Excerpt: ... by the insp ection demand. 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) specific facts justif ying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). Glenfed Develop. Corp. v. Superior Court (National Union Fire In...

Excerpt: ...urety Complai nt is a motor vehicle surety company. (Cross- Complaint (“X-C o m p .” ) , ¶¶ 1 & 5.) Old Republic issued a motion vehicle surety bond to CrossDefendant Panda Motors, Inc., under Chapter 4, Division 5 of the Vehicle Code (X -Comp., ¶ 5.) Panda Motors is a motor ve hicle dealer, which obtained a motor vehicle bond from Old Republic. (RJN, ¶ 1.) A number of persons have made claims or will make claims to Old Republic on the bo...

Excerpt: ...otice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; Donabedian 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 sufficient 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...

Excerpt: ...ness of the defect, the foreseeability of danger to Plaintiff, and the trivialness of the defect. Defendant's evidentiary objections are overruled. Basic Rules for Summary Judgment/Adjudication Under Code Civ. Proc. § 437, a party may move for summary adjudicatio n as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the c...

Excerpt: ...the sixth ca use of action, the court finds that Plaintiff has alleged a special relationship that supports a cause of action for constructive trust. Further, that cause of action is not barred by the statute of limitations as Code Civ. Proc. §340.1 applies rather than Code Civ. Proc. § 338. Accordingly, the demurrer to that cause of action is overruled. On the seventh cause of action for breach of fiduciary duty, the court finds that Plaint...

Excerpt: ...they are not mat erial to the disposition of the motion. Additionally, the Court declines to issue an advisory ruling on the issue of waiver of attorney -client privilege, because an assertion of the privilege is not before the court. Merits Taylor Graphics moves, under C CP section 425.16, for an order striking the following allegations in Espinosa's Cross -Complaint: “[Taylor Graphics breached the Lease and caused a nuisance for] failing and ...

Excerpt: ... not moot. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants(2007) 148 Cal. App. 4th 390, 405- 407. Code Civ. Proc. section 2031.310 provides, in relevant part, that “any party may obtain discovery” by “inspecting, copying, testing, or sampling d ocuments, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” Code Civ. P...

Excerpt: ... inten t to perform. “ ‘ “ Promissory fraud” is a subspecies of fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud .' ” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973−974, internal citations omitted.) “Under Civil Code section 1709, one is liab...

Excerpt: ..., (5) bre ach of implied in fact contract, (6) work, labor, and services rendered, (7) recovery of stolen property received pursuant to Penal Code §496, (8) intentional interference with contractual relations, (9) intentional interference with prospective economic relations, and (10) negligent interference with prospective economic relations. 1. Actual Fraud The elements of fraud are: "(a) [a] misrepresentation (false representation, conceal...

Excerpt: ...limited to t he “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 inartfu lly 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 c...

Excerpt: ...Cal.App.5th 356, 384.) Plaintiffs are granted limited leave to amend, however, to plead this remedy within the underlying cause of action they believe supports this relief. The demurrer to the second cause of action for conversion and the third cause of action for tr espass to chattel, is sustained, on the basis Plaintiffs have not alleged interference with Plaintiff's possession of the identified property. (PCO, Inc. v. Christensen, Miller, Fin...

Excerpt: ...nt bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 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. . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A...

Excerpt: ...ff requests be stricken. (Id., 3:20 -22.) The memorandum also seeks an order striking the separate statement and references in Defendants' brief to the facts contained in the separate statement. (Id., 8:14 -16.) The Court considers this a motion to strike the entire separate statement only. (Cal. Rules of Ct., Rule 3.1322(a).) “The paragraphs in a separate statement should be limited to facts that address the elements of a cause of action or an...

Excerpt: ...he Estate o f Jeffrey Russell, Case No. 213400266 (the “Utah Probate Case”). Plaintiffs contend that the issues in the Utah Probate Case are substantively identical to these proceedings as it involves many of the same claims at issue and the same parties here. The C ourt disagrees. Plaintiffs' claims in the Utah action are as follows: (1) determining invalidity of purported trust; or in the alternative (1) enforcing decedent's contract to lea...

Excerpt: ... an ov erlong brief due to Defendant's improperly single -spacing and use of less than 12 point font for numerous footnotes. The court is inclined to continue the hearing, and trial as necessary, to order Defendant to file a compliant memorandum and permit Plaintiff to respond pursuant to Code Civ. Proc. §437c. The court will hear from counsel on this point. Issues with Defendants' Moving Papers The Memorandum For its memorandum in support of i...

Excerpt: ... treat a motion by the nature of the relief sought rather than the title given. (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.) In addition, when the Court continued the trial date on 1/17/24, it stated in its order, “[t]he Court does NOT extend any discovery or motion deadlines other than deadlines associated with the motion to compel independent medical examination.” (ROA 400.) Based on this, Plaintiff's argume...

Excerpt: ... (which includes exhibits attached and incorporated therein) or from matters outside t he 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 precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (L...

Excerpt: ...f action. Plaintiff sues Defendants for (1) actual fraud, (2) fraud in the inducement, (3) breach of contract, (4) breach of the implied covenant of good faith and fair dealing, (5) breach of implied in fact contract, (6) work, labor, and services rendered, (7) recovery of stolen property received pursuant to Penal Code § 496, (8) intentional interference with contractual relations, (9) intentional interference with prospective economic relation...

Excerpt: ...ntervention” in support of defendant is equivalent to answer, and demur rer to it is treated as demurrer to answer].) There are only three grounds for demurrer to an answer under CCP § 430.20: (1) Failure to state facts sufficient to constitute a defense (2) Uncertainty; (3) Failure to state whether contract alleged in the an swer is written or oral. The Rutter Guide says that a demurrer can be an effective tool for eliminating “boilerplate�...

Excerpt: ...r punitive and treble damages. First cause of action f or negligence The elements of a negligence cause of action are: (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “Generally, one has a duty to use due care to avoid injuring others.” (Terry v. Garcia (2003) 109 Cal.App.4th 245, 249.) “Ev...

Excerpt: ...tters are reasonably disputable. [Citati on.]” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) However, a court “can take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. [Citations.]” (Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1014.) “The trial court shall take judicial notice of any matter specified in Section 452 if ...

Excerpt: ...r, or process of the court” is contempt of the authority of the court. (Code Civ. Proc., § 1209, subd. (a)(5).) “The substantive issues involved in a contempt proceeding are (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience.” (Conn v. Superior C ourt (1987) 196 Cal.App.3d 774, 784.) “A contempt proceeding [for indirect contempt] is commenced by the filing of an aff...

Excerpt: ...hibits attached and incorporated therein) or fr om 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 u pon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (201...

Excerpt: ...on this motion; or, in the alternative, a n order appointing a discovery referee to oversee and monitor Defendant's behavior at all depositions and at Defendant's expense.” (Not. of Mot. at p. 2.) Under CCP section 2025.420, any party “may promptly move for a protective order” before, during or af ter a deposition. The motion must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for g...

Excerpt: ...terms and conditions as the court shall declare inclu ding 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 unreasonable violations of the moving party's right of privacy. Code Civ. Proc. §1 987.1. Further, in connection with a subpoena for consumer records: Any consumer whose personal records are sought by a subpoena duces tecum...

Excerpt: ...power inherent in every court ‘[t]o control in furtherance of justice, the conduct of its ministeria l officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.' ” People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (quoting Code Ci v. Proc., § 128, subd. (a)(5)). “[D]isqualification motions involve a conflict betw...

Excerpt: ...verruled as to no. 1 and sustained as to nos. 2 and 3. The court did not consider Cox's further separate statement on reply. Code Civ. Proc. §437c(b); Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243, 252.. Motion #2 Cross - Defendant Park West Landscape Maintenance Inc's (“Park West”) motion for s ummary judgment on Defendant and CrossComplainant Cox's cross -complaint against Park West is denied. Basic Rules for Summary Judgment...

Excerpt: ...ns that Defendant contends are privileged from Plaintiff's SAC. DEMURRER A s an initial matter, the Court notes Defendant is asking the Court to sustain a demurrer to the fourth cause of action for which notice was not properly provided. Defendant did not include the demurrer to the fourth cause of action in Defendant's notice o f demurrer and demurrer. Plaintiff does not address the demurrer to the fourth cause of action in Plaintiff's oppositio...

Excerpt: ...e, untrue or misleading advertising.' [Cit ation.]” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370 (Zhang).) “Because the UCL is written in the disjunctive… An act can be alleged to violate any or all of the three prongs of the UCL — unlawful, unfair, or fraudulent. [Citation.]” (Aton center, Inc. v. United Healthcare Inc. Co. (2023) 93 Cal.App.5th 1214, 1248, internal quotation marks omitted.) “The UCL's unlawful prong borrows v...

Excerpt: ...st cause of action. Defendant's request for judicial notice is denied as unnecessary. See Cal. Prac. Guide, Civil Procedure before Tr ial §9:53.1a (“It is not necessary to ask the court to take judicial notice of materials previously filed in the case; all that is necessary is to call the court's attention to such papers. Such papers, however, are not necessarily admissible evidence. Exc ept for admissions in pleadings, matters stated in ...

Excerpt: ... as required by the Rules. (Cal. R. Ct. Rule 3.1354, subd. (b); see Hodjat v . State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8.) The Court also did not consider any fact purportedly in dispute, where the response did not provide “the nature of the dispute and describe the evidence that supports the position that t he fact is controverted.” (Cal. R. Ct. Rules 3.1350, subd. (f)(2); Bacoka v. Best Buy Stores, L.P. (2021) 71 Cal...

Excerpt: .... A court may strike out any irrelevant, 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: allegat ions not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment reque...

Excerpt: ...or the business records exception. She has personal knowledge as the custodia m of records and Chief Credit Officer of National Funding. (Otero Decl., ¶2.) Legal Standard Where plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (CCP § 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287, (disapproved on other ...

Excerpt: ...etcher Jones' counsel's email address. (Code Civ. Proc., § 1013 b, subd. (b)(1) and (3).) Fletcher Jones was able to serve and file a timely reply on the merits and did not object to Plaintiff's proof of service. The Court exercises its discretion and considers the opposition. The Court also notes Fletcher Jones' proofs of service for Fletcher Jones' replies did not include the server's email address. (Code Civ. Proc., § 1013b, subd. (b)(1).) ...

Excerpt: ...on, set one (“RFPs”), nos. 11-19, 20- 23, and 39-48, is granted in part and denied in part. The court sustains Defendants' objection to “outside” in nos. 13 and 17 as vague and ambiguous. The motion to compel further responses is denied to this extent. Otherwise, the motion is granted with the limitation that where information about prior incidents is requested, limit response to incidents that are similar insofar as they involving unauth...

Excerpt: ...rved on Plainti
¯s counsel at the wrong email address. Plainti
¯ contends Defendant still has not served the moving papers and served and Þled an opposition on the merits. (Mahnke Decl., ¶ 6.) No proof of service has been Þled to show the moving papers were properly served. The Court exercises its discretion to consider the moving papers. The Court notes Plainti
¯s proof of service states the opposition was served on 9/19/2023, the reques...

Excerpt: ...cessor-in-interest to The Estate of Victoria McKemy, is granted with 15 days leave to amend. The allegations found on pages 8, lines 3-11, Para. 35, page 8, lines 12-17, Para. 36, as well as the prayer for punitive and exemplary damages on Page 11, Para. 8, Line 14 of the complaint are ordered stricken. A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn...

Excerpt: ... [CCP S 425.11(b), (c); see Hamm v. Elkin (1987) 195 Cal.App.3d 1343, 1345-1346—service after default entry but before prove- up not sufficient; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 692 (conflict in evidence as to service of statement of damages).] The court has power to set aside a default or judgment that is void as a matter of law. [CCP S 473(d)l This includes the case where default is improperly entered—e.g., without servi...

Excerpt: ... pend-ng resolution of the parties' claims. The Court will hear from counsel on this issue. A receiver's final report and account and right to compensation are governed by California Rules of Court, rule 3.1184, which provides: "A receiver must present by noticed motion or stipulation of all parties: (1) a final account and report; (2) a request for the discharge; and (3) a request for exoneration of the receiver's surety." (Cal. R. Ct., rule 3.1...

Excerpt: ...not relevant. This Court is not bound by the District Court's or other Superior Court's decisions. "Although a court may judicially notce a variety of matters (Evid.Code, S 450 et seq.), only relevant material may be noticed." (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 overruled on other grounds, in In re Tobacco Cases II (2007) 41 Cal.4th 1257; see also Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 ("judicial notice, since ...