Excerpt: ...ntitlement to an award, and (2) documenting the appropriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) It is undisputed that Plaintiff is the prevailing party on this derivative suit. If a corporation obtains a monetary recovery from a successful derivative suit, the plaintiff shareholder is entitled to reimbursement for reasonable legal fees and costs incurred in prosecuting the action. Th...

Excerpt: ...er was filed late, the trial court nevertheless has discretion to entertain it. Ibid, 281. Failure to Comply with ADR Requirements: Civ. Code, § 5930 (a) requires that “An association or a member may not file an enforcement action in the superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution pursuant to this article.” Civ. Code, § 5925 (b) states that an “'Enforcement action' means a ci...

Excerpt: ... N.A. (2011) 198 Cal.App.4th 256, 265.) First Cause of Action to Set Aside Trustee Sale: “The elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; a...

Excerpt: ...must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551(b)(1).) California Rules of Court rule 2.550(d) states, “The court may order that a record be filed under seal only if it expressly finds facts that establish: [¶] (1) There exists an overriding interest that ...

Excerpt: ...a meet and confer declaration under Section 2016.040. [¶] (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: [¶] (1) The necessity and the reasons for the discovery. [¶] (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that th...

Excerpt: ...f all facts properly pled, but also of those facts 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.4 th 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 justi...

Excerpt: ...d from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 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...

Excerpt: ...of the nonexistence of any triable issue of material fact . . . .”  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.  “A prima facie showing is one that is sufficient to support the position of the party in question.” Aguilar, 25 Cal.4th at 851. A defendant moving for summary judgment may prevail on the motion in one of three ways: (1) by affirmatively negating at least one of plaintiff's essential elements; (2) by...

Excerpt: ...g (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 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: ... (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only t...

Excerpt: ...uous. (Dem. at 3, citing Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) Defendant Timmes makes the additional argument that the claim fails against him because he is not a party to the construction agreements. “Every contract imposes on each party an implied duty of good faith and fair dealing. Simply stated, the burden imposed is ‘that neither party will do anything which will injure the right of th...

Excerpt: ...ively, “Cross-Complainants”) and the first three causes alleged therein. Demurring Parties also seek an order striking the punitive damages allegations and prayer for punitive damages from the FACC. Demurrer Demurring Parties demur to the FACC on the grounds that ZXRV lacks capacity to bring this action and Burns lacks standing. Demurring Parties also contend the FACC does not state sufficient facts to support the first, second, and third cau...

Excerpt: ...to the First, Ninth, Tenth and Eleventh Causes of Action. The Motion is DENIED as to the remaining Causes of Action. Prior Ruling: On 7/13/20, the court overruled Defendants' Demurrer, because the Demurrer was to the entire Complaint when all causes of action were not addressed. (ROA 139). The court did not address the individual causes of action. Judgment on the Pleadings: “In the case of either a demurrer or a motion for judgment on the plead...

Excerpt: ...substantively addresses each issue. 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 plaintiff moving for summary judgment satisfies his or her initial burden by showing that each element of the cause of action in question has been “proved,” and hence t...

Excerpt: ...001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc. (“CCP”), § 437c(p)(2).) Once the moving party meets that burden, the burden shifts to Plaintiff to show, by reference to specific facts, the existence of a triable issue as to that af...

Excerpt: ...ability to comply is inadequate, incomplete, or evasive; and (3) an objection in the response is without merit or is too general. Section 2031.310(b)(1) requires the moving papers to set forth specific 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) relevant to the subject matter (e.g., how the information in the document would te...

Excerpt: ... burden of proof to show that there was a complete defense under Civ. Code, § 3439.09 to these causes of action. Statute of Limitations: Civ. Code, § 3439.09 provides that “A cause of action with respect to a transfer or obligation under this chapter is extinguished unless action is brought pursuant to subdivision (a) of Section 3439.07 or levy made as provided in subdivision (b) or (c) of Section 3439.07: (a) Under paragraph (1) of subdivisi...

Excerpt: ...use: “‘Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.'” (Dream Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 551.) Defendants argue that the threshold issue of arbitrability was delegated to the arbitrator under AAA Consumer Arbitration Rule R-14(a). Defendants have, however, failed to submit a copy of the ...

Excerpt: ...ction 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 deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored informa...

Excerpt: ...ries. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221; Fairmont Ins. Co. v. Sup.Ct. (2000) 22 Cal.4th 245, 255.) Cross-Complainant claims that the Special Interrogatories are straightforward and have not been properly responded to. Cross-Complainant further claims that the information is sought for expert analysis, damages evaluations and evidence of liability. In response, Cross-Defendant states the information is privileged (without citing any la...

Excerpt: ...ge sums of money to Blech and his company, Defendant Secure Channels, Inc. Plaintiffs allege Blech diverted the money to another of his companies, Defendant Imperium Management, LLC, and used the money for improper purposes. Plaintiffs allege Blech falsely represented the financial condition of his company to obtain additional financing. In their cross-complaint, Defendants/Cross-Complainants Blech, Secure Channels, and Imperium Management allege...

Excerpt: ...substance. All that is needed to be shown in the moving papers is that a set of written discovery requests was properly served on the opposing party, the time to respond has expired, and that no response has been served. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.) If a party to whom requests for production were directed fails to serve a timely response, the propounding party may move for an order compelling response and for ...

Excerpt: ...e court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Code Civ. Proc., § 664.6 (effective 1/1/21). Subsection (b) of the statute provides that “For purposes of this sect...

Excerpt: ... rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience. (Weil & Brown, supra, pars. 9:337–9:340.)” (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) A contempt proceeding is commenced by the filing of an affidavit showing the facts satisfying these four requirements (the “charging allegations”). (Code Civ. Proc. § 1211, 2nd para.) The affidavit frames the issues to be tr...

Excerpt: ...ld them a 50% interest in Eliquis. (FACX ¶¶ 16, 18, 33.) This states a direct claim by cross-complainants – they are the ones who lost a 50% interest in Eliquis. 2nd cause of action, breach of contract. The FAXC states facts sufficient to constitute this cause of action. It sufficiently alleges the contract “‘“was made expressly for [Eliquis's] benefit and one in which it clearly appears that [Eliquis's] was a beneficiary.”'” (The H...