Excerpt: ...) A party's motion for reconsideration must be based on new or different facts or circumstances of law. (Ibid.) A motion for reconsideration must be accompanied by an affidavit stating what application was made before, what judge heard the matter, what orders were made, and what new or different facts, circumstances, or law are claimed to be shown. (Ibid.) When a party seeks reconsideration, he or she must show a “satisfactory explanation for f...

Excerpt: ... all eleven requests. As to sanctions, Plaintiff's request is granted in reasonable reduced amount of $800. Evidentiary Objections Plaintiff objects to statements made in the declaration of Cameron Major based on improper legal argument, lack of foundation, and conc lusory; as to nos. 1-4, it is overruled; and nos. 5 -7, it is sustained. Service of a proper deposition notice obligates a party or party -affiliated witness to attend and testify, an...

Excerpt: ...neral demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (C.C.P. § 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 co ntext. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which ma...

Excerpt: ...employment action ; and (4) the adverse employment action occurred due to the plaintiff's protected class. Reeves v. MV Transportation, Inc. (2010) 136 Cal.App.4th 666, 673. Based on the ruling on the Motion to Deem Matters Admitted, Plaintiff has admitted that he was not d iscriminated against. (Requests for Admission Nos. 4 -6, 8.) As such, this claim fails. The second cause of action is for retaliation. The necessary elements of a retaliation ...

Excerpt: ...oof of servic e pursuant to Cal. R. Ct. 3.110 and failure to timely file and serve an updated and complete case management statement. The OSC was continued several times, until 2/9/22, the court dismissed the action without prejudice for failing to submit a declaration in response to the OSC. The court entered the dismissal order on 2/22/22. On 8/19/22, Plaintiffs filed a motion to set aside the dismissal under CCP §473(b) based on counsel's e...

Excerpt: ...eeding, or any other official proceeding authorized by law” are protected by the anti - SLAPP statute. “The anti -SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedur e for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (emphasis in the original).) Thus, cour...

Excerpt: ...expended, determine d by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Ibid.) The parties agree Plaintiff is the prevailing party. At issue in this motion is the reasonableness of Plaintiff 's request. The matter of reasonableness of a party's attorney's fees is within the sound discretion of the trial judge. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d ...

Excerpt: ...of action. (Cal. Code Civ. Pro. §430.10(c) and (e).) For the purposes of a demurrer, the allegations in the complaint must be accepted as true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, a demurrer does not admit conten tions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) A plaintiff must plead only ultimate rather than evidentiary facts. (Doe v. Ci...

Excerpt: ...its counsel, represents in its opposition that it has served supplemental responses to Plaintiff as to the at -issue RFPs. Plaintiff argues, however, that Plaintiff has not received these supplemental responses, which FCA has failed to include with its supporting decla ration. Therefore, the motion is granted to the extent FCA is compelled to re -serve the verified supplemental responses to ensure receipt by Plaintiff. Nonetheless, sanctions is ...

Excerpt: ... attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. (CCP §§ 2025.450(h); 2030.290(c); 2031.300(c).) “To the extent authorized by the chapter governing any particular discovery method . . . the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in condu...

Excerpt: ...dant Sarnowski, only. The remainder of the demurrer is overruled as to the fraud cause of action. Motion to strike is moot. REQUEST FOR JUDICIAL NOTICE Cross -Defendants request that the Court take judicial notice of 17 documents. These documents include various court records from the underlying action (Exs. 1 -8, 12- 14, and 17); the recorded quit claim deeds (Exs. 9 -11); and discovery responses in this action (Exs. 15- 16.). The court grants t...

Excerpt: ...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. Regents of University of California (1990) 51 Cal.3d 120, 125.) 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....

Excerpt: ...enied. Defen dant shall provide further responses and documents within 30 days. Plaintiff's request for sanctions is granted in the reasonable reduced amount of $860 (2 x $400/hr. plus filing fee), to be paid within 30 days. EVIDENTIARY OBJECTIONS Plaintiff objects to statements made in the declaration of Cameron Major based on improper legal argument, lack of foundation, lack of personal knowledge, misstatement of evidence, etc. Plaintiff's obj...

Excerpt: ...ay bring a motion to compel further responses to requests for production of documents, if it finds the responses evasive, incomplete, or an objection to a request is made without merit or is too general. CCP § 2031.310(a). A party bringing a motion to compel further respons es to requests for production of documents must engage in a good faith meet and confer attempt before bringing a motion. CCP § 2031.310(b)(1). A meet and confer requires a ...

Excerpt: ...s (l992) 4 Cal.App. 4th 238, 244.) “Allowable costs shall be reasonable in amount.” (CCP §1033.5(c)(3).) The court may allow or deny costs not mentioned in CCP § 1033.5. (CCP §1033.5(c)(4).) A “properly verified memorandum of costs is considered prima facie evidence that the costs listed in the memorandum were necessarily incurred.” (Bach v. Cnty. of Butte (1989) 215 Cal.App.3d 294, 308; see CRC Rule 3.1700(a)(1) [“The memorandum of...

Excerpt: ... objections are without merit or too general. In a motion to compel further responses as to document requests, the moving party must state specific facts demonstrating good cause justifying the discovery sought. (CCP §2031.310(b)(1).) To establish good cause, the moving party must demonstrate relevance and specific facts justifying discovery. (Kirkland v. Superior Court (Guess? Inc.) (2002) 95 Cal.App.4th 92, 98.) The burden to show good cause...

Excerpt: ...��led must file a cross-complaint before or at the same time as the answer to the complaint or cross -complaint filed against him. (Code Civ. Proc., §428.50(a).) Thereafter, it may only be done by permission of the court. (Code Civ Proc., §428.50(c).) A cross- complaint is either permissive or compulsory. (See K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 498.) Code of Civil Procedure section 428.10, subdivision (a) provide...

Excerpt: ...xt. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) 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. ...

Excerpt: ...most qualified t o testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Id.) A request for documents may be made in connection with the PMK deposition, and when such a request for documents is made, “t he witness or someone in authority is expected to make an inquiry of everyone who might be holding Page 3 of 5 responsive documents or everyone who knows where such documen...

Excerpt: ...nder the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2; 9 USC § 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 ...

Excerpt: ...n the amou nt of $1,000, payable within 30 days. In general, a notice of deposition is sufficient to compel a party to appear at deposition and to produce documents. (CCP § 2025.280(a).) Pursuant to CCP § 2025.450(a), where a party fails to appear, without a valid ob jection, the party giving notice of the deposition may move for an order compelling attendance, testimony, and the production of documents. The motion must show good cause, and be ...

Excerpt: ...of Action in the FAC is sustained with leave to amend within 20 days. The motion to strike is granted as to the prayer for punitive damages for failure to comply with C.C.P., § 425.13 with leave to amend within 20 days. A party may object by demurrer to a complaint on g rounds that the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Pro. §430.10(e).) For the purposes of a demurrer, the allegations in the com...

Excerpt: ...CCP § 430.50 p rovides that a demurrer to an answer may be taken in whole or to one or more of the defenses. 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. Reg ents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred fro...

Excerpt: ...larations showing why the “interests of justice” will be served by granting the preference request. (CCP §36(e).) The decision to grant or deny a preferential trial setting under CCP §36(e) “rests at all times in the sound discretion of the trial court in light of the tot ality of the circumstances.” (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.) In general, “judges are reluctant to grant preferential trial setting. With t...

Excerpt: ...tely at the commencement of the action, without waiting for trial. (See CCP § 512.010 et seq.; Am. Mach. & Foundy Co. v. Pitchess (1968) 262 Cal.App.2d 490, 493.) To obtain a writ of possession, the plaintiff must file an application under oath and must include all of the following: (1) the basis of the plaintiff's claim that it is entitled to possession; (2) a showing that the property is wrongfully detained and of the manner in which defendan...

Excerpt: ...e the January 8 , 2024 Notice of Motion is untimely. However, the order of dismissal was entered on December 8, 2023. Also, there is technically no “judgment” of dismissal. So, this motion is seeking relief from a judgment that does not exist. (See below). Nonetheless, a motion to vacate under CCP § 663 is the wrong procedural mechanism for Plaintiff to seek redress. A ‘judgment' is defined as “the final determination of the rights of ...

Excerpt: ...their conte xt. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) 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 wh ich judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) However, a demurrer does not admit Page 2 of 5 contentions, deductions or co...

Excerpt: ...796 n.4.) The elements of NIED are: (1) legal duty to use due care; (2) breach of such duty: (3) damages and injury; (4) cause of the resulting damage or injury. (Huggins v. Longs Drug Store (1993) 6 Cal. 4th 124, 129.) Negligent infliction of emotional distress is divided into two claims, direct victim claims or bystander claims. (Smith v. Pust (1993) 19 Cal.App.4th 263, 273.) “[A] plaintiff may recover damages for emotional distress caused b...

Excerpt: ... (Cal. Code Civ. Pro. §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 Court (1997) 53 Cal. App. 4th 216, 222.) The responding party must respond to each request by either a statement that the party will comply, a representation that the party is...

Excerpt: ... of the Second Amended Cross- Complaint is sustained with 20 days leave to amend. Page 6 of 11 Plaintiff/Cross -Defendant Robert Marquez's Demurrer as to the seventh (breach of fiduciary duty) and eighth (unfair business practices) causes of action of the Second Amended Cr oss-Complaint is overruled. Plaintiff/Cross - Defendant's Unopposed Motion to Strike is granted. A general demurrer lies where the pleading does not state facts sufficient to ...

Excerpt: ...owing: (1) The org anization of the limited liability company, its internal affairs, and the authority of its members and managers.” This recognizes the internal affairs doctrine, which was originally created in response to corporations. As explained by one court, ‘The int ernal affairs doctrine is a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation's internal affairs —m...

Excerpt: ...ble within 30 d ays. Where a response to a request for documents has been made, which is unsatisfactory, the demanding party may move to compel further responses on following grounds: (1) “A statement of compliance with the demand is incomplete”; (2) “A representation of inability to comply is inadequate, incomplete, or evasive”; or (3) “An objection in response is without merit or too general.” (C.C.P. §2031.310(a).) The moving part...

Excerpt: ...emurrer to the 3rd cause of action for fraud is sustained as to CrossDefendant Sarnowski, only, with leave to amend within 20 days. As to the remainder of the demurrer to the fraud cause of action, it is overruled. Responsive Pleadings must be filed 30 days from this or der. Motion to Strike is denied as moot. REQUEST FOR JUDICIAL NOTICE Cross -Defendants request that the Court take judicial notice of 17 documents. These documents include variou...

Excerpt: ...e of motion must state in the opening paragraph the nature of the of the order being and the grounds for issuance of the order. “A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief… As a general rule, the trial court may consider only the grounds stated in the notice of motion.” (Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1125.) ...

Excerpt: ...ertain specifie d terms and conditions. (CCP § 2025.420 (b)(1), (9), (10).) The motion must be accompanied by a meet and confer declaration. (CCP § 2025.420(a).) A party seeking a protective order must show good cause for issuance of the order by a preponderance of the ev idence. (Stadish v. Sup. Ct. (Southern Calif. Gas Co.) (1999)71 Cal.App.4th 1130, 1144.) The issue in the present case involves the priority of expert discovery. While there ...

Excerpt: ...e substantial danger of inconsistent adjudications (i.e., different results because tried before different juries, or a judge and jury, etc.). [See Todd -Stenberg v. Dalkon Shield Claimants Trust (1996) 48 CA4th 976, 978- 979, 56 CR2d 16, 17-18] By statute, “(w)hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all of the matters in issue in the actions; it may or...

Excerpt: ...te from the court compelling the city to initiate and pay for an independent audit. (Petition, ¶24.) In the second cause of action petitioner seeks a writ compelling annual public reports of the management, accounting, and expenditures of development impact fees. (Petition, ¶29.). The third cause of action seeks a writ compelling the City to make five -year findings under section 66001(d). (Petition, ¶34.). The fourth cause of action is for ...

Excerpt: ...he action, without waiting for trial. (See CCP § 512.010 et seq.; Am. Mach. & Foundy Co. v. Pitchess (1968) 262 Cal.App.2d 490, 493.) To obtain a writ of possession, the plaintiff must file an application under oath and must include all of the following: (1) the basis of the plaintiff's claim that it is entitled to possession; (2) a showing that the property is wrongfully detained and of the manner in which defendant came into possession; (3) a...

Excerpt: ...sentation of i nability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.” (CCP §2031.310(a).) CCP §2031.240(b)(1) provides that if a responding party objects to a demand that they “shall” “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being m...

Excerpt: ...ave to Amen d within 20 days. While Defendant demurs to the 2nd cause of action, it is not asserted against her —only Corona Regional. The only cause of action asserted against her is the constructive fraud claim. “Constructive fraud ‘arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.' Actual reliance and causation of injury must be s...

Excerpt: ...nd meet and confe r correspondence. Judicial notice of the SOI is appropriate under Evid. Code § 452(c). (Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591, 602, n. 6; Pedus Building Services, Inc. v. Allen (2002) 96 Cal.App.4th 152, 156, n. 2.) Judicial notice of court records, including the proof of service, is proper under Evid. Code § 452(d). However, the invoices and letter are reasonably subject to dispute and not appropriate for judi...

Excerpt: ...ondence. Judicia l notice of the SOI is appropriate under Evid. Code § 452(c). (Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591, 602, n. 6; Pedus Building Services, Inc. v. Allen (2002) 96 Cal.App.4th 152, 156, n. 2.) Judicial notice of court records, including the p roof of service, is proper under Evid. Code § 452(d). However, the invoices and letter are reasonably subject to dispute and not appropriate for judicial notice. Accordingly,...

Excerpt: ...o. § 128.7( a).) An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. (Ibid.) Contrary to Noyes' contention, the Notice of Motion on file with the Court is signed by K elly. Likewise, the Memorandum of Points and Authorities and Declaration are signed under penalty of perjury. Accordingly, it appears that Kelly complied with the requirements of S...

Excerpt: ...d by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” The parties agree Plaintiff is the prevailing party. Page 8 of 10 At issue in this motion is the reasonableness of Plaintiff's request. The matter of reasonableness of a party's attorney's fees is within the sound discretion of the trial judge. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 10...

Excerpt: ...se after tria l against the PC and now seeks to amend the judgment to add Gurvits individually. CCP § 187 “grants to every court the power to use all means to carry its jurisdiction into effect, even if those processes are not set out in the code.” (McClellan v. Northri dge Park Townhome Owners Ass'n (2001) 89 Cal.App.4th 746, 752.) This statute has been interpreted to give a trial court the jurisdiction to modify a judgment to add additiona...

Excerpt: ...54 Cal.App.4th 918, 924. “The trial court has jurisdiction to award them, regardless of the lack of specific instructions in the opinion or the remittitur.” Id. When authorized by statute, contract, or law, reasonable attorney's fees are allowed as costs. CCP § 1033.5(a)(10) (A), (B), and (C). Under Civil Code §1717(a), “[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are inc...

Excerpt: ...ing lack of, or improper service of, the summons. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendan t who was not served with a summons in the manner prescribed by statute is void.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444 (internal citations omitted...

Excerpt: ...or that there i s a complete defense to that cause of action. (CCP §437c(p)(2).) Once the defendant (or cross- defendant) has met that burden, it shifts to plaintiff (or crosscomplainant) to show that a triable issue of one or more material facts exists as to that cause o f action or defense thereto. (CCP §437c(p)(2).) The moving party has met its initial burden regardless of whether the opposing party files counter -declarations. (Aguilar v. ...

Excerpt: ...whole and a ll of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, an d 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,...

Excerpt: ..., modifying i t, or directing compliance with it upon those terms and conditions as the court may declare, including protective orders.” (Code Civ. Proc., §1987.1(a).) Also, the court may make any other order as may be appropriate to protect the parties, the witness, or the employee from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., §1987.1(a).) Either the ...