Excerpt: ...gh the filing of a timely creditor's claim (Prob. Code, § 9100 et seq.) in the pending probate proceeding for the administration of Jorge Cuevas's estate. The demurrer is sustained without leave to amend if Plaintiff cannot explain how the Complaint may be amended. As to the fifth, sixth, and seventh causes of action, the Demurrer is overruled for the reason that Plaintiff has sufficiently stated a cause of action for impairment of community pro...

Excerpt: ...cal error” is shown, the judgment is corrected nunc pro tunc, i.e., the correction dates back to the when the judgment was entered. (Ames v. Paley (2001) 89 Cal.App.4th 668, 673; Bell Farmers Ins. Exch. (2006) 135 Cal.App.4th 1138, 1144.) A “clerical error” results when the order or judgment misstates the court's actual intent, i.e., an error in recording the judgment rendered. (Burch v. CertainTeed Corp. (2019) 34 Cal.App.5th 341, 346; Mar...

Excerpt: ... records of any court of this state]; See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569; also see Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) Here, Defendant requests the Court take judicial notice of the prior lawsuit, but it is not relevant based on the sole argument presented – that the Court lacks jurisdiction over the matter because it is barred by the two-year statute of limitations in C.C.P., § 338.1. A...

Excerpt: ...this state].) Upon the petition/motion 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 revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbi...

Excerpt: ...e motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” “A party seeking a continuance under that subdivision must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.” (Combs v. Skyriver Communications, Inc. (2008) 159 Cal...

Excerpt: ...d 6th causes of action; sustained with leave to amend as to the 1st, 4th, 7th, 8th and 10th causes of action and sustained without leave to amend as to the 9th, 11th and 13th causes of action. (The previous demurrer was overruled as to the 2nd, 5th and 12th causes of action.) The Demurrers of Defendants Schneider and Nimmo is overruled as to the 3rd cause of action; sustained with leave to amend as to the 4th, 6th, 7th, 8th and 9th causes of acti...

Excerpt: ...) A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (CCP § 437c(p)(2); Cucuzza v. City of 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...

Excerpt: ...urt, upon motion reasonably made by the party, the witness, any consumer, or employee whose personal records are sought, “or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court may declare, including protective orders.” (Code Civ. Proc., §1987.1(a).) Also, the court m...

Excerpt: ...� 452(d).) A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of fac...

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

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

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

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

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

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

Excerpt: ...ned with leave to amend within 20 days. Motion to Strike is moot. A demurrer also lies where the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal. 3d 120,125.) The court assumes the tru...

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

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

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

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

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

Excerpt: ...torney's fees is denied. Defendants' DLJJ, DDS and Stuart Rubin Motion for Joinder is denied. As a general rule, when a cause of action arises out of the furtherance of a defendant's right of petition or free speech in connection with a public issue, it is subject to a special motion to strike. (CCP § 425.16(b)(1).) An “act in furtherance of a person's right of petition or free speech” … includes … any written or oral statement or writin...

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

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

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

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

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

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

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

Excerpt: ...d $1,500.00 or dismissal should not be imposed for Failure to file request for entry of default of all defendants pursuant to CRC 3.110(g). A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Cal. ...

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

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

Excerpt: ... as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contenti...

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

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

Excerpt: ... within 20 days. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, ...

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

Excerpt: ... declaration identifying and specifically discussing any discovery request that is in dispute. A party may move for an order to compel a further response if it deems the responding party's objections are without merit or too general. In a motion to compel further responses as to document requests, the moving party must state specific facts demonstrating good cause justifying the discovery sought. (CCP §2031.310(b)(1).) The burden to show good ca...

Excerpt: ...closure of the confidential material. Pursuant to Cal. Code Civ. Proc. §2031.010, a party may demand that any other party produce and inspect a document that is in the possession of another party. The demanding party must designate documents by specifically describing individual items or reasonably particularizing categories of documents. (Cal. Code Civ. Pro. §2031.030(c)(1).) “The ‘reasonably' in the statute implies a requirement such cate...

Excerpt: ...eement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP § 1281.2.) A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the written agreement and the arbitration clause verbati...

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

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

Excerpt: ...murrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferre...

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

Excerpt: ...rial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make ...

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

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

Excerpt: ...o the action or proceeding. (Cal Code Civ Proc § 437c(a).) “A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002‐ 1003.) “The moving party bears the burden of production to make a prima facie showing of the nonexistence of any triable issue of ma...

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

Excerpt: ...radict Dr. Kessler, they have not established that any triable issues exist as to the Medical Malpractice, NIED and Loss of Consortium. Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Cal Code Civ Proc § 437c(a).) “A defendant's motion for summary judgment should be granted if no triable issue exists as to any material ...