Excerpt: ...e been properly alleged in the complaint, facts which may be inferred from those expressly alleged, and material facts of which judicial notice has been taken. Crowley v. Katleman (1994) 8 Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. Second Cause of Action for Age Harassment and Fourth Cause of Action for Me...

Excerpt: ...properly alleged in the complaint, facts which may be inferred from those expressly alleged, and material facts of which judicial notice has been taken. Crowley v. Katleman (1994) 8 Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. Defendants seek judicial notice of a contract allegedly entered into by Orozco and...

Excerpt: ...ent that is in the possession of another party. The demanding party must designate documents by specifically describing individual items or reasonably particularizing categories of documents. (CCP §2031.030(c)(1).) “The ‘reasonably' in the statute implies a requirement such categories be reasonably particularized from the standpoint of the party who is subjected to the burden of producing the materials.” (Calcor Space Facility v. Superior ...

Excerpt: ...served with Plaintiff's Separate Statements. However, the proof of services for the motions indicate that the separate statements were served along with the motions via e‐ mail on 2‐26‐21. (Proof of Service attached to Elliott Decl.) Furthermore, Defendant was able to provide a substantive response to the motion which shows there was no prejudice. Relevance Issue: The parties make the same arguments with respect to all three motions and the...

Excerpt: ...rom any act of defendant in furtherance of his right to petition or his right of free speech under the federal or state constitution in connection with an issue of public interest. (CCP §425.16(e); Equilon Enterprises v. Consumer Cause (2002) 29 Cal.4th 53, 67.) The act which forms the basis for the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 2...

Excerpt: ...s for production of documents, set one. Defendant was ordered to provide further responses within sixty days of the order. Defendant asked Plaintiff for an additional two‐week extension of the court's sixty‐day order, to which Plaintiffs agreed. (Pardo Decl. ¶¶9‐15.) To date, no supplemental documents have been provided. Instead, Defendant described various excuses of what it terms “unexpected” occurrences as to why it has not served ...

Excerpt: ...m interrogatories without objection and within thirty days of this order. Granted as Plaintiff's request to compel Defendant Del Toro to appear for deposition and he is to appear for deposition within the next thirty days at date and time as noticed by Plaintiff. Granted as to the award of monetary sanctions payable by Defendant Del Toro to Plaintiff in the amount of $2,835, which amount the court finds reasonable. Granted as to the request to co...

Excerpt: ...provides the requested documents. A party may move for an order to compel a further response if it deems the responding party's objections are without merit or too general. (CCP §2031.310.) “Absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact‐specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal. App.4th 92, 98.) Informa...

Excerpt: ...tion, affirmative defense, claim for punitive damages or duty. (CCP §437c(f)(1).) A defendant can meet his initial burden by showing that on or more elements of the cause of action cannot be established, or that there is a complete defense. (CCP §437c(p)(2).) To demonstrate that a cause of action cannot be established, the defendant must either negate an essential element of the plaintiff's cause of action, or show that the plaintiff lacks evid...

Excerpt: ... or proceedings has been taken. In the absence of an attorney affidavit of fault, the burden is on the moving party to show that the default could not have been avoided through the exercise of ordinary care. Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. The proofs of service filed on 9‐25‐20, show the date for service of the summons and complaint as 9‐22‐20. The Request for Entry of Default was filed on 11‐2‐20. The declara...

Excerpt: ... record or file. Notice is not taken of truth of matters stated. (Evidence Code, §452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564‐1569; Fremont Indemnity Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Granted as to No. 2: judicial notice may be taken of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (Evidence Code, §452(b).) Plain...

Excerpt: ...of the matters assert in those documents, including the factual findings are not entitled to notice. (Sosinsky v. Grant (1992) 6 Cal. App. 1548, 1562‐1569.) Fitness brings this Motion to consolidate this case with UDCO2100019, the UD action filed by Chase claiming that common questions of fact and law exist. Fitness contends it will suffer irreparable injury if the Court does not act immediately in that the UD action invokes summary procedure a...

Excerpt: ...et for 4‐20‐21 is continued to 6‐9‐21 at 8:30 a.m., Department 5. A supplemental declaration was filed and the meet and confer requirements has now been met. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v....

Excerpt: ... terms of FCA's initial § 998 offer satisfactory, which also provided that FCA would accept the vehicle within 45 days and remit payment within 24 hours of receipt of vehicle. (Mikhov Decl., ¶17.) FCA signed and accepted the offer on 11‐12‐20. (Id.) The settlement also provided that, for purposes of motion for fees and cost, Plaintiff was the prevailing party. (Id.) Plaintiff brings this motion under CC §1794(d), seeking award of fees and ...

Excerpt: ...not file an opposition. On 11‐28‐29 Defendant filed a notice of non‐opposition. On 12‐3‐20, the Court granted the Motion to Compel and imposed $660.00 in sanctions (“December Order”). The Notice Ruling on the December Order shows a proof of service by mail of 12‐4‐20. The motion for reconsideration was filed on 1‐8‐21. On 10‐20‐20, Defendant propounded requests for admissions (RFAs). Plaintiff failed to serve responses b...

Excerpt: ...hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency. (Toyota of Visalia v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) If a party contends the record certified by the agency is incomplete, the appropriate remedy is a motion to augment the record. (Consolidated Irrig. Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 197‐201.) CCP § 1094.5(e) provides: “...

Excerpt: ...e City of Eastvale in Riverside County. The news story did not include the name of the victim. The same day, Petitioner emailed a California Public Records Act (CPRA) request to the Department, which provided a link to a KTLA news story concerning the arrest of Victor Manuel Lopez for an alleged burglary of an Eastvale home. (Pet., Ex. A.) The records request included the date of the burglary and indicated that the crime occurred on the 5500 bloc...

Excerpt: ...ere not relevant to determination of the motion. As to Plaintiff's request, denied as the item is not relevant to determination of the motion. The party moving for summary judgment bears the burden of persuasion. (Aguilar v. Atlantic Richfield Company (Aguilar) (2001) 25 Cal.4th 826, 855.) A defendant can meet his initial burden by showing that on or more elements of the cause of action cannot be established, or that there is a complete defense. ...

Excerpt: ...ve him although some of his families members were involved. A motion to quash a subpoena may be granted on the ground that the matters sought to be discovered are not privileged, protected, or beyond the scope of discovery. (CCP §§ 1987.1(a); 2017.010; Rudnick v. Superior Court (1974) 11 Cal.3d 924, 929.) “At a hearing on a motion to quash, the court must determine whether the party seeking the discovery has made a showing of good cause for t...

Excerpt: ...ve him although some of his families members were involved. A motion to quash a subpoena may be granted on the ground that the matters sought to be discovered are not privileged, protected, or beyond the scope of discovery. (CCP §§ 1987.1(a); 2017.010; Rudnick v. Superior Court (1974) 11 Cal.3d 924, 929.) “At a hearing on a motion to quash, the court must determine whether the party seeking the discovery has made a showing of good cause for t...

Excerpt: ...t bound by the amount sought by a prevailing defendant and has discretion to award them a lesser sum. Id. Only those attorneys' fees and costs incurred on the special motion to strike are recoverable. Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 30 Cal.App.4th 1379, 1383. “[A] party who partially prevails on an anti‐SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignific...

Excerpt: ...'s objections as they were not material to disposition of the Motion. CCP § 437c(q) provides: “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” Plaintiff's objections were not material to ...

Excerpt: ...25). The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672). However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713). Facts appearing...

Excerpt: ...promotion he was transferred to the Colorado River Station in Blythe/Blythe Jail until October, 2012. It is noted that in July, 2012 he was also assigned as interim Captain of Thermal Station until another captain took over Blythe. He continued as Captain of the Thermal Station, serving as its sole commander and highest ranking officer for several years. His duties included overseeing approximately 170 employees, planning, assigning, directing an...

Excerpt: ...imely filed but are deemed deficient by the requesting party (e.g., the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general), that party may file a motion compelling further responses. (CCP § 2031.310.) The motion to compel further responses “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (CCP § 2031.310(b)(1); Kirkland v. Superior...

Excerpt: ...any valid cause of action stated, even if not the one intended, the complaint is sufficient. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. TriCity Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) If judicially noticeable records disclose an absolute defense to the action or deficiency in the complaint, the...

Excerpt: ...rol, including documents from their banking accounts and/or held by banks or other institution under their control, but were not produced as of the date of this order, although this bar does not apply to documents held by third parties, including Yvonne Moore. Denied as to Evidence Sanction No. 2, issue and monetary sanctions. The Estate of Marsh seeks terminating sanctions, or in the alternative, evidence, issue and monetary sanctions against Pl...

Excerpt: ...nd produce the documents within 30 days of the date of this order. Defendant is ordered to pay Plaintiff sanctions in the amount of $4620 as to both motions, which amount the court finds reasonable. The discovery at issue was served on Defendant Rockport on 7‐27‐ 20. On 8‐28‐20, Rockport served objection‐only responses to this discovery. Plaintiff asserts that, to date, Rockport has not provided any additional responses, including the r...

Excerpt: ...ration of the analysis and recommendation on this Motion. Objections properly presented in compliance with CRC 3.1352, but not ruled on, are preserved for appeal. (CCP §437c(q); see also Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532.) A defendant moving for summary judgment has the burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to tha...

Excerpt: ...nce Code§452(d) however, the Court does not judicially notice the truth of the findings. “[A]lthough the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) Furthermore, only relevant evidence is admi...

Excerpt: ...render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and...

Excerpt: ...xists; the right to compel arbitration has been waived; grounds exist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) Arbitration of disputes is favored and “when there is doubt as to the meaning and construction of an agreement for mediation and/or arbitration, that doubt should be resolved in favor of those processes.” (Bon...

Excerpt: ...anctions is also denied. The Estate's evidentiary objections are overruled. On 10‐19‐20, the Estate of Marsh served a Subpoena Duces Tecum (“Subpoena”) on Union Bank (“Bank”). The Subpoena requests all bank statements and documents relating to the deposits, wire transfers, ACH transfers and checks from 1‐1‐18 to present for the subject bank account of the Tatums (“Category 1”). The Subpoena also requests documents related to c...

Excerpt: ...facts demonstrating why Defendant obtained title by fraud, inequitable conduct, or that it was invalid. At most, she alleges an underlying action to which she was not a party to, and argues in opposition, that she was an indispensable party. From the allegations in the underlying action, RIC 1410237, Plaintiff Suntrust Mortgage, Inc. is the owner of property located at 1718 Hayden Ave. in Corona. Suntrust asserted that the property was formerly o...

Excerpt: ...A plaintiff may attack an answer via a demurrer on the following grounds: “(a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible. (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” C.C.P. § 430.20. Demurrers for uncertainty are disfavored and wi...

Excerpt: ...A plaintiff may attack an answer via a demurrer on the following grounds: “(a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible. (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” C.C.P. § 430.20. Demurrers for uncertainty are disfavored and wi...

Excerpt: ...ceive actual notice in time to defend the action. Defendants are ordered to file their responsive pleading within 30 days of the date of this order. The matter is set for Case Management Conference on 4‐12‐21 at 8:30 a.m., Department 5. Defendants were served on 5‐1‐19 with the First Amended Complaint (FAC) by substitute service, at 7407 Diamond Street in Riverside, with mailing the next day. Defendants' defaults were entered on 6‐12‐...

Excerpt: ...rmitted to withdraw or amend an admission only if the court finds the following two things: (1) the admission resulted from mistake, inadvertence or excusable neglect; and (2) no substantial prejudice to the requesting party will result from allowing the admission to be withdrawn or amended. (CCP §2033.300(b).) If relief is granted, the court may impose whatever conditions are just. (CCP §2033.300(c).) Section 2033.300 is designed to eliminate ...

Excerpt: ...osure. (Administrative Record (“AR”) 20‐21.) On 2‐14‐19, the Employment Development Department (“EDD”) notified Petitioner that he was eligible for the Trade Adjustment Assistance (“TAA”) program of the federal Trade Act of 1974, and, as such, may also be eligible for the Trade Readjustment Allowance (“TRA”) benefits. (AR 4‐5.) The notice also stated that his eligibility for TRA benefits could not be determined until his u...

Excerpt: ... §664.6, provides “if parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settle...

Excerpt: ...o follow, the statements in bold print are the information requested on 12‐8‐20 followed by supplemental information that was provided. Describe any adverse consequences actually suffered by the declarant as a result of prosecuting the action. A supplemental declaration has been provided by Plaintiff. It indicates that he has not suffered any actual adverse consequences as a result of prosecuting this action. (Joseph Forrest's Supplemental De...

Excerpt: ...ant, false, or improper matter inserted in any pleading. Additionally, the court may strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436.) Motions to strike can be used to attack the entire pleading, or any part thereof. (CCP § 435; Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 40.) As with demurrers, the grounds for a motion...

Excerpt: ...Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754‐755.) Defendant First American demurs to the tenth cause of action for slander of title and the eleventh cause of action for negligence for failure to state sufficient facts and for uncertainty. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. CCP § 430.10(e). In evaluating a demurrer, the court gives the pleading a reasonable interpreta...

Excerpt: ...Motion to Strike. Statute of Limitations: In its Reply, Kia argues Plaintiffs' fraud claim is barred by the statute of limitations. The Reply states: “As set forth in [Kia's] moving papers, Plaintiffs' fraud‐by‐omission claim is facially time‐barred because Plaintiff purchased the subject vehicle in June of 2012 but did not file suit until October 8, 2020.” (Reply p.5:18‐20.) However, this argument is not set forth in Kia's demurrer. ...

Excerpt: ...against a governmental entity unless a formal claim has been presented to such entity, and has been rejected (or is deemed rejected by the passage of time). (Gov. Code, §§912.4, 945.4; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) A claim must be filed with the governmental entity in substantial compliance with the statutory procedures. (Phillips v. Desert Hosp. Dist. (1989) 49 Cal.3d 699, 706.) A claim for personal injury, as...

Excerpt: ...Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, 39; Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352, 359; Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 [general demurrer may be upheld “only if the complaint fails to state a cause of action under any possible legal theory”].) A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond �...

Excerpt: ...t issue here authorizes the propounding party to compel responses without objection when the responding party has failed to serve a response. (Code Civ. Proc., §§ 2030.290[Interrogatories], 2031.300 [Production].) There is no requirement to meet and confer before bringing a motion to compel when there has been no response to the discovery. (See Code Civ. Proc., § 2030.290 [Interrogatories].) And, unlike a motion to compel further responses to ...

Excerpt: ..., 554) “Granting or denying an injunction is within the sound discretion of the trial court and will be upheld on appeal absent an abuse of discretion.” (Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 458.) Although an OSC directs the party “to show cause, the burden is on moving party to show all elements necessary to support issuance of a preliminary injunction. (O'Connell v. Superior Court (Valenzuela) (2006) 141 Cal....

Excerpt: ...ii).) “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleading or by matters that can be judicially noticed.” (Cloud v. Northrop Gruman Corp. (1998) 67 Cal.App.4th 995, 999.) All facts alleged in are deemed admitted and given a reasonable interpretation. (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal. App. 4th 194, ...

Excerpt: ...cient to invalidate the agreement. Procedural background as to this motion: This matter was originally heard on 9‐24‐20. Prior to the hearing, the court issued its tentative ruling to deny the motion based on Defendants' failure to meet their burden by the preponderance of the evidence that the electronic signature was the Page 4 of 7 “the act of” Plaintiff. At the hearing, the court granted defense counsel's request for a continuance to ...

Excerpt: ...h 556, 569 [only relevant material may be noticed].) Respondent's Request for Judicial Notice is granted pursuant to Evidence Code § 452(b). RLAFCO is a quasi‐legislative body [Sierra Club, supra, 21 Cal.4th at 495; Southcott v. JulianCuyamaca Fire Protection Dist. (2019) 32 Cal.App.5th 1020, 1026], and judicial notice of the Certificate of Termination is appropriate under Evidence Code § 452(b). The Administrative Record (“AR”) consists ...

Excerpt: ...ally, a court may take judicial notice of the fact of a document's recordation, the date it was recorded and executed, the parties to the transaction and the legally operative language as long as there is no genuine dispute regarding the document's authenticity. (Scott v. JP Morgan Chase Bank (2013) 214 Cal. App. 4th 743, 755.) The court may take judicial notice of the legal effect of a recorded document. (Poseidon Development v. Woodland Lane Es...

Excerpt: ... actions or injunctive relief. Plaintiff's Request for Judicial Notice is denied. Defendants' objection to paragraph 3 of the Declaration of Kelsey R. Eberly is sustained. Plaintiff requests judicial notice of an order granting Plaintiff's Motion for Summary Judgment in Caru Society for the Prevention of Cruelty to Animals v. Anthony, FCS049705 in the Superior Court of Solano County. Defendants object. Court records may be judicially noticed purs...

Excerpt: ...to show the settlement is fair, adequate and reasonable. 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1165‐1166. The Court has broad discretion in determining whether the settlement is fair and normally considers the following factors: strength of the plaintiff's case; risk, expense, complexity and likely duration of further litigation; risk of maintaining class action status through trial; amount offere...

Excerpt: ...nder the CLRA, plaintiff must notify the potential defendant of the alleged violations and demand correction. (CC. § 1782.) Plaintiff must plead and prove that proper notice was given. (Lafferty v. Wells Fargo Bank (2013) 213 Cal.App.4th 545, 564‐565.) Defendant has not shown delay or prejudice. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an ab...

Excerpt: ...ell, along with defendants Douglas and Jones, agreed to form Green America with each party receiving 25% of the business, sometime in 2017. SAC, ¶21. This relationship was reflected in the dispensary application (SAC, ¶22) and a business plan that was drafted (SAC, ¶23). On 6‐12‐17, Jones and Douglas submitted a modified application to the City that removed Shively from the application and changed Campbell's role from director to manager. ...

Excerpt: ...al date is continued. In light of the grant of the motion, the trial status conference and trial will be continued. Counsel to appear to discuss a new trial date. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. Under CCP § 473(a), the “court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (See also CCP § 576.) Since judicial policy favors th...

Excerpt: ...t for punitive damages, therefore the motion is granted as to those items. There is no evidence to support that plaintiff filed this lawsuit in bad faith and without reasonable cause. Defendant's request for costs is denied. A motion for judgment on the pleadings has the same function as a general demurrer, but is made after the time to file a demurrer has expired. C.C.P. §438(c). Lack of jurisdiction and the failure to state facts sufficient to...

Excerpt: .... Defendant is to provide the further responses within 30 days of this order. Defendant's evidentiary objections numbers 20, 21, and 22 are overruled. The court declines to rule on the remaining objections as they are immaterial to the present motion. Most of the objections are to statements setting up the factual situation of the case and are not relevant to this motion. The only objections relevant to this motion are numbers 20, 21, 22. Defenda...

Excerpt: ... on the ground that it sufficiently alleges facts to support an actual controversy. Defendant Nexus' Request for Judicial Notice: Is unopposed and granted pursuant to Evidence Code § 452 (d), (g), and (h). Plaintiff's evidentiary objection is sustained. As to the issue of timeliness of the motion: While CCP §438 imposes time limits, they “may be meaningless because a nonstatutory motion for judgment on the pleadings apparently survives withou...

Excerpt: ...7 Cal.App.4th 72, 77.) A special demurrer, other that subsections (a) & (e) of section 430.10, on the other hand, attacks the complaint on other grounds, such as uncertainty, misjoinder, lack of legal capacity or failure to identify the contract as oral, written, or implied by conduct. The defects must appear on the face of the document or judicially noticeable matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If there is any valid cause of a...

Excerpt: ...responding to lemon law complaints. The responding party is required to “make a reasonable and good faith effort to obtain the information from other natural persons or organizations, except when the information is equally available to the propounding party.” (CCP§ 2030.220(c); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406.) As to No.12.1: It requires the responding party to provide the...

Excerpt: ....) Factual background: This is a personal injury action based on premises liability. Plaintiffs Alex Engel and Monica Engel (collectively, “plaintiffs”) allege that plaintiff Alex Engel was an unlicensed contractor hired by defendant to install a zip‐line on the premises of defendants Victor Medina (Medina) and Leticia Valizan (Valizan) (collectively, Medina and Valizan are referenced as “defendants”) located at 2401 Moonridge Circle in...

Excerpt: ...pposition, and no request was made to continue the hearing. Their opposition on the merits constitutes a waiver of objection to the notice issue. (Clark v. Stabond Corp. (1987) 197 Cal.App.3d 50, 59.) On motion of any party, the court may allow discovery proceedings to be completed, or a discovery motion to be heard, after the discovery cut‐off dates, or it may reopen discovery after the trial has been continued to a new date. (CCP § 2024.050(...

Excerpt: ...y move to compel arbitration if another party to the agreement refuses to arbitrate, and the court shall order the parties to arbitrate if it determines that an agreement to arbitrate exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; (b) Grounds exist for the revocation of the agreement; or (c) A party to the arbitration agreement is also a party to a pending court action or special proceedi...

Excerpt: ...s fees and costs to be filed by Releasors' counsel. Plaintiffs shall be considered the prevailing party for purposes of said fee motion.” (Motion, Ex 6, ¶ 3.) Under the settlement, Plaintiff is deemed to be the prevailing party for purposes of seeking an award of attorney fees in accordance with Civ. Code § 1794(d). The California Supreme Court has indicated that attorney fee awards “should be fully compensatory.” (Ketchum v. Moses (2001)...

Excerpt: ... demurrer to the original complaint. The fourth cause of action is not challenged by their successful challenge to the original complaint, defendants seek to hold plaintiffs. As to the First Cause of Action for private and public nuisance under the common law and under Civil Code section 798.87: A public nuisance is defined as a nuisance which affects a considerable number of people, while any other nuisance is a private nuisance. (Civil Code (CC...

Excerpt: ...ion, pro bono attorney panel, or other legal entity; or to seek private legal counsel to obtain legal representation for this lawsuit. Further, that Plaintiff should contact the Litigation Coordinator and or Ombudsman at the Wasco State Prison for information regarding lawyer referral services and/or information regarding affecting service of his legal documents. Plaintiff has not provided adequate information to establish that he is being denied...

Excerpt: ...e undisputed facts indicate that defendant the dog did not have dangerous propensities and that even if it did, defendant neither knew nor should have known of such dangerous propensities. (UMF Nos. 31, 33‐37.) A defendant moving for summary judgment meets its initial burden on summary judgment by the following: 1. Presenting affirmative, admissible evidence negating an essential element of plaintiff's causes; 2. Showing a complete defense with...

Excerpt: .... (See Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802.) A public entity is liable if the property was (1) in a dangerous condition at the time of the injury; (2) the dangerous condition caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred; and (4) a negligent, wrongful or omission of a public entity employee created the dangerous condition or (5) the public enti...

Excerpt: ...ceipt for reservation of the motion. A party may move for an order to compel a further response if it deems the responding party's objections are without merit or too general. (CCP §2031.310.) “Absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact‐specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal. App.4th 92, 98.) Requ...

Excerpt: ...ng the venue for arbitration in Los Angeles County. For this reason, plaintiffs filed a motion to compel arbitration on 11‐18‐19. That motion was denied on 12‐16‐19 because the evidence did not show that Defendants were refusing to arbitrate but only resisted having venue in Los Angeles County. The 12‐16‐19 order directed the parties to adhere to the arbitration rules of the Alternative Dispute Resolution Services, Inc. (“ADR”) fo...

Excerpt: ...medical malpractice. Although a tentative was posted, a final ruling was not made and hearing was continued to 4‐14‐20. The hearings were further continued but ultimately vacated due to the court's closure due to the COVID pandemic and issuance of General Order 2020‐15, dated 4‐22‐ 20. Plaintiff filed a motion to amend the Complaint which was granted on 8‐17‐20. The operative pleading is the First Amended Complaint (FAC). The FAC pe...

Excerpt: .... Gilbert (2011) 196 Cal. App. 4th 1495; Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967.) Discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Rutledge v. Hewlett‐Packard Co. (2015) 238 Cal. App. 1164, 1193; Young v. Rosenthal (1989) 212 Cal. App. 3d 96, 118.) The Court may impose a monetary sanction ...

Excerpt: ...s indemnity and equitable indemnity. (Prince v. Pacific Gas & Elec. Co. (2009) 45 Cal4th 1151, 1157 (Prince).) Where a complaint seeks recovery for the same right under several different legal theories, there is really only a single “primary right” and hence only one cause of action. (Barrett v. Sup. Ct. (Paul Hubbs Const. Co.) (1990) 222 Cal.App.3d 1176, 1182.) However, the presence of separate counts stating duplicative causes of action are...

Excerpt: ... issue of the good faith of a settlement . . . .” The court “does not adjudicate the issues of liability or damages”, but determines whether the settlement reflects a reasonable range of potential liability. (Pruyn v. Agricultural Ins. Co. (1995) 36 Cal.App.4th 500, 527.) In Tech‐Bilt v. Woodward‐Clyde (1985) 38 Cal.3d 488, 499, the Court stated that pursuant to CCP §877.6, several factors are to be considered in determining whether a ...

Excerpt: ...h Defendant showed Plaintiff was aware Cavco may be a joint employer, it failed to show Plaintiff was aware of Cavco's culpability and liability in this action. Plaintiff's evidentiary objections are overruled as to nos. 1‐ 3, 5, 6, 8, 9, 11‐13 and sustained as to no. 4, 7, 10. The court declines to rule on Defendant's evidentiary objections. Because Defendant failed to meet its initial burden, the court did not consider Plaintiff's evidence....

Excerpt: ... ground that both “declarations, including the exhibits thereto, are new evidence.” Without specificity as to the portions of the Block declaration, the court declines to rule. The latter declaration contains Page 3 of 6 statements described in the former declaration. With regard to the Bailey declaration the objection is sustained. An admission cannot be amended or withdrawn except by leave of court after noticed motion. (CCP §2033.300(a).)...

Excerpt: ...urt declines to rule on Defendant's evidentiary objections. Because Defendant failed to meet its initial burden, the court did not consider Plaintiff's evidence. Page 4 of 6 The court declines to rule on Plaintiff's request for judicial notice. Because Defendant failed to meet its initial burden, the court did not consider Plaintiff's evidence. The elements of a claim for wrongful discharge in violation of public policy include 1) an employer ‐...

Excerpt: ...tive and does not comply with the safe harbor provisions of CCP § 128.7(c). If construed as a motion for reconsideration, the motion likewise fails, as Plaintiff fails to present any new or different facts, circumstances or law to support reconsideration. Plaintiff purports to being the present motion pursuant to Rules of Professional Conduct, the Rules of Judicial Ethics, 18 U.S.C. § 1001 [federal statute imposing criminal liability for making...

Excerpt: ...s speculative/lacks foundation. Defendant's objections to Weinberg declaration, court declines to rule on 11, 12, and 13. Plaintiff's objections to Coon declaration are overruled as to no. 1, 2, and 3 and the court declines to rule on no. 4. “The purpose of the summary judgment procedure is not to try the issues but merely to discover … whether the parties possess evidence which demands the analysis of trial.” (Colvin v. City of Gardena (19...

Excerpt: ... Ordinarily, an employee's rights against his or her employer or any fellow employee for on‐the‐job injuries lie solely under the worker's compensation law, and the worker's compensation is the injured employee's “exclusive remedy.” (Lab. Code, §§3600, 3601, 3602(a).) In such actions involving a worker injured on the job, the superior court and the Workers' Compensation Appeals Board (WCAB) do not have concurrent jurisdiction, and one o...

Excerpt: ...rer is filed, or after demurrer and before trial. (Gross v. Department of Transportation (1986) 180 Cal.App.3d 1102, 1105.) Otherwise, amendment of any pleading requires prior order of court. CCP §473 provides that following a noticed motion, the court may allow an amendment to any pleading. CCP §473 and §576, and case law establish a “policy of great liberality in permitting amendments at any stage of the proceeding.” (Rocky Mountain Expo...

Excerpt: ... conduct, or that it was invalid. At most, she alleges an underlying action to which she was not a party to, and argues in opposition, that she was an indispensable party. From the allegations in the underlying action, RIC 1410237, Plaintiff Suntrust Mortgage, Inc. is the owner of property located at 1718 Hayden Ave. in Corona. Suntrust asserted that the property was formerly owned by Mohammad Rahmani Nejad (“Nejad”). Suntrust loaned Nejad mo...

Excerpt: ...A motion for summary judgment shall be granted when no triable issue of material fact exists or the issue is one of law and the action can be terminated in favor of the moving party without the necessity of trial. (CCP § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant may alternatively move for summary adjudication as to a cause of action, but a motion for summary adjudication can only be granted if it completely...

Excerpt: ...herwise denied. Exhibit 2 is not relevant to resolution of the issues raised in the demurrer. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.5th 556, 569 [only relevant material may be noticed].) Each of Ameristar's Causes of Action Is untimely under the contractual limitations set forth in the purchase agreement. Generally, a statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. (Brisb...

Excerpt: ...eborah Cesario and River Springs are nearly identical motions. They assert the same arguments set forth by Thurmond and add no new arguments. Plaintiffs have filed nearly identical oppositions to these motions. Therefore, this analysis applies to all three motions. C.C.P. §425.16 provides a summary procedure by which a defendant can dispose of a lawsuit brought primarily to chill the valid exercise of the constitutional rights of free speech and...

Excerpt: ... whether the building was uninhabitable and/or posed an immediate danger to the apartment occupants are factual questions that cannot be resolved at the pleading stage. For pleading purposes, the City states sufficient facts to survive demurrer. As to judicial review under CCP § 1094.5: Gov. Code § 53069.4 provides that, notwithstanding CCP § 1094.5 and § 1094.6, within 20 days after service of a final administrative order imposing administra...

Excerpt: ...ably should have known that the subject vehicle was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner; (3) that defendant became aware of the defect after the subject vehicle was sold; (4) that defendant failed to recall or warn of the danger of the subject vehicle; (5) that a reasonable seller under the same or similar circumstances would have recalled the vehicle; (6) that plaintiff was harmed; and (7) that de...

Excerpt: ...t, within two years of the judgment. Section 473(d), however, has no time limitation, but its requirements are stricter. Here, the requirements are met. “Extrinsic fraud occurs when a party is deprived of the opportunity to present a claim or defense to the court as a result of being kept in ignorance or in some other manner being fraudulently prevented by the opposing party from fully participating in the proceeding.” (County of San Diego v....

Excerpt: ...alif., Inc. (2010) 191 Cal.App.4th 53, 63.) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights, while malice means conduct which is intended to cause injury or despicable conduct which is carried out with a willful and conscious disregard of the rights or safety of others.” (Civil Code (CC) (§ 3294(c).) Malice means conduct that is intended by the defendant to ...

Excerpt: ...and pursuant to Evidence Code § 452(d) as to Nos. 7 and 8. CCP §425.16 provides that a defendant may move to strike a cause of action brought primarily to chill the valid exercise of the constitutional rights of free speech and right to petition, at the pleading stage to avoid the cost and delay of lengthy litigation. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278.) In applying the anti ‐SLAPP statute, the Court engages in...

Excerpt: ...justice be served by dissolving this injunction. For purposes of this ruling Majestic Asset Management LLC, Wintech Development, Jen Huang and Hai Huang are referred to as “moving parties” or “Majestic” and The Colony at California Oaks Homeowners Association is referred to as the “HOA”. Request for Judicial Notice: Moving parties: Granted as to nos. 1 and 4 pursuant to Evidence Code sections 452 and 453. Court declines to take judici...

Excerpt: ...amages apply. (Arista v. County of Riverside (2018) 29 Cal.5th 1051, 1062‐1063.) Although there is no general duty to avoid negligently causing emotional distress to others, such a duty is recognized with respect to two categories of person: 1) direct victim plaintiffs, i.e., persons who suffer serious emotional distress as the result of defendant's breach of a duty of care owed directly to them; and 2) bystander plaintiffs, i.e., persons who s...

Excerpt: ... and the parties could not reach agreement to avoid the instant pleading motion (Antonyan Decl. ¶ 5, Exhibit 4). This demurrer and the motion to strike Page 5 of 7 were not filed until 7‐27‐20, the same day as the Exhibit 4 email from plaintiff's counsel to defendant's counsel describing plaintiff's decision of the meet and confer issues. The issues on the demurrer and motion to strike are fully briefed. In light of the circumstances on this...

Excerpt: ...20, 8:30 a.m., Department 5. As to the third cause of action: The central issue is that that plaintiff has not sufficiently alleged publication, or a false statement of fact, and asserts the common interest privilege. As Witkin points out, “[i]t is sometimes said to be a requirement, and it certainly is the common practice, to plead the exact words or the picture or other defamatory matter. The chief reason appears to be that the court must det...

Excerpt: ...ught a cause of action for traditional writ of mandate. She alleges that City has violated the law by depriving her of the opportunity for a hearing to revoke the requirement of a Wild/Vicious Animal Permit (WVAP). Petitioner alleges violations of Norco Municipal Code (NMC) sections 8.05.070 [permit procedure] and 8.05.100 [permit revocation.] (First Amended Petition (FAP) ¶74.) NMC section 8.05.100(b) provides, in part: “The animal control of...

Excerpt: ...mote the determination of actions on their merits.” (Evan Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) The purpose of CCP §1008 is for reconsideration of a prior ruling based on new or different facts, circumstances or law. This seems to be an improper motion for reconsideration as Plaintiff is asking the court to now consider legal authorities not previously provided. The legislative intent of...

Excerpt: ...fiduciary duty exists is generally a question of law; whether the defendant breached that duty towards the plaintiff is a question of fact. (Marzec v. Public Employees' Retirement System (2015) 236 Cal. App. 4th 889, 915.) The SAC now alleges that Qilin, Qiliang, and Golden Taste breached the fiduciary duty they owed to Plaintiff as partners of Golden Globe. (SAC ¶52.) It also incorporates the allegation that when Plaintiff acquired his 51% of G...

Excerpt: ... But that policy “‘“does not extend to those who are not parties to an arbitration agreement, and a party cannot be compelled to arbitrate a dispute that he has not agreed to resolve by arbitration.”” (Westra v. Marcus & Millichap Real Estate Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 763]…) .” Espejo v. Southern California Permanente Medical Group (2016) 246 Cal. App. 4th 1047, 1057. Where the employee contests the ...