Excerpt: ...cessary to prevent prejudicing the party's interest in the litigation. Here, Plaintiff is 84 years old and has a substantial interest since he asserts an ownership interest in the subject horses. The real issue is whether his health requires preference. In Fox v. Superior Court (2018) 21 Cal.App.5th 529, 531‐532, an 81 year old plaintiff sued for personal injuries resulting from exposure to asbestos, and the plaintiff suffered from Stage IV lun...

Excerpt: ... from filing of any default prove‐up declarations by Plaintiffs. Pursuant to Cal. Code Civ. Pro. §1008(a), when an application for an order has been made to a judge or to a court, and refused in whole or in part, granted, or granted conditionally, or on any terms, any party affected by the order, within 10 days of service upon the party of written notice of entry of the order and based upon new or different facts, circumstances or law, make ap...

Excerpt: ...ination shall be conducted within 75 miles of Plaintiff's home and shall last no longer than three hours including breaks pursuant to Cal. Code Civ. Pro. §2032.340(a). The examination shall be conducted without the presence of third parties. The District should provide an audio recording to Plaintiff or the parties should decide how to ensure that Plaintiff is able to record the examination. Any party may obtain discovery by means of a physical ...

Excerpt: ...n to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend; and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. The court typically does not consider the merits of the propos...

Excerpt: ...t and would not have acted had she or he had knowledge of the concealed fact; and (5) the plaintiff sustained damages as a result of the concealment. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868; see also CACI 1910 [Real Estate Seller's Nondisclosure of Material Facts].) Each element of a claim for fraud must be pleaded with specificity rather than with general and conclusory allegations. (Knox v. Dean (2012)...

Excerpt: ...Cal.3d 473, 479. The petition to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. Cal. R. Ct. 3.1330; see Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218–219. “[U]nder this rule, unless there is a dispute over authenticity, it is sufficient for a party moving to compel arbitration to recite the terms of the govern...

Excerpt: ...nformation about the lack of sewerage access or the adjacent property owner's refusal to allow access to sewerage constituted fraud. The elements of a cause of action for fraud based on concealment are: (1)The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to ...

Excerpt: ... or is engaging, in wrongful conduct that has adversely and materially affected, or will adversely and materially affect, the limited liability company's activities. (2) Willfully or persistently committed, or is willfully and persistently committing, a material breach of the operating agreement or the person's duties or obligations under Section 17704.09. (3) Engaged, or is engaging, in conduct relating to the limited liability company's activit...

Excerpt: ...of Court, rule 3.1350, and any noncompliance causes no prejudice because plaintiffs' complaint relates to the request for summary adjudication in the alternative and the court finds that summary judgment is appropriate. On the merits, defendants met their initial burden on summary judgment/adjudication of showing that all charges assessed with respect to plaintiffs' mortgage were proper. Plaintiff argue all charges were not proper because in thei...

Excerpt: ...thout having served a valid objection … fails to appear for examination, or to proceed with it, or to produce for inspection any document …, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document….” (Code Civ. Proc., §2025.450(a).) Proper service of a notice of deposition is effective to require the attendance of parties as well as compelling...

Excerpt: ...g that “unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for…(a)Money or the payment of money….” Plaintiff argues he falls into a different category because the award here constitutes an award of costs (which include attorney's fees) and enforcement of a cost award only is stayed without the necessity of an undertaking. (See Code ...

Excerpt: ...nerally “accrues” on the date of injury. (Fox v. Ethicon Endo‐Surgery (2005) 35 Cal.4th 797, 807‐808, fn 2.) The “discovery rule” is an exception to the general rule that an action accrues when appreciable harm occurs. The accrual is postponed “until the plaintiff discovers, or has reason to discover, the cause of action.” (Id. at 807.) A plaintiff has reason to know a potential claim exists when he or she has reason to suspect a ...

Excerpt: ...f action was based on the care provided to the plaintiff, while the other cause of action was based on the maintenance of the machine—in other words, the causes of action were distinguishable not because negligence and medical malpractice are different theories, but because they were based on different wrongful acts. Thus, the question is not whether “medical malpractice” and “general negligence” are one or two theories, but whether the...

Excerpt: ... provided a work of improvement for Defendants at Vista Promenade Apartments in Temecula regarding water damage. Defendant has not paid the outstanding $653,330.00. Plaintiff filed their action on 8/19/19. After stipulating for leave to amend, on 10/25/21, Plaintiff filed the First Amended Complaint (FAC) for: (1) breach of contract; (2) enforcement of bond for release of mechanic's lien; and (3) promissory estoppel. Trial is currently set for 6/...

Excerpt: ...t Collection Practices Act against various Defendants, including Defendants John Pugh. Plaintiff alleges that on December 9, 2008, Defendant John Pugh commenced a civil action against Plaintiff by filing a complaint in Riverside County Superior Court, case number RIC514539. The Complaint alleged a contract entered into on or about April 13, 2004 between Wells Fargo Bank and Larsen whereby Larsen received a line of credit. Plaintiff alleges that h...

Excerpt: ...6/19, asserts: (1) violation of Song‐Beverly Act (express warranty); (2) violation of Song Beverly Act (implied warranty); and (3) violation of Song‐Beverly (Civil Code §1793.2.) Defendant demurred and moved to strike the complaint, which the court denied on 1/14/21. Defendant filed an answer on 1/19/21. Trial is set for 3/11/22. Defendant moves to compel arbitration based on the arbitration clause in the retail installment sales contract (R...

Excerpt: ...n award unjust, an attorney fee award should ordinarily include compensation for all of the hours reasonably spent, including those relating solely to the fee.” (Ibid.) However, “[a] fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.) Importantly, the matter of reasonableness of a party's attorney fees i...

Excerpt: ...order, or other Page 4 of 4 proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In ruling on motions brought under the discretionary provision of section 473(b), the general policy favors granting relief and a trial on the merits. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) When relief is sought promptly and there is no prejudice to the other side, even a weak showing will su...

Excerpt: ...can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgment. (Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879.) Plaintiffs have not met their burden ‐ Motion for discovery of financial condition ‐ Denied Civil Code §3295(c) provides that “[n]o pretrial discovery by the plaintiff shall be permitted with respect to evidence” of the defendant's fina...

Excerpt: ...g that “unless an Page 4 of 5 undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for…(a)Money or the payment of money….” Plaintiff argues he falls into a different category because the award here constitutes an award of costs (which include attorney's fees) and enforcement of a cost award only is stayed without the necessity of an undertaking...

Excerpt: ... action against Demurring Defendant, Ricky Francis, an individual, and specifically alleges Ricky Francis caused the motor vehicle accident on February 20, 2019. “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. [Citation.]” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3.) “Even as against a special demu...

Excerpt: ...order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In ruling on motions brought under the discretionary provision of section 473(b), the general policy favors granting relief and a trial on the merits. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) When relief is sought promptly and there is no prejudice to the other side, even a weak showing will suffice. (Ibid...

Excerpt: ... it can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgment. (Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879.) Plaintiffs have not met their burden ‐ Motion for discovery of financial condition ‐ Denied Civil Code §3295(c) provides that “[n]o pretrial discovery by the plaintiff shall be permitted with respect to evidence” of the defendant's ...

Excerpt: ...on 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 has met his or her burden under CCP §437c(p)(2) of showing a cause of action has no merit if that party has shown that one or more of the elements of th...

Excerpt: ...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. (C.C.P. §437c(p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once such a showing has been made, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (A...