Excerpt: ...ate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (Code Civ. Proc. § 1281.2.) AGREEMENT TO ARBITRATE Defendant disputes that there was an agreement to arbitrate. Defendant maintains that Plaintiff did not consent to arbitration when the retention agreement was signed and that therefore, there is no agreement to a...

Excerpt: ...d Amended Complaint shows that Raymond was not 4W's employee. The motion to strike the allegation that each defendant ratified the despicable conduct of each other defendant and each defendant was the managing agent of each other defendant at pp. 19:27-20:2, is DENIED. 4W argues that Plaintiffs have not alleged that Raymond had substantial discretionary authority over significant aspects of 4W's business sufficient to support the conclusion that ...

Excerpt: ...er to Tri's Second Cause of Action for Intentional Infliction of Emotional Distress is SUSTAINED WITHOUT LEAVE TO AMEND. Tri did not have leave to add Portofino as a new defendant to this existing cause of action. (People ex rel. Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785-786.) The demurrer to Portofino's Third Cause of Action for Breach of Contract is SUSTAINED WITHOUT LEAVE TO AMEND. The Third Cause of Action alleges breach...

Excerpt: ...ther trustee's sale, pending resolution of this case or further order of the court. In this action, Plaintiff alleges that he owns real property at 936 Bayview Avenue, Oakland, California. Plaintiff alleges that in 2001, he borrowed money secured by a deed of trust on the property. Plaintiff alleges that Defendant U.S. Bank is the assignee of the deed of trust, and U.S. Bank has hired Fay Servicing to service the loan. Plaintiff alleges that he d...

Excerpt: ...onliffe (1994) 7 Cal.4th 634, 638.) The trial court also may consider matters of which it may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) A demurrer can be used to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank, supra, 39 Cal.3d at p...

Excerpt: ...good cause for issuance of the order by a preponderance of evidence. (Stadish v. Sup.Ct. (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130, 1145.) The court finds that Plaintiffs have not presented good cause in support of their motion by a preponderance of the evidence. Generally, there is no right of public access to discovery materials exchanged between civil litigants (e.g., pretrial depositions and interrogatories). Nor do the sealing rul...

Excerpt: .... Inc. The case was referred to mediation, and notice of a settlement was filed in February 2018 and then withdrawn. Eventually, a settlement was reached and American Honda was dismissed on December 10, 2018. Defendant OAC was added by Doe amendment on November 15, 2018. Defendant OAC never appeared and default was entered. A prove-up hearing was scheduled for April 19, 2019, and continued twice at the request of counsel to June 28, 2019. On June...

Excerpt: ...1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may consider all material facts pleaded in...

Excerpt: ...cluding acetone and isopropanol, to permeate the business premises occupied by Portofino. Plaintiffs allege that they notified Huynh of this problem on various occasions in 2017 and 2018, and notified her that Tri was experiencing health problems as a result, but she did not close her door, use an air purifier, use a ventilator, and take any other action to remediate the problem. Plaintiffs allege that they were eventually forced to vacate the pr...

Excerpt: ...is not supported by any documentation, lack foundation with regard to attorney's fees and costs incurred to date. Plaintiff's response to Form Interrogatories cannot be offered against Ply Gem (Code Civ. Proc., sec. 2030.410) so there is no admissible evidence of CP West's damages. In addition, there is no showing that the damages claimed by Plaintiff are identical to the damages incurred by CP West as a result of Ply Gem's conduct. By its nature...

Excerpt: ...agon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-67; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Th...

Excerpt: ...e Order that may be brought or instituted by third persons, such as the claims made by Plaintiff in this action. LEGAL STANDARD A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more ele...

Excerpt: ...).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Once defendant makes this showing, the burden shifts to plaintiff to show the existence of a triable issue of fact regarding the cause of action or defense. (Id.) "There is a triable issue of material fact if...

Excerpt: ...ornia is GRANTED, consistent with the Discovery Referee's [Recommended Order]. In this action, the parties entered into a Stipulation filed May 15, 2019, appointing Bruce Edwards of JAMS as Case Administrator/Discovery Referee ("Referee"). Ply Gem objects to the Referee's Recommended Order compelling Ply Gem to allow Plaintiff CP V JLS, LLC ("Plaintiff") to inspect Ply Gem's manufacturing plant in Corona, California. Ply Gem contends that a party...

Excerpt: ... 67 Cal.App.4th 1253, 1255.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) "Malice" is defined as conduct ...

Excerpt: ...eging various causes of action against multiple defendants, in Action No. HG18900038, he "carries" those allegations forward in the event that the orders granting the anti-SLAPP motions are reversed and the claims are reinstated. Pursuant to Code of Civil Procedure section 128.7, Signing, filing and advocating a pleading with the court is a certification, inter alia, that (1) the pleading has not been presented primarily for an improper purpose, ...

Excerpt: ...bd. (e); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The complaint must be "liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. § 452.) The court gives the complaint a reasonable interpretation, reading it as a whole and its parts in their context and treats the demurrer as admitting all material facts properly pleaded. [Citation.]" (Blank v. Kirwan (1985) 39 Cal...

Excerpt: ...e demurrer filed by TCS because it has never paid taxes to the Franchise Tax Board is not supported by factual evidence that it has failed to do so or that it is required to do so in order to defend against Plaintiff's complaint. The demurrer by Defendants Saybrook and TCS to the First Cause of Action for Breach of Contract, Count One, is SUSTAINED WITH LEAVE TO AMEND for failure to state a cause of action and uncertainty. Plaintiff's First Count...

Excerpt: ... that the representations made by Wells Fargo regarding whether or not she was eligible for a HAMP loan, were false. Generally, in order to succeed on a theory of delayed discovery, the plaintiff must show that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period." Fox v. Ethicon Endo-Surgery, Inc....

Excerpt: ...hino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.) Although the court ultimately vacated the jury verdict, the court had previously denied the Defendant's motion for summary judgment and the jury found in favor of Plaintiff. Therefore, the court finds that the present case was not frivolous or without foundation when it was brought or litigated and Grants the motion to strike the memorandum of costs filed by Defendant, The Regents of ...

Excerpt: ...burden harass and annoy Tesla and the witness because the nonparty has no personal knowledge of the events at issue and will only serve to elicit inadmissible character evidence. "The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." Code Civ. Proc., § 2031.060, subd. (b).) In his opposition, Plaintiff ...

Excerpt: ...ore 35 Special Interrogatories, Requests for Admissions, and Request for Production of Documents. On September 17, 2019, Defendants served Plaintiff with 116 Requests for Production of Documents, 112 Special Interrogatories, and 182 Requests for Admission, along with Form Interrogatory 17.1. The Special Interrogatories and Requests for Admissions included Declarations for Additional Discovery by Defendants' counsel, pursuant to Code of Civil Proc...

Excerpt: ...is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the unde...

Excerpt: ...ears. Plaintiff alleges that he performed well in all classes until his instructor for the medical surgery clinic treated him unfairly based on his age and gender. Plaintiff alleges that he was forced to do additional work and to re-do assignments, which caused emotional distress and lack of sleep, which affected his performance and contributed to the number of time he was tardy for class. Plaintiff alleges that his instructor gave him an unwarra...

Excerpt: ...aarsdam & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015 Rev., formerly Weil & Brown) ¶ 9.105.10.) The evidence before the court demonstrates that the report drafted by David Oxford that was withheld by Tesla as privileged, was not subject to either attorney/client privilege or the work product doctrine. Specifically, the court considers the deposition testimony of David Oxford, an Environmental Health and Safet...