Excerpt: ...e of a party, without having served a valid objection, fails to appear for examination, to proceed with it or to produce for inspection any document described in the deposition notice. Before filing either a motion to compel, the moving party is required to make a reasonable and good faith effort to meet and confer in an attempt to informally resolve the issues. (See CCP §§ 2016.040 and 2025.480.) Defendant is requesting the Court to order Plai...

Excerpt: ...before filing a Demurrer or Motion to Strike “the moving party shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. On November 22, 2022, Defendants' counsel, Gabriel Benrubi submitted a declaration, stating t...

Excerpt: ...ls 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 of fact or ...

Excerpt: ... and to avoid the substantial danger 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 wit...

Excerpt: ...rivacy and other constitutional rights. (Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 343.)1 In addition, and ostensibly for the same purpose, the court in its order must set forth certain details of the examination: “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope and nature of the...

Excerpt: ... 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. (2001) 25 Cal.4th 826, 849.) The opposing party may not rely upon the allegat...

Excerpt: ...te to imposition of the sanction: (1) there must be a failure to comply with a valid discovery order and (2) the failure must be willful.” (Kayne v. The Grande Holdings Limited (2011) 198 Cal.App.4th 1470, 1474.) The court has the authority to impose a broad range of sanctions for misuse of the discovery process. “Terminating sanctions have been held to be an abuse of discretion unless the party's violation of the procedural rule was willful ...

Excerpt: ...ading” and “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.” Motions to strike can be used to attack the entire pleading, or any part thereof. (Code Civ. Proc., § 435; Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 40.) As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or...

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. C...

Excerpt: ...dified if the requirements of Civil Code § 1698 are met. Relevant here, Civil Code § 1698(b) provides: “A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties.” “An executed contract is one, the object of which is fully performed.” (Civil Code § 1661.) Where there is an oral agreement to reduce the rent, “[i]n so far as the payments of rent made under the oral agree...

Excerpt: ...0.10(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 has been requested and...

Excerpt: ...ng party on September 08, 2022, which indicates that the moving party has met and conferred by telephone at least five days before the date a responsive pleading was due, this requirement has been satisfied. 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 state facts sufficient to constitute a cause...

Excerpt: ...ete 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. (2001) 25 Cal.4th 826, 849.) The opposing party may not rely upon the allegations o...

Excerpt: ...20, 2022, Mr. Marvel sent a formal letter to Plaintiffs' counsel with a copy of the publicly recorded 2017 relinquishment of the property from State to County of Riverside. (Id. at ¶ 4.) On July 25, 2022, Plaintiffs' counsel sent a letter to Mr. Marvel, stating that Plaintiffs would not dismiss the State based on the information provided. (Id. at ¶ 5.) Mr. Marvel thereafter sent one written letter (¶ 11), three emails (¶¶ 6, 7, 13), and call...

Excerpt: ...336, 347.) Section 1281.2 provides that “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that ...[¶]... [¶]...[g]rounds exist ...

Excerpt: ...on 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. (2001) 25 Cal.4th 826, 849.) The o...

Excerpt: ...Plaintiff alleges that throughout his employment, he was harassed, mocked and ridiculed based on his race/national origin (Black/Nigerian) by employees and supervisors alike. On a daily basis, they would make fun of Plaintiff's accent while he would speak and make comments mocking his accent. Grmusha also routinely called him a “lazy piece of sh**.” (FAC, ¶ 13.) As a result of the hostile work environment, Plaintiff suffered from anxiety and...

Excerpt: ...SO, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY Tentative Ruling: 1. Demurrer 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. (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all...

Excerpt: ...y, opposes the motion arguing that Plaintiff has failed to demonstrate that she is entitled to further responses to FR‐G or FR‐E; that the responses are complete, accurate, and Code‐compliant; that Plaintiff failed to meet and confer in good faith; and failed to establish that sanctions are warranted. No reply was filed as of 10/17/22. Analysis CCP §2030.300 provides that where a responsive party serves a discovery response that is evasive...

Excerpt: ... 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 in the complaint are true. (Aubry v. TriCity Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) If judicially noticeable records disclose an absolute defense to the action or deficiency in the complaint, the matter can be ...

Excerpt: ...retained experts generally are privileged unless a party expects to offer their expert opinion at trial, and whether they will testify at trial need not be disclosed until shortly before trial. (Schreiber v. Estate of Kiser, 22 Cal. 4th 31, 37, 91 Cal. Rptr. 2d 293, 989 P.2d 720 (1999)) The Discovery Act provides a method for ascertaining before trial the names and addresses of the expert witnesses whose testimony each party intends to introduce ...

Excerpt: ... Mark Lieberman, DDS, who opines that defendant did not breach the standard of care or cause any of plaintiffs' damages. Defendant gave more than 80 days' notice as required (75 days for the MSJ, plus 5 for service (Code Civ. Proc. (CCP), §§ 437c, subd. (a), 1013, subd. (a))). The trial in this matter is set for 3/24/22. Plaintiff filed no opposition and instead filed notice that she would not oppose this motion. Analysis Summary judgment is gr...

Excerpt: ...hich the examination is requested. Pursuant to CCP §2025.450(a), where a party fails to appear, without a valid objection, the party giving notice of the deposition may move for an order compelling attendance, testimony, and the production of documents. The motion must show good cause, and be accompanied by a meet and confer declaration under CCP §2016.040. (CCP §2025.450(a).) Implicit in the requirement is that counsel make a good faith attem...

Excerpt: ...he right of privacy. (John B. v. Superior Court (Bridget B.) (2006) 38 Cal.4th 1177, 119.) As stated by the California Supreme Court: “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citations.] The party seeking information may raise in response whatever legitimate and important coun...

Excerpt: ...ce (CCP 2025.250(a)). At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition (CCP 2025.310(a)). Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at ...

Excerpt: ...plaint must be accepted as true. (Del E. Webb Corp. v. Structural 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 d...

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...