Excerpt: ...ending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) “There is a strong public policy in favor of arbitration agreements.” (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741.) “California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act [(FAA)], including a presumption in favor of arbitrability and a requirement that an arbitration agreem...

Excerpt: ...e liable for common law theories of general negligence. (Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876, 899.) Therefore, liability against a public entity must be authorized by statute. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179.) Plaintiff's FAC alleges Gov. Code § 815.2(a) and 820(a). Section 815.2 states: “A public entity is liable for injury proximately caused by an act or omission of an employ...

Excerpt: ... to 31 (subject to protective order), 33 (subject to protective order), 37, 40, 43, 57 (subject to protective order) and 58 (subject to protective order); DENIED as to Nos. 9, 13, 17, 48, 51–55. As to RFP Nos. 31, 33, 57, and 58, the parties are ordered to prepare a proposed protective order; or GM can file a motion for protective order to ensure that its documents are appropriately protected. Any party may obtain discovery by propounding to an...

Excerpt: ...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 the complaint are deemed admitted and the complaint is given a reasonable interpretation. (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) A motion for judgment on the pleadings by a defendant may be made on the grounds either that the ...

Excerpt: ...tion of the plaintiff,” provided the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. Such a demand may be made without leave of court once the defendant has been served or has appeared in the action. “In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, provided the examination does not include an...

Excerpt: ...e 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 inferred from those expressly pleaded, and of any material facts of which judicial notice ...

Excerpt: ....C.P. §§426.50; 428.50). With exceptions (such as restraining orders) not applicable here, a minor can only appear in court through a guardian ad litem. (C.C.P. §372.) And the guardian ad litem must act through an attorney; the guardian (and, needless to say, the minor) cannot appear in propria persona. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965‐967.) This is because “[w]hile the guardian ad litem has the power to assent to pro...

Excerpt: ...ntially complied with the flexible, informal rules established by the District's Governance Manual and the agenda for the December 1, 2020 general meeting provided sufficient information to allow the public a fair chance to participate. As such, there was no Brown Act violation. Based on this evidence. the District's actions on December 29, 2020 and April 16, 2021 were arbitrary and capricious. WRIT OF MANDATE: A proceeding for the issuance of a ...

Excerpt: ...strike, it is denied. The court may, upon a motion made pursuant to CCP § 435, or at any time in its discretion, and upon terms it deems proper strike out any irrelevant, false, or improper matter inserted in any pleading, or strike out 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 § 436.) A motion to strike is also the proper vehicle to attack a punitiv...

Excerpt: ...djudication as to: (1) first cause of action for breach of express warranty against Walters on the ground that the subject vehicle was never presented for repairs during Walters' warranty period failing the presentment requirement of the Song‐Beverly Act; (2) second cause of action for breach of implied warranty against MBUSA on the ground that MBUSA did not act as a distributor of the subject vehicle as a used good under Civ. Code § 1795.5; a...

Excerpt: ... 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. Katleman (1994) 8 Cal.4th...

Excerpt: ...nder attack, or from matters outside the pleading that are judicially noticeable (Blank vs. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a complaint under the general demurrer standards, if there is any valid cause of action stated, even if not the one intended, the complaint is sufficient. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations...

Excerpt: ...unction as a general demurrer, but is made after the time to file a demurrer has expired. C.C.P. §438(c). Lack of jurisdiction and the failure to state facts sufficient to constitute a cause of action are the only two grounds under which a motion for judgment on the pleadings may be brought. C.C.P. §438(c). Like a demurrer, the grounds for a motion for judgment on the pleadings “must appear on the face of the challenged pleading or be based o...

Excerpt: ...$0 Expert Witness Fees $11,117.49 $1,137.14 Other: Attorney Service/Messenger Fees $0 $994.67 Court Call $124.00 Appearance Attorney $0 $65.00 Mediation Costs $0 $117.19 TOTAL $16,449.04 $2,314.00 KA brings this motion pursuant to Cal. Rules of Court (“CRC”), Rule 3.1700, which provides that a prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of the mailing of the entry of judgment . . ....

Excerpt: ...otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense ...

Excerpt: ...ti‐SLAPP context, “good cause” for conducting discovery requires a showing that the specific discovery is necessary for the plaintiff to oppose the anti‐SLAPP motion and is tailored to that end. (Balla v. Hall (2021) 59 Cal.App.5th 652, 692; Murray, 55 Cal.App.5th 10, 37.) “The statute's truncated time frame for anti‐SLAPP filings and hearings [Citation]; its provision for a stay of all discovery proceedings [Citation]; and its allowa...

Excerpt: ...1.) The Court is to consider the issues raised, determine the relevancy of the “evidence” sought, and whether production would be an invasion of privacy. (Southern Pacific Co. v. Superior Court (1940) 15 Cal.2d 206, 209.) The documents sought from First American are as follows: No. 1: Any and all DOCUMENTS, WRITINGS and COMMUNICATIONS between FIRST AMERICAN and EMPIRE WATER with regard to the 1917 DEED (Exhibit “I”) at any time. No. 2: Al...

Excerpt: ...has expired. (CCP § 438(e)(2); Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1998) §§ 7:275 & 7:322.) A motion for judgment on the pleadings “attacks only defects disclosed on the face of the pleading or by matters that can be judicially noticed” and “[p]resentation of extrinsic evidence is therefore not proper on a motion for judgm...

Excerpt: ...nd. As to the remainder Demurrer, it is otherwise overruled; and the Motion to Strike is denied. Although parties agree that the First Amended Complaint is the operative complaint, Plaintiff is ordered to file First Amended Complaint with the court. 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) ...

Excerpt: ...or about February 14, 2022, Case No. 21STCV47354, Jane Doe v. Idyllwild Arts Foundation and Keith Lewis. This document may be judicially noticed pursuant to Cal. Evid. Code §452(d), which permits judicial notice of court records. However, “although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reas...

Excerpt: ...ed prior to the date of the offer. The exhibit costs is taxed $551.00 for in‐house Page 3 of 5 printing costs because the exhibits were not used at trial to assist the trier of fact. In total, the costs are taxed $31,042.62. “Except as otherwise provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Cal Code Civ Proc § 1032(b).) Cal. Rules of Court (“CRC”), Rule 3.1700 p...

Excerpt: ...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. (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 acti...

Excerpt: ...claration stating that the petitioner has contacted the deponent to inquire about the nonappearance. The motion is accompanied by the declaration of Attorney Jennifer Baskaron, who provides copies of the many correspondences between counsel regarding the depositions. (Baskaron Decl. ¶¶5‐12.) It is clear that counsel discussed these issues prior to the filing of the motion, so technically the meet and confer requirement has been met. However, ...

Excerpt: ...ant to Corporation Code section 2200 for failure or refusal to keep record of shareholders or books of account, and for award of attorneys' fees and costs of suit, pursuant to Corporation Code section 1604, is also be denied. I. Evidence submitted with briefs. In support of the Petition for Writ of Mandate, Petitioner's Opening Brief is filed concurrently with: • The declaration Petitioner's counsel, Andrew L. Shadoff (“Shadoff Decl.”); •...

Excerpt: ...in 20 days as to the 5th, 6th and 9th causes of action because these causes of action were not pled with specificity. The Motion to Strike is granted as to the minor defects in Paragraph 19 and the first and second causes of action since Plaintiff essentially concedes they were errors and should be amended for clarity. The Motion to Strike the prayer for punitive damages is granted with leave to amend as to Defendant Alan Kaye since the demurrer ...

Excerpt: ...n anti‐ SLAPP motion. (CCP § 425.16(b). The trial court may still order that specified discovery be conducted “for good cause shown,” and continue the hearing on the anti‐SLAPP motion. (Ibid.;Murray v. Tran (2020) 55 Cal.App.5th 10, 37.) In the anti‐SLAPP context, “good cause” for conducting discovery requires a showing that the specific discovery is necessary for the plaintiff to oppose the anti‐SLAPP motion and is tailored to t...

Excerpt: ... is granted under Evidence Code §452(d). I. ENFORCING AN ARBITRATION AGREEMENT Under California law, Code of Civil Procedure §1281.2, a party to an arbitration agreement may move to compel arbitration if another party to the agreement refuses to arbitrate, and the court shall order the parties to arbitrate if it determines that an agreement to arbitrate exists, unless it determines that: (a) The right to compel arbitration has been waived by th...

Excerpt: ... equity to compel specific performance of a contract.” (City of Hope v. Cave (2002) 102 Cal.App.4th 1356, 1369.) CCP § 1281.2 provides that “on petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that ...

Excerpt: ...231 Cal.App.4th 1337, 1341.) 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 co...

Excerpt: ...n and order entered in this case on February 23, 2022, 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. In an action for partition, the court must make an order of disbursement of proceeds of sale of the at‐issue property, and the court may order that the proceeds be deposited in court as may be appropri...

Excerpt: ...of justice” warrant dissolution or modification. At the hearing, however, Defendant argued a potential new change of circumstance, including the City's efforts to shut down Plaintiff's business. The Court ordered supplemental briefs to be filed and continued the hearing. At the May 2, 2022 hearing, Court noted that the facts of this case are continually evolving: “The Cease and Desist letter appears to indicate a material change of circumstan...

Excerpt: ...s 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 contentions...

Excerpt: ... 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. Atlantic Richfield Co....

Excerpt: ... in material breach of the arbitration agreement, is in default of the arbitration and waives the right to compel. (CCP §1281.97(a)(1).) If the drafting party materially breaches the arbitration agreement and is in default, the consumer or employee may either withdraw the claim from arbitration and proceed in a court or compel arbitration where the drafting party shall pay reasonable attorney's fees and costs related to arbitration. (CCP §1281....

Excerpt: ...icer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling...

Excerpt: ...ired to take judicial notice.” (Code Civ. Proc., § 438(d).) Page 4 of 9 Code of Civil Procedure section 438 sets forth grounds and procedures for a motion for judgment on the pleadings. Such motion has the same function as a general demurrer but is made after the time for demurrer has expired. (Civ. Proc., §438(e)(2); Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Befo...

Excerpt: ...eal threat of immediate and irreparable injury.” (Triple A. Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 138.) Here, Plaintiff will suffer harm because she will lose her home. Thus, the issue is a probability of prevailing on the merits. JUDICIAL NOTICE REQUESTS: 1 However, in Rattagan v. Uber Technologies, Inc. (9th Cir. 2021) 19 F.4th 1188, the Ninth Circuit recently certified the following question to the California S...

Excerpt: ... 951, 973‐74 [“A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract”].) The elements of an action for fraud based on concealment are: (1) the defendant concealed a material fact...

Excerpt: ...n the grounds that Kirnos does not have personal knowledge of the time spent in this case because he did not work on the case himself. However, Kirnos' declaration makes clear that he is the managing partner of Knight Law Group (¶1) and that he has personal knowledge of the facts in his declaration (¶1). This is sufficient for the testimony provided in his declaration, as such, the objection is overruled. ATTORNEY'S FEES The prevailing buyer ha...

Excerpt: ...Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”...

Excerpt: ...e, including protective orders.” (CCP, § 1987.1(a)&(b)(1)‐(3).) Also, the court may make any other order as may be appropriate to protect the parties, the witness, or the employee from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (CCP., § 1987.1(a).) “If a deponent fails to produce a requested document under his or her control, the subpoenaing party may bring a motion to c...

Excerpt: ... court is required to find subjective bad faith before it can award fees and costs to a defendant. Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 924. Subjective bad faith requires a factual inquiry into the plaintiff's subjective state of mind. Id. at 923. The court looks to determine whether there is evidence not only that the action lacked merit, but that the plaintiff knew that it did. Id. at 928. A defendant moving for fees and c...

Excerpt: ... 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 value; (4) the property's location based on pl...

Excerpt: ...rden of production to make a prima facie showing that there are no triable issues of material fact. (CCP § 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 complete defense to that cause of action. (CCP §437c(p)(2).) Defendant can meet their burden by showing either: (1...

Excerpt: ...P ALLEGED TO CREATE A DUTY The elements of a cause of action for fraud based on concealment are: (1) The defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as h...

Excerpt: ...ing be deemed admitted. (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 30; Code Civ. Proc., §2033.280(b).) “Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45‐day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a ‘meet and confer' requirement.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 3...

Excerpt: ... his or her employer for injuries arising out of and in the course of employment.” (Wright v. State of California (2015) 233 Cal.App.4th 1218, 1229.) Specifically, the Act provides in part that “[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is…the sole and exclusive remedy of the employee or his or her dependents against the employer (Lab. Code, §3602(a)), and that “[i]n all ca...

Excerpt: ...ractice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 Cal.App.5th 1131, 1150 [citation and internal quotation marks omitted].) Under the unlawful prong, the UCL borrows violations of other laws and treats them as unlawful business practices that are independently actionable under the UCL. (Smith v...

Excerpt: ...(Evid. Code § 452(d).) However, the request to take judicial notice of the transcript of Myron Matika's October 23, 2018 deposition taken in Tye v. Bowen is denied. Contrary to Defendants' argument, courts generally decline judicial notice of a pleader's deposition statements to defeat material allegations of the complaint. (See Silguero v. Creteguard, Inc., (2010) 187 Cal.App.4th 60, 64; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369...

Excerpt: ...em to emotional distress damages on these property based claim. 1. DANGEROUS CONDITION OF PRIVATE PROPERTY In order to state a cause of action for dangerous condition of public property, a plaintiff must allege: (1) a dangerous condition of public property; (2) a proximate causal connection between the condition and the injury sustained; (3) a reasonably foreseeable risk that the kind of injury that occurred would result from the dangerous condit...

Excerpt: ... that the court may for good cause allow.” While a motion to quash is typically directed to defects in personal jurisdiction, court recognize “the hybrid motion to quash/dismiss as a proper means of challenging the court's authority without making a general appearance.” (Boisclair v. Superior Court (1990) 51 Cal.3d 1140, 1144, n. 3.) As such, a motion to quash and to dismiss is appropriately based upon an assertion of sovereign immunity. (G...

Excerpt: ...ly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713.) When ruling on a demurrer, the court gives the pleading “a reasonable interpretation, reading...

Excerpt: ...mon 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 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. C...

Excerpt: ...h 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. Untimely Demurrer: Plaintiff cites to no authority that the timing requirement is jurisdictional. As such, the court will address the merits of this motion. Plea and Abatement: The basis of Defendant's...

Excerpt: ...issed without prejudice and then, a few months after the dismissal, plaintiff commenced the present action. Defendants point to the Lim Action Judgment, which does state that “all defendants except for Defendant Eden Lim have been dismissed with prejudice.” (See Lim Action Judgment, ¶ 4.) However, the Lim Action Judgment was not a dismissal itself and the actual dismissal pursuant to the settlement, which occurred on 6/11/12, was without pre...

Excerpt: ... in their context.” (Moore Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 125.) The court “accept[s] as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially noticed.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law alleged in the challenged pleading.” (Buchanan v. Maxfield En...

Excerpt: ... or create conflicting rulings on common issues. (Cal. Code Civ. Proc. § 1281.2.) Arbitration of disputes is favored and “when there is doubt as to the meaning and construction of an agreement for mediation and/or arbitration, that doubt should be resolved in favor of those processes.” (Bono v. David (2007) 147 Cal. App. 4th 1055, 1062.) The moving party Page 3 of 5 bears the burden of proving the existence of a valid arbitration agreement, ...

Excerpt: ...ceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Here, Garcia filed the motion on the last possible day. She has already answered and need not do so again so she did not need to submit a proposed answer. Although a decision on a motion like this is a discretionary one, “the trial court's discretion is not unlimited and must be ‘“exercised in conformity with the spirit of the law and in a manner to subser...

Excerpt: ...nder Evid. Code § 452(d), this Court may take judicial notice of records of its own file. The request is granted. EVIDENTIARY OBJECTIONS Plaintiff objects to the following evidence submitted by Defendants in support of their motion: (1) Declaration of Sullivan ¶ 20, 12:25‐261 based on hearsay, lack of personal knowledge, and lack of foundation; and (2) Declaration of Sullivan ¶ 21, 12:27– 13:32 based on improper opinion, lack of personal k...

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

Excerpt: ...en properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672 1ST CAUSE OF ACTION FOR FRAUD Pham argues that the FAC fails to sufficiently allege reliance and damages. In Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 638, the Court stated that the elements of fraud, which give rise to the tort acti...

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

Excerpt: ... pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436.) Motions to strike can be used to attack the entire pleading, or any part thereof. (CCP § 435; Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 40.) As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice....

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

Excerpt: ...of California (1990) 51 Cal. 3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967)...

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

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

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

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

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

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

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

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

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

Excerpt: ... to entry of judgment as a matter of law. (CCP § 437c(c).) A defendant/cross‐ defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (CCP § 437c(p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once such a showing h...

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

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

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

Excerpt: ...rt of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436.) Motions to strike can be used to attack the entire pleading, or any part thereof. (CCP § 435; Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 40.) As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judiciall...

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

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

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

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

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

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

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

Excerpt: ...), “an attorney who represents a party, when expressly authorized, may sign a settlement agreement on the party's behalf.” (1 Witkin, Cal. Procedure (6th ed. 2021), p. 329.) “A trial court hearing a § 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment.” (Bowers, 206 Cal.App.4th at 732.) “The trial court may not ‘create the material terms of a settlement, as opposed...

Excerpt: ...s” are recoverable. But legislative history shows it was intended to allow only fees and costs incurred on the motion to strike (not the entire litigation). (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 CA4th 1379, 1383.) Although the statute does not expressly so provide, it is interpreted to allow awards of only such fees as the court deems reasonable. (Robertson v. Rodriguez (1995) 36 CA4th 347, 362.) In setting a fee awar...

Excerpt: ...ond at $10,000. Strike Paragraph 14 from the Proposed Order. APPOINTMENT OF RECEIVERS UNDER CCP § 564 Under CCP § 564(b), a court may appoint a receiver in the following cases, among others: Where a corporation is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights; and In all other cases where necessary to preserve the property or rights of any party. (CCP § 564(b) (6), (9).) However, the appointment of a rec...

Excerpt: ... Defendant requests judicial notice of the Final Senate Floor Analysis of SB 1146, codified as CCP § 2025.310. Judicial notice is proper under Evid. Code § 452(a), (b), (c) and (h). ON THE MERITS “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (CCP § 2025.420(a).) “The court, for good cause shown, may make any order that justi...

Excerpt: ...nces warranting dissolution or modification at this time. At the hearing, Defendant brought up new facts that had recently transpired that was not included in the motion. The Court continued the hearing and ordered supplemental briefing. The supplemental briefing essentially addressed and argued the following additional facts: City issued a code enforcement citation to Plaintiff for operating a dispensary without the required permits and licenses...

Excerpt: ...� 1033.5(a)(10)(A), (B) & (C); Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) Plaintiff's claims for unpaid overtime (Labor Code § 1194), unpaid wages (Labor Code § 218.5), and paystub violation (Labor Code § 226) are statutory claims with mandatory awards of attorney's fees to the prevailing employee. Defendant does not dispute that Plaintiff is entitled to reasonable attorney fees as the prevailing party. The only question to be determined ...

Excerpt: ...4, 392.) Generally, claims for punitive damages must be pleaded with particularity as to the facts constituting the alleged egregious conduct. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) However, the court may read the complaint as a whole so that conclusory allegations may be sufficient when read in context with the facts alleged as to the defendant's wrongful conduct. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6�...

Excerpt: ...compelling further answers to requests for production if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. (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 propounding party and the responding party have agreed in writing, the propou...

Excerpt: ...Evidence Code §452(h) which permits judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Defendant fails to explain how this is verifiable as to be accurate. While Defendant contends that the court can take judicial notice of contracts, it is mistaken. Contracts between private parties are not ...

Excerpt: ...EMOTIONAL DISTRESS) Unless provided by statute, a public entity is not liable for an injury. (Gov. C. § 815(a).) There is no common law tort liability for public entities—only statutory. (Green Valley Landowners Association v. City of Vallejo (2015) 241 Cal.App.4th 425, 441‐442.) To state a cause of action against a government entity, every fact essential to the existence of statutory liability must be pled with particularity. (See Searcy v....

Excerpt: ....1, 6.4, 6.5, 6.6, 6.7, 9.2, 14.1 and 17.1; RFP Nos. 3, 4, 5, 6, 7 and 8. The Motion is denied as to SIs 38‐47, 61, 62, 66, 67, 71, 72, 76, 77, 78, 79 through 87, 97, 98, 111‐113, 125, 126, 131, 146‐150, 154‐167; and Form Interrogatories: 6.3, 10.2, 12.1 and 12. 3. The requests for sanctions are denied. SPECIAL INTERROGATORIES: Any party may obtain discovery by propounding to any other party written interrogatories. (Cal. Code Civ. Proc. ...

Excerpt: ...position objects to the declaration of Danielle Rubin. Objections 1 to 4 are overruled. Defendant filed objections with the reply: Objections 1 to 11 are overruled. MOTION TO SET ASIDE In ruling on motions brought under the discretionary provision of section 473(b), the general policy favors granting relief and a trial on the merits. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) When relief is sought promptly and there is no prejudice to...

Excerpt: ...e truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) Defendant requests judicial notice of the following documents: 1) Desk Application dated 2/18/21 from the Court of Queen's Bench of Alberta, File No. 2101‐01790; 2) Written Order of Master Farrington dated...

Excerpt: ...1514; (3) signed judgment in favor of Defendant Dr. Dhalla in RIC 1801514, filed on August 5, 2019; and (4) Notice of Entry of Judgment in favor of defendant Dr. Dhalla in Page 4 of 7 RIC1801514, filed August 6, 2019. The court can properly take judicial notice of these documents under Evidence Code §452(d). STANDARD ON DEMURRER A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 43...