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: ...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: ... 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: ... 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: ... 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: ...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: ...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: ...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: ... 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: ..."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: ...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...