Excerpt: ...o constitute a valid cause of action.” CCP § 430.10(e). A demurrer can also be brought on the grounds that the pleading is “uncertain.” CCP § 430.10(f). A complaint, or causes of action therein, are subject to demurrer for uncertainty if it is so uncertain that a defendant cannot reasonably respond. Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer can be used to challenge defects that appear on the face of the c...

Excerpt: ...0(e). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal.App.4th 435, 438. No matter how unlikely, a...

Excerpt: ... The settlement amount is $112,500. PAGA Settlements: The Private Attorneys General Act of 2004 (“PAGA”) is codified in Lab. Code §§ 2698, et seq. In bringing a PAGA action, an aggrieved employee acts as the proxy or agent of state labor law enforcement agencies, representing the same legal right and interest as those agencies, in a proceeding that is designed to protect the public, not to benefit private parties. Villacres v. ABM Industrie...

Excerpt: ...of ordinary care. Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. “[T]he acts which brought about the default must have been the acts of a reasonably prudent person under the same circumstances.” Id. The moving party has the burden of proof to establish one of these conditions by a preponderance of the evidence. Luz v. Lopes (1960) 55 Cal.2d 54, 62. The moving party must submit affidavits or testimony demonstrating a reasonable cause...

Excerpt: ...tion Provision)” (hereinafter “Sale Contract”). The Sale Contract included an Arbitration Provision which provides, in pertinent part, as follows: “Any claim or dispute, whether in contract, tort, statute, or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to yo...

Excerpt: ... Santa Monica (1972) 6 Cal. 3d 920, 939. “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530. Defendants arg...

Excerpt: ... action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the [C]ourt determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” A special motion to strike is thus a procedural re...

Excerpt: ...mary judgment shall be granted if all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. “A defendant…has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or 3 that there is a complete defense to the cause...

Excerpt: ...c. et al was filed on January 9, 2020. The Wade matter was filed under the Private Attorney Generals Act of 2004 (“PAGA”). The proposed settlement is $1,000,000. The breakdown of payments, costs, and fees from the proposed settlements are as follows: Total Settlement Amount $1,000,000 Proposed Attorneys' Fees (35%) ‐$350,000 Litigation Costs and Expenses ‐$35,000 Estimated Settlement Administration Costs ‐$18,000 PAGA Claim Settlement A...

Excerpt: ... a preliminary injunction is set forth in CCP § 525 et seq. To obtain a preliminary injunction, plaintiffs must establish that defendant should be restrained from the challenged activity pending trial. See CCP § 526(a); see also Trader Joe's Co. v. Progressive Campaigns (1999) 73 Cal.App.4th 425, 429. The moving party has the burden of providing sufficient admissible evidence to establish all elements necessary to support issuance of the prelim...

Excerpt: ... the grounds that the pleading is “uncertain.” CCP § 430.10(f). A complaint, or causes of action therein, are subject to demurrer for uncertainty if it is so uncertain that a defendant cannot reasonably respond. Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 C...

Excerpt: ... seven causes of action. The anti‐SLAPP was originally scheduled to be heard on August 30, 2021, however the hearing was continued at the request of Plaintiff and the anti‐SLAPP was eventually heard on October 4, 2021. The Court took the matter under submission and granted the anti‐SLAPP on November 22, 2021 in all aspects except one cause of action as to Defendant Mark Lucas. In the ruling on the anti‐SLAPP, the Court determined that Def...

Excerpt: ...efforts. Merits. The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: 2 (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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 can be used to attack the entire pleading, o...

Excerpt: ...ttlement check has not been cashed due to a need for a signature from the Guardian Ad Litem. No response to the OSC was received, nor was a response received for the prior OSC issued in the amount of $250.00 on October 19, 2021. Although an attorney hired by the Guardian Ad Litem has the primary responsibility for pursuing the minor's claim, hiring the attorney does not relieve the guardian of all responsibility for pursuing the claim. Brandon G....

Excerpt: ...e can be used to attack the entire pleading, or any part thereof, including single words or phrases. Stearns Ranchos v. Atchison Topeka & Santa Fe Railway (1981) 19 Cal.App.3d 24. It is proper for the Court to strike any irrelevant, false or improper matter. CCP § 436(a). The Court can also strike any part of a pleading that is not drawn or filed in conformity with California law. CCP § 436(b). Damages for emotional distress and general damages...

Excerpt: ...evance should generally be resolved in favor of permitting discovery. Colonial Life & Acc. Ins. Co. v. Sup. Ct. (1982) 31 Cal.3d 785, 790. Boilerplate objections are not proper objections and cannot be used indiscriminately to evade discovery obligations. Korea Data Sys. Co. v. Sup. Ct. (1997) 51 Cal.Ap.4th 1513, 1516. 2 This is an action brought under the Song‐Beverly Act. Civil Code § 1790 et seq. To succeed on a claim, a plaintiff bears the...

Excerpt: ...Civil Procedure] section 877.6 require that a number of factors be taken into account” when evaluating whether a settlement between a plaintiff and joint tortfeasor is in good faith, including (1) a rough approximation of plaintiffs' total recovery and the settlor's 3 proportionate liability; (2) the settlement amount, (3) allocation of the settlement proceeds among multiple plaintiffs, if applicable; (4) recognition that a settlor should pay l...

Excerpt: ...e § 11470. The judicial and/or administrative procedure for forfeiture is laid out generally in Health and Safety Code §§ 11488.4 and 11488.5. For a judicial forfeiture the District Attorney's Office (or other agency) is required to file a Petition for Forfeiture. Health and Safety Code § 11488.4(a). The Petition for Forfeiture must be served on the individuals from whom the property was seized. Health and Safety Code § 11488.5(c). This serv...

Excerpt: ...Court. If requested by the parties, the Court also retains jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. Id. The parties signed a Stipulation for Settlement that was filed with the Court on March 10, 2021. After the matter was dismissed, the parties signed an Amended Stipulation for Settlement that was not filed with the Court, but attached as Exhibit 1 to the Declaration of Coun...

Excerpt: ...claration of Tristan P. Espinosa provides sufficient evidence of Plaintiff's meet and confer efforts. Request for Judicial Notice. Plaintiff requests the Court take judicial notice of the Answer filed by Defendants, Plaintiff's Motion to Deem Admissions, and the Court's ruling and Order granting Plaintiff's Motion to Deem Admissions. Plaintiff provided a copy of each. Pursuant to Evid. Code §§ 452(d) and 453, the Court grants the request. Merit...

Excerpt: ...n the same date, the Court issued an Order Granting Stipulation for Binding Arbitration and Stay of Action. The Stipulation includes an agreement to submit the entire Action to the arbitrator (¶ 1) and that the parties would split the costs of arbitration equally (¶ 5). The parties went to arbitration on August 31 and September 1, 2021. On October 25, 2021, the 4 arbitrator rendered an Arbitration Decision. The Arbitration Decision resolved all...

Excerpt: ...attorney's fees pursuant to CCP § 425.16(c) if they prevail on the motion. Merits of Motion: Code of Civil Procedure section 425.16, subdivision (b)(1), provides that “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the ...

Excerpt: ...ower of the court to apply the ultimate sanction of default against a litigant who persists in an outright refusal to comply with his discovery obligations.” Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787. On December 15, 2021, the Court issued an order granting Defendant's motion to compel further responses. To date, the further responses have not been provided. Court awarded sanctions have also not been paid. The Court order did not provide ...

Excerpt: ... a ruling made in California Department of Forestry and Fire Protection v. Eunice E. Howell, et al. Defendant did not object to the request and the ruling is a record of a court. The Court will take judicial notice pursuant to Evid. Code §§ 452(d) and 453. Meet and Confer Efforts. Both parties have provided substantial evidence regarding meet and confer efforts. The Court finds that the meet and confer efforts were sufficient. Merits of the Mot...

Excerpt: ...hat there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. “A plaintiff…has met his or her burden of showing that there is no defense to a cause 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(p)(1). Once a plaintiff has met its burden, the burden shifts to the defendant to show a triable issu...