. (a...

Excerpt: ... Evid. Code, § 452(h).) A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 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...

Excerpt: ...��shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and must be “reasonable in amount.” (Code Civ. Proc., § 1033.5(c).) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they are not reasonable or necessary.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Here, it is undispute...

Excerpt: ... only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.” (Code Civ. Proc § 2020.410 (a).)” (Board of Registered Nursing v. Superior Court of Orange County (202...

Excerpt: ..., (b), 2020.020(b).) If the nonparty deponent does not comply, the requesting party may move for an order directing compliance with the subpoena. (See Code Civ. Proc., § 2025.480; see also Code Civ. Proc., § 1987.1.) The instant motion concerns the business records subpoena issued to nonparty witness Custodian of Records for Pacific Premier Bank. (Waller Decl. ¶ 3, Ex. 1 [the “Subpoena”].) The Subpoena requests eight categories of document...

Excerpt: ...ED, with leave to amend, and the Motion to Strike is DENIED as moot. A. Second Cause of Action for Intentional Infliction of Emotional Distress The elements for intentional infliction of emotional distress (“IIED”) are: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and ...

Excerpt: ...e prevailing party. It is also undisputed that Plaintiff is entitled to recover statutory fees for the wage and hour and FEHA claims on which Plaintiff prevailed. Defendants argue cursorily that “Plaintiff's sexual harassment claims are sufficiently distinct from her other claims to justify a reduction of fees,” but Defendants fail to justify or support that argument. (See Opp. at p. 4.) Attorney's fees need not be apportioned when the issues...

Excerpt: ...ctual emotional distress; (3) Gann's seventh cause of action for Unlawful Discrimination/Harassment based on Disability per Government Code §12940 fails because Leiba is not Gann's employer and/or Gann did not sustain any adverse employment action; and (4) Gann's eighth cause of action for Unlawful Discrimination/Harassment based on Age per Government Code § 12940 fails because Leiba is not Gann's employer and/or Gann did not sustain any advers...

Excerpt: ...bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. 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 ac...

Excerpt: ...limited civil cases). ) The amount in controversy is the amount the plaintiff seeks to recover, excluding attorneys' fees, interests, and costs. (Code Civ. Proc. § 85.) Accordingly, the amount to be considered for jurisdiction includes punitive damages. The governing standard for reclassifying a case from unlimited to limited jurisdiction is found in W a l k e r v . S u p e r i o r C o u r t, 53 Cal. 3d 257 (1991). Under Walker, a trial court mu...

Excerpt: ...ssues. This type of severance order is commonly called “bifurcation.” Like other severance orders, bifurcation involves two separate trials in one action—i.e., a “liability trial” and then, if necessary, a “damages trial.” (Horton v. Jones (1972) 26 CA3d 952, 957.) The granting or denial of a motion to bifurcate lies within the sound discretion of the trial court. (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504.) ...

Excerpt: ...d complaint shall be served upon a defendant within three years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.210(a).) “[A]n action is commenced at the time the complaint is filed.” (Id.) “[O]nce one defendant is sued, all fictitiously named defendants must be brought in within a maximum period of three years ….” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 589, fn. 10; Inversione...

Excerpt: ...25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. 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. (Code Civ. Proc. § 437c(p)(2).) A cause of action “cannot be established” if the undisp...

Excerpt: ...bitration Agreement/s Plaintiffs signed an agreement with the Puente Hills Hyundai dealership titled Retail Installment Sale Contract – Simple Finance Charge (With Arbitration Provision), which was the sales agreement for their purchase of the vehicle at issue in this action. The arbitration provision of the sales contract states, in relevant part: ARBITRATION – PROVISION PLEASE REVIEW – IMPORTANT- AFFECTS YOUR LEGAL RIGHTS 1. EITHER YOU OR...

Excerpt: ...f as to Ellsworth Vines due to his testimony in this action that he declined Leiba's offer to serve as a Board Member on the Board of Directors of Westview Services. For the following reasons, Plaintiffs' motion for summary adjudication is DENIED. A plaintiff seeking summary judgment meets its 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 judgmen...

Excerpt: ...prior to filing a motion to strike. Subsection (a)(3) requires the moving party file and serve with the motion a declaration stating its compliance. Failing to meet and confer is not grounds to deny or grant the motion to strike. (Code Civ. Proc., § 435.5(a)(4).) MP submits a meet and confer declaration in compliance with Code Civ. Proc. § 435.5. (See Safar Decl. ¶ 2, Ex. A.) B. General Principles re Motions to Strike Pursuant to Code of Civil...

Excerpt: ...mistake, inadvertence, surprise, or excusable neglect.”  (Cal. Civ. Proc. Code § 473(b).)  “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  (Id.)   When the court grants ...

Excerpt: ...specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Ct., Rule 3.1350(b); see also Code Civ. Proc., § 1010.) A party may move for summary adjudication “involving separate and distinct wrongful acts which are combined in the same cause of action. To rule otherwise would defeat the time and cost saving purposes of the amendment and allow a cause of action in its...

Excerpt: ... 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 alleged in the complaint unless they...

Excerpt: ...ilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) 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. (Code Civ. Proc. (“CCP”), § 437c(p)(2).) Once the moving party meets that burden, the burden shifts to the party opposing MSJ to show, by reference to specific facts, ...

Excerpt: ...s liberally and in context--any 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 pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially notic...

Excerpt: ...he name of a party, 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...

Excerpt: ...ks, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, i...

Excerpt: ...onstitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010(g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. ...

Excerpt: ...a, Inc. (2010) 191 Cal.App.4th 53, 63; Cal. Civ. Code § 3294(a); See also, Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff”).) “‘Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by t...

Excerpt: ...ear to be proper charges, the burden is on the party seeking to tax costs to show that they are not reasonable or necessary.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Here, it is undisputed that Defendants are the prevailing parties. Item 4. Deposition Costs Plaintiff argues that Defendant is not entitled to recover the court reporter fee for same-day cancellation, which is listed under “travel” for the Deposition of Brad Avrit....

Excerpt: ...Therefore, by signing below, and in consideration of the parties' mutual agreement to arbitrate, the parties agree that if informal resolution is not possible, any and all claims or disputes arising from or related to this Agreement or to your rights, obligations, care, or services at the Community shall be resolved by submission to neutral, binding arbitration in accordance with the Federal Arbitration Act. … Unless excluded under subsection 2...

Excerpt: ...3.280(b).)  The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party's failure to respond was the result of mistake, inadvertence, or excusable neglect.  (Code Civ. Proc., § 2033.280 (a)(1)-(2).)  Plaintiff served the requests for admission at issue by pers...

Excerpt: ...jection to the request. (Code Civ. Proc., §§ 2030.290(a), 2031.300(a), 2033.280(a).) However, the trial court can relieve a party from such a waiver if “both of the following conditions are satisfied: “(1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240 [interrogatories]; 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 [requests for production]; and...

Excerpt: ...termination of good faith settlement are governed by Code of Civil Procedure section 877.6, which provides, in pertinent part: (a)(1) Any party to an action in which it is alleged that two or more parties are joint tortfeasors ... shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provid...

Excerpt: ...ons 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 complaint set forth t...

Excerpt: ...actual 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 infe...

Excerpt: ...lantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) A plaintiff moving for summary judgment satisfies his or her initial burden by showing with competent evidence that each element of the cause of action in question has been “proved,” and hence that there is no defense thereto. (See ibid.) Once the moving party meets that burden...

Excerpt: ...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 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff nee...