Excerpt: ...rty is entitled to judgment as a matter of law. (Code Civ. Proc., §§ 437c, subd. (c); 1170.7.) The moving party has the burden of showing, by affidavit, facts establishing every element necessary to sustain a judgment in its favor. (Consumer Cause, Inc. v. SmileCare (2d Dist. 2001) 91 Cal.App.4th 454, 468.) In reviewing a motion for summary judgment, the court must view the supporting evidence, and inferences reasonably drawn from such evidence...

Excerpt: ...ded in California Rules of Court, rule 3.1324. Furthermore, the declaration in support of the motion was untimely filed. (Code Civ. Proc., § 1005.) Ms. Dolmo filed a “First Amended Cross‐Complaint” on July 19, 2022 without leave of court to do so. This filing is ordered stricken. Finally, Ms. Dolmo lodged several exhibits with the court in support of this motion designated as “sealed exhibits.” No notice of motion to seal was filed and...

Excerpt: ...ome. The matter was set for hearing and, at defendants' request, continued to permit them to retain counsel and submit their formal opposition to the application for right to attach order. Prejudgment attachment is available on a contract claim for money where the claim is fixed or readily ascertainable in an amount not less than $500. Attachment is not available where the claim is fully secured by real property. Where attachment is sought agains...

Excerpt: ...e of summons and first amended complaint is granted. Defendant seeks to quash service based on defective service and the doctrine of tribal sovereign immunity. As to defective service, this court previously granted a motion to quash based on sovereign immunity. Plaintiff's proof of service filed April 22, 2022 showing mailed service on defense counsel on March 26, 2022. However, following a successful motion to quash, service must be personally s...

Excerpt: ... for $70,056.50 is reasonable. Determining the reasonable amount of attorney's fees begins with the lodestar method, that is, the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The lodestar figure may then be adjusted, based upon factors specific to the case, to fix the fees at a fair market value for the legal services provided. (Ibid.) The court carefully revie...

Excerpt: ...nduct. 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. The demurrer ...

Excerpt: ...fferee fails to obtain a more favorable judgment or award, costs allowable under Code of Civil Procedure section 1032 may be augmented. Code Civ. Proc. § 998(c), (d). In such circumstances, the court may order defendant to pay reasonable fees for plaintiff's expert witnesses in preparation for and/or during trial of the case. Code Civ. Proc. § 998(d). Further, when a party serves successive unrevoked and unaccepted § 998 offers and defendant f...

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

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