Excerpt: ...nfer Efforts: The Court finds that the meet and confer efforts were minimal and ineffective; however, it appears that further meet and confer efforts would be unproductive. The Court will therefore proceed to issue a ruling on the merits. Standards of Demurrer: A generally demurrer should be sustained if the complaint fails to “state facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). A demurrer can also be brought on t...

Excerpt: ...28.75 pursuant to Civil Code § 1794(d) of the Song‐Beverly Consumer Warranty Act. The attorney's fees relate to the work of six attorneys for a total of $20,152.50. Plaintiff then requests a .5 lodestar enhancement making the total $30,228.75. Plaintiffs also requests costs in the amount of $7,144.65. Authority: The Song‐Beverly Act contains a cost‐shifting provision that specifically allows prevailing buyers to 5 recover their costs, incl...

Excerpt: ... conducted under Vehicle code section 13559 and CCP section 1094.5. Combs v. Pierce (1991) 1 Cal.App.4th 568, 575. The reviewing court must exercise its independent judgment in determining whether the weigh to the evidence supports the Respondent's findings. Berlinghieri v. DMV (1983) 33 Cal.3d 392, 394. Where the evidence is subject to conflicting inferences of a crucial issue, the trial court may draw its own inferences from the evidence in the...

Excerpt: ...e to appear for Plaintiff's deposition. The deposition was set to occur on February 28, 2020. Prior to the deposition date, Plaintiff's counsel stated that he would not allow the deposition to proceed unless Defendant provide further responses to discovery and other information related to documents in Defendant's possession. He also sought to limit the scope of the deposition. Defendant agreed to and in fact did provide further responses in the a...

Excerpt: ...to three of the causes of action on the ground they are preempted by the California Uniform Trade Secrets Act (“CUTSA”). Demurrer Standards: A demurrer should be sustained if the complaint fails to “state facts sufficient to 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 demurrer can be used to challenge defects that appear on t...

Excerpt: ...'s attendance and performance during his employment at Camping World. Neither party directly addresses the exact dates Plaintiff was employed at Camping World, other than his resignation date of April 5, 2019. CCP § 2017.010 provides that parties have the right to discover “any matter, not privileged, that is relevant to the subject matter involved in the pending action.” California Constitution Article I, § 1 expressly grants each individu...

Excerpt: ... to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. There is a genuine issue of material fact only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Id. at 845. The Court's sole function on a motion for summary judgment is issue�...

Excerpt: ...ter service upon the party of written notice of entry of the order.” The time to file a motion for reconsideration expired on April 18, 2020 (10 days plus 2 for electronic service under CCP section 1013). Pursuant to COVID‐19 Implementation Order 20‐2020, “for purposes of computing time for filing papers with the Court under Code of Civil Procedure Sections 12 and 12a, from April 14, 2020, to May 4, 2020, inclusive, are deemed holidays . ...

Excerpt: ...se of action.” CCP § 430.10(e). Timeliness. “A person against whom a complaint or cross‐complaint has been filed may, within 30 days after service of the complaint or cross‐complaint, demur to the complaint or cross‐ complaint.” CCP § 430.40. That code section “thus uses the permissive expression ‘may,' not the mandatory term ‘must.' ” McAllister v. County of Monterey (2007) 147 Cal. App. 4th 253, 280. The “time limitation...

Excerpt: .... CCP § 657(1), (6), (7). The grounds for Plaintiff's motion arise from the Court's consideration of the Declaration of Donna Sanders, an alleged failure of the Court to consider Plaintiff's evidence, allegations that the Court ignored the evidentiary burden and failed to liberally construe Plaintiff's evidence. The Court finds these contentions without merit. The Sanders Declaration was reviewed and accepted by the Court. Plaintiff did not obje...

Excerpt: ...o. (2001) 25 Cal. 4th 826, 850. There is a genuine issue of material fact only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Id. at 845. The Court's sole function on a motion for summary judgment is issue‐finding, not issuedetermination. The judge must simply determine from the evidence submitted whether there is a...

Excerpt: ...ditional work for the Court, and Plaintiff's counsel is advised to comply with Rule 3.1324 in the future. CCP § 473(a)(1) permits any pleading to be amended in further of justice and on any terms as may be proper, after notice to the adverse party. The Court's discretion in this regard will usually be exercised liberally to permit amendment. Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939. “If the motion to amend is timely made and the granti...

Excerpt: ...mendment”) provide that net proceeds shall be distributed first 9 to reimburse Mr. Sarid for the $4,422.38 in tax payments, and then to reimburse Mr. Sarid for the $174,000 down payment for the subject property. Any shortfall shall be attributed to Mr. Austin Cohen by way of a judgment if not paid within 30 days. The Amendment, entered into shortly before the close of escrow on the property, provides for the Court to determine allowable expendi...

Excerpt: ...dical records (which would include billing information) were identified in Pullen's responses to Series 6 of the Form Interrogatories. Having put the medical records at issue, Pullen cannot now quash their production. Pullen argues that the request is “burdensome, harassing, oppressive and solely designed to increase costs.” No evidence has been provided to support that conclusion. In fact, no evidence has been provided in support of the moti...

Excerpt: ...Road and predominantly reside in a subdivision less than a ½ mile north of Defendants' property. Plaintiffs' only legal access appears to be Sand Pit Road. Plaintiffs claim that they and their predecessors have used the route for a decade without permission of any land owner. On or about November 4, 2019, Defendants blocked Sand Pit Road. Since that time, Plaintiffs have used a separate paved road, which also crosses Defendants' property, to acc...

Excerpt: ...ot filed an opposition. Media's Objections to Evidence: Objection No. 1: Sustained Objection No. 2: Sustained Objection No. 3: Sustained Objection No. 4: Sustained as to Exhibit 5 only, Overruled as to remainder Objection No. 5: Overruled Objection No. 6: Sustained as to Exhibit 14 only, Overruled as to remainder Objection No. 7: Overruled Objection No. 8: Overruled Objection No. 9: Overruled Objection No. 10: Overruled Objection No. 11: Overrule...

Excerpt: ...of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute.” Unruh‐Haxton v. Regents of University of California (2008) 162 Cal. App. 4th 343, 364 (internal citations omitted). See also California Evidence Code section 450. While the Court will take judicial notice of the existence of pleadings in that case, the Court declines to take judicial notice of t...

Excerpt: ... fraud or malice required to support a punitive damage award. Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63. In order to state a prima facie case of punitive damages a complaint must set forth the elements of punitive damages. Id. These allegations include that a defendant was guilty of oppression, fraud or malice. Id. Plaintiffs' complaint requests punitive damages but alleges no facts that would constitute op...

Excerpt: ...pposition.” The opposition was not in fact late due to the recent court closure in response to the coronavirus. The objection is OVERRULED. Form Interrogatory 15.1: This interrogatory requires a responding party to respond separately to each denial of a material allegation and each special or affirmative responses. Each separate responses must provide supporting facts and identify witnesses and documentation. Defendant has alleged 39 separate a...

Excerpt: ... triable issues of material fact. As a preliminary note, a significant portion of Plaintiff's Opposition to the motion is devoted to issues related to a future motion to amend. The Court declines to consider these arguments. “[T]he pleadings determine the scope of relevant issues on a summary judgment motion.” Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal. App. 4th 60, 74. A defendant moving for summary judgment need on...

Excerpt: ...d Defendant had a financial transaction, Plaintiff kept an account of the debits and credits involved in the transaction(s); and Defendant owes Plaintiff $2,426.16, all of which comprise entitlement to judgment on an open book account claim. Plaintiff's evidence establishes that Plaintiff and Defendant, by words or conduct, agreed that the amount stated in the account was the correct amount owed to Plaintiff; Defendant, by failing to cancel the a...

Excerpt: ... Pursuant to CCP § 1032, the party prevailing in most civil cases may recover costs of suit in any action or proceeding. See CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606. The award of costs pursuant to section 1032 is discretionary, and the costs recoverable are restricted to only those costs that are both reasonable in amount and reasonably necessary to the conduct of the litigation. CCP § 1033.5(c)(2)(3). The Court has the po...

Excerpt: ...the motion has been filed more than six months after the dismissal, so the mandatory terms of CCP § 473(b) are inapplicable. There is no reason for the Court to consider exercising its discretion to relieve Plaintiff from the dismissal order, based upon the Declaration of Maria Bradish. At no time has the Plaintiff exercised diligence in this case. The Complaint was filed In March of 2018. 1) Plaintiff failed to timely serve the complaint until ...

Excerpt: ...udicial Notice. The motion requests the Court take judicial notice of its own order of January 27, 2020. The request is GRANTED. Legal standard for a motion for protective order. “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” CCP § 2025.420(a). “The court, for good cause shown, may make any order justice requires to protect a p...

Excerpt: ... in the other, show satisfactorily that sufficient grounds exist therefor.” Preliminary injunctive relief is available to a party “who demonstrates either: (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor.” (internal citations omitted) El Pollo Loco, Inc. v. Hashim (9th Cir. 2003) 316 F.3d 1032, 1038. These fac...