Excerpt: ... be true. Blakemore v. Superior Court, 129 Cal. App. 4th 36, 53 (2005). “If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” Holland v. Morse Diesel Intern., Inc., 86 Cal. App. 4th 1443, 1447 (2001). Defendant argues that the challenged allegations must be stricken because they are inconsistent and/or contradictory to the terms of the Agreement attached to the Complaint, which do not eviden...

Excerpt: ...rer is OVERRU LED as to the first and second causes of action and SUSTAINED with 15 days leave to amend as to the third through fifth causes of action. The Regents demur to all five causes of action alleged in Plaintiff's First Amended Complaint (“FAC”). I. First Cau se of Action for Violation of California Whistleblower Protection Act (Govt. Code §§ 8547, et seq.) As described in Levi v. Regents of University of California: The [Califor...

Excerpt: ... Code of Civil Procedure § 410.30. Said section states: (a) When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in who le or in part on any conditions that may be just. (b) The provisions of Section 418.10 do not apply to a motion to stay or dismiss the action by a defendant who has made a gener...

Excerpt: ...es to strike Plaintiff 's prayer for punitive damages. Defendant first argues that the fourth cause of action is barred by the applicable statute of limitations and Plaintiff is not entitled to the delayed discovery rule. Code of Civil Procedure section 338(d) provides that an action for fraud must be brought within three years. “A plaintiff must bring a claim within the limitations period after accrual of the cause of action.” Fox v. Ethico...

Excerpt: ... to amend. “To establish a prima facie case of harassment, [Plaintiff] must show that: (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her w ork performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” Galvan v. Dameron Hospital...

Excerpt: ... a termi nating sanction against anyone engaging in conduct that is a misuse of the discovery process by an order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process, an order staying further proceedings by that party until an order for discovery is obeyed, an order dismissing the action, or any part of that action, of that party, or an order rendering a judgment by default against tha...

Excerpt: ...resulting from the breach, and damage to plaintiff. Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666, 673 (1993) (disapproved on another ground in Reid v. Google, Inc., 50 Cal. 4th 512, 527 (2010), fn. 5). Pursuant to the Complaint, Plaintiffs own property in a c ommon interest development which is managed by the Northwood Villa Homeowners Association (the “HOA”). Compl. ¶¶ 1,4. The HOA contracted with Defendant to provide property ...

Excerpt: ...n for tortious interference with contractual and business relations against Defendants Ralph Lauren and Swim USA, and sixth cause of action for conspiracy against Defendants Ralph Lauren and Swim USA. The Court rules as follows: The Demurrer is SUSTAINED WITH LEAVE TO AMEND as to the fourth cause of action for fraudulent concealment. Pursuant to Civil Code section 1710(3) fraud by concealment is the “suppression of a fact, by one who is bound t...

Excerpt: ... all of the following: 1. The claim upon which the attachment is based is one upon which an attachment may be issued; 2. The plaintiff has established the probable validity of the claim upon which the attachment is based; 3. The attachment is not sought for a purpose other than the recovery on the claim u pon which the attachment is based; and 4. The amount to be secured by the attachment is greater than zero. Code Civ. Proc., § 484.090(a). A cl...

Excerpt: ... amount of $120,832.44 against Defendant, OTA Franchise Corporation (“OTAF”), as follows. Upon filing of the Complaint, or at any time thereafter, the plaintiff may apply for a Right to Attach Order (“RTAO”) and writ of attachment by filing an application for the order & writ with the court in which the action is brought. Code Civ. Proc. § 484.010. If a debtor is a corporation, all of its assets are subject to attach ment. Code Civ. Pr...

Excerpt: ...e sections 2030.290, a party who fails to serve t imely responses to interrogatories waives any objection to the requested discovery. Code Civ. Proc., § 2030.290(a). The party propounding the interrogatories or requests for production may move for an order compelling responses to the discovery. Code Civ. Proc., § 2030.290(b). “Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45 – day time limit, ...

Excerpt: ...District met and conferred and timely filed a Jo int Statement pursuant to the Court's February 26, 2024 Minute Order. Per the Joint Statement, the parties agree to a mental examination of Plaintiff, and have resolved one issue, agreeing that Plaintiff may be asked questions about past mental history pe rtaining to issues she claims resulted from or were exacerbated by the subject incident. According to the Joint Statement, three conditions that...

Excerpt: ...of $86,469.53 within 15 days, as well as an order that D efendant pay Plaintiff for reasonably incurred attorneys' fees in the total amount of $7,164 relating to collecting the payment of attorney's fees, costs, and expenses. No opposition has been filed. Code of Civil Procedure section 664.6 provides, in pert inent part: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally...

Excerpt: ...ately met and conferred before the filing of this Demurrer. Defendant argues that Pl aintiff's newly added basis for liability against it, Code of Regulations Title 5 § 5551, fails. Defendant cites to C.A. v. Williams S. Hart Union High School Dist., 53 Cal. 4th 861 (2012), wherein the California Supreme Court held that school principals a nd other supervisory employees “have the responsibility of taking reasonable measures to guard pupils ag...

Excerpt: ...mjula”) and non -party Tulsan Partners LLC (“Tulsan”), and compelling third- party witness, Ump qua Bank to comply with Strategic's deposition subpoena for production of business records, issued November 3, 2023. The Motion to Compel is DENIED except as to Request Nos. 9 and 13. Plaintiff Strategic and Cross -Defendants, Farshad Hashemi aka Sean Hashemi and Jeanette Hashemi (collectively, the “Sellers”) were the sellers of the assets an...

Excerpt: ...y Patrol. 181 Cal. App. 4th 856, 868 (2010) (c itation omitted). Defendant Kenneally contends that the Complaint does not allege that he disclosed facts to the public, but rather that he only disclosed them to Defendant Ladd. Kenneally also contends that the facts disclosed were not private facts since the information was found in records that can be obtained by members of the public pursuant to Govt. Code § 6254. In opposition, Plaintiff conten...

Excerpt: ...marily to chill the defendant's exercise of First Am endment rights.” Finton Construction, Inc. v. Bidna & Keys, APLC, 238 Cal. App. 4th 200, 208 (2015). The trial court engages in a two -step process to determine whether a special motion to strike should be granted. Code Civ. Proc., § 425.16(b)(1). First, the court decides whether the defendant has met its initial burden of establishing a prima facie showing that defendant's acts, of whic...

Excerpt: ...n the deposition notice if, after service of a deposition notic e and without having served a valid objection, the party fails to appear for examination. A motion under Code of Civil Procedure § 2025.450(a) must be accompanied by a declaration under Code of Civil Procedure § 2016.040 or, when the deponent fails to att end the deposition and produce documents, by a declaration stating that the moving party contacted the deponent to inquire about...

Excerpt: ...te covered by the agreement. Code Civ. Proc. § 1281.2. “The trial court m ay resolve motions to compel arbitration in summary proceedings, in which ‘[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. In these summary proceedings, the ...

Excerpt: ..., 49 (2018). “It then falls to plaintiff to counter with evidence creati ng a dispute about a fact relevant to that defense.” Id. “That is, the plaintiff must submit evidence that would allow a ‘reasonable trier of fact [to] find in plaintiff[‘s] favor on the statute of limitations issue.” Id. This is a wrongful death and surv ival action. Plaintiffs allege that the Decedent died from injuries sustained in an electrical fire that oc...

Excerpt: ...f the causes of action for breach of contract. The breach of contract claims involve an Equipment Finance Agreement (“EFA”) entered into by ST and Partners Capital Group (“PCG”). The original term was for 60 months with 60 payments of $4,990.46. The EFA notes that an advance payment of $4,990.46 was received and applied to the first monthly payment due with an y remainder to be applied to the last payment(s) due. The “Commencement Date...

Excerpt: ...ecessary to prevent prejudicing the party's int erest in the litigation.” Code Civ. Proc., § 36(a) (emphasis added); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 12:246:1 (“Trial priority is not mandatory and absolute merely because one of the parties is age 70. The court has discretion to determine the extent of that party's interest and find as a matter of fact the risk posed of that party...

Excerpt: ...as to its legal and factual merit; and is subject to sanctions for violation of this certiÞcation. Code Civ. Proc. § 128.7; see also Murphy v. Yale Materials Handling Corp., 54 Cal. App. 4th 619, 623 (1997). The purpose of the statute is “to check abuses in the Þling of pleadings, petitions, written notices of motions or similar papers.” Musaelian v. Adams, 45 Cal. 4th 512, 514 (2009). The person presenting the paper to the Court impliedly...

Excerpt: ...thal Fair Debt Collection Practices Act does not apply to the commercial transaction underlying this action. Balboa also moves for an order striking Riojas' request for punitive damages. Balboa seeks judicial notice of the Equipment Finance Agreement and Personal Guaranty attached to the Complaint as Exhibits 1 and 2, respectively. Balboa's request is predicated on the fact that these documents are attached to the Complaint and constitute Court r...

Excerpt: ...�'s Demand or Inspection and Destructive Testing. The Motion is GRANTED. However, the order is limited to those tests speciÞcally set orth in the Notice, which speciÞcally include: 1. Removing the bottom course o roo tile 3' in each direction rom the rain gutter spike and errule. 2. Removing the eave strip ßashing. 3. Removing the entire rain gutter. 4. Removing an area o stucco, likely 3' wide, rom eave to top o window. 5. Installing...

Excerpt: ...rth below, the Court Þnds that the transfer and coordination will promote the ends of justice pursuant to Code of Civil Procedure § 404.1. The Court understands that counsel for Ganahl Lumber Company (“Ganahl”) expressed concern that the Merced Action cannot be transferred to this Court because it includes a cause of action for foreclosure of mechanics lien, and the property that is the subject of that claim is located in Merced County. Thi...

Excerpt: ...m (“Anna”) joins in the Opposition. This action involves two consolidated cases. The action arises out of a dispute over the family business, May Enterprises, LLC. The lead case, Kim v. Kim (Case No. 2021- 01183125), was initiated by Mira against her sisters (Defendants Gina Kim and Anna Kim), her parents (Defendants Kyong Su Kim aka Kyung Soo Kim and Myong Kil Kim) and May Enterprises, LLC. Mira alleges claims for, amongst other things, brea...

Excerpt: ...ehr, asserts that Defendant Thetford's bankruptcy case was discharged on August 28, 2023. The Court notes that there is no proof of service showing that the declaration was properly served. Counsel for Plainti
¯s is admonished to properly serve all future documents Þled with the Court and to Þle proofs of service as required. Despite the failure to properly serve the declaration, the Court takes judicial notice of the fact that Defendant Thetf...

Excerpt: ...ved a valid objection under Code o Civil Procedure section 2025.410, ails to appear or deposition, the party giving notice may move or an order compelling the deponent's attendance and testimony at deposition. The motion must be accompanied by a declaration under Code o Civil Procedure section 2016.040 stating that the moving party contacted the deponent to inquire about the nonappearance. Code Civ. Proc. § 2025.450(b)(2). Section 2025.450(...

Excerpt: ...ght of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plainti
¯ has established that there is a probability that the plainti
¯ will prevail on the claim. . . . (2) In making its determination, the court shall consider the pleadings, and supporting and opposing a
¯idavits stating the...

Excerpt: ...e statutes, case, and textbooks cited in support of the position advanced.” Failure to include points and authorities supporting each ground for the motion may be treated as an admission that the motion is not meritorious, and as ground to deny it. California Rules of Court, rule 3.1113(a). The motion does not cite to authority to support amending the complaint and does not discuss leave to Þle a Second Amended Complaint. To the extent that Pl...

Excerpt: ...ement to enter into the contract, second cause o action or negligent misrepresentation, third cause o action or breach o written contract, ourth cause o action or breach o covenant o good aith and air dealing, tenth cause o action or recission and restitution ail, eleventh cause o action or intentional inßiction o emotional distress, and thirteenth cause o action or accounting. The Court rules as ollows: • The Demurrer to ...

Excerpt: ...mmons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of moton shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default jud...

Excerpt: ...required for the court to obtain jurisdiction over defendants. Code Civ. Proc. S 410.50(a); Ziller Electronics Lab GmbH v. Superior Court, 206 Cal. App. 3d 1222, 1229 (1988); Dill v. Berquist const. co., Inc., 24 cal. App. 4th 1426, 1439 (1994). Notice does not substitute for proper service. Ruttenberg v. Ruttenberg, 53 Cal. App. 4th 801, 808 (1997). "Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant." pp. ...

Excerpt: ...on. A party may move for an order compelling further responses to interrogatories if the party deems an answer to be evasive or incomplete, an exercise of the option to produce documents under section 2030.230 is unwarranted or the required specification of the documents is inadequate, or an objection is without merit or too general. Code Civ. Proc. S 2030.300(a). Motions to compel further responses to interrogatories must be accompanied by a dec...

Excerpt: ...The 11 U.S.C. S 362 automatic stay only stays lawsuits against the debtor and the debtor's bankruptcy estate. The Secton 362 stay does not apply where, as here, the debtor is the plaintiff in a lawsuit. 11 U.S.C. S 362(a) (1)—(8).") (emphasis added). As to the merits, Defendant Five Boys Investments, Inc.'s ("Five Boys") Motion to Compel Arbitration is GRANTED. Plaintiff Wael Abdo is ordered to arbitrate her claims against Five Boys, with the e...

Excerpt: ...em because they were not parties to the written agreement and no basis has been pled by which to impute liability upon them. They contend that the attempt at pleading an alter ego theory of liability fails because the FAC only pleads conclusions with no facts. Detailed pleading is not required to allege an alter ego theory of liability. Indeed, "[i]t is not even essential, apparently, that the alter ego doctrine always be specifically pleaded in ...

Excerpt: ...aintiff's allegations lack the requisite specificity regarding Defendant's willful intent. "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 punishing the defendant." Civ. Code, S 3294(a). "'Malice' ...

Excerpt: ...efendant was ordered to Answer the Complaint within 15 calendar days of service of the Amended Complaint. With regard to the motion to strike, Plaintiff was ordered to file an amended Complaint not inconsistent with the above ruling. ld. However, instead of filing an Answer to the FAC, Defendant filed another demurrer on the same grounds to the same causes of achon that were previously overruled. Defendant previously demurred on the grounds of un...

Excerpt: ...tion must state in writing the 'grounds upon which it will be made.'" Gonzalez v. Superior Court, 189 Cal. App. 3d 1542, 1545 (1987). "Only the grounds specified in the notice of motion may be considered by the trial court. This rule has been held to be especially true in the case of motions for summary adjudication of issues." ld. Based on the above, the existence of any triable issue, as to any claim justifies a denial of this motion. Similarly...

Excerpt: ...efendant contends the entire Crosscomplaint is uncertain because the causes of action are devoid of the necessary "ultimate facts" as it pertains to their claims against and that it is impossible to know what conduct on Cross-Defendant's part the Crosscomplainant is alleging caused the alleged injuries. A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertaint...

Excerpt: ...ntiff's 2nd and 3rd causes of action for retaliation and failure to prevent discrimination/ harassment/ retaliation are based, in part, on Defendant DANNY's conduct and Defendants MANPOWER and B. BRAUN's alleged retaliation, failure to prevent retaliation, and termination of Plaintiff for reporting and complaining about DANNY's behavior towards Plaintiff. See Compl. 43-45 [for reporting Defendants' discriminatory and harassing conduct towards her...

Excerpt: ...f record, jointly and severally. Plaintiff also moves for an order compelling the deposition of Defense Medical Examination Physician, Philip K. Stenquist, M.D„ and awarding a monetary sanction in the amount of $2,500 against Defendants, Wurth Louis and Company and Cesar Salas and their attorneys of record, jointly and severally. The Motions are DENIED in their entirety. Defendants' objection based on Code of Civil Procedure section 2034.410 ap...

Excerpt: ...o the Complaint as Exhibit A. It is between Plaintiff, as the buyer, and Life Cycle, as the seller. Paragraph 31.A of that agreement provides, in relevant part: The Parties agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transacton before resorting to arbitration or court action through the C.A.R. Consumer Mediation Center (www.consumermediaton.org) or through any other mediation provider or serv...

Excerpt: ...White Oaks, LLC ("White Oaks Landlord") move this Court for Summary Judgment or, in the alternative, Summary Adjudication. For the reasons stated herein, the motion is GRANTED. l. Burdens on Summary Judgment/Adjudicaton As a plaintiff moving for summary judgment/adjudicaton, plaintiff Simon has the burden of producing admissible evidence on each element of the cause of action entitling it to judgment (CCP It is not plaintiff's burden to disprove ...

Excerpt: ...rocedure S 2023.010(g) defines the misuse of discovery process to include "[dlisobeying a court order to provide discovery." Code of Civil Procedure S 2023.030(d) grants the Court authority to impose terminating sanctions for misuse of discovery process by striking out pleadings. The Court may impose a monetary, issue, evidence, or terminating sancton against any party engaging in misuse of the discovery process. Code Civ. Proc. S 2023.030. On Au...

Excerpt: ...re Michael Stamos (Dean of the School of medicine at UCI) and Regents of the university of California. Petitioner seeks relief pursuant to Code of Civil Procedure SS 1085 (ordinary mandate) and 1094.5 (administrative mandate). As explained in Bunnett v. Regents of Univ. of California: The proper method of obtaining judicial review of most public agency' decisions is by instituting a proceed-ng for a writ of mandate. Statutes provide fortwo types ...

Excerpt: ...action based on forum non conveniens. Defendants A2E Advisors ("A2E"); Blattner Technologies SPV 1, LLC ("SPV"); and Unicorn & Lion, LLC ("Unicorn") have also jointly filed their own Motion to Dismiss on the same grounds. In most circumstances, California law considers mandatory forum selection clauses presumptively valid and enforceable: "'California favors contractual forum selection clauses as long as they are entered into freely and voluntari...

Excerpt: ..., Plaintiff has submitted evidence showing that two filing fees were paid. In addition, pursuant to the Court's November 13, 2023 Minute Order, the parties were to "file a Joint Statement setting forth the efforts made by counsel to meet and confer, as well as stating what issues remain for the Court and why the parties were unable to resolve their issues . " no later than 9 court days before the continued hearing date. ROA 95. The parties timely...

Excerpt: ...osal to result in the formation of a contract, the proposal 'must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain."' Weddington Productions, Inc. v. Flick, 60 Cal. App. 4th 793, 811 (1998). "A proposal 'cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain." ld. "The terms of a contract are reasonably certain if they...

Excerpt: ...s entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. (3) When it appears, during the litigation, that a part...

Excerpt: ... insurer, where it is conceded that such policy insuring the property for wrongful destruction or unwarranted removal." A basic tenet of motion practice is that the notice of motion must state the grounds for the order being sought (Code Civ. Proc., S 1010; California Rules of Court, rule 3.1110(a)), and courts generally may consider only the grounds stated in the notice of motion. Kinda v. Carpenter, 247 Cal. App. 4th 1268, 1277 (2016). "The pur...

Excerpt: ...missal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Code Civ. Proc., S 473(b) (emphasis added). "The statute's 'broad remedial provisions' are to be 'liberally applied to carry out the policy of permitting trial on the merits.' The party seeking relief, however, bears the burden of proof in establishing a right to relief. The burden is a 'Mdouble'"' one: the moving...

Excerpt: ...d that Intersection entered into a written agreement to serve as financial advisor and placement agent to üJadSpring Solutions, Inc. ("Loadspring"), that agreement contains a pre-dispute arbitration clause wherein all parties gave up the right to sue each other in court and acknowledged that any disputes arising out of the agreement must be submitted to bindng arbitration, all claims against Intersecton arise out of Intersection's provision of s...

Excerpt: ... constituted malice, oppression, or fraud. Defendants argue that the FAC adds no additional facts and provides zero factual allegations supporting Plaintiff's conclusions that Defendants acted in a "deliberate, cold, callous, malicious, oppressive, and intentional manner in order to injure and damage him." The new allegations in the FAC are found in Paragraphs 65 and 71. Those allegations state that Defendant Shigenari, Chief Executve Officer, "k...

Excerpt: ...ten agreement to arbitrate the controversy.'" Gamboa v. Northeast Community Clinic, 72 Cal. App. 5th 158, 155 (2021); Cal. Rules of Court, rule 3.1330. "The moving party can meet its initial burden by attaching to the motion or petition a copy of the arbitration agreement purporting to bear the opposing party's signature." ld. (internal citations omitted). "If the moving party meets its initial prima fac:ie burden and the opposing party does not ...

Excerpt: .... of Kalaf '1 3. Notably, while Attorney Kalaf declares that the subpoena is attached as Ex. A, there is no Ex. A attached to his declaration. However, that document is attached to the Declaration of Daughters 6, Ex. D. There is no suggestion from Plaintiff that Habib American Bank is his current employer, but rather, is a place where he worked after his employment with Defendant ended. Plaintiff seeks to quash the subpoena on the sole basis of p...

Excerpt: ...ature of the basic interrogatory at issue, it does not appear to the Court that additional efforts to meet and confer would likely bear fruit. However, the Court admonishes all parties to conform to statute requiring meet and confer by telephone or in person, NOT by email or correspondence. Nevertheless, the Court addresses the merits of the motion. Each answer in a response to interrogatories shall be as complete and straightforward as the infor...

Excerpt: ...g for summary judgment satisfies his or her initial burden by showng that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. Cuie Civ. Proc. S 437c(p)(2). The scope of this burden is determined by the allegations of the plaintiff's complaint. FPI Development v. Nakashima, 231 Cal. App. 3d 367, 381-382 (1991) (pleadings serve as the outer measure of materiality in a summary...

Excerpt: ...nts of any negligence cause of action are duty, breach of duty, proximate cause, and damages." Peredia v. HR Mobile Services, Inc., 25 Cal. App. 5th 680, 687 (2018). It is undisputed that Plaintiff's negligence claim against Alorica is premised on Alorica's alleged breach of a non-contractual duty it owed to Plaintiff. Liability for negligent conduct may only be where there is a duty of care owed by the defendant to the plaintiff or to a class of...

Excerpt: ...rial fact and that the moving party is entitled to a judgment as a matter of law.' To determine whether a triable issue of material fact exists, the court must consider all evidence laid out in the moving papers and all inferences reasonably deducible from the evidence. A triable issue of material fact exists if, 'the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordanc...

Excerpt: ...s the merits. The Court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceedng by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. Code Civ. Proc. S 473(a)(1). California courts generally exercise their discretion liberally to permit the a...

Excerpt: ...efendant's claims under the 1/1/17 promissory note, fails to state a cause of action. The Demurrer and Motion to Strike are both predicated in the argument that the entire FACC hinges on the 1/1/17 promissory note, which is no longer at issue in the First Amended Complaint ("FAC"). The Court finds this argument unpersuasive for two main reasons. First, whether the 1/1/17 promissory note is at issue in the FAC has no bearing on whether Cross-compl...

Excerpt: ...e statute of limitations. The applicable statute of limitations for this cause of acton is set forth in Business and Professions Code section 17208 and is four- years. Here, the Complaint alleges that Defendant "advertised, called attention to, or gave publicity to the sale of merchandise" "[o]n or about May 6, 2019: and that he purchased the vehicle on or about this date. See Complaint, "1 4 and 53. As such, as to this cause of action, the statu...

Excerpt: ...of the causes of achon for negligence, negligent hiring/ supervision/ retention, and vicarious liability. The Moton is unopposed. Plaintiff's achon arises out of an April 3, 2020 phone call during which she alleges that she was threatened and harassed. Separate Statement of undisputed Material Facts ("UMF") No. 9. The individual who made the call was Defendant Johnny Nava. UMF No. 11. Mr. Nava made the phone call with Defendant Rodolfo Gutierrez....

Excerpt: ... responses to Requests for Production, Set Two ("RFP 2"), Nos. 68-70, 72, 77, and the production of a privilege log from Second TL. RLC additionally moves for an order imposing monetary sanctions against Second TL and/or its counsel in the amount of reasonable attorneys' fees and costs incurred in bringing this motion. SPROG 2, Nos. 35-37, 45 If a timely motion to compel has been filed, the burden is on the responding party to justify the adequac...

Excerpt: ...uired. As a second initial matter, the Joint Statement filed on 04/11/23 (ROA 242) states that Defendant Swapsy, Inc. filed for bankruptcy on April 6, 2023 and the parties agree that this matter is stayed as to Swapsy. The individual Defendants have raised the issue of whether the matter can proceed against them. Plaintiffs believe it should. There are also several discovery motions filed by Plaintiffs and Swapsy set for hearing in May 2023. The ...

Excerpt: ...6.040 or, when the deponent fails to attend the depsition and produce documents, by a declaration stating that the moving party contacted the deponent to inquire about the nonappearance. Code Civ. Proc. S 2025.450(b)(2). Defendants served the notice on August 25, 2023 with a deposition date of September 11, 2023. Declaration of Eric D. Houser '1 4. At that time, Plaintiff was selfrepresented. ROA 33. His present counsel, Matt Cortez, substituted ...

Excerpt: ... California Rules of Court, rule 9.40. Moving attorney to give notice. The unopposed Application of Victoria H. Buter to Appear Pro Hac Vice for Plaintiff and Cross- Defendant, Second TL Holdings, LLC is CONTINUED to November 20, 2023 at a.m. in this Department. Moving attorney met the requirements of California Rules of Court, rule 9.40 except that the prtnf of service attached to the Application documents does not reflect that the State Bar of ...

Excerpt: ...) violation of Penal Code S 496. A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. Code Civ. Proc. S 437c(p)(2). The scope of this burden is determined by the allegatons of the plaintiff's complaint. FPI Development v. Nakashima, 231 Cal. App. 3d 367, 381-382 (1991) (pleadings serv...

Excerpt: ...the Complaint filed by Plaintiff Ravichandran Ramakrishnan for failure to state facts sufficient to constitute a cause of action and for uncertainty. LBMMC's demurrer is SUSTAINED, with 20 days leave to amend. LBMMC initially contends that the statutes of limitations for the first three cause of action should be measured by L8MMC's actions only and not any other defendant, and that the claims are barred by the statutes of limitations. LBMMC conte...

Excerpt: ...ursuant to California Code of Civil Procedure 2030.300(d). Motion is DENIED as untimely. A motion to compel also lies where the party to whom the interrogatories were directed gave responses deemed improper by the propounding party, e.g., objections, or evasive or incomplete answers. Code Civ. Proc. S 2030.300; see Best Products, Inc. v. Sup.Ct. (Granatelli Motorsports, Inc.), 119 Cal. App. 4th 1181, 1189-1190 (2004). In this situation, a notice ...

Excerpt: ... to section 2025.450(a), "[i]f, after service of a deposition notice, a party to the action ... without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, ... the party giving the notice may move for an order compelling the deponent's attendance and testimony ... " . A motion to compel attendance at a deposition must accompanied by either a meet and confer declaration stating "facts sho...

Excerpt: ...f this burden is determined by the allegations of the plaintiff's complaint. FPI Development v. Nakashima, 231 Cal. App. 3d 357, 381-382 (1991) (pleadings serve as the outer measure of materiality in a summary judgment motion). Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. Aguilar v. Atlan...

Excerpt: ...April 6, 2023, and the parties agree that this matter is stayed as to Swapsy. The individual Defendants have raised the issue of whether the matter can proceed against them. Plaintiffs believe it should. There were also several discovery motions filed by Plaintiffs and Swapsy set for hearing in May 2023. The parties agree that those motions should be stayed due to the bankruptcy filing of Swapsy. "As a general rule, [tlhe automatic stay of sectio...

Excerpt: ... of Plumas, 133 Cal. App. 4th 1, 20 (2005) ("Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue."). In addition, it is axiomatic that the failure to challenge a contention in a brief results in the concession of that argument. DuPont Merck Pharmaceutical Co. v. Sup. Ct., 7...

Excerpt: ...iability against it, Education Code secton 44807 and Civil Code section 1714, both fail. All governmental tort liability must be based on statute. Hoff v. Vacaville Unified School Dist„ 19 Cal. 4th 925, 932 (1998). Thus, if the statutory bases for liability set forth in the Complaint fall, Plaintiff's action against Defendant necessarily fails as well. The Complaint alleges that, after a softball game, a group of five female high school student...

Excerpt: ... of "new trial," which is set forth in Code of Civil Procedure S 656 as follows: "reexamination of an issue of fact in the same court after a trial and decision by a jury, court or referee." ECS's argument is unavailing. Trial is not defined, and a summary judgment hearing can arguably be construed as a court trial. Further, there are numerous published decisions acknowledging the use of a Motion for New Trial after summary judgment. See, e.g., A...

Excerpt: ... Action is SUSTAINED without leave to amend. Chapman and CSEA's demurrers to the Ninth, Thirteenth and Fourteenth Causes of Action are OVERRULED. As a preliminary matter, Defendants contend that the Court should sustain their demurrer because the Court previously sustained Defendants' demurrer to the same causes of action as alleged in the Second Amended Complaint. According to Defendants, the allegations regarding those causes of action are the ...

Excerpt: ...l Proc:edure section 473 is discretionary. ld. When a party seeks to amend a pleading, the motion to amend must include a copy of the proposed amendment, state the allegations to be deleted, and state allegations to be added. Cal. Rules of Court, rule 3.1324 (a). Moreover, the moving party must submit a declaration that specifies: "(1) [t]he effect of the amendment; (2) [w]hy the amendment is necessary and proper; (3) [w]hen the facts giving rise...

Excerpt: ...y Injunction is GRANTED. "An injunction is a writ or order requiring a person to refrain from a particular act." Code Civ. Proc., S 525. "It may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court." Code Civ. Proc., S 525. Pursuant to Code of Civil Procedure section 527: "A preliminary injunction may be granted at any time before judgment upon a ve...

Excerpt: ...hat plaintiff's action has no merit: Issue No. (1): Defendant Louise X. Ye-Liew, D.O. complied with the standard of care in the care and treatment rendered to the decedent Keith Hose, negating breach of duty; Issue No. (2): there is an absence of legal causation between any negligent act and/or omission on the part of defendant Louise X. Ye-Liew, D.O. and the death of Keith Hose alleged by plaintiffs. The elements of a medical malpractice cause o...

Excerpt: ... is a complete defense to the cause of action. Cal. Code Civ. Proc. S 437c(p)(2). The scope of this burden is determined by the allegations of the plaintiff's complaint. FPI Development v. Nakashima, 231 Cal. App. 3d 367, 381-382 (1991) (pleadings serve as the outer measure of materiality in a summary judgment motion). Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the exi...

Excerpt: ... no duty to disclose. GM also moves to strike Plaintiff's claim for punitive damages on the ground that the fraudulent concealment cause of action fails and there is therefore no proper basis for such damages. l. Specificity "The elements of a claim for fraudulent concealment require a plaintiff to show that: '(1) the defendant ... concealed or suppressed a material fact; (2) the defendant [was] under a duty to disclose the fact to the plaintiff;...

Excerpt: ...for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." Code Civ. S 438(d). Within this action, Plaintiff seeks to hold Defendants liable for a judgment issued against United National Exterminator, Inc., pursuant to alter ego liability. Comp„ 2-9 4, 11 and '1 13. "In general, two requirements for applying the alter ego doctrine are that (1) there is such...

Excerpt: ...sition of Janice M. Vinci not be taken pursuant to Code of Civil Procedure section 2025.420, as well as monetary sanctions against Defendant/cross-complainant Eric Dubin and his counsel in the amount of $2,652.50. The Motion to Quash is GRANTED. The Motion for Protective Order is GRANTED. A party may "move for an order staying the taking of the deposition and quashing the deposition notice." Cal. Code Civ. Proc. S 2025.410(c). "The taking of the ...

Excerpt: ...g abandoned the claims. See Herzberg v. County of Plumas, 133 Cal. App. 4th 1, 20 (2005) ("Plaintiffs did not oppose the County s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue"). In addition, is axiomatic the failure to challenge a contention in a brief results in the concession of that argument. DuPont Me...

Excerpt: ..."Top Surgical"), and Old Newport Group, LLC ("Old Newport") (collectively, "Defendants") filed Demurrer to the second cause of action for promissory fraud against Dr. Rowshan and Newport Care and fourth cause of action for breach of contract against Dr. Rowshan. First, Defendant's request for judicial notice is DENIED. Exhibits A-C are reasonably disputable. Fremont Indemnity Co. v. Fremont General Corp., 148 Cal. App. 4th 97, 113-115 (2007) and ...

Excerpt: ... against Little Onion, Inc. and Little Onion, LLC . ." See ROA 47. Presumably, since Judge Oberholzer awarded damages in an amount less than what was sought by Plaintiff, Plaintiff now wishes to revisit Judge Oberholzer's order based on two things: (1) Plaintiff "suspects" an irregularity in the proceedings; and (2) that Judge Oberholzer "failed to provide any just cause" for reducing damages. See Motion at 3. Preliminarily, although a motion for...

Excerpt: ...d Co., 25 Cal. 4th 826, 849-850 (20431). A Plaintiff has met his or her burden of showing there is no defense to a cause of action if that party has proved each element of the cause of achon entitling the party to judgment on that cause of action. Cal. Code Civ. Proc. S 437c(p)(1). Once the Plaintiff has met that burden, the burden shifts to the Defendant to show that a triable issue of one or more material facts exists as to that cause of action...

Excerpt: ...interrogatories or requests for production of documents were directed fails to serve a timely response, the propounding party may move for an order compelling responses, and for monetary sanctions. Code Civ. Proc. SS 2030.290(b); 2031.300(b). By operation of law, if a party fails to serve a timely response to interrogatories, all objections that could have been asserted are waived, including any right to exercise the option to produce writings un...

Excerpt: ...any. l. The Motion is DENIED as to Defendant Ted Jones Ford, Inc. dba Ken Grody Ford First, the Court recognizes that Ted Jones Ford, Inc. dba Ken Grody Ford is a party to the Retail Installment Sale Contract and the Arbitration Provision contained therein. However, consistent with the holdings in Ford Motor Warranty Cases, Montemayor, and Kielar, the Retail Installment Sale Contract is not the source of the statutory causes of achon at issue in ...

Excerpt: ...ion. Cal. Code Civ. Proc. S 437c(p)(2). The scope of this burden is determined by the allegations of the plaintiff's complaint. FPI Development v. Nakashima, 231 Cal. App. 3d 367, 381-382 (1991) (pleadings serve as the outer measure of materiality in a summary judgment motion). Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affir...

Excerpt: ... Cal. App. 5th 1324 (2023) and Montemayor v. Ford Motor Company, 92 Cal. App. 5th 958 (2023), review filed (Aug. 1, 2023) applicable and the Motion to Compel Arbitration is therefore DENIED. Here, neither Defendant is a signatory to the Retail Installment Sale Contract at issue. Defendants seek to compel arbitration on the following grounds: (1) Defendants may enforce the arbitration provision under the doctrine of equitable estoppel; and (2) Def...

Excerpt: ...er day that Defendant does not fully comply with the order. Cuie of Civil Prmædure S 2023.010 states, in part, as follows: "Misuses of the discovery process include, but are not limited to, the follow-ng: ... (d) Failing to respond or submit to an authorized method of discovery... . (g) Disobeying a court order to provide discovery." Code of Civil Prc„cedure S 2023.030 provides, in part, as follows: "To the extent authorized by the chapter gov...

Excerpt: ...here and entitled to some amount of fees. A court has wide discretion in determining what constitutes reasonable attorney fees. The court typically makes this determination based upon declarations without live testimony. The value of legal services performed in a case is a matter in which the court has its own expertise, and thus may make its own determination of the value of the services contrary to, or without the necessity for, expert testimon...

Excerpt: ...l, Angelica Toral, Karen Watkins, and Larry Watkins' ("Plaintiffs") move for an award of attorneys' fees in the amount $161,627M, plus costs in the amount of $2,413.94 of Defendant Related Management Company, LP. ("Defendant"). Defendant requests judicial notice of the following: 1. the Court's Minute Order in related matter Griffith v. Related Management Company, L.P., case number 2019- 01091978, regarding Plaintiff Motion for Summary Adjudicati...

Excerpt: ... claims and damages to raise a response or defense. Code Civ. Proc. S 430.10(f). A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. Khoury v. Maly's of Calif. , Inc., 14 Cal. App. 4th 612, 616 (1993); A.J. Fistes Corp. v. GDL Best Contr...

Excerpt: ...erating Company, L.L.C., Orange City Mills Limited Partnership, and Mall at White Oaks, LLC's (“Landlords”) Motions to Compel are GRANTED in part and DENIED in part. Landlords seek an order compelling Fitness International, LLC “(LA Fitness”) to produce documents and provide further responses to RFAs 5-6, Form Interrogatory Nos. 12.1, 15.1 and 17.1, Special Interrogatory Nos. 3, 6 and 18 and RFP Nos. 1-5, 8, 9, 12, 13 and 15. The unresolv...

Excerpt: ... filed documents, and any documents filed after the July 31, 2023 hearing except for the declaration filed as ordered by the Court. A motion for judgment on the pleadings may be made, and granted, on the same grounds as a general demurrer. Cal. Code Civ. Proc § 438(c)(1)(B)(ii); Stoops v. Abbassi, 100 Cal. App. 4th 644, 650 (2002). A motion for judgment on the pleadings that is brought by a defendant may only be made either on the ground that th...