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: ...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: ...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: ...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...

Excerpt: ...��in person or by telephone” with the party that filed the offending pleading. (Code Civ. Proc. §§ 430.41, 435.5; Palmer Dec.) 2. General Principles on a 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...

Excerpt: ...r an order compelling a deponent's attendance and production of documents, if a party “fails to appear for examination” or fails “to produce for inspection any document…described in the deposition notice.” (CCP § 2025.450(a)). In addition, pursuant to CCP § 2025.450(b)(2), a motion brought under this provision shall “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the dep...

Excerpt: ... 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 issue presented, and (3...

Excerpt: ...d published federal district court cases are citable as persuasive authority (Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556, 576, fn. 8; Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, 219), and the court must take judicial notice of the decisional law of this state and of the United States (Evid. Code, § 451(a).). B. Whether The Arbitration Agreement is Sufficiently Authenticated Defendant attempts to authenticate the Retail Installme...

Excerpt: ... approximately in debt encumbered against the Subject Property in favor of PHH.” (¶42 of FAC). Thereafter, Plaintiffs allege this fact was false as, “[i]n addition to the PHH Lien, there were Tax liens and Judgment liens, and the existence of a note secured by a deed of trust in second position after PHH in the amount of $76,000.00, all recorded against the Subject Property, which were never disclosed to Plaintiffs…” (¶43 of FAC). In de...

Excerpt: ...(the “Kresses”) modified the Association's slope easement without prior approval from the Association, modified the top of slop of the easement, installed a wall closer than 10 feet from the top of slope, and removing and/or damaging Association improvements within the slope easement. (Cross-Compl. ¶ 13.) Background In March 2020, the Association served a notice of inspection for the Kresses' side and rear yards, as well as the slope. In res...

Excerpt: ... is equivalent to personal service of summons on such party.” (Code Civ. Proc. § 410.50(a).) “If the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one.” (Factor Health Mgmt. v. Sup.Ct. (Apex Therapeutic Care, Inc.) (2005) 132 Cal.App.4th 246, 250.) “An appearance is general if it is for any purpose other than to question the court...

Excerpt: ...done in person in the Philippines in local currency. Each and everyone will be responsible for the disposition and remittance of their funds to their own bank account. (Compl., Ex. 1 at ¶ 3.) The Complaint alleges that in or around 06/08/2019, Mr. Reynado sold the real property and deposited the sales proceeds, but failed to distribute the proceeds. Mr. Reynado submits a declaration confirming that he sold the property and deposited the entirety...

Excerpt: ...dentity and the specialty, if any, of the person(s) who will perform the examination. (Code Civ. Proc., § 2032.310(b).) Defendant filed an amended notice of motion complying with the statute. Code of Civil Procedure Section 2032.220(a) provides that any defendant may demand one physical examination of the plaintiff seeking damages for personal injuries. A party desiring to obtain discovery by a second physical examination or mental examination m...

Excerpt: ...ng in various locations, depending on the classification of the action and the classification of the parties. (Rycz v. Superior Court of San Francisco County (2022) 81 Cal.App.5th 824.) “Where there are multiple parties and causes of action, venue may be proper in more than one county.” (Id.) Code of Civil Procedure section 395(a), provides, in pertinent part: “Except as otherwise provided by law and subject to the power of the court to tra...

Excerpt: ...Demurrer to the First Amended Cross- complaint (“FACC”). (ROA 265) The court overruled the First, Third and Fourth Causes of Action. The court sustained with leave to amend the Fifth, Seventh and Eighth Causes of Action. On 5/10/22, the Second Amended Cross-Complaint (SACC) was filed. (ROA 225). The causes of action were for (1) Rescission; (2) Breach of Contract; (3) Constructive Fraud; (4) Promissory Fraud; (5) Fraud (Intentional Misreprese...

Excerpt: ... Subpoena for Production of Business Records issued to Jeff Jafari c/o Grant Law. Unfortunately, the court cannot accommodate the unscheduled motions on its law and motion calendar. Accordingly, the court will construe Defendants/Cross-Complainants' motion as a motion to quash the Deposition Subpoena for Production of Business Records issued to JP Morgan Chase Bank, N.A. or, in the alternative, to enter a protective order or modify the subpoena. ...

Excerpt: ...peal's remittitur explicitly directed this court to: “Consider the supplemental reply declaration, rule on any substantive evidentiary objections to this new information, and then decide whether this unsigned agreement was authentic and enforceable against Khairi.” (Remittitur at p. 16.) Plaintiff contends that the plain terms of the appellate court's opinion direct this court to consider the new evidence on reply as well as substantive objec...

Excerpt: ... (Amundson Decl. ¶ 4.) After the setting of a trial date, any party may demand “a mutual and simultaneous exchange” of a list of expert witnesses the parties “expect” to call as expert witnesses at trial. (Code Civ. Proc. §§ 2034.210, subd. (a), 2034.260, subd. (b).) Within 20 days after the initial disclosure of expert witnesses, parties who engaged in the initial exchange may submit a supplemental expert witness list containing the n...

Excerpt: ...h 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, 844, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The trial court properly grants the motion if all the papers submitted establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of la...

Excerpt: ... PRJKT Concessions. (ROA 436.) The inadequate allegations alleged against PRJKT are equally inadequate as alleged against Defendant Whitney. First Cause of Action for Breach of Contract One of the key elements of breach of contract is that Plaintiff and Defendant entered into a contract. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) The TAC alleged that Freeze Management and only PRJKT entered into an oral contract. (Paragraph 25.) Plai...

Excerpt: ...(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 what remedies are being sought. (Lee...

Excerpt: ...ULED as to the Fourth Cause of Action for Fraud. The First Cause of Action With respect to the First Cause of Action, the elements of civil battery are: (1) Defendant intentionally performed an act that resulted in a harmful or offensive contact with the Plaintiff's person; (2) Plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to Plaintiff. (Brown v. Ransweiler (2009) 171 Cal.Ap...

Excerpt: ...ve upon such grounds as exist at law or equity for the revocation of any contract . . . .” In CA, those grounds include unconscionability. There is no dispute there is a written agreement to arbitrate. The only issue is whether it is unconscionable. Both procedural and substantive unconscionability must be present before a court can refuse to enforce an arbitration provision based on unconscionability. Armendariz v. Foundation Health Psychcare ...

Excerpt: ...lar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The trial court properly grants the motion if all the papers submitted establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Id. at p. 843, 107 Cal.Rptr.2d 841, 24 P.3d 493; Code Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden to make a prima facie showing that no ...

Excerpt: ...c., § 2030.220(a).) In responding to an interrogatory, if the responding party “does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Code Civ. Proc., § 2030.220(c).) “If only par...

Excerpt: ...ng meet and confer declaration to “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” 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 lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants thro...

Excerpt: ...oted thereby, on motion 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 for special defenses which may be tried first pursuant to Sections 597 a...

Excerpt: ...).) 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 triable issue as to that affirmative defense or cause of action. (Id.; Villacre...

Excerpt: ...for answer or demurrer. (Code Civ. Proc., § 473(a)(1).) The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473(a)(1).) Additionally, any judge, at any time before or after commencement of trial, in the furthera...

Excerpt: ...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.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-1405.) Questions of fact cannot be decided on demurrer. (B...

Excerpt: ...randum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4 th 11, 29.) The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs a...

Excerpt: ...r Request Nos. 17-35, 37-40, 42, 44, 46, 50-69, 71-72, and 77-81, the Requests are moot, because these have been resolved. (See ROA 309, Reply Appendix.) Within thirty (30) days of notice of this ruling, Defendant Shoebacca shall serve responses to Request for Production Nos. 36, 50-55, 62, 63, 73, 74, 75, 76 and 96 to 107. For Request Nos. 41, 43, and 45, Defendant Shoebacca shall produce a privilege log within thirty (30) days of notice of this...

Excerpt: ...ponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) The burden is on the party seeking the protective order to show “good cause” for whatever order is sought. (Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255; Stadish v. Super. Ct. (1999) 71 Cal.App.4th 1130, 1145.) “The concept of good cause . . . calls for a f...

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: ...urs to the Second Amended Complaint of Plaintiffs Doreen Lohnes, Jesse Lohnes, Alexander Delfsage Mayla Lohnes, Mariah Delaney Delfsage, and Brady Delfsage. Plaintiffs chose not to oppose the demurrer. For the following reasons, the demurrer is SUSTAINED without leave to amend. Motion No. 3: Defendants Kaveh Rezvan, William Chang, Rahul Kale, Sanjivan Kohli demur to the Second Amended Complaint of Plaintiffs Doreen Lohnes, Jesse Lohnes, Alexander...

Excerpt: ... (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 issue presented, and (3) be accompanied by a separate statement. (Code Civ. Proc., §§ 2030.300...

Excerpt: ...option to produce documents under California 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).) “Parties must state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64,...

Excerpt: ...greement”) states, in pertinent part: Transform Holdco LLC (“Transformco” or “Company”) and you (“Associate) (collectively the “Parties”) agree to use binding arbitration, instead of going to court, for any “Covered Claims” that arise or have arisen between you and Transformco, and/or other current or future subsidiary companies, successors or assigns, or any current or former employee of Transformco acting within the scope of...

Excerpt: ...ur x 10 hours) + $60 for filing fee).] The Requests for Admissions (Set Two) contained requests Nos. 51 to 89. Cross-Defendant Yard House USA, Inc. objected to every one of the requests. The court finds the objections were without merit. In response to Request for Admissions Nos. 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 68, 73, 82, 84, 88 & 89, Yard House USA, Inc. stated: “Responding party objects to the request on the g...

Excerpt: ...FA employee Flow Servan approached Ellen Manley by telephone and email with interest in acquiring Manley's Boiler. (E. Manley Decl. ¶ 8.) After sending a letter of intent, he flew out to California to meet with Ellen Manley and her husband to further negotiate an acquisition. (Id.) SFA is not a party to any of the agreements at issue in this action. (See Bovard Decl.¶ 7.) SFA is the ultimate parent of Manley's LLC. (Alvarez Depo. at 47:14-18.) ...

Excerpt: ...enses. Plaintiff sued for breach of contract, fraud, conversion, and other claims. In the early iterations of the Complaint, Defendant Ewin Ashely, M.D. is alleged only to have “participated and consented.” Defendants' default was entered on 4/10/2018. A default judgment in the amount of $400,785 was entered on 9/17/2019 against those listed in attached judgment caption – but there was no such attachment. The Judgment also refers to an atta...

Excerpt: ...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. On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (A...

Excerpt: ...rt 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 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....

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

Excerpt: ... Its nature (e.g., “for fraud”); (3) The party asserting it if more than one party is represented on the pleading (e.g., “by plaintiff Jones”); and (4) The party or parties to whom it is directed (e.g., “against defendant Smith”). Here, Plaintiffs' complaint does not comply with California Rules of Court, Rule 2.112, and instead identifies no causes of action. The complaint, therefore, effectively includes a single claim. "A motion fo...

Excerpt: ...ting 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) 2...

Excerpt: ...ril 13, 2022, the Honorable Randell L. Wilkinson presided over the hearing on Defendants David Berg's and Berg & Androphy's Motion to Quash. (ROA No. 52 [04/13/22 Minute Order].) The April 13, 2022, Minute Order indicates that a hearing was held with all participants appearing remotely and that the court, “having fully considered the arguments of all parties, both written and oral, as well as the evidence presented” took the matter under subm...