Excerpt: ... against ACIC is for recovery on a performance bond. Evidentiary Rulings The court on its own motion takes judicial notice of the amendment to the first amended cross-complaint filed April 20, 2022. Cross- complainant's objection numbers 2 and 3 to the declaration of Brad Sutton are sustained; the objections are otherwise overruled. Cross-defendant's objection numbers 1 and 2 are sustained; the objections are otherwise overruled. Ruling on the Mo...

Excerpt: .... Proc. S 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. 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, However, the court does not assume the truth of conte...

Excerpt: ...' 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.) The court reviews the SAC with these principles in mind. A review of the claims alleged in the SAC shows both causes of action remain barred under the version of Civil Cade section 47(...

Excerpt: ...ow 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 of Civil Procedure section 437c(c).) A party to the action may also move for summary adjudication if that party contends there is no merit to one or more of the causes of action. of Civil Procedure section 437c(f)(1).) The moving party bears the initial burden of establishing that one or more elements of a cause of a...

Excerpt: ...deny the motion on this procedural issue alone; however, the court exercises its discretion to reach the merits in light of plaintiff's filed opposition. On the court's own motion, the court takes judicial notice of the entire court file. This action for unlawful detainer was initially filed July 26, 2022. Defendant Storer filed a demurrer August 5, 2022, which was sustained with leave. Plaintiff filed an amended complaint August 24, 2022. The pr...

Excerpt: ... abuse, a survivorship cause of action by Shelley Markstein as successorin-interest to her mother, decedent Loretta Cooper; and (2) wrongful death, brought by Ms. Markstein individually. 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 cal.3d 699, 706; Laswell v. AG seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1...

Excerpt: ...s to Exhibit B, the court takes judicial notice the declaration was filed but does not take judicial notce of the contents therein. Plaintiff's supplemental request for judicial notice filed July 6, 2023 is denied as it was submitted with the reply brief and defendants have had no opportunity to be heard on this issue. Defendants' objections 2, 5, 7—13, 16—19, 24, and 29 are sustained; objection 3 is overruled given the ruling on plaintiffs r...

Excerpt: ...tative ruling tentatively granting, in part, the motion for monetary sanctions as against Chase Meister and KDH Law and indicating the court had not considered plaintiff's untimely opposition. Oral argument was requested, but before it was heard, plaintiff sought an order by ex parte application for the court to consider plaintiffs opposition, which the court granted only as to those portions of the opposition that address the legality of an orde...

Excerpt: ...tiff and (2) a showing by the plaintiff of a reasonable probability of prevailing on the merits. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 999-1000.) The plaintiff has the burden of showing plaintiff would be harmed if the preliminary injunction were not granted. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 838.) Plaintiff has made a sufficient showing that the balancing of hardships weigh in favor of plain...

Excerpt: ...t of fraud, overreaching parties, or collusion and that the settlement, as a whole, is fair, reasonable, and adequate. (7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145.) A presumption of fairness exists where: (1) the settlement was reached through armslength bargaining; (2) the investigation and discovery were sufficient to allow class counsel and the court to act intelligently; (3) class counsel is exper...

Excerpt: ...ng, 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, 504.) The SAC is reviewed keeping these principles in mind. Both causes of achon remain barred under the version of Civil Code sec...

Excerpt: ...set one, within ten days of service of the signed order after hearing. Defendant's Motion to Compel Responses to Request for Production of Documents As an initial matter, the court continued the moton in light of a purported agreement reached by the parties. The court, however, has not received any further information as to this agreement and will proceed to hear the substance of the motion. The unopposed motion is granted. Plaintiff Michael Care...

Excerpt: ...years as required in Sections 583.210 and 583.250 while also failing to bring the matter to trial within five years under Sections 583.310 and 583.50. As it pertains to the mandatory three year dismissal statute, the general appearance of the defendant within the statutory period prevents such a dismissal. (Code of Civil Procedure secton 583.220.) Defendants filed answers to the original complaint on May 3, 2021, making general appearances in the...

Excerpt: ...nsider 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 injunction. (Casmalia Resources, Ltd. v. County of Santa Barbara (2d Dist. 1987) 195 Cal.App.3d 827, 838.) The more likely it is a ...

Excerpt: ...ure to abide by the court's turnover order and (2) failure to comply with the order of examination. "The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: ... (5) Disobedience of any lawful judgment, order, or process of the court." (Code Civ. Proc., S 1209, subd. (a)(5).) "Every court shall have the power to do all of the following: ... (4) To compel obedience to it...

Excerpt: ...1993 trust"), moves for summary judgment or, in the alternative, summary adjudication, as to the fifth cause of achon as against defendant individually, all causes of action as against defendant as successor trustee of the 2013 trust, and all causes of action otherwise. Defendant's request for judicial notce is granted. 5 A party is entitled to bring a motion for summary judgment where there are no triable issues of fact and the moving party is e...

Excerpt: ...udicial notice of plaintiff's first amended complaint filed May 11, 2021 and cross-complainants' first amended cross- complaint filed March 10, 2022. Cross-defendant's objections to cross-complainants' separate statement of facts are overruled. Cross-complainants' objections to portions of the declaration of Robert Lawton and several exhibits thereto are overruled. Cross-complainants' separate statement of undisputed facts does not separately ide...

Excerpt: ...re Cellphone Fee Termination Cases (2010) 186 Cal.App.4th 1380, 1389.) When reviewing the fairness of the settlement, the court is to give due regard to the parties' agreement, ensuring that the agreement is not a product of fraud, overreaching parties, or collusion and that the settlement, as a whole, is fair, reasonable, and adequate. (7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145.) A presumption of fa...

Excerpt: ...r, although it is signed by Ms. Dolmo. Ms. Dolmo's address and telephone number are not included on the memorandum of points and authorities. The moving papers as submitted violate the Code of Civil Procedure section 128.7(a), which requires that every "pleading, petition, written notce of motion, or other similar paper" shall be signed by the attorney of record or, if not represented, by the party. Further, "[e]ach paper shall state the signer's...

Excerpt: ... the declaration of Marcus Contrado, MD, MPH is sustained as the declaration is extrinsic to the pleading and is not subject to judicial notice. A party may demur where the pleading does not state facts sufficient to constitute a cause of action or when the pleading is uncertain. (Code Civ. Proc. S 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 c...

Excerpt: ...cts sufficient to constitute a cause of action or when the pleading is uncertain. (Code Civ. Proc. S 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 Materi...

Excerpt: ...ver, plaintiff Vanessa Kuzel is admonished that repeated conduct of failing to comply with discovery obligations may lead the court to find an abuse of the discovery process and award sanctions on that basis, including terminating sanctions. (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.) Defendant's Mohon to Compel Further Responses Specia...

Excerpt: ...1981) 123 Cal.App.3d 593, 504.) The court reviews the FAC keeping this in mind. Here, defendant challenges the single cause of action for declaratory relief alleged in the FAC. An action for declaratory relief requires an actual controversy relating to the legal rights and duties of the parties. (Code of Civil Procedure secton 1060.) It is only appropriate where there is an actual controversy and not an abstract or academic dispute. (Connerly v. ...

Excerpt: ...en discovery against multiple individuals. It appears some of the requests to compel are, in actuality, requests to compel further responses. A motion to compel further responses generally requires the filing of a separate statement, which has not been filed here. (California Rules of Court, Rule 3.1345.) It also appears defendants are attempting to compel responses from non-parties who have not been properly served. It is also worth noting that ...

Excerpt: ...30.10, 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 (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...

Excerpt: ...ng a moton 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„ S 437c, subd. 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. (ld. subd. Only when this initial burden is met dæs the burden shift to the opposing party ...

Excerpt: ...urther meet and confer efforts. The court continues this motion to July 18, 2023 at 8:30 a.m. in Department 42 to be heard together with plaintiffs' ten other motions to compel further responses. The parties are directed to further meet and confer in good faith towards resolution of these discovery disputes. If the parties' further meet and confer efforts are unsuccessful, it is the court's 6 intention to appoint a discovery referee pursuant to C...

Excerpt: ... to claim punitive damages against a health care provider. The court may grant such leave if plaintiff establishes through supporting and opposing affidavits "there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code." (Code Civ. Proc„ S 425.13, subd. (a).) To support punitive damages, plaintiffs must allege ultimate facts supporting a finding by clear and convincing evidence of o...

Excerpt: ...ington has brought regarding the court's December 13, 2022 order. The court denied the first motion without prejudice on January 24, 2023 due to procedural deficiencies. The court denied the second on March 21, 2023 due to procedural deficiencies and also noted the motion would be denied on the merits as well. Plaintiff's opposition is untimely filed. The court exercises its discretion to consider all briefing in this matter. The court observes m...

Excerpt: ...oc., S 438, subd. (g); Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.) A defendant may move for judgment on the pleadings when the complaint does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., S 438, subd. The grounds for the motion must appear on the face of the challenged pleading or be based on facts which the court may judicially notice. (Code Civ. Proc., S 438, subd. (d)....

Excerpt: ...re irrelevant to allegations made in the TAC. The court grants the motion as to these sections and exhibit without leave to amend. The motion is denied as to paragraph 44. Defendants' Demurrer to the Third Amended Complaint (TAC) The demurrer is overruled. 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...

Excerpt: ...now ton"). On Deck's request for judicial notce is granted. A party is entitled to bring a motion for summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., S 437c, subd. A plaintiff or cross-complainant has the burden of showing, by affidavit, facts establishing every element necessary to sustain a judgment in its favor. (Code Civ. Proc., S 437c, subd...

Excerpt: ..., plaintiff filed an untimely opposition. The court has not considered this late filing. Defendants' request for judicial notce is granted. However, as to Exhibit 2, the request is granted as to the fact that the declaration was filed and not for the truth of the matters declared therein or of the attachments thereto. Defendants move for monetary sanctions against plaintiff's counsel Chase Meister and the law firm KDH Law. The motion follows a se...

Excerpt: ...on to determine whether a class action settlement is fair, adequate, and reasonable. (In re Cellphone Fee Termination Cases (2010) 186 Cal .App.4th 1380, 1389.) When reviewing the fairness ofthe settlement, the court is to give due regard to the parties' agreement, ensuring that the agreement is not a product of fraud, overreaching parties, or collusion and that the settlement, as a whole, is fair, reasonable, and adequate. (7-Eleven Owners for F...

Excerpt: ... 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, 504.) 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 unopposed demurrer is sustained as the complaint does not...

Excerpt: ...lair) and 7.6 hours at an hourly rate of $300 for another (Scott Christensen). A prevailing party in an action on contract is entitled to recover reasonable attorneys' fees where the contract provides for their recovery. (Civ. C'Nle, S 1717, subd. After a trial on stipulated facts, the court found in favor of Heritage Inn on the complaint and cross complaint. The note and other documents underlying this case provide for the 5 recovery of attorney...

Excerpt: ... the hearing on February 17, 2023, the parties appeared and the matter was dropped at petitioner's request. On March 3, 2023, the court dismissed the petition without prejudice at petitioner's request. The prevailing party in a CHRO may be awarded court costs and attorney's fees. (Code Civ. S 527.6, subd. (s).) As Code of Civil Procedure section 527.6 does not define prevailing party, the definition in Code of Civil Procedure secton 1032(a)(4) ap...

Excerpt: ...r Farm Group LLC and for monetary sanctions of $2,265 - Mohon to compel further responses with documents to requests for admission, set 1, from 1550 3rd Street LLC and for monetary sanctions of $2,265 - Motion to compel further responses with documents to requests for production and documents, set 1, from 1550 3rd Street LLC and for monetary sanctions of $2,265 5 - Motion to compel further responses with documents to special interrogatories, set ...

Excerpt: ...onal evidence. The court will not consider improperly subm-tted briefing, especially where defendants have had the opportunity but failed to bring a proper request. Since the court has stricken defendants' supplemental opposition, the court will not consider PCWA's substantive arguments in the supplemental reply or declaration filed on April 25, 2023. Ruling on Objections PCWA's objections to defendants' SSLJMF are sustained in their entirety. PC...

Excerpt: ... is void on its face, a defendant may move to set aside at anytime. (Kremerman v. White (2021) 71 Cal.App.5th 358.) "A judgment 'is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence.' [Citation.) When a default judgment has been taken, the judgment roll consists of 'the summons, with the affdavit or proof of service, the complaint, t...

Excerpt: ...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 Berkeley (2006) 38 Cal.4th 1, 6.) The court will not assume the truth of any allegations contradicted by judicially...

Excerpt: ...for Judicial Notice Defendant's request for judicial notice is granted. Plaintiff's request for judicial notce is denied in light of the court's ruling on the objections. Ruling on Motion The motion is granted. The trial court shall grant a motion for summary judgment 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 of Civil Procedure...

Excerpt: ... statement of damages, and the requests for entry of default and proposed judgment were blank as to damages. The amount of damages awarded in default judgment cannot exceed what was demanded in the operative complaint. Civ. Proc., S 580, subd. A statement of damages is required in a personal injury or wrongful death action or where punitive damages are sought. (Code Civ. Proc„ SS 425.11, 425.115.) Here, a review of the court file reveals the op...

Excerpt: ... or excusable neglect." (CINIe Civ. Proc., S 473, subd. (b).) A motion to set aside dismissal must be made "within a reasonable time, in no case exceeding six months" from the entry of default. (Ibid.) Here, plaintiff's request is based on various obstacles that have im#ded her ability to litigate this case, including medical issues, caring for her elderly mother, and having limited access to the Internet and a law library. Further, plaintiff's r...

Excerpt: ...ribed 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, 504.) However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. (Evans v. City of Berkeley (2005) 38 Cal.4th 1, 6.) Here, defendant contends the complain...

Excerpt: ...f's request for judicial notce is granted. Plaintiff has the burden to prove the facts establishing proper service upon the defendants. (Summers v. McClanahan (2005) 140 Cal.App.4th 403, 413.) The filing of a statutorily compliant proof of service creates a presumption that service was proper but such a presumption is rebuttable. (Dilla v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1441—42; Floveyor Int'l, Ltd. v. Superior Court (Shi...

Excerpt: ...ion of counsel Daniel Law. The court exercises its discretion and considers all briefing in this matter. Ruling on the Mohon 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 Cal.3d 599, 706; Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1405.) under both federal and state law, a threshold question f...

Excerpt: ... liberally prov-ded there is no showing of prejudice to the opposing party. (Howard v. County of San Diego (4th Dist. 2010) 184 cal.App.4th 1422, 1428; Douglas v. superior court (4th Dist. 1989) 215 cal.App.3d 155, 158.) Despite the of liberally allowing amendments, whether to grant or deny an amendment is nonetheless "largely within the sound discretion of the trial court" and "its exercise will not disturbed in the absence of a showing of gross...

Excerpt: ...llegations 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. 10 (Genesis Environment Services v. San Joaquin Valley Unified Air Pollution Control District (2003) 113 Cal.App.4th 597, 603.) The SAC is reviewed keeping this in mind. A review of the SAC shows plaintiff fails to allege sufficient facts to constitute...

Excerpt: ...r Lane Riedel's request. Oral argument was requested, and Mr. Riedel's counsel of record appeared at the date and time for hearing on February 28, 2023. The matter was continued to April 11, 2023, supplemental briefing was allowed, and the minutes reflect "briefing schedule per code." California Code of Procedure requires an opposition be supported by nine court days' notice. (Code Civ. Proc., S 1005, subd. (b).) Here, defendant Christopher Lane ...