Excerpt: ...cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the 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 the cause of action or a defense thereto.” (Emphasis added). Worker's Compensation Exclusive Remedy Rule: “California's Worker...

Excerpt: ...ement funds. Before the Court this day a demurrer and motion to strike to the Third Amended Answer. Demurrer Pursuant to CCP §430.20, a party may demur to an answer on only one of three grounds: (1) Failure to state facts sufficient to constitute a defense; (2) Uncertainty; (3) Failure to state whether contract is oral or written. Plaintiff apparently takes issue with all twelve affirmative defenses. Right out of the gate this demurrer is proced...

Excerpt: ...ition precedent to coverage under such policy. See Brizuela v. Calfarm Insur. Co. (2004) 116 Cal.App.4 th 578, 590; Hickman v. London Assurance Corp. (1920) 184 Cal. 524, 529-30. As the Cross- Defendants failed to oppose the motion, they failed to meet their evidentiary burden to show the existence of a triable issue of material fact. The Motion is also granted as to the Petition. The court determination that there is no coverage for the Plaintif...

Excerpt: ...ed in favor of the claimant. (Independence Bank v. Heller (1969) 275 Cal.App.2d 84, 88.) For the bank account, Mr. Wible has now presented adequate support for his claim that his wife's Social Security benefits are directly deposited therein. For the PT Cruiser, Mr. Wible has now presented sufficient information to show the actual value, and that it falls within the exemption available under C.C.P. § 704.010(a). For tools of the trade, Mr. Wible...

Excerpt: ... condition and repair. Owner argues that Plaintiffs were prior occupants, so under ¶2.5, they were responsible for any corrective work. But even if that were so, the Complaint does not concede prior occupancy. Accordingly, the Demurrer on this ground fails, as it is not self-evident from the terms of the Lease that Plaintiffs were solely responsible for repair of any alleged roof leaks. Owner also argues that under ¶ 8.8 of the Lease, Plaintiff...

Excerpt: ...f the plaintiff against which a determination is sought. (Code Civ. Proc., § 761.020, subd. (c).) If the plaintiff admits the validity of any adverse claim, the complaint must also contain that admission. This enables the action to determine the title against all persons, with specified exceptions, and avoids the need to litigate interests accepted as valid and to which the plaintiff's title is subject. (Code Civ. Proc., § 762.060, subd. (c).) ...

Excerpt: ...dant is entitled to judgment on the pleadings. However, based on the case of CashCall, Inc. v. Superior Court (2008) 159 Cal. App. 4th 273, 284, the court should allow plaintiff an opportunity to amend the complaint to add a new individual plaintiff. Defendant is ordered to give notice of the ruling. ...

Excerpt: ...g the matter of Service, to ensure that service is proceeding diligently. The Court will also continue the trial date and related dates to a date to be determined during this hearing. Plaintiff and the other parties are expected to proceed diligently with discovery as to the new defendant. All parties shall cooperate in providing new defendants with copies of any discovery pleadings promptly upon request. 2. Motion to Compel Depositions The Court...

Excerpt: ...efusing a party leave to amend his pleadings so that he may properly present his case”. Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530. Plaintiff is not changing the nature of this case, and his new claims are based on the same nucleus of operative facts. All of plaintiff's proposed new causes of action appear to be based on the same overall transaction and course of events. The amendment would not result in any undue prejudice to de...

Excerpt: ... the notice of settlement to the class). The court sees no reason to require Class Members to file claims. Unless counsel can explain to the court why such a provision should be required, it will have to be deleted. The release language in the notice to class (p. 3) covers claims “that were or could have been alleged under California law based on the factual allegations contained in the First Amended complaint”, but the settlement agreement (...

Excerpt: ...y motion to be heard after the discovery motion cutoff date, the party must first file a motion under CCP §2024.050 for leave to have the motion heard after the discovery motion cutoff date, and must meet and confer over that issue. However, plaintiff filed its motions on September 25, 2017, 25 days before the last day for motions to be heard based on the November 6, 2017 trial date, which was October 20, 2017. Nonetheless, court congestion caus...

Excerpt: ...s entitled to the attachment order. Code Civ. Proc., §§ 485.240 & 492.050. Moving parties have not shown that the amount to be secured by the attachment should be reduced, or by what amount the attachment should be reduced. Moving Parties offered no evidence to show their likelihood of prevailing on their cross-claims or the amount of offset pursuant to the cross-claims. Moving parties have not shown that section 3.3 of the distributorship agre...

Excerpt: ...sts for Admission, Set One (the “RFAs”) were propounded to Plaintiff on 10/19/17, and that despite an extension to 12/7/17, no responses were ever provided. (Kruppe Decl. at ¶¶ 2-4 and Ex. A.) The arguments presented in the Opposition do not warrant a continuance: unless responses in substantial compliance with C.C.P. § 2033.220 are provided before the hearing, the matters specified in those RFAs shall be deemed admitted. Sanctions are imp...

Excerpt: ...uch counsel is acting an advocate before a jury. As reflected in the Court's May 9, 2017 Minute Order, both sides waived jury on that date. The “Discussion” of Cal. Rule Prof. Conduct, Rule 5-210 states in part: “This Rule is not intended to encompass situations in which the member is representing the client in an adversarial proceeding and is testifying in front of a judge.” As the potential for attorney Recchia to testify as a witness i...

Excerpt: ... (or any other entity) these two subpoenas apply to. In addition, the Calcor Space Facility, Inc. court explained that: “Because of the potential for promiscuous discovery imposing great burdens, even though ultimately the probative value of the discovered material may be questionable, trial judges must carefully weigh the cost, time, expense and disruption of normal business resulting from an order compelling the discovery against the probativ...

Excerpt: ...ordance with California Rule of Court 2.550, the court finds that the nature of the documents Scottsdale seeks to seal, i.e., an insurance application and correspondence between Plaintiffs and Scottsdale related to insurance coverage, supports sealing the documents due to the confidential information set forth in such materials. In addition, the proposed sealing is narrowly tailored and extends only to certain exhibits submitted by Scottsdale in ...

Excerpt: ... motion states it is only being brought by defendant Gladys Ross. Which is it?) The motion is legally ineffective because Code of Civil Procedure section 663 is inapplicable in situations where, as here, the allegation is that the proof of service was not adequate. Section 663 applies where the default judgment exceeds the prayer or is entered without a required statement of damages. (Weil & Brown (TRG 2017) Civil procedure Before Trial, Para. 5-...

Excerpt: ...filed by Fairway Insurance, and if not, why not. Defense counsel's supplemental brief to be filed 9 court days before the continued hearing date. Any opposition by defendant Tim Roham, D.O., Inc. to be filed 5 court days before the continued hearing date of 3-22-18. The court notes that defense counsel remains counsel of record for defendant Tim Rohan, D.O. Inc. at this time because defense counsel's motion to withdraw as counsel has not been gra...

Excerpt: ...burden of demonstrating that the challenged cause of action arises from protected activity.' . . . In City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, 124 Cal.Rptr.2d 519, 52 P.3d 695 (Cotati ), the California Supreme Court explained: “[T]he statutory phrase ‘cause of action ... arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition...

Excerpt: ...gs. The plaintiff shall give notice. ...

Excerpt: ...ice of the notice of ruling of the Case Management Conference (which set the court trial date) was filed showing service on defendant's counsel. Counsel's concern that he never received notice of trial does not carry much weight given the presumption of Evidence Code section 664 and the fact it appears he elected not check the court's file for over five months after the answer was filed, but did, serendipitously, check it on December 27, 2017, th...

Excerpt: ... assuming that service was improper. Substituted Service: There is a significant issue whether a proper person was served for substituted service to be effective. Service was made on Joaquin Trujillo, “caretaker.” Defendant contends that he was a neighbor. If service was improper, a reasonably prudent person would assume an Answer was not required. CCP 415.20 (b) provides that “If a copy of the summons and complaint cannot with reasonable d...

Excerpt: ...s court. “The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned. ‘The order of the appellate court as stated in the remittitur, ‘is decisive of the character of the judgment to which the appellant is entitled. The lower court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, nor retry the case, and if...

Excerpt: ...e party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or la...

Excerpt: ...cause for a continuance. “Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only wher...