Excerpt: ...(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by show ing 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., § 437c, subd. (p)(2).) A ...

Excerpt: ...pposition t o this Motion was filed before that admonition. A. Legal Standard Where the statutory requirements are met, the court may, upon motion, enter judgment pursuant to the terms of a settlement agreement. (CCP §664.6). Before enactment of CCP § 664.6, whe n a settlement broke down, the party seeking to enforce it either had to (a) file a separate lawsuit for breach of contract or (b) seek leave to file a supplemental pleading (to alle...

Excerpt: ...ses of action and grant ed as to the 11th cause of action. Defendants' objections are sustained as to nos. 1, 6, 7, 11, 16, and 17 - 19 and overruled as to nos. 2 - 5, 8 - 10, and 12 - 15. Plaintiff's request for judicial notice is granted. A “party moving for summary judgment be ars an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact…” (Aguilar v. Atlantic Richfield Co. (...

Excerpt: ...on the same grou nds it now demurs on as to the SAC. The court overruled Defendant's prior demurrer. [ROA #95.] There is a split of authority among case law on the question whether a defendant may demur to an amended complaint on the grounds that were overruled on a dem urrer to the prior complaint. See Bennet v. Suncloud (1997) 56 Cal. App. 4th 91, 96 -97; Pacific States Enterprises, Inc. v. City of Coachella (1993) 13 Cal. App. 4th 1414, 1420,...

Excerpt: ...relevant, false, or improper matter inserted in any pleading or strike 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. “Irrelevant” matters include: allegati ons not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the...

Excerpt: ...endant has filed late oppositions. Any party to the action or the witness may bring a motion to quash a subpoena and may request the Court to quash it entirely, modify it, or direct compliance with it upon those terms and conditions as the court shall declare inc luding protective orders. In addition, the court may make any other order as may be appropriate to protect the moving party from unreasonable or oppressive demands including unreasonabl...

Excerpt: ...appear fo r the deposition “without having served a valid objection under Section 2025.410.” (Code Civ. Proc., § 2025.450, subd. (a).) A written objection to a deposition notice must be served at least three calendar days prior to the date for which the deposition i s scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) The Counsel for each side made some agreements, the details of which are disputed. Parties agreed that that the second ses...

Excerpt: ...ore affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or 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...

Excerpt: ...is divests the opinion of the Court of Appeal of binding or precedential effect, it may still be cited for “potentially persuasive value.” (See Cal. Rules of Ct. rule 8.1115(e)(1).) Based on the existing persuasive authority, including the Court of Appeal's decision in Dhital, the court concludes Plaintiff's fr audulent concealment claim is not barred by the economic loss rule as a matter of law. If the California Supreme Court reaches th...

Excerpt: ...� 1021.5. The court has reviewed the time entries of Plaintiff's counsel [Hanassab Decl., Ex. 1] and the specific objections raised by Defendant. Upon this review, the court has reduced the fees from those requested for a billing error, fees incurred on claims Plaintiff did not prevail on, time billed for clerical work, time billed for duplicative/unnecessary work, and time billed for which the task description was too uninformative for the cour...

Excerpt: ...pages. (ROA 108.) The maximum allowance is 15 pages, absent leave of court. (Cal. R. Ct. Rule 3.1113.) The Court will exercise its discretion to consider the oversized memorandum, this time, but future violations of the Rules may result in the Court's refusal to consider the offending p apers. Merits Defendant generally and specially demurs to the negligence cause of action in the First Amended Complaint. (To be clear, the Court construes the gen...

Excerpt: ...is carried on with a willful and conscious di sregard of the right and safety of others. (Civ. Code § 3294(c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (“The mer e allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation] Not only must there be circumst...

Excerpt: ... 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for s ummary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action c...

Excerpt: ... to an authorized method of discovery is a misuse of the discove ry process warranting sanctions. Code Civ. Proc. § 2023.010(d). So, too, is disobeying a court order to provide discovery. (Id., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal. App. 4th 1495, 1516.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 991.) The moving party need only...

Excerpt: ...laintiff need not use the words ‘alter ego,' but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 696 citing Leek v. Cooper (2011) 194 Cal.App.4th 399, 415, [ complaint alleging individual defendant was owner of all stock of defendant corporation and personally made all its b...

Excerpt: ...must be accepted as true. Aubry v. Tri -City Hospital Dist. (1992) 2 Cal. 4th 962, 966 -67. A pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the defendant in fairness needs such detail which can be conveniently p...

Excerpt: ...rees. CITA provides for “[a]ctual damages, attorney's fees, and costs, and any equitable relief that the court deems appropriate.” (Civ. Code § 1798.93(c)(5), emphasis added.) Thus, the remedies are not all in the hands of the Court. Second, MCM argues that there is no right to a jury trial on this statutory claim because the gist of the relief is equitable, as opposed to at law, comparing it to the unfair competition law and the false a...

Excerpt: ...nwarranted or the required specification of those docume nts is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) With respect to interrogatories, the burden of showing good cause does not exist. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220 -221.) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure...

Excerpt: ...tiff filed a separate statement in support of its reply. There is no provision in CCP se ction 437c for a reply separate statement. (Code Civ. Proc., § 437c; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) The Court declines to consider Plaintiff's reply separate statement. Plaintiff's objections to Role's Declaration are overruled. Applicable Law In both summary judgment and summary adjudication proceedings, the pleadings dete...

Excerpt: ...arties' evidentiary objections are as follows. Respondents' objections: • Declaration of Brendan Ba rth (ROA 158): o Overrule 1 -2; Sustain 3 -6 • Declaration of Erin Allgaier (ROA 157) o Overrule 1, 5, 6; Sustain 2 -4 • Declaration of Amy Searls (ROA 156) o Sustain 1 -5 • Declaration of Jessica LaPalme (ROA 155) o Overrule 1; Sustain 2 -7 • Declaration of Ro cky Benoit, MD (ROA 154) o Overrule 1; Sustain 2 -7 • Declaration of Kelly U...

Excerpt: ... shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., §430.41, subd. (a)(4).) The Court once again opts to proceed to the merits. On the merits, the demurrer is overruled. Within the demurrer itself Defendant asserts the first cause of action fails as “Plaintiff has not se t out the terms of such contract, nor has any contract been attached that demonstrates a contractual relationship between Plaintiff and any of the p...

Excerpt: ... of the remainder of the exhibits because they are not relevant to the disposition of the demurrer. (Sweeney v. California Regional Water Quality Control Bd. (2021) 61 Cal.App.5th 1, 1118, fn. 3.) The Court also declines to exercise its discretion to refuse to consider the opposition for being untimely by one day. Defendant demurs to the Complaint a nd the three causes of action asserted therein for: (1) breach of fiduciary duty – failure to u...

Excerpt: ...h, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; CACI 303.) PSG argues that the Service Contract at issue ended in April of 2018 and that any allegation that the agreement was extended is conclusory. The Court disagrees. The SACC alleges that the Service Agreement was initially drafted to terminate after two years (i.e., in April 2018), but the parties extended the Agreement beyond that initi...

Excerpt: ...right. Code Civ. Proc. §1032. To claim those, the prevailing party must file and serve a memorandum of costs within 15 days from the date the clerk (or any party) mails out notice of dismissal or entry of judgment. CRC 3.1700; Daniels v. Robbins (2010) 182 Cal. App. 4th 204, 228. The memorandum must include a supporting decl aration affirming that the costs were reasonable and necessarily incurred. CRC 3.1700(a)(1). No proposed judgment is requ...

Excerpt: ...nd to four deposition questions without objection. Kigge n also seeks an order compelling Driver to further respond to Request for Identification and Production of Documents, Set One, number 3 and Special Interrogatories, Set One, numbers 1, 2, and 4. The same information is at issue in the three motions – Driv er's history of traffic tickets and payment for such tickets. Defendant objected to the deposition questions, request for production, ...