Excerpt: ...8/12/24. (See ROA 301). As an initial matter, a motion to strike cannot be used to challenge an entire cause of action for failure to state a claim. Motions to strike can be used to reach defects in or objections to pleadings that are not challengeable by demurrer. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 7:156.) A “motion to strike” for failure to state a cause of action (ground for general ...

Excerpt: ... summarily adjudicate claims or defenses as to which no triable issue was raised unless requested in the notice of motion. (Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial, §10:88, citing Homestead Sav. v. Sup.Ct. (Dividend Develop. Corp.) (1986) 179 Cal.App.3d 494, 498 (citing text).) Further, even if the notice of motion could be deemed to set forth a request for summary adjudication in the alternative, the motion is procedurally defec...

Excerpt: ...he pleading t hat are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) In testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged,...

Excerpt: ...subdivision (q), suc h that Plaintiff's claims would not expire until June 27, 2023. Emergency Rule 9 provides that “[n]otwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until Oct ober 1, 2020.” Thus, according to Plaintiff, her Complaint filed on June 22, 2023, is timely. Plaintiff's argument is well -taken. Plaintiff relies on Roe v. Doe (...

Excerpt: ...ch (“City”) is an in dispensable party. Defendants' unopposed requests for the Court to take judicial notice of a notice of violation (warning only) issued by the City of Newport Beach Harbor Department and a notice that the warning was rescinded are granted. (Evid. Code, § 452, subd. (c).) First cause of action for declaratory relief A defendant may demur to the complaint on the ground that there is a defect or misjoinder of parties. (Code ...

Excerpt: ...nty She riff's Department shall file an answer or other pleading in response to the First Amended Complaint within 10 days of the expiration of the period of time to amend. (See Cal. Rules of Ct. rule 3.1320(j).) Defendants Orange County and Orange County Sheriff 's Department demur to the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th, and 9th Causes of Action of the First Amended Complaint (FAC) filed by Plaintiff Albert Hughes III. Standard for Demurrer ...

Excerpt: ...t issue s must be admitted or denied, or what counts or claims are directed against him or her. (See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) The allegations in the FAC are not so confusing that Defendants cannot determine what to respond to. (Id., see also Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.) General demurrer A demurrer presents an issue of law regarding the sufficiency of the allegat...

Excerpt: ...laim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.] Premises liability ‘“is grounded in the possession of the premises and the attendant right to control and manage the pre mises” '…” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “However, ‘[a] defendant cannot be held liable for the defective or dangerous condition of property w...

Excerpt: ...RANTED. Timeliness Hunt opposes the demurrer on the grounds that it was not timely filed. Hunt served a copy of the summons and complaint on AVCA by substitute service on 06/06/2023, with a copy mailed on 06/12/2023. Accordingly, service was deemed completed on 06/22/2023. Cod e of Civil Procedure, § 415.20, subd. (a). The time for AVCA to demur expired 30 -days after service on 06/22/2023 which was a Saturday, therefore, AVCA had until 06/24/2...

Excerpt: ...to protect any party “fr om unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) At issue here are two depositions which Hillstone seeks to prevent Plaintiff, Georgina Puglisi (“Plaintiff”) from conducting. The first is the deposition of Hillstone's custodian of records with a request to produce at deposition videos of former defendant Mario Jaramillo (“Jaramillo”) enga...

Excerpt: ...Interrogat ories (Set One), Request for Admissions (Set One), and Request for Production of Documents (Set One.) Standard for Protective Order Civil Procedure Code section 2030.090 provides that: (b) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may in...

Excerpt: ...er. While the petition was pending, the plaintiff also made a request for documents relating to the petition. The FAC asserts claims based on the failure to allow inspection of the documents requested in October and November 2021 as well as the request to review the recall petition on 8/17/22. (FAC at ¶¶15, 17.) HOA's Request for Judicial Notice The HOA's request for judicial notice is GRANTED as to Item Nos. 13. (Evid. Code §452(d)) The reque...

Excerpt: ...�), JOSHUA SCHUETTE (“Schu ette”), and KARA GRANT LAW (“KGL”), move the Court for an order pursuant to California Code of Civil Procedure §§ 473, et seq., to set aside and vacate the October 26, 2023 Defaults taken against Defendants Grant, Schuette, and KATHLEEN GERMANE (“Germane”) and the September 19, 2023 Default taken against KGL. Motions are GRANTED. Sanctions against Attorney Jacobson in the amount of $500 to be paid within t...

Excerpt: ...en of showing that a cause of a ction has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or crossdefendant has met that burden, the burden shifts to the plaintiff or cross -complainant to show that a triable issue of one or more material facts exists as to the cause of action or a...

Excerpt: ... (Code Civ. Proc., § 1281.2.) The Court shall grant the petition unless the petitioner waived the right to compel arbitration, or other grounds exist for rescission of the agreement. (Ibid.) Because the obligation to arbitrate arises from contract, the court may compel arbitration only if the dispute in question is one in which the parties have agreed to arbitrate. (Weeks v. Crow (1980) 113 Cal.App.3d 350, 352.) Because arbitration is a favored ...

Excerpt: ...pondent to ar bitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for rescission of the agreement. [¶] (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of...

Excerpt: ...�� the controversy. (Code C iv. Proc., § 1281.2.) The Court shall grant the petition unless the petitioner waived the right to compel arbitration or other grounds exist for rescission of the agreement. (Id.) “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp....

Excerpt: ...4) 226 Cal. App. 4th 2 31, 240; See also, 9 U.S.C.A. § 2; Civ. Proc. Code § 1281.4.) "The petitioner bears the burden 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.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 (“Engalla”); Green Tr...

Excerpt: ...he amount of $645 hours x $195 per hour in reasonable attorney's fees and $60 in motion filing fees) within 30 days of service of the notice of ruling. Defendant Gen Cord. moves to compel further responses to Form Interrogatories – General, Set One, Number 2.8 propound ed on Plaintiff Monica Castaneda. Standard to Compel Further Responses to Interrogatories The Civil Procedure Code instructs that: (a) Each answer in a response to interrogatori...

Excerpt: ...rmation for individual independent service centers co -defendant/non -parties, but GM does have the duty to make an inquiry into any of its employees that may have information relating to the Vehicle and its repair history. (Civ. Proc. Code § 2030.220.) Merely stating “GM call center advisors with whom Plaintiff may have communicated” does not comply with the requirement to make a reasonable and god faith inquiry. Additionally, vague referen...

Excerpt: ... allowing the inspection. Thus, Plaintiff's objection on the grounds Defendant previously inspected the premises is overruled. Plaintiff's objection on the grounds the Demand seeks to inspect irrelevant portions of the premises is overruled. Discovery is permitted 11 where the information sought is itself admissible or is reasonably calculated to lead to the discovery of admissible evidence. Code of Civil Procedure, § 2017.010. Discovery is libe...

Excerpt: ...et forth spec ific facts showing good cause justifying the discovery sought by the inspection 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 justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise a...

Excerpt: ...ts. A court ac quires personal jurisdiction over a nonresident defendant through either general or specific jurisdiction. The “defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are ‘substantial . . . continuous an d systematic.'” Vons Companies, Inc. v. Seabest Foods, Inc., 14 Cal. 4th 434, 445 (1996). To determine whether specific jurisdiction exists, courts consider the relations...

Excerpt: ...ants' Special Motion to Strike Complaint (Anti -Slapp) Defendants Robert P. Mosier and Mosier & Company, Inc.'s motion to strike the entire Complaint filed by Plaintiffs, Simon Semaan, Pierrette Semaan, Mia Semaan, Simon Semaan, Jr., Melissa Semaan, a minor by and through her Guard ian Ad Litem Pierrette Semaan, and Gilberts Rizallah is GRANTED. Plaintiffs' request for Judicial Notice is GRANTED. (Evid. Code § 452, subds. (d), (h).) “Litigati...

Excerpt: ...gment].) On 11/6/23, the court served a copy of the filedstamped “Judgment dated 11/03/23” to all parties, including to defendants' counsel, triggering the 15 -day deadline for defendants to timely file a memorandum of costs. (ROA No. 484; see Cal. Rules of Court, rule 3.1700(a)(1); Code Civ. Proc., § 664.5, subd. (d); Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 61, 64, 65- 66 [�...