Excerpt: ...st Calhoon, bu t both the underlying discovery requests were served on Thomas's behalf only.] Initially, the court notes Thomas timely filed a proof of service relating to both motions, but the proof is for electronic service only. Gary II is selfrepresented, and theref ore may be served electronically only if he has expressly consented to electronic service, and electronic filing does not constitute express consent to electronic service. (Code...

Excerpt: ...sert the c laims due to the Divorce Decree issued by the Court of Common Pleas of Lancaster County, Pennsylvania, on September 29, 2023 (Divorce Decree). Specifically, Chartwell contends the Divorce Decree awarded the entire value of the “martial interest in Chartwe ll” to Tracy, Plaintiff's now ex -wife, and awarded Plaintiff nothing regarding the Chartwell shares. (See RJN, Exh. A, pp. 14, 18, 29.) Chartwell further contends, under New Yor...

Excerpt: ...d until nea rly 9:00 p.m. on April 8, 2024 —i.e., nearly a week late and after the close of business on the same day Smith's reply was due. Plaintiff provides no explanation or justification for failing to timely serve the opposition, and the late filing of the opposi tion has deprived Smith of its opportunity to file anything more than an untimely, truncated opposition. The court therefore exercises it discretion to refuse to consider the o...

Excerpt: ...e demurrers a re virtually identical and assert the same challenges to the FAC. As such, the demurrers will be addressed together with any significant distinctions highlighted. Defendants' challenge both the first cause of action for medical negligence and the second c ause of action for fraud on the ground “[Defendants are] . . improper doe defendant[s]. (Code of Civil Procedure section 474.)” (Demurrers, p. 3, lines 5, 9.) Whether a defen...

Excerpt: ...hat 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 burden, the burden shifts to the defendant or cross -defendant to show that a triable issue of one or mo re material facts exists as to the cause of action or a defense thereto. The defendant or cross- defendant shall not rely upon the allegations or denials of its pleadings to show...

Excerpt: ... of action for declaratory and injunctive relief. The demurrer is SUSTAINED IN PART and OVERRULED IN PART as set forth below. Second Cause of Action (Breach of Oral Contract): “The elements of a breach of oral contract cause are: ‘(1) existence of the contract; ( 2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.' [Citations.]” (Aton Center, Inc. v...

Excerpt: ...e allegations are mere conclusions. [Citations.] Some particularized facts demonstrating a constitutional deprivation are needed to sustain a cause of action under the Civil Rights Act. [Citations.]” (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 564) When address ing federal statutes, it is appropriate to apply federal law. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 563 [“we hold that the state courts of California should apply...

Excerpt: ...essor in interest to Leonel Cordova and the Estate of Leonel Cordova (collectively, Plaintiffs). As set forth below, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. On October 2, 2023, the court sustained the Defendants' demurrer to the first cause of action for negl igence and allowed the Plaintiffs 20 days leave to amend. The basis for granting leave to amend was to allow Plaintiffs to either consolidate the negligence and premises liability...

Excerpt: ...e untimely reply. All briefs should be filed as required by the code. First Cause of Action (Civil Conspiracy to Commit Extortion): This cause of action is not sufficiently pled. Initially, the court overrules the challenge this cause of action is barred by certain terms of the Settlement Agreement. Le's claims include a claim to rescind the Settlement Agreement. If Le succeeds in rescinding the Settlement Agreement, then its terms would not bar...

Excerpt: ...court notes it is unclear whether the papers were properly served on Defendants. The proofs of service filed on March 1, 2024 (ROA 31, 33) are internally inconsistent. The proof of service on the judicial council form states the documents identified in the attachme nt were personally served on Nino Riazati on March 1, 2024, at 10:05 a.m., at 4343 Von Karmen Ave, Ste. 250, Newport Beach, CA 92660, which is the office of Plaintiff's counsel. This...

Excerpt: ... third causes of action in the F AC. For the reasons set forth below, both motions are DENIED. Because the motions and oppositions raise essentially the same arguments, involve very similar evidence, and are directed to the same pleading, the court will discuss both motions together. Th e party moving for summary judgment “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fa...

Excerpt: ...n 1: Sanctions Motion by Defenda nts Defendants' request for sanctions under Code of Civil Procedure section 128.7 is DENIED because Defendants failed to comply with the safe harbor requirements. Section 128.7, subdivision (c)(1) requires notice of motion to be served as provided in Sect ion 1010, but shall not be filed or presented to the court unless, within 21 days after service of the motion the challenged paper is not withdrawn. Section 101...

Excerpt: ...ce infliction of emotional distress alleged in the second amended complaint (SAC) of plaintiff Stella Tritakis (Plaintiff). The is DENIED as set forth below. “In applying this statute, a court generally is required to engage in a two -step process. ‘First, Civil Procedure Code section 425.16 , subdivision (b), provides in relevant part: “A cause of action against a person arising from any act of that person in furtherance of the person's r...

Excerpt: ... even if not separately pleaded, ca nnot be established, or that there is a complete defense to the cause of action. O nce th e d efend ant o r cross -defendant has met that burden, the burden shifts to the plaintiff or cross- complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross -complainant shall not rely upon the allegations or denials of its pleadin...

Excerpt: ...the defendant's breach and resulting damage.” (Harris v. Rudin, R ichman & Appel (1999) 74 Cal.App.4th 299, 307.) Per the complaint, the parties entered into a Reseller Agreement on January 1, 2019 (Comp. ¶10 & Exhibit 1), which was amended on August 26, 2019 (Comp. ¶17 & Exhibit 1 -A) and again on November 4, 2021 (Com p. ¶18 & Exhibit 1 -B). The complaint includes several allegations of alleged breaches. (Comp. ¶¶39 -49.) Defendant, in t...

Excerpt: ...dicial Council form complaint and alleged a cause of action for intentional tort. (See Complaint, p. 5.) Plaintiffs allege (1) Defendant had a duty to avoid driving a motor vehicle while intoxicated or under the influence of a controlled substance; (2) immediately prior to driving, Defendant chose to consume alcohol/drugs until he was under the influence; (3) the substances severely impaired his physical and mental faculties; (4) he chose to in...

Excerpt: ... the contract or excuse for nonperformance, the defendant's breach and resul ting damage.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Defendants demur to the breach of contract claim, asserting the “facts pleaded in the Complaint fail to state any specific terms of any such agreement that Defendants breache d, and how Plaintiff fully performed under the terms of the agreement.” (Demurrer 4:22 -25.) Contrary to the a...

Excerpt: ...hth, tenth, and elev enth causes of action on the grounds they do not state sufficient facts to constitute a cause of action against Quan/MTC and they are uncertain. (Code Civ. Proc. §§ 430.10(e) and (f).) A demurrer challenges the defects appearing on the face of the pleadin g or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of th...

Excerpt: ...n 128.5, filed by Plaintiff on July 21, 202 3, as ROA 285; (5) The “Motion for Sanctions” under Code of Civil Procedure section 128.5, etc., filed by Plaintiff on July 21, 2023, as ROA 290; (6) The “Motion for Reconsideration” filed by Plaintiff on July 21, 2023, as ROA 280; (7) The “Motion to Reconsideration” filed by Plaintiff on December 18, 2023 as ROA 363; and (8) The “Motion to Quash Service of Summons” filed by defenda...

Excerpt: ...roperly subject to judici al notice. (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. (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 i...

Excerpt: ...3, Fuentes reached a settlement with Plaintiff for $90,000. (Settlement Agreement attached as Exh. A to Application.) Fuentes then filed an application for a good faith settlement determination under Code of Civil Procedure section 877.6. In response, Garcia filed the instant motion contesting the good faith of the settlement. The party asserting the lack of good faith shall have the burden of proof on that issue. (Code Civ. Proc. § 877.6(d).)...

Excerpt: ...he attachment is greater than zero . (See Code Civ. Proc., §§ 483.010 and 484.090; see generally King Decl.; Vanecek Decl., ¶ 3, Exh. F at 80:10 -18; verified application at ¶ 4). The court also finds Apex has shown a probability of prevailing on its contractual claim against Christiansen. “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperform...

Excerpt: ...e reasons for the discovery; (2) the diligence or lack of diligence o f the party seeking the discovery or the hearing of a discovery motion, and the reasons the discovery was not completed or the discovery motion was not heard earlier; (3) any likelihood that permitting the discovery or hearing the discovery motion will pre vent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice t...

Excerpt: ...her be stated verbatim in the petition or attache d thereto. (Cal. Rules Ct., rule 3.1330.) Here, the motion demonstrates plaintiff Cristian Galindo (Plaintiff) entered into an agreement to arbitrate (Agreement). A copy of the Agreement has been provided with the motion. (Motion, Exh. A.) The Agree ment plainly encompasses the types of claims asserted here. Plaintiff does not dispute he signed the Agreement, although he claims to have been rushed...

Excerpt: ...ise, or excusable neglect, or he seeks relief based on the mandatory relief provision of Section 473(b) and his attorney's mistake, inadvertence, surprise, or neglect. The notice and motion only refer to relieve under the discretionary relief provision of Section 473(b), but Grantham attaches a declaration by his attorney, Mr. Iskander, who vaguely claims the default was entered due to his mistake (to the extent it was a mistake) in Þling the an...

Excerpt: ...ce camera and system ocused on the area. Site inspections are permissible under Code o Civil Procedure section 2031.010, et seq. Through no ault o Plainti
¯s, they were unable to view/access the surveillance system at the school. While the system is purported to be controlled at a district o
¯ice and not at the school itsel, Deendant stated the camera view may be accessed on-campus through a laptop. This was unable to occur at the origina...

Excerpt: ...gatory no. 12.1, GM provided only a cursory response. The party responding to an interrogatory is to make a reasonable and good faith e
¯ort to obtain the information by inquiry to other natural persons or organizations, and has a duty to conduct a reasonable investigation to obtain responsive information and furnish information from all sources under his or her control. (Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496...

Excerpt: ... Dara Whitworth, Mackenzie Whitworth, and Ryland Whitworth. (ROA 264.) On April 18, 2023, Plainti
¯'s c o u n s e l Timothy Fatone submitted a declaration as an “Opposition to Defendant Ford Motor Company's Motions to Compel Deposition of 3rd Party Witnesses.” Mr. Fatone stated he was not opposing the motion and “My o
¯ice is willing to produce all three witnesses for deposition (Dara, Ryland and McKenzie Whitworth) now that all the parti...

Excerpt: ...ny dispute between Owner and Broker relating to this Agreement, the Property or Owner or Brokers performance hereunder, Owner and Broker agree that such dispute shall be resolved by means of binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association . . . .” (Id. at ¶11.) Defendant does not dispute the existence of the above agreement, her signature thereon, or its application to Plainti
¯...

Excerpt: ...waived and the court will proceed to rule on the merits. Nonetheless, the court cautons the parties to properly file proofs of service or future filings may not be considered. By this motion, Defendant seeks to set aside the default under the mandatory attorney affidavit of fault provision in Code of Civil Procedure section 473, subdivision (b). Section 473, subdivision (b) includes a discretionary relief provision and a mandatory relief provisio...

Excerpt: ...ion 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice." Here,...

Excerpt: ...en agreement to arbitrate and the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (Cal. Rules Ct„ rule 3.1330.) Here, the motion demonstrates plaintiff Pablo Franco (Plaintiff) and Defendant entered into the "Retail Installment Sale Contract — Simple Finance Charge (With Arbitration ProvSion)" (RISC) when Plaintiff bought the vehicle. Defendant has provided copies of the pertinent po...

Excerpt: ..., S 437c, subd. (f)(2).) To be successful, a summary adjudication motion must completely dispose of the entire cause of action, defense, damages claim, or duty to which the motion is directed. (Code Civ. Proc„ S 437c, subd. (f)(l).) As noted, H8F seeks summary adjudication on its second cause of acton for express indemnity. In that cause of action, HBF alleges TAP has a contractual duty to defend, indemnify, and hold HBF harmless. (HBF XC at 91...

Excerpt: ...elow. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (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. (Del E. Webb Corporation v. Structural Materials Co. ...

Excerpt: ...facts are true, but the court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff alleges two causes of action against Chapman—i.e., the third cause of action for negligence and the fourth cause of action for violation of Title IX of the Education Amendments of 1972. The demurrer contends Plaintiff has failed to plead sufficient facts to state either of thes...

Excerpt: ...ses compulsory cross-complaints, provides: "A party who fails to plead a cause of action, subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross- complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be ju...

Excerpt: ..., 2023, the court granted the motion to compel and ordered Mrs. Whitworth's depositon to go forward on July 18, 2023. (ROA 308, 301.) On July 18, 2023, Mrs. Whitworth appeared for her deposition, but after what appears to have been a deliberate attempt to obstruct the process, and three instances of instructing the witness not to answer, Ford opted to adjourn the deposition and file the subject motion. Code of Civil Procedure section 2025.460(e) ...

Excerpt: ...o show they were not reasonable or necessary. (Fairbank, et al., Cal Prac. Guide: Civ. Trials & Evid. (The Rutter Group 2023) 917:526, citing Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774-776; Bender v. County of Los Angeles (2013) 217 cal.App.4th 968, 989; and Jones v. Dumrichob (1998) 63 cal.App.4th 1258, 1266 [mere statements in memorandum of points and authorities and declaration of counsel insufficient to rebut prima f...

Excerpt: ...l Dr. Shoghian's Deposition This unopposed motion is GRANTED. The District served Dr. Shoghian with a deposition subpoena requiring her to appear for deposition and produce documents. The District attempted to coordinate dates with Dr. Shoghian, but she refused to provide dates or otherwise appear. She was served with copies of the moving papers and all other documents relating to this motion, but has not responded in any way or otherwise made an...

Excerpt: ..., and CHOC through its joinder, technically have brought the wrong motion. It is undisputed Plaintiff previously appeared for deposition in this action in February 2022, and at that time Western Pump and CHOC asked all questions they had of Plaintiff before stating they have no further questions. As such, the deposition was completed. "Once any party has taken the deposition of any natural person, including that of a party to the action, neither ...

Excerpt: ...tiff has shown, the materials at issue are essential to prepare for now imminent depositions, among other things. Accordingly, the court grants the motion to the extent it seeks additional time to respond, but orders compliance by December 29, 2023, to allow time to review the documents in preparation for the depositions and otherwise proceed with the litigation. In the reply brief, Stamos improperly seeks additional forms of relief that were not...

Excerpt: ...gotiation and informal resolution. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).) "[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." (Ibid.) The particular level of effort required in each case depends on the circumstances including the amount of discovery propounded, the time available to confer before the motion filing deadline, and the extent to which a party was c...

Excerpt: ...n of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a d...

Excerpt: ...s the fifth cause of achon for negligence, the seventh cause of action for imposition of equitable lien (Civil Code S 3543), and eighth cause of action for imposition of equitable lien (equitable subrogation). The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to each of the three challenged causes of action. Fifth Cause of Acton (Negligence): The elements of a negligence cause of action are: (1) duty; (2) breach; (3) proximate or legal cause of...

Excerpt: ... sufficient facts to state a cause of action because Plaintiff "lacks stand-ng to maintain this lawsuit." This challenge is based on the contention Plaintiff is a foreign limited liability company that has failed to qualify to transact intrastate business in California. (Corp. Code S 17708.07(a) ["A foreign limited liability company transacting intrastate business in this state shall not maintain an action or proceed-ng in this state unless it ha...

Excerpt: ...gery and requesting leave to amend. Failure to oppose a demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 cal.App.4th 1, 20, sexton v. superior court (1997) 58 cal.App.4th 1403, 1410, Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1322, and Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) A party who files no opposition also has no right to present argument at ...

Excerpt: ... 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 proceed-ng 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(a)(1).) Additionally, any judge, at any tme before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allo...

Excerpt: ...iction of emotional distress are: '(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. ' The defendant must have engaged in 'conduct intended to inflict injury or engaged in w...

Excerpt: ... Smith's FACC and portions thereof; and (4) motion to strike Ms. Smith's TACC and portions thereof. The parties all agree the allegations of the two cross- complaints are essentially identical and the parties' various arguments apply equally to both demurrers and both motons to strike. As such, both demurrers are analyzed together and both motions to strike are analyzed together. Motion Nos. 1 & 2: Demurrers Attorneys' demurrers to Mr. Smith's FA...

Excerpt: ...1: Motion to Compel Arbitration This motion is GRANTED IN PART and DENIED IN PART with stays as set forth herein. A petition to compel arbitration must allege both (1) a "written agreement to arbitrate" the controversy, and (2) a party to the agreement "refuses to arbitrate" the controversy. (Code Civ. Proc. S 1281.2.) The court shall grant the petition unless the petitioner waived the right to compel arbitration, or other grounds exist for resci...

Excerpt: ... (4) "Motion to Compel Plaintiff Martin Alvarado's Supplemental Responses to Request for Production of Documents (Set One)." No opposition has been presented by either plaintiff Veronica Alvarado or plaintiff Martin Alvarado (collectively, Plaintiffs) as to any of these motions. Motion Nos. 1 & 2: Form Interrogatories These motions are GRANTED IN PART. As a preliminary matter, the court was forced to discern the intended scope of the motions from...

Excerpt: ...ly, the court notes the moving papers improperly cite to an unpublished opinion—Tucker v. Cunningham 2015 Cab App. unpub. LEXIS 9416. It is improper for any party or the court to cite to a California state court appellate opinion that has not been certified for publication. (Cal. Rules of Ct., rule 8.1115(a).) Repeated violation of this rule may give rise to sanctions. In ruling on a special motion to strike made under section 425.16, the trial...

Excerpt: ...xpert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of university of California (1989) 215 Cal.App.3d 977, 984-985; see also AVIVi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2 [elements of medical malpracticel.) Simila...

Excerpt: ...wan (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. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) "In our examination of the complaint we are guided by the well settled principles governing the testing of its suffic...

Excerpt: ...nt on the pleadings, of defendant Irvine Sensors Corporation ('SC) to the Plaintiffs' SAC. Motion No. 1: Mr. Carson's Demurrer First Cause of Action (Unpaid Contract Wages): "Section 204 imposes an obligation of timely payment of wages upon California employers and provdes rules for scheduling wage payments .... [Y] [T]he sole purpose of [section 204] is to require an employer of labor who comes within its terms to maintain two regular pay days e...

Excerpt: ...(5) Any and all other references to punitive or exemplary damages. Civil Code section 3294, subdivision (a), permits the recovery of punitive damages upon a clear and convincing showing a defendant is guilty of oppression, fraud, or malice. "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 saf...

Excerpt: ...n states, "An application for a provisional remedy under subdivision (b) shall not operate to waive any right of arbitration which the applicant may have pursuant to a written agreement to arbitrate, if, at the same tme as the application for a provisional remedy is presented, the applicant also presents to the court an application that all other proceed-ngs in the action be stayed pending the arbitration of any issue, question, or dispute which ...

Excerpt: ...at 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. In determining if the papers show that there is 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...

Excerpt: ...emurrer, 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 allegatons 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. Me...

Excerpt: ...ts, even if not separately pleaded, cannot be established, or there is a complete defense to the cause of acton. Once the defendant has met that burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Civ. Proc. Code S 437c(p)(2).) "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to a...

Excerpt: ... Defendants. Motion No. 1: Motion to Bifurcate The court reserves ruling on this motion until the time of trial when it will have further information relating to the issues and evidence in the case. NO FURTHER BRIEFING WILL BE PERMITTED. Motion No. 2: Demurrer Kote demurs to the entire FAC on a number of grounds, including, but not limited to, another action pending, the claims are subject to mandatory dismissal under Code of Civil Procedure sect...

Excerpt: ...ank, N.A. (2013) 214 cal.App.4th 743, 752-754.) on December 13, 2022, the court (Judge Gastelum) granted a motion to dismiss filed by defendants BRC Inc., Authentic Brands LLC, and Black Rifle Coffee Company LLC (collectively, BRC Defendants), and the corresponding joinder filed by Engaged, as to the first through fourth causes of action in the Complaint and denied the motion as to the fifth cause of action (which is now the entire FAC). (ROA 75....

Excerpt: ...rth amended crosscomplaint as to Shapiro is GRANTED. Here, Cross-complainants filed their original crosscomplaint naming, among others, Roes (or Does) 1 to IW on November 12, 2019. The operative fourth amended cross-complaint was filed on May 9, 2022, and contnues to name the same fictitious cross-defendants. On February 1, 2023, Cross-complaints filed an amendment naming Shapiro as Roe 1. Again, all Roes were named in the original cross-complain...

Excerpt: ...ed a cross-complaint against Garcia alleging various causes of action for negligence per se (Civil Code S 1708), abuse of process, wrongful use of civil proceedings, malicious prosecution, and negligent infliction of emotional distress. On April 6, 2023, Garcia filed this motion to strike, and on April 10, 2023, Sanchez dismissed his cross-complaint. If a plaintiff or cross-complainant voluntarily dismisses their claims after the defendant or cro...

Excerpt: ...rt must harmonize the public policy favoring settlements with the competing public policy favoring equitable sharing of costs among tortfeasors. To accomplish this, the settlement must be within the "reasonable range" (within the "ballpark") of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal. 3d 488, 499.) However, "even where the claimant's damages are obviously...

Excerpt: ...rt (2002) 95 cal.App.4th 92, 98 [burden shifts to objector after good cause shown for requests for production].) The court finds Plaintiff has demonstrated good cause for the documents requested. These requests seek documents relevant to Plaintiff's calculation of damages and to her breach of contract claim. Privacy: Although Defendant is correct confidential medical records are protected by a patient's right to privacy (see John 8. v. Superior C...

Excerpt: ...nts sought therein. Defendant appeared for his deposition, but failed to produce any documents. Code of Civil Procedure section 2025.480 authorizes a motion to compel a party to produce documents sought in a deposition notice that the deponent failed to produce at his deposition. Here, Defendant's counsel apparently failed to inform Defendant of the need to search for or produce documents prior to the deposition, and Defendant did not produce any...

Excerpt: ..., 30-40, 42-45, 47, 50, 51, and 52. For request nos. 11-13, Tenant states production should be allowed subject to an attorneys'-eyes-only provision, which the protective order presently in place does not contemplate. Landlord responds it will agree to adding such a provision into the protective order. Counsel for the parties are thus to promptly confer as to a proposed amendment to the existing protective order which will allow attorneys' eyes on...

Excerpt: ...sion contained in a residential lease or rental agreement is ordinarily void as contrary to public policy. (Civil Code S 1953; Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 520-521 (Henrioulle).) Defendant maintains the exculpatory provision in the Lease is nonetheless enforceable because the injury at issue occurred while Plaintiff was using the Subject Propertvs amenities, which go beyond shelter and habitability. Defendant relies on...

Excerpt: ...l Death) and Second Cause of Acton (Premise Liability and Wrongful Death): Defendants challenge these causes of action on the ground Plaintiffs fail to adequately allege facts establishing Defendants had actual or constructive notice of a defective condition on the property and Defendants failed to correct the alleged condition. Defendants also contend these two causes of action are duplicative. The court disagrees with Defendants' challenge thes...

Excerpt: ... Architectural Guidelines): The HOA contends this cause of action fails to state a claim because it is barred by the doctrine of judicial deference set forth in Lamden v. La Jolla Shores Clubdominium Homeowners Association (1999) 21 Cal.4th 249, and its progeny. Under this doctrine, "'courts [generally) will uphold decisions made by the governing board of an owners associaton so long as they represent good faith efforts to further the purposes of...

Excerpt: ...(3) negligent maintenance. There is no dispute the proposed cross-complaint is a compulsory cross-complaint and the claims alleged there in would be barred if not asserted in this case. Code of Civil Procedure section 428.50, subdivision (a), generally requires a defendant to file a crosscomplaint against the plaintiff "before or at the same time as the answer to the complaint or crosscomplaint." Section 428.50, subdivision (c), however, a defend...

Excerpt: ...hin the meaning of section 877.6, necessarily requires the trial court to examine and weigh a number of relevant factors, one of the most important of which is the settling party s proportionate liability." [Citation.] If "there is no substantial evidence to support a critical assumption as to the nature and extent of a settling defendant's liability, then a determination of good faith based upon such assumption is an abuse of discretion."' " (Ma...

Excerpt: ...7) 7 Cal.App.5th 1105, 1109 (Leyva).) It applies whether or not the trail is paved, and extends not only to trails that are used for the activites listed in section 831.4(a), but also to trails that are used solely for access to such actvities. (Reed v. City of Los Angeles (2020) 45 Cal.App.5th 979, 982; Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1078 (Amberger-Warren).) It extends to claims arising from the design of a trai...

Excerpt: ...akano) in the motion to compel arbitration, and (5) a Case Management Conference. Motion to Compel Arbitration Shimabe's unopposed motion to compel arbitration is GRANTED. "'[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceab...

Excerpt: ...lls out the rule that an amended complaint relates back to the date of the filing of the original complaint and thus avoids the bar of the statute of limitations so long as recovery sought in both pleadings is based upon the same general set of facts. [Citations.) The foregoing precedents rest on the fundamental policy that 'cases should be decided on their merits.'" (Hirsa v. Superior Ct. (1981) 118 Cal.App.3d 486, 488—89.) "While a motion to ...

Excerpt: ...endant to provide further responses to form interrogatories, set one, interrogatory no. 15.1. Motion No. 1: Defendant's Motion for Judgment on the Pleadings Defendant's motion for judgment on the pleadings is DENIED. Defendant argues the allegations of the complaint and Exhibit 5 thereto show Plaintiff made a full credit bid for the subject property, and Plaintiff's claims therefore are barred under the full credit bid rule. As a threshold matter...

Excerpt: ...how he is entitled to such relief. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Civil Code section 3294 states in part, “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishin...

Excerpt: ...defendant challenges the court's jurisdiction, it is up to the plaintiff to prove, by a preponderance of the evidence, personal jurisdiction exists. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 (Vons).) This must be shown by affidavits, declarations, or other competent evidence. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 110.) Due process permits state courts to exercise personal jurisdiction o...

Excerpt: ...trate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. . . “ “Arbitration is favored in this state as a voluntary means of resolving disputes, and this voluntariness has been its bedrock justification. As we stated recently: “[P]olicies favoring the eff...

Excerpt: ...1: Momentum's Petition to Compel Arbitration To compel arbitration, the moving party must prove by a preponderance of the evidence that a written agreement to arbitrate a controversy exists and a party thereto refuses to arbitrate such controversy. (Code of Civ. Proc. § 1281.2.) The provisions of the written agreement to arbitrate and the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. ...

Excerpt: ...bar, Judge of the Superior Court of California, County of Orange, and Mia Mejia, employee of the Superior Court of California, County of Orange (ROA 1403). Both motions seek orders to quash civil subpoenas (duces tecum) for personal appearance and production of documents at trial or hearing, issued by plaintiff Denise Thomas (Plaintiff), through her counsel of record, Ernie Calhoon, and a protective order precluding issuance of additional subpoen...

Excerpt: ...ts, set one, and request for sanctions (ROA 719); and (3) motion to compel plaintiff Newport Harbor Offices & Marina, LLC (Plaintiff) to respond to special interrogatories, set two, and request for sanctions (ROA 762). Motion No. 1: Compel VMG to Provide Further Responses to Request for Production 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 dee...

Excerpt: ...te her individual claims based on the court's exercise of its discretion under Code of Civil Procedure section 1281.2(c)—i.e., to avoid inconsistent results. Defendants appealed the earlier ruling. The Court of Appeal affirmed the trial court's decision to deny the petition to compel Decedent's claims to be arbitrated, but remanded the case to the trial court for this court to determine “whether there is an enforceable agreement between [Defe...

Excerpt: ...�� (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594, citing Privette, supra, 5 Cal.4th 689.) As explained by the California Supreme Court, “[b]y hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor's employees to ensure the safety of the specific workplace that is the subject of the contract.” (SeaBright, supra, 52 Cal.4th at p. 594.) Here, the motion ...

Excerpt: ...dants, but rather simply adds them as new defendants. Nowhere does the proposed FAC state 12 Towers and KNS are joined as DOE Nos. 1 and 2. If they were named as DOES, then the proposed FAC would allege nearly every cause of action against 12 Towers and KNS, not merely the new negligence claim. As such, in its current form, the proposed FAC does not include allegations naming 12 Towers and KNS as Doe Defendants under section 474. Nonetheless, the...

Excerpt: ...cert with him, from engaging in a wide variety of acts that relate to what Plaintiffs describe as 37 entities contributed to the MOM Entities (Contributed Entities) pursuant to the terms of the Asset Contribution Agreement and the Operating Agreements, dated June 8, 2021. “The showing of potential harm that a plaintiff must make in support of a request for preliminary injunctive relief may be expressed in various linguistic formulations, such a...

Excerpt: ... with it upon those terms or conditions as the court shall declare, including protective orders. Here, FPD concedes the records sought are relevant to the matters at issue in this litigation, but states it cannot release the records without a court order and corresponding protective order due to the confidential and privileged nature of the records. The official information privilege (Evid. Code, § 1040) FPD asserts is a conditional privilege th...

Excerpt: ...ere working to finalize a settlement. The court granted the request and continued the hearing without making a final ruling. The court also ordered any additional filings to be made pursuant to the code. No new filings have been made since the last hearing; the court's tentative ruling remains the same. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of mate...

Excerpt: ...e motions carefully to ensure that literalism does not deny the parties substantial justice. Depending on the circumstances, a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion. . . . [¶] . . . Ultimately, disqu...

Excerpt: ...mber 29, 2022, under Code of Civil Procedure section 916. Plaintiff argues this case falls squarely within the exceptions to the automatic stay provisions of section 916, specifically, Code of Civil Procedure section 917.4. Section 917.4 states, “The perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real ...

Excerpt: ...�[d]isobeying a court order to provide discovery.” (Code Civ. Proc., §§ 2023.010; 2023.030.) Code of Civil Procedure sections 2030.290(c) [re Rogs] and 2031.300(c) [re RFPs] provide that if a party fails to obey an order compelling discovery responses, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction, and/or monetary sanctions. Defendant has establish...

Excerpt: ...laintiff's mortgage payments and misrepresented the status of Plaintiff's payments. (¶1 and ¶25-¶27.) Based on these allegations, Plaintiff alleges Defendant violated several portions of Civil Code section 1770, subdivision (a). (¶35.) Civil Code section 1770, subdivision (a), however, does not apply to mortgage loans. As noted by the court in Alborzian v. JPMorgan Chase Bank, N.A. (2015) 235 Cal.App.4th 29, the CLRA prohibits “unfair metho...

Excerpt: ...ioner appeared and provided testimony. The Department admitted seven exhibits into evidence and Petitioner offered no documentary evidence. The Decision contains a detailed list of findings of fact upon which the Hearing Officer reached the conclusion. Code of Civil Procedure section 1094.5 governs review of administrative orders or decisions. “The inquiry in such a case shall extend to the questions whether the respondent has proceeded without...

Excerpt: ...n to Compel Further Responses to Special Interrogatories (Set One), and (5) Motion to Compel Further Responses to Requests for Admission (Set One). All five motions are GRANTED, as stated below. Defendant's monetary sanction request also are GRANTED as stated below. The court notes all five motions are timely, as counsel and Plaintiff agreed the deadline to file a motion to compel would extend to 30 days after Plaintiff obtained new counsel. Plai...

Excerpt: ...tion “founded upon a contract, [when] it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., § 430.10, subd. (g); Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 458-459 [to properly plead a cause of action for breach of contract, “the complaint must indicate on its face whether the contract is written, oral, or implied by conduct”].) Thi...

Excerpt: ...evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” Code of Civil Procedure section 405.22 states, “the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt...

Excerpt: ...er Complaint, (2) summary judgment/adjudication against cross-defendants Catholic Charities of Orange County, Inc. (Charities), Serrano Woods, LP (Serrano), Advanced Property Services, LP (APS), and Orange-Villa Bible Church (Church) on Friendly's second amended cross-complaint (SAXC), (3) summary judgment against Church on Church's cross-complaint, and (4) summary judgment against Serrano and APS on their joint cross-complaint. The Motion thus i...

Excerpt: ...motion Yellow Dog seeks summary judgment on its SACC, or in the alternative summary adjudication on two of the eleven issues on which declaratory relief is sought the SACC's first cause of action. Initially, it must be noted summary judgment may not be granted because Yellow Dog's motion fails to dispose of the entire SACC. The SACC alleges two causes of action for declaratory relief. The first seeks 11 declarations against all cross-defendants a...

Excerpt: ...s, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) First Cause of Action (Product Liability and Strict Liability): The law of products liability recognizes three types of product defects: manufacturing defects, design defects and warning defects (i.e., failure to warn or inadequate warning). (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 180.) Plaintiff confusingly appears to combine at least tw...