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Excerpt: ...by Civ. Proc. Code § § 1032 and 1033.5. Plaintiff was the prevailing party at trial against each of the defendants other than 33D. (ROA #574.) “The mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, “[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the...

Excerpt: ...s Abraham Cannon and MyMoveBid.com “to provide software development services for the MyMoveBid.com platform,” but that defendants have not paid over $135,000 for services performed. The complaint also alleges that “MyMoveBid.com is a fictitious business name for Abraham Cannon and if it is an entity, he is the alter ego of such entity.” (The court notes the written agreement attached to the complaint is executed by “Abraham Cannon.” ...

Excerpt: ...nt to C.C. P. §§ 2023.010, 2023.030, 2033.280(b). PLAINTIFF also moves for an Order compelling DEFENDANT HORIZON CONSTRUCTION & REMODELING, INC. to serve verified responses, without objection, to Plaintiff's Form Interrogatories - Employment [Set Three], within ten (10) calendar days of the hearing on this Motion. (ROA 144.) Plaintiff moves for an order that Defendant Horizon and its counsel of record Fred Hayes and Rogers, MacLeith & Stolp, L...

Excerpt: ...ond cause of action for stri ct products liability. Request for Continuance In the alternative, Valley Forge contends that the hearing should be continued under Code of Civil Procedure section 437c(h) as additional facts regarding the purchase, installation, and failure of the Culli gan System will be revealed through additional discovery including the deposition of Defendant, Morris Inc.'s PMK which has not yet been taken; and which has been rev...

Excerpt: ...t least 21 day s before the motion is filed. Section 128.7(c) reads, in pertinent part: "A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice o f motion shall be served as provided in section 1010, but shall not be filed with or presented to the court unless, within 21 days of service of the motion, or any other p...

Excerpt: ... requirements for re lief under C.C.P. § 1008(a). However, the Motion appears to be timely (see Markow Decl. at ¶ 23, in ROA 574), which the Opposition does not dispute. It is also based on “new or different facts, circumstances, or law” sufficient to support the Motion. (Id. at ¶ 24.) It also would in any event support reconsideration on the Court's own Motion, based on what has been presented. (See Le Francois v. Goel (2005) 35 Cal.4th 1...

Excerpt: ...(Id., rule 3.1800(a)(2) -(8); see Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 288 [evidence of damages is required for default judgment]; see also ROA No. 419 – Heidary Decl., in passim [one -page conclusory declaration].) There is also no affidavit of notice. (See Code Civ. Proc., § 587; Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 108, fn. 15.) Indeed, there is no proof of service of the motion as to defendan...

Excerpt: ...). Pla intiffs allege that defendants know about the bedbug infestation in their room and failed to completely eradicate it. [Complaint, ¶¶90 -91] From this, the reckless disregard of the probability of emotional injury is alleged. [Complaint, ¶94] These alleg ations are sufficient to state two of the elements. However, defendants have not alleged “severe” emotional distress. “Severe emotional distress [is] emotional distress of substant...

Excerpt: ...on, and application of the economic loss rule to the fourth, fifth, and sixth causes of action. The Court finds Defendants complied with their meet and confer obligations prior to filing the Demurrer. Statement of the Law “The party against whom a complaint or cros s-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: … (e) The pleading does...

Excerpt: ...moot as to paragraphs 56 and 86. It is denied as to paragraph 120 and granted with 15 days leave to amend as to paragraph 73. Demurrer A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleadi ng, any exhibits attached, and matters of which the court is permitted to take judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) ...

Excerpt: ...action for breach of contrac t requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach, and damage to plaintiff resulting therefrom.” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655.) “A written contract may be pleaded either b y its terms— set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference— or by its lega...

Excerpt: ...elez [RO A # 1104], are sealed. Statement of Law “Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c); In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1079.) “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2...

Excerpt: ... of two terms: (1) six months after the person's death, or (2) the limitation period that would have been applicable had the person not died.” Parsons v. Tickner (1995) 31 Cal. App. 4th 1513, 1525; Code Civ. Proc., § 377.30. The two -year statute of limitations, CCP § 335.1, applies to statutory elder abuse and negligence claims. Defendant argues the statute of limitations has run, even with the application of Emergency Rule 9(a), which s...

Excerpt: ...IED. Code of Civil Procedu re section 437c(p)(1) provides that, “[f]or the purposes of motions for summary judgment and summary adjudication: (1) A plaintiff or crosscomplainant has met his or her burden of showing that there is no defense to a cause of action if that party has prov ed each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross -complainant has met that burden, the bur...

Excerpt: ...d to the “fou r 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 dra wn 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 complai...

Excerpt: ...cts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a p leading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empi...

Excerpt: ...�the court, in its discretion, may award to the prevailing party…reasonable attorney's fees and costs…except that…a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code, § 12965(c)(6); Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.) �...

Excerpt: ...en of show ing that an essential element of the plaintiff's claim cannot be established by presenting evidence that the plaintiff “does not possess and cannot reasonably obtain, needed evidence.” (Lona v Citibank, N.A. (2011) 202 CA4th 89, 110.) Only after a defendant meets that burden, does the burden shift to the plaintiff to produce admissible evidence showing the existence of a triable issue as to a cause of action or complete defense...

Excerpt: ... 872, 889 [or dinarily no basis for judicial notice of content of government web sites].) As to Ex. B, judicial notice is limited to the fact that the declaration and exhibits were filed, but not of the truth of their contents. (Williams v. Wraxall (1995) 33 Cal.App.4 th 120, 130, FN 7.) Timeliness: defamatory statements. “Case law requires that statements alleged to constitute libel ‘must be The SAC now adequately alleges delayed discovery ...

Excerpt: ...posing the petit ion bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary eviden ce, as well as oral testimony received at the court's discretion, to reach a final determination.'” (Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 683.)...

Excerpt: ...not apply to “ any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship”], 2025.480 [authorizing motion to compel answers at deposition].) Plaintiff's evidentiary obje ction no. 3 to the Thomas Decl. is SUSTAINED [relevance]. Plaintiff's remaining evidentiary objections are OVERRULED. The motion is GRANTED as to a second session of plaintiff...

Excerpt: ... after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the depositio...

Excerpt: ... her mental examination on 11/17/23 per the parties' agreement. But, this is not supported by the evidence included with the motion. In particular, the Court notes that the last email sent between the parties regarding the proposed 11/17/23 examination date was an email on 11/8/23 from Defense counsel to Plaintiff's counsel stating: “Dr. Lavid is available on Nov. 17th for the IME. Please confirm that date so we can get it on calendar.” (Fel...

Excerpt: ...D. (See Code Civ. Proc. § 2031.300.) As an initial point, plaintiff's points and authorities incorrectly reference a motion to compel responses to interrogatories, not a response to inspection demands. As the error did not prejudice defendant's ability to prepar e a response on the merits, the court is going to treat the motion as one to compel responses to inspection demands. A motion to compel responses to discovery requires the moving party t...

Excerpt: ...reinafter refer red to as “La Palma Intercommunity Hospital”). La Palma Intercommunity Hospital further seeks reimbursement of costs of motion from Plaintiff in the amount of $2,670.00. This Motion is made pursuant to Code of Civil Procedure section 664.6, et seq. Code Civ. Proc., § 664.6 (a) If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for set...

Excerpt: ...ty se eking arbitration has the “burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its def ense.” The trial court “sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its dis...

Excerpt: ...rden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. In these summary proceedings, the trial co urt sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach...

Excerpt: ...28.7. Therefore, this motion is effectively MOOT as a First Amended Complaint has been filed. Here, the Plaintiff filed its Complaint on April 17, 2023. On November 14, 2023, Defendant served the instant motion. Sale Decl., ¶ 4, Ex. 7. Notably, the original Complaint did inclu de causes of action for fraudulent concealment and fraudulent inducement. In compliance with the safe harbor provision, on December 21, 2023, Defendant filed this Motio...

Excerpt: ...n a medical negligence claim, when a defendant moves for summary judgment and supports the motion with expert declarations that the defendant's conduct fell within the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.) Regarding causation, the plaintiff must offer an expert opinion that contains a reasoned...

Excerpt: ...an initial matter, the Court notes that Plaintiffs failed to timely file and serve their Opposition. As a result, the Court will not consider the merits of the Opposition in ruling on this Motion. A party to an arbitration agreement may seek a court order compelling the parties to arbitrate a dispute covered by the agreement. Code Civ. Proc., § 1281.2. “The trial court may resolve motions to compel arbitration in summary proceedings, in which...

Excerpt: ...onsolidate for all p urposes Superior Court Case No. 30-2020 - 01171344- CU-OE -CJC and 30- 2022-01286992- CU-JR -CJC is CONTINUED to July 29, 2024, at 1:45 PM in Department C15. Request to Vacate ODA of Labor Commissioner: A trial court “may, on motion of either party after notice to the other party, set aside any void judgment or order.” Code of Civil Procedure, § 5 473(d). “A judgment can be void for lack of personal or subject matter j...

Excerpt: ... (1994) 24 Cal. App.4th 1426, 1444.) “When a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove … the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal. App.4th 403, 413, internal quotes omitted.) However, if a proof of service complies with the applicable statutory requirements, its filing creates a rebuttable presump...

Excerpt: ...ed in court and us ed at trial or submitted as a basis for adjudication. Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are presumptively open.” McNair v. National Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 31; In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575 [strong presumption of public access to court records]; California Rules of Court, rule 2...

Excerpt: ...arges, the verifi ed memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. Ladas v. California State Auto. Ass'n. (1993) 19 Cal.App.4th 761, 774– 776; Jones v. Dumri chob (1998) 63 Cal.App.4th 1258, 1266. On the other hand, items which are properly objected to are put in issue, and the burden of proof is on the party claiming them as co...

Excerpt: ...ourt's ord er issued January 16, 2024, as alleged in Paragraph 3.b.2 of the [Proposed] OSC re: Contempt (ROA #174). At that time and on that date, the court will hold the arraignment and set a further hearing, evidentiary hearing, or trial, as the case may be. Plai ntiffs Leah Rae Knoll; PHA Professional Services, Inc. dba DC Plumbing, Heating and Air Conditioning; and SC Equipment Company, LLC are ORDERED to personally serve Defendant David L. C...

Excerpt: ...ations about the curren t status of construction. The Association has submitted a copy of the proposed FASCC with the moving papers as Exhibit A and a redlined copy of the proposed FASCC as Exhibit 5 to the Declaration of Justin Nash. The Court may, in the furtherance of justic e, and on such terms as may be proper, allow amendment of a pleading at any time before or after commencement of trial. Code of Civil Procedure §§ 473(a)(1), 576.) In ad...