Excerpt: ....App.3d 591, 602, n. 6; Pedus Building Services, Inc. v. Allen (2002) 96 Cal.App.4th 152, 156, n. 2.) Likewise, FATCO's request that the court take judicial notice of pages from the Department of Insurance's official website is granted. (Evid. Code § 452(c); Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605, 624, n. 2; Taylor v. Department of Industrial Relations, etc. (2016) 4 Cal.App.5th 801, 806, n. 3.) THE DEMURRER...

Excerpt: ...en 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 1ST CAUSE OF ACTION FOR FRAUD Pham argues that the FAC fails to sufficiently allege reliance and damages. In Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 638, the Court stated that the elements of fraud, which give rise to the tort acti...

Excerpt: ...nore the title and treat the motion based on its substance. Here, the caption states that the motion is brought under section 473(b) and the substance of the motion relies on section 473(b) for relief, and not Code of Civil Procedure section 1008, related to reconsiderations. The court will treat the present motion as a motion to set aside dismissal under Code of Civil Procedure section 473(b). Code of Civil Procedure section 473(b) provides two ...

Excerpt: ...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. (Daar v. Yellow Cab Company (1967)...

Excerpt: ...ge of the summons and complaint in this matter, the proofs of service in the present action and the San Bernardino Action, the unconfirmed order granting plaintiff's motion to quash in the San Bernardino Action and a copy of the certificate of assignment in this action. The request is granted. COMPULSORY CROSS‐COMPLAINTS There are two types of cross‐complaints ‐ compulsory and permissive. A compulsory crosscomplaint is one that must be file...

Excerpt: ...e statute specifically provides otherwise. The statute need not expressly authorize attorney fees on appeal. (Morcos v. Board of Retirement County of Los Angeles Employees' Retirement Ass'n (1990) 51 Cal.3d 924, 927.) In this case, this Court already determined Plaintiffs to be the prevailing party in this action. Plaintiffs are entitled to reasonable attorney fees incurred on the appeal. The question is whether the fees requested are excessive. ...

Excerpt: ... § 3295(c), it states: No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) unless the court enters an order permitting such discovery pursuant to this subdivision. However, the plaintiff may subpoena documents or witnesses to be available at the trial for the purposes of establishing the profits or financial condition referred to in subdivision (a), and t...

Excerpt: .... MEET & CONFER Importantly, before filing a motion to compel a further response to RFPs, the moving party must engage in a reasonable and good faith attempt to resolve informally each issue set forth in the motion and must file an appropriate declaration with the motion. (CCP §§ 2016.040, 2031.310(b)(2).) The purpose of the meet and confer requirement is to force lawyers to reexamine their positions, and to narrow their discovery disputes to t...

Excerpt: ...use there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint. [citation.] Thus, once an amended complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint. [citation.] As our colleagues in Division Two have explained, “a court granting plaintiff leave to amend a cause of action should not at the same time att...

Excerpt: ..., determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” “A trial court may not rubberstamp a request for attorney fees, but must determine the number of hours reasonably expended.” (Morris v. Hyundai Motor America (2019) 41 Cal. App. 5h 24, 38.) The court must determine whether the amount requested is reasonable based on the circumstances of the case, inclu...

Excerpt: ...ng that is subject to demurrer or the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. (emphasis added). The motion is accompanied by the declaration of Attorney Amanda Wilbur, who states she spoke with Plaintiff Patricia Neal on April 19, 2022 at 9:00 a.m. but was unable to reach an agreement. The meet and confer requirement has...

Excerpt: ...while a collection action is pending to prevent the debtor from transferring, encumbering or concealing assets available to satisfy a judgment. An attachment may be issued only if the claim sued upon meets the following requirements: (1) a “claim for money ... based upon a contract, express or implied”; (2) of a “fixed or readily ascertainable amount not less than $500”; (3) that is either unsecured or secured by personal property, not re...

Excerpt: ...ds is proper under Evid. Code § 452(d). The court can also take judicial notice of the existence of recorded documents and their legal effect. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐1118; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754‐755.) LIS PENDENS A lis pendens/notice of pendency gives constructive notice of a pending lawsuit affecting title to described real prope...

Excerpt: ... to entry of judgment as a matter of law. (CCP § 437c(c).) A defendant/cross‐ 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 Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once such a showing h...

Excerpt: ... attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect." This relief is often referred to as "mandatory" because the court must grant relief unless it finds that the attorney was not actually the cause of the neglect, e.g., when the attorney is merely covering up for the client. See Jerry's Shell v Equilon Enters., LLC (2005) 134 CA4th 1058. Further, relief is not mandatory based on an attorney affidavit o...

Excerpt: ...(2007) 148 Cal. App. 4th 97, 113.) Dixon asks the Court to take judicial notice of: 1) an excerpt of a transcript of questioning of Plaintiff, Ernest Waud, dated 3/3/21; and 2) the Syndicate Agreement for horse Peninsula Classic 1 (Smitty) between Dixon and Waud, dated 6/9/19. Notably, Dixon does not provide specific authority for the Court to judicially notice these documents. Plaintiffs object to the request for judicial notice of Waud's deposi...

Excerpt: ...tiff to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met. (Jewish Defense Org. v. Superior Court (1999) 72 Cal.App.4th 1045, 1054‐55.) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. (Id. at 1055.) Once a plaintiff meets his burden, the defendant has the burden to demonstrate that the exercise of jurisdiction is unreasonable. (Buchanan v. Soto (...

Excerpt: ...rt 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 to strike must appear on the face of the pleading under attack, or from matter which the court may judiciall...

Excerpt: ...roperty, court records in Plaintiff's prior bankruptcy proceeding, and court records in the prior UD action. Judicial notice of court records is proper under Evid. Code § 452(d). The court can also take judicial notice of the existence of recorded documents and their legal effect. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐1118; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754�...

Excerpt: ... Pro. §2032.310(a).) An order granting a mental examination or physical examination under Cal. Code Civ. Pro. § 2032.310 must specify the person or persons who will perform the examination, and the time, place, manner, diagnostic tests and procedures, conditions, scope and nature of the examination. (Cal. Code Civ. Pro. §2032.310)(b).) An exam is permitted only if the inquiry is relevant to the subject matter of the action or reasonably calcul...

Excerpt: ...e matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) Plaintiffs request judicial notice of court documents: 1) the motion to stay or dismiss for forum non conveniens filed on 9/29/21; 2) the declaration of Dianna Manukyan in support of the motion to stay/dismiss filed on 9/29/21; 3) the opposition to the motion to stay/dismiss filed on 10/13/21; 4) Notice of Ruling denying Dixo...

Excerpt: ... (2003) 107 Cal.App.4th 1260, 1266.) “The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App....

Excerpt: ...orts Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048. However, leave to amend can be denied where it is clear that the proposed amendment is deficient. California Casualty General Ins. Co. v. Sup. Ct. (1985) 173 Cal.App.3d 274, 280‐281. Defendant seeks to amend its answer, therefore withdrawing its admission of liability for the first five causes of action, due to the ruling in Rodriguez. Rodriguez was determined by our district and divi...

Excerpt: ...bie v. Hyatt (1998) 61 Cal. App. 4th 581, 596.) “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010)184 Cal. App. 4th 1422, 1428.) Where the proposed amendment would result in little or no prejudice to the opposing party, the “liberal rule of allowance prevails.” (Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564.) However, leave to...

Excerpt: ... notice of appeal does not deprive the trial court of jurisdiction to award attorney fees as costs post trial.” Id. As such, there is no reason to stay this matter. Golden and Mechanics asks that the court continue this motion and have it heard with Golden's motion for attorney's fees, which is scheduled for 7/14/22. Plaintiff seeks attorney's fees for all fees incurred in this litigation. He seeks said fees under Civil Code § 2983.4. Attorney...