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: ...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: ...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: ...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: ...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: ... 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: ...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: ...� 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: ... 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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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: ...AA is to ‘ensur[e] that private arbitration agreements are enforced according to thei r terms.'” (Lacayo v. Catalina Restaurant Group Inc. (2019) 38 Cal.App.5th 244, 257, citing AT&T Mobility LLC. v. Concepcion (2011) 563 U.S. 333, 344, 131 S.Ct. 1740.) “California law, like federal law, favors enforcement of valid arbitration agreements.” (Baxter v. Genworth North America Corp. (2017) 16 Cal.App.5th 713, 721, citation omitted.) A party s...

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, ...

Excerpt: ...fendant fails to demonstrate that grounds exist to “dismiss” or vacate said default. Code Civ. Proc. § 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” De fendant does not argue that the default judgment was the result of “mistake, inadvertence, surprise or excusable neglect.” In addition, Code C...

Excerpt: ...onabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994. Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with su
¯icient detail to acquaint a defendant with the nature, source and extent of the claim. Leek v. Cooper (2011) 194 Cal. App. 4th 399, 413. On demurrer, a complaint must be liberally construed. Code Civ. P...

Excerpt: ... the statute o laches. (ROA 100.) The Court Þnds neither the statute o limitations issue, nor the issue o laches, is suitable or resolution at this early stage o the proceedings. With respect to the statute o limitations, Podobas has not shown the IIED (Domestic Violence) claim is time barred. (Code Civ. Proc., § 340.15, subd. (a).) And, Plainti
¯ has su
¯iciently alleged “abuse” within the meaning o CCP section 340.15, which it ad...

Excerpt: ...ecuring the Note).) Evidentiary Objections Plainti
¯ improperly presents evidentiary objections in the opposition to the Separate Statement. Written objections must be served and Þled separately from papers supporting or opposing the motion. [CRC 3.1354(b); Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 CA4th 1, 8-9, 149 CR3d 93, 9899—court did not abuse its discretion in refusing to consider objections not Þled separately as required b...

Excerpt: ...lin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 CA3d 381, 385-386; W. A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (1959) 176 Cal.App.2d 67, 72.) To the extent Defendant is requesting the Court to grant him relief from default, the Court Þnds Defendant fails to demonstrate that grounds exist to vacate said default. Code Civ. Proc. § 473(b) permits a court to grant relief from a judgment, dismissal, ord...

Excerpt: ...ainti
¯ pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1). As an initial matter, the Court notes the action was stayed on 6/14/2022, pending Defendants' appeal. Remittitur was issued on 10/10/2023. Plainti
¯'s motion to tax and Defendants' motion for fees were Þled shortly after Remittitur was issued. This case was reassigned to this Department after Defendants Þled a peremptory challenge. No order lifting the stay was is...

Excerpt: ...y tailored; and 5) No less restrictive means exist to achieve the overriding interest. Petitioner's request to seal the applicable records, as submitted in their already redacted form, is GRANTED. Pursuant to CRC 2.550(e), the court concludes that the proposed sealed portions are properly sought and agrees with petitioner that disclosure “would … disclose private, conÞdential and sensitive medical information ….” Petitioner's request for...

Excerpt: ...g the discovery sought by the inspection demand pursuant to Code Civ. Proc., § 2031.310(b)(1).] To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) speciÞc facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial...

Excerpt: ... grants Defendant's request to judicially notice its Exhibits 1-4. Objections The Court sustains evidentiary objections nos. 4-7, and 11 to the Declaration of Plainti
¯s' Counsel Deborah Rosenthal. The remainder of the objections by both sides are overruled. Legal Standard Pursuant to Code of Civil Procedure section 526 provides for when an injunction may be granted. Code of Civil Procedure section 526, subdivision (a)(3) provides that an injunc...

Excerpt: ...laration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.") Whether a reasonable and good faith attempt was made is a matter within the Court's discretion. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431—32.) Here, Plaintiff sent a meet and confer letter on 11/6/23 with respect to the discovery at issue. Defendant did not respond. ...

Excerpt: ...e hearing, which is insufficient. Because the motion was electronically served, Plaintiffs had to serve the motion no later than 12/27/23. Accordingly, the motion is DENIED. Even if the court were to consider this untimely motion, the motion is also denied on the merits. First, Plaintiffs not only seek reconsideration/relief from the August 30, 2023, sanction order, but also from the June 23, 2023, order. Plaintiffs frame this motion as only seek...

Excerpt: ...hibits a landlord, with intent to terminate the tenants' occupancy, from interrupting or willfully terminating their utility service"; and that "Defendant violated this section [Civil Code section by, without coordinating with Ms. Higgins of her availability or obligation to care for her children, terminating water, electricity, and gas services to the leased premises." (See Complaint, "1 13(e), 33, 34, and 35.) For purposes of this demurrer, all...

Excerpt: ...enders the Complaint fatally uncertain. While the caption lists claims such as fraud, wrongful foreclosure, slander of title and unjust enrichment, these claims are not restated or identified within the body of the complaint. Consequently, the complaint fails to comply with California Rules of Court rule 2.112, which requires "[e]ach separately stated cause of action...state: (1) Its number (e.g., 'first cause of action'); (2) Its nature (e.g., '...

Excerpt: ...omplaint is subject to a general demurrer, "where it contains general allegations of a breach of contract and inconsistent allegations of facts that do not constitute a breach." (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group ) at '16:246.1, emphasis in original, citing Melican v. Regents of university of California (2007) 151 Cal.App.4th 168, 174.) Thus, inconsistent factual allegations may be challenged by a general dem...

Excerpt: ...l (2019) 33 CA5th 431, 456; People v. Clausen (1967) 248 CA2d 770, 785-786 "[Sluch granting of leave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained." ; see Harris v. Wachovia Mortg., FSB (2010) 185 CA4th 1018, 1023—plaintff may not amend the complaint to add a new cause of action without having obtained permission to do sol. Even cons...

Excerpt: ...omplaint (ROA #2), 15-17.1 Plaintiff alleges that she sought help from Knott's Berry Farm employees to prevent or avoid the attack but they refused to intervene or provide security assistance. [ld., "1 32, 33, 40, 41, 48.] A demurrer can be used only to challenge defects that appear within the "four corners" of the pleading — which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice....

Excerpt: ...that a defendant is liable for physical abuse or neglect, as they are defined in the Act, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. (Welf. & nst. Code S 15657.) To prove "neglect" within the meaning of the Act, a plaintiff must allege facts establishing that defendant: "(1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, ...

Excerpt: ...ng agents, employees, or agents who are most qualified to testify on its behalf as to the matters set forth in a notce of deposition, (2) produce the persons so designated for a designated for a deposition, and (3) produce the documents requested in Plaintiff's Notice of Deposition. Plaintiff's motion to compel further responses to form interrogatories was withdrawn. (ROA No. 232.) The motion is taken off calendar. MOTION TO COMPEL FURTHER RESPON...

Excerpt: ... CRC, Rule 3.1300(c). Furthermore, the opposition is 20 pages long with no table of contents or authorities. (See CRC, Rule 3.1113(d) ("no opening or responding memorandum may exceed 10 pages.") and (h) ("memorandum that exceeds 10 pages must include a table of contents and a table of authorities.").) CRC, Rule 3.1113(e) provides that a party may apply ex parte to file a memorandum that is longer than the proscribed limits. Plaintiff here did not...

Excerpt: ...ments produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond." (Code Civ. Proc., S 2031.280, subd. (a).) Plaintiff responded to the requests at issue with: "After diligent search and reasonable inquiry in an effort to comply with this request, Responding Party identifies and directs Propounding Party to the entire personnel file of Respondi...

Excerpt: .... (Leader v. Health Industries of Arm Inc. (2001) 89 Cal. App. 4th 603, 615.) A court may grant discretionary relief upon the moving party's showing of mistake, inadvertence, surprise or excusable neglect. (ld. at 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (ld. at 616.) Courts have limited the application of the mandatory provision to those dismissals proc...

Excerpt: ...on is one that explicitly directs the courts attention to a previous order and seeks to "modify, amend, or revoke" that order. Merely asking the court to grant relief that is inconsistent with a prior order, whether by the same or a different judge, is not a "motion for reconsideration. ' (Sorenson v. Superior Court (2013) 219 Cal. App. 4th 409, 421 n.13.) A motion for reconsideration is commonly thought to have two stages. The court must decide ...

Excerpt: ...an be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 cal.3d 311, 318; Donabedian v. Mercury Ins. co. (2004) 116 cal.App.4th 958, 994 (citing text).l No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal .App.3d 868, 881 —errorfor court to conside...

Excerpt: ...side the pleading which are judicially noticeable under Evidence Code SS 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On demurrer, a complaint must be li...

Excerpt: ...ments is made at this time. Motion to Compel Thomas Deposition Code Civ. Proc. S 2025.450(a) provides that when a party deponent is served with a deposition notice and, without having served a valid objection under Code Civ. Proc. S 2025.410, fails to appear for deposition the party giving notice may move for an order compelling the deponent's attendance and testimony at deposition. The moton must be accompanied by a declaration under Code Civ. P...

Excerpt: ...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).) "The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this c...

Excerpt: ...rrer Plaintiff did not oppose the demurrer. Failure to oppose the demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Hotel Company's demurrer is sustained with 15 days leave to amend. Motion to Strike The court notes Hotel Company filed the motion to strike twice, the first filing on 5/31/2023 (ROA No. 30) and the second filing on 9/7/2023 (ROA No. 39). The two motons appear ...

Excerpt: ...t does. Three, does the FAA apply? Yes. Four, is the agreement unconscionable, either procedurally or substantively? No. And five, a variant of the question concerning unconscionability, does the agreement provide for a neutral arbitrator and adequate discovery? Yes. Sufficiency of evidence concerning agreement "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a pa...

Excerpt: ...ty is required to provide discovery is a deposition subpoena." (ld„ subd. (b).) Production of documents by a nonparty deponent requires the service on the deponent of a deposition subpoena. (S 2025.280, subd. (b).) If the deponent is a natural person, service of a deposition subpoena is made by personal delivery of a copy of to the deponent. (CCP S 2020.220, subd. (b)(l).) If the deponent is an organization, service is made by personal delivery...

Excerpt: ...a Rules of Court, Rule 2.112. Plaintiff did not file an Opposition. A special demurrer for uncertainty is "disfavored." (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) Nevertheless, a demurrer for uncertainty may be sustained "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." (We...

Excerpt: ...ty is certifying that, to the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances that all of the followng conditions are met: (1) it is not being presented primarily for an improper purpose; (2) the claims, defenses, or other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment o...

Excerpt: ...allege a breach because the Assignment Agreement requires Defendant "to provide either marketable or insurable title," and the FAC "does not allege that [Defendant) failed to provide insurable title, and in fact plaintiff is represented by the very insurance company who provided title insurance to Plaintiff." Defendant further contends Plaintiff did not "perform a condition precedent to receive the benefits of the alleged warranty," because the F...

Excerpt: ...ofs of service do not show that the demurrer, moton to strike, supporting papers, and replies were properly served on Plaintiff. Defendant's proof of service states the demurrer, motion to strike, and supporting papers were served by "express delivery service." It is unclear what "express delivery service" means. The description states it would be deposited in the ordinary course of business, but does not state where it is deposited (i.e. in an o...

Excerpt: ...e ends of justice and is for the convenience of witnesses. The Court may change the place of trial when the convenience of witnesses and the ends of justice would be promoted by the change. Civ. Proc. S 397, subd. (c).) The moving party has the burden of proving "'that both the convenience of witnesses and the ends of justice will be promoted thereby It is primarily a question for the trial judge whether that burden has been successfully sustaine...

Excerpt: ...te no later than a date to be determined at the hearing. Plaintiff is awarded sanctions of $81W against Defendant, to be made no later than January 2, 2024. Plaintiff's motion to deem admitted requests for admission, set one, served on Defendant, is denied. Motion to Compel Responses to Form Interrogatories If a party to whom interrogatories are directed fails to serve a timely response: (1) the party who has failed to provide a timely response w...

Excerpt: ...decided by arbitration and not in a court or by jury trial. If a dispute is arbitrated, I will give up my right to participate as a class representative or class member on any Claim I may have against you including any right to class arbitration or any consolidation of individual arbitrations. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights you and I would have in court may not be avail...

Excerpt: ...s must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code secton 1714." (Eastburn v. Regional Fire Protection Authority (2W3) 31 Cal.4th 1175, 1183.) "Since the duty of a governmental agency can only be created by statute or 'enactment,' the statute or 'enactment' claimed to establish the duty must at the very least be identified." (Sear...

Excerpt: ...s that they, the listing agent and broker, were aware of "latent water intrusion defects which were allegedly concealed and not discovered until plaintiffs began upgrading the Pro#rty and retained a mold expert"; that the allegations that COLLEEN is "the sellers' daughterin-law" and "had spent significant time at the [Property] over the years" and used the barbeque and backyard are insufficient; that the Complaint is devoid of any specific facts ...

Excerpt: ...& Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) 9.53.1a.) The Court denies Plaintiffs' request to judicially notice a California appellate case and a Federal Ninth Circuit case. It is unnecessary to seek judicial notice of published material. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45, fn. 9.) "Citation to the material is sufficient." (Ibid.) The court therefore considers the reque...

Excerpt: ...(a). To seal a record, the moving party must file a motion for such relief, along with a memorandum and a declaration containing facts sufficient to justify the sealing. CRC 2.551(b)(1).) The motion must be served on all parties and the moving party must lodge a complete copy of the document, marked "Conditionally under Seal," with a cover sheet stating the case info and that the enclosed record is subject to a pending Motion to Seal. CRC 2.551(d...

Excerpt: ...al Estate Mediation Center for Consumers (www.consumermediaton.org) or through any other mediation provider or service mutually agreed to by the Partes. The Parties also agree to mediate any disputes or claims with Broker(s), who, in writing, agree to such mediation prior to, or within a reasonable time after, the dispute or claim is presented to the Broker. Mediation fees, if any, shall be divided equally among the Parties involved. If, for any ...

Excerpt: ...e ("RFAs"), is denied. Here, it is undisputed that responses were served before Plaintiff filed her motions. Moreover, it is undisputed that these responses consisted primarily of objections. [Kingsley Decls. (ROA ##30 (Sl), 22 (RFP), 26 (RFA)), 8 and Exs. G and H.] These responses were not verified. [ld.] Objections do not need to be verified. Code Civ. Proc. "2030.250, 2031.250, 2033.240; Food 4 Less supermarkets, Inc. v. superior court (1995) ...

Excerpt: ...n the grounds that: (1) it would result in a duplication of evidence and undue consumption of time; (2) he is required to present his injuries for a jury to determine whether Defendants were grossly negligent; and (3) that "sympathy" from the jury cannot be a factor supporting bifurcation because it is already addressed by CACI 5WO. The court finds that the ends of justice and the economy and effciency of handling the litigation warrant bifurcati...

Excerpt: ... (1) verified, written responses without objections to loanDepot Holdings, Inc.'s Requests for Admissions Nos. 6—8; (2) written responses without objections to Defendants' Form Interrogatories Nos. 210.5, 213.1, 213.2, and 217.1; and (3) supplemental written responses without objection, except for attorney-client privileged documents and work product, conditioned upon Plaintiff providing a privilege log, to Defendants' Requests for Production o...

Excerpt: ...-6:3; Opposition, 4:2-3:11.) Because Plaintiff's complete third cause of achon alleges disability discrimination, this fifth cause of action will be considered one for race discrimination. Generally, to establish a prima facie case of discrimination, a plaintiff must show "(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse empl...

Excerpt: ....050, 1013.) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal. 4th 245, 255). On April 24, 2023, Plaintiff served responses to Form Interrogatories, Set One. (Gordon Decl., 8-9, Ex. F.) After meeting and conferring, on June 13, 2023, Plaintiff served Further Responses by electronic mail only...

Excerpt: ...position. "The general rule of motion practice...is that new evidence is not permitted with reply papers... '[Tlhe inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case' and if permitted, the other party should be given the opportunity to (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Reply evidence should not address substantive issues in the first instance but only fill gaps in the e...

Excerpt: ...nonetheless admissible evidence as they are authenticated by the Declaration of Sheila Mojtehedi. In the absence of objection, defendants the Estate of Tarek R. Greiss, Tahamtan Nematbakhsh, and Joseph Milligan's motion for joinder in Defendant Elite Care and South Coast's opposition will be granted. The court declines Defendants' invitation to set an OSC re sanctions. Procedure for Correcting or Confirming an Arbitration Award A petition to corr...

Excerpt: ...surance Companies"). Alternatively, Defendants move for a protective order against disclosure of Insurance Clients who have no connection or associaton with the Plaintiffs. The court grants Defendants' motion in part, as set forth below. Plaintiffs' claims boil down to allegations that Defendants misappropriated their customer lists and essentially stole their clients. Plaintiffs served on the above eight Insurance Companies, each containing 48 d...

Excerpt: ...ceeding is pending shall, upon motion of a party to such achon or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies." (Code Civ. Proc., S 1281.4.) The court shares the assessment of the Court of Appeal in Leenay v. Superior Court (2022) 81 Cal.App.5th 553. Specifically, that section 1281.4 is "part of the California Arbitration Act" (th...

Excerpt: ...ions. A. Qui Tam Plaintiffs In actions brought under the Act, the State, the subdivision, or the qui tam plaintiff is required to prcwe all essential elements of the cause of action, including damages, by a preponderance of the evidence. Gov. Code, S 12654, subd. (c). The Court notes that Plaintiff cites no case to support his contention that his discovery obligations are altered because of his status as a qui tam plaintiff. B. Prtxluction of Doc...

Excerpt: ...tce Guide: Civil Procedure Before Trial (The Rutter Group 2020) '1 9.53.1a.) Plaintiffs' evidentiary objections are sustained as to nos. 5 and 6; they are otherwise overruled. Defendant's evidentiary objections are overruled as to nos. 2, 11, and 8; they are otherwise sustained. Basic Rules for Summary Judgment "A party may move for summary judgment in an acton or if it is contended that the action has no merit or that there is no defense to the ...

Excerpt: ...oceedings. (Cal. Rules of Ct., rule 5.2(c).) By the application, Plaintiff seeks writ of possession of "TUMBLES, a dog, approximately 6 years old, male Cockapoo," during the pendency of this action. (ROA 46.) California's claim and delivery law is found under CCP secton 511.010 et seq. Although it is "based upon the common law writ of replevin," claim and delivery is a "strictly statutory remedy." (Cal. Prac. Guide Enf. J. & Debt at 4:560; see al...

Excerpt: ...elevant, 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. S 436. "Irrelevant" matters include: allegations 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 allegati...

Excerpt: ...demurrer. (See Citizens for Parental Rights v. San Mateo County Bd. of Education (1975) 51 Cal.App.3d 1, 38), The Court declines to take the motion offcalendar because Plaintiff has opposed the motion on the merits, (as a demurrer), and has not shown he was prejudiced by the erroneous labeling. (Carlton v. Quint 77 Cal.App.4th 690, 697.) he Court further notes that it has not considered any of the "supplemental" that were untmely filed without le...

Excerpt: ...very lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2W9) 174 Cal. App. 4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctons. (See Ctxle Civ. SS 2030.290(c) (interrogatories), 2031.3Cqc) (requests for production); see also The Rutter Group, Civil Prmædure before Trial 8:852.) The moving party need only sh...

Excerpt: ...ation order. [CRC 3.1113(d), 3.754(c)(2)] A motion to compel arbitration is neither of these. Yet, Plaintiff's Memorandum of Points and Authorities is 19 pages thereby exceeding the allotted limit of 15 pages, without leave of court. A memorandum exceeding the permissible page limits "must be filed and considered in the same manner as a late-filed paper"; i.e„ the court in its discretion may refuse to consider it in ruling on the moton. [CRC 3....

Excerpt: ...ion 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., S subd. (a).) The moton must also be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. (Code C...