Excerpt: ... 1: Sustained, except as to Exhibit B Objection 2: Sustained, except as to Exhibits A‐D Objection 3: Sustained, except as to Exhibits B‐E Objection 4: Sustained. Objection 5: Sustained. Timeliness. While defendant is correct that the opposition was untimely filed and served, by addressing the opposition on its merits, defendant has waived any irregularities in the notice. See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. The opposition sha...

Excerpt: ...complaint is one filed by a defendant against the plaintiff for a related cause of action. CCP § 4256.30. A related cause of action is defined as “a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” CCP § 426.10(c). CCP § 426.50 permits a party who failed to timely file a compulsory cross‐complaint due to ove...

Excerpt: ...that defendant has satisfied the meet and confer requirements for a demurrer. Request for judicial notice. Defendants' request for judicial notice is granted. Demurrer standard. The purpose of a demurrer is to test the legal sufficiency of a pleading. CCP §§ 422.10, 589. A demurrer is properly sustained where the complaint fails to state facts sufficient to constitute a cause of action (CCP § 430.10(e)) or is uncertain (CCP § 430.10(f)). A de...

Excerpt: ... Rice (deceased) was negligent but that her negligence was not a substantial factor in causing harm to the Plaintiff. Merits of Motion: CCP § 2036.010 permits for a party to obtain discovery after judgment is entered if an appeal has been taken or the time for an appeal has not expired. A party seeking post judgment discovery must obtain leave of court. CCP § 2036.030(a). The motion shall set forth: 1) the names and addresses of the person from...

Excerpt: ...019 against, Defendant Craig E. Miller, as Successor Trustee of the Miller Family 1993 Revocable Trust. A first amended complaint was filed on March 1, 2019 and alleges causes of action for breach of secured 2 promissory note, judicial foreclosure, common count, foreclosure of equitable lien and declaratory relief. Defendant filed his answer and cross‐complaint on April 9, 2019. The cross‐ complaint named Plaintiff as a Cross‐Defendant as w...

Excerpt: ...mitations; 3. The complaint contains no specific factual allegations risking to level of “evil motive” required to support a finding of malice, oppression, or fraud for a punitive damages claim; 4. Plaintiff's claim for emotion distress damages in first, second, seventh, and eighth causes of action is barred by workers' compensation exclusivity provisions of Labor Code §§ 3600 et seq.; 5. Plaintiff's claim for failure to engage in the inter...

Excerpt: ... those defects has been filed. Under CCP § 1005(b), all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The motion was served by mail on May 14, 2019 and filed June 3, 2019. Merits of motion. A petition for leave to intervene may be made by noticed motion or ex parte application and must include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds u...

Excerpt: ...155,960. He provides no other evidence. Typically a motion of this nature is supported by a detailed declaration if not copies of the billing sheets. This information allows the Court to review and consider if the amount of hours were reasonable and if the hours were expended related to a cause of action or claim that supports the award of attorney's fees. The evidence provided does not produce such information and therefore the Court cannot cond...

Excerpt: ...re 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). CCP § 1033.5 sets forth categories of costs that are presumed allowable under section 1032 if incurred, whether or not paid, by the prevailing party. Service of Process: Service of process cost are expressly authorized by CCP § 1033.5(a)(4). Plaintiffs have provided an explanation as to the met...

Excerpt: ...h 68 (cancellation of written instrument cause of action) 5. Paragraph 69 (cancellation of written instrument cause of action) 6. Prayer for relief, Paragraph i (treble damages for violation of the Homeowner's Bill of Rights) 7. Prayer for relief, Paragraph ix (punitive damages) 8. Prayer for relief, Paragraph xi (attorney's fees and costs) The motion is brought pursuant to CCP §§ 435 and 436 on the grounds that the prayer for relief is not dra...

Excerpt: ...urts to prosecute the action.'” Jameson v. Desta (2009) 179 Cal.App.4th 672, 678; citing Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792. If the litigant is indigent and has a bona fide claim, the trial court must consider the remedies that are available to protect the litigant's right of meaningful access to the courts. Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483. A trial court is to exercise its “sound discretion” in determining th...

Excerpt: ...rits, plaintiff has waived any irregularities in the notice. See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. The motion should be heard on its merits. Request for Judicial Notice. The Court grants both parties' requests for judicial notice. Factual background. This motion is based on a provision in the Credit Agreement, a document which forms part of the contract sued upon by plaintiff in this action. The Credit Agreement has a clause in par...

Excerpt: ...hearing plus five calendar days if mailed. CCP § 1005(b). For a hearing date of May 28, 2019, the last day to have served the motion by mail was April 28, 2019. The motion was served by mail on May 2, 2019 and therefore fails to satisfy the service requirements of CCP § 1005(b). Defects in the notice are waived if the motion is opposed on the merits absent sufficient prejudice. Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. Plaintiff has obje...

Excerpt: ...nfer efforts. At issue are approximately 30+ requests for admissions and corresponding Form Interrogatory 17.1, which requires a party who responds to a request for admission with anything other than an unqualified admission to identify facts, witnesses and documents that support the party's response. Procedural requirements. Defendant has satisfied the meet and confer requirements in bringing this motion. See CCP §§ 2030.300(b), 2033.290(b). L...

Excerpt: ... vehicle was owned by Defendant Gerald Olsen. At the time of the incident, Plaintiff was an employee of JF Shea. JF Shea had been retained by Defendant, State of California, Department of Transportation (Caltrans) to perform repairs on a state highway made necessary due to a landslide. Caltrans moves for summary judgment or, in the alternative, summary adjudication, on grounds that (1) Plaintiff's recovery is barred by the Workers' Compensation E...

Excerpt: ...nfer efforts. At issue are approximately 30+ requests for admissions and corresponding Form Interrogatory 17.1, which requires a party who responds to a request for admission with anything other than an unqualified admission to identify facts, witnesses and documents that support the party's response. Procedural requirements. Defendant has satisfied the meet and confer requirements in bringing this motion. See CCP §§ 2030.300(b), 2033.290(b). L...

Excerpt: ...ive order in place. Plaintiff's counsel failed to provide a formal objection to the deposition notices. No protective order was sought prior to the deposition dates and no motion to quash the subpoena was ever filed. The service of a deposition notice is effective to require a party or party affiliated individual to appear for the deposition. CCP § 2025.280. In addition a subpoena can be issued to require the appearance of a non‐party deponent...

Excerpt: ...cts that appear on the face of the complaint or matters that may be judicially noticed. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other extrinsic evidence can be considered. Ion Equip. Corp. v. Nelson (1980) 110 CA3d 868, 881. The “face of the complaint” includes exhibits attached to the complaint and incorporated by reference. Barnett v. Fireman's Fund Ins. Co. (2001) 90 CA4th 500, 505. The court treats a demurrer “as admitting all...

Excerpt: ...provides a mechanism for a party to move for reconsideration within 10 days after service of the written notice of entry of order. A party may make this application to the same judge or court that made the order “based upon new or different facts, circumstances, or law” and request the court “reconsider the matter and modify, amend, or revoke the prior order.” Id. The application must include an affidavit showing what application was made...

Excerpt: ...ent an agreement between the parties. Third, the motion is actually a motion for reconsideration considering that Plaintiff previously filed a motion for a trial continuance. That motion also failed to comply with Code of Civil Procedure Section 1005(b) and was denied after Plaintiff failed to appear for the hearing. Despite the numerous procedural defects, the Court will consider the motion on the merits. A motion for a trial continuance is allo...

Excerpt: ... abuse and to the general inability to treble punitive damages. As the opposition makes clear the Plaintiff is not attempting to treble the elder abuse damages provided by the W&I Code. Plaintiff is only seeks to treble the punitive damages. A review of the relevant paragraphs in each cause of action show that Plaintiff is only seeking to treble the punitive damages. Therefore, the Court need only to address the applicability of treble punitive d...

Excerpt: ... an amendment to any pleading or proceeding in other particulars.” CCP § 473(a)(1). CCP § 576 further provides that a court “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” The court's discretion is usually exercised liberally to permit amendment of the pleadings “at any stage of the proceedings,...

Excerpt: ...o provide a sufficient factual basis for punitive damages. She also provides a general allegation that Defendant Sparks as the Senior Vice President was certainly a managing agent and argues that no further specificity is needed. The title of Senior Vice President alone is insufficient to allege that Sparks was an officer or other responsible individual for corporate policy that would allow punitive damages to be alleged against a corporation. Th...

Excerpt: ...ety. Under CCP § 916(a), the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. A motion to be relieved as counsel for Shree Shiva, LLC is neither embraced nor affected by ...

Excerpt: ...t) of CCP § 437c as the basis for this motion. Subdivision (t) provides that a party may move for summary adjudication of a legal issue that does not completely dispose of a cause of action when certain steps are followed. Subdivision (t) states in pertinent part as follows: (1)(A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the followi...