Excerpt: ...TIARY OBJECTIONS The declarations of counsel Jeffrey H. Reeves, counsel William R. Cumming, expert Daniel Wahl, and defendant Michael Sheinker, based on relevance, hearsay, lack of foundation, etc. are relevant to the broad standard for modifying injunctions (i.e., “ends of justice”), constitute nonhearsay or come within a hearsay exception, and/or have sufficient foundation. The objections are overruled. MERITS OF THE MOTION CCP § 533 provi...

Excerpt: ...f this state, a court rule, or an order of the court. (CCP § 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, fn. 2.) Page 4 of 5 A motion to strike may be used to attack unauthorized claims for attorney fees n...

Excerpt: ...3) 141 Cal.App.3d 55, 58.) “Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs.” (Elms v. Elms (1942) 72 Cal.App.2d 508, 513.) To determine whether a mistake or neglect was excusable, ‘“the court inquires whether ‘a reasonably prudent person under the same or similar circumstances' might have made the same error.”' (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Ca...

Excerpt: ...n 430.41(b) provides: A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross‐complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross‐complaint, or answer. The legislative history indicates that this statute was enacted because of the fact that demurrer...

Excerpt: ...of the settlement. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.) Section 664.6 states that “[i]f parties to pending litigation stipulate, in writing signed by the parties outside the presence of the court . . . for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (CCP § 664.6 (emphasis added).) “A court ruling on a motion under section 664.6 must determine w...

Excerpt: ... amended complaint, third amended complaint and complaint in intervention filed in in the related case, Tye v. Bowen et al., RIC 1601882 is granted. (Evid. Code § 452(d).) Likewise, the request to take judicial notice of the Complaint filed in the present case is granted. (Evid. Code § 452(d).) EVIDENTIARY OBJECTIONS Because the court does not, in the first instance, give any consideration to the Yrungaray Declaration, the Court declines to rul...

Excerpt: ...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.) “Any doubts as to the propriety of granting the motion are resolved in favor of the party opposing the motion.” (American Airline v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. App. 4th 1017, 1048.) It is improper for the court to weigh the evid...

Excerpt: ... Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, a court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) While courts will occasionally deny leave to amend when the motion is brought on the eve of trial, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled ...

Excerpt: ... (Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 695.) There are three basic avenues of relief for a defendant against whom a default judgment has been entered: first, she can obtain relief under Cal. Code Civ. §473 and 473.5; second, the party can show that extrinsic fraud or mistake exists; and third, the party can show that the default judgment was facially void. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.) Sections 473(b) an...

Excerpt: ...on in the response is without merit or too general. (CCP §§2030.300, 2031.310, 2033.290.) Where a party fails to provide responses to interrogatories or request for production of documents, the propounding party's remedy is to seek an order compelling responses. C.C.P. §§ 2030.290(a) and 2031.300(b). Where a party fails to provide timely responses to request for admission, the propounding party's remedy is to seek an order to deem the request...

Excerpt: ... IS GRANTED. Plaintiff's unopposed request that the court take judicial notice of Defendant's various documents filed with the Secretary of State should be granted. (See Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591, 602, n. 6 [court may take judicial notice of the records of the Secretary of State]; Pedus Building Services, Inc. v. Allen (2002) 96 Cal.App.4th 152, 156, n. 2[same].) DOCTRINE OF FORUM NON CONVENIENS The doctrine of forum n...

Excerpt: ... necessary to prevent prejudicing the party's interest in the litigation. (Emphasis supplied.) While other grounds for preference stated in CCP § 36(d)‐(e) are discretionary, § 36(a) is mandatory and absolute. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533; Miller v. Superior Court (1990) 221 Cal.App.3d 1200, 1204; Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085; Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86‐ 89.) T...

Excerpt: ...rocedures section 1281.97 provides in relevant parts: In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, the drafting party to pay certain fees and costs before the arbitration can proceed, if the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date the drafting party is in material breach of...

Excerpt: ...ides that following a noticed motion, the court may allow an amendment to any pleading. CCP §473 and §576, and case law establish a “policy of great liberality in permitting amendments at any stage of the proceeding.” (Rocky Mountain Export Co. v. Colquitt (1960) 179 Cal.App.2d 204, 207.) This policy is so strong that denial of a motion for leave to amend is rarely justified. (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) The court ha...

Excerpt: ... 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. (Cal. Code Civ. Proc. §2031.210(a)(1)‐(3).) A demanding party may move for an order compelling further responses to a demand for inspection if the party determines that the statement of compliance or representation of inabil...

Excerpt: ...ken 3. For compensatory, special and general damages, according to proof but not less than 1,500.000, (Pg. 5; ¶1) is stricken 4. Civil penalties according to statute and, (pg. 5, ¶ 6) is stricken Motion to strike “attorney's fees” (pg. 5, ¶6) is denied. Pro se litigants may recover fees incurred for legal services of attorneys who assist them, even though retained counsel is not counsel of record in the litigation. (Mix v. Tumanjan Develop...

Excerpt: ... 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 666, 672.) ...

Excerpt: ...terested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property … in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action … in the superior court a declaration of his or her rights and duties in the premises, including a determ...

Excerpt: ...ired to make a good faith attempt to resolve the matter informally before filing said motions. See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404. Defendant asserts that responses to the discovery at issue were provided on 1/29/22. As such, the motion to compel appears moot as to the request to compel responses to form interrogatories, special interrogatories, and requests for production of d...

Excerpt: ...opposition to a motion for summary judgment shall include a separate statement that responds to each of the moving party's undisputed material facts and indicates whether the opposing party agrees or disagrees that those facts are undisputed. The separate statement must include a response to each material fact claimed by the moving party to be undisputed. An opposing party who contends that a fact is disputed must state the nature of the dispute ...

Excerpt: ...second exception to the Privette doctrine, there are triable issues of material fact regarding the retained control over plaintiff's work. JUDICIAL NOTICE The request for the court to take judicial notice of its own records is granted. (Evid. Code, § 452.) PRIVETTE DOCTRINE When employees of an independent contractor suffer injuries resulting from the performance of inherently dangerous work, their recovery is limited to workers' compensation co...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...on for summary judgment shall be granted when no triable issue of material fact exists or the issue is one of law and the action can be terminated in favor of the moving party without the necessity of trial. (CCP § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850). A defendant has met his or her burden under CCP §437c(p)(2) of showing a cause of action has no merit if that party has shown that one or more of the elements of th...

Excerpt: ...of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (C.C.P. §437c(p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once such a showing has been made, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (A...

Excerpt: ...sustained. A demurrer can be used only to challenge defects that appear on the face of the pleading under 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.) ...

Excerpt: ...a public use.” (CCP §1240.010.) A public entity may exercise the power of eminent domain if: “(a) The public interest and necessity require the project. (b) The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. (c) The property sought to be acquired is necessary for the project.” (CCP §1240.030.) A public entity exercises the power of eminent domain by adop...

Excerpt: ...93 Cal.App.3d 1553, 1560.) The jury typically will first determine the amount of the award, which “is then reviewed by the trial and appellate courts to ensure that it is reasonable.” (Pacific Mutual Life Ins. Co. v. Haslip (1991) 499 U.S. 1, 15 In BMW of North America v. Gore (1996) 517 U.S. 559, 563‐565, a consumer who had purchased a new vehicle but later learned it had been repainted obtained a jury verdict of $4,000 in compensatory dam...

Excerpt: ...ainst whom a complaint has been filed and serve fails 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 action assert against the plaintiff the related cause of action not pleaded.” “The compulsory cross‐complaint statute is designed to prevent ‘piecemeal litigation.' “ (Heshejin v. Rostami (2020) 54 C...

Excerpt: ...alia Defendants' RJN in support of their Special Motion to Strike filed on November 8, 2021; and (3) The Scalia Defendants' evidence in support of the Special Motion to Strike filed on November 8, 2021. The request also includes the following: “In its concurrently filed Special Motion to Strike, Sacor also incorporates by reference, all exhibits in the Scalia Defendants' Request for Judicial Notice and the Declarations of Joseph W. Scalia and J...