Excerpt: ...ment will be entertained on Friday, March 8, 2024, at 1:30 p.m. in Department 501. Explanation: In moving to compel arbitration, defendants must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered b y the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.). (Rosenthal ...

Excerpt: ....00. To appoint CPT Group, Inc. as settlement administrator and approve costs to administer in the amount of $8,000.00. Plaintiffs are directed to submit a new proposed order. Explanation: 1. Introduction Under Labor Code section 2699, “[t]he supe rior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the ...

Excerpt: ... to this court, within seven days of the date of service by the clerk of this order, a proposed judgment dismissing this action as to defendant. The court denies defendant's additional request for monetary sanctions. Explanation: Once a motion to compel discovery is granted, continued failure to comply may support a request for more severe sanctions. Code of Civil Procedure section 2023.010, subdivision (g), makes “[d]isobeying a court order to...

Excerpt: ...e of this order. All new allegations shall be in boldface. Explanation: First Cause of Action: “Establishing that claim [for breach of contract] requires a showing of ‘(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.'” (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800, c...

Excerpt: ...nc. and Modivcare Solutions, LLC (collectively, the “Modivcare Defendants”) demur to the entirety of the complaint on the ground that the complaint fails to state a cause of action, and each cause of action is uncertain and time -barred by the applic able statute of limitations. While plaintiff may and does utilize the Judicial Council form complaint, the usage of the form does not change the statutory requirement that the complaint contain �...

Excerpt: ...Procedure section 598, the court is given great discretion in regards to the order of issues at trial: The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promot ed thereby, on motion of a party, after notice and hearing, make an order…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…. ...

Excerpt: ...rmony Communities' motion for its attorney's fees, in the amount of $38,002.50. To grant plaintiffs' motion to strike La Hacienda's Memorandum of Costs, item 10, in the amount of $3,512. To deny plaintiffs' motion to strike the remainder of La Hacienda's Memorandum of Costs. To deny plaintiffs' motion to strike Harmony's Memorandum of Costs, in its entirety. If oral argument is timely requested, such argument will be entertained in Department 501...

Excerpt: ...r by the clerk, defendants shall submit a proposed Judgment dismissing the action. If oral argument is timely requested, such argument will be entertained in Department 403 at 3:30 p.m. on March 7, 2024. Explanation: In the FAC filed on 8/15/23, plaintiff Stacy Hu ber alleges she was falsely accused of misconduct at a termination meeting, terminated, and not given any reason for the termination. Based on these bare allegations, plaintiff alleges...

Excerpt: ...ve costs to administer in the amount of $3,250.00. Plaintiff is directed to submit a new proposed order. Explanation: 1. Introduction Under Labor Code section 2699, “[t]he superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) ‘“‘A representative ...

Excerpt: ...on Under Labor Code section 2699, “[t]he superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) The statute does not explain what exactly the trial court should consider when reviewing a proposed PAGA settlement. However, recently the Court of Appeal in...

Excerpt: ...f Court, rule 3.769, subd. (a).) The approval of the settlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769, subd. (d).) “If the court grants preliminary approval, its order must includ e the time, date, and place of the final approval hearing; the notice to be given to the class; and any other matters deemed necessary for the proper conduct of a settlement hearing. (Cal. Rules of Court, Rul...

Excerpt: ...n for summary adjudication is continued to May 2, 2024, at 3:30 p.m. in Department 403. Defendant shall file and serve its motion for relief from the order deeming it to have admitted the matters in the requests for admission by March 14, 2024. The motion shall be calendared on April 11, 2024. Opposition and reply briefs will be filed and served per code. If oral argument is timely requested, such argument will be entertained in Department 501 ...

Excerpt: ...ted, such argument will be entertained in Department 501 at 3:30 p.m. on February 29, 2024. Explanation: A plaintiff may request a continuance by filing a declaration explaining why further discovery is essential to opposing the motion for s ummary judgment and why additional time is needed. (Code Civ. Proc., § 437c, subd. (h); Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.) The declaration must show facts that establ...

Excerpt: ...nation: The purpose of consolidation is to enhance trial court efficiency by avoiding unnecessary duplication of evidence and procedures, and to avoid the substantial danger of inconsistent adjudications. (Todd -Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.) And where the issue is consolidating an unlawful detainer action with a civil action making a claim of ownership of the subject property, the additional issue is o...

Excerpt: ...ion: “The ethical obligation to warn opposing counsel of an intent to take a default is now reinforced by a statutory policy that all parties ‘cooperate in bringing the action to trial or other disposition.' Quiet speed and unreasonable deadlines do no t qualify as ‘cooperation' and cannot be accepted by the courts.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 137, emphasis added, citations omitted.) In addition, “[t]he law favors judg...

Excerpt: ..., to allow time for: (1) ESIS, Inc. to serve all appearing parties to the action with the moving papers and to file a corrected proof of service; and (2) the proposed successor in interest to substitute as a party to this action for the deceased plaint iff. The proposed successor in interest may file an ex parte application and reserve an ex parte hearing date for the substitution. The proposed successor in interest may re -file her opposition...

Excerpt: ...ovisi on is deemed severed from the Retail Installment Sale Contract. To stay this action and the remaining claims against defendant PRCO, Inc. and American Contractors Indemnity Company pending the completion of arbitration. Explanation: Plaintiff contracte d to purchase a vehicle from Car Palace, Inc., doing business as Auto Depot, on credit. (Shahnematollah Decl., ¶ 9, Exh. A; Second Amended Complaint, ¶¶ 2, 5.) The dealership then assigned...

Excerpt: ...submitted on reply in the Reply Declaration of Gary Revis. All supplemental briefing will be per Code of Civil Procedure section 1005, subdivision (b), treating March 26, 2024 as the original hearing date. Explanation: Defendant Future Clovis, Inc. d ba Future Ford of Clovis (“Defendant”) moves for an order compelling Plaintiffs SS Pro Flooring & Construction, Inc. and Saul Sanchez Medina (collectively “Plaintiffs”) to arbitration. A tri...

Excerpt: ...s from the date of service of the order by the clerk, to counsel for defendants Hope Benites Serna and Fernando Serna. Explanation: On September 6, 2023, defendants Hope Benites Serna and Fernando Serna (collectively “Defendants”) filed a Request for Pr etrial Discovery Conference, consistent with Fresno Superior Court Local Rules, Rule 2.1.17 regarding disputes between the parties on discovery. On September 25, 2023, noting that plaintiff A...

Excerpt: ... v. Woodward -Clyde & Assocs. (1985) 38 Cal.3d 488, 499 (Tech -BIlt)) include “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, a nd a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial condition...

Excerpt: ...Explanation: Demurrer The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690,...

Excerpt: ...30.10, subd. (e), (f).) To overrule the demurrers to the first and second causes of action. The time in which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be in boldface type. Explanation: This is an elder abuse action brought on behalf of Dorothy Magee (“Decedent”), through her successor -in -interest Lydell Magee. Decedent's children, Lydell Magee and Marcel Smith, also assert a wr...

Excerpt: ... for relief.” However, this misstates the holding of Gribin Von Dyl & Associates, Inc. v. Kovalsky (1986) 185 Cal.App.3d 653. There, the court said a party seeking relief “under a court's equity power must make a stronger showing than is necessary to obtain relief under section 473.” (Id. at p. 660, emphasis added.) It did not find that the showing for a request for relief based on “mistake, inadvertence, or excusable neglect” unde...

Excerpt: ...dure section 473.5 in their arguments. Cross- Complainant JD Properties, Inc. addressed both grounds. Accordingly, the court proceeds on both grounds. Code of Civil Procedure section 473, subdivision (b) provides, in pertinent part: The court may, upon any te rms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertenc...

Excerpt: ...ment order. If oral argument is timely requested, such argument will be entertained in Department 501 at 3:30 p.m. on February 27, 2024. Explanation: The Material Undisputed Facts The plaintiffs in this action, Stephanie Norgard and Edward Priest, are the parents of Varonica Priest ("Decedent"). On January 31, 2021, Decedent presented to the hospital emergency department for respiratory dyspnea. She was 35 years old with a history of mito...