Excerpt: ... memorandum in support of the motion. (California Rules of Court, Rule 3.1112.) The current motion included only the notice, omitting the essential motion and memorandum from the supporting filings. The notice provides the court with insufficient information to substantively review plaintiff's request. Thus, the motion is incomplete and denied. To the extent the motion seeks relief under Code of Civil Procedure section 663, not only did plaintiff...

Excerpt: ...s no longer at issue, which renders the case a normal civil matter where the summary proceedings of an unlawful detainer action are inapplicable. (Civil Code section 1952.3(a).) The plaintiff is then required to seek to amend the complaint. (Civil Code section 1952.3(a)(1).) Plaintiff has also made a sufficient showing in support of reclassification of the action. (Code of Civil Procedure section 403.040.) The case is incorrectly classified in li...

Excerpt: ...tions case based upon a revolving credit card account. 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, 850.) The moving party has the burden of showing, by affidavit, facts establishing every element necessary to sustain a judgment in favor of the party. (Consumer Cause,...

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Excerpt: ...meaning of Code of Civil Procedure section 877.6. Cross‐Defendant Miller's Heating Air Conditioning and Sheet Metal, Inc.'s Motion for an Order Determining Good Faith of Settlement The unopposed motion is granted. Based on the standards set forth in Tech‐Bilt v. Woodward Clyde & Associates (1985) 38 Cal.3d 488, the settlement at issue is within the reasonable range of the settling cross‐defendant's proportionate shares of liability for plai...

Excerpt: ...rywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.) Defendant has failed to show a sufficient basis to sustain the demurrer as she primarily asserts factual disputes rather than pleading deficiencies. The court must accept all facts pled in the complaint as true. (Blank v. Kirwan, supra, at p. 318.) The complaint complies with Code of Civil Procedure section 1166 as (1) the complaint has been verified, (2) the facts for which recovery is ...

Excerpt: ...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 pleadings 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 allegations within the cross‐complaint are too conclusory and fail to sufficient allege facts to support any of the claims for ind...

Excerpt: ... 787.) The allegations in the pleadings 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 keeps these principles in mind when reviewing the complaint. Here, defendants are challenging the first cause of action for fraud eighth cause of action for breach of contract against defendant David Hood, and the ninth cause of action for constru...

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Excerpt: ... The court requests supplemental briefing on the following issues: (1) Further legal analysis on the issue of whether costs may be awarded to a prevailing party where the actual costs have not been established and the cost memorandum is based upon an estimated amount of costs; (2) Whether the issue of costs for the real parties is ripe in light of the intertwined administrative cost issues associated with the consolidation of this case and League...

Excerpt: ...e purpose of discovery sanctions is to prevent abuse of the discovery process and correct problems presented. (Do v. Superior Court (2003) 109 Cal.App.4th 1210, 1213‐1214.) It is not a weapon to provide for punishment, forfeiture, or avoid of trial on the merits. (Ibid.) The totality of the circumstances surrounding the discovery violations are considered when ordering terminating sanctions: (1) whether the party's conduct was willful; (2) the ...

Excerpt: ...ly noticed motion, to file a cross‐complaint. ...

Excerpt: ...n a judgment in favor of the party. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) Once a plaintiff proves its prima facie case, the burden of proof shifts to the defendant to prove material facts. (Code of Civil Procedure section 437c(p)(1).) Plaintiff's complaint alleges causes of action for breach of contract; account stated; services rendered; and quantum meruit. Plaintiff's submitted evidence is limited to requests for a...

Excerpt: ...).) The moving party bears the initial burden of establishing that one or elements of a cause of action 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 re...

Excerpt: ...with this clarification regarding the posture of the case. The court makes no determination as to the legal validity of plaintiff's private representation allegations related to the UCL and CRLA claims in light of Proposition 64, passed in 2004, and absent PAGA allegations under the Labor Code. Ruling on Motion The motion is granted in part. A protective order is issued as to plaintiff's requests for admissions and special interrogatories, limiti...

Excerpt: ...allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings 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.) Defendant challenges the sufficiency of relator's qui tam claim. In her complaint, relator alleges she is a former nurse assistant that was employed by defendant...

Excerpt: ...s a whole, are sufficient to support the first, second, fourth, and fifth causes of action. As to the first amended supplemental complaint, the demurrer is sustained without leave to amend. The allegations within the second cause of action are deficiently pleaded and does not state any articulable claim against defendant. Defendant's Motion to Strike the Second Amended Complaint/First Amended Supplemental Complaint The motion to strike is denied ...

Excerpt: ... of Civil Procedure section 1005(b).) This motion was served by mail, which required defendant to provide plaintiff with an additional 5 days notice. (Ibid.) Instead, defendant only provided plaintiff with 13 days notice. While the court may overlook harmless procedural errors, the lack of notice impacts the substantial rights of plaintiff and cannot be ignored. (Id. at Section 475; Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 12...

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Excerpt: ...n Proposal and Agreement document executed by the parties on January 5, 2016. The agreement includes the following dispute provision: “Disputes: Owner and Contractor shall use their ‘best efforts' to work out any and all disputes that may arise during the course of construction. In the event that an irreconcilable dispute arises, said dispute shall be settled by ‘mediation'. The parties promise to use their ‘best efforts' to select a mutu...

Excerpt: ...ntrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.) Defendant has failed to show a sufficient basis to sustain the demurrer as she primarily asserts factual disputes rather than pleading deficiencies. The court must accept all facts pled in the complaint as true. (Blank v. Kirwan, supra, at p. 318.) The complaint complies with Code of Civil Procedure section 1166 as (1) the complaint has been verified, (2) the facts for which recovery i...