Excerpt: ......

Excerpt: ...§1003 clarifies that “An application for an order is a motion”. The notice of hearing does state that Petitioner KB HOME NORTH BAY LLC (“KB”) is seeking an order releasing the property from the mechanic's lien, based upon GDC's failure to commence a civil action to foreclose that lien. However, no mention is made anywhere in this notice that KB is also seeking an award of attorneys fees and costs incurred on the petition. Also, the notic...

Excerpt: ...fer Efforts. Code of Civil Procedure sections 2016.040 and 2025.450 require a declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” to compel deposition. The trial court has discretion in determining whether adequate meet and confer efforts preceded the filing of the motion. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424.) Plaintiffs' counsel's declaration states that P...

Excerpt: ...0(a)(19), which ide ntifies as unfair or deceptive “Inserting an unconscionable provision in the contract.” Plaintiff claimed that the Limited Warranty included Indiana choice of law and forum of Indiana provisions, and a statute of limitations in contravention of California law [Complaint, ¶22]. In its July 2023 ruling on a motion to stay action based on grounds of inconvenient forum filed by Defendants back in March 2023, this court found ...

Excerpt: ... charged until the rendition of the verdict [in the instant case the decision of the court], since it is settled that a party may not remain quiet, taking his chances upon a favorable verdict, and, after a verdict against him, raise of a point of which he knew and could have raised during the process of the trial.” (Estate of Nessel (1958) 164 Cal.App.2d 798, 806; Cembrook v. Sterling Drug, Inc. (1964) 231 Cal.App.2d 52, 67.) Plaintiff had know...

Excerpt: ...es reasonably related to the eminent domain use on that property. (Property Reserve, Inc. v. Superior Court (2017) 1 Cal.5th 151, 175 (Property Reserve).) Section 1245.030 allows such a person to petition the court for an order permitting entry onto relevant property in cases where the property owner does not consent to entry. The court evaluating such a petition must determine the purpose for the entry, the nature and scope of activities reasona...

Excerpt: ...in & Franklin v . 7 -Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1175. However, application of the exclusive concurrent jurisdiction rule does not require absolute identity of parties, causes of action or remedies sought in the initial and subsequent actions. Shaw v. Superior Court (2022) 78 Cal.App.5th 245, 256. Instead, if there appears to be any potential for overlap of the claims in the two cases, a stay order is appropriat...

Excerpt: ...t he contact ed unrepresented witness Jaimie Galeano in advance of Galeano's deposition and sought information protected under Defendant's attorney -client privilege from Galeano, utilized that information to obtain additional information at Galeano's deposition, ignored Defendant's request to pause the deposition so that a protective order could be sought, and improperly offered legal advice to Galeano at the deposition. Disqualification of Atto...

Excerpt: ...hen such information is equally available t o the asking party. C.C.P. §2030.220. The others a party should ask includes counsel, as to nonprivileged information; employees or agents; and relatives. Page 2 of 6 Duty to obtain information: “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the informatio...

Excerpt: ...ests for admiss ions]. The trial court has discretion in determining whether adequate meet and confer efforts preceded the filing of the motion. Obregon v. Superior Court (1998) 67 Cal.App.4th 424 [factors to be considered include the complexity of the discovery issues, the past history of the counsel on prior disputes, and to a certain extent, the judge's gut feeling; sending one brief letter 13 days prior to the deadline to file a motion to com...

Excerpt: ...f) affords the court discretion to dismiss a complaint where a plaintiff fails to file an amended complaint within the time allotted by the court after a successful challenge to the previous pleading. (Cano v. Glover (2006) 143 Cal.App.4th 326, 329.) Plaintiff did not file his first amended complaint within the time allotted at the June 14 hearing. His first amended complaint was filed on September 28, 2024, more than thirty days after. The court...

Excerpt: ...nologies, Inc . (2024) 17 Cal.5th 1. Rattagan was decided on August 22, months after the demurrer and motion to strike were filed, but months before the opposition and reply papers were filed. In it, the California Supreme Court answered a certified question from the 9th Circuit federal court as to whether a plaintiff under California law could assert a tort claim (and associated remedies) for fraudulent concealment arising out of or related to t...

Excerpt: ...339; Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 383 -384.) But, not all “statutory penalties” are “civil penalties” subject to the notice and exhaustion requirements. (Dunlap, 142 Cal.App.4th at 339; Caliber, 134 Cal.App.4th at 378.) “One must distinguish between a request for statutory penalties provided by the Labor Code for employer wage -and -hour violations, which were recoverable directly by employees we...

Excerpt: ...ice and format requirements of the particular method of discovery, as provided in Title 4 (commencing with Section 2016.010) of Part 4. As to each adverse party, a party may use the following forms of discovery: (a) Any combination of 35 of the following: Page 2 of 3 (1) Interrogatories (with no subparts) under Chapter 13 (commencing with Section 2030.010) of Title 4 of Part 4. (2) Demands to produce documents or things under Chapter 14 (commenci...

Excerpt: ...re not identical, as long as the court in the first -filed action has the power to litigate the issues and grant the applicable relief. Under [the] doctrine [of exclusive concurrent jurisdiction], when two or more courts have subject matter jurisdiction over a dispute, the court that first asserts jurisdiction assumes it to the exclusion of the others. (Franklin & Franklin v. 7 - Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1175...

Excerpt: ...ion 473.5. Contrary to Defendant's unsupported assertion in reply that Plaintiff has the burden of proving that Defendant received actual notice, it is Defendant's burden, as the moving party, to show good cause for relief, including establishing that he did not receive actual notice and that the failure to receive actual notice was not caused by his avoidance of service or by his inexcusable neglect. (Shapell SoCal Rental Props., LLC v. Chico's ...

Excerpt: ...GHT, a VCUSD student, and WAT ERMAN, WRIGHT's guardian ad litem, were assaulted and battered while on VCUSD school premises and in the presence of VCUSD employee and school vice principal Camille Jefferson. Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ult...

Excerpt: ...ated Dr. Ismail's employment on March 17, 2022, causing stress on the couple. Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint must allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.) A c...

Excerpt: ... is by mail. Se e also C.C.P. §418.10(b) [A notice of motion to quash service “shall be served in the same manner, and at the same times, prescribed by subdivision (b) of Section 1005”]. This motion to quash was not served by mail until November 15, and not filed until November 18. Thus, the effective dates for filing and service of this motion were less than the required 16 court days before hearing deadline. Even if this motion had been ti...

Excerpt: ...ut not limited to, a stakeout or other means employed in locating the person to be served” [C.C.P. §1033.5(a)(4)(B)]; and “Fees for the electronic filing or service of documents through an electronic filing service provider if the court requires or orders electronic filing or service of documents [C.C.P. §1033.5(a)(14)]. Even if expressly authorized by statute for recovery, costs must also be “reasonably necessary to the conduct of the li...

Excerpt: ...amendments to pleadings “in furtherance of justice.” (Code Civ. Proc., § 473, subd. (a)(1).) The court has wide discretion but repeatedly stated policy encourages liberality in allowing amendment. (See Frost v. Witter (1901) 132 Cal. 421, 424; Cardenas v. Ellston (1968) 259 Cal.App.2d 232; Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) Indeed, if the motion to amend is timely made and granting the motion will not prejudice the opposing pa...

Excerpt: ... a continuance must be considered on its own merits. The court may grant a Page 2 of 7 continuance only on an affirmative showing of good cause requiring the c ontinuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The u...

Excerpt: ...the “FEHA”), retaliation, rat ification of sexual assault, intentional infliction of emotional distress, and negligent hiring, supervision, and/or retention. BISHOP additionally demurs to the third cause of action, alleging failure to prevent sexual harassment. Summarized, Plaintiff's complaint alleges that fellow teacher and Defendant MICHAEL ANTHONY HENRY (“HENRY”) sexually assaulted her on school grounds on November 1, 2022. Plaintiff ...

Excerpt: ...er Bros. Television Prods. (2006) 38 Cal.4th 264, 274; Genisman v. Carley (2018) 29 Cal.App.5th 45, 49.) The elements of a cause of action for medical negligence are 1) “a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise, 2) a breach of this duty, 3) a causal connection between the negligent conduct and the injury, and 4) resulting loss or damage. (Chakalis v. Elevator Solutions, I...

Excerpt: ...y 2018 and the present. (RJN, Exh. A.) “If a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376.) “[F]ailure to allege facts demonstrating or excu...