Excerpt: ...of Service (4/28/22).) A notice that fails to specify when it is to be heard is fatally defective. (Bohn v. Bohn (1913) 164 Cal. 532, 536‐537; Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538.) If a party does not serve a notice that complies with the requirements of Code of Civil Procedure section 1010 within 60 days of the completion of the record of the deposition, the motion is untimely. (Weinstein v. Blumberg (2018) 25 Cal...

Excerpt: ...ure Section 473(b) reads (in pertinent part): “…Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which wi...

Excerpt: ...on. When the personal records of a consumer are sought, notice to the consumer must also be served. C.C.P. §1985.3(e). A consumer is broadly defined, to include any individual. C.C.P. §1985.3(a)(2). This gives that person “a chance to seek appropriate orders protecting the privacy of such records”. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §8:566, p. 8E‐54. C.C.P. §1985.3(a) defines “personal records” to include r...

Excerpt: ...se guests whose “coordination and judgment have been adversely affected by the consumption of alcohol.” (Allen v. Liberman (2014) 227 Cal.App.4th 46, 55, emphasis added.) Plaintiff continues to allege that Defendant, a minor, invited other minors to her home where alcohol was served and Plaintiff became intoxicated. (SAC, ¶¶ 10‐12.) Plaintiff continues to allege that Defendant failed to protect her from the risk of harm caused by the cons...

Excerpt: ...pp.5th 453, 458.) Plaintiff has not made a showing of inability to meaningfully access the courts. This court previously denied a motion from Plaintiff for appointment of counsel in part because Plaintiff, by his successful maintenance of this case and another in another court department, showed that he enjoyed meaningful access to the courts. Plaintiff has not shown that the situation has changed. Evidence Code section 730 authorizes the court t...

Excerpt: ..., 893 [motion may be denied for noncompliance with requirement of separate statement].) Even if the court considered the merits of the motion, it would be denied. Plaintiff has not demonstrated that the records sought from Deponent Cayton are “personal records” of a “consumer” as defined by Code of Civil Procedure section 1985.3(a) and therefore has not established that the deposition notice was untimely when served more than 10 days prio...

Excerpt: ...nia, including a blood draw. Plaintiff resides in Reno, Nevada. Procedure for Discovery via Physical Examination. Code of Civil Procedure section 2032.220 provides that any defendant in a personal injury case may demand, without leave of court, that the plaintiff submit to one physical examination, so long as the examination is not “painful, protracted, or intrusive” and is not set to take place more than seventy‐five miles away from the pl...

Excerpt: ...er Code of Civil Procedure section 430.30, subdivision (a). The court declines to take judicial notice of JENNIFER's proffered items. The lease between the parties is not a fact or proposition beyond reasonable dispute. Plaintiff's complaint is already a part of the record. 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 ...

Excerpt: ...pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Counsel for Defendant declares that the parties conferred over Plaintiff's original complaint and this process led to the filing of the 1AC. (Declaration of Gregory P. Wayland in Support of Demurrer at ¶¶ 3‐5.) Counsel declares his perception that the 1AC corrects no flaws of the original complaint. (Id. at ¶ 6.) Accordingly, counsel felt that a phone call on May 19, 2022 that was ...

Excerpt: ...essary to understand the requests. The requests are neither vague nor ambiguous. Nonetheless, Defendant is allowed to assert that it does not have sufficient information to admit or deny a request for admission despite a reasonable inquiry, as it has for request number 23. Because Defendant's objections are not meritorious, its responses to subdivisions (b) and (c) of form interrogatory 17.1 are evasive or incomplete. Defendant's answers to subdi...

Excerpt: ... efforts to meet and confer to work these issues out before resorting to a discovery motion. Code of Civil Procedure section 2016.040 requires a declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” to compel. 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.4...

Excerpt: ... information and under a false representation of GOMEZ's ability to later repurchase the Property from SHARMA. 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 ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his...

Excerpt: ... failure to engage in the interactive process under the Fair Employment and Housing Act (the “FEHA”). CDCR additionally moves to strike portions of the complaint pertaining to conduct allegedly occurring prior to September 20, 2019, as well as the complaint's prayer for prejudgment interest. Request for Judicial Notice. Matters subject to judicial notice may support a demurrer under Code of Civil Procedure section 430.30, subdivision (a). Def...

Excerpt: ...prevailing party” as used in Code of Civil Procedure section 1032 and it is insufficient to simply show that the plaintiff achieved a net monetary recovery. (Duff v. Jaguar Land Rover N. Am., LLC (2022) 74 Cal.App.5th 491, 504‐505; MacQuiddy v. Mercedes‐Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1047.) Instead, this court must “take a pragmatic approach to determine which party has prevailed” and “determine which party succeeded on a ...

Excerpt: ...et her burden of showing “in what manner [s]he can amend h[er] complaint and how that amendment will change the legal effect of h[er] pleading” as to any of the causes of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Cooper v. Equity Gen. Ins. (1990) 219 Cal.App.3d 1252, 1263‐1264; McMartin v. Childrens' Inst. Int'l (1989) 212 Cal.App.3d 1393, 1408.) ...

Excerpt: ...ff and KYLE BAKA subsequently granted their interests in that Property to KAREN BAKA. KAREN BAKA filed a probate petition in case FPR051416 on March 30, 2022 implicating the same deeds. The dispute between the parties concerns, among other issues, whether or not the Property is properly an asset of a trust created by Mark Duvall prior to his death. Court's Probate Jurisdiction. “Jurisdiction” refers in the truest sense to a court's authority ...

Excerpt: ...course and scope of employment with COMCAST, caused an automobile collision with Plaintiff. Plaintiff alleges that ALCANTARA was driving in a dangerous condition due to being severely tired, and that he drove in such a condition with COMCAST's approval. Plaintiff requests punitive damages against COMCAST for its acts causing and/or approving ALCANTARA's alleged dangerous driving. Legal Standard. Code of Civil Procedure section 436, subdivision (a...

Excerpt: ...ent amount to be fair and reasonable, and not the result of collusion, preferential treatment or conflicts of interest. The proposed PAGA payment and settlement administration costs also appear reasonable. The Motion is GRANTED subject to the following: 4) Based on the information currently before the Court, the requested attorney fees appear to be excessive. Locally, the range of 25% of gross settlement for attorney fees is the norm, absent extr...

Excerpt: ... conflicts of interest. The proposed PAGA payment and settlement administration costs also appear reasonable. The court also preliminarily finds that class certification is appropriate here based on the numerosity of the estimated eighty‐four class members and their well‐defined community of interest in their shared wage and hour claims. The named plaintiff shares the same claims as the class at large and is able to adequately represent the c...

Excerpt: ...ased on the same alleged defects existing or developing within one year of purchase. The Song‐Beverly Consumer Warranty Act imposes specified duties on manufacturers of consumer goods sold in California for which an express warrant is given. (Civ. Code § 1793.2(a).) A consumer good is specially defined as “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes”. (Civ. C...

Excerpt: ....040.) The meet and confer declaration submitted by Plaintiff simply concludes that counsel “met and conferred extensively” without any supporting facts describing what actions were taken in an effort to meet and confer or the scope of discussions between counsel. (Decl. of Ramsdell, ¶ 9.) At best, Plaintiff's counsel establishes that he sent one meet and confer letter, which has not been provided to the court, and received a response to tha...

Excerpt: ...o present the court with facts sufficient to show that the information about the property is credible and reliable. (Legis. Com. Comment to Code Civ. Proc. § 512.010.) “No writ directing the levying officer to enter a private place to take possession of any property shall be issued unless the plaintiff has established that there is probable cause to believe the property is located there.” (Code Civ. Proc. § 512.060(b).) The declaration atta...

Excerpt: ...Plaintiff to produce the audio recording of her physical examination before Defendant must produce the report of that examination. Plaintiff fails to present a valid reason for withholding the recording and preventing the examiner from preparing a potentially more accurate report. Defendant shall deliver a copy of the report of the examination to Plaintiff within 30 days of service of, or access to, Plaintiff's audio recording of the examination....

Excerpt: ... of action to which the demurrer was sustained”. (Cmty. Water Coalition v. Santa Cruz County Local Agency Formation Comm'n (2011) 200 Cal.App.4th 1317, 1329.) “The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so”. (Ibid.; Harris v. Wachovia Mortgage (2010) 185 Cal.App.4th 1018, 1023.) Additionally, Plaintiff has not cured the defects previously identified in the court's ruling o...

Excerpt: ...posit Account Agreement” governing Plaintiff's account with Defendant Chase. Although he did not mention the agreement by name, Plaintiff incorporated the “Deposit Account Agreement” by reference in his complaint by alleging that he is a “depositor” of Defendant Chase. “The relationship of a bank and depositor is founded on contract, [citation] which is ordinarily memorialized by a signature card that the depositor signs upon opening ...