Excerpt: ...� 452(d).) A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 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 properly pleaded, of fac...

Excerpt: ...t within 15 days from the order; and (3) a prefiling order is issued against Appellant, prohibiting him from “filing any new litigation in the court of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed” (Code Civ. Proc., § 391.7), as the term “litigation” is defined under Code of Civil Procedure section 391, subdivision (a). De...

Excerpt: ...endant in resisting the plaintiff's claims; or to demand anything adverse to both parties. (CCP § 387(a).) The purposes of intervention are to obviate delay, avoid multiplicity of suits, and protect the interests of those who will be affected by the judgment. (People v. Superior Court (Good)(1976) 17 Cal.3d 732, 736.) There are two types of intervention, permissive and mandatory. (CCP § 387(a), (b).) Mandatory intervention requires the court to...

Excerpt: ...FOR JUDICIAL NOTICE: Defendant requests judicial notice of numerous court documents, including: two unlawful detainer complaints filed by Erma Kerrigan Trust against William Hewett; a wrongful foreclosure against filed by William Hewett against the Trust; the unlawful detainer judgments; the Complaint in the present action; the April 30, 2021 Answer filed by Colleen as Trustee of the Trust and as a representative of the Trust; the April 25, 2022 ...

Excerpt: ... fee and cost incurred in bringing the instant motion must made through a separate motion for fees. “The Legislature enacted…anti-SLAPP statute [strategic lawsuit against public participation]…to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Code of Civil Procedure section 425.16 provides a two-step tes...

Excerpt: ... of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” Given the disposition of this motion, the ruling on the objections are not relevant to the ruling on this motion. SUMMARY JUDGMENT/ADJUDICATION “On motion for summary judgment, the issues are framed by the pleadings since it is those allegations to which the motion must respond.” (Scolinos v. Kolts (1995) 37 Cal....

Excerpt: ...suant to CRC 3.110(b & f) FIRST CAUSE OF ACTION An agreement for the sale of any interest in real property is invalid unless it is in writing. (Civil Code § 1624(a)(3); Alameda Belt Line v. City of Alameda (2003) 113 Cal.App.4th 15, 20-21.) FOURTH CAUSE OF ACTION No representation. Representations concerning future events – e.g., predicting future conditions in the real estate market – are generally not actionable, whereas representations of...

Excerpt: ...ned with leave to amend within 20 days. Motion to Strike is moot. A demurrer also lies where the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 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 tru...

Excerpt: ...rty expects to offer in evidence at trial. CCP § 2034.280 provides that a party may submit a supplemental list of experts who will express an opinion on a subject to be covered by an expert designated by the opposing party. Failure to comply with these rules is grounds to exclude the expert. (CCP §2034.300.) To properly amend an expert witness list, a party must seek leave from the court. (CCP §2034.610.) The issue is whether Plaintiff was aut...

Excerpt: ...cial notice of the Notice of Entry of Dismissal and Proof of Service filed in the Sacramento Superior Court in the Felisilda v. FCA US LLC (Exhibit B) is denied, as the document will not aid the court in resolution of the present motion. (See Aquila v. Superior Court (2007) 148 Cal.App.4th 556, 569 [only relevant material may be noticed].) EVIDENTIARY OBJECTION With her opposition, Plaintiff includes a single evidentiary objection to the RISC att...

Excerpt: ...he plaintiff does not have the burden to disprove affirmative defenses. (Id.) At that point, the burden shifts to the defendant to show that a triable issue exists. (Id.) Plaintiff fails to meet her initial burden. Whether or not Plaintiff is an employee or an independent contractor does not demonstrate that Plaintiff is entitled to judgment as a matter of law, i.e. it does not address the elements of each cause of action. The 1st cause of action...

Excerpt: ...; Watts v. Crawford (1995) 10 Cal.4th 743, 749.) In order to obtain an order permitting service by publication, a plaintiff must submit the declaration of a competent witness to show: that reasonable attempts have been made to serve the defendants by some other authorized method; and (2) the existence of a cause of action or interest in property. (CCP § 415.50(a).) Reasonable diligence means a thorough, systematic investigation and inquiry condu...

Excerpt: ...torney's fees is denied. Defendants' DLJJ, DDS and Stuart Rubin Motion for Joinder is denied. 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 speech” … includes … any written or oral statement or writin...

Excerpt: ...an be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the proper time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Defendant brings this motion on the ground that, although there is a proof of service, it is not properly executed by a licensed process server, and he was not actually served. C.C.P., § 473(d) permits the court to vacate a void judgment. “[C]...

Excerpt: ...ling party is entitled as a matter of right to recover costs in any action or proceeding.'” (Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) In determining whether a party is a prevailing party which could recover costs, trial court determines whether the party succeeded “at a practical level [by] realiz[ing] its litigation objectives” and whether “the action yielded the primary relief sought” in the case. (Friends of Spring Street v. N...

Excerpt: ...o the court by noticed motion for an order requiring the plaintiff to file an undertaking if the plaintiff resides out of the state. The undertaking would secure an award of costs and attorney's fees that might be awarded in the action. (C.C.P., § 1030(a); see also Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914 [constitutionality upheld].) The statute serves a legitimate purpose of securing costs in the face of the difficult...

Excerpt: ...tion to Compel Further responses (Int. 25 and 26) is granted. A party may move for an order to compel a further response if it deems the responding party's objections are without merit or too general. “Absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact‐specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal. App. 4th 92, 9...

Excerpt: ...available. (Abbott, et. al., Cal. Civil Discovery Practice (4th ed. Cal. CEB 2022) § 15.91 citing, CCP §§2023.010(g), 2023.030.) For example, CCP §2030.300(e) provides that if a party fails to obey an order compelling further responses to interrogatories, "the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction," in addition to the imposition of further mone...

Excerpt: ...ROPERLY NOTICED C.C.P., § 1005(b) requires that motions be filed and served at least 16 court days before the scheduled hearing. However, when service is affected through electronic mail, the moving party must provide 2 additional court days of notice. (C.C.P., §§ 1005(b), 1010.6(a)(4).) Here, Defendant e‐served the motion on January 5, 2023 ‐ exactly 16 court days before the scheduled hearing ‐ and did not provide the additional 2 days ...

Excerpt: ... of all material facts which have been properly alleged, facts which may be inferred from those expressly alleged, and material facts of which judicial notice has been taken. Crowley v. Katleman (1994) 8 Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. REQUEST FOR JUDICIAL NOTICE County seeks judicial notice of ...

Excerpt: ... is overruled for unfair competition, and Plaintiff Lisa Esparza's standing to pursue the fifth cause of action for unfair competition. Defendants' motion to strike is taken off calendar as moot to the extent it seeks to strike Plaintiffs' claims for punitive damages. Defendants' motion to strike Plaintiffs' claims for attorney fees is granted without prejudice. Order to Show Cause is set for 3/28/2023, AGAINST LISA ESPARZA AND HARLAN BARTLETT KI...

Excerpt: ...d $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). A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 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 Univ. of Cal. ...

Excerpt: ...g interests” to civil cases as in criminal, relied not only on CCP section 124 but on the state and federal constitutions, emphasizing “The need to comply with the requirements of the First Amendment right of access…” [Id. at 1226.] That decision was then codified in the California Rules of Court, at Rule 2.550: “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an ov...

Excerpt: ...e derivative claim because Plaintiff alleges sufficient facts to support wrongdoing based on conspiracy. As to the 6th cause of action, the Demurrer is sustained with leave to amend within 20 days. This claim is uncertain because Plaintiff fails to allege how Defendant breached the operating agreement or what terms were allegedly breached. As to the 13th cause of action, the Demurrer is sustained with leave to amend within 20 days. There are insu...

Excerpt: ... 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. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contenti...

Excerpt: ...ecause Plaintiff failed to plead the alleged misrepresentations with sufficient specificity. The demurrer is overruled as to the sixth cause of action because fraud by concealment requires less specificity than fraud based on affirmative misrepresentations. The economic loss rule does not apply to claims based on fraud. A party may object by demurrer to a complaint on grounds that the pleading does not state facts sufficient to constitute a cause...

Excerpt: ...ons are treated by the court as motions for judgment on the pleadings, and both are granted without leave to amend. For the 4th cause of action, Defendant's motion for summary adjudication is denied as the City failed to establish that it complied with Government Code §3306.5. For the 5th cause of action, Defendant's motion for summary adjudication is granted as Plaintiff failed to create a triable issue on a prima facie case of discrimination b...

Excerpt: ... within 20 days. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 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 properly pleaded, ...

Excerpt: ...aim for damages or issue of duty. (CCP § 437c(f)(1).) Although summary judgment/adjudication is no longer considered a “disfavored” procedure, the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App. 4th 832.) Plaintiff is required to show that there is no defense to a cause of action if each element has ...

Excerpt: ... declaration identifying and specifically discussing any discovery request that is in dispute. A party may move for an order to compel a further response if it deems the responding party's 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).) The burden to show good ca...

Excerpt: ...closure of the confidential material. 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. The demanding party must designate documents by specifically 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 cate...

Excerpt: ...eement; 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 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 verbati...

Excerpt: ..., Rule 4 (Ex. C); (4) Indiana Rules of Court, Rules of Trial Procedure, Rule 4.1 (Ex. D); and (5) Proof of Service on Defendant in the Indiana case (Ex. E). The unopposed request is granted under Evidence Code §452(d). VACATING SISTER‐STATE JUDGMENT Per CCP § 1710.25, entry of judgment on a sister state judgment is a ministerial act by the clerk of the court, based on an application showing that judgment has been entered against the defendant...

Excerpt: ...Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee); see also Oaks Management Corp. v. Sup. Ct. (2006) 145 Cal.App.4th 453, 462.) “The power is frequently exercised on a showing that disqualification is required under professional standards governing … potential adverse use of confidential information.” (Responsible Citizens v. Sup. Ct. (1993) 16 Cal.App.4th 1717, 1723–1724.) However, in exerci...

Excerpt: ...murrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 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 properly pleaded, of facts which may be inferre...

Excerpt: ... Corp. v. County of Imperial (1983) 35 Cal.3d 63.) In exercising that discretion, the court evaluates two interrelated factors: the likelihood that the plaintiff will prevail on the merits at trial, and the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. (Nutro Products, Inc. v. Cole Grain Co. (1992) 3 Cal.A...

Excerpt: ...rial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), 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 or conditions as the court shall declare, including protective orders. In addition, the court may make ...

Excerpt: ...he settlement was made in good faith shall bar any other tortfeasor or co‐obligor from any further claims against the settling tortfeasor or co‐obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (CCP § 877.6(c).) To reach a good‐faith determination, the court must assess whether the settlement figure falls within a reasonable range. (See PacifiCare o...

Excerpt: ...sponses to Requests for Production, Set Two, granted. Sanctions against Plaintiffs is awarded in the reduced amount of $485. CCP §2030.290(b) and §2031.300(b) allow the propounding party to file a motion to compel responses to interrogatories and document demands if a response has not been received. If responses are untimely, responding party waives objections. (CCP §2030.290(a) and §2031.300(a).) The moving party is not required – though i...

Excerpt: ...o 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 any material fact and the defendant is entitled to a judgment as a matter of law.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002‐ 1003.) “The moving party bears the burden of production to make a prima facie showing of the nonexistence of any triable issue of ma...

Excerpt: ...tween the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) “No medical malpractice claim is viable without expert testimony establishing the appropriate standard of care.” (William v. Prida (1999) 75 Cal.App.4th 1417, 1424.) “The standard of care against which the acts of a physician are to be measured is a matter pecu...

Excerpt: ...radict Dr. Kessler, they have not established that any triable issues exist as to the Medical Malpractice, NIED and Loss of Consortium. 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 any material ...

Excerpt: ... granted as to the existence of the documents but not the truth of their contents. (Evid. Code §§ 452(c) & d [permitting judicial notice of “[o]fficial acts of the executive . . . departments of the United States” and “[r]ecords of . . . any court of record of the United States”]; People v. Morales (2018) 25 Cal.App.5th 502, 511, fn. 7 [“courts may take judicial notice of information published on official government websites”].) A g...

Excerpt: ...Reply. The request is untimely and the rulings are not binding on this Court; the request is denied as irrelevant and untimely. MOTION TO COMPEL ARBITRATION A party to an arbitration agreement may seek a court order compelling the parties to arbitrate a dispute covered by the agreement. (CCP § 1291.2.) The court must grant the petition to compel arbitration unless it finds the right to compel arbitration has been waived by the moving party; grou...

Excerpt: ...omplaint to correct an error in the description of the vehicle. The court reduces the time allocated to amending the complaint by reducing Mr. Brennan's time by 2 hours and deleting $112.50 of Ms. Jones' time, for a reduction of $1,502.50 from the litigation total. Thus, the litigation fees are reduced by $1,502.50, for a total of $17,917.00 allocated to litigation of the matter. The court also reduces the time spent on the present motion. The bi...

Excerpt: ...uests for production has the burden to state specific facts demonstrating good cause justifying the discovery sought. C.C.P. §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 for production “is met simply by a fact‐specific showing of relevance.” Tbg Ins. Servs. Co...

Excerpt: ...ordinary discovery cut‐off. (Code Civ. Proc., § 2024.020(a)). For discovery concerning designated experts, discovery proceedings must be completed on or before the 15th day, and to have motions concerning that discovery heard on or before the 10th day, before the date initially set for the trial of the action. (Code Civ. Proc., § 2024.030.) A continuance or postponement of the trial date does not operate to automatically reopen discovery proc...

Excerpt: ...missal pursuant to a delay in prosecution. When a nonresident defendant challenges personal jurisdiction the burden shifts to the plaintiff 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 plainti...

Excerpt: ...er has failed to meet his burden to demonstrate that the Arbitrator committed a manifest abuse of discretion in upholding Petitioner's termination. SUMMARY OF PROCEDURAL FACTS Petitioner was served on June 30, 2020, with a Letter of Intent to Terminate for violation of Article XII, Section 2, of the County of Riverside Terms and Conditions of Employment with the Riverside Sheriff's Department related to a jail incident on June 22, 2019. The Depar...

Excerpt: ...s 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 any material fact and the defendant is entitled to a judgment as a matter of law.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002‐1003.) “The moving party bears the burden of production to make a prima facie showing of the nonexistence of any triabl...

Excerpt: ...or sanctions is denied. Motion to Compel Production and Responses, Set Two, is denied as to RFP nos. 107‐111, 113‐ 119, 136 as moot. Motion to Compel is denied as to RFP nos. 123‐128, 131‐134 because Plaintiff waived the right to compel by failing to seek further responses to earlier, substantially similar, requests. Motion to Compel is granted as to RFP nos. 129, 130 and 135 because the responses are not compliant with CCP § 2031.240; D...

Excerpt: ...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. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusi...

Excerpt: ...ought to be discovered are privileged, protected, or beyond the scope of discovery. (Code Civ. Proc., § 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) 1...

Excerpt: ...ut merit or too general. (CCP § 2031.310(a).) In a motion 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 § 2031.310(b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.) The burden to show good cause for production “is met simply by a fact‐specific showing of relevanc...

Excerpt: ... 2030.090(b), 2030.040(b), 2033.080(b).) The moving party has the burden of establishing good cause for a protective order. (Emerson Elec. Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.) This requires a showing that the burdens involved clearly outweigh whatever benefits are sought. (Code of Civil Procedure, section 2017.020(a).) THE RELEVANCE OF THE SUBJECT DISCOVERY TO THE ALLEGATIONS OF THE FAC ARE NOT APPROPRIATE FOR A MOTION FOR PROTECT...

Excerpt: ... 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. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not ...

Excerpt: ... counterpart). A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 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 properly pleaded, of...

Excerpt: ... 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. (Aguilar v. At...

Excerpt: ...sts, the moving party must state facts demonstrating good cause justifying the discovery sought by demonstrating relevance and specific facts justifying discovery. (Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.) The burden to show good cause for production “is met simply by a factspecific showing of relevance.” (Tbg Ins. Servs. Corp. v. Sup. Ct. (2002) 96 Cal.App.4th 443, 448.) Once good cause is established, the responding party has the...

Excerpt: ...s an additional two hours of attorney time for preparation of the present motion, for a total award of $7,150.00. The court awards costs on appeal in the amount of $961.00. The court rejects plaintiff's contention that the fees should be reduced because defendant Papp, and not attorney Peterson, prepared Page 7 of 7 the briefing on appeal and performed the work. Plaintiff provides no evidence to support the contention. The prevailing defendant on...

Excerpt: ... allowed to recover under section 1032 includes attorney's fees authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5(a)(10)(A),(B)&(C).) Labor Code section 218.5 states the court “shall award reasonable attorney's fees to the prevailing party…in any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions….” Labor Code section 226(e)(1) also provides for attorney's fe...

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: ...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: ...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: ...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: ... 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: ...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: ...) 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: ...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...

Excerpt: ...(applicable to deposition subpoenas). (Weil & Brown, CPG: Civ. Proc. Before Trial (TRG 2022) Ch. 8E, §8:609.1.) A showing of “good cause” is required on motions to compel discovery from a party, but there is no specific requirement on such a motion directed to a nonparty for compliance with a deposition subpoena for document production. (Id. at § 8:609.3.) The Berman Opposition argues that this motion is procedurally defective because no no...

Excerpt: ...ly concealed the fact with intent to defraud; (4) the plaintiff was unaware of the fact 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; Kladenback v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.) Each element of a claim for fraud must be pleaded wi...

Excerpt: ...leave to amend. GENERAL DEMURRER A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 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 pr...

Excerpt: ...ce, surprise, or excusable neglect. “The general underlying purpose of section 473(b) is to promote the determination of actions on their merits.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal. 4th 830, 839.) The statute should be construed liberally where the party moves promptly for relief, and the party opposing the motion will not suffer prejudice if relief is granted. (Fasuyi v. Permatex, Inc. (200...

Excerpt: ...STRIKE COMPLAINT ON 1ST AMENDED COMPLAINT FOR OTHER PERSONAL INJURY/PROPERTY DAMAGE/WRONGFUL DEATH TORT (OVER $25,000) OF ROB STEWART CVRI2101702 STEWART VS EAGEL TIME CARE FACILITY AND MEDICAL TRANSPORTATION LLC DEMURRER ON 1ST AMENDED COMPLAINT FOR OTHER PERSONAL INJURY/PROPERTY DAMAGE/WRONGFUL DEATH TORT (OVER $25,000) OF ROB STEWART Tentative Ruling: Defendants Horizon Valley Home Health Care's and Canyon Springs Dialysis' Demurrer as to the ...

Excerpt: ...o the hearing itself, but includes due process requirements of adequate notice and opportunity to be heard. Gonzalez v. Santa Clara County Dep't of Social Servs. (2014) 223 Cal.App.4th 72, 96. The issue of fair trial is decided by an independent review by the court and if the court finds there has been a denial of a fair hearing, the court should issue a judgment granting the petition. English v. City of Long Beach (1950) 35 Cal.2d 155, 159; Wood...

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: ...ation in compliance with the meet and confer requirements of Code of Civil Procedure section 430.41. Plaintiff shall file an opposition no later than 11/9/22, Defendant Page 3 of 4 shall file a reply, if any, no later than 11/16/22. If the parties agree to the filing of a third amended complaint in lieu of a hearing on defendant's demurrer to the second amended complaint, defendant shall notify the court promptly. The motion is captioned as a mot...

Excerpt: ...inee's bodily and mental privacy and other constitutional rights. (Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 343.) “Good cause” requires that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) Notably, if the plaintiff stipulates that no...

Excerpt: ...that case. (See also Towner v. County of Ventura (2021) 63 Cal.App.5th 761.) The litigation privilege bars plaintiff's cause of action for defamation. Plaintiff's invocation of Civil Code section 47, subdivision (b)(5), has not shown that that the reports were “false,” or that defendants made them “with reckless disregard for the truth or falsity of the report.” The requests for judicial notice are denied as irrelevant. (See, e.g., Mangin...

Excerpt: ...s.” (Dunzweiler v. Superior Court (1968) 267 Cal.App.2d 569, 576.) While courts will occasionally deny leave to amend when the motion is brought on the eve of trial (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486; Nelson v. Specialty Records, Inc. (1970) 11 Cal.App.3d 126, 139‐140), “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports...

Excerpt: ...18, 19, and award sanctions in the reduced amount of $720. 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 Page 3 of 4 response is without merit or too general), that party may file a motion to compel further responses. (CCP § 2031.310.) The motion must be accompanied by a declaration showing a “reasona...

Excerpt: ...ty's option to produce writings; or (3) an objection to the particular interrogatory. (Id. at §§ 2030.210(a)(1)–(3).) There is no requirement that a party moving to compel further interrogatory responses must show good cause. Plaintiff moves to compel GM to provide further responses to his first set of FROG No. 12.1, which asked: State the name, ADDRESS, and telephone number of each individual: (a) who witnesses the INCIDENT or the events occ...

Excerpt: .... 5, 10, 14 and 23. REQUEST FOR PRODUCTION OF DOCUMENTS Pursuant to CCP § 2031.010, a party may demand that any other party produce and inspect a document that is in the possession of another party. The responding party must respond to each request by either a statement that the party will comply, a representation that the party is unable to comply or an objection. (CCP §§ 2031.210(a)(1)–(3).) A moving party must establish good cause justify...