Excerpt: ...acts exists as to any of his causes of action, he failed to meet that burden by presenting legally admissible controverting evidence. “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 that cause of action.” (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945.) Summary judgment lies...

Excerpt: ...om seeking exemplary damages or injunctive relief as remedies. A party may object by demurrer to a complaint on grounds that the pleading does not state facts sufficient to constitute a cause of action. (Cal. Code Civ. Pro. §430.10(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...

Excerpt: ...alth care practitioners who will be asked to express an opinion during the deposition, when such opinion includes opinion or factual testimony regarding the past or present diagnosis or prognosis made by the witness, or the reasons for a particular treatment decision made by the witness. The witness would not be considered to be giving an expert opinion if the testimony requires the witness only to read words and symbols contained in a relevant m...

Excerpt: ... order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., §473(b).) Section 473, subdivision (b), consists of two distinct parts: “a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25‐26.) Under the discretionary relief provision, “on a s...

Excerpt: ...tration 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 incorporated b...

Excerpt: ... and arguments. A general demurrer under Code of Civil Procedure section 430.10(a)(e) attacks the complaint for failing to state sufficient facts to state a cause of action or lack of subject matter jurisdiction. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.) The defects must appear on the face of the document or judicially noticeable matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The “face of the complaint” re...

Excerpt: ...shed that any triable issues exist as to the Medical Malpractice or Loss of Consortium causes of action. The Motion for Summary Judgment is granted. Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Cal Code Civ Proc § 437c(a).) “A defendant's motion for summary judgment should be granted if no triable issue exists as to ...

Excerpt: ...(negligent misrepresentation and fraud), the Page 4 of 6 Demurrer is sustained with leave to amend. While plaintiff has not alleged that the statement that the policy had been issued prior to the close of escrow was false at the time it was made, plaintiff may be able to allege that it was false at the time or may be able to allege other false statements or omissions. Plaintiff is given 20 days leave to amend the Complaint. A demurrer is a pleadi...

Excerpt: ...longer has an aggrieved employee as a plaintiff, the claim is dismissed. Motion for reconsideration is moot. A. Motion for Reconsideration Defendant moves for reconsideration of its 3/14/22 order denying arbitration as to PAGA, contending that under Viking River Cruises, that claim is subject to arbitration, and the court should dismiss PAGA. It argues it did not waive arbitration as to PAGA, and the matter should be stayed. B. Motion to Substitu...

Excerpt: ... any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” Here, plaintiff prevailed after a jury trial and is therefore “entitled as a matter of right to recover costs in any action or proceeding.” (CCP, § 1032, subd. (b).) The question is whether plaintiff is entitled to all the costs sought. A party dissatisfied with the costs claimed may move for an order striking or taxing the costs...

Excerpt: ...the NIED claim, the demurrer is sustained as to the third cause of action without leave to amend. (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.) Generally speaking, there is no independent tort of negligent infliction of emotional distress; the tort is negligence, a cause of action in which the duty to the plaintiff is an essential element. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984; see also Barker v...

Excerpt: ... the supervision of the playground at the time of the attack on plaintiff or that he could have prevented the attack. 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 admissible evidence on each element of the defense; 3. Showing an absence of evidence from pla...

Excerpt: ...in this case on February 23, 2022, irrespective of whether the funds are in Plaintiff's possession or held in a trust account for his benefit in the hands of a third party, until such time Plaintiff's appeal from the court's May 27, 2022 order directing parties to pay partition referee's fees and costs, is resolved by way of disposition, dismissal or withdrawal. As to the remaining orders requested by the partition referee, they are denied. In an...

Excerpt: ...) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest. (CRC §2.550(d).) The party seeking to seal documents has the burden to present sufficient facts to justify sealing the court records. H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879. A general assertion that docu...

Excerpt: ...t 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.1 (CCP § 2031.310.) The motion must be served within 45 days after service of a verified response, and must be accompanied by a declaration showing a “reasonable and good faith attempt” to resolve the issues informa...

Excerpt: ...Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases; (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts." (CCP § 2018.020.) Section 2018.030 provides “(a) A writing that reflects an attorney's impressions, conclusions, opin...

Excerpt: ...has a very specific meet and confer requirement; as relevant here, subdivision (b)(2) of that statute says: “The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about ...

Excerpt: ...requests for admissions admitted is granted. Sanctions is imposed against Plaintiff personally in the amount of $1,400. Pursuant to Cal. Code Civ. Proc. §2031.010, a party may demand that any other party produce and inspect a document that is in the possession of another party. Likewise, any party may obtain discovery by propounding to any other party to the action written interrogatories to be answered under oath. (Cal Code Civ Proc § 2030.010...

Excerpt: ...illas is sustained. Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (CCP § 437c(c).) A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (CCP § 437c(p)(2); Cucuzza v. City of...

Excerpt: ... 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 the production of said matters and whether the items sought are material and relevant to the case.” (M.C.A. v. State of California, (1982) 128 Cal.App.3d 225, 232‐33.) A right of privacy exists as to a part...

Excerpt: ...ically describing individual items or reasonably particularizing categories of documents. (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 req...

Excerpt: ...uest for judicial notice as to exhibits 41‐42 is granted, and denied as to the rest. Court declines to rule on Kalkwarf's evidentiary objection as immaterial. As a general rule, when a cause of action arises out of the furtherance of a defendant's right of petition or free speech in connection with a public issue, it is subject to a special motion to strike. (CCP § 425.16(b)(1).) An “act in furtherance of a person's right of petition or free...

Excerpt: ..., 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. (Crowley v. Katlema...

Excerpt: ...l. Code Civ. Pro. §473(b), the court may relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Relief from default is granted liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. (Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 6...

Excerpt: ...uced amount of $1,735.00. REQUESTS FOR ADMISSION ADMITTED CCP § 2033.290(e) provides that if a party fails to obey a court order compelling further responses to RFAs, “the court may order that the matters involved in the requests be deemed admitted.” The court may also impose monetary sanctions under CCP § 2023.010. (CCP § 2033.290(e).) The subject RFAs were propounded on Plaintiff on 3/10/22. (Dec.Chuah ¶ 2, Ex. “A”.) Plaintiff obtai...