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Excerpt: ...ly, the court notes the moving papers improperly cite to an unpublished opinion—Tucker v. Cunningham 2015 Cab App.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 It is improper for any party or the court to cite to a California state court appellate opinion that has not been certified for publication.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: ... (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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...(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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...(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: ...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: ...�� (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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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...