Excerpt: ...udgment on the Pleadings Eckler v. Neutragena Corporation (2015) 238 Cal.App.4th 433, 439, states, “ ‘ “A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.' [Citation.] As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.' [Citation.]”...

Excerpt: ...the face of the complaint.' [Citation.] As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.' [Citation.]” “A trial court's determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes. [Citations.] In addition, it gives them a liberal construction.” (Ge...

Excerpt: ...its third cause of action for breach of guaranty in connection with the Equipment Finance Agreement No. 289865-000 against defendant William Gwathmey, Jr., including damages. 2. Plaintiff Balboa Capital Corporation established all of the elements of its fourth cause of action for indebtedness against defendant William Gwathmey, Jr., due to his breach of the guaranty in connection with the Equipment Finance Agreement No. 289865-000. A plaintiff mo...

Excerpt: ...nd by way of punishing the defendant.” (Civ. Code §3294, subd. (a).) Civil Code section 3294, subdivision (c)(1) defines “malice” as “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 safety of others.” (Civ. Code, §3294, subd. (c)(1).) Similarly, “oppression” is defined as “despicable cond...

Excerpt: ...r summary judgment meets his burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. [Citation.] If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense… A triable issue of material fact exists ...

Excerpt: ...ses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part ther...

Excerpt: ...erable costs pursuant to statute, in the joint and several amount of $8,424.85. b.) As against Cross- Defendant, Ernest Calhoon, Attorneys Fees in the sum of $240,975.00; and c) As against Cross-Defendant, Ernest Calhoon, expert costs incurred for experts/consultants in the sum of $8,960.00. Attorney Fees Basis for Fees: When authorized by contract, statute or law reasonable attorney fees are “allowable costs.” (Code Civ. Proc. § 1033.5(a)(1...

Excerpt: ...n any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of action. (d) There is a defect or misjoinder of parties. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pl...

Excerpt: ...rike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) Civil Code § 3294, subdivision (a) permits the recovery of punitive damages upon a clear and convincing showing that 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 despica...

Excerpt: ... of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of ...

Excerpt: ...�� Breach of Contract, and 4th COA – Enforcement of Equitable Servitude "Facts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity." Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5. Civil Code Section 5975 states: “(a) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to...

Excerpt: ...1): “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as spe...

Excerpt: ...such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between negligent conduct and resulting injury; and (4) actual loss or damage resulting from professional's negligence. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463.) In a medical malpractice action, when a defendant moves for summary judgment and supports his mo...

Excerpt: ...ince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. ‘Discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” ' [Citation.] If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discov...

Excerpt: ...re 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 motion in accordance...

Excerpt: ...n Dialysis, LLC dba Anaheim Springs Dialysis moves for summary judgment/adjudication on the causes of action for (1) Survival Action/Negligence—Premise Liability; (2) Wrongful Death/Negligence—Premise Liability; (3) Survival Action/Negligence; (4) Wrongful Death Negligence. All of the causes of action are based on a premises/liability theory. Therefore, they can be analyzed together. General Authority Code of Civil Procedure section 437c, sub...

Excerpt: ...ed, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.�...

Excerpt: ...30.10(f); Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the Complaint names Katherine Stride and her minor son, J.S., as Plaintiffs. The Complaint does not specify which individual plaintiff (Stride or her son) is bringing each cause of action, nor does it identify which causes of action apply to each Defendant (RSC, Moore, or Butts). The Complaint therefore fails to inform each Defendant of the allegations that are bein...

Excerpt: ... or an answer is evasive or incomplete. (Code Civ. Proc., § 2030.300, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont In...

Excerpt: ...ny material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “A defendant moving for summary judgment meets his burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. [Citation.] If the defendant does so, the burden shifts ba...

Excerpt: ...ears later. Code of Civil Procedure section 377.31 states, “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest.” Code of Civil Procedure section 377.11 provides, “For the purposes of this chapter, “decedent's successor in interest�...

Excerpt: ...because the objected statements/exhibits are immaterial to the merits of the motion. Interrogatories Nos. 2-9 and 12-18 – The interrogatories request information related to Defendant's annual income and sources of income, including the amount of spousal support and rental income. Defendant objected to the Interrogatories on the ground that such financial information is confidential and protected by the right to privacy. The right of privacy is ...

Excerpt: ...eply, no later than 5 court days prior to the continued hearing date. Pursuant to Code of Civil Procedure section 396b, subdivision (a), “if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof…the action may notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, ...

Excerpt: ...ly derived benefit from the use of said loaned monies. (FAC, ¶ 9.) Plaintiff and Defendant “entered into a verbal loan agreement evidenced by a promissory note.” (FAC, ¶ 12.) The FAC pleads causes of action for (1) breach of oral contract, (2) open book account, (3) money lent and received (indebitus assumpsit), and (4) unjust enrichment. “The elements of a breach of oral contract claim are the same as those for a breach of written contra...

Excerpt: ...n is brought. [¶] (b) The application shall be executed under oath and shall include all of the following: [¶] (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. [¶] (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the...

Excerpt: ... Plaintiffs and, at most, the allegations demonstrate negligence. (Motion: 7: 11-16.) Defendants analogize to the circumstances in McDonnell v. American Trust Co. (1955) 130 Cal.App.2d 296. The plaintiffs in McDonnel “sought damages allegedly caused by water entering their store because of defects in the roof and roof drains…” (Id. at 297.) The complaint alleged Defendants knew of the defective conditions and knew “that said defective con...

Excerpt: ...ermines that an agreement to arbitrate the controversy exists,” except under certain situations outlined by statute. (Code Civ. Proc. § 1281.2.) “There is a public policy in favor of arbitration under federal and state law.” (McManus v. CIBC World Markets Corp. (2003) 109 Cal.App.4th 76, 85.) “Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration.” (...

Excerpt: ...aration of Esthefany Escobar (ROA 400), are SUSTAINED. “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. § 437c(a)(1).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues ...

Excerpt: ...f the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (Code Civ. Proc., § 2030.300, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify obj...

Excerpt: ...cords. (Chen Decl., Ex. B.) Wicker is a key witness in this case, as he is the insured of Plaintiff Truck Insurance Exchange relating to the incident underlying this litigation. (Chen Decl., ¶ 5.) Wicker nor his counsel have responded to the deposition subpoena or contacted counsel for Amazon to request an extension. (Chen Decl., ¶ 4.) “Any party may obtain discovery…by taking in California the oral deposition of any person, including any p...

Excerpt: ...ce of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, th...

Excerpt: ...e court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney's fees” means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract. (b) The motion shall be made on the grounds that the plaintiff resides out of t...

Excerpt: ...response if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit. (See Code Civ. Proc., SS 2030.310, subd. The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (C...

Excerpt: ...sions, Set One; (2) Motion to Compel Defendant Stern's Responses to Inspection Demands, Set One, Special Interrogatories, Set One; Form Interrogatories, Set One, Form Interrogatories, Set Two, and Request for Admissions, Set One; (3) Motion to Establish Admissions, Set Two served on Plaintiff Truck Insurance Exchange. Failure to Pay Sufficient Filing Fees However, the court notes that these motions are actually eleven motions, disguised as three,...

Excerpt: ...llowing to be true: "(1) an answer to a particular request is evasive or incomplete, (2) an objection to a particular request is without merit or too general." (Code Civ. Proc., S Merits Plaintiff contends that Defendant should be ordered to serve a supplemental response to Requests for Admission, Set One, numbers 2, 17, 18 and 20 because Defendant's responses are not compliant with the Code of Civil Procedure. On 5-8-23, Defendant served a suppl...

Excerpt: ...his matter taken off calendar. Each Defendant may file a single consolidated motion to seal with a supporting declaration attached." Motion No. 2 Defendant Merrick Bank Corporation's (Merrick) Motion to Strike Plaintiff eGumball, Inc.'s (eGumball) Complaint Pursuant to Code of Civil Procedure section 425.16 is DENIED. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, holds: "[W]e may summarize a court's task in ruling on an an...

Excerpt: ... finds that plaintiff's claims were frivolous, unreasonable, objectively without foundation, or brought in bad faith, or the plaintiff continued to litigate after it clearly became so. (Govt. Code S Williams v. Chino Valley Independent Fire District (2015) 61 cal.4th 97, gg-100•, Roman v. BRE Properties, Inc. (2015) 237 CA4th 1040, 1057.) This is because exposure to potential costs/fees could discourage individuals to pursue otherwise meritorio...

Excerpt: ... the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement." (Code Civ. Proc., S 664.6.) The court must determine whether the settlement agreement is valid and binding. (Kohn v. ...

Excerpt: ...gatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: [TI] (1) An answer to a particular interrogatory is evasive or incomplete. [ I] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. [ I] (3) An objection to an interrogatory is without merit or too gen...

Excerpt: ...ictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency." C.C.P. S 2025.010. If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or emp...

Excerpt: ...e to consider late- filed papers without a showing of good cause. (Hobson v. Raychem Corp. (Iggg) 73 Cal.App.4th 614, 623, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 cal. 4th 1019, 1031; see also Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 ["A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline ...

Excerpt: ...hown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. [Citation.] If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense... A triable issue of material fact exists 'if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of ...

Excerpt: ...endant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of ...

Excerpt: ...f inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit. (See Code Civ. Proc., SS 2030.310, subd. The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in respon...

Excerpt: ...ite Pornhub.com owned and operated by MINDGEEK, including any investigations into illegal or brand-damaging conduct, any fines or other actions taken by VISA or its member banks, and any MATCH listings; Category No. 2: VISA's handling or treatment of merchant accounts associated with the pornography website Pornhub.com owned and operated by MINDGEEK, including any termination of MINDGEEK; Category No. 3: VISA's handling or treatment of merchant a...

Excerpt: ...roducing evidence to challenge the authenticity of the agreement.... If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties. The burden of proving the agreement by a preponderance of the evidence remains with the moving party." (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.158, 165-166.) Here, TriNet ...

Excerpt: ...onfer declaration under Section 2016.040. (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not complet...