Excerpt: ...nd 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 justifying judgment in the movant's favor; and determining whether the opposition d...

Excerpt: ...gence cause of action listed on the First Amended Complaint, Judicial Council Form Item 10, box (b). To deny defendant's motion to strike the legal malpractice cause of action listed on the First Amended Complaint, Judicial Council Form Item 10, box (f). To grant, with leave to amend, defendant's motion to strike the portions of the First Amended Complaint referencing to Exhibits A and B, on the document titled “AMENDED COMPLAINT #1, Causes of ...

Excerpt: ... Civil Procedure section 418.10, subdivision (a). In opposition, plaintiff notes that defendant merely challenges jurisdiction based on a lack of capacity to be sued. Plaintiff argues that a challenge based on capacity is not jurisdictional, and therefore the motion to quash must be denied. The purpose of Code of Civil Procedure section 418.10 is to provide a defendant upon whom service of summons has been made a means to serve and file a notice ...

Excerpt: ...n. Explanation: “Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) In addition, “judges shall have the responsibility to eliminate delay in the progress and ultimate resolution of litigation ….” (Gov. Code, § 68607.) Furthermore, “[e]very court shall have the power to do all of the fo...

Excerpt: ...planation: As stated in CCP Sec. 430.10(f), a pleading is “uncertain” if it is ambiguous and/or unintelligible. Ordinarily, a demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. [Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 6...

Excerpt: ...tial function “is not to try any factual issues, but to ascertain whether any triable issues of fact exist.” (Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 597.) Accordingly, the trial court does not make findings of fact in determining a motion for summary adjudication, and may not grant the motion on its evaluation of weight of evidence or witness credibility, nor may it grant the motion “based simply on its opin...

Excerpt: ...rshba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 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 approve 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 fo...

Excerpt: ...ssary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Accordingly, “the pleadings delimit the scope of the issues, and the function of affidavits, declarations, or other supporting evidence is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1132.) In ruling on...

Excerpt: ... sustain, with leave to amend, defendants' demurrer to the second cause of action as to both plaintiffs, for failure to state sufficient facts to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subd. (e), (f).) To sustain, with leave to amend, defendant Linda Bowman's (“Bowman”) demurrer to the third and sixth causes of actions as to Caro, for failure to state sufficient facts to state a cause of action and uncertainty. ...

Excerpt: ...motor vehicle; general negligence; and tort of a public entity. Plaintiff alleges that on October 6, 2020, plaintiff was a passenger on a FAX bus, which is alleged to be owned, supervised, managed, maintained, equipped, repaired, controlled and/or operated by the City. That bus, the Route 9 Shaw bus driven by defendants' employee, was carelessly and negligently controlled and operated, leading the bus to be driven at an accelerated, high rate of ...

Excerpt: ...ract against defendants Mike Garcia and Silvia Garcia (the Garcias); and trespass against Jose Ventura Rivera Moreno. On July 11, 2018, Rivera Moreno filed a cross‐complaint for indemnification. Following a two‐day court trial, this court issued a proposed statement of decision. The proposed statement of decision found that plaintiffs' three claims against the Garcias failed, and that plaintiff's claim against Rivera Moreno failed. Because pl...

Excerpt: ...on motion, may enter judgment pursuant to the terms of the settlement.” It also provides that the parties may request that the court “retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc. § 664.6.) Due to the summary nature of the statute authorizing judgment to enforce a settlement agreement, strict compliance with its requirements is a prerequisite to in...

Excerpt: ...at justify reconsideration of the order. (Code Civ. Proc. § 1008, subd. (a).) “A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212, internal citations omitted.) “Case law after the 1992 amendments to section 1008 has relaxed the definition of ‘new or different facts,' but it is still ...

Excerpt: ...governmental immunity. 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. Merchants Collection Assn. (1972)...

Excerpt: ...ED AT 3:00 PM. Explanation: Plaintiff has sued the State of California for negligence, negligent supervision, and negligence per se. However, since the State is a public entity, it is immune from liability unless there is a statute that imposes a duty of care on it. (Gov. Code § 815, subd. (a).) Thus, in order to state a claim against a public entity, plaintiff must allege that the there was a statute that imposed a duty on the entity to protect...

Excerpt: ...ther witnesses to the alleged property sale agreement. Once plaintiff has obtained discovery responses, the court will hear the merits of the motion to expunge. Explanation: In its order issued after the last hearing, the court was concerned that plaintiff had not had a chance to respond to Ms. Barnett's reply evidence, which raised serious concerns about the credibility of plaintiff's version of events and cast doubt on whether plaintiff was lik...

Excerpt: ...ving party, a defendant bears the initial burden of proof to show that plaintiff cannot establish one or more elements of their causes of action or to show that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and this must be shown via specific f...

Excerpt: ...ney's fees. (Civil Code § 1717.) To deny defendant John Wash's motion to strike the entirety of plaintiff's motion. However, the court intends to reduce the amount of fees to be awarded to plaintiff to $6,950. Defendant John Wash shall pay attorney's fees to plaintiff within 30 days of the date of service of this order. Explanation: Under Civil Code section 1717, subdivision (a), “In any action on a contract, where the contract specifically pr...

Excerpt: ...ions may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” (Ibid.) “[T]he court shall order the notice expunged if the court finds that the pleading on which the notice is b...

Excerpt: ...osian Raisin Packing Company, Inc. The causes of action are brought pursuant to the Private Attorneys General Act (PAGA) Labor Code section 2698, et seq. Plaintiff brings the action on behalf of herself and other aggrieved employees of defendant who were employed by defendant between March 17, 2020 and May 21, 2021 as packers, line workers or other similar positions. The complaint alleges six causes of action, all are Violations of PAGA, Labor Co...

Excerpt: ...on any terms as may be proper, allow a party to amend any pleading ... ” (Code Civ. Proc., § 473, subd. (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.) Cal. Rules of Court, Rule 3.1324 provides that a motion to amend must: (1) include a copy of the proposed amendment, (2) state what allegations in the previous pleading are proposed ...

Excerpt: ... sufficient to constitute a cause of action, as discussed in detail below. (Code Civ. Proc. § 430.10, subd. (e).) To grant the motion to strike the portion of paragraph 17 of the first amended complaint which states, “I am familiar with the owner of Pacific Grain & Foods, LLC, Lee Perkins, the petitioner in this case, as I have witnessed him engage in an unprofessional and aggressive manner toward his employees that was shocking and unforgetta...

Excerpt: ...ontacts with California to justify imposing personal jurisdiction over it. The hearing on Standard's motion will be continued to April 12, 2022 at 3:30 p.m. in Department 403. Explanation: “First, when jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts' exist between defendant and the forum state to justify imposition of personal jurisdiction. The plaintiff ha...

Excerpt: ... purchased wine grapes that were allegedly unusable because of “smoke taint” following the 2017 wildfires in Northern California. Plaintiff contends the smoke taint destroyed the marketability of much of plaintiff's wine and juice, resulting in $14.79 million in actual losses and anticipated future losses of $86.16 million. Four causes of action remain: (6) Negligence against defendant Dalena‐Benick; (7) Breach of Fiduciary Duty against def...

Excerpt: .... To grant defendants' motion for summary adjudication of the third cause of action for defamation. (Ibid.) To grant plaintiff's motion for leave to amend the complaint. (Code Civ. Proc. § 473, subd. (a).) Plaintiff shall serve and file her first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Motion for Summary Judgment/Adjudication: First, defendants move for summary...

Excerpt: ...an Ambulance, et al.'s motion to strike plaintiffs' memo of costs. To grant the motion to tax certain items in the memo of costs, as set forth below. Explanation: 1. Plaintiffs' Motion to Strike or Tax CRNA Bassi's Memo of Costs: Under Code of Civil Procedure section 1032, subdivision (b), “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Cod...

Excerpt: ... party must draft and submit to the court a protective order limiting the disclosure of plaintiff's documents to defendants' counsel and experts, and requiring the destruction of the documents at the end of these proceedings. Plaintiff shall serve further responses in full compliance with Code of Civil Procedure, sections 2031.210 – 2031.230, without objections, and production of all responsive documents no later than 30 court days from the dat...

Excerpt: ...f the trial court, in its discretion, requires an undertaking and the undertaking is not given, in any of the following cases: (1) Appellant was found to possess money or other property belonging to respondent. (2) Appellant is required to perform an act for respondent's benefit pursuant to judgment or order under appeal. (3) The judgment against appellant is solely for costs awarded to the respondent …” (Code Civ. Proc., § 917.9, subd. (a)....

Excerpt: ...rican Investments to provide further responses to Form Interrogatories – Employment, as specified below. Defendants shall serve their responses no later than 20 court days from the date of this order, with the time to run from the service of this minute order by the clerk. To impose monetary sanctions in favor of Plaintiff Labor Commissioner, and against Sharon Rassamni in the sum of $333.00, Liberty Financial Group in the sum of $333.00, and G...

Excerpt: ...mber 22, 2020 approval of the petition to list the western Joshua tree1 as a candidate species under the California Endangered Species Act, (Fish & G. Code, § 2050, et seq. [“CESA”2 ].) For the reasons set forth below, this court intends to leave the Commission's threshold approval undisturbed and deny the petition for writ of mandate. (Code Civ. Proc., § 1094.5.) Statutory Background The California Endangered Species Act (“CESA”) conta...

Excerpt: ...s. (Code Civ. Proc. § 2033.280.) The discovery cutoff dates and discovery motion cutoff dates had already run before the discovery requests were served, so plaintiff's motion is untimely and must be denied. (Code Civ. Proc. § 2024.020.) Explanation: Under Code of Civil Procedure section 2033.280, If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests...

Excerpt: ... to the declaration of Robert Offerman, paragraphs 1, 2, 8, 9, and 15. All other objections are overruled pursuant to Code of Civil Procedure, section 437c, subdivision (q). To deny moving defendants' motion for summary judgment. (Code Civ. Proc., § 437c, subd. (c).) To grant moving defendants' motion for summary adjudication as it relates to the second and third causes of action. (Code Civ. Proc., § 437c, subd. (f).) The motion is denied as it...

Excerpt: ...r's expert trial witnesses to the following extent: [¶] (a) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.” (Code Civ. Proc., § 2034.210, subd. (a).) “The exchange of expert witness information shall incl...

Excerpt: ... specified below. To impose monetary sanctions in favor of plaintiff Labor Commissioner, and against A.J. Rassamni in the sum of $333.00, Sharon Rassamni in the sum of $333.00, Liberty Financial Group in the sum of $333.00, and Great American Investments in the sum of $333.00. (Code Civ. Proc., § 2023.010, subd. (f), (h).) Defendants shall pay the sanctions to plaintiff's counsel within 30 days of the clerk's service of the minute order. Explana...

Excerpt: ...t leave to amend. (Code Civ. Proc., § 430.10, subd. (e). Explanation: The court notes that the complaint does not indicate which causes of action alleged are pertaining to each respective defendant. Thus, the court will only rule on this demurrer as to State Farm as to all causes of action. Plaintiff's Standing to Sue: Defendant State Farm demurs to each cause of action, contending that plaintiff has not alleged sufficient facts to state a valid...

Excerpt: ...nder Code of Civil Procedure section 397, subdivision (a) and Government Code section 12965, subdivision (b)(3). Under Code of Civil Procedure section 397, “The court may, on motion, change the place of trial in the following cases: [¶] (a) When the court designated in the complaint is not the proper court.” (Code Civ. Proc., § 397, subd. (a).) There is no express time limit for moving for a change of venue under section 397, and courts sho...

Excerpt: ... Documents, set one, nos. 1‐7 and 10‐12. The motion is denied as to demand nos. 8 and 9. Defendants shall each serve further verified responses without objections and produce all responsive documents to demand nos. 1‐ 7 and 10‐12 within 30 days of service of the order by the clerk. To impose monetary sanctions in favor of plaintiff Labor Commissioner, and against A.J. Rassamni in the sum of $333.00, Sharon Rassamni in the sum of $333.00, ...

Excerpt: ... Inc. (“Toyota”) shall serve verified supplemental responses without objections within 20 days of the date of service of this order. Explanation: On April 29, 2021, plaintiffs propounded its Request for Production of Documents, Set One (“RFPD, Set One”), containing 53 requests, to Toyota. On June 1, 2021, Toyota served its responses, including objections, to each of the 53 requests. On August 31, 2021, plaintiffs requested a Pre‐trial D...

Excerpt: ...and for Inspection of Documents, Set One, is rendered moot by plaintiff's response to the discovery request, served on November 16, 2021. To grant defendant's motion to compel further responses to defendant's Demand for Inspection of Documents, Set Two as to Request Nos. 12‐14 and 16‐24. Plaintiff shall serve further responses in full compliance with Code of Civil Procedure, sections 2031.210 – 2031.230, without objections, and produce all ...

Excerpt: ... days after the ten‐day deadline for filing an amended complaint set by the court's order after it granted the last motion to strike. Under Code of Civil Procedure section 436, subdivision (b), “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: … (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rul...

Excerpt: ...emedies Act claim. (Civil Code § 1781, subd. (c).) Explanation: Motion for Summary Judgment/Adjudication: Defendant argues that plaintiffs' claims are all barred by the statute of limitations, as plaintiffs purchased the subject car in February of 2010, but they did not file suit until June 5, 2019. Defendant points out that plaintiffs' claims are all subject to statutes of limitations of between two and four years, yet plaintiffs did not file t...

Excerpt: ...ion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the statutory time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Appli...

Excerpt: ...es of action. To grant leave to amend as to the second, third, fifth, and sixth causes of action. To deny leave to amend as to the seventh and ninth causes of action. Plaintiff shall serve and file her second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Second Cause of Action: The second cause of action fails to state a valid claim for breach of the implied covenant ...

Excerpt: ...nc., a suspended corporation; Felix Tiscanero; Fruit Valley Harvest, Inc. dba Fruit Valley Harvesting; and Domingo Eustacio Cruz‐Lopez dba De Cruz FLC, to recover loaned monies made between August and September 2021, in the approximate amount of $500,000. Plaintiffs now seek to attach certain real property and farm products as a provisional remedy. No timely opposition was filed. (Code Civ. Proc. § 484.060, subd. (a).) Preliminary Facts Plaint...

Excerpt: ...reble damages, specifically page 8, lines 9‐11 and the prayer on page 9, line 3, with leave to amend. Plaintiff is granted 10 days' leave to file the Second Amended Complaint. The time in which the FAC can be amended will run from service by the clerk of the minute order. Explanation: Defendant moves to strike the language in the First Amended Complaint (“FAC”) seeking exemplary damages pursuant to California Civil Code, section 3294 and tr...

Excerpt: ...arry Wilmoth, Jr. for the benefit of the Harry Wilmoth Sr. and Doris Wilmoth Trust (“Senior Trust”)1 Plaintiff formed in 2006 between William Van Erickson dba Van Erickson Contractor, Junior, and Roxy Lewis. Van Erickson Contractor had previously been in operation since the 1960s. (Verified Complaint, ¶ 6, 10.) The verified complaint alleges that Junior was the trustee of the Senior Trust, and was acting in his capacity as trustee in securin...

Excerpt: ...n from service by the clerk of the minute order. Explanation: Actual Notice and Proof of Service: Where service of summons has not resulted in actual notice to a party in time to defend the action, the court is empowered to grant relief from a default. (Code Civ. Proc., § 473.5.) Pacific asserts that it had no knowledge of the proceeding until after default was entered against it in July 2021. Plaintiffs purported to serve defendant Pacific with...

Excerpt: ...).) Explanation: Summary Judgment/Adjudication A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The moving party bears the burden of showing the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima faci...

Excerpt: ...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.) “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for ...

Excerpt: ...ion of emotional distress; (4) violation of Business and Professions Code section 17200; and (5) wrongful death. Plaintiff is litigating cause of action three [NIED] and five [wrongful death] in her individual capacity. Petitioner, defendant Antonis Antoniou, M.D., now moves to compel arbitration. In opposition, plaintiff argues that the petition at issue should be denied because: (1) pursuant to Code of Civil Procedure section 1281.2, subdivisio...