Excerpt: ...Under the law a family daycare center is considered a "residential" use and the landlord's consent for such use is not needed as a matter of law. But then the plaintiffs alleged that the lessor refused to give its written consent for the state operational permit for a "small daycare center," which is for businesses of six to eight children. The plaintiffs asserted that the lessor could not refuse to give consent under the aw, and of its refusal t...

Excerpt: ...rly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 952, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) uncertainty A demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) will be sustained only where the complaint is so poorly pled that a defendant cannot reasonably respond—i.e., he or she cannot re...

Excerpt: ... been quoted verbatim. A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal.2d 872, 883.) "A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under mtxlern discovery procedures." (Khouryv. Maly...

Excerpt: ...ent to constitute a cause of action and uncertainty. Initially, the Court notes the opposing points and authorities are over the 15-page limit under California Rules of Court, rule 3.1113(d). The Court disregards the last three pages (pages 21-23). (California Rules of Court, rule 3.1300(d).) First Cause of Action for Disability Discrimination in Violation of the FEHA A prima facie case of disability discrimination requires a plaintiff to show th...

Excerpt: ...considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. "A demurrer tests the pleading alone, and not on the evidence or facts alleged." (E-Fab, Inc. v. Accountant...

Excerpt: ... advantages, or accommodation of the Store due to his disability." (Comp'. at '1 33.) Defendant contends this claim is subject to demurrer because (1) "Plaintiff lacks standing to bring an ADA cause of action as a matter of law," and (2) this claim purportedly "does not relate to Plaintiff's slip and fall allegations." Civil Code section 51 (Unruh Civil Rights Act) provides, in relevant part, that "[a]ll persons within the jurisdiction of this st...

Excerpt: ...nsurance policy insures up to $443,400 for personal property losses. Compl., 98.) On August 30, 2021, Schreck suffered a loss of his personal property, which triggered State Farm's obligation to compensate Schreck for all such losses. State Farm has refused to compensate Schreck for all his losses resulting in breach of the policy. (Compl., 915.) Defendant argues that the contract must be attached to the Complaint, or the material terms specifica...

Excerpt: ...cause of action (civil rights violations) is SUSTAINED without leave to amend. The demurrer to the third cause of action (civil rights violations) is OVERRULED as to Defendant Brown and SUSTAINED without leave to amend as to Defendant Journey. The demurrer to the fourth cause of action (negligence) is OVERRULED The demurrer to the fifth cause of action (negligent retention and supervision) is OVERRULED. A demurrer challenges the defects appearing...

Excerpt: ...d this requirement. (McNeil Dec.) A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1125.) The challenge is limited to the "four corners" of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code SS 451 or 452. Although California cou...

Excerpt: ...t to attach order and writ of attachment. (Code Civ. Proc., S 484.010.) Following a hearing on the application, the court shall issue a right to attach order it finds all of the following: (1) The claim upon which the attachment is based is one upon which an attachment may be issued; (2) The plaintiff has established the probable validity of the claim upon which the attachment is based; (3) The attachment is not sought for a purpose other than th...

Excerpt: ...ating to Plaintiff's claim for punitive damages, including: 1. Paragraph 13 in its entirety located on Page 4 of Plaintiff's Complaint. 2. Paragraph 31 in its entirety located on Pages 7 and 8 of Plaintiff's Complaint. 3. Paragraph 35 in its entirety located on Page 8 of Plaintiff's Complaint. 4. Paragraph 36 in fts entirety located on Pages 8 and 9 of Plaintiff's Complaint. 5. Paragraph 42 in its entirety located on Pages 9 and 10 of Plaintiff's...

Excerpt: ...adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, al ow, 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 tme limit...

Excerpt: ...efenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of achon has no merit, that there is no aft-mat-ive defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or p...

Excerpt: ... the alleged condition. "The elements of a cause of action for premises liability are the same as those for negligence." (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) The elements of a negligence cause of action are a legal duty owed by the defendant to the plaintiff to use due care, breach of that legal duty, causation, and injury to the plaintiff. (Holmes v. Summer (2010) 188 Cal.App.4th 1510, 1528.) The existence of a legal duty...

Excerpt: ...d that Plaintiff "is informed and believes [that Circelli] is (l) an officer of CHICAGO TITLE INSURANCE COMPANY; (2) a member of the executive team of defendant FIDELITY NATIONAL FINANCIAL, INC. and (3) Chief Human Resources Offcerfor FIDELITY NATIONAL FINANCIAL, INC." (ld.) The Circelli Deposition Notice lists 9 categories of inspection demands. (ld.) CTIC served objections to the Circelli Deposition Notice on May 1, 2023. (Lucal Dec., '1 7 and ...

Excerpt: ...t prejudice to the extent it seeks the production of additional documents. On receipt of a response to a demand for inspection, the demanding party may move for an order compelling a further response if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete; (2) A representation of inability to comply is inadequate, incomplete, or evasive; (3) An objection in the response is without ...

Excerpt: ...ervice shows the summons and complaint were served by a registered process server. (ROA 9.) The prtnf of service shows the process server made five attempts at personal service before resorting to substitute service. It shows compliance with the statutory requirements of section 415.20(b), including the mailing requirement. The person who was sub-served declined to provide a name but was described as "Caucasian, female, 38 years old, 5'11" tall, ...

Excerpt: ...st, or station, or to compel the admission of a party to the use and enjoyment of a right or offce to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person." (Code Civ. Proc., 51085, subd. (a).) Additionally, as noted by Petitioners, members of limited liability corporations have statutory rights to obtain certain corporate records. (Corp. Code, 517704.10, subd. (a)....

Excerpt: ...he complaint does not state facts sufficient to constitute a cause of action against that defendant." Eckler v. Neutragena Corporation (2015) 238 Cal.App.4th 433, 439 (Eckler), states, " 'A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.' [Citation.] As with a demurrer, '[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint o...

Excerpt: ...hose expressly alleged in the complaint. [Citations.)" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." Perez v. Golden Empire Transportation Transit District (2012) 209 Cal...

Excerpt: ...an order compelling response to the interrogatories." Cuie of Civil Procedure section 2031.3[n states in part, "If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: ... [9] (b) The party making the demand may mcwe for an order compelling response to the demand." The Moton seeks to compel responses to the followng discovery requests: (1) Form ...

Excerpt: ...lete. [4] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. [q] (3) An objection to an interrogatory is without merit or too general. (b)(l) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.... [q] (c) Unless notice of this motion is given within 45 days of the service of the verified re...

Excerpt: ...or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of moton for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. [q] (2) To stay or dismiss the action on the ground of inconvenient forum. [q] (3) To dismiss the action pursuant to the applicable provisions of Chapt...

Excerpt: ...oposal" or the "master lease." Defendants' argument that the "lease is not a contract fails at the summary judgment phase, as plaintiffs have shown triable issues. As it relates to the "master lease," the version defendants' attached to the motion is illegible. In reply, a legible version is attached, but it simply raises additional questions of material fact. Did the "master lease" su#rsede any other agreement? The evidence submitted shows dispu...

Excerpt: ...g on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of acton alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of action. (d) There is a defect or misjoinder of parties. (e) The pleading dæs not state facts suffcient to constitute a cause of action. (f) The p...

Excerpt: ... (SAC) filed by Plaintiff Charlene Lopez. Standard for Demurrer "The party against whom a complaint or crosscomplaint has been filed may object, by demurrer or answer ... to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of acton alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between...

Excerpt: ... claims and damages to raise a response or defense. Code Civ. Proc. S 430.10(f). A demurrer for uncertainty will be 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. Khoury v. Maly's of Calif. , Inc., 14 Cal. App. 4th 612, 616 (1993); A.J. Fistes Corp. v. GDL Best Contr...

Excerpt: ...e Complaint filed by Plaintiff Mark Magdy Gobrial. Standard for "The party against whom a complaint or crosscomplaint has been filed may object, by demurrer or answer ... to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending betwee...

Excerpt: ...ts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]" City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459. Code of Civil Procedure section 452, states, "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." Perez v. Golden Empire Transpo...

Excerpt: ...." (Rakestraw v. Cal. Physicians' Service (20!W) 81 Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendmen...

Excerpt: ...) the fourth cause of action is time-barred, (2) the fourth cause of action fails to plead with the required specificity, (3) the fourth cause of action fails to plead facts giving rise to a duty to disclose. 171. Statute of Limitatons Defendant contends the Complaint should have been filed by no later than July 2022 because it alleges Plaintiffs purchased the Vehicle on 7-27 - 19. (Demurrer, 7:7-20.) Further, the delayed discovery rule does not ...

Excerpt: ...l, Angelica Toral, Karen Watkins, and Larry Watkins' ("Plaintiffs") move for an award of attorneys' fees in the amount $161,627M, plus costs in the amount of $2,413.94 of Defendant Related Management Company, LP. ("Defendant"). Defendant requests judicial notice of the following: 1. the Court's Minute Order in related matter Griffith v. Related Management Company, L.P., case number 2019- 01091978, regarding Plaintiff Motion for Summary Adjudicati...

Excerpt: ...here and entitled to some amount of fees. A court has wide discretion in determining what constitutes reasonable attorney fees. The court typically makes this determination based upon declarations without live testimony. The value of legal services performed in a case is a matter in which the court has its own expertise, and thus may make its own determination of the value of the services contrary to, or without the necessity for, expert testimon...

Excerpt: ...lls out the rule that an amended complaint relates back to the date of the filing of the original complaint and thus avoids the bar of the statute of limitations so long as recovery sought in both pleadings is based upon the same general set of facts. [Citations.) The foregoing precedents rest on the fundamental policy that 'cases should be decided on their merits.'" (Hirsa v. Superior Ct. (1981) 118 Cal.App.3d 486, 488—89.) "While a motion to ...

Excerpt: ... 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 555.) In determining the validity or "the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) "The party seeking arbitration bears the burden of provin...

Excerpt: ...s of Efrain Caldera and Plaintiff Daniel Escamilla are OVERRULED. Plaintiff Daniel Escamilla moves for summary judgment as to the Complaint filed by Plaintiff on September 26, 2022. Standard for Summary Judgment "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., S 437c, subd. (c).) A "p...

Excerpt: ...er day that Defendant does not fully comply with the order. Cuie of Civil Prmædure S 2023.010 states, in part, as follows: "Misuses of the discovery process include, but are not limited to, the follow-ng: ... (d) Failing to respond or submit to an authorized method of discovery... . (g) Disobeying a court order to provide discovery." Code of Civil Prc„cedure S 2023.030 provides, in part, as follows: "To the extent authorized by the chapter gov...

Excerpt: ...f the arbitration proceedings. The court SETS an ADR Review Hearing for March 7, 2023, at 9:30 a.m. in Department N15. Defendants Trinh To Thi Ly, An Le, and Bijan Namdar move to compel arbitration of the claims asserted by Plaintiff A Plus Autobody, Inc. in this action. Standard for Compelling Arbitration When a party to an arbitration agreement refuses to submit to arbitration, the other party may petition the court to compel arbitration and st...

Excerpt: ... Cal. App. 5th 1324 (2023) and Montemayor v. Ford Motor Company, 92 Cal. App. 5th 958 (2023), review filed (Aug. 1, 2023) applicable and the Motion to Compel Arbitration is therefore DENIED. Here, neither Defendant is a signatory to the Retail Installment Sale Contract at issue. Defendants seek to compel arbitration on the following grounds: (1) Defendants may enforce the arbitration provision under the doctrine of equitable estoppel; and (2) Def...

Excerpt: ...g (hereafter, the "XDs") ("Motion 3" below); and (2) an additional Petiton to Vacate Arbitration Award, filed on 7/26/23 by Buyer ("Motion 4" below). For the reasons discussed below, Motion 1 is GRANTED; Motons 2 and 4 are DENIED; Motion 3 is thus MOOT. Motion 1 presents a request to confirm the underlying "Final Award," which comports with C.C.P. S 1285.4. The court thus must confirm that Award as made, unless "in accordance with this chapter it...

Excerpt: ...t could nonetheless reasonably to the RFP despite the obvious clerical error. Further, a protective order would protect any confidential and/or trade secret material responsive to these RFPs. Plaintiff, however, does not show good cause justifying further production as to RFP Nos. 1, 17, 23, 24, 25, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 50, 51, 52, 53, 58, 59, 58, 76, 78, 79, 86, and 89. These RFPs seek dtNuments relating to vehicles other than...

Excerpt: ...s Defendant Harrison to admit or deny if the sledgehammer was a construction used for work on the SUBJECT PROPERTY. Defendant Harrison objected on the following grounds: compound and argumentative and contains undefined terms. Subject to those objections, Defendant Harrison states he "has no knowledge or belief of what tools Mag Works owns". The court finds the response insufficient. Notably, the request does not ask if the sledgehammer was owned...

Excerpt: ...er Responses to Interrogatories A party may move for an order compelling further responses to interrogatories on the grounds that: (1) an answer to a particular interrogatory is evasive or incomplete; (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or (3) an objection to an interrogatory is without merit or too general. (Code Civ. Proc., S 203...

Excerpt: ...h this Guaranty and the other Loan Documents shall be tried and litigated only in the state courts located in the county in which notice shall be sent to Lender pursuant to this Guaranty, or the applicable federal district court that covers said County." (FAC, Exhibit 2, '1 26.) Paragraph 1 of the Guaranty provides in part that Plaintiff Pramukh Financial Services' address for purposes of the Guaranty is in Union City, California, in the County o...

Excerpt: ...the burden of proof is on the party claiming them as costs." (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas).) Code of Civil Procedure section 1033.5 enumerates allowable costs and costs which are not allowable. Even those amounts that are defined as recoverable under section 1033.5, subdivision (a), may only be recovered if they are both reasonable in amount and reasonably necessary to the conduct of the litigation,...

Excerpt: ... shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or crossdefendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense th...

Excerpt: ...reto, both of which were previously filed in federal court. (See ROA 260, at p. 3, '1 6.) The Reeds are ordered to file their cross- complaint, and Azadian is ordered to file his answer thereto, by September 15, 2023. l. Background Azadian owns a property on Kings Road in the City. His property is traversed by a sewer easement held by the City. The lateral sewer line in the easement is roughly 70 years old, and Azadian alleges it is corroded and ...

Excerpt: ...homeowner's insurance policy issued by plaintiff. Initially, Logan claimed that his conduct in the underlying altercation "wasn't intentional" but was a "kneejerk reaction" to "get some space, 'cuz Rullier was chasing him". Ashurex Decl. "8-11, Ex. 3. Based on Logan's representations that his conduct was accidental and non-intentional, plaintiff agreed to defend Logan in the Rullier lawsuit on January 7, 2021, subject to a full reservation of rig...

Excerpt: ...ts Alan Scott, Kathryn Scott, Jeremy Riddle, Katie Riddle, Gregory Scherer, Banning Leibscher, and Julian Adams are SUSTAINED WITH LEAVE TO AMEND. Any amended pleading must be filed by September 21, 2023. Defendants' requests for judicial notice are DENIED on the ground that the material at issue is immaterial to the Court's ruling on these demurrers. l. Factual Background The complaint is lengthy and detailed. The Court summarizes pertinent alle...

Excerpt: ...rtments, LLC's ("Plaintiff") First amended Complaint. First Cause of Action for Breach of Written Indemnity Agreement Defendant argues that the FAC'S first cause of action is insufficiently pled for the following reasons: (1) Plaintiff cannot plead consideration at the time the 8-28-02 letter was issued because Plaintiff did not have a viable claim for breach of contract at that time, as Plaintiff's predecessor believed that the Property had been...

Excerpt: ...he action was "friwlous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." The Court finds that defendant was not the prevailing party here. The principles of res judicata and collateral estoppel do not apply because there was no adjudication on the merits. The principles permitting a prevailing party finding after a voluntarily dismissal do not apply, again because there was no determin...

Excerpt: ...n v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343— 344 for the proposition that: " 'Generally, after an amended pleading has been filed, courts will disregard the original pleading. [Citation.] [Y] However, an exception to this rule is found where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is m...

Excerpt: ...r constructive knowledge that serious injury was a probable (as opposed to a possible) result; or that moving defendant acted with deliberate indifference and conscious disregard of the peril/probable serious injury. (Dæ v. United States Youth Soccer Assoc. , Inc. (2017) 8 Cal.App.5th 1118, 1140 [elements]; Aubryv. Tri—City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967 [on demurrer, while the court is required to assume the truth of alleged facts,...

Excerpt: ....) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.). Cause of Acton On...

Excerpt: ... demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint byway of fact or theory of recovery. (Palm Springs Villas II Homeowners Inc. v. Parth (2016) 248 Cal.App.4th 268, 290) Here, Plaintiff's Second Cause of Acton for Negligent Maintenance is duplicative to her Eighth Cause of Action for Negligence. Both causes of action allege problems with waterproofing, mailbox, lockin...

Excerpt: ...for judicial notice pursuant to Evidence Code S 452(h). Defendants Rena Akhlaghi and Farideh Akhlaghi's Motion to Strike is DENIED as MOOT in light of the Court's ruling on the Demurrer. Demurrer Sham Pleading Defendant argues that Plaintiff should not be allowed to amend his pleadings because the facts alleged regarding the amount due is incorrect and any subsequent complaint will be a sham. under the sham pleading doctrine, the trial court may ...

Excerpt: ...pute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.)" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, "In the construction of a pleading, for the purpose of determining its effect, its allegations must be ...

Excerpt: ...68, fn. 1, citing Evid. Code, 5452, sbud. (c).) "Except as otherwise provided by statute...[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Gov. Code, 5815.) "In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and ...

Excerpt: ...a's vehicle. Moreno was dismissed (ROA 2W); apparently because he filed for bankruptcy. (See Clerk's Rejection Notice [Duument Filed listed as "Notice of Dismissal—Bankruptcy"], ROA 196.) He also settled for $5,500 and signed a Release of All Claims on June 15, 2023. Defendant Megan Garcia was the driver of the vehicle that hit Garcia's vehicle. Although Brian Lokken was a named defendant, he was dismissed without prejudice on June 14, 2023, on...

Excerpt: ...ff contends that he is an elderly 81-year-old senior, and is in fear of his body and life from Defendants and their potential physical, violent threats and retaliation against him and his property for this lawsuit, the FBI investigation, and the criminal indictment filing in the United States District Court. Plaintiff also contends that requiring Plaintiff to submit to separate depositions in the civil and criminal actions would subject Plaintiff...

Excerpt: ... a reasonable time after receipt of the subject discovery. (See Code Civ. Proc., SS 2031.060, subd. (a), 2030.090, subd. (a).) The County served the subject discovery on 2/2/23 (ROA No. 85—Mtn. at Exs. 4-6 [attached proofs of service)); plaintiff provided responses tothe same on or about 3/13/23, 3/20/23, and 3/27/23 (see id. at Exs. 1-3); and plaintiff did not move for a protective order until a month after he had already served responses. To ...

Excerpt: ...ntends that there is no merit to the Second Cause of Acton for Violation of Civil Code section 1793.2(b) because the undisputed facts show no single visit lasted longer than 30 days as required under Civil Code secton 1793.2(b); that Plaintiff has failed to provide any evidence, and no evidence exists, that any visit lasted longer than 30 days or that any repair to the subject vehicle was not initiated promptly; and that Plaintiff has failed to p...

Excerpt: ...or the following reasons, the motion for summary adjudication is DENIED as to Issue 1; and Issue 2 is treated as a motion for judgment on the pleadings and GRANTED with 15 days' leave to amend. ISSUE 1: The undisputed material facts establish that Plaintiff cannot recover noneconomic damages pursuant to Civil Code section 3333.4 because Plaintiff was an uninsured driver at the time of the subject automobile accident. Defendants' first issue is an...

Excerpt: ...turer under the doctrine of equitable estop#l. More recently, Div. 8 of the Second District in Ford Motor Warranty Cases v. Ford Motor Co. (2023) 89 Cal.App.5th 1324 (rev. granted 7/19/2023) and Div. 7 of the Second District Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958, 310 Cal.Rptr.3d 82 (June 26, 2023) disagreed with the reasoning in Felisilda and concluded that the manufacturer was not entitled to enforce the arbitration agreement. W...

Excerpt: ...uests for production of documents, set one. Plaintiffs also request monetary sanctons in the amount of $2,3100.00 against Defendant and counsel plus an additional $1,500.00, as well as issue/evidenbary sanctions. The subject requests were served over a year and a half ago on 1/12/22. Defendant served objection-only responses on 2/11/22. The parties agreed to extensions until 3/17/22 for Defendant to serve further substantive responses. Plaintiffs...

Excerpt: ...atories General (Set One), all within 10 calendar days of the hearing of the motion, as well as for an order awarding monetary sanctions Page 19 of 40 in the amount of $ 2,963.15 against Horizon and its counsel of record, Fred Hayes and Rogers, MacLeith & Stolp, LLP, jointly and severally, for each of the two motions, as well as monetary sanctions in the same amount against Besnos and his counsel of record for one of the motions. Plaintiff Beznos...

Excerpt: ...eeded to gain access through that entry point at the Hamilton Gate entrance to what we call Strip 2 of the Easement" (ld. at 23:4-7); 3. "The Hickey Gate on the south part of the 25 acre will be coded" (ld. at 23:12-14.); 4. There will be an easement granted to Mr. Thier that provides for "vehicular and pedestrian, as well as equestrian rights but only as equestrian rights as [tol Strip 1, and usage for the Strip 1 for equestrian purposes is limi...

Excerpt: ...judgment is denied but each cause will be addressed under the moton for summary adjudication of issues. Analysis of the motion was made particularly difficult because the plaintiff filed opposition including a separate statement of undisputed facts that was procedurally deficient. Defendants moved to strike that document (see below), and plaintiff responded by attempting to file an amended separate statement that, unfortunately, is also procedura...

Excerpt: ...ovides in pertinent part: (b) 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. This protective order may include, but is not limited to, one or more of the following directions: ... (4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions. (5) That a trade...

Excerpt: ...pril 26, 2023, the court ordered Defendant Anthony Bell to serve verified responses without objections to Plaintiff's Form Interrogatories , Set Two, Special Interrogatories, Set Two, and Requests for Production of Documents, Set Two within 30 days of service of notice of ruling. (ROA No. 183, [04/25/23 Minute Order].) Plaintiff's counsel served notice of the ruling on Defendant Robert Bell on April 27, 2023. (Stark Decl. '1 8, Ex. A; ROA No. 201...

Excerpt: ...onstitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible." (Code Civ. Proc„ S 430.10, subds. (e) & (f)l; see S 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].) "A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demu...

Excerpt: ...town Business Improvement District's ("BID") Opposition it was filed and served one day late. However, Petitioner was able to timely file and serve a substantive reply on the merits, despite the Opposition having been served one day late. Thus, the Court finds Petitioner's objections to be waived and will exercise its discretion to consider the Opposition. Petitioner requests as part of his Motion that BID be ordered to produce its BID membership...

Excerpt: ...me of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. 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 Civ. Proc., S 473, subd. (a)(l).) Amendments to pleadings...

Excerpt: ...herance of justice, and on any terms as may be proper, allow a party to amend any pleading." (Code Civ. Proc., S 473(a)(1).) "If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse ...

Excerpt: ...n the basis that Plaintiff's compensation was reasonable and approved by the Board, with no self-dealing, and there is insufficient evidence to surmount the business judgment rule. In the alternative, Defendant moves for an order granting summary adjudication in favor of Defendant and against Plaintiff on the following issues: • Plaintiff's cause of action for "injunctive or declaratory relief necessary to change and/or reform Westview's corpor...

Excerpt: ...ss-complaint that Defendants intend to bring a new party into the action, "Cross-Defendant, Gazi Gori." (See Proposed Cross- Complaint93.) As explained by Rutter, "[t]here are no compulsory cross-complaints against parties other than plaintiff." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial Ch. 6-D (The Rutter Group 2022) 96:524.) However, as long as there is one permissible "related" cause of action in the crosscomplaint, defe...

Excerpt: ...gh contnuances of trials are disfavored, each request for a continuance must be considered on its own merits. (Cal. Rules Ct., Rule 3.1332(c).) A party moving to continue trial must make an affrmatve showing of "good cause" justifying the requested relief. (See Cal. Rules Ct., Rule 3.1332(c).) In addition, the motion must be made "as soon as reasonably practical once the necessity for the continuance is discovered." (Cal. Rules Ct., Rule 3.1332(b...

Excerpt: ...Nos. 1-31; (2) striking Defendant's objections and compelling Defendant to produce amended verified responses to Plaintiff's Requests for Production of Documents Nos. 1, 14, 15, 16, 17, 22, 23, 24, 25, 30, 31, 32, 33, 38, 39, 40, 41, 44, 47, 48, 51, 52, 53, and 54 and all responsive documents correspnding to those Document Requests; (3) that Defendant comply within 10 calendar days; and (4) that Defendant is ordered to pay monetary sanctions to P...

Excerpt: ...on, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney." (CLD Construction, Inc. v. City of San Ramon (2CN) 120 Cal.App.4th 1141, 1145.) "It must be represented by licensed counsel in proceedings before courts of record." (Ibid.) Next, the Motion is not accompanied by a proof of service showing the M...

Excerpt: ...quest for judicial notice is DENIED as to the remaining exhibits. (Eivd. Code S 452.) The webpages do not consist entirely of facts "that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." (Evid. Code S 452(h).) California's long-arm statute permits courts in California to exercise jurisdiction "on any basis not inconsistent with the Constitution...

Excerpt: ... or her through his or her mistake, inadvertence, surprise or excusable neglect." Relief under Code of Civil Procedure section 473, subdivision (b) may be based either on an "attorney affdavit of fault," in which event, relief is mandatory, or on declarations or other evidence showing "mistake, inadvertence, surprise or excusable neglect," in which event relief is discretionary. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Th...

Excerpt: ...laintiffs Vince Rinner ("Vince"), Diana Rinner ("Diana"), Nicholas Estanislau ("Nicholas"), and Laura Estanislau ("Laura") (collectively, "Plaintiffs") commenced this action against defendants Brian Hoyt ("Brian"), Alain Hoyt ("Alain"), William Kalpakoff ("William"), and Sandra Kalpakoff ("Sandra") (collectively, "Defendants"). (ROA 2). Plaintiffs allege they own real property adjacent to an easement that included a flood control channel ("Carbon...

Excerpt: ...denied as untimely. There are two ways to seek vacation or correction of an arbitration award: (1) Code of Civil Procedure section 1288 provdes: "A petition to vacate an award or correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner," or (2) Within 10 days of service of a party's petition to confirm the award, file and serve a timely response. (Civ. Proc. C...

Excerpt: ..., or the economy and effciency of handling the litigation would be promoted thereby, on moton of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except fo...

Excerpt: ...y further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [q] (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. [q] (2) To stay or dismiss the action on the ground of inconvenient forum. [91 (3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8." "Per...

Excerpt: ...nce of justice, and on any terms as may proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other res#ct; and may, upon like terms, enlarge the time for answer or demurrer. 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 in ...

Excerpt: ...bit 4 pursuant to Evidence Code section 452, subdivisions (c) and (h). (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 (disapproved on other grounds in Yvanova v. New Century Mortgage Corporation (2016) 62 Cal.4th 919, 939, footnote 13.) the court DENIES the RJN as to Exhibit 3 as immaterial to the court's decision. Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18 (Silv...

Excerpt: ...way of email on 12-1-22. (ROA No. 554.) Plaintiff filed this Motion on 2-1-23 which is 62 days after the Notice of Entry of Judgment or Order. Plaintiff's Reply (Reply), filed on 5-25-23 under ROA No. 578, states, "Code of Civil Procedure adds additional two court days to the deadline in the event service is effectuated electronically, as it was here." (Reply; 3:18-20 (Emphasis in Reply.).) California Rules of Court, rule 3.1702(b)(1), state,: "A...

Excerpt: ...(q).) The court DECLINES TO RULE on Defendants' Evidentiary Objections (filed on 8-28-23 under ROA No. 427, 428, and 429) as immaterial to the court's decision as set forth below. (Code Civ. Proc., S 437c, subd. (q).) Code of Civil Procedure section 437c, subdivision (p)(2) provides, "A defendant ... has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, e...

Excerpt: ...the following apply: [9] (1) An answer to a particular request is evasive or incomplete. [q] (2) An objection to a particular request is without merit or too general. [9] (b)(l) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Secton 2015.040... . [q] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific lat...

Excerpt: ...ounty of orange (2011) 197 cal.App.4th 282, 307, fn. 18 (Silverado.) The court OVERRULES the objection as to Exhibit N. The court SUSTAINS the following objections as set forth in Evidentary Objections: (1) Hand Decl., 7 and 18,; (2) Hand supp. Decl„ 10, 11, 12, 16, 17, 26, 30, 34, and (3) Fink Supp. Decl., 5, 8, 9, 10, 12, 13, 15, 17, 19, and 20 (except for the reference in 20 as to the need for expert testimony). The court OVERRULES the remai...

Excerpt: ...m. in Department N15. Defendants Christopher Paliska, Stephen Paliska, Aaron Vazquez, Rebecca Quarress, and Peter Maldonado (Paliska Defendants) move to stay proceedings in this action pending the completion of the bankruptcy proceedings of Defendant Western Express Lending (Defendant WEL). Standard to Stay Proceedings "Trial courts generally have the inherent power to stay in the interests of justice and to promote judicial efficiency." (Freiber...

Excerpt: ...espondents' (Ed Sachs, Wendy Bucknam, Greg Raths, and City of Mission Viejo) Evidentiary Objections filed on 7-12-23 under ROA No. 432: The court DECLINES TO RULE on the objections asto Exhibits 8, C, D, E, F, G, H, l, J, K, L, M, N, O, and P as immaterial to the court's decision as set forth below under Silverado. The court SUSTAINS the following objections as set forth in Respondents' Evidentary Objections: (1) Hand Decl„ 14, 15, 16, 36, 37, ...

Excerpt: ... required to be physically present with the deposition officer when being sworn in at the time of the deposition. [9] (b) Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent. If a party or attorney of record elects to be physically present at the location of the deponent, all physically present participants in the deposition shall comply ...

Excerpt: ...ecial Interrogatories, Set One is taken OFF CALENDAR as moot. Defendant Shelby Hospitality, LLC's Motion to Compel Answers to Special Interrogatories, Set One is taken OFF CALENDAR as moot. Defendant Ken Pansuria's Motion to Compel Answers to Requests for Production of Documents, Set One is taken OFF CALENDAR as moot. Defendant Ken Pansuria's Motion to Deem the Truth of Matters and Genuineness of Documents Specified in Requests for Admission, Set...

Excerpt: ...are characterized as 'quasi-criminal,' with the judgments of conviction governed by rules applicable to criminal cases. [Citations.] For purposes of federal due process rights, however, contempt proceedings are either civil or criminal, depending on the nature of the proceedings and the relief afforded. [Citation.] If the punishment is remedial, and for the benefit of the complainant, it is civil. [Citation.] The basic idea of civil contempt has ...

Excerpt: ...ilverado.).) The court DECLINES TO RULE on cross- Defendants' Evidentiary Objections (filed on 8-28-23 under ROA Nos. 207, 208, and 209) because they are immaterial to the court's decision as set forth below. Cross-complainants' (Chade M. Joher and Hussam H. Joher) Request for Judicial Notice, filed on 8-15-23 under ROA No. 191, is DENIED as immaterial to the court's ruling as set forth below. (Silverado Modjeska Recreation & Parks District v. Co...

Excerpt: ...ditional evidentiary matter with the reply should only be allowed in the exceptional case . . . ' and if permitted, the other party should be given the opportunity to respond.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Reply evidence should not address substantive issues in the first instance but only fill gaps in the evidence created by opposition. (Id. at p. 1538.) Here, the court exercises its discretion and declines to consi...

Excerpt: ...ls for the Ninth Circuit of the district court's order granting Plaintiff's motion to remand. UPCOMING EVENTS: 1. Case Management Conference, 9-6-2023 2. Motion to Appear Pro Hac Vice FACTS/OVERVIEW This is a putative class action for alleged violations of patients' medical privacy rights. On January 13, 2023, Plaintiff Jane Doe, individually and on behalf of all others similarly situated (“Plaintiff”), filed a Complaint against Defendant Hoa...

Excerpt: ...No. 21-01237766, and Valencia v. Priority Workforce, No. 22-01244163. The Court will address both motions in a single order. These cases are overlapping wage-and-hour class actions. In both cases, defendants Priority Workforce, Inc. and Fresh Grill, LLC stipulated with the respective plaintiffs, Quetzally Sanchez and Maria Valencia, to dismiss their class claims, arbitrate their claims on an individual basis, and stay proceedings. Sanchez and Val...