Excerpt: ...hin the meaning of section 877.6, necessarily requires the trial court to examine and weigh a number of relevant factors, one of the most important of which is the settling party s proportionate liability." [Citation.] If "there is no substantial evidence to support a critical assumption as to the nature and extent of a settling defendant's liability, then a determination of good faith based upon such assumption is an abuse of discretion."' " (Ma...

Excerpt: ...he Complaint within 10 days of the expiration of the period to amend. (See Cal. Rules of Ct. rule 3.1320(j).) Defendant Alan Nesbit (Defendant) demurs to the 1st, 3rd, and 4th Causes of Acton of the Second Amended Complaint (SAC) filed by Plaintiffs Thomas Phillips, Fashion Island Surgery Center, LLC, and Thomas J. Phillips, M.D. (a corporation) (collectively, Plaintiffs). While Defendant purports to demur to the "Second Amended Cross-complaint,"...

Excerpt: ...asonably certain." (Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618, 1623.) With respect to claims premised upon a contract, a complaint must either: (a) set forth the terms of the contract verbatim; or (b) attach a copy of the contract and incorporate it by reference. (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307 ("If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the bo...

Excerpt: ...ty of Fresno (1987) 192 Cal.App.3d 1436, 1442 [failure to plead equitable defenses waived those defenses]. A defendant raising such new matters must allege ultimate facts sufficient to prove the defense with the same level of detail that a plaintiff is required to allege ultimate facts to support a cause of action in a complaint. FPI Development, Inc. v. Nakashima (1991) 231 cal.App.3d 367, 384; 5 Witkin, cal. Proc. 5th (2008) Pleading, S 1082, p...

Excerpt: ...11, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Defendant bases this demurrer on the premise that "Directors or officers of a corporation do not incur personal liability for torts of the corporation merely by reason of their offcial position, unless they participate in t...

Excerpt: ... (See Calif. Rules Court, rule 1320 (a), (c); Code Civ. Proc. S 430.60.) As defendant has failed to file a demurrer, the court construes defendant's motion as a demurrer on the grounds of uncertainty and a general demurrer. The demurrer on the grounds of uncertainty is overruled. The complaint is not so poorly drafted that Defendant cannot reasonably respond. (See Khoury v. Maly's of California Inc. (1993) 14 Cal.App.4th 612, 616.) The general de...

Excerpt: ...Superior Court (2020) 9 Cal.5th 279.) As a result, Zenith's claims may be tried to a jury only if there is a right to a jury trial for IFPA claims. under State ex rel. Rapier v. Encino Hospital Medical Center (2022) 87 Cal.App.5th 811, there is not. "The foremost consideration" for jury trial purposes "is whether the IFPA's remedies are equitable in nature." (ld., at p. 836.) Examining the language of the IFPA and the Legislature's intent in enac...

Excerpt: ...ntry of Defendant's default, which it did not do. On the merits, the court OVERRULES the general demurrer filed by Defendant LILIA LOO FONG ("Fong") to the form Complaint filed by Plaintiff ANNE RICKEY ("Plaintiff"). The Complaint contains a single cause of action for premises liability against Fong and others. The Complaint alleges that Plaintiff slipped and fell while walking on grass near the driveway next to her condo, which condo is owned by...

Excerpt: ... state these causes of action. The FAC adequately alleges Green Flags' valid contracts with the Irvine Company. (See Quelimane Co. v. Stewart Title Guaranty co. (1998) 19 cal.4th 26, 55 [elements]; see also FAC 12, 18, 20, 33-34.) Any "ambiguities can be clarified under modern discovery procedures." (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; accord Ludgate Ins. Co. v. Lockheed Martn Corp. (2(M) 82 Cal.A...

Excerpt: ...t this claim is barred by the statute of limitations. The alleged oral contract to pay a bonus or vacation pay was breached no later than when plaintiff resigned on 7/11/16. (See Church v. Jamison (2006) 143 Cal.App.4th 1568, 1576 [failure to pay vacation pay accrues on termination]; see also Compl. 15, 17, 25-29, 40; Opp. at p. 5 ["all wages were due on July 14, 2016" l.) The statute of limitations on breach of oral contract is 2 years. (See Cod...

Excerpt: ...wever, no such papers were filed. At the hearing on April 14, 2023, the Court continued the hearing and set an OSC re sanctions for counsel to show cause why sanctions should not be imposed for the failure to comply with the Court's previous Order. (ROA 211). At the continued hearing on June 23, 2023, the Court discharged the OSC upon a sufficient show-ng that the missed deadline was due to an inadvertent filing error. (ROA 221). The Court also d...

Excerpt: ...tructed the parties to include in the proposed order a determination of how the case would be resolved, i.e., by means of an order approving the settlement and entry of judgment, or by means of an order approving the settlement with a request for dismissal of the action to be filed later. The amendment to the settlement agreement (Pimentel Decl. Ex. 2 (Amendment No. 1 to Joint Stipulation of PAGA Settlement and Release)) requires both entry of ju...

Excerpt: ...lined version of any revised papers. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement, rather than with just a supplemental declaration or brief that simply asserts the issues have been resolved. Plaintiffs have not provided the court with the estimated high and low payments to be paid to the aggrieved employees under the proposed sett...

Excerpt: ...e terms of the settlement." (Code Civ. Proc. S 664.6, subd. (a).) Here, Plaintiff proffers evidence it entered into a settlement agreement with Defendants Charles R. Brewer and Cavalier Ventures, Inc., as reflected in a written Stipulation For Entry of Judgment (the "Stipulation"). (ROA 216 [Berke Decl. at 2, Exh. A1.) The Court retains jurisdiction to enforce the terms of the settlement in the Stipulation. (ROA 172.) Among other terms, the Stipu...

Excerpt: ...023, Plaintiff filed the current Motion for Final Approval of Class and Representative Action Settlement. (ROA 119). Plaintiff also filed supporting papers and declarations. (ROA 107, 109, 111, 113). This is the first hearing on this matter. TERMS OF PRELIMINARILY APPROVED SETTLEMENT: The settlement Agreement provided at preliminary approval is found attached to the Declaration of James Kawahito, ROA 65, Exhibit 1. Proposed Class Definition: "All...

Excerpt: ... to increase the lodestar and decrease the mul
Ÿplier. The table summary (Mankin Decl. ¶ 26) reßects a grand total of $179,520 for two a
©orneys, but the same paragraph states the lodestar is “approximately $191,325.” This is a delta of $11,805. Of Mr. Mankin's 129.4 hours, 35 were an
Ÿcipated. In other words, Mr. Mankin incurred approximately 94.4 hours for a total lodestar of $73,160, not $100,285. (Id. ¶¶ 26-27.) Addi
Ÿonally, the ...

Excerpt: ... Los Angeles (2015) 61 Cal.4th 1099, 1105 [elements]; see also FAC, 10-14, 22, 23 [excessive tree root growth causing dangerous condition of public property], 15, 16, 26 [dangerous condition caused by negligent or wrongful act or omission of an employee of the public entity within scope of employment], 12-14, 22-25 [tree root growth causing reasonably foreseeable risk of the kind of injury which was incurred], 13, 14, 18, 19, 27, 28 [proximately ...

Excerpt: ... Plaintiffs for (1) breach of written contract, (2) quantum meruit, and (3) breach of the implied covenant of good faith and fair dealing. (ROA 32.) ay way of the proposed pleading, CLS seeks to add new parties to its cross-complaint (LONG SWIMMING POOL STEEL ("LSPS"); JARMAN CUSTOM CONSTRUCTION, INC; and PACIFIC WATERSCAPES) and to add new causes of action for those new cross-defendants (for contribution and apportionment, declaratory relief, an...

Excerpt: ...lly and on behalf of all others similarly situated ("Plaintiff"), filed a Complaint against Defendant CareCar, Inc. ("Defendant"). (ROA 2). The Complaint alleges eight causes of action for: 1. Failure to Pay Minimum Wages; 2. Failure to Pay Overtime Wages; 3. Failure to Provide Meal Periods; 4. Failure to Permit Paid Rest Breaks; 5. Failure to Pay Wages Upon Separation of Employment and Within the Required Time; 6. Failure to Provide Accurate Ite...

Excerpt: ... the material objected to does not affect the ruling. l. Background SBCTA intends to construct a project referred to as the Interstate 215 and university Parkway Interchange Improvement Project ("Project"). The Project will replace the current University Parkway interchange with a design that accommodates projected growth in both regional population and enrollment at California State University, San Bernardino. This achon concerns a property owne...

Excerpt: ...07, 813 [statute requires payment of only those costs and fees that were reasonably incurred].) "[Tlhe Legislature intended the word 'expenses' to cover items not included in the detailed statutory definition of 'costs.'" "Expenses" may "cover such out-of-pocket expenses as filing fees, expert witness fees, marshall's fees, etc., [which] should open the litigation process to everyone." (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 1...

Excerpt: ...ed under seal only if it expressly finds facts establishing: 1. There exists an overriding interest that overcomes the right of public access to the record; 2. The overriding interest supports sealing the record; 3. A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4. The sealing is narrowly tailored; and 5. No less restrictive means exist to achieve the overriding interest. (Cal. Rules ...

Excerpt: ...ries on the grounds that the answer is evasive or incomplete. (Code Civ. Proc., S 2030.3W, subd. If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2ff)O) 22 Cal.4th 245, 255.) No. 4 This interrogatory seeks the number of residents who developed sepsis and/or septic shtNk while residing at the facility fro...

Excerpt: ...) 17 Cal.4th 599, [voluntarily dismissed defendant is entitled to costs]; Cano v. Glover (2006) 143 Cal.App .4th 326, 331 [dismissed defendant prevails, regardless of whether the dismissal is voluntary or involuntary and "regardless of whether the dismissal is with or without prejudice"]; see also ROA #927 [voluntary dismissal], 948 [judgment of dismissall.) Code of Civil Procedure "section 1032 provides for recovery of costs as a matter of right...

Excerpt: ...ed a half-page arbitration clause, entitled Arbitration Disclosures." which stated as item 1, If either you or we choose, any dispute between you and us will be decided by arbitration and not in court." [Ameripour Declaration, Ex. 21 The Lease identified Plaintiff as the "Lessee" and "you", Fletcher Jones was identified as the "Lessor" and referred to as "we" and "us." Defendant was not a party to the Lease. The Lease3 also prov-ded, in relevant ...

Excerpt: ... to settle by arbitration a controversy thereafter arising out of such contract or transaction, the refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." (9 U.S.C. S 2.) "The 'principal of the FAA is to 'ensur[e] that private arbitration agreements are enforced according to their terms.'" (Lacayo v. Catalina Resta...

Excerpt: ...is required to set the matter for trial within 120 days. Civ. Proc., S 35, subds. (a), "An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Sect...

Excerpt: ...is overruled. Plaintiff's Evidentiary Objection #3 is sustained. The Trial and the Pre-Trial Conference are hereby vacated. Plaintiff Travelers Property Casualty Company of America seeks equitable contribution and equitable indemnity for defense costs it incurred on behalf of Mallcraft, lnc„ who had tendered a claim as an additional insured under plaintiff's belonging to one of Mallcraft's subcontractors, KitCor Corporation, for a case in arbit...

Excerpt: ...ions do not comply with California Rules of Court, rule 3.1354(b) which provides that written objections to evidence must "[i]dentify the name of the document in which the specific material objected to is located," "[state] the exhibit, title, page and line number of the material objected to," and "[qluote or set forth the objectionable statement or material." Plaintiff objects to portions of Defendants' undisputed material facts in their separat...

Excerpt: ...ker List which constitutes trade secrets. Sprout is not represented by counsel, and the motion is unopposed. "A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment." (Code Civ. Proc. S 437c(f)(2).) A party may move for summary adjudication as to one or more causes of action within an action, one or more affrmatve d...

Excerpt: ...rly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 952, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) uncertainty A demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) will be sustained only where the complaint is so poorly pled that a defendant cannot reasonably respond—i.e., he or she cannot re...

Excerpt: ... been quoted verbatim. A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal.2d 872, 883.) "A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under mtxlern discovery procedures." (Khouryv. Maly...

Excerpt: ...Under the law a family daycare center is considered a "residential" use and the landlord's consent for such use is not needed as a matter of law. But then the plaintiffs alleged that the lessor refused to give its written consent for the state operational permit for a "small daycare center," which is for businesses of six to eight children. The plaintiffs asserted that the lessor could not refuse to give consent under the aw, and of its refusal t...

Excerpt: ... $27,810.47. The Motion is GRANTED as to the stipulated costs in the amount of $27,810.47. Otherwise, the Motion is DENIED. A. The Motion is Timely The motion for fees "must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case." (Cal. Rules of Court, rule 3.1702, subd. (b).) Pursuant to California Rules of Court, rule 8.104(a...

Excerpt: ...[alny party to an action in which it is alleged that two or more parties are joint tortfeasors...shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors..." The fundamental inquiry in a good faith hearing, pursuant to Code of Civil Procedure 5877.6, is whether the settling Defendant is paying the Plaintiff an amount that is so far below Defen...

Excerpt: ...iled to produce and evidence in support of the same. Defendants had the right to file both their original answer, and first amended answer. (See Mustalo v. Mustalo (1974) 37 Cal.App.3d 580, 585; A & B Metal Products v. MacArthur Properties, Inc. (1970) 11 Cal.App.3d 542, 647; Code Civ. Proc. S 472, subd. (a).) The amended answer was filed before the opposition to plaintiffs motion to strike was due. Thus both answers were properly filed, precludi...

Excerpt: ...ndment to any pleading ... ." The court's discretion will usually be exercised liberally to permit amendment of the pleadings. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428. Plaintiffs seek leave to file a first amended complaint to add a cause of action for "unlawful retaliation by landlord." Plaintiffs allege that after they "organized and/or participated in an association or organization to exercise their rights under the law...

Excerpt: ...e injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued. [Citation.) Weighing these factors lies within the broad discretion of the superior court." (Smith v. Adventist Health Sys./W. (2010) 182 Cal. App. 4th 729, 749.) Symple asserts that it is likely to succeed on its two causes of action for Misappropriation of Trade Secrets and Unfair Competition. under the California ...

Excerpt: ...nc. v. Cnty. of San Mateo (1995) 12 Cal. 4th 1110, 1117—18; Prue v. Brady Co./san Diego (2015) 242 Cal. App. 4th 1357, 1384-85.) The court finds the Complaint fails to state suffcient facts to constitute Plaintiff's three current causes of action ("COA") under the Song- Beverly Act ("Act") as the vehicle in question (used 2018 Chevrolet Camaro with VIN: IGIFB3DX4J0131584 ("Vehicle")) was purchased used. The Act applies only to purchases of new ...

Excerpt: ...complaint. At the last hearing, plaintff again asked for time to hire an attorney to represent her and to dismiss the matter. The court granted the continuance. But despite this leniency, plaintiff has failed to secure legal counsel and has failed to file any opposition to the motion for summary judgment. At the request of the plaintiff, the entire matter will be DISMISSED with prejudice as to all defendants. Thus, the defendant's motion for summ...

Excerpt: ...Civil Procedure section 437c(f)(1) provides: "[al party may mcwe for summary adjudication 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 the party contends that the cause of achon has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is...

Excerpt: ....290 states, in part, "If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: (a) The party to whom the interrogatories are directed waives any right to exercise the option to priNluce wr-tings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010) . ['ll ...

Excerpt: ...tion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion." "The Discovery Act requires that, prior to the initiation of a moton to compel, the moving party declare that he or she has made a reasonable and good faith attempt to obtain an informal resolution of each issue. This rule is designed to encourage the parties to work out their differences informally so as to avoid t...

Excerpt: ...and her counsel of record in the sum of $1,078. Defendant Tran also moves for an order deeming the truth of all matters specified in Request for Admissions, Set Two, Nos. 29 through 42, and awarding monetary sanctions against Plaintiff and her counsel of record in the sum of $1,078. Defendant Tran contends that the foregoing discovery was served on Plaintiff and that Plaintiff did not serve responses, necessitating these motions to compel and sup...

Excerpt: ...s were incomplete making a second subpoena necessary. A second subpoena for the same documents is not authorized under the CCP. If the response to the subpoena was incomplete, a motion to compel further response was necessary. The Motion as to Perfect Pregnancy, Inc. is GRANTED in part and DENIED in part. The court exercises fts discretion to modify the subpoena and impose a protective order. (ld.) The court orders that the custodians need only p...

Excerpt: ...ence may be drawn from various sources, but the evidence relied upon must "speak to the court's concern whether the person in question is able to meaningfully take part in the proceedings." [Citation.] California law adopts a broad view of relevance, and a state court of appeal has emphasized a trial judge's "duty...to clearly bring out the facts." ' " (ld.) "The role of the guardian ad litem is to protect the incompetent person's rights in the a...

Excerpt: ... within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (CINIe Civ. Proc., S 473(b).) Because this Motion was filed more than six months after the dismissal, secton 473(b) does not apply. Aside from the authority set forth in section 473(b), every court has the power to "amend and control its process and orders so as to make them conform to law and justice." (Code Civ. Proc., S 1...

Excerpt: ... of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) If the defendant meets his burden, then the plaintiff must show the "challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiffs showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment." (Bara', supra, 1 Cal.5th at 396.) The ...

Excerpt: ...t to attach order and writ of attachment. (Code Civ. Proc., S 484.010.) Following a hearing on the application, the court shall issue a right to attach order it finds all of the following: (1) The claim upon which the attachment is based is one upon which an attachment may be issued; (2) The plaintiff has established the probable validity of the claim upon which the attachment is based; (3) The attachment is not sought for a purpose other than th...

Excerpt: ...considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. "A demurrer tests the pleading alone, and not on the evidence or facts alleged." (E-Fab, Inc. v. Accountant...

Excerpt: ...ent to constitute a cause of action and uncertainty. Initially, the Court notes the opposing points and authorities are over the 15-page limit under California Rules of Court, rule 3.1113(d). The Court disregards the last three pages (pages 21-23). (California Rules of Court, rule 3.1300(d).) First Cause of Action for Disability Discrimination in Violation of the FEHA A prima facie case of disability discrimination requires a plaintiff to show th...

Excerpt: ... advantages, or accommodation of the Store due to his disability." (Comp'. at '1 33.) Defendant contends this claim is subject to demurrer because (1) "Plaintiff lacks standing to bring an ADA cause of action as a matter of law," and (2) this claim purportedly "does not relate to Plaintiff's slip and fall allegations." Civil Code section 51 (Unruh Civil Rights Act) provides, in relevant part, that "[a]ll persons within the jurisdiction of this st...

Excerpt: ...nsurance policy insures up to $443,400 for personal property losses. Compl., 98.) On August 30, 2021, Schreck suffered a loss of his personal property, which triggered State Farm's obligation to compensate Schreck for all such losses. State Farm has refused to compensate Schreck for all his losses resulting in breach of the policy. (Compl., 915.) Defendant argues that the contract must be attached to the Complaint, or the material terms specifica...

Excerpt: ...cause of action (civil rights violations) is SUSTAINED without leave to amend. The demurrer to the third cause of action (civil rights violations) is OVERRULED as to Defendant Brown and SUSTAINED without leave to amend as to Defendant Journey. The demurrer to the fourth cause of action (negligence) is OVERRULED The demurrer to the fifth cause of action (negligent retention and supervision) is OVERRULED. A demurrer challenges the defects appearing...

Excerpt: ...d this requirement. (McNeil Dec.) A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1125.) 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 SS 451 or 452. Although California cou...

Excerpt: ...d that Plaintiff "is informed and believes [that Circelli] is (l) an officer of CHICAGO TITLE INSURANCE COMPANY; (2) a member of the executive team of defendant FIDELITY NATIONAL FINANCIAL, INC. and (3) Chief Human Resources Offcerfor FIDELITY NATIONAL FINANCIAL, INC." (ld.) The Circelli Deposition Notice lists 9 categories of inspection demands. (ld.) CTIC served objections to the Circelli Deposition Notice on May 1, 2023. (Lucal Dec., '1 7 and ...

Excerpt: ...ating to Plaintiff's claim for punitive damages, including: 1. Paragraph 13 in its entirety located on Page 4 of Plaintiff's Complaint. 2. Paragraph 31 in its entirety located on Pages 7 and 8 of Plaintiff's Complaint. 3. Paragraph 35 in its entirety located on Page 8 of Plaintiff's Complaint. 4. Paragraph 36 in fts entirety located on Pages 8 and 9 of Plaintiff's Complaint. 5. Paragraph 42 in its entirety located on Pages 9 and 10 of Plaintiff's...

Excerpt: ...t prejudice to the extent it seeks the production of additional documents. On receipt of a response to a demand for inspection, the demanding party may move for an order compelling a further response if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete; (2) A representation of inability to comply is inadequate, incomplete, or evasive; (3) An objection in the response is without ...

Excerpt: ...ervice shows the summons and complaint were served by a registered process server. (ROA 9.) The prtnf of service shows the process server made five attempts at personal service before resorting to substitute service. It shows compliance with the statutory requirements of section 415.20(b), including the mailing requirement. The person who was sub-served declined to provide a name but was described as "Caucasian, female, 38 years old, 5'11" tall, ...

Excerpt: ...st, or station, or to compel the admission of a party to the use and enjoyment of a right or offce to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person." (Code Civ. Proc., 51085, subd. (a).) Additionally, as noted by Petitioners, members of limited liability corporations have statutory rights to obtain certain corporate records. (Corp. Code, 517704.10, subd. (a)....

Excerpt: ... the alleged condition. "The elements of a cause of action for premises liability are the same as those for negligence." (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) The elements of a negligence cause of action are a legal duty owed by the defendant to the plaintiff to use due care, breach of that legal duty, causation, and injury to the plaintiff. (Holmes v. Summer (2010) 188 Cal.App.4th 1510, 1528.) The existence of a legal duty...

Excerpt: ...adding or striking out the name of any party, 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. The court may likewise, in its discretion, after notice to the adverse party, al ow, 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 tme limit...

Excerpt: ...efenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of achon has no merit, that there is no aft-mat-ive defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or p...

Excerpt: ...he complaint does not state facts sufficient to constitute a cause of action against that defendant." Eckler v. Neutragena Corporation (2015) 238 Cal.App.4th 433, 439 (Eckler), states, " 'A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.' [Citation.] As with a demurrer, '[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint o...

Excerpt: ...hose 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 pleading, 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 Empire Transportation Transit District (2012) 209 Cal...

Excerpt: ...an order compelling response to the interrogatories." Cuie of Civil Procedure section 2031.3[n states in part, "If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: ... [9] (b) The party making the demand may mcwe for an order compelling response to the demand." The Moton seeks to compel responses to the followng discovery requests: (1) Form ...

Excerpt: ...lete. [4] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. [q] (3) An objection to an interrogatory is without merit or too general. (b)(l) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.... [q] (c) Unless notice of this motion is given within 45 days of the service of the verified re...

Excerpt: ...or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of moton for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. [q] (2) To stay or dismiss the action on the ground of inconvenient forum. [q] (3) To dismiss the action pursuant to the applicable provisions of Chapt...

Excerpt: ...oposal" or the "master lease." Defendants' argument that the "lease is not a contract fails at the summary judgment phase, as plaintiffs have shown triable issues. As it relates to the "master lease," the version defendants' attached to the motion is illegible. In reply, a legible version is attached, but it simply raises additional questions of material fact. Did the "master lease" su#rsede any other agreement? The evidence submitted shows dispu...

Excerpt: ...g on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of acton alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of action. (d) There is a defect or misjoinder of parties. (e) The pleading dæs not state facts suffcient to constitute a cause of action. (f) The p...

Excerpt: ... claims and damages to raise a response or defense. Code Civ. Proc. S 430.10(f). A demurrer for uncertainty will be sustained only 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. Khoury v. Maly's of Calif. , Inc., 14 Cal. App. 4th 612, 616 (1993); A.J. Fistes Corp. v. GDL Best Contr...

Excerpt: ...e Complaint filed by Plaintiff Mark Magdy Gobrial. Standard for "The party against whom a complaint or crosscomplaint has been filed may object, by demurrer or answer ... to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending betwee...

Excerpt: ...ts 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 pleading, 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 Empire Transpo...

Excerpt: ...." (Rakestraw v. Cal. Physicians' Service (20!W) 81 Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendmen...

Excerpt: ...) the fourth cause of action is time-barred, (2) the fourth cause of action fails to plead with the required specificity, (3) the fourth cause of action fails to plead facts giving rise to a duty to disclose. 171. Statute of Limitatons Defendant contends the Complaint should have been filed by no later than July 2022 because it alleges Plaintiffs purchased the Vehicle on 7-27 - 19. (Demurrer, 7:7-20.) Further, the delayed discovery rule does not ...

Excerpt: ...l, Angelica Toral, Karen Watkins, and Larry Watkins' ("Plaintiffs") move for an award of attorneys' fees in the amount $161,627M, plus costs in the amount of $2,413.94 of Defendant Related Management Company, LP. ("Defendant"). Defendant requests judicial notice of the following: 1. the Court's Minute Order in related matter Griffith v. Related Management Company, L.P., case number 2019- 01091978, regarding Plaintiff Motion for Summary Adjudicati...

Excerpt: ...here and entitled to some amount of fees. A court has wide discretion in determining what constitutes reasonable attorney fees. The court typically makes this determination based upon declarations without live testimony. The value of legal services performed in a case is a matter in which the court has its own expertise, and thus may make its own determination of the value of the services contrary to, or without the necessity for, expert testimon...

Excerpt: ...lls out the rule that an amended complaint relates back to the date of the filing of the original complaint and thus avoids the bar of the statute of limitations so long as recovery sought in both pleadings is based upon the same general set of facts. [Citations.) The foregoing precedents rest on the fundamental policy that 'cases should be decided on their merits.'" (Hirsa v. Superior Ct. (1981) 118 Cal.App.3d 486, 488—89.) "While a motion to ...

Excerpt: ... (SAC) filed by Plaintiff Charlene Lopez. Standard for Demurrer "The party against whom a complaint or crosscomplaint has been filed may object, by demurrer or answer ... to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of acton alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between...

Excerpt: ... shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or crossdefendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense th...

Excerpt: ...s of Efrain Caldera and Plaintiff Daniel Escamilla are OVERRULED. Plaintiff Daniel Escamilla moves for summary judgment as to the Complaint filed by Plaintiff on September 26, 2022. Standard for Summary Judgment "Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., S 437c, subd. (c).) A "p...

Excerpt: ...er Responses to Interrogatories A party may move for an order compelling further responses to interrogatories on the grounds that: (1) an answer to a particular interrogatory is evasive or incomplete; (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or (3) an objection to an interrogatory is without merit or too general. (Code Civ. Proc., S 203...

Excerpt: ...er day that Defendant does not fully comply with the order. Cuie of Civil Prmædure S 2023.010 states, in part, as follows: "Misuses of the discovery process include, but are not limited to, the follow-ng: ... (d) Failing to respond or submit to an authorized method of discovery... . (g) Disobeying a court order to provide discovery." Code of Civil Prc„cedure S 2023.030 provides, in part, as follows: "To the extent authorized by the chapter gov...

Excerpt: ...the burden of proof is on the party claiming them as costs." (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) Code of Civil Procedure section 1033.5 enumerates allowable costs and costs which are not allowable. Even those amounts that are defined as recoverable under section 1033.5, subdivision (a), may only be recovered if they are both reasonable in amount and reasonably necessary to the conduct of the litigation,...

Excerpt: ...h this Guaranty and the other Loan Documents shall be tried and litigated only in the state courts located in the county in which notice shall be sent to Lender pursuant to this Guaranty, or the applicable federal district court that covers said County." (FAC, Exhibit 2, '1 26.) Paragraph 1 of the Guaranty provides in part that Plaintiff Pramukh Financial Services' address for purposes of the Guaranty is in Union City, California, in the County o...

Excerpt: ...g (hereafter, the "XDs") ("Motion 3" below); and (2) an additional Petiton to Vacate Arbitration Award, filed on 7/26/23 by Buyer ("Motion 4" below). For the reasons discussed below, Motion 1 is GRANTED; Motons 2 and 4 are DENIED; Motion 3 is thus MOOT. Motion 1 presents a request to confirm the underlying "Final Award," which comports with C.C.P. S 1285.4. The court thus must confirm that Award as made, unless "in accordance with this chapter it...

Excerpt: ...s Defendant Harrison to admit or deny if the sledgehammer was a construction used for work on the SUBJECT PROPERTY. Defendant Harrison objected on the following grounds: compound and argumentative and contains undefined terms. Subject to those objections, Defendant Harrison states he "has no knowledge or belief of what tools Mag Works owns". The court finds the response insufficient. Notably, the request does not ask if the sledgehammer was owned...

Excerpt: ...t could nonetheless reasonably to the RFP despite the obvious clerical error. Further, a protective order would protect any confidential and/or trade secret material responsive to these RFPs. Plaintiff, however, does not show good cause justifying further production as to RFP Nos. 1, 17, 23, 24, 25, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 50, 51, 52, 53, 58, 59, 58, 76, 78, 79, 86, and 89. These RFPs seek dtNuments relating to vehicles other than...

Excerpt: ... 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 555.) In determining the validity or "the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) "The party seeking arbitration bears the burden of provin...

Excerpt: ... Cal. App. 5th 1324 (2023) and Montemayor v. Ford Motor Company, 92 Cal. App. 5th 958 (2023), review filed (Aug. 1, 2023) applicable and the Motion to Compel Arbitration is therefore DENIED. Here, neither Defendant is a signatory to the Retail Installment Sale Contract at issue. Defendants seek to compel arbitration on the following grounds: (1) Defendants may enforce the arbitration provision under the doctrine of equitable estoppel; and (2) Def...

Excerpt: ...f the arbitration proceedings. The court SETS an ADR Review Hearing for March 7, 2023, at 9:30 a.m. in Department N15. Defendants Trinh To Thi Ly, An Le, and Bijan Namdar move to compel arbitration of the claims asserted by Plaintiff A Plus Autobody, Inc. in this action. Standard for Compelling Arbitration When a party to an arbitration agreement refuses to submit to arbitration, the other party may petition the court to compel arbitration and st...

Excerpt: ...homeowner's insurance policy issued by plaintiff. Initially, Logan claimed that his conduct in the underlying altercation "wasn't intentional" but was a "kneejerk reaction" to "get some space, 'cuz Rullier was chasing him". Ashurex Decl. "8-11, Ex. 3. Based on Logan's representations that his conduct was accidental and non-intentional, plaintiff agreed to defend Logan in the Rullier lawsuit on January 7, 2021, subject to a full reservation of rig...

Excerpt: ...ts Alan Scott, Kathryn Scott, Jeremy Riddle, Katie Riddle, Gregory Scherer, Banning Leibscher, and Julian Adams are SUSTAINED WITH LEAVE TO AMEND. Any amended pleading must be filed by September 21, 2023. Defendants' requests for judicial notice are DENIED on the ground that the material at issue is immaterial to the Court's ruling on these demurrers. l. Factual Background The complaint is lengthy and detailed. The Court summarizes pertinent alle...

Excerpt: ...reto, both of which were previously filed in federal court. (See ROA 260, at p. 3, '1 6.) The Reeds are ordered to file their cross- complaint, and Azadian is ordered to file his answer thereto, by September 15, 2023. l. Background Azadian owns a property on Kings Road in the City. His property is traversed by a sewer easement held by the City. The lateral sewer line in the easement is roughly 70 years old, and Azadian alleges it is corroded and ...

Excerpt: ...judgment is denied but each cause will be addressed under the moton for summary adjudication of issues. Analysis of the motion was made particularly difficult because the plaintiff filed opposition including a separate statement of undisputed facts that was procedurally deficient. Defendants moved to strike that document (see below), and plaintiff responded by attempting to file an amended separate statement that, unfortunately, is also procedura...

Excerpt: ...a's vehicle. Moreno was dismissed (ROA 2W); apparently because he filed for bankruptcy. (See Clerk's Rejection Notice [Duument Filed listed as "Notice of Dismissal—Bankruptcy"], ROA 196.) He also settled for $5,500 and signed a Release of All Claims on June 15, 2023. Defendant Megan Garcia was the driver of the vehicle that hit Garcia's vehicle. Although Brian Lokken was a named defendant, he was dismissed without prejudice on June 14, 2023, on...

Excerpt: ...eeded to gain access through that entry point at the Hamilton Gate entrance to what we call Strip 2 of the Easement" (ld. at 23:4-7); 3. "The Hickey Gate on the south part of the 25 acre will be coded" (ld. at 23:12-14.); 4. There will be an easement granted to Mr. Thier that provides for "vehicular and pedestrian, as well as equestrian rights but only as equestrian rights as [tol Strip 1, and usage for the Strip 1 for equestrian purposes is limi...

Excerpt: ...atories General (Set One), all within 10 calendar days of the hearing of the motion, as well as for an order awarding monetary sanctions Page 19 of 40 in the amount of $ 2,963.15 against Horizon and its counsel of record, Fred Hayes and Rogers, MacLeith & Stolp, LLP, jointly and severally, for each of the two motions, as well as monetary sanctions in the same amount against Besnos and his counsel of record for one of the motions. Plaintiff Beznos...

Excerpt: ...uests for production of documents, set one. Plaintiffs also request monetary sanctons in the amount of $2,3100.00 against Defendant and counsel plus an additional $1,500.00, as well as issue/evidenbary sanctions. The subject requests were served over a year and a half ago on 1/12/22. Defendant served objection-only responses on 2/11/22. The parties agreed to extensions until 3/17/22 for Defendant to serve further substantive responses. Plaintiffs...

Excerpt: ...turer under the doctrine of equitable estop#l. More recently, Div. 8 of the Second District in Ford Motor Warranty Cases v. Ford Motor Co. (2023) 89 Cal.App.5th 1324 (rev. granted 7/19/2023) and Div. 7 of the Second District Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958, 310 Cal.Rptr.3d 82 (June 26, 2023) disagreed with the reasoning in Felisilda and concluded that the manufacturer was not entitled to enforce the arbitration agreement. W...