Excerpt: ...xercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits."2 (Cruz v. Fagor America, Inc. (2006) 146 Cal.App.4th 488, 495). CCP S 473(b) further provides that an application for relief "shall be accompanied by a copy of the answer or other pleading proposed to be filed therein." The party moving for r...

Excerpt: ...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. (Crowley v....

Excerpt: ...ce Superintendent for the DMV. He oversees construction and maintenance at 15 different DMV facilities in the Southern California area, including the DMV Field Office in Riverside (the "Riverside Field Offce." (Brown Decl., 91.) Plaintiff makes some 13 objections (Nos. 2, 30-42) to the Baker declaration, based on lack of personal knowledge, speculation, lacks foundation, hearsay, calls for expert opinion and irrelevant. These objections are susta...

Excerpt: ...d complaint "opens" the default — entitling defendant to plead to the amended complaint. (Engebretson & Co., Inc. v. Harrison (1981) 125 Cal.App.3d 436, 442-443; Ostling v. ü)ring (1994) 27 cal.App.4th 1731, 1744; crestmar owners Ass'n. v. stapakis (2007) 157 calApp.4th 1223, 1231.) Defendants who defaulted to the original complaint must be served with an amended complaint containing the substantive changes. In effect, plaintiff waives the rig...

Excerpt: ...extent these documents exist as part of the court record or file, but not for the truth of the matters stated therein, unless the matters are indisputably true. (Evid. Code, S452(d) [judicial notice may be taken of records of any court of this state]; See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569; also see Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Exhibits 2, 4, 6, 8, IC)-15 (court orders): Granted as judic...

Excerpt: ...rily falls 60 days after notice of entry of judgment, or 180 days after entry of judgment, whichever is first." (Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1, 8.) It is undisputed here that judgment has not been entered. GM also relies on DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140 to support its conclusion that the instant motion is not timely. However, that case held that settlement payment constituted "n...

Excerpt: ...r create conflicting rulings on common issues. CCP 51281.2. 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 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; s...

Excerpt: ...(CCP S 473.5(a).) "This section is designed to prov-de relief where there has been proper service of summons (e.g., by substitute service or by Page 3 of 7 publication) but defendant nevertheless did not find out about the action in tme to defend." (Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2022) 5:420, p. 5-1222 [italics in original].) Secton 473.5(a) requires the defaulting party to serve and file the notice of motion within ...

Excerpt: ...ary injunction is to preserve the status quo until there is a final determination of a cause of action." (Assn. for Los Angeles Deputy Sheriffs v. Cnty. of Los Angeles (2008) 166 Cal.App.4th 1625, 1634.) Pursuant to CCP S 526(a)(3), a preliminary injunction may issue: When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to done, some act in violation of the righ...

Excerpt: ...or of the moving party without the necessity of trial. Civ. Proc., S 437c; Aguilar v. Atlantic Richfield Co. 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 disposes of the cause of action to which it is directed. Civ. Proc., S 437c(f)(1).) A defendant has met his or her burden under Code Civ. Proc., of showing a c...

Excerpt: ...or of the moving party without the necessity of trial. Civ. Proc., S 437c; Aguilar v. Atlantic Richfield Co. 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 disposes of the cause of action to which it is directed. Civ. Proc., S 437c(f)(1).) A defendant has met his or her burden under Code Civ. Proc., of showing a c...

Excerpt: ...he 2nd Cause of Action, it is overruled. Defendant is ordered to file an Answer within 30 days. JUDICIAL NOTICE Defendant requests the court take judicial notice of the following documents: A) an order in Plaintiff's workers' compensation case, B) Plaintiffs voluntary resignation, C) Plaintiff's initial complaint in this action, and D) the operative FAC. Plaintiff objects to the request as to Exhibit B — resignation — only. Defendant requests...

Excerpt: ... requests, the court may impose monetary, issue, evidentiary and/or terminating sanctons. (CCP S 2023.030(a)—(d); 2030.300(e); 2031.310(i).)1 Terminating sanctons can take the form of (1) striking out the party's pleading or part thereof; (2) staying further proceedings by that party until he or she obeys the court order; (3) dismissing that party's action, or any part thereof; or (4) rendering default judgment against that party. (CCP S 2023.0...

Excerpt: ...anted pursuantto Evid. Code, S 452(d). ENTRY OF DEFAULT Plaintiffs argue that Defendant cannot make this motion because he is in default. However, the instant motion was filed on April 28, 2023, while the request for entry of default was filed on May 2, 2023. It appears the entry of default was filed in error by the clerk's office. As such, the Court orders sua sponte to set aside the incorrect entry of default. As a general rule, when a cause of...

Excerpt: .... JUDICIAL NOTICE Exhibits 1, 3, 5, 7, 9 (court filed documents): requests are granted to the extent these documents exist as part of the court record or file, but not for the truth of the matters stated therein, unless the matters are indisputably true. (Evid. Code, S452(d) [judicial notce may be taken of records of any court of this state]; See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569; also see Fremont Indem. Co. v. Fremont Gen. C...

Excerpt: ...need only allege facts suffcient to state a cause of action, each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Generally a plaintiff need only plead facts necessary "to acquaint a defendant with the nature, source and extent of his claims." (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.) On demurrer the cour...

Excerpt: ...s attached to, the declaration of plaintiff's counsel, Ken Carlson based on lack of foundation, lack of personal knowledge and hearsay. There is sufficient foundation for the statements, and the testimony and documents are not being submitted to prove the truth of the matters asserted, but their effect on the declarant. CCP S 474 allows a plaintiff who is ignorant of a defendant's identity to designate the defendant in a complaint by a fictitious...

Excerpt: ...efendant's Demurrer to the Complaint is sustained with leave to amend within 20 days. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP, S 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. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assum...

Excerpt: ...eeding 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 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�...

Excerpt: ... is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others," while oppression is defined as "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights." (Civ. Code S 3294(c)(1)-(2).)1 Despicable conduct is conduct that is base, vile or contemptible. (Col...

Excerpt: ...).) In a moton to compel a further response as to document requests, the moving party must state facts demonstrating good cause justifying the discovery sought by demonstrating relevance and specific facts justifying discovery. (CCP Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) The burden to show cause for production "is met simply by a fact-specific showing of relevance." (Tbg Ins. Servs. Corp. v. Superior Court (21%2) 96 Cal.App.4th...

Excerpt: ...GREEN, as to why sanctons not to exceed $1,500.00 or dismissal should not be imposed for Failure to file request for entry of default of all defendants pursuant to CRC 3.110(g) The court is empowered to relieve a party "upon such terms as may be just... from a judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect." (C.C.P. S473(b).) C.C.P. 5473(b) contains t...

Excerpt: ...ve economic advantage, and negligent interference with prospective economic advantage. Because the recommendation is to sustain the demurrer without leave to amend on the tort causes of action, the motion to strike is granted as no underlying tort cause of achon has been stated on which to claim punitive damages under Civil Code section 3294. A demurrer also lies where the pleading does not state facts sufficient to constitute a cause of action. ...

Excerpt: ...ement; and (4) Local Agency Formation Commission of Riverside County Resolution No. 113- 07. These documents may be judicially noticed pursuant to Evid. Code S 452(c), which permits judicial notice of official acts of a legislative, executive or judicial department. Additionally, Plaintiff's request for judicial notice of Chapter 10.40 of the Perris Municipal Code is granted pursuant to Evid. Code S 452(b) as a legislative enactment. Finally, Pla...

Excerpt: ...2014) 230 Cal.App.4th 935, 945; Code Civ. Proc., 5437c, subd. (p)(2).) "A cause of action 'cannot be established' if the undisputed facts presented by defendant prove the contrary of plaintiff's allegations as a matter of law." (Brantlyv. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Only when defendant meets this burden, "the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action...

Excerpt: ...nses, thereby rendering the substan
Ÿve of these mo
Ÿons moot. Cross-Complainant's request for relief from waiver of objec
Ÿons is denied. As to Sanc
Ÿons, it is denied. Failing to
Ÿmely respond to document demands or interrogatories waives all objec
Ÿons to the demands/interrogatories, including claims of privilege and work product. (CCP § 2030.(a), § 2031.300(a).) “The court, on mo
Ÿon, may relief that party from this waiver” on d...

Excerpt: ...The court must treat as true all of the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law, and may consider exhibits attached to the complaint. (ld. at 732-33; Yvanova v. New Century Mortgage Corp. (2016) 52 Cal.4th 919, 924.) Specific factual allegations modify and limit inconsistent general statements. (Fin. Corp. of Am. v. Wilburn (1987) 189 Cal.App.3d 764, 769.) The court must interpret th...

Excerpt: ...f Civil Procedure section 1032, subdivision (b), which provides that "Except as otherwise expressly prov-ded by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." The costs which a prevailing party is allowed to recover under section 1032 includes attorney's fees authorized by (1) contract, (2) statute, or (3) law. (Code Civ. Proc., Here, it is undisputed that the moving Defendant's status ...

Excerpt: ...e if attorney's fees are reasonable, which involves multiplying the reasonable rate of services by the number of hours spent on the case. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242.) The party seeking attorney's fees is not entitled to all hours they claim in an attorney fee request and must prove that the hours sought are reasonable and necessary. (Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1320.) Once the p...

Excerpt: ...or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) A medical examination can be ordered for a specific injury that is put in controversy as the subject of the litigation. (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.) A motion to seek a second medical examination must identify the "time, place, manner, conditions, scope, and nature of the examination, as well as t...

Excerpt: ... S 437c(q) "In ruling on the motion, the court need only rule on those evidentiary objections that it deems material to disposition of the motion." ) 2) Declaration of Bob Walter: Objections are overruled as Mr. Walter establishes he is the President of the HOA and may testify as to the activites of Defendant. DEFENDANTS OBJECTIONS: Defendant objects to the Declaration of Michael Laichareonsup: 1) As to objection No. 1, the Court declines to rule...

Excerpt: ...., INC Tentative Ruling: Hearing continued to 6/5/23. 2. CVR12302503 MACK VS AZBEN, L.L.C. PRELIMINARY INJUNCTION Tentative Ruling: Plaintiff's Motion for Preliminary Injunction is denied; Temporary Restraining Order issued on 5/17/2023 is dissolved. A decision to grant or deny a preliminary injunction is not an ultimate adjudication of the dispute, but simply a provisional remedy intended to preserve the status quo pending a trial on the merits....

Excerpt: ...osition of Roger Stotts (Ex. 106) 68:21—69:6) for lack of personal knowledge, improper opinion testimony, legal conclusion, speculative, and irrelevant. "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." (CCP S 437c(q).) Here, the Court will not rule on the evidentiary objections as they are not disposit...

Excerpt: ...osition of Roger Stotts (Ex. 106) 68:21—69:6) for lack of personal knowledge, improper opinion testimony, legal conclusion, speculative, and irrelevant. "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." (CCP S 437c(q).) Here, the Court will not rule on the evidentiary objections as they are not disposit...

Excerpt: ...units and contends the photographs depict such work. (ld., '1 7.) The photos are properly authenticated and the objections are overruled. Page 6 of 8 PRELIMINARY INJUNCTION A decision to grant or deny a preliminary injunction is not an ultimate adjudication of the dispute, but simply a provisional remedy intended to preserve the status quo pending a trial on the merits. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528; Hunt v. Superior C...

Excerpt: ...ecessity indicating that the additional interrogatories are warranted because: (1) the complexity or quantity of existing or potential issues in the particular case; (2) the financial burden on a party entailed in conducting the discovery by oral deposition; or (3) the expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation or search of files or records to supply the inf...

Excerpt: ...oot. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP, S 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. (Minre 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 whi...

Excerpt: ...f as it may be — Empire waived any defect or irregularity in the filing and service of the opposition. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Accordingly, the gives due consideration to Plaintiffs' untimely opposition. REQUEST FOR JUDICIAL NOTICE Empire's unopposed request that the court take judicial notce of the Register of Actions for Tye v. Bowen is denied. While the court may take judicial notice of the files and records of...

Excerpt: ...ersonal knowledge, inadmissible speculation and conclusions, inadmissible hearsay, irrelevant and prejudicial, improper legal conclusion, improper expert testimony, improper lay opinion testimony and conclusory). However, the declaration is based on Wallace's personal knowledge as it explains the accident from his perspective. In his memorandum in opposition, Plaintiff seemingly challenges the declaration on the ground it is selfserving by arguin...

Excerpt: ...; as to No. 20 it is limited to California; as to No. 33, it is limited to technical service bulletins that apply to the defects at issue in this lawsuit; as to Nos. 38 through 41, it is limited to codes used in California; and as to Nos. 45 and 46, it is limited to vehicles in California and to those vehicles that experienced the same issues as Plaintiffs' vehicles. As to sanctions, they are denied. A party may bring a motion to compel further r...

Excerpt: ...q.; 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 particular description of the property and a statement of its v...

Excerpt: ...ablishes the right to entry of judgment as a matter of law. (CCP S 437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (CCP S 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Defendant, as the moving party, has the burden to show either that one or more elements of the cause of action cannot be established or that there is a co...

Excerpt: ...f is granted leave to amend within 20 days. Demurrer being sustained, the Motion to Strike is moot. REQUEST FOR JUDICIAL NOTICE: Evidence Code S 452 sets forth matters that judicial notice can be taken of, including court records, regulations, official acts of government entities, rules of the court, laws of other countries, and facts that are of common knowledge. Evidence Code S 451 sets forth matters where judicial notice must be taken. They in...

Excerpt: ...the times for serving and filing the cost memorandum or notice of motion to strike or tax costs for a period not to exceed 30 days." (ld. at The losing party may dispute any or all of the items in the prevailing party's costs memorandum. (CRC, Rule Technically, a motion to strike challenges the entire costs bill whereas a motion to tax challenges particular items or amounts. But, the terms are often used interchangeably and there is no difference...

Excerpt: ...d and cwersaw a network of medical clinics to generate fraudulent billings to workers' compensation and insurance carriers. A nonattorney, he also allegedly controlled the day-to-day operations of various law firms, including California Injury Lawyers (collectively, the law firm)." Heidary v. Superior Court (2018) 25 Cal.App.5th 110, 113 (Plaintiff appealed a decision denying a motion to set aside the indictment in RIF1670175). When injured worke...

Excerpt: ...dant specifying the deficiencies in Defendant's responses and requesting that they be corrected. (Thomas Decl., 10; Exh. D.) Defendant responded to Plaintiff's letter on March 6, 2023. (Thomas Decl. 11, Exh. E). Defendant identified some of the documents it had produced by subject matter and offered to produce additional documents subject to a protective order. (ld). On March 9, 2023 Plaintiff sent Defendant a second meet and confer letter explai...

Excerpt: ...n to the Motion to Compel Compliance with the Subpoena; and (3) Declaration of Leslie Anne Burnet in support of Defendant's Opposition to the Moton to Compel Compliance with Subpoena. The court can take judicial notice of these documents as they are court records. (Evidence Code S452(d).) RECONSIDERATION A motion for reconsideration must be based on new or different facts, circumstances or law. (CCP 51008.) The legislative intent was to restrict ...

Excerpt: ...gs. (ld.) Under C.C.P., S 2025.230, a party may depose an entity's person most qualified on a particular topic. The deposition notice must describe "with reasonable particularity the matters on which examination is requested." (ld.) The must "designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any inform...

Excerpt: ... judgment on the pleadings stating either the means by which the parties met and conferred and that they did not reach an agreement, or that opposing counsel did not respond to their request to meet and confer. (CCP 5439(3).) The motion is accompanied by Plaintiff's counsel, Laurel Buchanan, who states counsel discussed selling the property numerous times. The Reply includes a second declaration from Attorney Buchanan, which states the parties di...

Excerpt: ...ent 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 acton or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law ...

Excerpt: ... revocation of the agreement; or litigation is pending that may 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 ofa contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) If there is a dispute as to the enforceability of an agreement to arbitrate, an evidentiary hearing i...

Excerpt: ...ion is granted as to the first cause of achon without leave to amend. A defendant may move for judgment on the pleadings the complaint does not state facts sufficient to constitute a cause of action. (Cal. Code Civ. Code "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 Grum...

Excerpt: ...ns were not reimbursed by PNC. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP S 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. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been prope...

Excerpt: ...a variety of objections to Dr. Strom's declaration, i.e. lack of foundation, speculation, improper expert opinion, and hearsay. The objections are overruled as Dr. Strom has laid a proper foundation for his expert opinions. Dr. Jamal also submits objections to Dr. Bedford's declaration, i.e. misstates facts and evidence, speculative, improper expert opinion, and conclusory. As discussed further below, these objections are well-taken and they are ...

Excerpt: ...nd surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department. For purposes of this section, "substantial professional experience" shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in general acute care hospital emergency departments in the same or similar l...

Excerpt: ....App.4th 935, 945; Code Civ. Proc., 5437c, subd. (p)(2).) "A cause of achon 'cannot be established' if the undisputed facts presented by defendant prove the contrary of plaintiff's allegations as a matter of law." (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Only when defendant meets this burden, "the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense...

Excerpt: ...anski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29.) More in filing a substantive reply, Singh waived any defect or irregularity in the filing and service of the opposition. (See Carlton v. Quint (2(M) 77 Cal.App.4th 690, 697.) Accordingly, the court will give due consideration to Plaintiff's untimely opposition. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP S 430.10(e).) In eval...

Excerpt: ...Y JUDGMENT 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 S 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 com...

Excerpt: ...Delgadillo v. Delgadillo, Case No. FLR12102703) between the same parties, relating to the same subject matter as in this case, namely the parties' rights over certain real properties and rental income derived from said properties. "In a proceeding for dissolution of marriage , the [family awl court has jurisdiction to inquire into and render any judgment and make orders that are appropriate concerning.... [91 [4] . [tlhe settlement of the propert...

Excerpt: ...t of $8,600.00 in attorney's fees for abuse of the discovery process in being uncooperative when scheduling the deposition, disrupting the deposition, coaching the witness and instructing the witness not to answer on unfounded grounds. Page 3 of 5 This motion is made pursuant to CCP SS 2023.010-2023.030, and is premised on the following grounds: 1. On May 27, 2022, Plaintiff filed a Motion to Compel Discovery from Defendant and request for moneta...

Excerpt: ...his state, a court rule, or an order of the court. (CCP S 436.) On a motion to strike, as with a demurrer, "the court treats as true the material facts alleged in the complaint, as well as any facts which may be implied or inferred from those expressly alleged." (Washington Int'l Ins. Co. v. Superior Court (1998) 62 Cal. App. 4th 981, 984, n. 2.) A motion to strike is the proper vehicle to attack a punitive damage claim where the facts alleged do...

Excerpt: ...se is without merit or too general), that party may file a moton compelling further responses. (CCP S 2030.300.) upon a timely motion, the responding party has the burden to justify any objection or failure to fully respond to the interrogatory or request. (Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal.4th 245, 255.) The factors to determine whether a motion to compel should be granted include: (1) the relationship of the informati...

Excerpt: ...licting rulings on common issues. (CCP 51281.2.) 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 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 Conde...

Excerpt: ... with the opposition. Objections 1 through 8 are overruled. Meet and Confer: A moton to compel further responses to written discovery must be accompanied by a declaration describing in detail the reasonable and good faith efforts that each party has made to confer and resolve informally each issue presented by the motion. (CCP SS 2030.300(b); 2031.310(b)(2); 2016.040.) The purpose of the meet and confer requirement is to force lav.yers to reexami...

Excerpt: ...s. (C.C.P., S 2031.310.) The motion must be served within 45 days after service of a verified response (C.C.P., S 1010.6(a)(4)) and must be accompanied by a declaration showng "a reasonable and good faith attempt" to resolve the issues informally outside of court. (C.C.P., S 2016.040, 2031.310(b)(2).) The motion to compel further responses "shall set forth specific facts showing good cause justifying the discovery sought by the demand." (C.c.p., ...

Excerpt: ...Ohio judgment was entered on August 8, 2022 and the application for sister state judgment was filed September 7, 2022. As of the time of filing of the application for sister state judgment appears that judgment creditor had not yet sold the residence at a sheriff's sale as ordered by the court. Further, in their opposition to this motion, filed December 5, 2022, there was no mention that the residence had been sold as directed by the court. Judgm...

Excerpt: ...t plaintiff does not possess and cannot reasonably obtain needed evidence. C.C.P. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. When a defendant has met her burden, it then shifts to plaintiff to show that a triable issue of fact exists. Defendant has brought a moton for summary judgment. It does not seek summary adjudication in the alternative. As such, if it falls to meet its burden as to one of the causes of action, the entire motio...

Excerpt: ...um totals 19 pages (excluding the caption page, the notce of motion, exhibits, declarations, attachments, table of contents, table of authorities, and proof of service), in violation of C.R.C. Rule 3.1113(d). Pursuant to C.R.C. Rule 3.1113(g), "A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed pa#r." As it relates to late-filed papers, C.R.C. Rule 3.131W(d) holds Page 3 of 7 a...

Excerpt: ...y be equitable." C.C.P„ S 874.040 has been interpreted as giving the court the authority to apportion costs, including attorney's fees in favor of one side and against the other, when the equities warrant such an allocation. (Lin v. Jeng (2012) 203 cal.App.4th 1008, 1025. see also Finney v. Gomez (2003) 111 cal.App.4th 527, 545 (CCP S 874.040 "has been consistently interpreted as giving courts only two options in apportioning the costs and fees...

Excerpt: ...ve damages claim where facts alleged may not rise to the level of fraud, malice or oppression. (CCP SS 435-436; Truman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 53.) 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...

Excerpt: ...nctions, the Defendant is ordered to pay Plaintiff in a reasonable reduced amount of $1,110, payable within 30 days. Where responses to document requests have been timely 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 moton compelling further responses. (C.C.P., S 2031.310.) The motion must be ...

Excerpt: ...prevailing party is entitled as a matter of right to recover costs in any action or proceeding." The costs which a prevailing party is allowed to recover under section 1032 includes attorney's fees authorized by contract, statute, or law. (Code Civ. Proc., Here, Petitioners' motion seeks award of fees and cost as authorized by statute, particularly Government Code sections 3309.5 and 800, Code of Civil Procedure section 1094.5, and the private at...

Excerpt: ...eral. (CCP 2031.310.) Unless notice of the motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the party and the responding party have agreed in writing, the propounding party waives any right to compel a further response. (CCP SS 2031.310(c).) Plaintiff's counsel states that Defendant served responses on 9/21/22, but did not state by what means as she did n...

Excerpt: ...a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." For purposes of settlement, Defendant, HMA, does not dispute that Plaintiff is the prevailing party. The only question to be determined by this motion is the amount of the award to Plaintiff. The...

Excerpt: ... the second amended complaint (SAC) which alleged three causes of action for breach of oral contract, promissory estoppel, and constructive trust. Plaintiff alleged he and Defendant had begun an intimate relationship on or about June 16, 2011. In August 2012, they discussed the next steps in their relationship, including getting engaged and purchasing a home together. It was alleged that they got engaged and entered into an oral contract in which...

Excerpt: ...tiff's expert, a surgeon and neurosurgeon, Dr. Fox, had qualifications not possessed by the other specialists, that a higher standard of care would be applicable to a neurosurgeon than to doctors engaged in other specialties, and that his declaration as to the standard of care could be rejected on the basis that he is in a sense overqualified. (ld. at p. 38.) The court concluded the determinative issue in each case must be whether the witness has...

Excerpt: ...dismissing a case on the basis of the anti-SLAPP statute has the same effect as a final judgment." (Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 251.) As such, the court denies Plaintiff's request to conduct discovery. A prevailing defendant on an anti SLAPP motion shall be entitled to recover his attorney fees and costs. (CCP 5425.16(c).) Any fee award is mandatory. (Ketchum v. Moses (2001) 24 Cal.4t...

Excerpt: ...rruled; as to the demurrer to the fourteenth and fifteenth causes of action, it is sustained without leave to amend. The motion to strike as to the allegations regarding malice is granted (SAC, "1268-277), and the motion to strike as to the remainder of the motion is denied. A demurrer is a pleading (C.C.P. 5422.10) used to test the legal sufficiency of a complaint, crosscomplaint, answer or demurrer. A demurrer raises only issues of law not fact...

Excerpt: ...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 S 2031.310.) The motion must be served within 45 days after service of a verified response (CCP S and must be accompanied by a declaration showing "a reasonable and faith attempt" to resolve the issues informally outside of court. (CCP S...

Excerpt: ... the same, to make transfers, and generally to do This includes the power of the court to supersede prior liens subject to the receiver's certificates. (Title Ins. & Trust Co. v. California Development Co. (1915) 171 Cal. 227, 231, 233; City of Sierra Madre v. Suntrust Mortgage, Inc. (2019) 32 Cal.App.5th 648, 657.) The case of County of Sonoma v. Quail (2020) 56 Cal.App.5th 657 is instructive. The County instituted nuisance abatement proceedings...

Excerpt: ....P. S473(d); APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 185.) Where clerical error is shown, the judgment is corrected nunc pro tunc, i.e., the correction dates back to the when the judgment was entered. (Ames v. Paley (2001) 89 Cal.App.4th 668, 673; Bell Farmers Ins. Exch. (2006) 135 Cal.App.4th 1138, 1144.) A "clerical error" results when the order or judgment misstates the court's actual intent, i.e., an error in recording the ...

Excerpt: ...not stay ancillary or collateral matters that do not affect the judgment or order on appeal. (ld. at 191.) "A postjudgment or postorder proceeding is also ancillary or collateral to the appeal despite its potential effect on the appeal, if the proceeding could or would have occurred regardless of the outcome of the appeal." (ld.) In Varian, the defendants filed an anti-SLAPP and appealed when the trial court denied it. (ld. at 187.) However, tria...

Excerpt: ...l does not stay ancillary or collateral matters that do not affect the judgment or order on appeal. (ld. at 191.) "A postjudgment or postorder proceeding is also ancillary or collateral to the appeal despite its potental effect on the appeal, if the proceeding could or would have occurred regardless of the outcome of the appeal." (ld.) In Varian, the defendants filed an anti-SLAPP and appealed when the trial court denied it. (ld. at 187.) However...

Excerpt: ...t's amendment to its expert designation, then the Motion to Augment is denied as the Motion to Compel is moot. Ifthe parties do not stipulate, the Moton to Augment for the sole purpose of designating a psychology expert and the Motion to Compel the deposition of Dr. Lakes are granted. Nonetheless, there will be no continuance of the trial. Defendant must designate within 10 days of this order and Expert Depositions must take place within 30 days ...

Excerpt: ...eny summary adjudication based on the moving party's failure to comply with these separate statement requirements. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) Here, Defendant's separate statement provides a single list of 70 facts. It does not specifically identify any cause of action on which Defendant seeks summary adjudication and makes no attempt to relate specific facts to each cause of action. Thus, Defendant's alternative motion f...

Excerpt: ...umer, or employee whose personal records are sought, "or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court may declare, including protective orders." (Code Civ. Proc., 51987.1(a).) Also, the court may make any other order as may be appropriate to protect the parties, the...

Excerpt: ...5, 8, ); (2) the deposition testimony of Defendant Adriana Mercado (Nos. 3, 6, 7); (3) the declaration of Dr. Greg Orshandky (Nos. 11, 12, 13, 14, 15, 16, 17, 18.) Objections to Deposition Testimony of Defendant Adriana Mercado (1) misstates witness testimony; (2) lack of foundation; (3) relevance. Objections to Deposition Testimony of Adriana Leichliter (Decedent's daughter) (1) lack of foundation; (2) hearsay; (3) relevance. Overruled as to Obj...

Excerpt: ...ailing party is entitled as a matter of right to ræover costs in any action or proceeding." Civ. Proc., S 1032(b).) A prevailing party claiming costs must file and serve a memorandum of costs within the earliest of (1) 15 days after the date of service of the notice of entry or dismissal by the clerk Civ. Proc., S 654.5), or (2) the date of service of written notice of entry of judgment or dismissal, or (3) within 180 days after entry of judgmen...

Excerpt: ...net monetary recovery, a defendant who is dismissed from the action, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the 'prevailing party' shall be as determined by the court, and under those circumstances, the court, in its discretion, ...

Excerpt: ...ntal declarations). Civ. Code S 1717(a) provides: In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attor...

Excerpt: ... California Clerk Recorder Fictitious Business name searches. JUDGMENT ON THE PLEADINGS A moton for judgment on the pleadings has the same function as a general demurrer and the same rules govern except as provided by CCP 5438. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) CCP 5438 sets forth the grounds and procedures for the motion. The grounds for a motion for judgment on the pleadings must appear on the face of the challen...

Excerpt: ...(Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255.) The same liberal policy regarding amendment of pleadings applies as on sustaining demurrers. Therefore, as long as the defect is correctible, an amended pleading will usually be allowed. (C.C.P. §576; Grieves v. Sup. Ct. (Fox) (1984) 157 Cal.App.3d 159, 168; Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360.) Irrelevant matter includes allegations that are not essential to the claim; ...

Excerpt: ...gh the filing of a timely creditor's claim (Prob. Code, § 9100 et seq.) in the pending probate proceeding for the administration of Jorge Cuevas's estate. The demurrer is sustained without leave to amend if Plaintiff cannot explain how the Complaint may be amended. As to the fifth, sixth, and seventh causes of action, the Demurrer is overruled for the reason that Plaintiff has sufficiently stated a cause of action for impairment of community pro...

Excerpt: ...cal error” is shown, the judgment is corrected nunc pro tunc, i.e., the correction dates back to the when the judgment was entered. (Ames v. Paley (2001) 89 Cal.App.4th 668, 673; Bell Farmers Ins. Exch. (2006) 135 Cal.App.4th 1138, 1144.) A “clerical error” results when the order or judgment misstates the court's actual intent, i.e., an error in recording the judgment rendered. (Burch v. CertainTeed Corp. (2019) 34 Cal.App.5th 341, 346; Mar...

Excerpt: ... records of any court of this state]; See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569; also see Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Here, Defendant requests the Court take judicial notice of the prior lawsuit, but it is not relevant based on the sole argument presented – that the Court lacks jurisdiction over the matter because it is barred by the two-year statute of limitations in C.C.P., § 338.1. A...

Excerpt: ...this state].) Upon the petition/motion of a party to an agreement to arbitrate, the court must grant a petition to compel arbitration unless it finds: no written agreement to arbitrate exists; 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.) A proceeding to compel arbi...

Excerpt: ...e motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” “A party seeking a continuance under that subdivision must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.” (Combs v. Skyriver Communications, Inc. (2008) 159 Cal...

Excerpt: ...d 6th causes of action; sustained with leave to amend as to the 1st, 4th, 7th, 8th and 10th causes of action and sustained without leave to amend as to the 9th, 11th and 13th causes of action. (The previous demurrer was overruled as to the 2nd, 5th and 12th causes of action.) The Demurrers of Defendants Schneider and Nimmo is overruled as to the 3rd cause of action; sustained with leave to amend as to the 4th, 6th, 7th, 8th and 9th causes of acti...

Excerpt: ...) 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 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...

Excerpt: ...urt, upon motion reasonably made by the party, the witness, any consumer, or employee whose personal records are sought, “or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, 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 m...