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...

Excerpt: ...oinder of that party would have been permitted by the statutes governing joinder of parties.” CCP § 428.20. The Court finds that the proposed cross‐complaint arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in the complaint. Specifically, the proposed cross‐complaint alleges causes of action for equitable indemnification, express indemnity, and decla...

Excerpt: ...by demurrer on the ground that “[t]he pleading does not state facts sufficient to constitute a cause of action.” CCP § 430.10(e). (a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demur...

Excerpt: ... “any matter relevant to the leave requested,” which includes but is not limited to: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. 2 (3) Any likelihood that permitting the discovery or hearing the discovery motion will pre...

Excerpt: ...ay move for judgment on the pleadings if the complaint states sufficient facts to constitute a cause of action and the answer does not state facts sufficient to constitute a defense to the complaint. Here, Plaintiff has alleged a common count cause of action to collect on a debt; specifically, account stated, open book account and money lent. “The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain...

Excerpt: ...al Notice of Defendant's answers to discovery where Defendant has admitted, that all the allegations are true, thus entitling Plaintiff to judgment on the pleadings. Request for Judicial Notice: Plaintiff's request for judicial notice is unopposed and GRANTED. Merits of Motion: Plaintiff has alleged a common count cause of action to collect on a debt. “The only essential allegations of a common count are ‘(1) the statement of indebtedness in ...

Excerpt: ...Notice: Defendants requests for judicial notice are GRANTED. Summary Judgment Standard: CCP § 437c states a motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue of material fact as to the challenged cause of action 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 s...

Excerpt: ... “any matter relevant to the leave requested,” which includes but is not limited to: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. 2 (3) Any likelihood that permitting the discovery or hearing the discovery motion will pre...

Excerpt: ...order. The motion shall be “based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” Id. The application must include an affidavit showing what application was made before, when and to what judge, what orders or decision were 2 made, and what new or different facts, circumstances, or law are claimed to be s...

Excerpt: ...t, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies t...

Excerpt: ...icant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this secti...

Excerpt: ... GRANTED. Merits of the Motion: CCP §396b(b) provides in relevant part: In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney's fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) wh...

Excerpt: ...al. App. 4th 1462, 1468. CCP § 1281.2 requires the court to grant a petition to compel arbitration where it determines that an agreement to arbitrate the controversy exists. “When presented with a petition to compel arbitration the trial court's first task is to determine whether the parties have in fact agreed to arbitrate the dispute.” Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal. App. 4th 50, 59. A party seeking to compel ...

Excerpt: ...overruled. Merits of Motion. The purpose of a summary judgment motion is to cut through the pleadings to determine whether trial is necessary. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 841. The Court must grant the motion if all the papers submitted show “there is no triable issue as to any material fact” and that the “moving party is entitled to a judgment as a matter of law.” Id. “A defendant or cross‐defendant has me...

Excerpt: ...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 the grounds that the pleading is “uncertain.” CCP § 430.10(f). A demurrer can be used to challenge defects th...

Excerpt: ...asement for ingress and egress to and from the Upper Sacramento River. The Amended Judgment also ordered Defendants to remove or modify the portion of the chain link fence that prevents Plaintiff's use of the easement. Now Plaintiffs seek further orders against the Defendants on the grounds that the gate and chain link fence continue to interference with Plaintiff's easement. The general rule is “the owner of the servient tenement may make any ...

Excerpt: ...ss the moving party's evidence. Further, the separate statement in opposition is not in any of the formats prescribed by CRC 3.150(h). The Court will overlook the procedural defects and issue a ruling on the merits. Evidentiary Defects: Defendant has submitted no evidence in support of its opposition and separate statement. The Court notes that Defendant's separate statement cites to a declaration but no declaration was submitted. Therefore, ther...

Excerpt: ...ear the motion on its merits. Request for Judicial Notice. The Court may take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States” under Evidence Code section 452(c). Further, under § 452(b), the Court is permitted to take notice of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public e...

Excerpt: ...hould pursue claims against, and that if a claim was submitted to the City, it would be denied and forwarded to the lessee of the property. In the months following, counsel for the Petitioner's legal assistant corresponded with several insurers. On July 8, 2019, the insurer rejected the claim and suggested it be forwarded to the City of Redding, who was responsible for the maintenance of the parking lot. Petitioner ultimately submitted a claim an...

Excerpt: ...rial.” CRC Rule 3.1332(c)(7). Counsel's vacation has been found to be good cause (albeit in a stipulated continuance). See Cotton v. StarCare Medical Group (2010) 183 Cal. App. 4th 437. Trial counsel's engagement in another trial is good cause. See, e.g., Oliveras v. County of Los Angeles (2004) 120 Cal. App. 4th 1389. In determining whether to grant or deny a motion to continue, the Court considers a number of factors, as outlined in CRC 3.133...