Excerpt: ...ntenance of the property for approximately 20 years, during which time he made no claims on the property. Martinez has filed the instant motion to strike that portion of the Cross‐Complaint which explains his alleged absence from the property while Arangure remained in exclusive possession over the property for the past 20 years: “he violated Penal Code § 288(a) – Lewd or Lascivious Acts with a Child, the daughter of DENISE ARANGURE. He wa...

Excerpt: ... 11 seeks similar documents and ESI, relating to any notices, warranty extensions, technical service bulletins and recalls. RFP no. 12 seeks similar documents and ESI as to customer complaints, claims, reported failures, and warranty claims. RFP no. 13 seeks similar documents and ESI concerning failure rates of vehicles of the same year, make, and model as the subject vehicle. RFP no. 13 seeks similar documents and ESI as to any fixes. Defendant ...

Excerpt: ...ause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (CCP, § 437c, subd. (p)(1).) Once such a showing has been made, the burden shifts to the defendant 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. (2001) 25 Cal.4th 826, 849.) The opposing pa...

Excerpt: ...r was heard before Judge Lydia Villarreal, a visiting judge. Judge Villareal's temporary assignment to Riverside County Superior Court ended and therefore Judge Villarreal is unavailable to hear this motion. Consequently, this court requested and received the entire record of the trial. I have read and reviewed all the trial materials in order to rule on the instant motion. Insufficient evidence to justify verdict or decision A new trial shall no...

Excerpt: ...ight to assert a meritorious cause of action.” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Great liberality is exercised in matters of amendment so that cases may be decided on their merits. (Desney v. Wilder (1956) 46 Cal.2d 715, 751.) But, despite, the liberal policy of generally granting leave to amend, it “may be denied if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs ...

Excerpt: ... 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. C.C.P. § 425.10: Home Care contends the complaint fails because it does not comply with C.C.P. § 425.10(2). This code section requires that a complaint contains “[a] demand for judgment for the relief to which the pleader c...

Excerpt: ...leading 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...

Excerpt: ...)(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.) A special demurrer, other than subsections (a) & (e) of section 430.10, on the other hand, attacks the complaint on other grounds, such as uncertainty, misjoinder, lack of legal capacity or failure to identify the contract as oral, written, or im...

Excerpt: ... to the facts being alleged by Plaintiff is California Government Code § 835 which provides for liability against governmental entities for injuries caused by dangerous conditions of its property in the event the requisite elements are satisfied. In essence, said code section “is the principal provision addressing the circumstances under which a governmental entity may be held liable for maintaining a dangerous condition of public property.”...

Excerpt: ...y and completely without merit or for the sole purpose of harassing an opposing party.” C.C.P. § 128.5(b)(2). “Whether an action is frivolous is governed by an objective standard: any reasonable attorney would agree it is totally and completely without merit. [Citation.] There must also be a Page 11 of 12 showing of an improper purpose, i.e., subjective bad faith on the part of the attorney or party to be sanctioned.” Levy v. Blum (2001) 9...

Excerpt: ...s of action, Defendant argues that they fail because Allied was not properly licensed during the performance of the jobs, and therefore, Allied and Pacific Coast's claims to recover any funds are precluded by Bus. & Prof. Code § 7031. With respect to the third (intentional interference with contractual relations) and fourth (intentional interference with prospective economic advantage) causes of action, Defendant argues that they are barred by t...

Excerpt: ...t Court for the Central District of California. • Plaintiff's Complaint in the federal action Hite v. Equity Lifestyle Properties, et al., U.S. District Court for the Central District of California. • Petitioner, Arciero Wine Group, LLC's Petition for Writ of Mandate or Other Appropriate Relief; Memorandum of Points and Authorities in the matter of Arciero Wine Group, LLC v. Superior Court of the State of California for the County of San Luis...

Excerpt: ...h FNBA's counsel on June 21, 2022, to discuss Amica's position that the FACC could not be cured. (Declaration of Richard J. Reese, ¶ 4.) However, FNBA declined to dismiss the FACC against Amica. (Ibid.) The meet and confer requirement has been met. Analysis I. Legal Standard. A party against whom a cross‐complaint has been filed may object by demurrer to the pleading. (Code Civ. Proc., § 430.10.) A demurrer lies where the pleading does not st...

Excerpt: ...ioners exhausted remedies by submitting comments in writing, which they attach and which address all of the allegations made in the TAP. (See Gov. Code, § 65009, subd. (b)(1) [“In an action or proceeding to attack, review, set aside, void, or annul a finding, determination, or decision of a public agency made pursuant to this title at a properly noticed public hearing, the issues raised shall be limited to those raised in the public hearing or...

Excerpt: ...a judgment, dismissal, order, or other proceeding taken against her, due to her or her counsel's mistake, inadvertence, surprise, or excusable neglect. Said motion must be brought within six months after entry of the judgment, dismissal, or order at issue. The moving party bears the burden of proving that she is entitled to relief. Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. A mistake of law or fact can be the basis of relief under C...

Excerpt: ...Under section 2023.010, a terminating sanction may be imposed for “a misuse of the discovery process.” Nevertheless, the imposition of terminating sanctions should be used sparingly and is not appropriate here because plaintiff still has time prior to trial to use the discovery process to obtain the information she claims was withheld. Summary of terminating sanctions procedure The Discovery Act provides for sanctions based on a misuse of the...

Excerpt: ...risk of harm to Plaintiff by allowing Plaintiff to run drills with varsity players. Further, there are triable issues of material fact regarding whether Defendant's conduct in failing to take Plaintiff off the field after observing him get hit constitutes gross negligence and defeats Plaintiff's alleged assumption of the risk. [Defendant's Notice of Lodgment, Ex. A, UMF 3 and UMF 14 (and Plaintiff's responses), Plaintiff's UMF 14 (and Defendant's...

Excerpt: ...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 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 that cause of action or as to a defense to the cause of action. (Agui...

Excerpt: ...ural Materials Co. (1981) 123 Cal.App.3d 593, 604.) “In short, the ruling on a demurrer determines a legal issue on the basis of assumed facts, i.e., all those material, issuable facts properly pleaded in the complaint, regardless of whether they ultimately prove to be true.” (State of California ex rel. Bowen v. Bank of America Corp. (2005) 126 Cal. App. 4th 225, 240.) However, a demurrer does not admit contentions, deductions or conclusions...

Excerpt: ...g 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.) A special demurrer, other than subsections (a) & (e) of section 430.10, on the other hand, attacks the complaint on other grounds, such as uncertainty, misjoinder, lack of legal capacity or failure to identify the contract as oral, written, or implied by conduct. The defects must ap...

Excerpt: ... claim,” any party to the action may record a lis pendens. ([Cod. Civ. Proc. (CCP),] § 405.20.) A ‘court shall order' expungement of a lis pendens if the pleading on which the lis pendens is based does not state a real property claim, if the claimant fails to establish the probable validity of the claim on which the lis pendens is based, or if the giving of an undertaking would secure adequate relief to the claimant. ([CCP,] §§ 405.31, 405...

Excerpt: ...sts judicial notice of a trial court ruling from Sacramento. The court will deny judicial notice. First, it is not an order—it is a tentative ruling that there are no indications that it was adopted. Second, even if it was adopted, trial court rulings have no precedential value. (Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761.) Merits A defendant's motion for judgment on the pleadings may be made on the grounds that the court lacks j...

Excerpt: ...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) 67 Cal.2d 695, 713). If the complaint fails to state a cause of action, the court must ...

Excerpt: ...er of inconsistent adjudications. (Todd‐Stenberg v. Daikon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978‐979.) The moving party needs to show that the issues in each case are basically the same and that economy and convenience would be served by consolidation. (Ibid.) Consolidation is proper where there is no risk of undue confusion and prejudice. (Id. at 980.) The exercise of a court's discretion with respect to consolidation is exce...

Excerpt: ... of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer can only reach a defect that “appears on the face [of the complaint], or from any matter of which the court is required to or may take judicial notice.” (Code Civ. Proc., § 430.30, subd. (a).) “As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Del E. Webb Corp. v. Structura...