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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ... “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: ... “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: ...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: ...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...

Excerpt: ...erved on the third party. CRC 3.1346. No proof of service was filed in this matter, however, a responsive pleading by the Defendants indicates that service of the motion was made by mail on December 13, 2 2019. Furthermore, the motion is untimely under CCP § 2025.480, which requires the motion to compel attendance at a deposition “shall be made no later than 60 days after the completion of the record of the deposition.” Although the motion i...

Excerpt: ... the Court can also retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. The parties entered into a settlement orally in open court on June 24, 2019. The terms of the settlement were memorialized by the Court in writing and signed by both parties and attached to the minute order of June 24, 2019. The settlement provided that Defendant would pay the amount of $15,000.00, plus 7% i...