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: ...(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: ...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: ...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: ...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...