Excerpt: ... which was opposed by defendant Philippe G. Delbar, as noticed on Febr uary 22, 2024. At that time, it held that plaintiff is entitled to recover its reasonable attorneys' fees under Civ. Code § 5975 but that fees and costs would only be awarded up to the time of the initial entry of default judgment on the complaint on Marc h 1, 2002 and on the instant fees motion. The Court therefore continued the hearing on the motion to March 14, 2024, and o...

Excerpt: ...f Documents No. 7. Generally, Plaintiff moves to compel Defendant District to provide the following information and documents: (1) contact information of three students who allegedly assaulted Plaintiff; (3) names and contact information of “Students E -M,” who were third party witnesses to the alleged incident(s); and (3 ) Documents reflecting witness statements of third parties regarding the incident(s). Defendant objects and refuses to pr...

Excerpt: ... persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the...

Excerpt: ...h 230, 251 -252, citing Bus. & Prof. Code, §17200.) “B ecause…section 17200 is written in the disjunctive, it establishes three varieties of unfair competition – acts or practices which are unlawful, or unfair, or fraudulent.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 252.) Relevant herei n, “[b]y proscribing ‘any unlawful' business practice, ‘section 17200 ‘borrows' violations of other laws and treats them a...

Excerpt: ...complaint controverted by the defendant. (2) A statement of any new matter constituting a defense.” (Code of Civil Procedure Section 431.30(b).) The answer must aver facts “as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App. 3d 367, 384.) An exception to this rule is the statute of limitations under Code of Civ...

Excerpt: ...der Code of Civil Procedure section 1032. However, Defendants also seek to recover expert witness fees under Code of Civil Procedure section 998. Plaintiff contends Defendants' Code of Civil Procedure section 998 offers were unreasonable. Defendants served a 998 offer of $5,000 on 9/28/20 and a s econd 998 offer of $25,000 on 12/6/21. The second offer was served after Defendants' expert Dr. Kiester conducted an examination of Plaintiff and prepar...

Excerpt: ...discovery and disobeying a court order are misuses of the discovery process. (C CP § 2023.010(d) and (g).) Here, Plaintiff failed to provide further responses, produce the component parts, and pay the sanctions within 30 days as ordered by this Court. Plaintiff argues that it has since complied with the 11 -9 -23 order, however, the dec laration does not contest that Plaintiff failed to comply within the 30 days required by the order. Thus, Plai...

Excerpt: ... the doctrine of issue preclusion, and failure to state suff icient facts. Statute of Limitations A demurrer on limitations grounds will not lie where the action may be, but is not necessarily barred: it must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily b arred. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232). Under California law, the statute of limitations for a fraud claim is three year...

Excerpt: ...or [¶] (2) They have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action.” (Code Civ. Proc., § 378, subd. (a), emphasis added.) “It is not necessary that each plaintiff be interested as to every cause of action or as to all re lief prayed for. Judgment may be given for one or more of the plaintiffs according to their respective right to relief.” (Id., § 378, subd. (b).) S...

Excerpt: ...ss unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both. (b) A governing document other than the declaration may be enforced b y the association against an owner of a separate interest or by an owner of a separate interest against the association. ...

Excerpt: ...m Pleading Defendants argue that Plaintiff should n ot be allowed to amend his pleadings because the facts alleged regarding the amount due is incorrect and any subsequent complaint will be a sham. Under the sham pleading doctrine, the trial court may disregard amendments that omit harmful allegations in the original complaint or add allegations inconsistent with it. (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 C...

Excerpt: ...2, 1131 (Ketchum).) The “prevailing defendant on a motion to stri ke be allowed to recover attorney fees and costs only on the motion to strike, not the entire suit.” (LaFayette Morehouse, Inc. v. The Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383; S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381.) The award of fees may include “the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure sect...

Excerpt: ...e not ruled upon are preserved for appeal. (Code Civ. Proc. § 437c(q).) As a threshold issue, Vizio argues this motion is moot and/or barred by judicial estoppel because the court previously found a triable issue of material fact exists as to whether Plaintiff is a third party beneficiary under the GPL license. (ROA 161.) The Court found that “the language of the GPLs is not so certain so as to preclude other interpretations.” (Ibid.) “Ju...

Excerpt: ...dant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.” “‘The purpose of ... section 474 is to enable a plaintiff who is ignorant of the identity of the defendant to file his [or her] complaint before his [or he r] claim is barred by the statute of limitations.'” (Streicher v. Tommy's Electric Co. (1985) 164 Cal.App.3d 876, 882 (S...

Excerpt: ...hich applies to Plaintiff's claims against both Defendants. The RISC provides in pertinent part: “ARBITRATION PROVISION PLEASE REVIEW – IMPORTANT - AFFECTS YOUR LEGAL RIGHTS 1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL. 2. IF A DISPUTE IS ARBITRATE D, YOU WILL GIVE UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGA...

Excerpt: ... In the first cause of action for breach of contract, pl aintiff alleges that, in May 2018, she was “offered employment as the clinical director of Crest Recovery dba Truvida Recovery for a salary and a 3% profit -sharing interest, among other benefits.” (TAC, ¶ 67.) Plaintiff alleges that she “signed an offer le tter agreement which was dated April 23, 2018 and a Bonus Compensation Addendum to her employment agreement of May 5, 2018, w...

Excerpt: ...ncing evidence that the defendant has been guilty of oppression, fraud, or malice, the plainti
¯, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code §3294, subd. (a).) Civil Code section 3294, subdivision (c)(1) deÞnes “malice” as “conduct which is intended by the defendant to cause injury to the plainti
¯ or despicable conduct which is carried on by the de...

Excerpt: ...1-01236442, which is a proceeding in probate court. Plainti
¯ opposes the motion and objects to the certain of the documents for which judicial notice is requested, including a declaration that he Þled in this case in connection with an ex parte application for a TRO and OSC re: preliminary injunction. In that all documents were Þled in this action or the probate action, the Court takes judicial notice of them. To the extent that the notice of...

Excerpt: ...action involving commerce.'” (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277 [quoting 9 USC § 2] [emphasis in original].) The arbitration provision contained in the Residence and Service Agreement (“RSA”) states that claims including claims for personal injury or wrongful death shall be resolved by binding arbitration “in accordance with the Federal Arbitration Act.” (Zaragova Decl., Ex. B, para. 19.) Plainti
...

Excerpt: ...), which provides that “summary adjudication shall be granted only if it completely disposes of a cause of action, an a
¯irmative defense, a claim for damages, or an issue of duty.” (Emphasis added.)) The complaint (ROA 2) contains a single cause of action for medical negligence. It alleges that, on December 26, 2021 and thereafter, all Defendants, including the moving Defendant, undertook the care and treatment of the plainti
¯ in connecti...

Excerpt: ...he following Þndings: [¶] (1) The party has a substantial interest in the action as a whole. [¶] (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. . . . (f) Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motio...

Excerpt: ... memorandum as waiver of all grounds not supported. CRC 3.1113(a). Based upon these grounds, the Court sustains the unopposed demurrer. Although the demurrer is unopposed, the Court Þnds that Plainti
¯ should be given an opportunity to cure the defects in the operative complaint that were raised by Defendant in the demurrer. First Cause of Action – Negligence The statute of limitations for negligence, other than personal injury or property da...

Excerpt: ... entered into after mediating a prior lawsuit between them. Defendants contend that the action arises from activity "in furtherance of" their right to petition or free speech, which makes it subject to being stricken through an antSLAPP motion under section 425.16. They also contend that they are entitled to an award of attorneys' fees under subdivision (c) of section 425.16 for bringing a successful ant-SLAPP motion. Plaintiff opposes the moton....

Excerpt: ...e Notice of this Motion in the Wrongful Death Case. On 12- 14-23, Defendants filed Notice of Motion in the wrongful Death Case, which includes a copy of the instant Motion. The Court finds that this complies with California Rules of Court, rule 3.350. Merits Consolidation is provided for by Code of Civil Procedure section 1048, which provides that when there are actions "involving a common question of law or fact are pending before the court, it ...

Excerpt: ...eserve evidence for another's use in pending or future litigation. While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions." (Willaims v. Russ (2008) 167 Cal.App.4th 1215, 1223.) CCP S 2023.030 provides as follows: Misuses of the discove...