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: ...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: ... 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: ...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...

Excerpt: ...ntitled court, to show cause if any, why she should not be adjudged in contempt of court and punished accordingly for wil fully disobeying the (amended) judgment of this Court entered on January 20, 2023 as to the following: "Plaintiff Waud and defendant Dixon are 50 percent owners of Classic 1. Classic 1 shall be partitioned by sale and the next proceeds from the sale shall be divided between plaintiff Waud (50%) and defendant Dixon (50%).... Th...

Excerpt: ...Hyatt (1998) 61 Cal. App. 4th 581, 596.) However, leave to amend may be denied where inexcusable delay and probable prejudice to the opposing party is shown. (Magpali v. Farmers Group (1996) 48 Cal. App. 4th 471, 487.) Pursuantto Cal. Rules of Court, Rule 3.1324(a), a motion to amend a pleading before trial must include a copy of the amended pleading, which must be serially numbered to differentiate from previous pleadings and must state what all...

Excerpt: ...he present motion. Importantly — and as discussed below — the court may determine for itself the reasonableness of the fees demanded. Accordingly, the court declines to rule on the evidentiary objections. under Civ. Code 51794(d), "[i]f the buyer prevails in an acton under [the Song-Beverly Act], the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including atto...

Excerpt: ... demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) Defendant's evidentiary objections are sustained. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP S 430.10(e).) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters out...

Excerpt: ...party moving for summary judgment bears the burden of persuasion. (Aguilarv. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855.) When a plaintiff is the moving party, the plaintiff has the burden to produce admissible evidence on each element of a cause of action entitling him to judgment. (CCP The plaintiff does not have the burden to disprove affirmative defenses. (ld.) At that point, the burden shifts to the defendant to show that a triabl...

Excerpt: ...e matters are indisputably true. (Evid. Code, 5452(d) [judicial notice may be taken of records of any court of this state]; See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569.) "Granting or denying an injunction is within the sound discretion of the trial court and will be upheld on appeal absent an abuse of discretion." (Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 458.) The burden is on plaintiff to show all elemen...

Excerpt: ...efendants and that his derivative claims cannot survive in light of this buyout. Plaintiff does not oppose the motion as to the "derivative causes of actions." (Opposition, 2:3-10.) However, Plaintiff's position differs from Defendants in that the buyout renders moot only the 2nd through 9th and the 11th causes of action. Therefore, the causes of achon which are the subject of the parties' dispute in this matter are the 1st, 10th, 12th, 14th, and...

Excerpt: ...d (page 13, lines 2 through 5, and page 14, line 15). DEMURRER A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP S 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Minre v. Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts ...

Excerpt: ...AC. Accordingly, battery is irrelevant and Defendant failed to actually address medical negligence—other than the general argument of PREP. Second, the function of a demurrer is to test the legal sufficiency of a pleading, but not the truthfulness of the allegations. (Donabedian v. Mercury Ins. Co. (2W4) 116 Cal.App.4th 968, 994.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (...

Excerpt: ...tual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action." (CCP S 473.5(a).) "This section is designed to provide relief where there has been proper service of summons (e.g., by substitute service or by publication) but defendant nevertheless...

Excerpt: ...aised by special demurrer." (Johnson v. Mead (1987) 191 Cal.App.3d 156, 160.) 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 665, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law (D...

Excerpt: ...to comply that is incomplete or evasive. (CCP 52031.310(a).) Here, Defendant responded to Plaintiff's demand to inspect the property with an assertion that his Fourth Amendment right to be free from unreasonable searches and seizures prohibited such an inspection. Although no showing of cause is required for the inspection demand, the demanding party must make such a showing if the demand is refused. To establish "gtnd cause," the burden is on th...

Excerpt: ...'S EVIDENTIARY OBJECTIONS: As to objection #'s 2, 3, 4, 7, and 11, they are sustained. As to the rest, the objections asserted were not determinative to the analysis and outcome of this motion, and they are therefore overruled. (See Reid v. Gingle, Inc. (2010) Cal.4th 512, 532 ["motion for summary judgment" l.) The burden is on plaintiff to show all elements necessary to support issuance of a preliminary injunction. (See O'Connell v. Superior Cou...

Excerpt: ...atter is embraced in or affected by the appealed judgment or order within the meaning of Code of Civil Procedure secton 916, subdivision (a) only trial court proceedings on the matter would affect the effectiveness of the appeal." (Henry M. Lee Law Corp. v. Superior Court (2012) 204 Cal.App.4th 1375, 1383.) As a general rule, an award of attorney's fees is a collateral matter. (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369.) As such, there is no ...

Excerpt: ...(C.C.P., S 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant may alternatively move for summary adjudication as to a cause of action, but a moton for summary adjudication can only be granted if it completely disposes of the cause of action to which it is directed. (C.C.P., S 437c(f)(1).) Although summary judgment/adjudicaton is no longer considered a "disfavored" procedure, the rule continues that the moving party's...

Excerpt: ... School District Bond Measure Election 8, 2016. 2. January 12, 2017, Staff Report to RUSD School Board, Part of Meeting Agenda Packet. 3. June 7, 2017, Citizens' Oversight Committee Report. 4. Minutes of the June 29, 2017, RUSD School Board Meeting. 5. September 18, 2017, Staff Report to RUSD School Board, Part of Meeting Agenda Packet. Defendant argues each is an official records of a public entity, RUSD, as such judicial notice is proper. (Evid...

Excerpt: ...quired to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer." (C.C.P. 51094.5(a).) An agency's decision can be only challenged on the grounds that: (1) the agency without or in excess of its jurisdiction; (2) the agency' did not conducta fair trial; (3) the agency did not proceed in the manner required by aw; (4) the decision is not supported...

Excerpt: ..., 25, 28, 29, it is denied. All other RFAs are moot. As to sanctions, it is denied. Plaintiff's motion to compel further responses from the Regents to form interrogatories sets one —three is granted; as to subpart (b) to form interrogatory no. 15.1 and order Regents to provide the contact information for the witness within 30 days. All other interrogatories are Sanctions awarded to Plaintiff and against Defendants and their counsel of record in...

Excerpt: ...d a supplemental response following the filing of the Motion on September 26, 2023. (If Plaintiff believes the supplemental responses remain deficient, he must file new motions to compel after meeting and conferring.) As to Sanctions, Plaintiff is awarded a reduced reasonable amount of $810 (2 x $375 plus filing fee $60). The Motion to Compel Further Responses to RFPs is granted in part and denied in part. Defendant is ordered to provide further ...

Excerpt: ...r, 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. Katlem...

Excerpt: ...er 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. Code of Civil Procedure section 36, subdivision (f) further provides: upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no contnuance beyond 120 days from the granting of the motion for preference except for physical disability of a ...