Excerpt: ... a motion to compel arbitration is simply a suit in equity seeking specific performance of that contract. (Little v. Pullman (2013) 219 Cal.App.4th 558, 565.) The movant bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings,...

Excerpt: ...ment 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.” (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.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the ca...

Excerpt: ...mit the award of attorney fees for tort claims. “The limitation of Civil Code section 1717, subdivision (b) (2)—precluding attorney's fees when a complaint is voluntarily dismissed—applies only to contract claims. . . . It does not apply to noncontract claims and thus does not preclude attorney's fees on noncontract claims where the contractual attorney's fees clause is broad enough to encompass noncontract claims.” Drybread v.Chipain Chi...

Excerpt: ...an ad litem, is sustained with 15 days leave to amend. AFH's motion to strike is granted with 15 days leave to amend except as to the 10 th cause of action. As to the 10 th cause of action, the motion to strike is granted without prejudice to Plaintiffs bringing a motion for leave to amend or supplement. The Demurrer by Defendants Cinnamon Creek Westminster Associates L.P. and Arker, Inc.'s to Plaintiffs' SAC is sustained with 15 days leave to am...

Excerpt: ...neral areas: the partnership concerning the recovery-business, the partnership concerning real-properties for the recovery business, and parties' relationship regarding Plaintiff's Greenleaf personal residence. The court finds that -- in pleading all the areas within the first 80 paragraphs of the complaint and incorporating all the allegations then into the individual causes of action (some of which have little do with others) – the individual...

Excerpt: ... 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 modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 616.) Generally, a demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine ...

Excerpt: ...ng. Whether Northridge lacks standing to sue is not relevant at this stage in the proceedings. WKS is free to raise that defense on an appropriate pleading challenge, on a motion for summary judgment, or at trial. And even if Northridge lacks standing to sue, it may be that Lundin does have standing to sue. Denying Lundin leave to amend might prejudice him by depriving him of the right to raise a potentially valid claim, defense, or legal theory ...

Excerpt: ...xpert discovery. Defendants also move for an order granting them leave to augment their expert witness designation by including Ross Nathan, M.D. As to the first request, the court may, upon motion by any party, “grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.” Code Civ. Proc. § 2024.050(a). In exercisi...

Excerpt: ...des appeared for that hearing, and the application was granted on 6/27/19. But Plaintiff then failed to timely file or serve either his Opening Brief or his Reply. (See 6/27/19 M.O.) Plaintiff thus did not comply with the briefing requirements for this Motion. The Motion fails in any event on the merits. Plaintiff argues that under C.C.P. § 657(1), a new trial should be granted based on evidentiary rulings concerning testimony from Dr. Pressman ...

Excerpt: ...action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) “Once the defendant meets this burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defens...

Excerpt: ...rth below, the court GRANTS the motion for summary adjudication as to Issue 2 and the 2 nd cause of action, and as to Issue 4 and the 5 thcause of action. The motion for summary adjudication is DENIED as to all other issues and causes of action. The motion for summary judgment is DENIED. Issue 1 1st COA: Violation of Labor Code 432.7 Whether the 1 st COA has no merit because Plaintiff cannot establish that Servite considered any record of arrest ...

Excerpt: ...ial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” The requirements of California Code of Civil Procedure Section 36(a) are satisfied here. Plaintiff's counsel David M. Medby has submitted a declaration in which he states that Plaintiff is 86 years old. (Declaration of David M. Medby (“Medby Decl.”), ¶ 4.) Medby's declarat...

Excerpt: ... FAA applies. A court's role in considering a petition to compel arbitration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” (Chiron Corp. v. Ortho Diagnostic Sys. Inc.(9th Cir.20...

Excerpt: ...job or contractor names, dates, invoice numbers, and amounts. The Special Interrogatories (“SROGs”) at issue inquired about specific entries or groups of entries in the Summary. The responses at issue as provided by Plaintiff are inadequate. For SROG No. 52, Plaintiff asserted that a response would require a compilation from “voluminous documents in plaintiff's possession,” referred MP to subpoenaed materials without specifying any specif...

Excerpt: ... – (3) provide as follows: “(b) ‘Vexatious litigant' means a person who does any of the following:” “(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial...

Excerpt: ...erning defendants' alleged failure to properly assess and accommodate his special needs is to show that defendants had adequate notice that a dangerous environment could be created at school. As the United States Supreme Court stated in Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017), Section 1415(l)'s exhaustion requirement “hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education” or “FAPE,”...

Excerpt: ... and default judgment under CCP § 473(b) which provides that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” CCP § 473(b) requires that the motion be filed within a reasonable time not exceeding six months after the judgment, dismissal or...

Excerpt: ... of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue. Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 803. The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271. In the fir...

Excerpt: ...ncrease the page limit on the moving and opposition briefs to 20 pages. Petitioner's opening brief is over 20 pages and uses a font size smaller than 12 points, in violation of California Rules of Court 2.104 and 3.1113(d). The opposing brief is also over 20 pages. The parties are admonished to comply with all applicable court rules in future filings. Based upon an independent review of the evidence, the court finds that substantial evidence supp...

Excerpt: ... their posttrial settlement. The court need not assign blame – the parties either completed their settlement or they did not. Because this case has not settled, the court will issue its ruling forthwith. Plaintiffs' request for posttrial damages and relief is denied without prejudice. They have not shown the court retained jurisdiction to enforce the settlement by way of motion. (Cf. Code Civ. Proc., § 664.6.) The relief plaintiffs seek now wa...

Excerpt: ...sed by inexcusable neglect or avoidance of service. (See Code Civ. Proc. § 473.5; see also Trackman v. Kenney(2010) 187 Cal.App.4th 175, 180.) Finally, defendant has also not shown with admissible evidence that the entry of default was due to extrinsic fraud or mistake. The court grants plaintiff's request for judicial notice. It will take notice of the court records' existence, filing, and legal effect – but will not take notice of the truth ...

Excerpt: ... Carlos Amezcua. Plaintiff Juan Carlos Amezcua filed a request for dismissal on 3/26/19, which the court entered that same day. (ROA 93.) The Motion is CONTINUED as to Plaintiff Luis Amezcua. Pursuant to CCP § 128.7(c)(1), a motion for sanctions cannot be filed until 21 days after it has been served in order to afford the party being served with the opportunity to correct the violation. Here, it is unclear whether Defendants have served the moti...

Excerpt: ...very. 2. Motion to Compel Deposition Moving Party: Plaintiff Isabella DeAngelo Responding Party: Defendant Lutheran High School Association of Orange County dba Orange Lutheran High School Motion 2 Ruling: Plaintiff's Motion to Compel Appearance and Testimony at Deposition denied. Plaintiff's request for sanctions is granted in part and denied in part. Mr. Moritz's deposition is limited to the methods used by Mr. Moritz to gather discovery and hi...

Excerpt: ... and Joseph Craciun (Doe I) only. This motion for attorney fees is brought on two grounds: Code Civ. Proc., § 425.16 (c) (1) and Civ. Code, § 5975 (c). “Attorney fees authorized by statute or by contract are included in an award of costs.” Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1027. Attorney Fees for Anti-SLAPP Motion: “[U]nder Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings ...

Excerpt: ...App.4 th 1120, 1126. 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 §§ 451 or 452. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. 1st COA: ...