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

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...