Excerpt: ...han the date for filing an opposition to the demurrer or motion to strike." (CCP § 472.) "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" (CCP § 473(a)(1).) "[T]rial courts are to liberally permit such amendments, at any stage of the proceeding[.]" (Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 488-89.) A court's discretion is usually exercised liberally to permit amend...

Excerpt: ... granted overweight vehicle permit applications for trucks with two tires per axle, rather than four. (See, e.g., First Amended Complaint, paragraph 16 and Prayer for Relief, paragraph 2.) City Ordinance 11568, § 2 at page 2, provides that the City Chief of Police or his/her designee has the authority to issue or withhold permits for overweight vehicles for good cause, which includes a determination by the Chief of Police or his/her designee tha...

Excerpt: ...Code of Civil Procedure section 430.41(a)(4).) The demurrer to the First Cause of Action for Fraud is SUSTAINED, WITH LEAVE TO AMEND. A fraud claim must be pled with particularity, including how, when, where, and by what means the misrepresentations were tendered. (See, e.g., Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) Here, Plaintiff alleges that in August 2016, Defendant M. Subhani made some rather vague representations that ...

Excerpt: ... In 2018, Plaintiffs applied for a loan modification with Ocwen and were approved for a Trial Payment Plan ("TPP"). Plaintiffs allege they made all payments required under the TPP. After the successful completion of the TPP, Ocwen sent Plaintiffs a permanent Loan Modification Agreement ("LMA") which Plaintiffs signed and returned to Ocwen, on two separate occasions. (See Complaint, paragraphs 20-23 and 26.) However, Ocwen thereafter claimed it th...

Excerpt: ...g party is statutorily authorized to recover his or her attorney's fees from the losing party, the lodestar method is the primary method for establishing the amount of recoverable fees." (Glaviano v. Sacramento City Unified Sch. Dist. (2018) 22 Cal. App. 5th 744, 750- 51.) "Under the lodestar method, the trial court must first determine the lodestar figure-the reasonable hours spent multiplied by the reasonable hourly rate-based on a careful comp...

Excerpt: ... this instance. Although the Court ordered the parties to comply with their meet-and-confer obligations in its order of July 30, 2020, counsel simply filed a three-page "stipulation" on August 20, 2020 indicating that they had complied for the pending motion of Defendants for judgment on the pleadings as to Plaintiff's Complaint and the demurrer and motion to strike filed by Cross-Defendant to the Cross-Complaint. The obligation of parties to mak...

Excerpt: ...o (the "UC Defendants") also move to strike language from the FAC seeking injunctive relief and an award of attorney's fees. Martin opposes both demurrers and the motion to strike. For the reasons discussed below, USA Cheer's demurrer is SUSTAINED WITHOUT LEAVE TO AMEND and USA Cheer is DISMISSED. UC Defendants' demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the FAC's second and fourth counts and otherwise OVERRULED. UC Defendants' motion to ...

Excerpt: ...t must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, ...

Excerpt: ... of taping her catheter. (Compl., p. 5:12-14.) Thereafter, Plaintiff alleges she told several hospital employees about the alleged assault, but none of them took any action, including but not limited to giving Plaintiff a rape exam. (Compl., p. 11:13-22.) These other hospital employees who are named as Defendants are: Rohini Erik Noronha, M.D. who is identified as the "hospitalist physician" (Compl.p.8:10-13); Defendant Ruby Lantican who is ident...

Excerpt: ...ins with the observation that this is a pleading challenge and that all properly pled facts must be accepted as true even if they appear to be implausible. See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967. The Court must take into consideration only facts that appear in the Complaint and those that must be judicially noticed. See CCP § 438(d). Plaintiff filed his Complaint on October 11, 2019. The Complaint includes eighteen (18) ...

Excerpt: ...to the parties from issuance or non-issuance of the injunction. The court's determination is guided by a mix of the potential merit and interim harm factors. (Butt v. State of California (1992) 4 Cal.4th 668, 677-78.) "The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action." (Continental Baking Co. v. Katz (1968) 68 Cal. 2d 512, 528.) Thus, the court is to examine al...

Excerpt: ...triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of...

Excerpt: ...CKEN. The Court shall sign and enter Government Defendants' [Proposed] Order. STANDARD OF LAW "Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]" (CCP § 435(b)(1).) "The court may, upon a motion . . . or at any time in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] . . ...

Excerpt: ...ed by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection ...

Excerpt: ...lose Defendant's intent to apply the opposition to all three motions. Defendant shall comply with all applicable Rules of Court and the Code of Civil Procedure in all future filings. STANDARD OF LAW "When an application for an order has been made to a judge, or to a court, and . . . granted . . . any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different...

Excerpt: ...factual allegations in a complaint." (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine "whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a g...

Excerpt: ...n or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) An "irrelevant matter," or "immaterial allegation," means: (1) an allegation that is not essential to the statement of a claim or defense; (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; or (3) a demand for judgment requesting relief not supported by the allegations of the complaint...

Excerpt: ...OOT. This matter arises from a motor vehicle accident. The First Amended Complaint, filed on July 30, 2018, alleges a single cause of action for negligence against Defendant Express Messenger Systems, dba OnTrac ("OnTrac") and each of the above-named Defendants. On October 9, 2019, OnTrac filed a Cross-Complaint against the above-named Defendants, alleging causes of action for: 1) equitable indemnity; 2) contribution; 3) declaratory relief; and 4...

Excerpt: ... the LDWA under PAGA. On 5/12/14, plaintiff Gossette filed the First Amended Complaint, which added claims on behalf of the LDWA under PAGA. On 12/12/14, plaintiff Gossette filed the Second Amended Complaint, which added plaintiff Tafoya as a plaintiff on the class claims and on the PAGA claim. (2AC, para 136.) On 12/6/16, defendant filed a petition to coordinate. The case was stayed from 1/23/17 through 4/14/17 by agreement of the parties and or...

Excerpt: ... notice of deposition and request for production of documents for the deposition of PGCRG's person-most-qualified ("PMQ") and custodian of records ("COR") to commence on June 22, 2020. PGCRG served objections to the deposition and to the various document requests on June 11, 2020. The parties dispute whether a dissolved corporation must provide a witness to sit for deposition in defending lawsuits. PGCRG was a California corporation that was diss...

Excerpt: ...nsultant pathologist and a professor at the School of Medicine, Cardiff University. (Declaration of Richard L. Attanoos ["Attanoos Dec."] ¶ 2.) Dr. Attanoos states that not all mesotheliomas are caused by asbestos exposure, and some are naturally occurring. (Id. ¶¶ 12, 15.) He explains that researchers have reported genetic mutations to be associated with the development of mesothelioma, such as studies that have demonstrated the frequency of ...

Excerpt: ...t GRANTS Defendant's Motion for Summary Adjudication of Plaintiff's claim for punitive damages. Plaintiffs' discovery responses are "factually devoid" on the issue of punitive damages, and Plaintiffs fail to present affirmative evidence upon which a reasonable jury could find by clear and convincing evidence Defendant's malice, oppression or fraud towards Mr. Reyes. LEGAL STANDARDS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION MOTIONS "A party ma...

Excerpt: ...wder that was allegedly contaminated with asbestos. Mr. Reyes has been diagnosed with mesothelioma. The Complaint of plaintiffs filed 1/29/20 asserts claims of (1) strict liability, (2) negligence, and (3) fraud, with the fraud claim subdivided into (a) fraudulent misrepresentation, (b) fraudulent concealment, (c) conspiracy to commit fraudulent misrepresentation, and (d) conspiracy to commit fraudulent concealment. The complaint also states a pr...

Excerpt: ...reference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole[;] [and] (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (CCP § 36(a).) "In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation tha...

Excerpt: ...all file and serve any amended complaint no later than 21 days from the date of this Order. As a threshold issue, the Court admonishes Defendants for failing to meet and confer with Plaintiff prior to filing this Motion as required under Code of Civil Procedure section 435.5(a)(2). Defendants shall comply with any applicable Rules of Court and the Code of Civil Procedure for any future filings or the Court may consider sanctions or decline to con...