Excerpt: ...te covered by the agreement. Code Civ. Proc. § 1281.2. “The trial court m ay resolve motions to compel arbitration in summary proceedings, in which ‘[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. In these summary proceedings, the ...

Excerpt: ...r, or process of the court” is contempt of the authority of the court. (Code Civ. Proc., § 1209, subd. (a)(5).) “The substantive issues involved in a contempt proceeding are (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience.” (Conn v. Superior C ourt (1987) 196 Cal.App.3d 774, 784.) “A contempt proceeding [for indirect contempt] is commenced by the filing of an aff...

Excerpt: ...ry objections to the declaration of Stefan Chacon are OVERRULED. Plaintiff SSSHT Opco SE Division Street, LLC's evidentiary objections to the declarations of Tracee DeGrande and Collette Gray are OVERRULED. Defendant Integral Senior Living, LLC (Defendant Integral) moves to compel arbitration of the claims brought by SSSHT Opco SE Division Stree t, LLC and to stay these proceedings pending completion of arbitration. Defendant Integral Senior Livi...

Excerpt: ...c denial of the material allegations of the complaint controve rted by the defendant. (2) A statement of any new matter constituting a defense.” CCP §430.20 authorizes a party to object by way of demurrer to an “answer that does not state facts sufficient to constitute a defense.” A defendant raising new matters in an answer must allege ultimate facts sufficient to prove the defense with the same level of detail that a plaintiff is require...

Excerpt: ...r punitive and treble damages. First cause of action f or negligence The elements of a negligence cause of action are: (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “Generally, one has a duty to use due care to avoid injuring others.” (Terry v. Garcia (2003) 109 Cal.App.4th 245, 249.) “Ev...

Excerpt: ...tters are reasonably disputable. [Citati on.]” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) However, a court “can take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. [Citations.]” (Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1014.) “The trial court shall take judicial notice of any matter specified in Section 452 if ...

Excerpt: ...hibits attached and incorporated therein) or fr om matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied u pon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (201...

Excerpt: ...trike are DENIED. I. DEMURRER BY LEGACY The within action is brought under the Elder Abuse and Dependent Adult Civil Protection Act (“Act”) and arises out of the death of Andrew Chavez (“Andrew”), an alleged drug addict. The Act creates a civil cause of action for a “dependent adult” who suffers “neglect” or “de privation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (...

Excerpt: ...1600873201) (“Underlying Case”); appellate opinions in Case Nos. G059087 and G05 9753; and the complaint in the related case (Case No. 2022 -01284907) is granted. 5 Movants move to strike Cross -Complainant Jennifer Loeffler's sole claim against them in her Cross- Complaint – the second cause of action for violations of the Fair Debt C ollection Practices Act (FDCPA). Legal Standard Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal....

Excerpt: ...ntervention” in support of defendant is equivalent to answer, and demur rer to it is treated as demurrer to answer].) There are only three grounds for demurrer to an answer under CCP § 430.20: (1) Failure to state facts sufficient to constitute a defense (2) Uncertainty; (3) Failure to state whether contract alleged in the an swer is written or oral. The Rutter Guide says that a demurrer can be an effective tool for eliminating “boilerplate�...

Excerpt: ...e motion, the court must treat all of the defendant's allegations as being tru e, and the motion should be denied if the defendant's pleading raises a material issue or sets up an affirmative matter constituting a defense. (Id. at p. 331; accord, Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1380; see also, Engine Manuf acturers Assn. v. State Air Resources Bd. (2014) 231 Cal.App.4th 1022, 1034.) Here, the answer of Plaintiff/Cross ...

Excerpt: ...on this motion; or, in the alternative, a n order appointing a discovery referee to oversee and monitor Defendant's behavior at all depositions and at Defendant's expense.” (Not. of Mot. at p. 2.) Under CCP section 2025.420, any party “may promptly move for a protective order” before, during or af ter a deposition. The motion must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for g...

Excerpt: ... even if not separately pleaded, ca nnot be established, or that there is a complete defense to the cause of action. O nce th e d efend ant o r cross -defendant has met that burden, the burden shifts to the plaintiff or cross- complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross -complainant shall not rely upon the allegations or denials of its pleadin...

Excerpt: ...he cause of action, even if not separately pleaded, cannot b e established, or that there is a complete defense to the cause of action. Once the defendant or cross- defendant has met that burden, the burden shifts to the plaintiff or cross -complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or crosscomplainant shall not rely upon the allegations or denials of...

Excerpt: ...f the causes of action for breach of contract. The breach of contract claims involve an Equipment Finance Agreement (“EFA”) entered into by ST and Partners Capital Group (“PCG”). The original term was for 60 months with 60 payments of $4,990.46. The EFA notes that an advance payment of $4,990.46 was received and applied to the first monthly payment due with an y remainder to be applied to the last payment(s) due. The “Commencement Date...

Excerpt: ..., 49 (2018). “It then falls to plaintiff to counter with evidence creati ng a dispute about a fact relevant to that defense.” Id. “That is, the plaintiff must submit evidence that would allow a ‘reasonable trier of fact [to] find in plaintiff[‘s] favor on the statute of limitations issue.” Id. This is a wrongful death and surv ival action. Plaintiffs allege that the Decedent died from injuries sustained in an electrical fire that oc...

Excerpt: ...ecessary to prevent prejudicing the party's int erest in the litigation.” Code Civ. Proc., § 36(a) (emphasis added); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 12:246:1 (“Trial priority is not mandatory and absolute merely because one of the parties is age 70. The court has discretion to determine the extent of that party's interest and find as a matter of fact the risk posed of that party...

Excerpt: ...nts' request for judicial notice, Nos. 1 -4. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 9.53.1a, p. 9(l) -3 3.) Plaintiff's Evidentiary Objections. The Court declines to rule on plaintiff's objections as such rulings w...

Excerpt: ...ing a demurrer, the scope of permiss ible amendment is limited to the causes of action that have been originally pleaded. (People By & Through Dep't of Pub. Works v. Clausen, 248 Cal.App.2d. 770 (1967). A plaintiff, therefore, may not amend the complaint by adding new causes of action without first obtaining an order from the court. (Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“Following an order sustaining a demurrer …...

Excerpt: ...s motion complies with rule 3.1324 of the California Rule s of Court, as it includes a red -lined copy of the proposed First Amended Complaint which alerts the Court, and the parties, to the proposed revisions. In addition, the declarations submitted in conjunction with the motion specify the effect of the amendme nt, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reasons ...

Excerpt: ...the time for answer or demurrer. (Code Civ. Proc., § 473, s ubd. (a) (1).) The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code of Civ. Proc., § 473, subd. (a) (1).) Additionally, any judge, at any time before or after commenc...

Excerpt: ... 33, LLC and Brandywine Homes was made in good faith under CCP § 877.6, and bars all prospective cross -complaints for equitable comparative contribution and/or partial or comparative indemnity against the Settling Defendants by any other joint tortfeasor or co -obligors. UPCOMING EVENTS: OSC re Dismissal on Settled Case – April 12, 20 24 FACTS/OVERVIEW: This is a construction defects case. On May 9, 2023, Plaintiff Arletta Community Associati...

Excerpt: ...v. California Department of Public H ealth (2016) 1 Cal.App.5th 1000, 1007.) The complaint does not allege the date that the plaintiffs discovered the alleged defects with the vehicle's transmission. (See Code Civ. Proc. § 338, subd. (d).) “[W]hen the relevant facts are not clear such that the cause of action might be, but is not necessarily, time- barred, the demurrer will be overruled.” (Coalition for Clean Air v. City of Visalia (2012) 20...

Excerpt: ...o identify Doe Perpetrator renders the FAC uncertain. Special demurrers based on uncert ainty are rarely sustained – only where the complaint is so bad that defendant cannot reasonably respond —i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (See Khou ry v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) However, a demurrer for uncertaint...

Excerpt: ... v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) A ny “ambiguities can be clarified under modern discovery procedures.” (Ibid.) The FAC states sufficient facts in support of the cause of action for breach of contract against Robert and AHM. (See Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453 [elements]; Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 402 [plaintiff may...

Excerpt: ...t. Specifically, Defendant argues that allegations of fraud that function to a lter the terms of an integrated contract are barred by the parole evidence rule. Furthermore, Defendant argues that Plaintiff has pleaded facts that are plainly inconsistent with a claim for promissory fraud by admitting in the Complaint that Defendant performed under the contract until at least Spring 2022. Defendant reasons that it “is implausible that Schreiber's...

Excerpt: ... Company's antiSLAPP motion is granted. These allegations are stri cken: • General allegations ¶¶ 21, 22, 23, 24 and 25. • 2nd cause of action ¶¶ 35(f) and (g), 38 -39. • 3rd cause of action ¶¶ 41 at 12:17 -18 (“PIIC attached a copy of its 2014/2015 policy as Exhibit 4 to its April 4, 2018 Complaint against TSRI and Vi lagut in the federal action”), 42(a), (b) & (h), 45. • 5th cause of action ¶ 55 at 15:25 (“and the PIIC fede...

Excerpt: ... compel arbitration. This is the first hearing on the matter. SUMMARY OF THE SE TTLEMENT: A copy of the fully executed Class- PAGA Action Settlement Agreement is attached as Exhibit 1 to the Declaration of Robert W. Skripko. (ROA 516.) Class Definition: “All non- exempt individuals who worked for ESSC in California as a Job Coach, Life Coach, Life Skills Coach, Life Skills Coach I or 1, Life Skills Coach II or 2, and/or Life Skills Coach Floa...

Excerpt: ...tted, a redline showing all changes, deletions and addi tions must be submitted as well. In addition, Plaintiff must provide proof of service of any revised settlement agreement and supplemental papers on the LWDA. As to the Settlement: 1. Please provide a copy of Plaintiff's pre -filing letter to the LWDA. 2. Are the parties aware of any actions, whether individual, class, or PAGA (including in the pre -filing LWDA stage) that may be affected ...

Excerpt: ...onically stored information, or tangible thing described in the deposition notice” if, “after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated 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 an...

Excerpt: ....) The Village has shown it gave effective notice to defend ant Garfield Beach CVS LLC of its change of address by the 4/30/18 email. The Village has shown CVS waived the lease's notice provisions by accepting the 4/30/18 emailed notice. (See Irving v. Sunset Mut. Life Ins. Co. (1935) 4 Cal.App.2d 455, 460 [ins urer's acceptance waived policy's notice provisions]; Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 475 [implied waiver]; see a...

Excerpt: ...onditions as the court shall declare including protective orders. In addition, the cour t may make any other order as may be appropriate to protect the moving party from unreasonable or oppressive demands including unreasonable violations of the moving party's right of privacy. (Code Civ. Proc., § 1987.1.) Where the documents sought are c onsumer records, a notice to consumer must be served before the subpoena is served. (Code Civ. Proc., § 198...

Excerpt: ...ndant fails to meet its initial burden as to Noticed Issu es No. 1, 3, 6, 7, & 8. As to Noticed Issue No. 1, (Vatalaro v. Cnty. of Sacramento (2022) 79 Cal. App. 5th 367, 381) cited by defendant is distinguishable. In Vatalaro the plaintiff could only point to an unspecified violation of civil service rules and more importantly, had affirmatively conceded in discovery that she had no reasonable belief that the law had been broken. (25 Cal 4th at...

Excerpt: ...� 1281.2). Defendants have the “burden of proving the existence of a va lid arbitration agreement by a preponderance of the evidence while a party opposing a petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Ruiz v. Moss Bros. Auto Group (2014) 232 Cal.App.4th 836, 842 ; accord (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219 [once petitioner alleges the agreement e...

Excerpt: ...urt's judgment. Plaintiff is mistaken. The filing of a notice of appeal does not deprive the trial court of jurisdiction to award costs and attorney fees. (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1052.) Plaintiff argues the court should consider his financial condition in awarding costs under Vill anueva v. City of Colton (2008) 160 Cal. App.4th 1188, 1202, which held that in a FEHA case, “a plaintiff's financial resources must...

Excerpt: ...dant argues this case should be stayed in favor Gates, an earlier -fil ed action also pending in this department. It argues first that the case should be abated and second that the Court should exercise its discretion to stay this case. I. Abatement Defendant's argument for abatement conflates two separate concepts: the plea in abatement and the rule of exclusive concurrent jurisdiction. The Court considers each in turn. A. Plea in Abatement �...

Excerpt: ...within the meaning of Section 583.310 of the Code of Civil Procedure on the filing of the plaintiff's original compl aint. (Bruns v E-Commerce Exch., Inc. (2011) 51 Cal.4th 717, 723.) A judge may dismiss an action, on the judge's own motion or on the defendant's motion, after notice to the parties when the action is not brought to trial within this time period. (Code Ci v. Proc. § 583.360(a).) The three statutory exceptions that tol...

Excerpt: ...posed request for judicial notice is GRANTED. I. Background This case, file d in 2022, is a wage-and -hour class action involving the non- exempt employees of Herbalife Manufacturing, LLC. Suri Figueroa, the sole remaining plaintiff in the operative Second Amended Complaint (2AC), brings the following claims: (1) minimum wage violat ions, (2) overtime violations, (3) meal break violations, (4) rest break violations, (5) sick time violations, (6)...

Excerpt: ...��all communications between Plaintiff and Mr. Walters co nceivably relevant to the Gifting Transaction for the years 2013 - 2014”].) Busch has failed to set forth specific facts showing good cause for any further production. (See Code Civ. Proc., § 2031.310, subd. (b)(1); Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117 [good cause]; see also Chute Decl. ¶ 11.) Good cause must be supported by factual evidence, such ...

Excerpt: ... Seyfarth Shaw LLP, seeks to be admitted pro hac vice to represent Defendants Hyatt Corporation and The Hyatt Corporation Compensation Committee. UPCOMING EVENTS: None Mr. Schwartz -Fenwick attests that within the preceding two years, he has applied and been admitted to appear pro hac vice in one matter in Calif ornia: Lance Baird v. Hyatt Corporation, et al., C.D. Cal., Case No. 2:22 -cv - 01620, March 1, 2023. Mr. Schwartz -Fenwick attests that...

Excerpt: ...tiff's individual claims, dismissing the class action claims, and stayi ng all proceedings pending completion of arbitration. UPCOMING EVENTS: None FACTS/OVERVIEW: This is a putative wage -and -hour class action. On October 5, 2023, Plaintiff Antonio Cornejo Herrera, individually and on behalf of all others similarly situated (“ Plaintiff”), filed a Complaint against Defendants The Picerne Group, Inc.; TPG Property Management, Inc.; and Pice...

Excerpt: ...tutory references to the CCP unless otherwise no ted). An “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) Any written or oral statement or writing made in connection wi...

Excerpt: ...ion, violation of Business and Professions Code section 17200 (UCL), and br each of implied warranty; and the 5th cause of action for violation of Consumer Legal Remedies Act (CLRA) to the extent it seeks any relief (see Compl. ¶¶ 77, 79 -80) other than public injunctive relief (id. ¶ 81). To be clear, the petition is DENIED to t he extent it seeks an order compelling arbitration of the 4th cause of action for liability on dealer bond, and the...

Excerpt: ..., as a Roe defendant was filed only on February 9, 2024. Moe has been an active defendant since the beginning of the case. Moreover, this case has been actively litigated by all parties as evidenced by the discovery propounded, the law and motion practice, and the many cross -complaints which have been filed. There have also been suggestions that the scope of the case has expanded tremendously over the years. On the one hand, waiting over seven...

Excerpt: ... has not filed an opposition. Here, on June 21, 2023, Defendants served written discovery, including the instant Request for Admissions, Set One, by mail on Plaintiff, and responses were due no later than July 26, 2023. (Declaration of David W. Tetzlaff, ¶ 4, Ex. A.) To date, Plaintiff has failed to provide any response to Defendants' discovery requests, despite Defendants' counsel's attempts to meet and confer on August 22, 2023. (Id., ¶¶ 5,...

Excerpt: ...ward -Clyde & Associates (1985) 38 Cal.3d 488. Any party objecting to a proposed settleme nt has the burden to prove an absence of good faith. (Code Civ. Proc., § 877.6, subd. (d).) The objecting party must prove that the settlement is “so far out of the ballpark” in comparison to the Tech- Bilt factors that it is inconsistent with the equitab le objectives and purposes of section 877.6. (Tech -Bilt, supra, 38 Cal.3d at pp. 499 -500.) Page 1...

Excerpt: ...n of the motion. To assist the parties in resolving the matter i nformally, the court would offer the following thoughts. The court notes that the motion is procedurally improper on numerous grounds. It does not, for example, specify the time, place, manner, scope, and nature of the examination in accordance with the requirements of Code of Civil Procedure section 2032.310. Nor does it comply with the California Rules of Court that govern motion ...

Excerpt: ...er 31, 2023 were untimely. Motion (ROA 49) at 4:25 -28. Plain tiff served defendant with the Special Interrogatories and Requests for Production by email on September 27, 2023. Suh Decl. (ROA 39) Ex. A; Suh Decl. (ROA 45) Ex. A. Defendant's responses were due October 31, 2023, i.e., 30 calendar days, plus 2 court d ays for electronic service. Civ. Proc. Code §§ 1010.6(a)(3)(B), 2030.260(a), 2031.260(a). Defendant's responses were timely. Plaint...

Excerpt: ...ction (Set One), and Requests for Admissions (Set One). The court exercises its discretion to consider defendant's late -filed oppositions. For the following reasons, plaintiffs' motions are granted. Defendant asserts it has “never refused to provide the supplemental responses and will provide verified supplemental re sponses to the at issue discovery requests prior to the hearing on the Motions.” Gonzales Decl. (ROA 237) ¶ 10. Defense cou...

Excerpt: ...Procedure section 2030.300, subdivision (c). On Septemb er 29, 2023, Defense Counsel emailed as follows: “Let's do October 31 as the deadlines for both parties to move to compel on all discovery to date served on each other (unless the current deadline is later than that, in which case the later deadline contro l s ) …” (¶9 of Watson Declaration and Exhibit 5 thereto; See also ¶7 of Rutten Declaration and Exhibit H thereto [ROA No. 101 at...