Excerpt: ....” (Code Civ. Proc., § 435.) “The court may, upon a motion made pursuant to Section 435, or at any time i n its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.) Punitive Damages “In an a...

Excerpt: ...of entity deponents who are most qualified to testify on its behalf].) If the party being deposed objects to the deposition notice, it must object to same at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subds. (a) & (b).) “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party,…, without having served a...

Excerpt: ...er a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” These sanctions are intended to compensate and to deter improper conduct and should be imposed for only the “most egregious conduct” and in the “clearest of cases.” (Luke v. Baldwin -Unit...

Excerpt: ...en the court determines entitlement to the fees, the amount o f the fees, or both, whether the court makes that determination because the statute or contract refers to ‘reasonable' fees, because it requires a determination of the prevailing party, or for other reasons.” (Ibid.) 14 A notice of motion to claim attorney's fees for services up to and including rendition of the trial court judgment, including attorney fees on an appeal before rend...

Excerpt: ...o have been rea sonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Cal. Civ. Code 1794(d); see also Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103 –104.) Accordingly, the calculation of attorneys' fees under the Song - Beverly Act is based on the lodestar method, which multiplies the number of hours reasonably expended by a reasonable hourly rate. (Graciano v. Robinson Ford ...

Excerpt: ...ropounding par ty may move for an order that the genuineness of any documents, and the truth of any matters specified in the requests, be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b); Inzunza v. Naranjo (2023) 94 Cal.App.5th 736, 740, fn. 5.) The order deeming the requests for admission admitted shall be made unless the Court finds the party to whom the requests were directed has served, before the hearing on the motion, a proposed r...

Excerpt: ... than the court designated as the proper court for the trial thereof…the action may, notwithstanding, be tried in the court where commenced, unless the defendant…within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court…” “Upon hearing of the motion the court shall, if it appears that the action or proceeding was not comm...

Excerpt: ... and the remainder of Plaintiff's objections are OVERRULED. Defendant's evidentiary objections numbers 29, 30, 32, 34, 52, 57, and 58 (Evid. Code § 1200) are SUSTAINED and the remainder of Defendant's objections are OVERRULED. Defendant's unopposed request for judicial notice is GRANTED. (Evid. Code § 452(c), (d), and (h); see also People v. Gram (2012) 202 Cal.App.4th 1125, 1135 (taking judicial notice of a memorandum of understanding between ...

Excerpt: ...idence or ot her extrinsic matters]). Statute of Limitations First, the court does not find that the fraudulent concealment cause of action is time -barred on the face of the complaint. (See Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 [“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [citation]”). The statute of limitations f...

Excerpt: ...ee of the County and Le onel Gonzalez. It is not clear from the record that Cross -Defendants Adrian Fonseca and/or Leonel Gonzalez have been served with the cross - complaint. The Cross -Defendants have not appeared in this action. The demurrer is filed on behalf of the County of Orange, in its separate capacity, and not in any capacity on behalf of the cross - defendants. It is unclear what the County's standing is to demur to the cross -compla...

Excerpt: ...tten or oral . (Code Civ. Proc., § 430.20; Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 880.) A general demurrer to an answer admits all facts well pleaded in the answer, including denials. (Warren v. Harootunian (1961) 189 Cal.App.2d 546, 548.) The answer must aver facts “as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.” (FPI Develo...

Excerpt: ...l.3d 311, 318). A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404 -05). Professional Negligence The elements of a claim for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other 13 members of hi...

Excerpt: ...the motion. (See Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 [“It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion.”]). A compulsory cross -complaint is a cross -complaint that is asserted against the plaintiff and related to the subject matter of the complaint. (Code Civ. Proc., § 4...

Excerpt: ... Cal.App.5th 860, 892.) Relevant here, d eposition costs, witness fees, court reporter fees, and models, enlargements, and photocopies of exhibits, are recoverable as costs. (Code Civ. Proc., § 1033.5, subd. (a); see Rojas, supra, 93 Cal.App.5th 860, 892 [confirming section 1033.5 of the Code of Civil Procedure “ ‘sets forth the items that are and are not allowable as the costs recoverable by a prevailing party .... “as a matter of right�...

Excerpt: ...nos. 6, 9, and 12. Defendant's motion to compel further responses to its Request for Production is GRANTED. Plaintiff David Donovan is ORDERED to serve verified further responses within 30 days of Defendant providing notice of the Court's order. Plaintiff is also ordered to pay Defendant a total of $1,860.00 in sanctions. Plaintiff's requests for sanctions are DENIED. Standard for Motions to Compel Under the Civil Discovery Act, “any party may ...

Excerpt: ...ant part: Whe n an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modi...

Excerpt: ...ULED as to t he fifth cause of action for negligence. The motion to strike the punitive damages allegations is GRANTED. Defendants demur to the third, fourth, and fifth causes of action for uncertainty. A demurrer for uncertainty will be sustained where the complaint is so poorly pled that a defendant 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 ...

Excerpt: ... (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 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 prec...

Excerpt: ...1985.3, subd. (g).) “Personal records” include “any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any ‘witness' which is a physician, …, hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory ….” (Code Civ. Proc., § 1985.3, subd. (a)(1).) “If a subpoena requires … the production of books, documents, electr...

Excerpt: ... feerelated is sues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. ‘If ... the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what ...

Excerpt: ... alleges Def endants breached the parties' contract by accepting funding from Plaintiff to purchase or activate Automotive Products, failing to ever purchase or activate said products, and failing to issue refunds to Plaintiff for those products that had been canceled pursuant to the terms of the contract. (SAC ¶¶ 37 -38.) “To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performanc...

Excerpt: ...proceeding. ( Code Civ. Proc., § 1032(b).) Here, it is undisputed that Defendants are prevailing parties. “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they are not reasonable or necessary.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) On a motion to strike or tax costs, if the items on their face appear to be proper charges, the verified memorandum of...

Excerpt: ...or excusable ne glect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).) The court has wide discretion to grant relief under the statute authorizing r...

Excerpt: ...cal Group (f or medical and billing records [3 total]), 2. Vikas Rao, M.D. (for medical records), 3. Newport Beach Neurology Center (for medical records), 4. Memorial Care Saddleback 10 Medical Center (for medical records [3 total]), 5. Loma Linda University Medical Center (for medical and employment records [4 total]), 6. Loma Linda University Healthcare (for medical records [2 total]), 7. U.S. Drug Test Centers (for medical records), 8. Newport...

Excerpt: ...traightforward response, i t must so state. (Code Civ. Proc. §2030.220). Upon receipt of the discovery responses, the propounding party may move for an order compelling further responses if it deems the responses to be evasive, inadequate or incomplete, or the objections to be without merit or too general. (Code Civ. Proc. 2030.300). A motion to compel further responses must be accompanied by a meet and confer declaration showing “a reasonable...