Excerpt: ...ruling. Explanation: A plaintiff is entitled to summary judgment if they have met their burden that '"each element of' the 'cause of action' in question has been 'proved,' and hence that 'there is no defense' thereto." (Aguilar v. Atlantic Richfield Co. (2CM) 25 Cal.4th 826, 8%'.) "A plaintiff has met his or her burden if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the pla...

Excerpt: ...ounsel will breach the fiduciary obligations they owe to the absent class members. As a result, such agreements must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court's approval as fair." (Koby v. ARS National Services, nc. (9th Cir. 2017) 846 F. 3d 1071, 1079.) "[lln the final analysis it is the Court that bears the responsibi...

Excerpt: ...on: Defendant Stella Villagomez moves for summary judgment, or adjudication of the first amended complaint against her. Although moving defendant denies having taken, secreted, appropriated, obtained or retained any property from the plaintiff or the assistance of another of the same, plaintiff has demonstrated there is a dispute of these material facts. As a result, the motion is denied. Statute of Limitations and Plaintiff's Status as an "Elder...

Excerpt: ... To sustain defendant Graney's special demurrers to causes of action Sustain special demurrers to causes of action 1, 2, 3, 6, 9, 10, 11-14, with plaintiff granted 10 days' leave to file a second amended complaint. (Code Civ. Proc., S 430.10, subd. To sustain Graney's general demurrers to causes of action 6, 7, 9, 10, 12 and 14, with leave to amend as to all but 6 and 12. To overrule general demurrers to causes of action 1, 2, 3, 5, 8, 11 and 13....

Excerpt: ...Wershba v. Apple computer, Inc. (2001) 91 cal.App.4th 224, 240; see Dunk v. Ford Motor co. (1995) 48 cal.App.4th 1794, 1803, fn. 9.) The trial court has a "fiduciary responsibility" as the guardian of the absentee class members' rights to decide whether to apprcwe a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally certified for...

Excerpt: ...emurrers to the seventh, eighth, and ninth causes of action as to all defendants, with leave to amend only as to Beau and Sunshine Pennington. To sustain the demurrers to the fifth and eleventh causes of action, without leave to amend. Plaintiff is granted 10 days' leave to file the Third Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To overrule the motion t...

Excerpt: ...s or implied contract; (2) the claim is for a fixed or readily ascertainable amount of $500.00 or more, measurable by reference to the contract itself and based upon a computation that is reasonable and certain; and (3) not secured by an interest in real property. (Code Civ. Proc., S 483.010(a).) (CIT Group Equipment Financing, Inc. v. Super DVDI (2004) 115 Cal.App.4th 537, 541.) The plaintiff must at least establish a prima facie case. If the de...

Excerpt: ... as to injunctive relief, with leave to amend. Plaintiffs are granted 10 days' leave to file the Second Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Demurrer The function of a demurrer is to test 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...

Excerpt: ...st possess and exercise "that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances." (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, in any medical malpractice action, the plaintiff must establish: "(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a brea...

Excerpt: ...rbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respndent to arbitrate the controversy it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been wa-ved by the petitioner; or (b) Grounds exist for the revocation o...

Excerpt: ...eement for sale of the subject property, plaintiff has not proven that it only needs to pay only $29,941.24 in order to pay off the remaining balance under the agreement and receive title to the property. Plaintiff's evidence shows that the parties agreed that plaintiff would purchase the property for $250,000, with a right of first refusall to buy the remaining properties owned by the Virginia Shubin Barnett Living Trust for $12,500. (Exhibit D ...

Excerpt: ...and (f).) Any amended pleading shall be filed within 20 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. Explanation: Demurrer A party may file a general demurrer on claims that "[t]he pleading does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., S 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [MA demurrer can b...

Excerpt: ...djudication, of the first amended complaint against it. The court intends to deny the motion entirely. Defendant has not met its burden in addressing every theory of liability pled against it in the first amended complaint. Even if defendant had met fts burden, plaintiff has demonstrated there is a genuine dispute of material fact, notwithstanding the "factually void" discovery responses relied upon by defendant served in response to discovery re...

Excerpt: ... Fresno ("County") concedes that the claims of both Petitioners Aksel Joseph Vega and the Estate of Alfonso A. Vega fall within separate statutory exemptions. (See Opp. at pp. 8:5 — 9:15 [citing Gov. Code, S 946.6, subds. (c)(2) and (c)(6).) Therefore, the petition is granted as to petitioners Aksel Joseph Vega and the Estate of Alfonso A. Vega, Jr. Petitoners Janice Palacios and Aksel Joseph Vega (parents of decedent) " '[Tlhe filing of a clai...

Excerpt: ...nt. To grant the request for judicial notice. To sustain the general and special demurrers with ten (10) days leave to amend, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Plaintiff filed a first amended complaint and notice of non-opposibon on August 22, 2023. Opposition was due nine (9) court days prior to hearing, per Code of Civil Procedure, Section 1005(b). T...

Excerpt: ..., Inc. Explanation: Cross-defendant Induser Poniente has moved to dismiss or stay the action on the ground that California is an inconvenient forum, as the parties have already agreed to try the action in El Ejido, Spain. under Code of Civil Procedure secton 410.30, "When a court upon motion of a party or its own moton finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay o...

Excerpt: ... a parallel criminal proceeding should be made in light of the particular circumstances and competing interests involved in the case. This means the decision maker should consider the extent to which the defendant's Fifth Amendment rights are implicated. In addition, the decision maker should generally consider the following factors: (1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it...

Excerpt: ...s members, pursuant to Code of Civil Procedure section 384, subdivision (b), so that the judgment can be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before August 1, 2024. Explanation: 1. Final Class Approval The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous...

Excerpt: ...the demurrers without leave to amend. The prevailing parties are directed to submit to this court, within seven days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Plaintiff Abel Perez filed a first amended complaint (FAC) against defendants Watchtower Bible and Tract Society of New York, Inc., Watch Tower Bible and Tract Society of Pennsylvania, and Christian Congregation of...

Excerpt: ...her upcoming hearings. Explanation: Quashing Service of Summons The proof of service purporting to serve moving defendant shows service by substituted service on December 10, 2020, but it was not filed until June 20, 2023. Defendant filed this motion as soon as it learned plaintiff intended to treat this service as valid, even though defense counsel had spoken with plaintiff and informed her that defendant believed it was invalid and that she nee...

Excerpt: ...her upcoming hearings. Explanation: Quashing Service of Summons The proof of service purporting to serve moving defendant shows service by substituted service on December 10, 2020, but it was not filed until June 20, 2023. Defendant filed this motion as soon as it learned plaintiff intended to treat this service as valid, even though defense counsel had spoken with plaintiff and informed her that defendant believed it was invalid and that she nee...

Excerpt: ... order. Explanation: Meet and Confer Under Code of Civil Procedure section 430.41, "[blefore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer." (Code Civ. Proc., S 430.41, subd. (a).) "As par...

Excerpt: ...s for lack of standing pursuant to the United States Supreme Court's decision in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, 1925 ("Viking River"). The court intends to grant the petition to compel the arbitration of plaintiff's individual PAGA claims, however, the representative PAGA claims are stayed. Plaintiff Ariel Reyes was employed by defendant Mad Duck Brewing, LLC from November 2021 through January 2022 as a cook. On July...

Excerpt: ... this minute order. Explanation: Plaintiff filed her original complaint which, stated eight (8) causes of action: religious discrimination (FEHA, Gov. Code S 12940(a)), harassment (FEHA, Gov. Code S retaliation (FEHA, Gov. Code S 12940(h)), hostile work environment (Gov. Code S 12940(k)), failure to engage in interactive process re accommodation (Gov. Code S failure to reasonably accommodate (Gov. Code S 12940(1)(1)), violation of labor code S 11...

Excerpt: ...ettlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors .„." (Code Civ. Proc., S 877.6, subd. under Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488 (Tech-Bilt), whether the settlement falls within the parameters of the good faith "ball park" is evaluated from the information available at the time of settlement, "including a rough approximation of plaintiffs' total recovery an...