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