Excerpt: ...plaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer Defendant‐attorney demurs to plaintiff's sole cause of action for legal malpractice on the grounds that the Third Amended Complaint (“TAC”) fails to state facts sufficient to constitute a cause of action and the pleading is uncertain. Objections that a complaint is ambiguous or uncertain, or that essential facts ap...

Excerpt: ...order consistent with the court's summary adjudication ruling. Explanation: Summary Judgment/Adjudication A motion for summary judgment is generally directed toward an entire action or pleading. (Code of Civ. Proc., §437c, subd. (a).) By comparison “[a] party may move for summary adjudication as to one or more causes of action within an action ….” (§ 437c, subd. (f)(1).) In addition, “[a] motion for summary adjudication shall be granted...

Excerpt: ...ion In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and 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 fra...

Excerpt: ...tial responses to Form Interrogatories, Set Two from plaintiff Ericka Lollis; and request for sanctions Tentative Ruling: To grant the motion seeking an order deeming the truth of matters specified in the Requests for Admission, Set Two established pursuant to Code of Civil Procedure section 2033.280, subdivision (b) against plaintiff Reginald Robinson unless responses in substantial conformity with Code of Civil Procedure section 2033.220 are se...

Excerpt: ...stayed until plaintiff proffers proof that he has posted the security as ordered. (Code Civ. Proc. § 391.6.) If plaintiff fails to post security within 30 days as ordered, the court will dismiss the action upon an ex parte application by defendants. (Code Civ. Proc. § 391.4.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits ...

Excerpt: ... dismiss the representative portion of the PAGA claim. Explanation: Notice of Joinder Defendant Aerotek, Inc. (“Aerotek”) seeks an order compelling plaintiff to private arbitration of his wage and hour claims and his PAGA claim as an individual, and to dismiss the representative portion of the PAGA claim brought on behalf of all aggrieved employees. A notice of joinder to join in Aerotek's motion was filed by DMM Packaging, Inc. (“DMM”) o...

Excerpt: ...certified for settlement purposes. The court may make an order approving or denying certification of a provisional settlement class after the preliminary settlement hearing. (Cal. Rules of Court, rule 3.769(d).) Before the court may approve the settlement, however, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Products, Inc. v. Windsor (1997) 521 US 591, 625‐627; see also Newberg, Newberg and Rubenstein ...

Excerpt: ...t, or in the alternative summary adjudication. (Ibid.) Defendant shall submit a proposed judgment consistent with this court's order within 10 days of the date of service of the order. Explanation: First, to the extent that plaintiffs have moved for summary adjudication of their first cause of action under an unjust enrichment theory, the motion has been improperly brought because the court has already ruled that plaintiffs cannot state a claim a...

Excerpt: ...btor is not the occupant, on the judgment debtor. Service shall be made personally or by mail. At the hearing on the motion the court shall determine the occupant's right to possession and shall make an order including terms and conditions that are appropriate under the circumstances of the case. (Code Civ. Proc., § 700.080(c) (emphasis added).) Where, as here, the personal property subject to the writ of possession is being used as a dwelling t...

Excerpt: ...it can grant preliminary approval of the proposed settlement. An agreement of the parties is not sufficient 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 unc...

Excerpt: ...) no. 3. Plaintiffs shall provide a further response to Special Interrogatory (set two), no. 3 within twenty (20) days from the date of this order. The motions are denied in all other respects. To deny the request for imposition of monetary sanctions. Explanation: Associational Privacy (Special Interrogatory no. 2/Requests for Production of Documents nos. 3 and 4) Defendants contend that the requested discovery is justified because “[t]he plain...

Excerpt: ...ones Food Company, Fresno County Superior Court case no. 21CECG01408 and Sarmiento v. The Neil Jones Food Company, Fresno County Superior Court case no. 21CECG03825, have been resolved. Explanation: “The party against whom a complaint or cross‐complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: … (c) There is another action pending between the...

Excerpt: ...e second cause of action for conversion on the ground that the Complaint fails to state a claim. Mr. Weyant contends that the subject property of the action is not amenable to conversion as a matter of law. To state a claim for conversion, a plaintiff must allege: “(1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. ...

Excerpt: ...e first and second causes of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) To grant Montgomery's motions to strike the prayer for punitive damages, and the allegation at paragraph 30 that “Defendant AIMEE MONTGOMERY, D.M.D.'s actions as described above, were malicious, willful, and made in conscious disregard for Plaintiffs health and well‐being.” (Code Civ. Proc., §§ 436, 425.13.) To overrule Smith's demurrer to t...

Excerpt: ... truth of all material factual allegations in the complaint” and the plaintiff's “ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court ….” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496; Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 190 [“We assume the truth of the properly pleaded factual allegations, facts that reasonably can be i...

Excerpt: ...duction, Set One; and (3) For Monetary Sanctions Tentative Ruling: To grant plaintiff's motion to compel the deposition of Dycora Transitional Health— Quail Lake LLC's (“Dycora—Quail Lake”) person most knowledgeable. Defendant Dycora—Quail Lake shall produce the person most qualified to testify regarding categories 1‐16. (Code Civ. Proc., § 2025.450, subd. (a).) To grant plaintiff's motion to compel document production regarding requ...

Excerpt: ...lment Sale Contract. Explanation: Plaintiff contracted to purchase the vehicle from Lithia Nissan of Clovis on credit. (Pacheco Decl., ¶5, Exh. A.)The dealership then assigned its interest in the contract to American Credit Acceptance, LLC (ACA). (Pacheco Decl. ¶¶ 6‐9, Exh. B; Henao Decl. ¶¶ 7, 11‐12.) The retail sales installment contract (RISC) contained an agreement to arbitrate disputes that arise between plaintiff purchaser and Lith...

Excerpt: ...companied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: [�...

Excerpt: ... of Clovis on credit. (Pacheco Decl., ¶5, Exh. A.)The dealership then assigned its interest in the contract to American Credit Acceptance, LLC (ACA). (Pacheco Decl. ¶¶ 6‐9, Exh. B; Henao Decl. ¶¶ 7, 11‐12.) The retail sales installment contract (RISC) contained an agreement to arbitrate disputes that arise between plaintiff purchaser and Lithia Nissan or its assigns, which arise out of or relate to the credit application, purchase or con...

Excerpt: ... (Code Civ. Proc. § 405.34.) Explanation: Under Code of Civil Procedure section 405.30, any party, or any nonparty with an interest in real property affected by a lis pendens, can move to expunge the lis pendens at any time after the notice of pendency of action has been recorded. (Code Civ. Proc. § 405.30.) “Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form o...

Excerpt: ... plaintiff's double minimum wage claim. Plaintiff is granted 20 days' leave to file the first amended complaint, if necessary. If plaintiff cannot amend the complaint accordingly, plaintiff shall file a declaration indicating as such. The time to file the first amended complaint will run from service by the clerk of the minute order. All new allegations in the first amended complaint are to be set in boldface type. DMM Packaging, Inc.'s (“DMM�...

Excerpt: ...ne whether 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 sufficient 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 Acti...

Excerpt: ...ary adjudication of each separate cause of action. (Code Civ. Proc. § 437c.) Explanation: First, defendant Saint Agnes has moved for summary adjudication of the medical negligence cause of action on the ground that plaintiffs cannot prevail on their claim for malpractice against the hospital because the treating doctor, Dr. Iberdemaj, is not an employee or agent of the hospital and therefore the hospital cannot be held vicariously liable for his...

Excerpt: ...clerk to set the final approval hearing. Explanation: 1. Class Certification A precertification settlement may stipulate that a defined class be conditionally certified for settlement purposes. The court may make an order approving or denying certification of a provisional settlement class after the preliminary settlement hearing. (Cal. Rules of Court, rule 3.769(d).) Before the court may approve the settlement, however, the settlement class must...

Excerpt: ...ourth Causes of Action for Racial and Age Harassment: Defendants demur to the third and fourth causes of action on the grounds that the Second Amended Complaint (“SAC”) fails to allege sufficient facts to state a cause of action for harassment. Plaintiff's third and fourth causes of action alleges harassment in violation of the California Fair Employment and Housing Act (“FEHA”), Government Code, section 12940, subdivision (j), by defenda...