Excerpt: ...the allegations or the accuracy of the described conduct. (Bader v. Anderson (6th Dist. 2009) 179 Cal.App.4th 775, 787.) The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) However, the court does not assume the truth of contentio...

Excerpt: ...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 establishing 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 burden is met does the burden shift to the opposing party to show a triable issue of material fact. (Ibid.) I...

Excerpt: ...e court shall declare, including protective orders." C.C.P. § 1987.1(a). The court may also make "any other order as may be appropriate to protect the [moving person] from unreasonable or oppressive demands, including unreasonable violations of the right to privacy of the person." Id. Parks asserts that requests 1‐12 and 15‐ 16 are irrelevant and overbroad, and they seek private, privileged information. In particular, Parks relies on the tax...

Excerpt: ...bit 10 because trial court decisions of other courts have no binding or persuasive authority on this court. Plaintiff's objections to PTC's reply evidence are overruled and the accompanying motion to strike is denied. PTC's objections to the declarations of plaintiff and Anita Prasad are overruled and the accompanying motion to strike is denied. Ruling on the Motion to Dismiss PTC first contends dismissal is mandatory because service of summons o...

Excerpt: ...leave to file a cross‐ complaint. The court declines to grant either request. The court has inherent authority to stay a proceeding where it promotes the interests of justice and judicial efficiency. (Code of Civil Procedure section 128(a)(8); Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) Neither the interests of justice nor judicial efficiency support a stay of this action pending resolution of the appeal in the Los Ange...

Excerpt: ...Defendant, for his part, rejects this characterization. This prompted plaintiff Richard Kemp to seek to compel further deposition responses and documents from defendant. It also prompted intervenor to seek a protective order regarding the attorney‐client privilege where intervenor and defendant hold a joint privilege. The court may grant a protective order to control a deposition proceeding or the information obtained from the proceeding. (Code...

Excerpt: ...ity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114‐ 115.) Ruling on Demurrer The demurrer is overruled. A party may demur to a cross‐complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) A demurrer tests the legal sufficiency of the pleading, not the truth of the allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal....

Excerpt: ... further objections, to RFAs, set two, nos. 56 through 60 and 65 through 69 within 21 days of service of the signed order after hearing. The remainder of the plaintiff's request as to RFAs, set two, are denied. Plaintiff Amy Durham shall provide further verified responses, without further objections, to form interrogatories, set two, no. 17.1 as it pertains to RFAs nos. 36 through 42, 49, 50, 56 through 60, and 60 through 65 within 21 days of ser...

Excerpt: ...mistake to justify setting aside default. (Henderson v. PG&E (5th Dist. 2010) 187 Cal.App.4th 215, 229.) Courts favor relief from entry of default for a long‐standing judicial preference for determining matters on their merits. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) Defendant requests Section 473(b) relief because (1) he has no training or experience in the legal field and (2) plaintiff failed to provide him written notice of his ri...

Excerpt: ...or judicial notice filed July 14, 2022 is denied as it is untimely. 4 Ruling on Demurrer Defendant Work World America, Inc.'s demurrer is overruled in its entirety. A party may demur where the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. (Bader v. ...

Excerpt: ...upplemental declaration of counsel filed on 7/20/22 shows that the demurring attorney requested a meet and confer conference , which resulted in a scheduling of a time certain. When moving party counsel called he was informed plaintiff's counsel was at lunch Page 6 of 7 and would call back. Moving party counsel called two days following and was told the same time but plaintiff's counsel never returned the call. Factual and procedural background: ...

Excerpt: ...al sufficiency of the pleadings, not the trust 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 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 Be...

Excerpt: ...ff's first amended complaint in its entirety pursuant to Code of Civil Procedure section 425.16. The court granted the motion in part, as to portions of the first cause of action, and as to the fifth cause of action. The motion was otherwise denied. A defendant who only partially succeeds on an anti‐SLAPP motion is generally considered a prevailing party entitled to fees and costs unless the results of the motion were so insignificant that defe...

Excerpt: ...or from judicially noticed matters. C.C.P. § 437. Defendants move to strike two portions of the complaint relating to emotional injury, including the phrases "substantial emotional distress" at 7:3 (within the fraud claim against both Filo Real Estate and McKay), and "which emotional distress was caused by Defendant's breach" at 7:28 (within the breach of fiduciary duty claim against Filo Real Estate only). The first of these phrases is included...

Excerpt: ...n is necessary to a reflect rate comparable to the area. The court reduces the hourly rate to $300. The next part of the analysis is determination of the reasonable number of hours. Counsel billed 233.90 hours, which included extensive pre‐trial motion litigation. The court is familiar with this case and the motions brought by the parties. The court determines there was an excessive amount of hours expended on pre‐trial law and motion litigat...

Excerpt: ...ns 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.) The court, however, does not accept the truth of contentions, deductions, or conclusions of law. (Genesis Environment Services v. San Joaquin Valley Unified Air Pollution Control District (2003) 113 Cal.App.4th 597, 603.) The demurrer is reviewed keeping this in mind. In this i...

Excerpt: ...ls Co. (1981) 123 Cal.App.3d 593, 604.) The court, however, does not accept the truth of contentions, deductions, or conclusions of law. (Genesis Environment Services v. San Joaquin Valley Unified Air Pollution Control District (2003) 113 Cal.App.4th 597, 603.) The court reviews the amended complaint keeping this in mind. Plaintiffs allege three causes of action in their amended complaint: (1) wrongful death and/or survivor action for negligence;...

Excerpt: ...as inherent authority to modify or dissolve a preliminary injunction based upon a proper showing by the moving party. (Union Interchange, Inc. v. Savage (1959) 52 Cal.2d 601.) The injunction may be modified or vacated where there has been a material change in the controlling facts or law upon which the injunction was determined or where the ends of justice would be served by a modification. (Code of Civil Procedure section 533; United Food & Comm...

Excerpt: ...omplaint for legal malpractice. 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(c). The party seeking summary judgment 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...

Excerpt: ...judicial notice are granted. Pride's requests for judicial notice are granted. Ruling on the Motion The settlement of fewer than all joint tortfeasors must be made in good faith with respect to the remaining defendants. (Code Civ. Proc., §§ 877, 877.6.) “The party asserting the lack of good faith shall have the burden of proof on that issue.” (Id. § 877.6, subd. (d).) In 3 determining whether a settlement was entered into in good faith, th...

Excerpt: ...ring with two discovery motions. A notice of settlement of the entire case was filed October 22, 2021. Defendant has agreed to pay plaintiff $150,000 in exchange for surrender of the subject vehicle, plus fees and costs to be determined by motion. Plaintiff now moves for an award of attorneys' fees and costs. Civil Code section 1794(d) authorizes the recovery of attorneys' fees to a buyer who prevails in an action under that section, “determine...

Excerpt: ...cient to constitute a cause of action or if the pleading is uncertain. (Code Civ. Proc. § 430.10, subds. (e), (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 (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. (2...

Excerpt: ...Proc. § 430.10(e), (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 Corp. v. Structural Materials Co. (2d Dist. 1981) 123 Cal.App.3d 593, 604. As to the third cause of action, the allegations of the complaint ...

Excerpt: ... at all—pursuant either to statute or parties' agreement—are available for services at trial and on appeal.” (Morcos v. Bd. of Retirement (1990) 51 Cal.3d 924, 927, citation omitted.) The court must next address whether defendant's request for $134,899.87 is reasonable. Determining the reasonable amount of attorneys' fees begins with the lodestar method, that is, the number of hours reasonably expended multiplied by the reasonable hourly ra...

Excerpt: ...rocedure section 425.10(a)(2), which requires a demand for judgment to state the amount demanded if recovery of money or damages is sought. The demurrer is overruled on this ground. A general demurrer challenges the sufficiency of the cause of action pleaded, and may be overruled if any valid cause of action is alleged. An improper demand for relief, while potentially subjecting the pleading to a motion to strike, does not vitiate an otherwise va...

Excerpt: ...e “within a reasonable time, in no case exceeding six months” from the entry of default. (Ibid.) A party seeking Section 473(b) relief must do so with diligence. (See, e.g., Kendall v. Barker (1st Dist. 1988) 197 Cal.App.3d 619, 624 [Section 473(b) relief was not sought “within a reasonable time” when the moving party delayed five months and 24 days without explanation.]; Benjamin v. Dalmo Mgf. Co. (1948) 31 Cal.2d 523, 528 [finding an ab...

Excerpt: ...it of mandate under seal; (3) petitioner's motion to file opposition to demurrer under seal; and (4) respondent's motion to file reply to demurrer under seal, the court rules as follows: The motions are granted. The court finds based on the moving papers and supporting documents filed with respect to each of the motions identified above that there exists an overriding interest that overcomes the right of public access to the records to be sealed....

Excerpt: ...as not discovered—and thus did not accrue—until March 2022; the claim was thereafter presented to SMUD in April 2022. A plaintiff has "reason to discover a cause of action when . . . she has reason to at least suspect a factual basis for its elements." JJ v. County of San Diego (2014) 223 Cal.App.4th 1214, 1222. Such suspicion then requires reasonable investigation on the part of plaintiff before plaintiff may invoke the late‐discovery rule...

Excerpt: ...urpose of completing expert witness depositions. Defendants did not seek, and the court did not grant, an order extending the discovery cutoff date for the filing of motions to enforce discovery relating to expert depositions. The court also notes that the law and motion minutes from proceedings in this court on June 9, 2022, states “Discovery is closed. Disclosure[s] are closed. Expert discovery is closed.” Even if the court were to consider...

Excerpt: ...notes that defendants Christina Montes and Regina Fraticelli are not named in the first or second causes of action. A party may demur where the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10(e).) 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...

Excerpt: ...proceeding; and (4) the length of time that has elapsed between a prior trial setting and the presently set trial date. (Code of Civil Procedure section 2024.050(b)(1)‐(4).) Any request to reopen discovery also requires a declaration outlining the moving party's attempts to informally resolve the issue: “This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” [Emphasis added.] (Code of Civil Procedure sect...

Excerpt: ..., without further objections, to requests for admissions, nos. 25, 27, and 28 within 10 days of service of the signed order after hearing. The remainder of the motion is denied. Defendants' request for sanctions is denied. Initially, defendants did not prevail entirely on their motion as plaintiff properly asserted objections to requests that were much too broad and/or poorly tailored. Further, the court notes the meet and confer efforts here wer...

Excerpt: ...urt shall order arbitration if it determines that an agreement to arbitrate the controversy exists, unless it is shown that either (1) the petitioner waived the right to compel arbitration, (2) grounds for revocation of the agreement exist, or (3) a party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party arising out of the same transaction. (Code of Civil Procedure section 1281.2.) A t...

Excerpt: ... Cal.App.4th 1399, 1405. Under both federal and state law, a threshold question for any petition to compel arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. It is the petitioner that carries this initial burden of proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972. “‘...

Excerpt: ...S Corp. (2015) 240 Cal.App.4th 246, 255. The moving party bears the burden of showing that the information supporting reconsideration is such that the moving party could not, with reasonable diligence, have discovered or produced it at trial. New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212‐213. Reconsideration cannot be granted based on the moving party's claims that the court misinterpreted the law in its initial ruling. G...

Excerpt: ...roc. § 657(5)); 4. Insufficiency of the evidence to justify the decision of the court (Code Civ. Proc. § 657(6)); and 5. Error in law, occurring at trial and excepted to by the party making the application (Code Civ. Proc. § 657(7)). As a preliminary matter, the court finds that the motion was timely filed. Pursuant to Code of Civil Procedure section 659, a notice of intention to move for new trial must be filed “[w]ithin 15 days of the date...

Excerpt: ...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 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. 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. 9 T...

Excerpt: ...est for summary adjudication unripe and moot. The court disagrees with this assessment. The ripeness requirement is a doctrine of justiciability, which prevents courts from issuing purely advisory opinions. (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170‐171.) “ ‘The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. [Citation.] It must be a real ...

Excerpt: ...the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) There is no concern with the likelihood that the complainant will prevail or whether the complainant has evidence to support the allegations. (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224.) Indeed, for the purposes of the demurrer, all material facts are deemed true no matter how improbable those facts appear. (Ibid; Del E. Webb Corp. v. Structural Materials...

Excerpt: ...there is a complete defense to the cause of action. (Id. subd. (p)(2).) Only when this initial burden is met does the burden shift to the opposing party to show a triable issue of material fact. (Ibid.) In reviewing a motion for summary judgment, the trial court must view the supporting evidence, and inferences reasonably drawn from such evidence, in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal....

Excerpt: ... 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.) The unopposed demurrer is sustained. The complaint does not allege a valid cause of action for unlawful detainer. Plaintiff alleges the tenancy is exempt from the Tenant Protection Act of 2019 (“TPA”) but cites a subdivision for exemption that ...

Excerpt: ... is, however, an exception to this general principle under the doctrine of equitable estoppel. (Ibid.) A nonsignatory defendant may enforce arbitration where plaintiff's claims are intimately founded in and intertwined with the underlying contract obligations. (Id. at pp. 495‐496.) Equitable estoppel prevents the plaintiff from relying on contractual terms against a nonsignatory while repudiating an arbitration clause contained within the contr...

Excerpt: ...nderson (2009) 179 Cal.App.4th 775, 787.) There is no concern with the likelihood that the complainant will prevail or whether the complainant has evidence to support the allegations. (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224.) Indeed, for the purposes of the demurrer, all material facts are deemed true no matter how improbable those facts appear. (Ibid; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 60...

Excerpt: ...may subpoena documents or witnesses to be available at the trial for the purpose of establishing the profits or financial condition” of the defendant, to be released to plaintiff if liability for punitive damages in accordance with Civil Code section 3294 is established. In this action, moving defendant is potentially subject to liability for punitive damages and consequently plaintiff is statutorily entitled to subpoena the subject documents t...

Excerpt: ...15.5. The court sustains this objection. As the evidentiary issue with Hart's declaration is curable, if Hart were to submit a declaration that complies with Code of Civil Procedure section 2015.5 before oral argument, the court will consider it. Callender moves for a court order requiring Hart to file an undertaking for costs. For such an order, a defendant must show (1) plaintiff resides out of state and (2) there is a “reasonable possibility...

Excerpt: ...s with the lodestar method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095. “The reasonable hourly rate is that prevailing in the community for similar work.” Id. at 1095. Respondent requests attorneys' fees at the rates between $300‐ $400 per hour for counsel. Considering all the circumstances of the present case, and the reasonable billing rates fo...

Excerpt: ...on Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881. Defendants Union Pacific Railroad Company and Mary Schroll demur to plaintiff's fourth cause of action for intentional infliction of emotional distress. A party may demur where the pleading does not state facts sufficient to constitute a cause of action or where the pleading is uncertain. Code Civ. Proc. § 430.10(e), (f). A demurrer tests the legal 5 sufficiency of the pleadings, not t...

Excerpt: ... action alleged in plaintiff Change Lending, LLC's complaint. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts prope...

Excerpt: ...th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. However, 5 the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. The demurrer is overruled as to plaintiffs' first cause ...

Excerpt: ...conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. Plaintiff c...

Excerpt: ...faith with respect to the remaining defendants. Code Civ. Proc. §§ 877, 877.6. In determining whether a settlement was entered into in good faith, the court will consider several factors: a rough approximation of plaintiff's total potential recovery and the settling defendant's proportionate liability, the amount paid in settlement, the allocation of proceeds among plaintiffs, a recognition that the settling defendant should pay less than if it...

Excerpt: ...suasion that one or more elements of the causes of action in question cannot be established, or that there is a complete defense thereto. Code Civ. Proc. § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries its initial burden of production to make a prima facie showing that there are no triable issues of material fact, the burden shifts to the opposing party to make a prima facie showing of the ...

Excerpt: ...l arbitration where there is a written contract involving interstate or foreign commerce or maritime transactions. (9 U.S.C. §§1, 2.) Where the parties incorporate the FAA into the agreement, the FAA governs a party's request to compel arbitration. (Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 346.) It is defendant that bears the burden of establishing the applicability of the FAA in this instance. (Hoover v. American I...

Excerpt: ...nd burdensome at this juncture. The notice process will identify the number of employees along with their various job titles, allowing plaintiff to propound more tailored, concise requests. Plaintiff's request for sanctions is also denied as plaintiff did not prevail on the motion. Plaintiff's Motion to Compel Further Responses to Request for Production of Documents and Sanctions The motion is denied. The court has carefully reviewed defendant's ...

Excerpt: ...rson (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.) The court reviews the demurrer keeping this in mind. Defendants contend the entire FAC is barred since it was filed after the applicable statutes of limitations for each cause of action. Specifically, they argue the Governor h...

Excerpt: ...Inc. v. Moriana. The Court heard oral argument in March 2022. At issue is the enforceability of arbitration agreements which prohibit an employee from pursuing representative claims in the PAGA context. A decision is expected within the next couple months. Under current law, PAGA claims cannot be arbitrated. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 384. Thus defendants would have no justification to file a motion to ...

Excerpt: ... in ruling on the motion include: (1) the necessity and the reasons for the discovery; (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) the likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or oth...

Excerpt: ...ied. Plaintiff first argues that plaintiff is barred from asserting an unlawful detainer claim under the COVID‐19 Rental Housing Recovery Act. As the current action is not based on the nonpayment of rental debt which accumulated due to the COVID‐19 pandemic, the COVID‐19 Rental Housing Recovery Act does not apply to this action. Defendant also raises factual and evidentiary issues regarding the propriety of a lease agreement between defenda...

Excerpt: .... Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706; Laswell v. AG Seal Beach, LLC, et al (2010) 189 Cal.App.4th 1399, 1405. Under both federal and state law, a threshold question for any petition to compel arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. It is the petitioner that carries this initial burden of proving, by a preponderance of the evidence, the existe...

Excerpt: ...cannot be established or there is a complete defense to the cause of action. (Id. at 437c(p)(2).) Only when this initial burden is met does the burden shift to the opposing party to establish a triable issue of material fact. (Ibid.) In reviewing a motion for summary judgment, the trial court must view the supporting evidence, and inferences reasonably drawn from such evidence, in the light most favorable to the opposing party. (Aguilar v. Atlant...

Excerpt: ...estraint when ordering terminating sanctions. The dismissal of an action is a drastic sanction that is only applied after a party has had an opportunity to comply with a court order yet still fails to do so. (see Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579, 1581.) The totality of the circumstances surrounding the discovery violations are considered when ordering terminating sanctions: (1) whether the party's conduct was ...

Excerpt: ...e settlement is approved …” (Declaration of Jordan W. Maurer, ¶ 4.) Specifically, the dispute between plaintiff and the City involves whether compliance with Medicare requirements means that the settlement agreement must provide for a Medicare Set‐aside Arrangement (“MSA”). The pleadings filed by plaintiff and the City comprehensively discuss the Medicare Secondary Payer (“MSP”) Act, the prohibition on Medicare making payment for a...

Excerpt: ...is uncertain. Code Civ. Proc. § 430.10(e), (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 Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The court does not assume the truth of contentions,...

Excerpt: ...erson (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. (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 demurrer is overruled. The allegations of the complaint are sufficient to state cause...

Excerpt: ...ctions, to special interrogatories, set one, numbers 1, 7, 8, 9, 10, 12, 14, 15, 16, 18, 19, 20, and 21. Defendant Onyems shall serve further verified responses on plaintiff no later than May 31, 2022. Plaintiff's request for sanctions is denied, because imposition would be unjust. (Code Civ. Proc., § 2030.300, subd. (d).) However, repeated failures to comply with discovery obligations may lead the court to find an abuse of the discovery process...

Excerpt: ...rt the discovery subpoenas are improper since Gene Jackson filed a bankruptcy proceeding that is still currently pending. “Upon the filing of a bankruptcy proceeding, federal bankruptcy law imposes an automatic stay on all state and federal proceedings outside the bankruptcy court against the debtor and the debtor's property. [Citations.]” “ ‘The automatic stay is self‐executing and is effective upon filing the bankruptcy petition. [Cit...

Excerpt: ... error in law. (Code of Civil Procedure section 657; Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1227; Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633.) In this instance, defendant asserts irregularities in the proceedings; accident/surprise; excessive damages; and an error in law warrant a new trial. Defendant, however, has not made a sufficient showing to support relief under any of these grounds. “An ‘irregulari...

Excerpt: ... own attorney fees. [Citations] The Legislature codified the American rule in 1872 when it enacted Code of Civil Procedure section 1021, which states in pertinent part that ‘Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; …' [Citation.]” (Trope v. Katz (1995) 11 Cal.4th 274, 278‐ 279.) A...

Excerpt: ...1422, 1428; Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158. Courts must apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. Elling Corp. v. Superior Court (1975) 48 Cal.App.3d 89. A motion for leave to amend must be accompanied by a declaration which specifies the purpose and effect of the proposed amendments...

Excerpt: ...v. Proc. § 430.10(e). 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 Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The court does not assume the truth of contentions, deductions, or conclusion...

Excerpt: ...vertheless, the court is permitted to take judicial notice of the legal effect of a document's language where that effect is clear. Poseidon Dev., Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐1118; see also 11 McElroy v. Chase Manhattan Mortgage Corp. (2005) 134 Cal.App.4th 388, 394 (judicial notice taken of recordation of notice of default under deed of trust, date of recording, and amount stated as owing). Defendant Wi...

Excerpt: ... strike is entitled to an award of attorneys' fees incurred in filing the motion. Code Civ. Proc. § 425.16(c)(1). The purpose of the fee‐ shifting provision is to discourage meritless lawsuits and also to provide financial relief to the victims of lawsuits which are subject to the anti‐SLAPP law. City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 627. Courts have held that only fees and costs incurred on the motion to s...

Excerpt: ...rt rulings of other state and federal courts are not binding on this court. Plaintiff's objections to evidence are overruled. Defendant Starbucks Corporation moves to compel arbitration of plaintiff Tessa Turner's claims, and to stay the action pending arbitration. The arbitration statutes evidence a strong public policy in favor of arbitration that is frequently approved and enforced by the courts. Madden v. Kaiser Foundation Hospitals (1976) 17...

Excerpt: ...motion is substantively deficient in other ways. Defendant's motion argues that the subpoena is facially defective and/or procedurally defective, but defendant does not provide evidence regarding the timing of service of any documents, nor does the motion include the subpoena itself. Defendant does not demonstrate that the subpoena is duplicative or burdensome. Defendant does not demonstrate that the subpoena seeks documents that are irrelevant t...

Excerpt: ...ly filed pursuant to Code of Civil Procedure section 472, the court will deem the amended answer as having been filed in accordance with the court's granting of leave to amend. 7 Motion to Strike Sourdough Solutions, Incorporated's Answer Plaintiff and cross‐defendant John P. Casper Family Partnership's motion to strike Sourdough Solutions, Incorporated's (“Soudough's”) answer is granted with leave to amend on the grounds that the answer wa...

Excerpt: ...joined action were allowed to proceed. (Code Civ. Proc., § 526, subd. (a).) In making this determination, “the court must consider whether the party seeking the injunction is likely to prevail on the merits” and balances the relative harm to the parties. (Mitsui Manufacturers Bank v. Texas Commerce Bank‐Ford Worth (2d Dist. 1984) 159 Cal.App.3d 1051, 1059.) The plaintiff has the burden of showing they would be harmed without a preliminary ...

Excerpt: ... (Code Civ. Proc., § 2019.210. emphasis added.) The reasonable particularity requirement is meant “to help the court shape discovery, and to give the defendant the opportunity to develop defenses.” (Brescia v. Angelin (2d Dist. 2009) 172 Cal.App.4th 133, 149–50.) Reasonable particularity does not mean the claimant “has to define every minute detail of its claimed trade secret at the outset of the litigation. Nor does it require a . . . t...

Excerpt: ...tory pleading against petitioner. This first accusatory complaint was based upon the complaints of eight different patients who collectively received dental work from petitioner between 2010 through 2014. The allegations involved multiple acts of improper dental work causing significant pain, improper billings, unavailability, and improper record keeping. There were eight separate claims alleged against petitioner, which included seven counts of ...

Excerpt: ...17 Cal.App.4th 218, 227.) A defendant challenging a complaint must show either (1) the court has no jurisdiction over the subject matter within the complaint or (2) the complaint fails to state sufficient facts to constitute a cause of action. (Code of Civil Procedure section 438(c)(1)(B).) “[J]udgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. (Schabarum v. California Legislatur...

Excerpt: .... (Picton v. Anderson Union High School (1996) 50 Cal.App.4th 726, 733.) All properly pleaded facts are assumed to be true as well as those that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE MICHAEL W. JONES TENTATIVE RULINGS FOR MAY 5, 2022 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rul...

Excerpt: ...er identified as DR6045‐6120 (“the Draft Agreement”), ordering the continued deposition of Michael Devereaux, and appointing a discovery referee to oversee the continued deposition. The Draft Agreement was produced in discovery by plaintiff Donyne Ranch LLC, in response to a request for production of documents served by defendant. As described by defense counsel, it contains handwritten notations. Defense counsel believes that the notations...

Excerpt: ...rt has jurisdiction to consider defendant's motion for attorney's fees. Defendant is the prevailing party in this action, as the court granted defendant's motion for summary judgment. Defendant requests attorneys' fees pursuant to Civil Code section 1717 totaling $51,595, plus $60 in costs incurred in the filing of the current motion. The first amended complaint alleged a single cause of action against defendant for breach of written contract. Th...

Excerpt: ...om the parties regarding the issue of whether a private right of action existed under Health and Safety Code section 1280.18, or CCR, Title 16, § 1881(d). The court's file reflects that plaintiffs filed a supplemental brief on March 28, 2022, and that defendants filed a supplemental brief on March 29, 2022. The parties reference an earlier supplemental brief purportedly filed by defendants on or about March 22, 2022. However, the court's file re...

Excerpt: ...atutes governing unlawful detainers are to be strictly construed. (WDT‐Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.) Code of Civil Procedure section 1179.11(a) states a summons shall not be issued unless the plaintiff submits a filing stating, among other things, plaintiff has received no communication from the tenant that the tenant has applied for governmental rental assistance to cover the unpaid rental debt demanded from defendant ...

Excerpt: ...personal representative and the defendant's estate as defendants after the death of the defendant. The court has broad discretion in granting leave to amend a pleading with such discretion exercised liberally to permit amendments. (Howard v. County of San Diego (2010) 184 Cal.app.4th 1422, 1428.) Liberality is warranted here, especially in light of the unique factual circumstances. Contrary to defendants' assertions, the complaint is not barred o...

Excerpt: ...cluding (1) delays and last‐minute cancellations of the deposition of Cross; (2) inadequate document productions; (3) failure to cooperate with the Receiver; (4) late payment of sanctions and non‐payment of other charges requested by plaintiff; (5) unprofessional and uncivil correspondence from defense counsel; and (6) the failure to respond to meet and confer letters. Terminating sanctions are an extreme sanction for those cases where misuse...

Excerpt: ...sing out of plaintiff Greg Boas's purchase of a 2008 Ford F250 on or about January 1, 2009. The complaint in this action was filed on April 29, 2019. A notice of settlement was filed August 30, 2021. Defendant agreed to pay plaintiff $66,335 in exchange for surrender of the subject vehicle, plus fees and costs to be determined by motion. Plaintiff now moves for an award of attorneys' fees and costs. Civil Code section 1794(d) authorizes the recov...

Excerpt: ... 652, 656. Where discovery seeks to invade the constitutional right to privacy, the party seeking the discovery must show that the information sought is directly relevant to claims at issue in the litigation, there is a compelling need for the information, and the information is essential to a fair resolution of the lawsuit. Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1425. The subject subpoena seeks the following documents: 14 1. Your Fi...

Excerpt: ...ommissioner was “vested with the authority to hear any future or further hearings or the trial in this case, whether contested or uncontested, as Judge Pro Tempore.” Upon stipulation of the parties, a court commissioner is empowered to adjudicate a “cause” until its final determination. Cal. Const., art. VI, § 21. The determination of a cause encompasses subsequent proceedings that are its “direct progeny,” but not those considered �...

Excerpt: ... Rulings on Pride's Request for Judicial Notice and Edelweiss's Objection Pride's request for judicial notice is granted. Edelweiss's objection to Pride's April 12, 2022, filing is sustained. 11 Ruling on the Motion Pride's motion is denied. The settlement of fewer than all joint tortfeasors must be made in good faith with respect to the remaining defendants. (Code Civ. Proc., §§ 877, 877.6.) “The party asserting the lack of good faith shall ...

Excerpt: ... Health Sacramento Sierra Region dba Sutter Roseville Medical Center (“Sutter”) in the memorandum of costs filed February 2, 2022. The memorandum of costs states total costs in the amount of $53,788.39. However, the court notes that this total does not include expert witness fees in the amount of $38,944.37, which are set forth only in the memorandum of costs worksheet. Sutter's opposition to the motion confirms that Sutter also seeks expert ...

Excerpt: ...e SSUMF as required for a motion for summary adjudication. (Id. at subd. (d)(1)(A).) Due to these procedural deficiencies, the court limits its review to a motion for summary judgment only. Ruling on the Motion The motion for summary judgment is denied. Defendant seeks summary judgment or summary adjudication against all four causes of action in plaintiff's complaint. A party is entitled to bring a motion for summary judgment where PLACER COUNTY ...

Excerpt: ...cribed 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.) The court, however, does not accept the truth of contentions, deductions, or conclusions of law. (Genesis Environment Services v. San Joaquin Valley Unified Air Pollution Control District (2003) 1...

Excerpt: ...urchased medical device from defendant Cynosure, LLC (“Cynosure”), which was financed by a loan obtained from MMP pursuant to an Equipment Finance Agreement (“EFA”). Plaintiff alleges breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, and unfair competition claims against Cynosure. Plaintiff alleges breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair competit...

Excerpt: ...exatious because of his connections with vexatious litigant Rodney Quigley (“Quigley”). To that end, defendants provide evidence that Quigley has involved himself in the current action by corresponding with defendants and counsel under the auspices of “representing” Harmoning's interests, or having been directed by Harmoning to send communications. Defendants also note that the formatting and style of pleadings filed by Harmoning and corr...

Excerpt: ...al sufficiency of the pleadings, not the truth of the plaintiff's allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. However, ...

Excerpt: ...son (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. (1981) 123 Cal.App.3d 593, 604. 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 previously sustained a demurrer to the verified petition and complaint as to the claims as...

Excerpt: ...r to reopen discovery, which include (1) the necessity and reason for the discovery; (2) the diligence or lack of diligence in seeking the discovery and the reason it was not completed earlier; (3) the likelihood that granting the motion will delay trial; and (4) the length of time that has elapsed between the prior trial date and the current trial date. (Code of Civil Procedure section 2024.050(b).) The court has carefully reviewed the motion an...

Excerpt: ... motion. The court declines to provide any further continuance for the purposes of discovery. While plaintiffs do have a right to conduct discovery of the jurisdictional facts necessary to sustain their burden of proof, they must also demonstrate that discovery will likely lead to the production of evidence establishing jurisdiction. (In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 127.) Plaintiffs make a general request for...

Excerpt: ...cle XI, Section 1(b) of the California Constitution by depriving the Placer County Board of Supervisors of its constitutional authority to set employee compensation. Respondent goes on to challenge the second and third causes of action as derivative of the first cause of action, failing to allege additional facts to support any separate legal theory. A demurrer is reviewed under well‐established principles. A party may demur where the pleading ...