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: .... (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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...(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: ...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: ...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: ...& 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: ...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...