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: ...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: ...�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: ... 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: ...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: ...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: ...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: ...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...

Excerpt: ..., no matter how u nlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial n otice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 ...

Excerpt: ...y the leg al 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.) For this reason, the court will not de cide questions of fact on demurrer. (See Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Instead, the court “treat[s] the demurrer as admitting all material ...

Excerpt: ...gations 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.) For this reason, the court will not decide questions of fact on demurrer. (See Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Instead, the court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law...

Excerpt: ...rd for Demurrer 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.) For this reason, the court will not decide questions of fact on demurrer. (See Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Instead, the court “treat[s] ...

Excerpt: ...l declaration concerning th e parties' meet and confer efforts pursuant to the Court's March 11, 2024 Order. The Court will address the merits. I. First Cause of Action for Breach of Fiduciary Duty The three elements of a cause of action for breach of fiduciary duty are the existenc e of a fiduciary relationship, breach of fiduciary duty, and damages. Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811, 820 (2011). The Complaint alleges that De...

Excerpt: ... cross -complaint has b een 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 not state facts sufficient to constitute a cause of action. ¶ (f) The pleading is uncertain.” In this action, plaintiff alleges she was hired by Cao to provide caretaking assistance for Zhang at an Irvine residential property. Plaintiff also alleges Cao was a r...

Excerpt: ...ly rate.” PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. “The reasonable hourly rate is that prevailing in the community for similar work. [Citation.] The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order t o fix the fee at the fair market value for the legal services provided.” Id. “As the plain wording of section 1794, subdivision (d) makes clear, the trial court is ‘t...

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: ...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: ... (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: ...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: ...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: ...class notice is submitted, a redline showing all changes, deletions and additions must be submitted as well. As to the Settlement: 1. Are there any other actions, whether individual, class, or PAGA (including in the pre -filing LWDA stage) that may be affected by this set tlement? 2. Will employer -side taxes be paid separately from and in addition to the GSA, or will they be paid from the GSA? If the latter, please explain why they are paid fro...

Excerpt: ... settled with Plaintiff for $15,000, which is the policy limit of the only applicable insurance policy he had at the time of the subject accident. Defendant City of Fountain Valley filed a timely motion to contest Eulberg's application for determination of good faith settlement. C ode of Civil Procedure section 877.6 applies to a settlement between a plaintiff and an alleged tortfeasor or an alleged coobligor on a contract debt. (Code Civ. Proc....

Excerpt: ...al.App.5th 113, 119, 125126 & fn. 4 (Lawndale) [elements, duty, public entity vicarious liability]; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868 (Hart) [noting “‘the general rule ... that an employee of a public entity is liable for hi s torts to the same extent as a private person [citation] and the public entity is vicariously liable for any injury which its employee causes [citation] to the same extent as a pr...

Excerpt: ...-regarded practice guide has note d that motions to strike and demurrers should be filed as separate documents. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 7:162.1.) In any event, Defendants only reserved one hearing for both the demurrer an d motion to strike. Counsel are reminded that for future motions, accurate reservations for motions must be made so that the court can properly allocate resour...

Excerpt: ...t particular gro und, the matter is properly before the court and the defect in the notice of motion should be disregarded. [Citation].” (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808.) Here the notice states the Motion is being made upon the accompanying papers. Thus, the defect in the notice is disregarded. Attorneys' Fees “[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reason...

Excerpt: ...rant a motion for preferenc e that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interest of justice will be served by granting the preference. (e) Notwithstanding any other provision of law, the court may in its discretion grant a motion fo...

Excerpt: ...d. (a)(5).) This includes the power to disqualify counsel in appropriate cases. (In re Complex Asbestos Litig. (1991) 232 Cal.App.3d 572, 575.) Plaintiffs argue that Richards' representation of Defendant would violate the advocate -witness rule. Rule of Professional Conduct 3.7(a) provides: (a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: (1) the lawyer's testimony relates to an uncont...

Excerpt: ...ubmitted, a redl ine showing all changes, deletions and additions must be submitted as well. As to the Settlement: 1. The 20% of the NSA allocated to AWS subclass members will be distributed on a workweeks basis. Does the subclass distribution count all workweeks worked by AWS subclass members, or only workweeks while they were subject to an AWS? 2. Waiting time subclass members will get credited with an extra six workweeks. For persons who are b...

Excerpt: ...part of plai ntiff's Eleventh Cause of Action under PAGA. (Memorandum of Points and Authorities at 6:12 -14, 6:19- 20, 7:10-11, 7:16-17, 7:2425, 8:10 -12 and 11:15- 16.) After filing the motion, however, defendant substituted in new counsel, and then in its reply brief, defendant argued for the first time that plaintiff's “individual PAGA claim” should be arbitrated. This is a new argument that unfairly and improperly expands the scope of d...

Excerpt: ...rve a timely response.” (Code Civ. Proc., § 2030.290, subd. (b).) By failing to serve timely responses, BAT, Inc. waived “any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based o n privilege or on the protection for work product.” (Code Civ. Proc., § 2030.290, subd. (a).) A propounding party may move for an order compelling responses to a demand for...

Excerpt: ...d applied. (Code Civ. Proc., §§ 583.310, 583.360.) “The provisions of section 583, Code of Civil Procedure, which require an action to be dismissed for want of prosecution if not brought to trial within five years, are mandatory; and the trial court has no discretion but to grant the motion, except where the action has been continued by a written stipulation filed with the court, or where it is shown that the defendant has been absent from ...

Excerpt: ...sition of th is Motion. Defendant's Evidentiary Objections to the Declaration of Michael Clauss are OVERRULED. Relief from Default and Default Judgment: Default was entered against Defendant on October 23, 2023 (ROA No. 147). Defendant requests both mandatory and d iscretionary relief under Code of Civil Procedure Section 473, subdivision (b). As to mandatory relief, section 473, subdivision (b) provides: “Notwithstanding any other requirements...

Excerpt: ...to provide dis covery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evide nce sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discr...

Excerpt: ... This action was initiated on 08/25/23, when Plaintiff file d the Complaint. The Complaint contains sixteen causes of action relating to her employment at Rubio's and her subsequent termination therefrom. The parties dispute whether a valid arbitration agreement exists between the parties and whether the Endin g Forced Arbitration Act of 2022 (“EFAA”) applies to the entire action. 1. Is There an Agreement to Arbitrate that Covers the Claims ...

Excerpt: ...annoyance, embarrassmen t, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) The party seeking a protective order bears the burden of proving that good cause exists for the order. (Emerson Electric Company v. Superior Court (1997) 16 Cal.4th 1101, 11 10.) “Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in … [the discovery procedure] ...

Excerpt: ...favor and against the afor ementioned parties as to the five issues regarding Plaintiffs' causes of action for negligence, strict products liability, private nuisance, and trespass which are asserted against Craig. Notice Plaintiff, Citizens Insurance Company of America, (“Plaintiff” or “Citizens”) contends that that motion should be denied as Craig failed to provide proper 75 days' notice as required by Code of Civil Procedure section 4...

Excerpt: ...inst the aforementio ned parties on three issues. Notice Plaintiff, Citizens Insurance Company of America, (“Plaintiff” or “Citizens”) contends that that motion should be denied as Craig failed to provide proper 75 days' notice as required by Code of Civil Procedure section 437c. 75-days' notice is required on a motion for summary judgment. (Code Civ. Proc. § 437c(a)(2).) Code Civil Procedure section 437c(a)(2) states, “Notice of the m...

Excerpt: ... made the initial showi ng by: - Presenting evidence that Defendants CCR and Gleason observed corporate formalities such that imposition of alter ego liability is inappropriate. (SSUMF Nos. 1 -18.) - Presenting evidence that Plaintiff cannot establish the element of damages. (SSUM F Nos. 30-33.) - Presenting evidence that Plaintiff cannot establish the element of intent to disrupt, necessary to sustain his claim for Intentional Interference with ...

Excerpt: ...inst it on equitable grounds for extrinsic mistake. “Apart from any statute, courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake.” (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) In seeking relief, the moving party must: (1) “demonstrate that it has a meritorious case”; (2) “articulate a satisfactory excuse for not presenting a ...

Excerpt: ...nses dee med improper by the propounding party; e.g., objections, or evasive or incomplete answers. [Code Civ. Proc. § 2030.300.] Additionally, failing to respond to Form Interrogatories within the time limit waives most objections to the interrogatories, includin g Page 4 of 33 claims of privilege and “work product” protection. [Code Civ. Proc. § 2030.290(a).] In this instance, Plaintiff propounded Form Interrogatories to Connell Chevrolet...

Excerpt: ...finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” (Cal. Civ. Proc. Code § 410.30(a), see also § 418.10.) In dete rmining whether to grant a motion based on forum non conveniens, courts usually apply a two -step process. (Stangvik, supra, 54 Cal.3d at p. 751.) In the first step, the cour...

Excerpt: ... (1989) 207 Cal. App. 3d 291, 299) “Motions to disqualify counsel present competing policy considerations. On the one hand, a court must not hesitate to disqualify an attorney when it is satisfactorily established that he or she wrongfully acquired an unfair advantage that undermines the integrity of the judicial process and will have a continuing effect on the proceedings before the court. [Citations.] On the other hand, it must be kept in min...

Excerpt: ... punitive damages allegations and the request for attorney's fees from the FAC. Corporations Code section 17708.07(a) states: “A foreign limited liability company transacting intrastate business in this state shall not maintain an action or proceeding in this state unless it has a certi ficate of registration to transact intrastate business in this state.” Corporations Code section 17708.03(a) states: “A foreign limited liability company t...

Excerpt: ...matters include: al legations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (Code Civ. Proc., § 431.10(b).) A motion to s trike can also strike legal conclusions. (Weil & Brown (2022) Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179.) Conclusory allegations are permitted, however, if they a...

Excerpt: ...ng (“APS”) held on 07/24/23 before hearing officer G. Haros (“Haros”). Haros issued his decision following the APS on or about 08/04/23 (“Decision”). Petitioner lodged copies of all evidence (except for a video) produced at the hearing, the hearing transcript (“HT”), and the De cision with the court. The court first notes that Petitioner stipulated to issues of driving, lawful arrest, and advisement of what would happen if Petiti...

Excerpt: ...ral and con clusory allegations do not suffice; policy of liberal construction of the pleadings will not ordinarily be invoked. Murphy v. BDO Seidman, LLP (2003) 113 Cal. App. 4th 687. That specificity has not been achieved with the representations themselves. Fo r example, paragraphs 17 through 21 are incorporated into the first cause of action, but the allegations of paragraph 44 only serve to confuse those allegations. That paragraph states:...