Excerpt: ...the general demurrers with leave to amend. To grant the motion to strike. Plaintiffs shall file and serve a Third Amended Complaint in conformity herewith within 10 days of the clerk's mailing of this minute order. New allegations shall be in boldface type font. Explanation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also co...

Excerpt: ... Cal.App.4th 1042, 1049.) However, “[u]nsigned invoices . . . cannot on their own create a contract or add terms to a contract.” (C9 Ventures v. SVC‐West, L.P. (2012) 202 Cal.App.4th 1483, 1501, see also India Paint & Lacquer Co. v. United Steel Products Corp. (1954) 123 Cal.App.2d 597, 607‐608 [““[t]he prevailing rule is that an invoice, standing alone, is not a contract . . . and a buyer is ordinarily not bound by statements thereon...

Excerpt: ...stodial officer personnel records and records maintained by any state or local agency pursuant to section 832.5, or any information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” Evidence Code section 1043 requires a noticed motion which identifies the records sought, and “affidavits showing good cause fo...

Excerpt: ... Kaur has filed this motion to set aside the default entered by this Court. The Court's files show that a proof of service was filed with the Court on July 17, 2019 indicating that Defendant Kaur was served by substitute service on June 7, 2019, with the papers mailed to Defendant on June 10, 2019. Default was entered on July 23, 2019. Defendant filed her papers in support of the motion to set aside the default on November 12, 2019. It appears fr...

Excerpt: ...ing summary judgment in favor of defendants Abolnik, Galamgam, and Nwaka and denying plaintiff's cross‐motion for summary judgment. (Code Civ. Proc. § 1008.) Explanation: “[A]fter entry of judgment, a trial court has no further power to rule on a motion for reconsideration. ‘A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered. Once judgment...

Excerpt: ...to comply with Code of Civil Procedure §431.30, subdivision (g). In all other respects, the demurrer is overruled. Defendant shall have ten (10) court days from the date of this order to file an amended answer. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Supe...

Excerpt: ...eny all three motions for summary judgment. (Code Civ. Proc. § 437c.) Explanation: Bowman's Motion: Defendant Ashley Bowman moves for summary judgment of the entire complaint, contending that there is no evidence that she breached the standard of care or caused plaintiff's injuries, and that even if there were such evidence, she is statutorily immune from liability in the absence of evidence of gross negligence or bad faith. Under Health and Saf...

Excerpt: ...court, within five days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: The operative pleading, the Second Amended Complaint (“SAC”) alleges five causes of action arising out of the foreclosure of a four‐unit residential property owned by plaintiff: 1. Violation of Homeowners Bill of Rights; 2. Breach of Contract; 3. Breach of covenant of good faith and fair dealing; 4. Ne...

Excerpt: ...d serve its answer to the Second Amended Complaint within 10 days of the clerk's mailing of this minute order. Explanation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its p...

Excerpt: ...ible. (Shaw v. Regents of Univ. of California (1997) 58 Cal.App.4th 44, 52.) However, interpretation of a written document is a question of law for the trial court to determine, only where extrinsic evidence is unnecessary. (Temple v. Velcro USA, Inc. (1983) 148 Cal.App.3d 1090, 1095.) In other words, interpretation is appropriate where the language is clear, understandable and completely unambiguous. (Ibid.) “When the meaning of contractual la...

Excerpt: ...nt of the entire complaint on the ground that there is no evidence that they acted in a grossly negligent manner or in bad faith. They point out that, under Health and Safety Code section 1799.106, “[A] firefighter, police officer or other law enforcement officer, EMT‐I, EMT‐II, EMT‐P, or registered nurse who renders emergency medical services at the scene of an emergency or during an emergency air or ground ambulance transport shall only...

Excerpt: ...SongBeverly – breach of express warranty; (2) violation of Song‐Beverly – breach of implied warranty; and (3) violation of Song‐ Beverly Section 1793.2. In response thereto, defendant General Motors LLC (hereafter “GM”) moves for summary judgement or adjudication. GM makes the same argument with regard to the complaint as a whole, as well as to each cause of action individually. GM argues that prior to litigation, it made a statutoril...

Excerpt: ...extent the request is directed at the existence of the documents and not the truth of the factual findings contained therein. (Evid. Code § 452(d); Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120 [“Judicial notice is properly taken of the existence of a factual finding in another proceeding, but not of the truth of that finding.”].) Special Motion to Strike The Anti‐SLAPP Statute. “A SLAPP suit—a strategic lawsu...

Excerpt: ...de Civ. Proc. § 437c(f)(1).) To deny Mazda Motor Corporation' (“MC”) motion for summary adjudication of plaintiffs' claim for punitive damages. (Code Civ. Proc. § 437c(f)(1).) Explanation: In light of plaintiffs' statement of non‐opposition to MNAO's motion for summary adjudication, the motion will be granted for the reasons stated in the moving papers. MC moves for summary adjudication of plaintiffs' claim for punitive damages on two gro...

Excerpt: ...ive damages, plaintiffs can then discover their financial information. To that end, since trial is set for a date in the very near future, defendants are ordered to have this information efficiently organized and ready to produce at trial if necessary, so as to minimize any delay in the conduct of the trial. Explanation: Civil Code section 3295, subdivision (c) permits pretrial discovery of a defendants' financial information for purposes of obta...

Excerpt: ...ruary 20, 2020, at 3:00 p.m. in Department 501. On or before this date, plaintiff FRI must file a Substitution of Attorney evidencing that it has hired counsel, and said attorney must also appear on its behalf at the status hearing. If there is no substitution of attorney or appearance at the hearing, the court will dismiss FRI's four causes of action raised in the FAC. Explanation: Motion for Reconsideration The motion for reconsideration must b...

Excerpt: ... Civil Procedure § 437c(c).) If the defendant carries this initial burden of production, the burden of production shifts to plaintiff to show that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 852.) “‘Summary 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....

Excerpt: ...an be used to: “(a) Strike out any irrelevant, false, or improper matter inserted in any pleading”; or “(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”(Code Civ.Proc. §§ 431.10, subd.(b); 436, subd.(a).) A court will “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their ...

Excerpt: ...ause of action. To deny the motion to strike allegations concerning punitive damages. To grant the motion to strike the prayer for attorney's fees. Explanation: Demurrer: First Cause of Action – Quiet Title A cause of action for quiet title must be verified and include the following: 1) a description of the real property that is the subject of the action, including both the legal description and street address; 2) the title or interest of the p...

Excerpt: ...sted in the deposition notice shall be provided no later than 30 days from the date of this order. To deny the moving party's request for monetary sanctions. To grant the motion for leave to file a First Amended Complaint. The plaintiff is granted 10 days leave to file the proposed First Amended Complaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. Explanation: Motion to Compel An order ...

Excerpt: ...g Materials Co. Tentative Ruling: To overrule all special demurrers. To overrule all general demurrers to the fourth through eighth causes of action. To sustain the general demurrers to the second and third causes of action with leave to amend. To grant the motions to strike allegations relating to punitive damages with leave to amend. To deny the balance of the motions to strike. The plaintiffs shall file and serve a Second Amended Complaint wit...

Excerpt: .... To impose monetary sanctions against defendant General Motors LLC, in the amount of $810. Payment shall be made to the Knight Law Group within 30 days of the clerk's service of this minute order. Explanation: Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) Courts may impose a monetary sanctions for misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd....

Excerpt: ...ivil Procedure § 664.6 provides, in pertinent part, as follows: If parties to pending litigation stipulate . . . orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. Here, there is no ...

Excerpt: ...§ 1987.1; 2020.220.) Patient A shall appear for his deposition within 15 days of the date of service of this order. To deny defendants' request for an evidence sanction barring the use of Patient A's testimony if he fails to appear for his deposition, as there is no statutory authority for such sanctions as to a non‐ party witness. However, Patient A may be subject to other sanctions, including contempt of court, if he fails to appear for his ...

Excerpt: ...including both its legal description and its street address; 2) all interests the plaintiff has or claims in the property; 3) all interests of record or actually known to the plaintiff, and all persons plaintiff “reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff” (i.e., this includes “persons unknown to be served by publication); 4) the estate as to which p...

Excerpt: ...and may name as respondents any other person bound by the arbitration award. (Code Civ. Proc., §1285.) A petition shall: (a) set forth the substance or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement; (b) set forth the names of the arbitrators; and (c) set forth or have attached a copy of the award and the written opinion of the arbitrators, if any. (Code Civ. Proc., §1285.4.) I...

Excerpt: ...tive, summary adjudication on the Complaint filed by Plaintiff Felix Rocha. Mr. Rocha filed a complaint on January 16, 2018 alleging injuries from a motor vehicle accident and general negligence. The injuries were alleged to have occurred on January 18, 2016 and stemmed from the negligent operation of one of Defendant Mid Valley Disposal's fork lift trucks by co‐Defendant Toby Taylor. To obtain summary judgment, “all a defendant needs to do i...

Excerpt: ...the completion of arbitration. Explanation: The parties have agreed to submit plaintiff's claims to arbitration pursuant to a Dispute Resolution Agreement. The parties are in disagreement as to the interpretation of paragraph 5 of the Agreement, and have stipulated to have the court resolve the issue. Paragraph 5 provides: Arbitration will be conducted within the county in which the employee works for CMC or last worked for CMC unless all parties...

Excerpt: ...spect to causes of action: four (breach of oral contract), five (breach of implied‐infact), and six (promissory estoppel). To deny defendant's motion to strike plaintiff's prayer for costs. To deny defendant's motion to strike plaintiff's prayer for restitution. Plaintiff is granted ten days' leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanati...

Excerpt: ...iff to call for oral argument. If defendant does not call for oral argument, this Tentative Ruling will be adopted without continuance. Explanation: Proof of Service Issue: One of the arguments plaintiff made was that the motion was not timely served. The original proof of service attached to the Notice of Motion attempts to indicate personal service of the papers on May 28, 2019 – which would be two days before the 75‐day deadline given in C...

Excerpt: ...�The court may, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading[.]” (Code Civ. Proc. §473(a)(1).) “[L]eave to amend a pleading should be liberally granted as long as there is no timeliness problem under a statute of limitations or prejudice to the opposing party. [Citations.]” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240; Glaser v. Meyers (1982) 137 Cal....

Excerpt: ... days of the date of service of this order. Explanation: Defendants argue that plaintiff expressly assumed the risk of being hit by a foul ball when he purchased his ticket for the game. The ticket contained an express release which stated, “Holder of this ticket assumes all risks incidental to the game of baseball, including specifically (but not exclusively) the danger of being injured by thrown or batted balls. Holder agrees that the Fresno ...

Excerpt: ...any generally applicable venue statutes, but relies, in principle part, on Welfare and Institutions Code §§6600, et seq. and, specifically, section 6601, subdivision (i) (effective January 1, 2019). A plaintiff's (or, in this case, a Petitioner's) choice of venue is presumptively valid, and a party moving to transfer venue bears the burden of demonstrating that the plaintiff's chosen venue is improper. (Battaglia Enterprises, Inc. v. Superior C...

Excerpt: ...ken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) In other words, to secure relief, the moving party must present a reasonable excuse as to why she was prevented from presenting her case to the court. (See Wilcox v. Ford (1988) 206 Cal.App.3d 1170, 1176; Guenter v. Lomas & Nettleton Co. (198...

Excerpt: ...Peel | Garcia within 30 days of the clerk's service of this minute order. Explanation: Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010.) And courts may impose a terminating sanction for misuse of the discovery process. (Code Civ. Proc., § 2023.030.) But before imposing a terminating sanction, courts should usually grant lesser sanctions: e.g., orders staying the action until defen...

Excerpt: ...sic fraud or mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576‐578; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300; Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97.) With regard to extrinsic mistake however, relief will be denied if the complaining party's negligence permitted the mistake to occur. Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473; Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47; see also Wils...

Excerpt: ...ourt days of this order. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are...

Excerpt: ...nce of justice, and on any terms as may be proper, allow a party to amend any pleading ... ” (Code Civ. Proc. § 473(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Plaintiffs have largely complied with Code of Civil pro...

Excerpt: ...to the plaintiff, determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used.” (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234, internal citations and quotation marks omitted; see also Swaner v. Santa Monica (1984) 150 Cal.App.3d 789, 799.) “In making the determination of whether ...

Excerpt: ...served on 10/3/18. This motion must be served within 45 days after service of a verified response (extended if served by mail, overnight delivery or fax or electronically; see Code Civ. Proc. § 1010.6(a)(4), 1013). Otherwise, the demanding party waives the right to compel any further response to the discovery. (Code Civ. Proc. §§ 2030.300(c), 2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.) The 45‐day time limi...

Excerpt: ...t to the applicable Local Rules and the court will reset the trial at that time. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473; see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777.) Judicial policy favors resolution of all d...

Excerpt: ...order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: The SAC alleges the following causes of action: (1) intentional tort against the State of California (for failure to provide health insurance as required by law); (2) intentional tort against SIEU Local 2015 (for failure to provide health insurance); (3) intentional tort against Department of Motor Vehicles (because driver of the vehicle that caused plai...

Excerpt: ...rprises, Inc. dba Triangle Truck Center for Attorney's Fees; and (5) By Morris and Lucille Srabian for Attorney's Fees. Tentative Ruling: To continue Morris and Lucille Srabian's (“the Srabians'”) Motion to Strike and/or Tax Costs of Twin Falls Enterprises, Inc. dba Triangle Truck Center (Triangle Truck) to Wednesday, August 28, 2019, at 3:30 p.m. in Department 503. Triangle Truck may file a supplemental opposition no later than August 14, 20...

Excerpt: ...t to state a cause of action and uncertainty, without leave to amend. (Code Civ. Proc. § 430.10, subd.'s (e), (f).) Defendants shall serve and file a judgment dismissing the action as to them within 10 days. If oral argument is requested, it will be heard on August 7, 2019 at 3:30 p.m. in Department 501. Explanation: The plaintiff's second amended complaint appears to be premised on the theory that MERS had no standing to assign the note and dee...

Excerpt: ...l be filed with the Court before the writ will be issued. Explanation: Attachment is a prejudgment remedy that allows a creditor to have a lien on the debtor's assets until final adjudication of the claim sued upon. (Code Civ. Proc., §481.010, et seq.) A creditor must follow statutory guidelines in applying for the attachment and establish a prima facie claim. (Lorber Industries of Calif. v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) An a...

Excerpt: ...laint show the cause of action is barred by the statute of limitations, a general demurrer lies. (It is not ground for special demurrer.) (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.) Various statutes of limitations apply here depending on the cause of action, including the new causes of action in the proposed amended complaint. Breach of any oral agreements (such as the "handshake" agreement alleged in Complaint ¶ ...

Excerpt: ...Explanation: Demurrer: A demurrer under section 430.10, subdivision (c), is essentially a plea in abatement. “A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action. In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only whe...

Excerpt: ...mpliance is not required. Any First Amended Complaint must be filed within ten (10) court days of this order and any new or changed allegations are to be set forth in boldface typeset. To deny the request for attorney's fees raised by the Defendants in their reply brief. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all i...

Excerpt: ...Celestino Perales's cross‐complaint. (Code Civ. Proc. §473c(c); Cal. Rules of Court, rule 3.1350(b).) Explanation: Summary adjudication As an initial matter, the Court will not summarily adjudicate any issues or causes of action, as the moving papers fail to comply with California Rules of Court, rule 3.1350(b). Notice of motion Defendants argue that service on counsel on April 19, 2019, made by handserving copies of the moving papers after th...

Excerpt: ...ourt's satisfaction that: (1) they have a “substantial interest in the action as a whole”; and (2) their health is “such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., § 36, subds. (a), (c)(2).) The court has discretion to determine the extent of moving party's interest and to find as a matter of fact the risk posed of that party's death or incapacity if tr...