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...

Excerpt: ...rits of this demurrer, counsel are reminded compliance with all statutory and procedural requirements is expected, and should not assume future omissions will be met with similar consideration. On the merits, the demurrer to the entire XC is OVERRULED. Under Business and Professions Code section 17900(b)(1), the requirements for “fictitious business name” filings do not apply to an individual where, as here, the “dba” includes the surname...

Excerpt: ...hat the claims of the Valencia Plaintiffs may be separately tried is DENIED. Code of Civil Procedure section 1048(b) also allows for severance of claims or issues, stating “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of a...

Excerpt: ...aintiffs' most recent complaint was sustained with leave to amend. In connection with the prior hearing on June 2, 2023, the court posted a tentative ruling to grant the application. At the time of the hearing, however, attorney Brian Ballo specially appeared on Plaintiffs' behalf stating Plaintiffs were attempting to retain him to represent them and file the amended complaint. The court acknowledged the apparent abandonment by Plaintiffs' prior ...

Excerpt: ... (2001) 25 Cal.4th 826, 850.) A “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 fact. . . .” (Ibid.) “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 th...

Excerpt: ... the California Court of Appeal for the First District, Division Four, issued its opinion in Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, review granted February 1, 2023, S277568 (Dhital), and held the economic loss rule does not bar a fraudulent inducement by concealment cause of action on substantially similar allegations. (Dhital, supra, 84 Cal.App.5th at p. 840-841.) Although the Supreme Court's decision to grant review in ...

Excerpt: ....4th 217, 230-231). Additionally, “[e]ach element of a fraud count must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action, although less specificity is required if the defendant would likely have greater knowledge of the facts than the plaintiff.” (Id. at P. 231.) “The particularity requirement demands that ...

Excerpt: ...nlikely 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 items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; So...

Excerpt: ... 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. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as...

Excerpt: ...t the requirements of Code of Civil Procedure section 474. Finally, Defendant asserts the alleged undue delay in naming and serving her prejudiced her in violation of section 474. "Section 474 allows a plaintiff who is ignorant of a defendant's identity to designate the defendant in a complaint by a fictitious name (typically, as a 'Doe'), and to amend the pleading to state the defendant's true name when the plaintiff subsequently discovers it. W...

Excerpt: ...l further responses, the moving party must meet and confer with the responding party in a reasonable and good faith attempt to informally resolve each issue that would be presented by the motion. (Code Civ. Proc., SS 2030.300(b), 2031.310(b), and 2033.290(b).) code of Civil Procedure section 2016.040 requires a good faith attempt to resolve "each issue presented by the motion." There must be a serious effort at negotiation and informal resolution...

Excerpt: ...0), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination." Code of Civil Procedure section 2032.320 requires the defendant to establish good cause for the second exam. "'Good cause' ma...

Excerpt: ...les (Estate; Sonia, Isaias, and Estate collectively referred to as Plaintiffs). The RFAs to the three plaintiffs are nearly identical. Each motion is GRANTED in part and DENIED in part. Specifically, the motions are GRANTED as to RFA Nos. 2-8, 11-12, and 14-15, and DENIED as to RFA Nos. 10, and 13. The court grants the motion pursuant to Code of Civil Procedure section 2033.290. As an initial matter, the court notes (1) sufficient meet and confer...

Excerpt: ...abase Defendant searched and every search term Defendant used. The declarant must be someone with personal knowledge regarding the searches, whether counsel or another representative of Defendant. Multiple declarations may be required. Not later than June g, 2023, Defendant is ordered to meet and confer with Plaintiff regarding appropriate search terms to permit further responses to Plaintiff's Requests for Production Nos. 11, 12, 13, 14, 27, 28 ...

Excerpt: ...harged. Ford seeks issue and evidence sanctions pursuant to Code of Civil Procedure section 2023.030, which gives the Court discretion to impose sanctions against a party engaging in discovery abuse as follows: "(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery ptTcess. The court may also ...

Excerpt: ...41. If the parties fail to comply with section 430.41 in connection with any future demurrer in this matter, the court will continue the hearing and not rule upon the demurrer until there has been full, good faith compliance with section 430.41. Additionally, the court notes Defendant did not file and serve its reply briefs until May 10, 2023, which is five calendar days before the originally scheduled hearing date of May 15, 2023. Code of Civil ...

Excerpt: ...zalez Plaintiff's TAC; (5) demurrer to fourth amended complaint (4AC) of plaintiffs Clemente Valencia and Clarissa Valencia (collectively, Valencia Plaintiffs); and (6) motion to strike portions of Valencia Plaintiffs' 4AC. In addition, the continued hearing on the ex parte application of all Plaintiffs to advance the hearing on their motion to severe the claims of the Valencia Plaintiffs for trial is on calendar. Lopez/ Avila Plaintiffs' TAC The...

Excerpt: ...vely summary adjudication, as to Plaintiff's complaint is DENIED. "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., "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a...

Excerpt: ...l be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of 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 dedu...

Excerpt: ... the request to join Gordinier, Kang & Kim LLP (GKK) as a new defendant and allege the proposed third, fourth, and eighth through twelfth causes of action against GKK. "(a)(l) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding . . . the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect . . . The court may lik...

Excerpt: ...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. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or o...

Excerpt: ...is prima facie a sufficient ground for dismissal; no showing of prejudice to defendant is required. (Scarzella v. DeMers (1 gg3) 17 Cal.App.4th 1762, 1769.) Thus, it is plaintiffs burden to show a credible excuse for delay. Only after plaintiff has done so will the court consider other factors, such as prejudice to defendant. (Putnam v. Clague (1992) 3 Cal.App.4th 542, 549.) Showing diligence after the two-year period is not enough. Plaintiff mus...

Excerpt: .... At Plaintiff's request, the court granted leave to amend and allowed an extended period of 50 days to do so. The SAC does not contain sufficient additional facts to overcome Defendants' demurrer. The role of a demurrer is "to test the legal sufficiency of a complaint." (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) "We not only treat the demurrer as admitting all material facts properly pleaded, but also 'give the complaint a...

Excerpt: ...nd request for monetary sanctions. Motion No. 1: Compel Further Responses to Form Interrogatories Plaintiff seeks a further response to form interrogatory no. 12.2 which asks whether the defendant has interviewed anvone concerning the "incident," and if so to identify such witnesses. The incidents as alleged in the complaint took place over a two-month period and there was apparently no single incident. Accordingly, the pre-printed definition of ...

Excerpt: ... negligence, the claim is dependent upon, among other things, demonstrating LAMC breached a duty to the decedent, and showing causation. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) On a medical negligence claim, when a defendant moves for summary judgment and supports the motion with an expert declaration showing the defendant's conduct fell within the community standard of care, or did not cause or contribute to the injury, the defend...

Excerpt: ...FAC). Initially, it must be noted this challenge is based on a false premise—i.e., all three complaints Plaintiff has filed in this action were verified. They were not. Only the FAC was verified. Neither the original complaint, nor the SAC were verified. Accordingly, the fraud-based claims that were alleged in the original complaint, and then dropped from the FAC, were not alleged in a verified pleading, and therefore there are no verified alle...

Excerpt: ... This motion seeks to compel Defendant to provide further responses to production request nos. 1, 2, 5, 6, 8, g, 10, 11, 12, 13, 14, 15, and 16 as well as monetary sanctions against Defendant. Plaintiff failed to establish a sufficient meet and confer occurred. Code Civil Procedure section 2016.040 requires a good faith attempt to resolve "each issue presented by the motion." There must be a serious effort at negotiation and informal resolution. ...

Excerpt: ...nterests are at issue, the party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure would serve, while the party seeking protection may identify feasible alternatives that serve t...

Excerpt: ...r an attachment following the statutory guidelines and established a prima facie claim to have a debtor's assets seized and held until final adjudication at trial.” (Lorber Indus. v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) Plaintiff seeks a writ of attachment and right to attach order. A writ of attachment may be issued if (1) the claim is for money; (2) based upon a contract; and (3) where the amount is readily an ascertainable amoun...

Excerpt: ...ad (collectively, Plaintiffs) dismissed Orange Coast on January 31, 2023. Motion No. 2: FCA's Motion to Compel Arbitration FCA's motion to compel Plaintiffs to arbitrate their claims against FAC is DENIED. This case arises out of Plaintiffs' purchase of a 2017 Chrysler Pacifica from Orange Coast. After various problems with the vehicle were not resolved, Plaintiffs filed a complaint against FCA and Orange Coast. Plaintiffs have since dismissed Or...

Excerpt: ...Country Club Homeowners Ass'n v. Hazelbaker (2016) 2 Cal.App.5th 252, 262 [citing Cal. Rules of Court, rule 3.1300(d) and holding trial court “acted well within its discretion when it declined to consider” a party's untimely opposition papers].) Here, the opposition was due by Tuesday, February 21, 2023. Plaintiff did not file or serve the opposition until three days later, on Friday, February 24, 2023. Plaintiff failed to provide any explana...

Excerpt: ...e a claim. Uncertainty Demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services ...

Excerpt: ...inding arbitration based on this agreement. However, Plaintiffs are not parties to the Lease and Nissan has failed to establish standing to enforce the lease provision against Plaintiffs. Even if Plaintiffs were parties to the lease or if the lease could be enforced against Plaintiffs, Nissan acknowledges it is not a signatory to the lease. A nonsignatory seeking to enforce an arbitration agreement bears the burden to establish standing to enforc...

Excerpt: ...subds. (c), (d), and (h); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) Plaintiff's request to strike portions of Lewis, Jr.'s declaration is DENIED. A nonresident defendant has a liberty interest in not being subject to the judgments of a forum with which he or she has established no meaningful minimum contacts. (Vons Companies Inc. v. Seabest Foods...

Excerpt: ...he Protective Order entered in this case as ROA 131 on December 20, 2021 (Protective Order), to confirm Plaintiff's “confidential” designations for portions Diann D. Alexander's deposition transcript. The Motion is brought pursuant to section 6 of the Protective Order to preserve the “confidential” status of the material due to the objections presented thereto by Defendant/Cross-Complainant Park Aliso Commercial Center, Ltd. (Defendant). ...

Excerpt: ...Quash Service of Summons filed by Defendant on September 16, 2019 (ROA 60). Motion No.1: Motion to Transfer Venue Plaintiff's Motion to Transfer Venue is DENIED. Plaintiff seek a change of venue based on Code of Civil Procedure section 397, subdivisions (b) & (d), which state as follows: “The court may, on motion, change the place of trial in the following cases: . . . (b) When there is reason to believe that an impartial trial cannot be had th...

Excerpt: ...r Production (RFPs), the initial burden is on the propounding party to show good cause for production. (C.C.P. § 2031.310(b)(1).) Plaintiff has met that burden here. The Motion shows the categories at issue seek discoverable information, based on the claims presented and evidence obtained to date in the case. (ROA 678, Exhs. 6-10.) Each also seems reasonably narrow, and no other source for obtaining such material is apparent. The burden thus shi...

Excerpt: ...e and straightforward as the information reasonably available to the responding party permits. [¶] (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. [¶] (c) 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 pers...

Excerpt: ...g child support) from the family law action entitled, Zahrn Kadkhodaei Khalafi v Seyed Mehdi Hassani, OCSC Case No. 17D007142. The Defendants' request fails to comply with California Rules of Court, rule 3.1113(l), which states: “Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” Here, Defendants' request for judicial notice is mere...

Excerpt: ...Notice is GRANTED. The court takes judicial notice of each record, Exhibits 1 - 6, but not of the truth of the matters stated therein. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) First Cause of Action: Violation of Homeowner Bill of Rights (“HBOR”) A) Violations of Civil Code section 2934a: Plaintiffs allege the Notice of Default (NOD) is void because Defendants never recorded any notice of assignment of s...

Excerpt: ...ompel Further Form Interrogatory Responses Plaintiff initially served objections to every interrogatory in this set of discovery. Plaintiff served further verified responses to all interrogatories on January 30, 2023, after the motion was filed and served. Nonetheless, the court may still decide the motion. “Whether a particular response does resolve satisfactorily the issues raised by a motion is a matter best determined by the trial court in ...

Excerpt: ...s' motion for an order confirming depositions were timely notice or, alternatively, reopening discovery is deemed MOOT. Counsel are ordered to meet and confer to schedule these depositions to be taken remotely within 10 days. The parties should be prepared to discuss whether a brief continuance of the trial date is appropriate in light of the pending discovery as well as other scheduling matters, including the demurrer and motion to strike hearin...

Excerpt: ...s to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate 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.” Here, Defendants submit the declaration of Tyler Nelson to establish the Contractor Agreement w...

Excerpt: ...edition and economy.” Similarly, Code of Civil Procedure section 598 authorizes the court to order certain issues tried before others “when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby.” The ruling on a motion to bifurcate rests within the trial court's sound discretion, except for requests to bifurcate liability from punitive damage claims, which must ...

Excerpt: ...awsuit against that entity.” (City of Stockton v. Superior Court (2007) 42 Cal.4 th 730, 738.) “[T]he claims presentation requirement applies to all forms of monetary demands, regardless of the theory of the action.” (Sparks v. Kern County Bd. of Supervisors (2009) 173 Cal.App.4th 794, 798.) Failure to comply with the Government Claims Act subjects the complaint to dismissal. (Janis v. State Lottery Comm'n (1998) 68 Cal.App.4th 824, 832.) �...

Excerpt: ...tition in the Probate Action on February 18, 2021, seeking (1) to determine validity of trust amendments; (2) to cancel the deed recorded on April 7, 2020; (3) an order authorizing and directing transfer of property from third party claimant to the trust; (4) to assert a claim for financial elder abuse; and (5) double damages. Defendant's Request for Judicial Notice Defendant requests the court take judicial notice of nine items consisting of doc...

Excerpt: .... Adequacy of Meet of Meet and Confer Efforts: The court questions the adequacy of the parties' meet and confer efforts in light of the court's prior ruling on the demurrer and motion to strike that another defendant filed challenging the same pleading. These concerns especially apply to the motion to strike. Defendant Adam M. Rucker, M.D.'s Demurrer to Plaintiff David Sadat's First Amended Complaint (“FAC”) For the reasons set forth below, t...