Excerpt: ... only on the following conditions: (1) motion must be based on new or different facts, circumstances or law; and (2) the motion must be supported by a declaration showing ...what new or different facts or circumstances or law are claimed to exist.” Weil & Brown Civil Procedure Before Trial (the Rutter Group 2021) at §9:337; Code of Civil Procedure section 1008(b). In a personal injury or wrongful death case, the Code of Civil Procedure section...

Excerpt: ...tends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion. (c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that t...

Excerpt: ...e has done. It is improper to plead the evidence by which he plans to prove the ultimate facts, as Defendants seem to argue; and had Plaintiff done so that evidentiary matter would be subject to a motion to strike as “surplusage”. Weil & Brown, California Procedure Before Trial §6:127. The Demurrer itself does not comply with CRC 3.1320 (a), which requires that a demurrer state whether the ground asserted is to the entire pleading or to some...

Excerpt: ... and issuing the Notice of Determination. These combined actions are referred to herein as the “SHW Approvals”. The challenged SHW Approvals followed this Court's issuance of a writ in East Meadow Action Committee v Regents (19CV01312‐‐EMAC) directing the University to set aside its 2019 approvals of the SHW Project based on a finding that violations of CEQA had occurred in the 2019 approval process. Specifically, this Court found that th...

Excerpt: ...from a combination of Defendants' failures to provide decedent with adequate services to meet his basic medical needs, resulting in pain, suffering, a COVID‐19 infection, and ultimately death. (Complaint ¶10, 17‐19, 23‐27, 32‐33, 46‐52, 56.) The PREP Act immunizes "Covered Persons," "Program Planners," and "Qualified Persons" who affirmatively administer a covered countermeasure. Here, Plaintiffs' Complaint alleges that it was, in fact...

Excerpt: ...at SIBANNIC had “applied for federal registrations for the mark” but SIBANNIC can't ignore the remainder of QLORA'S allegations in order to win at demurrer. The FACC and Ex. B clearly establish that QLORA entered into the agreement with an understanding that SIBANNIC could actually deliver a registered mark to them for exclusive use in California, yet SIBANNIC failed to have such a mark. (FACC ¶¶ 7‐67) SIBANNIC also argues that there was ...

Excerpt: ...h in connection with a public issue.” Where a cause of action is “mixed,” and is based on both protected and non‐ protected activity, the entire cause of action may be stricken under §425.16 if the principal thrust or gravamen of the claim is protected activity. If the court determines that the defendant has made this threshold showing, the burden shifts to plaintiff to demonstrate a probability of prevailing on the claim, by showing tha...

Excerpt: ...on 216 of the Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code. Cal Pub Util Code § 216 “Public utility” (a) (1) “Public utility” includes every ... telephone corporation... Cal Pub Util Code § 2891 Telephone and telegraph customer privacy; Consent to release of information a) No tel...

Excerpt: ...ths, after the judgment, dismissal, order, or proceeding was taken... Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (2) resulting default judgment or dismissal entered against his ...

Excerpt: ... of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. (b) The court shall make this order unless it finds any of the following: (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. (2) The admission sought was of no sub...

Excerpt: ... admission to be withdrawn or amended. Weil & Brown Civil Procedure Before Trial (the Rutter Group, 2021) citing Code of Civil Procedure section 2033.300(b). “Relief under Code of Civil Procedure Section 2033.300 is available for all admissions, and thus permits withdrawal or amendment of admissions deemed admitted for failure to respond as well as of admissions contained in an actual response.” 3 California Deposition and Discovery Practice ...

Excerpt: ...n for order allowing filing of supplemental complaint filed 5/16/22 and Walter Dec. filed 5/16/22, Ex. 1 ¶ 20) Cal Code Civ Proc § 464 Supplemental complaint and answer (a) The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer. “As a general rule, the right to file a supplemental complaint can be exerc...

Excerpt: ... grievance form. • While Garcia was giving a “group chat” to employees by telephone, another employee texted a slur about Garcia (“shut up gay ass bitch”); Garcia then called Plaintiff, showed disinterest in talking to the person who actually sent the text, and “basically told him he was fired”. Plaintiff told Garcia that he was going to file a grievance, but was fired before he could do so. • Garcia “hated” Plaintiff because ...

Excerpt: ...te, but no new fact discovery may be propounded. Any fact discovery already propounded but not complete (such as PMQ depositions) can proceed up to and including 30 days prior to the new trial date. Motions to compel related to discovery responses propounded on 9/6/22 shall be filed no later than 45 days from the verification date. MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY Plaintiffs' motion to compel is moot based on Defendant...

Excerpt: ...ny notice of contesting the 6/6/22 tentative ruling; (3) Even if Defendant knew of the 6/23/22 hearing, it would not have appeared because Plaintiff failed to provide any notice of contesting the tentative ruling; and (4) Plaintiff's underlying motion failed to contain any new facts or law. The legislative intent behind CCP § 1008 was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstanc...

Excerpt: ...mmediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers. A valid order and judgment of indirect contempt must cover the following elements: the issuance of an order, the contemnor's knowledge of the order, the contemnor's ability to obey it, LAW AND MOTIO...

Excerpt: ...ial court decides whether there is an agreement to arbitrate between the parties, and whether the agreement covered the dispute at issue. Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960. If Defendants meet their burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, the burden then shifts to Plaintiff: “a party opposing the petition bears the burden of proving by a preponderance of the ev...

Excerpt: ...tain, a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor. The intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintif...

Excerpt: ...allowing the admission to be withdrawn or amended. Weil & Brown Civil Procedure Before Trial (the Rutter Group, 2021) citing Code of Civil Procedure section 2033.300(b). “Relief under Code of Civil Procedure Section 2033.300 is available for all admissions, and thus permits withdrawal or amendment of admissions deemed admitted for failure to respond as well as of admissions contained in an actual response.” 3 California Deposition and Discove...

Excerpt: ...M. 2 Regents to file a formal disqualification motion. The City did so, and Judge Marigonda agreed to recuse himself pursuant to CCP §§170.3(c)(3) and 170.1(6)(A)(iii). The Regents have moved to set aside the tentative ruling issued by Judge Marigonda. That motion is granted. This Court has undertaken an independent review of the entire file, including the supplemental briefing filed by the parties pursuant to stipulation. However, based upon i...

Excerpt: ...tory traffic controls, and design immunity. Design immunity, if established at summary judgment, is a complete bar to liability. Here, City cannot establish design immunity's second element. Triable issue as to design immunity: To establish design immunity, City must show (1) the plaintiff's injuries were caused by a feature in the plan or design, (2) that the design was approved before construction by the appropriate legislative body or entity/p...

Excerpt: ...ily law court. The only remaining debt to Maleksalehi is the interest on the loan to Enabledware, a community asset which the family law court has assigned to Tabatabai. This interest is a community debt, and the business valuations and the equalization/distribution of community assets and debts of Tabatabai and Turner are issues that have been reserved by the family law court for final determination, and have yet to be decided. The Court does no...

Excerpt: ...Civil Procedure section 2033.420.” Weil & Brown Civil Procedure Before Trial (the Rutter Group) § 8:1405, citing Garcia v. Hyster Co. (1994) 28 Cal.App. 4th 724, 736; Wimberly v. Derby Cycle Corp., (1997) 56 Cal.App. 4th 618, 638. After reviewing the timeslips attached to Mr. Redenbacher's Declaration in Exhibit 1, the Court found a significant portion of the fees requested occurred before the request for admissions were denied by the Defendan...

Excerpt: ...of the declaratory relief cause of action in his Cross‐complaint filed on August 5, 2019. (See UMF 5, 6]. The motion is denied. The motion is procedurally defective The motion is procedurally defective, as (1) Browne filed an Amended Cross‐complaint on April 5, 2022 which superseded the original cross‐complaint—so the motion is not directed to the operative pleading; (2) Browne's motion seeks a judicial declaration which differs from the ...

Excerpt: ...f the SLVUSD, and as the author of Argument. Petitioner now seeks his attorney's fees against George Wylie under the private attorney general statute (CCP §1021.5). CCP § 1021.5 allows the Court to award or deny fees, in its discretion, in cases in which the prevailing party has not obtained a monetary recovery, if (1) the action has resulted in enforcement of an important right affecting the public interest; (2) a significant benefit, whether ...