Excerpt: ...fornia Rule of Court, rule 3.1300(c) states: “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” Here, there was no signed proof of service filed. On this basis, the motion is DENIED. The Court also reviews the merits and comes to the same conclusion Code Civ. Proc. § 430.41(a) states: (a) Before filing a demurrer pursuant to this chapter, the demurring party shall me...

Excerpt: ...anderson (“Shawn,” together with John, “Plaintiffs”), or, in the alternative, for Summary Adjudication as to each of the three causes of action asserted therein, are DENIED. Defendants' evidentiary objections are sustained as to nos. 3, 8 and 9 and overruled as to nos. 1, 4 and 7. The Court declines to rule on nos. 2, 5 and 6 because the evidence is not material to its disposition of the motions. Code Civ. Proc., § 437c(q). Merits At the...

Excerpt: ...om protected activity. (See Code Civ. Proc., § 425.16, subd. (e); see also City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) These claims arise out of the unprotected conduct of transferring property and debts, not any protected conduct related to the legal separation. (See Code Civ. Proc., § 425.16, subd. (e); Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060, 1062-1064 [a “claim may be struck only if th...

Excerpt: ...the second cause of action for Breach of Contract on the bases that it fails to state facts sufficient to constitute a cause of action, is uncertain, and it cannot be ascertained from the Complaint whether the contract is written, is oral, or is implied by conduct. Civ. Proc. Code § 430.10(e)-(g). A) COA #1 – Legal Malpractice “The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use ...

Excerpt: ...Miller, or Mibs Matthews] from January 2019 to June 5, 2019, RELATING TO NEWPORT CROSSINGS.” A motion to compel further responses must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310(b)(1); see also Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.App.4th 1113, 1117.) To establish “good cause,” the burden is on the moving party to demonstrate both: (1) relevanc...

Excerpt: ... state a cause of action for legal malpractice, a plaintiff must allege, among other things, facts showing that but for the alleged malpractice, the plaintiff would have obtained a more favorable result. Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App. 4th 559, 572; see also CACI 601 (to recover damages for a lawyer's negligent handling of a legal matter, a plaintiff must prove that he would have obtained a better result if the defendant lawy...

Excerpt: ...s and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. . . . (b)(1) The court, upon notice and motion by a party, shall determine who is the party prevaili...

Excerpt: ...the First Amended Complaint are SUSTAINED with fifteen (15) days leave to amend. Defendants Select Portfolio Servicing & Deutsche Bank's Motion to Strike is moot in light of the rulings on the Demurrers. Requests for Judicial Notice: Pursuant to Evid. Code, § 451 and 452, the court may take judicial notice of certain documents. Defendants' Request for Judicial Notice is granted. Under Evid. Code, § 452 (d), the court may take judicial notice of...

Excerpt: ....” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) With respect to the others, the request is denied, as the Court finds they are not the proper subjects of judicial notice. “[F]rom commencement to conclusion, the party moving for summary judgment 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.” (Aguil...

Excerpt: ...ion agreement covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 [burden]; see also Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 409-410, 418 [“If, as the complaint alleges, the individual defendants, though not signatories, were acting as agents for the [signatory entity], then they are entitled to the benefit of the arbitration provisions”]; see also Zollers de...

Excerpt: ...bitration provision to be unconscionable. The general rule is that “one must be a party to an arbitration agreement to be bound by it or invoke it.” DMS Servs., Inc. v. Superior Court (2012) 205 Cal.App.4th 1346, 1352 (internal quotes and citation omitted). Courts have recognized limited exceptions to this general rule: “there are six theories by which a nonsignatory may be bound to arbitrate: (a) incorporation by reference; (b) assumption;...

Excerpt: ...Agreement, which is attached as Exhibit A to the SAC. The Purchase Agreement was executed by Defendant Le and Melinda Nguyen. This Purchase Agreement contains an arbitration provision. The parties do not dispute the applicability of the arbitration provision to this case. Instead, Plaintiff contends Le waived his right to compel arbitration by waiting to file this motion until after Le first filed a Demurrer and Motion to Strike the First Amended...

Excerpt: ...y to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A rep...

Excerpt: ...Code Civ. Proc. § 2016.040; Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435. The Parties are ordered to further meet and confer and to submit (in place of a separate statement) “a concise outline of the discovery request and each response in dispute.” Cal. R. Ct. Rule 3.1345(b)(2). The first page of the outline shall provide the “set and number” of the interrogatories that are still at issue. Cal. R. Ct. Rule 3.1345(d). The o...

Excerpt: ...s met his or her burden of showing that a cause of action has no merit if that 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 that cause of action. Once the defendant or cross-defendant 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 t...

Excerpt: ...impose a special assessment against Plaintiffs to recover fees and costs incurred in obtaining compliance with the CC&Rs. The court is not convinced that items (ii) and (iii) fall within Calif. Code of Civil Procedure, section 128.5, subdivisions (a) and (b)(1) as “actions or tactics.” A motion for sanctions may not be filed with the court until 21 days have lapsed following service of the notice of motion upon the party against whom sanction...

Excerpt: ...oss-Defendant and Appellant Josefina Lopez, individually and as Trustee of the Josefina Lopez Separate Property Trust Dated January 23, 2006, as prevailing parties on appeal. The motion is timely and appropriate under California Rules of Court, Rule 8.278(d)(2), and California Rules of Court, Rules 3.1702(c)(1) and 8.278(c)(1). The Court of Appeal's Opinion dated October 26, 2020 affirmed this Court's judgment, and found “[t]he HOA and Alfords ...

Excerpt: ...committed to the discretion of the trial court after the court determines (1) the likelihood that the plaintiff will prevail on the merits at trial, and (2) the relative harms suffered by the parties.” (Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc. (2001) 91 Cal. App. 4th 678, 695.) The plaintiff has the burden of proof to show “upon a verified complaint, or upon affidavits” all elements necessary to support the issuance ...

Excerpt: ...eir purported lack of personal knowledge. An unestablished assertion that a particular witness lacks personal knowledge of the facts of the case is insufficient to show good cause for a protective order precluding that witness's deposition. (See Code Civ. Proc., § 2025.420, subd. (b); see also Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318 [the burden is on the party seeking the protective order to show good cause for...

Excerpt: ...tion Co. v. Superior Court (2003) 106 Cal.App.4th 314, 318; Basic Modular Facilities, Inc. v. Ehsanipour (1999) 70 Cal.App.4th 1480, 1485.) The Court also finds, based on Plaintiff, KPRS Construction Services, Inc.'s own calculations, the reasonable value of work provided is less than that owed under the contract price, such that the lien covers the reasonable value of the work provided, not the contract price. (Civil Code § 8430(a).) The issue ...

Excerpt: ...sion of any revised papers, including the proposed letter to the aggrieved employees. 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 and the proposed letter to the aggrieved employees, rather than with just a supplemental declaration simply asserting that the issues have been resolved. The PAGA Settlement Agreement provides in ¶12 t...

Excerpt: ...oughout California, and any number of additional “job sites” where its workers might be called to action. Defendant regularly employs thousands of non-exempt hourly laborers and has an estimated 9,000 workers who might qualify as class members. Plaintiff Sanchez was employed by Defendant on and off for about fifteen (15) years, from approximately 2000 to 2015. He was employed in the “underground division” as a construction laborer in an h...

Excerpt: ...For sake of ease, but with no intention to foretell a legal conclusion, the three individuals and two entities will at times be collectively referred to as the “Township Defendants.” These defendants supplied individuals to work at The Resort at Pelican Hill (hereinafter “Resort”). One such individual was plaintiff herein. Plaintiff began working for the Township Defendants (more precisely Township Building Services) as an office coordina...

Excerpt: ...to C&D's photocopies of exhibit binders ($4,692.21). 4. The motion is GRANTED as to disputed filing and service fees. The full amount claimed ($4,587.87) is recoverable, but this total is broken down into the following amounts: a. C&D will recover $640.34 from Soco West and Brenntag jointly and severally, but not from Industrial Plaza and Martin. b. C&D will recover $208.84 from Industrial Plaza and Martin jointly and severally, but not from Soco...

Excerpt: .... As to the motion to strike: a. The motion is DENIED as to items 1-6 and 9 in the notice of motion. b. The motion is GRANTED WITH LEAVE TO AMEND as to items 7-8 in the notice of motion. At the hearing, the parties should be prepared to discuss the timing of a second amended complaint (SAC). The Court previously ordered a 2AC to be filed by June 7, 2021 in connection with Defendant Brian Baron's demurrer and motion to strike. Nishimoto's request ...