Excerpt: ... either Government Code S 815.2 or 815.4. (Code Civ. Proc., S 430.10, subd. (e).) 2. Plaintiff failed to allege sufficient facts to state a statutory basis for a claim of breach of a mandatory duty for direct liability against the County under Government Code S 815.6. (Code Civ. Proc., S 430.10, subd. 3. Plaintiff failed to allege sufficient facts to state a claim against the County because Plaintiff did not comply with and does not allege compli...

Excerpt: ...ult on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is ... equitably responsible." ' [Citation.]" To qualify for declaratory relief, a party must show (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party. (Lee v. Silveira (2016) 6 Cal.App.5th 527, 545.) Summit Financial Holdings, Ltd. v. Continen...

Excerpt: ...te 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 barred. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232). under California law, the statute of limitations for a fraud claim is three years. (Code Civ. Proc., S 338(d)). Plaintiff argues delayed discovery. The delayed d...

Excerpt: ...ehicle" alleges Defendant Delgado-Garcia was operating a motor vehicle owned by Defendant Coronado with her permission and Defendants Davis and The Car Store entrusted the motor vehicle, while the 2nd cause of action for negligence alleges Plaintiff was driving a car owned by Defendant Car Store with Defendant Davis' permission and Defendant Delgado- Garcia was driving a vehicle owned by Defendant Coronado. Defendant Davis argues the complaint fa...

Excerpt: ...ce forum selection clauses contained in a contract freely and voluntarily negotiated at arm's length unless enforcement would be unfair or unreasonable. Although the forum selection clause here is contained in an adhesion contract, that clause in an adhesion contract is enforceable even though the defendant did not actually read as long as the clause provided adequate notice to the defendant that he was agreeing to the jurisdiction cited in the c...

Excerpt: ...eeded to gain access through that entry point at the Hamilton Gate entrance to what we call Strip 2 of the Easement" (ld. at 23:4-7); 3. "The Hickey Gate on the south part of the 25 acre will be coded" (ld. at 23:12-14.); 4. There will be an easement granted to Mr. Thier that provides for "vehicular and pedestrian, as well as equestrian rights but only as equestrian rights as [tol Strip 1, and usage for the Strip 1 for equestrian purposes is limi...

Excerpt: ...Motion to Compel Production 10) Motion to Compel Response to Requests for Admissions 11) Moton to Compel Response to Requests for Admissions 12) Motion to Compel Response to Requests for Admissions 13) Motion to Deem Facts Admitted Motion 1 Defendant Newrez, LLC F/K/A New Penn Financial, LLC, D/8/A Shellpoint Mortgage Servicing's (Defendant)'s Motion to Compel Further Responses to Interrogatories, filed 2-17-23 under ROA No. 279 is GRANTED in par...

Excerpt: ...rogatories, Sets One from Defendant FEC and General Form Interrogatories from Defendant David Limones. Preliminarily, the Court notes that each opposition to each motion before the Court today was filed and served 4 days late, on 9-25-23 instead of 9-21-23, when they were due. The Court will exercise its discretion to consider the merits of each opposition given that Plaintiff filed substantive replies to each opposition. 1. Merits Code of Civil ...

Excerpt: ...n counsel for each party, plaintiff Noel Duarte and defendant Lisa Rochelle Siegel-Foigelman shall only appear at depositons in the above-captioned action by remote video or audio conference, and not in person. 2. Absent written agreement between counsel for each party, plaintiff Noel Duarte and defendant Lisa Rochelle Siegel-Foigelman shall only appear at pre-trial court hearings in the above-captioned action by remote video or audio conference,...

Excerpt: ...ties Agency (2011) 198 Cal. App. 4th 611, 529.) No later than 10/13/23, Defendants shall file and serve a supplemental brief, not to exceed five pages, stating what issues remain to be decided via demurrer in light of the Court's ruling on their ant-SLAPP moton to strike. Plaintiff may file and serve a responsive supplemental brief, not to exceed five pages, regarding the demurrers no later than 10/18/23. Ant-SLAPP Motion to Strike The Anti- SLAP...

Excerpt: ...9241(a) prov-des: "In the event that a trustee under a deed of trust is named in an action or proceeding in which that deed of trust is the subject, and in the event that the trustee maintains a reasonable belief that it has been named in the action or proceeding solely in its capacity as trustee, and not arising out of any wrongful acts or omissions on its part in the performance of its duties as trustee, then, at any time, the trustee may file ...

Excerpt: ...ries 8) Motion to Compel Production Defendant and Cross Defendant Linda Votaw mcwes to compel Defendant, Cross-Defendant and Cross-complainant Aaron Brower to serve further verified responses, without objections, to: (1) Form Interrogatories, Set One, Interrogatory Nos. 2.3-2.4, 7.1-7.3, 8.2-8.8, 9.1-9.2, 12.1-12.7, 13.1-13.2, 14.1-14.2, 15.1, 17.1, and 50.1- 50.6; (2) Special Interrogatories, Set One, Interrogatory Nos. 27-44, 69-80, and 84-92; ...

Excerpt: ...t related to this action be barred. Circle K Defendants' motion previously came on for hearing on 9-14- 23. The motion was continued to 9-28-23 to allow Defendants to respond to Circle K Defendants' settlement agreement submitted with their reply pursuant to Mediplex of California, Inc. v. Superior Court (1995) 34 Cal.App.4th 748, 754. Defendants filed their supplemental opposition on 9-21-23 and Circle K Defendants filed their supplemental reply...

Excerpt: ...eeded to gain access through that entry point at the Hamilton Gate entrance to what we call Strip 2 of the Easement" (ld. at 23:4-7); 3. "The Hickey Gate on the south part of the 25 acre will be coded" (ld. at 23:12-14.); 4. There will be an easement granted to Mr. Thier that provides for "vehicular and pedestrian, as well as equestrian rights but only as equestrian rights as [tol Strip 1, and usage for the Strip 1 for equestrian purposes is limi...

Excerpt: ...to their motions. In future, counsel shall file any separate statement as a separate document for the Court's review. Code of Civil Procedure section 2030.300 states in part, "(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise o...

Excerpt: ... "(a) Except as otherwise provided in Section 396a [not applicable here], if an action or 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, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answe...

Excerpt: ...gence Defendants argue that the first cause of achon is barred by the statute of limitations in Code of Civil Procedure section 340.5 for professional negligence. Plaintiff's Opposition concedes that the first cause of achon is barred by the statute of limitations. (Opposition, 2:19- 20.) Therefore, because Plaintiff concedes as to this cause of action, the demurrer to this cause of action is SUSTAINED. Because Defendants demur based on the statu...

Excerpt: ...tion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion." "The Discovery Act requires that, prior to the initiation of a moton to compel, the moving party declare that he or she has made a reasonable and good faith attempt to obtain an informal resolution of each issue. This rule is designed to encourage the parties to work out their differences informally so as to avoid t...

Excerpt: ....290 states, in part, "If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: (a) The party to whom the interrogatories are directed waives any right to exercise the option to priNluce wr-tings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010) . ['ll ...

Excerpt: ...Civil Procedure section 437c(f)(1) provides: "[al party may mcwe 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 achon 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...

Excerpt: ...[alny party to an action in which it is alleged that two or more parties are joint tortfeasors...shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors..." The fundamental inquiry in a good faith hearing, pursuant to Code of Civil Procedure 5877.6, is whether the settling Defendant is paying the Plaintiff an amount that is so far below Defen...

Excerpt: ...for judicial notice pursuant to Evidence Code S 452(h). Defendants Rena Akhlaghi and Farideh Akhlaghi's Motion to Strike is DENIED as MOOT in light of the Court's ruling on the Demurrer. Demurrer Sham Pleading Defendant argues that Plaintiff should not 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 ...

Excerpt: ...rtments, LLC's ("Plaintiff") First amended Complaint. First Cause of Action for Breach of Written Indemnity Agreement Defendant argues that the FAC'S first cause of action is insufficiently pled for the following reasons: (1) Plaintiff cannot plead consideration at the time the 8-28-02 letter was issued because Plaintiff did not have a viable claim for breach of contract at that time, as Plaintiff's predecessor believed that the Property had been...

Excerpt: ...pute, however, this court must assume the truth not only of all facts properly pled, 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 ...

Excerpt: ...ovides in pertinent part: (b) The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: ... (4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions. (5) That a trade...

Excerpt: ...eeded to gain access through that entry point at the Hamilton Gate entrance to what we call Strip 2 of the Easement" (ld. at 23:4-7); 3. "The Hickey Gate on the south part of the 25 acre will be coded" (ld. at 23:12-14.); 4. There will be an easement granted to Mr. Thier that provides for "vehicular and pedestrian, as well as equestrian rights but only as equestrian rights as [tol Strip 1, and usage for the Strip 1 for equestrian purposes is limi...

Excerpt: ...sponses to Interrogatories, filed 2-17- 23 under ROA No. 279 is GRANTED in part and DENIED in part. Defendant moves for an order compelling Plaintiff Michael Pierce (Plaintiff) to provide further responses to Defendants' Form Interrogatories, Set One, numbers 2.7(d), 2.12, 6.1, 6.3, 6.4, 6.7, 7.2, 8.8, 9.1, 9.2, 11.2, 12.1, 14.1, 17.1, 50.1, 50.5 and Special Interrogatories, Set One, numbers 9, 12, 17, 19, 22-26, 33 and for an order imposing mone...

Excerpt: ...mary judgment shall be granted where there is no triable issue of any 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...

Excerpt: ...ual to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Plaintiffs accepted Defendant's third Section 998 Offer to Compromise in the amount of $41,499.03 on March 28, 2023. The Section 998 Offer states: “KA will pay Plaintiffs' attorney's fees, expenses a...

Excerpt: ...ts, the Court is inclined to consider Plaintiffs' untimely opposition. Application of Litigation Privilege: Defendants challenge all seven causes of action alleged in the FAC on the grounds that Defendants are immune from liability pursuant to the litigation privilege. Specifically, Defendants contend that the litigation privilege bars Plaintiffs claims because the claims arise out of the Associations' recording of an assessment lien against Plai...

Excerpt: ...able to fraud claims because they signed the purchase agreement in 2008 and were provided with copies of everything they signed including the settlement statement which states the final purchase price was $753,584. Defendant further contends that Plaintiffs' contention that the limitations period began to accrue on December 12, 2019 when they received an email from Defendant's representative lacks merit as they cannot rely on Defendant's most rec...

Excerpt: ...905, “there is no recovery in tort for negligently inflicted ‘purely economic losses,' meaning financial harm unaccompanied by physical or property damage.” (Id. at 922.) Additionally, “the rule functions to bar claims in negligence for pure economic losses in deference to a contract between litigating parties.” (Ibid.) “[T]here is no liability in tort for economic loss caused by negligence in the performance or negotiation of a contr...

Excerpt: ...ant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) Here, Escrow Company contends Broker hasn't adequately alleged the element of duty regarding the transaction involving sale of real property in Irvine. The Cross-Complaint alleges Broker assisted Xiaoying Zhu in selling the subject ...

Excerpt: ...ent. Demurrer for Uncertainty “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Mali's of California, Inc.  (1993) 14 Cal.App.4th 612, 616.) “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v...

Excerpt: ...irst appearance in this action and was filed prior to an answer. Additionally, Counsel for Plaintiff concedes he granted an extension to answer, pursuant to California Rules of Court, rule 3.110(d). (¶2-¶3 of Nicholson Declaration.) While Plaintiff's Counsel asserts the extension permitted only an answer, Code of Civil Procedure section 396b, subdivision (a) permits a motion to change venue “within the time otherwise allowed to respond to the...

Excerpt: ...ations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules Ct., rule 3.1324(a).) A separate declaration must accompany the motion and must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discover...

Excerpt: ...24 (Ochoa). Ochoa declined to follow Felisilda v. FCA US, LLC (2020) 53 Cal.App.5th 486, on which the Court's 3-32-23 Order was based. A motion for reconsideration made by a party must be based on new or different facts, circumstances, or law than those before the court at the time of the original ruling. (Code Civ. Proc. § 1008(a).) The motion must also be accompanied by an affidavit from the moving party that states: (1) what application was p...

Excerpt: ...t and DENIED without prejudice in part. The alternative Motion granting all Votow's pending Motions to Compel Further Responses to Discovery, together with all monetary sanctions requested therein is DENIED. Request for Terminating Sanctions: “[T]erminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party.” (R.S. Creative, Inc. v. Creative...

Excerpt: ...scovered. [¶] (2) An exercise of the party's option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.260, subdivision (a), provides, in relevant part, “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party . . . .” Code of Civil Procedure section 2030.270,...

Excerpt: ...sal, order or other proceeding taken against a party. A court may grant discretionary relief upon the moving party's showing of “mistake, inadvertence, surprise or excusable neglect.” (Code Civ. Proc § 473, sub. (b); Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615-616.) While a request for relief under § 473(b) is entrusted largely to the trial court's discretion, the law strongly favors an exercise of that discretio...

Excerpt: ...unding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” SPROGs 8-13 seek informat...

Excerpt: ...uary 2, 2023; on May 11, 2023, Plaintiff served Defendant with a notice of deposition for May 25, 2023; and on May 16, 2023, Plaintiff served Defendant with a notice of deposition for June 29, 2023, which was a date previously offered by Defendant's counsel. (Medvei Decl., ¶ 4-6, Exs. 1, 4, 6.) Each time Defendant objected to the deposition notice on the grounds that the deposition date was unilaterally chosen by Plaintiff and that Defense Couns...

Excerpt: ...) Except as otherwise provided in Section 396a [not applicable here], 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, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, withou...

Excerpt: ...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 thereof in the case, except for special defenses which may b...

Excerpt: ...r is clearly frivolous, the court shall award court costs and reasonable attorney's fees to the public agency.” “The PRA does not define the term ‘clearly frivolous' for purposes of an award of fees and costs under that statute.” (Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 353, 368 (supra).) However, California courts have adopted the test articulated in In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty), 183 to determin...

Excerpt: ...if., 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 being raised against them, and of the...

Excerpt: ...re pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the action; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Rule 3.350(a) of the California Rules of Court sets forth the requirements for a motion to consolidate. (1) A notice of motion to consolidate must: (A) List all named parties in ea...

Excerpt: ...sting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: ¶ (1) An answer to a particular request is evasive or incomplete. ¶ (2) An objection to a particular request is without merit or too general.” Timeliness A motion to compel further responses to requests for admissions must be filed “within 45 days of the service of the verified response, or any supplemental ve...

Excerpt: ...on agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues.” (Code of Civ. Proc., § 1281.2; Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.) Simil...

Excerpt: ...ure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of ...