Excerpt: ...mmary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713, quoting § 437c, subd. (c).) To prevail in a motion for summary ju dgment, it is defendant's burden to prove there is a complete defense or that plaintiff cannot establish one or more elements of each of his causes of action. (Barber v. Marina...

Excerpt: ...xc ept as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1).) “Thus, u nder Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. M...

Excerpt: ...ill b e entertained at 2:30 p.m. (rather than 3:30 p.m.). Explanation: 1. Introduction “The 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).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to...

Excerpt: ...enth and eight h causes of action, without leave to amend. To overrule Martinez Accounting, Inc.'s (“MAI”) demurrers. (Code Civ. Proc., § 430.10, subd. (e).) Defendants shall file their answers to the Second Amended Complaint (“SAC”) within 10 days of service of the order by the clerk. Explanation: RVJ's Demurrer First Cause of Action for Breach of Contract “A cause of action for breach of contract requires proof of the following elem...

Excerpt: ...of Ca lifornia, acting by and through the State Public Works Board (the Board, together the State) and The California High -Speed Rail Authority (the Authority, together Plaintiffs) filed this action against six related captioned defendants (Defendants) alleging eight causes of action to recover funds mistakenly paid to Defendants in 2017. Defendants now demur, claiming the first six claims are barred by the applicable statute of limitations an...

Excerpt: ...der. If or al argument is timely requested, such argument will be entertained at 2:30 p.m. (rather than 3:30 p.m.). Explanation: A prevailing buyer in an action under the Song –Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal t o the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer ...

Excerpt: ...the court assesses the action for certification for settlement purposes. (Cal. Rules of Court, rule 3.769(d); Amchem Products, Inc. v. Windsor (1997) 521 US 591, 625- 627.) Because this class action has already been certified, the court need not address this issue. Settlement Approval “[I]n the final analysis it is the Court that bears the responsibility to ensure that the recovery represents a reasonable compromise, given the magnitude and ...

Excerpt: ...all g rant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., § 36, subd. (a), paragraph breaks omitted.) “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days fr...

Excerpt: ...to the Com plaint filed August 25, 2023, plaintiff suffered personal injury on May 3, 2021. Accordingly, the two -year statute of limitations applies (Code Civ. Proc., § 335.1), and expired May 3, 2023. The Complaint clearly was not filed within two years of the injur y. “A demurrer on the ground of the bar of the statute of limitations lies where it “appear[s] clearly and affirmatively that, upon the face of the complaint, the right of ac...

Excerpt: ...cati on of a preliminary settlement class. (Cal. Rules of Court, rule 3.769, subd. (d).) “If the court grants preliminary approval, its order must include the time, date, and place of the final approval hearing; the notice to be given to the class; and any oth er matters deemed necessary for the proper conduct of a settlement hearing. (Cal. Rules of Court, Rule 3.769, subd. (e).) “If the court has certified the action as a class action, not...

Excerpt: ...tled to disgor gement from defendants of the $52,017.90 paid to defendants. Explanation: Pursuant to Code of Civil Procedure section 437c, subdivision (f), plaintiffs seek summary adjudication of the first cause of action for Violation of Contractor License Law – Contra cting Without a License. Plaintiffs seek disgorgement of all sums paid to defendants for construction work requiring a contractor's license, the sum of $50,295.51. The motion w...

Excerpt: ...) In movi ng for summary judgment, a “defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action … cannot be established, or that there is a complete defense to the cau se of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff Fresno Community Hospital and Medical Center, d/b/a Community Health System (“CMC”) alleges two causes o...

Excerpt: ... fails to file a timely claim, a “written application may be made to the public entity for leave to present such claim.” Plaintiff made such an application to the Fresno Housing Authority (“FHA”), but the application was denied. The court can only grant relief t o present a late claim if the application was made within a reasonable time not to exceed one year from the actual date of the cause of action. (Gov. Code, § 911.4, subd. (b).) ...

Excerpt: ...ure sect ion 916, subdivision (a), “[e]xcept as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or ord...

Excerpt: ...parties outs ide of the presence of the court or orally before the court, for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement.” It also provides that the parties may request that the court “retain jurisdic tion over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc. § 664.6.) Due to the summary nature of the statut...

Excerpt: ...50-851.) Explanation: The court may disqualify an attorney based upon a conflict of interest on the motion of another party. (Code Civ. Proc., § 128, subd. (a)(5); In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 585; see also Cal. Rules Prof. Cond., rule 1.9(a).) There is sufficient evidence presented for the court to find that Anthony Werbin (“Werbin”) is disqualified from representing plaintiff in this matter. His own decla...

Excerpt: ...off cale ndar due to the automatic bankruptcy stay against indispensable party, Joshua O'Bannon. Explanation: A Notice of Stay Proceedings due to filing of bankruptcy was filed as to defendant Joshua O'Bannon. The case is stayed as to the bankrupting defendant. ( 11 U.S.C. § 362; Wekell v. U.S. (9th Cir. 1994) 14 F.3d 32, 33.) Here, the Motion to Compel Initial Responses to Request for Production of Documents, Set Two, made against defendant O...

Excerpt: ...r issues in the case. Defendant city appears to argue that trying the issue of exhaustion of administrative remedies separate from the merits is mandatory here. Defendant city relies on Hill RHF Housing Partners v. City of Los Angeles (2020) 51 Cal.App.5th 621, 634 for its position that exhaustion of administrative remedies is a threshold question which is required to be addressed before considering the merits. This case has been overruled. (Hill...

Excerpt: ...e and such inferences ' in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In making this determination, courts usually follow a three -prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movant's favor; and determinin...

Excerpt: ...erguson ("Plaintiff"). Plaintiff alleges decedent's passing on November 21, 2019, was the result of negligent medical care provided by defendants, including Scott Ford, M.D. ("Dr. Ford"), after a motor vehicle accident in which decedent was injured. Allegations of the Complaint The accident occurred on October 26, 2019. Plaintiff alleges decedent was a seat -belted passenger in a vehicle that was struck by a drunk driver. Dece...

Excerpt: ... bring a motion to reconsider, and a different order may be entered, if, subject to the following conditions, the motion is: 1. brought before the same judge that made the order; 2. made within 10 days after service upon the party of notice of the entry of the o rder; 3. based on new or different facts, circumstances, or law; and 4. made and decided before entry of judgment. “[F]acts of which the party seeking reconsideration was aware at the t...

Excerpt: ...eference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interes t in the litigation. (Code of Civ. Proc., § 36, subd. (a), emphasis added.) The intent behind the provision of a preferential trial setting is to “safeguard litigants who qualify u...

Excerpt: ...November 2, 2023, plaintiff California Attorneys, Administrative Law Judges and Hearing Officers in State Employment (“Plaintiff”) filed the operative Third Amended Complaint (“TAC”). The TAC states three causes of action: (1) preliminary and permanent injunctive relief; (2) petition for writ of mandamus as to defendants California Department of Human Resources and Eraina Ortega (collectively “Defendants”); and (3) petition for writ ...

Excerpt: ...moti on to strike shall be entitled to recover that defendant's attorney's fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1).) “Thus, under Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131, citations omitted.) “The amount of an attorney fee award under the anti -SLAPP...

Excerpt: ... leave to amend. To overrule the demurrer for the third and sixth causes of action as to plaintiff Rafael Gonzalez- Silva. (Code Civ. Proc., § 430.10, subd. (e).) Each request for judicial notice is granted. (Evid. Code, § 452, subds. (d), (h).) Plaintiffs are grant ed 20 days' leave to file the Third Amended Complaint. The time in which the Third Amended Complaint can be amended will run from service by the clerk of the minute order. All new ...