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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...