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...

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

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: ...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 ...