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...

Excerpt: ...d cannot reasonably obtain needed evidence. (CCP §437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) To demonstrate that a cause of action cannot be established, the defendant must either negate an essential element of the plaintiff's cause of action or show that the plaintiff lacks evidence. (Chavez v. Glock (2012) 207 Cal.App.4th 1283, 1301.) To demonstrate that the plaintiff lacks evidence, the defendant must show that the ...

Excerpt: ...cts a reasonable range of potential liability. (Pruyn v. Agricultural Ins. Co. (1995) 36 Cal.App.4th 500, 527.) In Tech‐Bilt v. Woodward‐Clyde (1985) 38 Cal.3d 488, 499, the Court stated that pursuant to CCP §877.6, several factors are to be considered in determining whether a settlement is made in good faith, such as, “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlem...

Excerpt: ...UMF Nos. 2, 4, 11‐14, 25‐26, 28‐30, and 32. Request for Judicial Notice “[A]lthough 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 reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) Moreover, it is appropriate for the court to take, judi...

Excerpt: ...eans a party, a party's attorney, a witness, and an insurer or any other individual or entity whose consent is necessary for the disposition of the case. If a failure to comply with an applicable rule is the responsibility of counsel and not of the party, any penalty must be imposed on counsel and must not adversely affect the party's cause of action or defense thereto. Rule 2.30(b) also allows the court to order “the person who has violated an...

Excerpt: ... that the defendants were the prevailing party. (Id. at 107‐108.) Coltrain was criticized by Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1457, which held that the court must first determine whether the defendant would have prevailed on the anti‐SLAPP. Accordingly, the court first needs to determine whether Defendants would have prevailed on the underlying anti‐SLAPP. Page 3 of 5 A. Underlying Anti‐SLAPP 1. Defendant's Burde...