Excerpt: ...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 has been requested and may be taken...

Excerpt: ...ation in compliance with the meet and confer requirements of Code of Civil Procedure section 430.41. Plaintiff shall file an opposition no later than 11/9/22, Defendant Page 3 of 4 shall file a reply, if any, no later than 11/16/22. If the parties agree to the filing of a third amended complaint in lieu of a hearing on defendant's demurrer to the second amended complaint, defendant shall notify the court promptly. The motion is captioned as a mot...

Excerpt: ...inee's bodily and mental privacy and other constitutional rights. (Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 343.) “Good cause” requires that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) Notably, if the plaintiff stipulates that no...

Excerpt: ...that case. (See also Towner v. County of Ventura (2021) 63 Cal.App.5th 761.) The litigation privilege bars plaintiff's cause of action for defamation. Plaintiff's invocation of Civil Code section 47, subdivision (b)(5), has not shown that that the reports were “false,” or that defendants made them “with reckless disregard for the truth or falsity of the report.” The requests for judicial notice are denied as irrelevant. (See, e.g., Mangin...

Excerpt: ...s.” (Dunzweiler v. Superior Court (1968) 267 Cal.App.2d 569, 576.) While courts will occasionally deny leave to amend when the motion is brought on the eve of trial (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486; Nelson v. Specialty Records, Inc. (1970) 11 Cal.App.3d 126, 139‐140), “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports...

Excerpt: ...18, 19, and award sanctions in the reduced amount of $720. Where responses to document requests have been timely filed but are deemed deficient by the requesting party (e.g., the response is inadequate, incomplete, or evasive, or an objection in the Page 3 of 4 response is without merit or too general), that party may file a motion to compel further responses. (CCP § 2031.310.) The motion must be accompanied by a declaration showing a “reasona...

Excerpt: ...ty's option to produce writings; or (3) an objection to the particular interrogatory. (Id. at §§ 2030.210(a)(1)–(3).) There is no requirement that a party moving to compel further interrogatory responses must show good cause. Plaintiff moves to compel GM to provide further responses to his first set of FROG No. 12.1, which asked: State the name, ADDRESS, and telephone number of each individual: (a) who witnesses the INCIDENT or the events occ...

Excerpt: .... 5, 10, 14 and 23. REQUEST FOR PRODUCTION OF DOCUMENTS Pursuant to CCP § 2031.010, a party may demand that any other party produce and inspect a 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. (CCP §§ 2031.210(a)(1)–(3).) A moving party must establish good cause justify...

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: ...$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: ...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: ...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: ...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...