Excerpt: ...City of Auburn's answer to the petition filed December 13, 2018, is deemed the answer to the petition as verified June 15, 2019. The court sustains petitioner's objections to Exhibit A of the request for judicial notice, and the declaration of Jon R. Di Cristina. Respondent City of Auburn's request for judicial notice is denied as to Exhibit A, and granted as to Exhibit B. Petitioner Z Brothers Investment, LLC petitions for a writ of administrati...

Excerpt: ... the truth of the allegations or the accuracy of the described conduct. (Bader v. Anderson (6th Dist. 2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed true no matter how improbable they may seem. (Del E. Webb Corp. v. Structural Materials Co. (2d Dist. 1981) 123 Cal.App.3d 593, 604.) However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. (Evans v. City of Berkeley (2006...

Excerpt: ...ical Clinic (“N CFMC”), specifically: - - - - Mr. Miller's memorandum of points and authorities in opposition to defendant NCFMC's motion for summary adjudication; Mr. Miller's compendium of evidence in support of plaintiff's opposition to NCFMC's motion for summary adjud ication; Mr. Miller's separate statement in opposition to NCFMC's motion for summary adjudication; and Mr. Miller's declaration in opposition to NCFMC's motion for summary ...

Excerpt: ...nt rule precludes defendant's liability; and the complaint is uncertain. A demurrer tests the legal sufficiency of the pleading, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) T he allegations in the pleading are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)...

Excerpt: ...ns arising u nder the chapter. (Civ. Code § 1794, subd. (a).) If the buyer successfully prevails in their action, he or she may recover “attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Id. at subd. (d).) The parties entered into a settlement agreement that stipulated plaintiff was the prevailing party and...

Excerpt: ...ue to petiti oner's misdemeanor violation of Penal Code section 311.3. Individuals may file writs of mandate to compel public agencies to perform acts required by law. (People v. Picklesimer (2010) 48 Cal.4th 330, 339.) In order to obtain relief, “a petitioner must demonstrate (1) no ‘plain, speedy, and adequate' alternative remedy exists (Code Civ. Proc., § 1086); (2) ‘a clear, present, . . . ministerial duty on the part of the responden...

Excerpt: ...he court must make an order awarding attorney's fees and costs to the propounding party unless: “(1) an objection to the request was sustained or a response to it was waived under Section 2033.290; (2) The admission sought was of no substantial importance; (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter; [or] (4) There was other good reason for the failure to admit.” (Id...

Excerpt: ...ect matter jurisdiction over a certain issue assumes it to the exclusion of all others and has the power to enjoin proceedings that are filed subsequent in time. (Franklin & Franklin v. 7 -Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1175.) The rule of exclusive concurrent jurisdiction seeks to avoid two cases pertaining to the same subject matter pending in different courts at the same time, needlessly taking up court resource...

Excerpt: ...age, the notice of motion and motion, exhibits, declarations, attachments, table of contents, table of authorities, or proof of service. Additionally, the court notes defendants' objections to additional evidence submitted by plaintiff does not conform to the requir ements in California Rules of Court, Rule 3.1354 because it does not cite to any legal authority for the objections. Further, defendants' response to plaintiff's additional material f...

Excerpt: ...ed an opposition indicating he had only been served by electronic service. The proof of service respondent filed February 16, 2024 shows service by both U.S. mail and by electronic mail. Accordingly, while electronic service on a self -represented litigant who has not consent ed to electronic service is insufficient, Code Civ. Proc., § 1010.6, it appears the motion was properly served by mail. Nonetheless, the court exercises its discretion and...

Excerpt: ...th of statem ents contained in deposition transcripts is not subject to judicial notice, and the court declines to consider the deposition transcripts submitted by the parties for the purpose of ruling on the demurrer. Ruling on Demurrer Defendants Kaiser Foundation Hospitals and The Permanente Medical Group, Inc.'s (collectively, “defendants”) demurrer to plaintiff's first amended complaint (“FAC”) is sustained with leave to amend in it...

Excerpt: ...ising o ut of, plaintiff's divorce or relationship with his family, ex -wife, current partner, and children. (Code Civ. Proc. § 2023.030, subd. (d)(1).) Defendants request the court to issue a terminating sanction against plaintiff for his misuse of the discover y process. Courts may impose sanctions pursuant to Code of Civil Procedure, section 2023.030 against a party who misuses the discovery process. (Code Civ. Proc. § 2023.030) Examples of ...

Excerpt: .... (Code Civ. Proc. , § 430.10, subds. (b), (e), (f).) “Uncertain” is defined as “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subd. (f).) A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed true no matter how improbable they may seem. (Del E. Webb ...

Excerpt: ...ons or accuracy o f the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleading are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 5 93, 604.) However, “[i]f the allegations in the complaint conflict with the exhibits, we rely on and accept as true the contents of the exhibits.” (SC Manufactured Homes, In...

Excerpt: ...iding interest wi ll be prejudiced if certain records are not sealed. The court further finds that the proposed sealing of information is narrowly tailored, and that no less restrictive means to achieve the identified overriding interest exists. (Cal. Rules of Court, rule 2 .550(d).) The motion is granted in part and the court orders sealed the following documents only: - - - - Memorandum of Points and Authorities in Support of Mr. Miller's Mot...

Excerpt: ...f the household . . . at least 18 years of age.” (Code Civ. Proc., § 415.20, subd. (b).) However, plaintiff contends defendants had already generally appeared in the action before they filed the instant motion to quash. “A general appearance by a party is equivalent to p ersonal service of summons on such party” and 8 thereby forfeits any objection to defective service. (Code Civ. Proc., § 410.50, subd. (a); Fireman's Fund Ins. Co. v. Sp...

Excerpt: ...may permit a party to amend a pleading in the furtherance of justice and on such terms as may be just. (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) Leave to amend is generally exercised liberally provided there is no showing of prejudice to the opposing party. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428; Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158.) Despite the policy of liberally allowing amendments, whether ...

Excerpt: ... prayer for punitive damages on the grounds the complaint, as plead, does not provide a basis for punitive damages. (Code Civ. Proc. §§ 435, 436.) Punitive damages are available “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code § 3294, subd. (a).) Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct w...

Excerpt: ... causes of action in the complaint. However, defendant is not a signatory to the retail installment sales contract (“RISC”). A non- signatory generally may not enforce an arbitration agreement. (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 495.) There is, how ever, an exception to this general principle under the doctrine of equitable estoppel: “[A] nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintif...

Excerpt: ...o amend afte r a defendant files a demurrer. (Code Civ. Proc., § 472.) A review of the court's file reveals plaintiff had submitted for filing a first amended complaint on March 8, 2024 which the clerk rejected, noting “Leave of court is required.” While the court file reveals defendant Ferro Automotive Group, Inc. dba Fairfield Chevrolet had already answered, one defendant answering does not affect plaintiff's statutory right to amend...

Excerpt: ...e cause of action doe s not state sufficient facts to state a negligence cause of action. A demurrer tests the legal sufficiency of the pleading, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleading are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.A...

Excerpt: ...o the causes of action for negligence and premises liability in plaintiff Michael Bickers's first amended complaint. A motion for summary judgment may be granted if “all the 1 papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) This is compared to summary adjudication that requires a showing that there is no meri...

Excerpt: ...icient to con stitute a cause of action or where the pleading is uncertain. (Code Civ. Proc., § 430.10, subds. (e), (f).) “Uncertain” is defined as “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subd. (f).) A demurrer tests the legal sufficiency of the ple adings, not the truth of the allegations or the accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings ...

Excerpt: ...ations in the pl eadings are deemed true no matter how improbable they may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) The court may only refer to matters outside the pleading that are subject to judicial notice. (Rea v. Blue Shield of California (201...

Excerpt: ...ses of action do not sta te sufficient facts to state the alleged causes of action. A demurrer tests the legal sufficiency of the pleading, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) Th e allegations in the pleading are deemed to be true no matter how improbable 25 the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App...

Excerpt: ... of action. A demurrer tests the 17 legal sufficiency of the pleading, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleading are deemed to be true no ma tter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court, however, does not accept the truth of contenti...

Excerpt: ...t of the then- ongoing meet and confer efforts, no follow -up declaration was submitted and the parties provided no updates in support of the other two motions. The parties are admonished the court expects them to adhere to court orders and abide by the rules of the Code of Civil Procedure and Local Rules pertaining to good faith meet and confer efforts going forward. Motion for Further Independent Medical Examination Defendants move for an order...

Excerpt: ...d. Plaint iff's request for judicial notice is granted. Ruling on the Motion Defendants claim entitlement to fees under three legal theories. The first is that attorneys' fees in this instance are authorized by contract. (Code Civ. Proc., § 1033.5, subd. (a)(10); Civ. Code, § 1717.) Defendants rely on the employment contract between plaintiff and defendants, which contains an attorneys' fees provision for “the prevailing party in any action ...

Excerpt: ... on the Motion A party is entitled to bring a motion for summary judgment where there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The defendant bears the initial burden of establis hing 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. (Id. subd. (p)(2).) Only when this initial ...

Excerpt: ...eeks over ly broad records that are not calculated to lead to admissible evidence. The court agrees, as the subpoena seeks records not sufficiently limited to the 2021 vehicle collision, injuries therefrom, and treatment thereafter forming the basis of the current a ction. The subpoena is also not sufficiently limited in time, seeking records that predate the incident by approximately 7 years. The court may make an order modifying a subpoena or d...

Excerpt: ... sho w that there is no triable issue as to any 13 material fact and the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) This is compared to summary adjudication that requires a showing that there is no merit to one or more of the causes of action. (Id. at § 437c, subd. (f)(1).) A motion for summary adjudication proceeds “in all procedural respects as a motion for summary judgment.” (Id. at...

Excerpt: ... ty. Plaintiff's objections are overruled in their entirety. Ruling on Motion Defendant L&S Framing, Inc.'s motion for summary judgment is denied. Defendant moves for summary judgment as to the plaintiff's cause of action for PAGA allegations on the grounds that defendant did not employ plaintiff. A motion for summary judgment may be granted if “all the papers submitted show that there is no triable issue as to any material fact and the moving ...

Excerpt: ...filed a jo inder to the opposition, which the court accepts. The court shall grant preference if the moving party is over the age of 70 years, has a substantial interest in the action, and “[t]he health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., § 36, subd. (a).) The court may also “grant a motion for preference that is accompanied by clear and conv...

Excerpt: ...t o the first cause of action in their complaint for breach of contract. Summary adjudication requires a showing that there is no merit to one or more of the causes of action. (Id. at § 437c, subd. (f)(1).) A motion for summary adjudication proceeds “in a ll procedural respects as a motion for summary judgment.” (Id. at § 437c, subd. (f)(2).) In reviewing the motion, the trial court must view the supporting evidence, and inferences reasona...

Excerpt: ...on February 6 , 2024 to be heard March 5, 2024 —the day after trial is to commence. Plaintiff objects that the instant motion is untimely pursuant to Code of Civil Procedure section 438(e). However, a party may nonetheless file an untimely motion provided “the moving party did not demur to the complaint . . . on the same grounds as is the basis for the motion provided for in this section.” (Code Civ. Proc., § 438, subd. (g)(2).) As defend...

Excerpt: ...ble.” (Cod e Civ. Proc., § 430.10, subd. (f).) A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings ar e deemed true no matter how improbable they may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, the court does not assume the truth ...

Excerpt: ...omplianc e with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compl iance.”].) However, while the court may take judicial notice of the existence of the public documents, the court may not take 17 judicial notice of “disputed or disputable facts s...

Excerpt: ...udgment bears the burden of showing there is no triable issue of material fact and that the party is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party has the burden of showing, by affidavit, fa cts establishing every element necessary to sustain a judgment in favor of the party. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) Once a plaintiff proves its ...

Excerpt: ... without the causes of action for premises liability and/or negligence. A demurrer tests the legal sufficiency of the pleading, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleading are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) H...

Excerpt: ...dication. Ayala requests fees in the amount of $318,748. Ayala separately filed a memorandum of costs requesting costs on August 9, 2023, in the total amount of $14,697.51, not including attorneys' fees. Plaintiff's opposition to the present motion, filed November 2 9, 2023, is titled “Memorandum of Points and Authorities in Opposition to Motion for Attorney's Fees and Combined With Motion to Tax Costs”. To the extent plaintiff moves to str...

Excerpt: ...for sanctions is denied. However, repeated failures to comply with discovery obligations may lead the court to find an abuse of the discovery process and award sanctions on that basis. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.) 15 Motion to Compel Special Interrogatories Plaintiff's unopposed motion to compel responses to special inte...

Excerpt: ...23 are overruled. Ruling on Motion Defendant's motion for summary judgment is granted. Defendant moves for summary judgment as to the sole cause of action for negligence on the grounds that (1) defendant does not owe a duty to plaintiff and (2) there is a la ck of causation between defendant's acts or omissions and plaintiff's injuries. A motion for summary judgment may be granted if “all the papers submitted show that there is no triable issue...

Excerpt: ... th e causes of action for negligence and premises liability in plaintiff Michael Bickers's first amended complaint. A motion for summary judgment may be granted if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) 4 This is compared to summary adjudication that requires a showing that there is no meri...

Excerpt: ...his depo sition. 13 Deponent Kevin Loewen refused to respond to multiple questions posed during his deposition based on attorney -client privilege and attorney work product protection, among other objections. Petitioner argues the objections were appropriate in l ight of an ongoing independent investigation into possible conflicts of interest regarding the deponent. Petitioner cites Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725,...

Excerpt: ...ction 17704 .10 provides, in pertinent part: (a) Upon the request of a member . . . , for purposes reasonably related to the interest of that person as a member . . . , a manager or, if the limited liability company is 16 member -managed, a member in possession of th e requested information, shall promptly deliver, in writing, to the member or transferee, at the expense of the limited liability company, a copy of the information required to be ma...

Excerpt: ...aintiffs have not alleged sufficient facts of extreme or outrageous conduct where defendants intended or acted with reckless disregard to cause plaintiffs emotional distress. The remainder of the demurrer is overruled as there are sufficient factual allegations p leaded to support the first cause of action for negligence and fifth cause of action for breach of contract/breach of implied covenant. The second amended complaint shall be filed and...

Excerpt: ...ng party i s entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) Code of Civil Procedure section 1033.5 specifies allowable costs and prohibited costs. (Code Civ. Proc., § 1033.5, subds. (a) [allowable co sts], (b) [disallowed costs].) Costs neither allowed nor disallowed “may be allowed or denied in the court's discretion” provided they are “reasonably necessary to the con...

Excerpt: ... pel arbitration in unrelated cases are neither precedential nor persuasive authority with respect to the court's ruling on the instant motion. The court has not considered the rulings of other trial courts on unrelated motions to compel arbitration in arriving at its decision in this matter. Plaintiff's objection to defendants' request for judicial notice filed on February 13, 2024, are sustained. Defendants' request for judicial notice filed ...

Excerpt: ...because his driver's license has been suspended without due process in violation of the Fourteenth Amendment of the United States Constitution. A motion for summary judgment or adjudication may be granted if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) Plaintiff, as the moving party, meets their bu...

Excerpt: ...l violations in a civil proceeding. A party may demur to causes of action that were improperly included without leave of court. (Code Civ. Proc. § 430.10; Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.) A demurrer tests the legal sufficiency of the pleading, not the tru th of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleading are deemed to be true...