Excerpt: ...on 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 Gruman Corp. (1998) 67 Cal.App.4th 995, 999.) All facts alleged in are deemed admitted and given a reasonable interpretation. (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal. App. 4th 194, 198.) "No matter how unlikely or improbable, a plaintiff's allegations mus...

Excerpt: .... (Cal. Code Civ. Pro. S 2031.310(b)(2); Cal Code Civ Proc S 2030.300(b.) "This rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order." ( ownsend v. Superior Court (1998) 61 Cal. App. 4th 1431, 1435.) The level of effort necessary to satisfy the requirement varies depending on the circumstances of the case, but a serious effort is required. (Stewart v. Colonial Western A...

Excerpt: ...ts; 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 S 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/moton to compel...

Excerpt: ...ys. 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 properly pleaded, of facts whic...

Excerpt: ...ining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order." (CCP 5533.) The court has inherent power to or dissolve preliminary injunctions. (City of San Marcos v. Coast Waste Management, Inc. (1995) 47 Cal.App.4th 320, 328.) On May 30, 2023, the Court issued the preliminary injunction prohibiting Moving Defendants from instituting or prosec...

Excerpt: ....P. 52025.280(a).) Pursuant to C.C.P. 52025.450(a), where a party fails to appear, without a valid objection, the party giving notice of the deposition may move for an order compelling attendance, testimony, and the production of documents. The motion must show good cause, and be accompanied by a meet and confer declaration under C.C.P. 52016.040. (C.C.P. 52025.450(b).) Evaluating whether a "reasonable and faith attempt" to meet and confer was ma...

Excerpt: ... to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence." A p...

Excerpt: ...oos Fire Protecton (2012) 53 Cal.4th 1244, 1248 [prevailing party may recover attorney's fees only when a statute or contract provides for fee shiftingl.) Accordingly, Plaintiff's request for attorney's fees in the amount of $28,722.72 is denied. Plaintiffs indicate that they continued to pay half the mortgage payment for the Property for 18 months in the total amount of $15,118.92 while Defendant failed to make any payment. The only support for ...

Excerpt: ... court. [See CCP S 1048] The purpose is to enhance trial court efficiency (i.e„ to avoid unnecessary duplication of evidence and procedures); and to avoid the substantial danger of inconsistent adjudications (i.e., different results because tried before different juries, or a judge and jury, etc.). [See Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 CA4th 976, 978-979, 56 CR2d 16, 17- 18] By statute, "(w)hen actions involving a common...

Excerpt: ...oral arguments will be heard 11/29/23). A general demurrer lies where the pleading does not state facts sufficient to consttute a cause of action. (C.C.P. 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...

Excerpt: ...to arbitrate the dispute covered by the agreement. (C.C.P. S 1281.2.) There is a strong public policy in favor of arbitration agreements." (Blake v. Ecker (2CM) 93 Cal.App.4th 728, 741.) Upon the petition/moton 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 rescission of the ...

Excerpt: ...mann, a registered Civil Engineer, particularly on grounds of lack of foundation, hearsay, lack of personal knowledge, speculation and improper bases for opinion. These objections are overruled. Caltrans' objections to Zacheis' evidence Objections to Plaintiff's Documentary Evidence Caltrans makes 11 objections (Objections 1-11) to Plaintiff's evidence, asto Exhibits B, C, D, E H, l, N, P, Q, and T primarily on grounds of no authentication, impro...

Excerpt: ...ut all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP 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 str...

Excerpt: ...to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other achon assert against the plaintiff the related cause of action not pleaded. A "related cause of action" is defined under CCP S 426.10(c) as, "a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as t...

Excerpt: ...1038 is authorized on the granting of a moton for summary judgment or other dispositive motion at trial. (C.C.P., S 1038(d).) "The plain purpose of section 1038 is to discourage frivolous lawsuits against public entities by providing public entities with an alternative remedy to a constitutionally proscribed action for malicious prosecution." (Gamble v. Los Angeles Dept. of Water and Power (2002) 97 Cal.App.4th 253, 258—259.) To support an awar...

Excerpt: ... are barred by res judicata, and the Complaint is insuffcient to state a cause of action. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., 5430.10(e).) 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 ma...

Excerpt: ...t. (CCP S 437c(p)(1); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) Once the plaintiff has made such a showing, the burden shifts to the defendant to produce admissible evidence showing that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (CCP S 437c(p)(1); Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 565.) If the defendant does not mak...

Excerpt: ...All parties and their counsel must regard the date set for trial as certain." Cal Rules of Ct 3.1332(a). In ruling on a moton to continue the trial, the court will look at the factors set forth in Cal Rules of Ct 3.1332(c)—(d). The trial court has wide discretion in deciding whether to grant or deny a continuance, and its decision will be reversed only when an abuse of discretion is clear. Link v Cater (1998) 60 CA4th 1315, 1321. The denial of ...

Excerpt: ... DEMURRER Goldenvoice served and filed its demurrer less than 16 court days prior to the hearing. (C.C.P., S 1005(b).) However, Plaintiff arguably waived any defect in the service and filing by filing a substantive response on the merits. (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7; Carlton v. Quint (20m) 77 Cal.App.4th 690, 697.) Accordingly, the court may give due consideration to the demurrer. MERITS A general demurrer lies where the p...

Excerpt: ... in whose favor a dismissal is entered, 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. (Emphasis supplied.) under the plain language of the statute, Defendants are prevailing parties. CCP S 1033.5(a) contains a list of items specifically allowed as recoverable costs, and S 1033.5(b) contains a list of items that "are not allowa...

Excerpt: ...th 1324, Kielar v. Su#rior Court (2023) 94 Cal.App.5th 614 and Ngo v. BMW of N. Am. , LLC (9th Cir. 2022) 23 84th 942, 950 is granted. (Evid. Code S 451(a) [mandatory judicial notice of decisional law of this state and of the United States].) EVIDENTIARY OBJECTION Plaintiffs make a single objection to the introduction of the RISC (Exhibit A) by the Michel Declaration on the grounds, among others, that the RISC is not properly authenticated and am...

Excerpt: ...the lease for the Property between the parties. However, the document is only by Plaintiff Taylor and is disputed by Defendant. Thus, the request is denied. Evid. Code S 452. A motion for judgment on the pleadings has the same function as a general demurrer and the same rules govern, except as provided by C.C.P. 5438. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) C.C.P. 5438 sets forth the grounds and procedures for the motion...

Excerpt: ... inadvertence, surprise, or excusable neglect within six months after judgment, dismissal, order, or proceedings has been taken. In the absence of an attorney affidavit of fault, the burden is on the moving party to show that the default could not have been avoided through the exercise of ordinary care. Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. The court is empowered to relieve a party "upon such terms as may be just... from a judg...

Excerpt: ...t merit or too general. (CCP 52031.310.) 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 propounding 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).) Failure to comply with the discovery deadline "is only 'jurisdictional' in the sense...

Excerpt: ...ttorney's fees. Thus, the Court declines to rule on Defendants' evidentiary objections filed in support of their opposition since the objections concern evidence immaterial to the Court's decision on the motion. "under the American rule, each party to a lawsuit ordinarily pays its own attorney fees ... ." (Orozco v. WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 406.) "Parties may validly agree that the prevailing party will be awarded attorney fee...