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: ...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: ...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: ... (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: ...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...