Excerpt: ...s for summary adjudication, without prejudice, as it appears that plaintiff has not been properly served at her current address with the motions and she is not competent to represent herself in the action. (Code Civ. Proc. § 437c.) To order the Public Guardian's Office to appear at the hearing to discuss appointing a guardian or conservator and legal counsel to represent plaintiff's interests in the case. Also, the court intends to take the pend...

Excerpt: ...nd all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) 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...

Excerpt: ... no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. As the party moving for summary judgment, the defendant has the burden to show it is entitled to judgment concerning all theories of liability asserted by plaintiff. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717.) The ultimate burden of persuasion on summary judgment/adjudication rests on the moving party. The initial burden of pro...

Excerpt: .... Proof of undertaking must be filed with the Court before the writ will be issued. Explanation: (Note‐ as of December 17, 2019, no opposition appears in the Court's files.) Plaintiff asks this Court to issue a writ of attachment against Kelly English, dba Maverick Academic Prep Program in the amount of $55,899.61. Attachment is a prejudgment remedy that allows a creditor to have a lien on the debtor's assets until final adjudication of the cla...

Excerpt: ... and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3. In addition, “The superior court shall review and appro...

Excerpt: ...ng sanctions and an order dismissing this case pursuant Code of Civil Procedure §2023.030(d)(3). To grant defendants' motion to compel the plaintiff Mariaelena Galindo's attendance at deposition. Mariaelena Galindo is ordered to attend deposition as rescheduled by defendants, who shall provide plaintiff a minimum of ten days' notice so that she may make arrangements to attend the deposition. To grant defendants' motion for monetary sanctions. CC...

Excerpt: ... terms of the settlement. (Code Civ. Proc. § 664.6.) Explanation: Under Code of Civil Procedure section 664.6, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or 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 the court determines that the parties entered into an en...

Excerpt: ...cal conditions/injuries. The court also intends to issue a protective order as requested by County Counsel, limiting use of any records that may be disclosed after the court's in camera inspection to the defense team and plaintiffs' team. Any transcripts or copies of the records made by the court shall be placed under seal. The moving party shall contact the department to schedule the in camera review. Explanation: Preliminarily, Evidence Code §...

Excerpt: ... the issue of summary judgment based on standing, in order to allow Plaintiff the opportunity to seek appointment in the Probate Court as Personal Representative of the Estate of Elvin Jones, as required, and then to file an Amendment to the Complaint once Letters have been obtained. If no such appointment and amendment is made, the court intends to grant summary judgment in defendant's favor based on plaintiff's lack of standing to bring the cla...

Excerpt: ...ll make installment payments for several years. Sealing mandates a “document by document analysis and the threshold inquires required by the First Amendment.” In re Marriage of Burkle (2006) 135 Cal. App. 4th 1045, 1050. Defendants have not attempted to demonstrate that each of the 8,125 pages of materials meet the tests required by law for sealing. They assert privacy and that they will somehow be harmed if disclosure occurs, but do not stat...

Excerpt: ...erk of the minute order. Explanation: The core issue here is whether the decision made by the Personnel Commission which is the subject of the Petition herein was both final and binding, and whether this can be discerned on demurrer. Both sides refer to this as an “arbitration,” so it appears no one quarrels with this designation. However, arbitration in the context of administrative decisions can be either binding or nonbinding, and unless t...

Excerpt: ...int. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the First Amended Complaint are to be set in boldface type. Explanation: First Cause of Action – Breach of Contract Generally, “[i]t is well established that a judgment in an action for breach of contract bars a subsequent action for additional relief based on the same breach.” (Mycogen Corp. v. Monsanto Co. (2002) ...

Excerpt: ...to Code of Civil Procedure section 425.16. City argues that plaintiff's entire case stems from administrative investigations into suspected misconduct of plaintiff and his coworker La‐Kebbia Wilson, and that such constitutes “official proceeding[s] authorized by law” within the meaning of the SLAPP statute. City then argues that plaintiff is not likely to prevail on the merits. The court finds City's arguments persuasive. Code of Civil Proc...

Excerpt: ...99, subd. (a).) Explanation: California Code of Civil Procedure section 399, subdivision (a) authorizes a court to dismiss a case without prejudice if the costs and fees relating to a transfer order are not timely paid. In pertinent part, it states: If the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, those costs and fees, including any expen...

Excerpt: ... code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3. In ...

Excerpt: ... the Court's files. Defendant City National Bank (“CNB”) moves for Summary Judgment, or, in the alternative, Summary Adjudication as to Plaintiff's Second Amended Complaint. Defendant's main argument is that the evidence does not support the claims plead by Plaintiff. To obtain summary judgment, “all a defendant needs to do is to show that the plaintiff cannot establish at least one element of the cause of action.” Aguilar v. Atlantic Ric...

Excerpt: ...t, or in the Alternative, Motion for Summary Adjudication (filed June 7, 2019) Tentative Ruling: To deny all three motions, in their entirety. Explanation: When defendant filed its first motion, on May 22, 2019, the accompanying declaration from defense counsel, August B. Hotchkin, stated that he “attempted to comply” with the requirements of subdivision (t) of California Code of Civil Procedure section 437c, which allows a party to move for ...

Excerpt: ...s of action. To sustain the demurrer to the fifteenth and sixteenth causes of action for failure to state facts sufficient to constitute a cause of action, with leave to amend. (Ibid.) Plaintiff shall serve and file his third amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: In his fourth through eighth causes of action, plaintiff alleges claims for slander of title, negl...

Excerpt: ... issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant meets that burden by showing that one or more elements of the causes of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. § 437c, subds. (p)(2), (o)(2).) Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action and...

Excerpt: ...cing evidence showing that he did not breach the standard of care when he treated decedent, and that he did not cause decedent's injuries or death. “The 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. [Citations.] ‘ “The standard o...

Excerpt: ...r to discuss the defects in the motion; and they are numerous. On a motion for a protective order seeking to restrict the disclosure of trade secrets, the moving party has the burden to prove, by the preponderance of the evidence, that there is good cause for issuance of a protective order. That party must provide an affidavit or declaration which: 1) lists the declarant's qualifications to give an opinion; 2) identifies the alleged trade secret;...

Excerpt: ...orth in boldface typeset. 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 ar...

Excerpt: ...on of the separate causes of action. (Code Civ. Proc. § 437c.) Explanation: Plaintiffs Cook and TJC Partners move for summary judgment of the entire complaint, or in the alternative adjudication of their breach of contract claims, contending that defendant Holmes owes $334,240 to Cook and $375,000 to TJC which he has failed to repay, despite having executed a series of promissory notes and guarantees of repayment. Plaintiffs also point to the fa...

Excerpt: ...o run from service by the clerk of the minute order. Explanation:  Defect in the Motion Plaintiff is correct about the defect in defendant's motion: there is no “demurrer” included. Here, where the various components involved in the motion are combined into one, this means that a separately‐captioned portion which distinctly specifies the grounds of demurrer must be included. It was not. Instead, defendant's “notice” section simply i...

Excerpt: ...ctual and legal predicate for his claims. 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 ...

Excerpt: ...nforcement of any judgment or order. (b) If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed. (c) This section applies whether or not an appeal wi...

Excerpt: ...e ordered to pay the costs and fees incurred by the requesting party in proving that matter. The court shall order the payment of such fees and costs unless it finds: (1) that an objection to the request was sustained or a response to the request was waived; (2) the admission sought was of no substantial importance; (3) the party failing to make the admission had reasonable ground to believe that the party would prevail on the matter; or (4) ther...

Excerpt: ...Civil Procedure section 1285, “Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” (Code Civ. Proc., § 1285.) “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as mad...

Excerpt: ... clerk. To deny the request for terminating, issue, and evidence sanctions at this point. Explanation: Nowhere in Mr. Waterman's declaration or in the opposition argument is it acknowledged that Mr. Waterman received notice of the Request for Pretrial Discovery Conference (“PDC”) well before his planned time of “unavailability.” Thus, he had time to file an Opposition in order to signal his willingness to participate in the PDC process. T...

Excerpt: ...Cross‐Defendants The Woodmont Company and Greg Newman to Strike Portions of the Prime Cross‐Complaint Tentative Ruling: To sustain the general demurrers to the second and third causes of action of the Prime Cross‐Complaint, without leave to amend. The motion to strike is ordered off calendar as moot, given the ruling on demurrer. Cross‐Defendants The Woodmont Company and Greg Newman are directed to submit to this court, within 7 days of s...

Excerpt: ...430.10(e).) Explanation: Though the pleadings are somewhat vague, it is clear that the trespass claim is premised on judicial orders issued by defendants Judge Pro Tem Amy Lopez and Judge David Kalemkarian in other cases involving plaintiff. "[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement." (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.) "Otherwise, hi...

Excerpt: ...he planned cohabitation did not occur. Plaintiff alleges that despite requests to the Defendant for the return of his property, the items remain in her possession. As a result, on October 29, 2018, he filed a Complaint entitled “Possession of Personal Property and for Damages.” On October 31, 2018, Defendant was personally served with the summons, complaint and other documents. She did not file a response. On December 3, 2018, default was ent...

Excerpt: ...Act is to enable a party to obtain evidence in the control of [her] adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits. Its purpose is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits.” (Caryl Richards, Inc. v. Superior Court In and For Los Angeles County (1961) 188 Cal.App.2d 300, 303, internal citations and quotation marks omitt...

Excerpt: ...on the pleadings. The arbitration agreement attached to the previous motion indicated it was between Plaintiff and an “employer,” but nothing in the submitted papers indicated that “employer” meant Defendant. Therefore, the Court denied the motion to compel arbitration by a minute order dated December 20, 2018. On February 13, 2019, Defendants filed a second motion to compel arbitration. The second motion does not mention the first motion...

Excerpt: ...oposed judgment consistent with the court's summary judgment order. Explanation: In this action plaintiff Amandeep Sandhu dba Akal Carriers, Inc. essentially alleges that defendant Benjamin Ama converted plaintiff's tractor and trailer that plaintiff provided him in connection with his employment. The complaint alleges causes of action for breach of contract, common counts, and conversion. Defendant HST, who was brought into this action through a...

Excerpt: ...petition. (Super. Ct. Fresno County, Local Rules, rule 2.8.4.) Explanation: The petition indicates that the minor has recovered. The only medical reports provided are from the day of the accident. These records clearly show that the minor had a right tibial plateau fracture and was to follow‐up with Dr. Wiemann in the ortho clinic. The billing attached to the MediCal lien clearly shows services provided in July and August of 2016 yet those reco...

Excerpt: ...tled to some relief.” (Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1152.) The complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc. § 425.10.) Plaintiff does not allege any facts in his Complaint, having failed to include any cause of action attachment to the Judicial Council form complaint. Since plaintiff pleads no facts, he fails to state a cause of ...

Excerpt: ...o ensure that they can continue farming on the remainder of their property. Explanation: Under Code of Civil Procedure section 1255.410, subdivision (a), “At the time of filing the complaint or at any time after filing the complaint and prior to entry of judgment, the plaintiff may move the court for an order for possession under this article, demonstrating that the plaintiff is entitled to take the property by eminent domain and has deposited ...

Excerpt: ...a bench trial. Given that the moving party has not met its burden, it is not necessary to examine the opposition or the reply. It is not necessary to rule upon evidentiary objections. See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. Explanation: Defective Separate Statement CCP § 437c(b)(1) states in relevant part: …The supporting papers shall include a separate statement setting forth plainly and concisely all material fa...

Excerpt: ...bjections. Explanation: Special Summary Judgment Rules in Employment Discrimination Cases Special rules govern allocation of the burden of proof on motions for summary judgment in employment discrimination cases, under both federal and state law, and state courts follow the approach taken by federal courts in these cases. The test uses a system of shifting burdens. (Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 354‐355.) It is intended ...

Excerpt: ...ce of this ruling by the clerk to file either their answers or other appropriate response. Explanation: Motion to Quash Defendant Mazda Motor Corporation (“MMC”) specially appears and moves to quash the service of summons on it pursuant to Code of Civil Procedure sections 418.10 and 581, subdivision (h), on the following grounds: 1) the service of process was not made in accordance with the Hague Convention on the Service Abroad of Judicial a...

Excerpt: ...tice to a party in time to defend the action and a default or a default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action." (Code Civ. Proc., § 473.5, subd. (a).) Section 473.5, subdivision (c) allows the court to set aside the default judgment if it finds the defendant's lack of actual notice in time ...

Excerpt: ...type. Explanation: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) However, where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and includ...

Excerpt: ...for punitive damages. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . .” (Code Civ. Proc. § 473, subd. (a)(1); see also Code Civ. Proc. § 576.) Judicial policy favors resolution of cases on the merits, and thus the court's discretion as to allowing amendments will usually be exerci...

Excerpt: ...f all, to the extent that defendants move for summary adjudication of the separate causes of action alleged against them as well as the claim for punitive damages, their motion is defective because it fails to specify in the notice of motion or the separate statement which causes of action or damages they seek to adjudicate. California Rules of Court, Rule 3.1350, subdivision (b), requires a party seeking summary adjudication of a separate cause ...

Excerpt: ... proposed judgment consistent with the court's summary judgment order. Explanation: In this action plaintiff Amandeep Sandhu dba Akal Carriers, Inc. essentially alleges that defendant Benjamin Ama converted plaintiff's tractor and trailer that plaintiff provided him in connection with his employment. The complaint alleges causes of action for breach of contract, common counts, and conversion. Defendant HST, who was brought into this action throug...

Excerpt: ...n. (Code Civ. Proc. § 437c(f).) Explanation: The Judicial Council form complaint alleges one Motor Vehicle cause of action against defendants Geoffrey Young and Preston Young. Though there is just one cause of action attachment, there are multiple theories of liability alleged in the Complaint. Plaintiff Trina Eastep alleges that on 3/26/17 defendants “did so carelessly, recklessly and negligently, own, operated, maintained and controlled a mo...

Excerpt: ...demurrer to cause of action three, for uncertainty. (Code Civ. Proc., § 430.10, subd. (f).) Plaintiffs are granted 10 days' leave to amend. The time in which the amended pleading may be filed will run from service by the clerk of the minute order. All new allegations are to be set in boldface type. Explanation: Cause of Action One: Breach of Contract When documents are incorporated by reference into the complaint, recitals in the document contra...

Excerpt: ...vil case as a limited civil case may be granted only if the court determines that plaintiff's claim necessarily involves less than $25,000; in other words, that a greater recovery “could not be obtained” or is “virtually unobtainable.” (See Walker v. Sup.Ct. (1991) 53 Cal.3d 257, 269‐270.) Requests for attorney's fees are not analyzed as part of the calculation to determine whether the complaint seeks a recovery more than $25,000. (...

Excerpt: ...spondeat superior, an employer is vicariously liable for torts committed by an employee within the scope of employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) This includes tortious conduct which can be characterized as an “outgrowth” of employment, “inherent in the working environment,” “typical of or broadly incidental to” the employer's business, or, in a general way, foreseeable from the employee's dut...