Excerpt: ...pleading shall be filed within 30 days of the clerk's service of this order. New or different allegations in the first amended complaint are to be set in boldface type. To deny plaintiff's motion for leave to file punitive damages pleadings. To deny plaintiff's application for sanctions. Explanation: Demurrer/strike "To withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law." (Logan v. Southern C...

Excerpt: ...ute order by the clerk. To deny the motion for relief from sanctions. Explanation: Defendants Springs SPE, LP (erroneously sued as The Springs), and Apartment Management Consultants, LLC (collectively "defendants") generally demur to the eighth cause of action, for public nuisance, for failure to state facts to support the cause of action. The present demurrer is the third challenge to the same cause of action, based on the same deficiencies alle...

Excerpt: ... by Rules of Professional Conduct, Rule 1.16, subdivision (e). Mr. Hoppe attests to having provided the contents of the file as requested by his client with the exception of a February 14, 2023 email from Jeff Williams, in-house counsel for Zenith, and emails sent after his representation of TJ & Sons ended on March 1, 2023. (Hoppe Decl. "1 9-10.) The author of the emails, Mr. Williams, asserted the work product privilege regarding the February 1...

Excerpt: ...lanation below), with the time to run from the clerk's service of the minute order adopting this Tentative Ruling. Explanation: In this partition action, an interlocutory judgment issued on December 22, 2020, which ordered the subject property to be sold by the appointed referee, with the proviso that $20,000 of the sale proceeds would be impounded to cover later costs of partition. A further order was entered on February 3, 2022, confirming the ...

Excerpt: ...iv. Proc., S 2023.010, subd. (g); 2030.290, subd. (c); 2031.300, subd. (c).) To strike the complaint and dismiss the action. To grant and to award monetary sanctions in the total amount of $735 against plaintiff David Herrera and his attorney of record, Justin B. Toobi, jointly and severally, payable within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. To grant and to award monetary sa...

Excerpt: ...intiffs attach an email from Mr. Rosado wherein he asks counsel to use a new address. However, as the court instructed counsel in the Tentative Ruling issued on April 18, 2023, when service to Mr. Rosado is made by mail, plaintiffs must include service at his address of record, even if they also wish to serve him at a different address. It is the duty of the litigant (including a self-representing litigant) to serve all parties with a written not...

Excerpt: ...ancement payment to plaintff Eric Garcia is $5,000. A revised proposed order shall be submitted to this department within 5 days of the clerk's service ofthis order. To set a hearing at June 13, 2024, at 3:30 p.m. in Department 503 as a hearing date for an Amended Judgment pursuant to Code of Civil Procedure section 384. A verified report of payouts of settlement funds and a proposed amended judgment shall be submitted no later than May 30, 2024....

Excerpt: ...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 diffculty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against ...

Excerpt: ... notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass orto cause unnecessary delay or needless increase in the cost of litigation. (2) The claims, defenses, an...

Excerpt: ...e the second amended complaint. The time to file the second amended complaint will run from service by the clerk of the minute order. Explanation: Defendant Farmers Insurance demurs to the sole cause of action stemming from a motor vehicle accident, contending that the First Amended Complaint ("FAC") fails to state cause of action, there is a nonjoinder or misjoinder of parties, the FAC is vague and ambiguous, and the cause of action is time-barr...

Excerpt: ...noticed by Defendants County of Fresno and Fresno County Sheriff's Offce ("County Defendants") of plaintiff, Dale Blickenstaff, and/or other witnesses identified in those depositions. (Code Civ. Proc. S 2033.300, subd. (c).) To deny Defendants County of Fresno and Fresno County Sheriff's Office's motion for summary judgment. (Code. Civ. Proc. S 437c, subd. (p)(2).) Explanation: Plaintiff's Motion to Withdraw Admissions Deemed Admitted Plaintiff m...

Excerpt: ...ssue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., S 437c, subd. (c).) In moving 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 achon „ cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc. S 437c, subd. If ...

Excerpt: ... which the complaint may be amended will run from service of the order by the clerk. In light of plaintiff's counsel's refusal to meet and confer prior to the filing of the demurrer, the court will require plaintiff to initiate and conduct a telephonic or in-person conference of the parties prior to amending the complaint. (See Cade Civ. Proc., S 430.41, subd. (c).) Plaintiffs counsel shall file with the amended complaint a declaration describing...

Excerpt: ...nse on or before June 20, 2023. The supplemental briefs shall not exceed five pages in length. Explanation: The County of Fresno demurs to the complaint on several grounds, including a contention that the complaint is uncertain as to plaintiffs identity. Plaintiff cites Starbucks Corp. v. Superior Court (21%8) 158 Cal.App.4th 1436 (Starbucks), wherein the court noted the " judicial use of I Doe plaintiffs' to protect legitimate privacy rights has...

Excerpt: ... motion for leave to amend. To deny the motion for interlocutory judgment of dismissal of the entirety of the first amended complaint. To deny the alternative relief sought for interlocutory judgment of dismissal of the seventh and eighth causes of action of the first amended complaint. Explanation: Plaintiffs Lennice Muhammad and Julia Dudley (collectively "plaintiffs") seek leave to file an amended complaint. Defendants Tylar Property Managemen...

Excerpt: ...hether the proposed class meets the requirements for certification before it can grant preliminary approval of the proposed settlement. An agreement of the parties is not suffcient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (...

Excerpt: ...e Company's Complaint. To deny summary judgment of Plaintiff Hallmark Specialty Insurance Company's Second Amended Complaint. Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. S437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The issue to be determined by the trial court in consideration of a motion...

Excerpt: ... subdivision (c) provides: No pretrial discovery by the plaintiff shall be permitted with respect to [defendant's financial condition] unless the court enters an order permitting such discovery pursuant to this subdivision. Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this...

Excerpt: ...First Amended Complaint. Explanation: Meet and Confer Code of Civil Procedure section 435.5 makes it clear that meet and confer must be conducted "in person or by telephone. (ld., subd. (a).) There are limited instances in which the meet and confer requirement does not apply: 1) for an unrepresented party who is incarcerated; 2) proceedings in forcible entry, forcible detainer, or unlawful detainer; 3) an ant-SLAPP motion; and 4) a motion less th...

Excerpt: ...e standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. ' "The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice actio...

Excerpt: ...ification before it can grant preliminary approval of the proposed settlement. An agreement of the parties is not suffcient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representati...

Excerpt: ...adings in compliance with Code of Civil Procedure, section 439. Rather, he argues that meeting and conferring is not required to bring his motion, and even if so, any efforts would have been futile. The parties must engage in good faith meet and confer, in person or by telephone, as set forth in the statute. (Code Civ. Proc., S 439, subd. The moving party is not excused from this requirement unless he shows that plaintiff and cross-defendant Deli...

Excerpt: ...y the clerk of the minute order. New allegations/language in the first amended complaint are to be set in boldface type. Explanation: In California, a complaint shall contain a statement of the facts constituting the cause of action, in ordinary and concise language; and a demand for judgment for the relief to which the pleader claims to be entitled. (Code Civ. Proc. 5425.10.) If the recovery of money or damages is demanded, the amount demanded s...

Excerpt: ... conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the united States." (Code Civ. Proc„ S 1048, subd. (b).) Also, under Code of Civil Procedure section 598, "The court may, when ...

Excerpt: ...gal covenant not to compete. Plaintiff points out that, under Business and Professions Code section "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." (Bus. & Prof. Code, S 16500.) "Section 16500 presently sets out the general rule in California—covenants not to compete are void. '[T]his provision [is] an expression of pu...

Excerpt: ... (Code Civ. Proc. S 430.10, subd. (e).) Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. Explanation: First Cause of Action: Defendant Campus Pointe Commercial (CPC) demurs to the first cause of action for breach of contract on the ground that the plaintiffs have failed to state facts sufficient to constitute a valid cause of action. Defendant contends that plaintiffs have failed ...

Excerpt: ...jections within 20 days of the service of this order. Monetary sanctons in the amount of $4,520 are ordered in favor of plaintiff and against defendant and its attorney, jointly and severally, payable no later than 30 court days from the date of this order, with the time to run from the service of this minute order by the clerk. Explanation: Plaintiff has moved to compel defendant Saint Agnes Medical Center to provide further responses to special...

Excerpt: ...r arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, shall be valid, irrewcable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. S 2.) "In recognition of Congress' principal purpose of ensuring that private arbitration agreements are enforced according to their terms, we have held that the FAA pre-empts state laws which 'require a...

Excerpt: ...To grant the moton to strike, in part, and deny, in part. The alter ego allegations, specifically the allegations at page two, paragraph four, lines 12-19, are striken without leave to amend. The motion to strike the allegations pertaining to the aiding and abet-tng of FEHA violations is denied. (Code Civ. Proc., S 436, subd. (a).) Explanation: Demurrer • Demurrer to the Entire Complaint Ms. Simpson demurs to the entirety of the complaint on th...

Excerpt: ... her to discrimination and retaliation on the basis of the medical conditions of plaintiff's mother, Betty Rush ("Rush"). Plaintiff has confirmed through written discovery that she does not have a disability which required accommodation. Therefore, her claims for failure to accommodate and failure to engage in the interactive process are also based on Rush's alleged medical conditions. Motion to Quash Subpoena of Medical Records Defendant seeks R...

Excerpt: ...rties have not agreed to arbitrate." (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) "Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute." (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) The party moving to compel arbitration bears the burden of proving by a preponderance of the evidence the existence of an arbit...

Excerpt: ...er $4.7 million. Plaintiff has shown that she suffered special medical damages of over but she only seeks about apparently based on the amount that her insurance company paid for her medical costs. Yet she also admits that her insurance company only has a lien of $3,166.14 for medical costs, so it is unclear why she seeks over $39mo for medical costs. Plaintiff also seeks lost earnings to date of $82,944, plus another $642,815 in future earnings....

Excerpt: ...e dispute is covered by 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 v. Great Western Fin'l securities corp. (1996) 14 cal.4th 394, 413-414; Hotels Nevada v. L.A. Pacific ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) This case is governed by the F...

Excerpt: ...e and serve opposition to plaintiff's Request for Pretrial Discovery Conference. Plaintiff had filed her request with the court on September 27, 2022, and served it on defendant by email that same day. Thus, per The Fresno Superior Court Local Rules, rule 2.1.17A.2, defendant had until Tuesday, October 4, 2022 (five court days) to file and serve its opposition. No opposition was filed, and on October 11, 2022, the court issued an order noting def...

Excerpt: ... order by the clerk, the DPSS shall produce all documents responsive to the subpoena served on August 29, 2022, with social security numbers and third party identities redacted. To deny the motion to compel plaintiff to sign an authorization for the release of records. To deny all requests for sanctions. Explanation: Motion to Compel DPSS to Comply with Subpoena Defendant issued a subpoena for plaintiff's employment and medical records from the A...

Excerpt: ...d, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: (1) An agreement that by its terms is not to be performed within a year from the making thereof." (Civ. Code, S 1524, subd. (a)(l).) Thus, "[aln oral agreement that by its terms is not to be performed within a year from the making thereof is invalid." (Gressley v. Williams (1961) 193 Cal.App.2d 636, 640, internal c...

Excerpt: ...he minute order by the clerk. Explanation: On December 16, 2021, this court sustained defendant's demurrer to plaintiff's original complaint, with leave to amend, except that leave to amend was not granted to state a petition for a writ of mandate. The court found that, among other things, the original complaint failed to state facts to support the purported causes of action for workplace discrimination and retaliation. On December 27, 2021, plai...

Excerpt: ...d cause of action, with leave to amend, as directed in the explanation below. Plaintiff is granted 10 days' leave to file the First Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Quiet Title Plaintiff concedes that there is no cause of action stated in the complaint for quiet title. Thus, all defendants are demurring to is surplusage in the compl...

Excerpt: ...h a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appr...

Excerpt: ...), and Request for Production of Documents (Set One). Plaintiff Novalee Solis is ordered to serve verified responses, without objections, to defendant within 30 days of service of the minute order by the clerk. To grant defendant Walmart, Inc.'s request to deem Requests for Admissions admitted. The truth of the matters specified in the Requests for Admissions, Set One, are to be deemed admitted unless plaintiff Novalee Solis serves, before the he...

Excerpt: ...the court's signature within 10 days of the date of service of this order. Explanation: Plaintiff alleges two causes of action against the Clovis Rodeo Association based on general negligence and premises liability. Plaintiff alleges that she went onto the Clovis Rodeo grounds after midnight with a cowboy who was a participant in the rodeo in order to take a picture of a horse. She went into a trailer where the horse was being kept, and the horse...

Excerpt: ...te an auto repair business, with the oral agreement being that even though title would be taken the Morenos' names, plaintiff would make the payments on the property (mortgage, insurance, taxes, and maintenance), and the Morenos would just "hold title" in their name for plaintiff's convenience. This alleged agreement (the "Moreno Agreement") has spawned two legal action and years of litigation, with this achon commenced in 2016. At one point the ...

Excerpt: ...the property, when in fact she has a 4% interest. Also, Charmla has now passed away, so the judgment needs to be corrected to substitute her testate and intestate successors as the property owners in her place. The court does have the power to correct clerical errors in its judgment. (In re Goldberg's Estate (1938) 10 Cal.2d 709, 713- 714.) The court also retained jurisdiction to make further orders as needed to enforce the judgment. (Stipulated ...

Excerpt: ...ttlement shall be submitted to the agency at the same time that it is submitted to the court." (Lab. Code, S 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 Moniz v. Adecco USA, Inc., (2021) 72 Cal.App.5th 56, did provide some guidance. The court explained that "many federal district courts have applied the 'fair, rea...

Excerpt: ...else has to be proven, with admissible evidence, in order for due process concerns to be met. The Due Clause requires that the named plaintiff at all times adequately represent the interests of the absent class (Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 812.) The certification pruess ensures that is the case. This is a basic constitutional requirement which applies to all class actions, federal and state. "Confronted with a request fo...

Excerpt: ...tal amount of $210 against defendant Maria Mauricio and Martinez, Dieterich & Zarcone Legal Group, jointly and severally, payable within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. To grant and to award monetary sanctions in the total amount of $630 against defendant Jose Luis Garcia Alcala and Martinez, Dieterich & Zarcone Legal Group, jointly and severally, payable within 20 days o...

Excerpt: ...nt to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certifi...

Excerpt: ...es of action, for negligence and for declaratory relief. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of university of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. (Barquis v....

Excerpt: ...o request 24 without objections within 20 days of the date of service of this order. Any responsive documents shall be unredacted. To deny defendant's motion for sanctions against plaintiff and her counsel. (Code Civ. Proc. S 128.7.) Explanation: Plaintiff's Motion to Compel Further Response: First, to the extent that defendant argues that the court lacks jurisdiction to hear plaintiff's motion because plaintiff's counsel did not timely serve the...

Excerpt: ... Bourn Family LLC's motions to compel for Form Interrogatories—Economic Litigation (Set One), Form Interrogatories—General (Set One), Special Interrogatories (Set One), and Request for Production (Set One). To grant defendant Bourn Family LLC's request to deem Requests for Admissions (Set One) admitted. The truth of the matters specified in the Requests for Admissions are to be deemed admitted unless plaintiff Valerie Gonzales serves, before ...