Excerpt: ...laintiff has the initial burden of showing the essential facts of jurisdiction, that is the facts requisite to an effective service. (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; Dill v. Berquist Const. (1994) 24 Cal.App.4th 1426, 1439‐ 40.) This may be done through presentation of declarations, with opposing declarations received in response. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.) Furthermore, filing a proof of...

Excerpt: ...-24; page 1 9, lines 6-11; and page 19, line 27, with leave to amend. (Code Civ. Proc., § 436; Civ. Code, § 3294.) Plaintiff is granted 20 days' leave to file the third amended complaint. The time to file the third amended complaint will run from service by the clerk of the minute order. All new allegations in the third amended complaint are to be set in boldface type. Explanation: Demurrer Retaliation/Discrimination Defendants, India Oven, I...

Excerpt: ...rring defendant. Explanation: The plaintiff, Sergio Alvarez, filed a three -page form complaint against the defendant, Iron Workers Local 155. The defendant demurs to the complaint on the grounds that the statute of limitations has expired and the complaint lacks the necessary allegations to state a cause of action. Meet and Confer The parties have complied with the obligation to meet and confer. Request for Judicial Notice Code of Civil Procedu...

Excerpt: ...rstores, Inc., Carmax Business Services, LLC, and Safeco Insurance Company of America are directed to file an Answer within 10 days of service of the minute order by the clerk. Explanation: Demurrer Defendants Carmax Auto Superstores, Inc., Carmax Business Se rvices, LLC, and Safeco Insurance Company of America (collectively “Defendants”) generally demur to the entirety of the Complaint by plaintiff Parminder S. Kaler (“Plaintiff”) for f...

Excerpt: ...tence in the w rongful death cause of action which reads, “Plaintiffs also contend that these defendants' negligence was not only simple, but also gross, and that punitive and exemplary damages should be awarded against all defendants named in the accompanying punitive d amages attachment;” and the entire exemplary damages attachment. Leave to amend is denied. The motion is denied as to the allegations of plaintiff's alternative theory of lia...

Excerpt: ...sire to a mend, the First Amended Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should plaintiff elect not to file an amended pleading within that time period, demurring defendants shall file responsive pleadings within twenty (20) days from the date of this order. Explanation: In deciding a demurrer, the court is guided by well -established principles that the test is whe...

Excerpt: ... FAC alleges two ca uses of action, for premises liability, and general negligence, based on Plaintiff's use of a recreational area on October 30, 2018, in the prison, wherein Plaintiff alleges having stepped into a gopher hole causing injury. A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigro...

Excerpt: ...425.10, subd. (b).) But the defendant may, at any time, serve a request on plaintiff for a Statement of Damages (mandatory Jud. Counc. Form CIV -050) setting forth the nature and amount of damages being sought. (Code Civ. Proc., § 425.11, subd. (b).) Once such a d emand is served, plaintiff has 15 days to serve the responsive statement. If that response is not served, defendant may file a noticed motion and petition the court to order plaintiff...

Excerpt: ...ation: Attorney Affidavit of Fault: 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 negle ct.” (Code Civ. Proc. § 473, subd. (b).) “[W]henever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an...

Excerpt: ...ce of entry of this order in all actions, properly captioned with all case names and numbers. Other than this, all further documents shall be filed only in the lead case. The Mandatory Settlement Conference on July 25, 2024, Trial Readiness on August 23, 2024, and Jury Trial on August 26, 2024 are vacated. The court sets a Case Management Conference on 5/14/2024 at 3:30 p.m. in Department 403 to schedule a new trial date. Zoom appearance is auth...

Excerpt: ...n pend ing arbitration. Pursuant to the Federal Arbitration Act (“FAA”), A written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (...

Excerpt: ...Procedure section 426.50 in support of her motion to amend, section 426.50 only applies to motions to amend crosscomplaints. Code of Civil Procedure section 426.26 is part of Article 2 of Title 6 of Part 2, which sets forth the procedures applicable to compulsory cross -complaints. Therefore, section 426.50 is not the applicable code section when seeking leave to amend a complaint. The correct code section is Code of Civil Procedure section 473, ...

Excerpt: ...ldface type. Explanation: Defendants IEC Corporation and IEC/AAI Holdings, Inc. dba UEI College (hereinafter, together “UEI College”) demur to the fourth, sixth and seventh causes of action alleging fraud, negligent misrepresentation and intentional misrepresentation on the ground that plaintiffs fail to state facts sufficient to state a cause of action. The essential elements of a count for intentional misrepresentation are (1) a misrepresen...

Excerpt: ...tion: D efendant American Family Connect Property & Casualty Insurance Company (“Defendant”) specially demurs the second cause of action for breach of contract of the Complaint by Plaintiffs Rawiah Alqadhi, and Akram Alqadhi, Sarah Alqadhi and Sumpula Alqadhi, by and through their guardian ad litem, Rawiah Alqadhi (collectively “Plaintiffs”) on the grounds of uncertainty. Defendant further generally demurs to the second cause of action fo...

Excerpt: ...valid arbi tration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) “When presented with a petition to compel arbitration, the initial issue before the court is whether an agreement has been formed.” (Diaz v. Sohnen Enterprises (2019) 34 Cal.App.5th 126, 129.) Then, “[o]nce the moving party has satisfied its burden, the litigant opposing arbitration must demonstrate grounds which require t...

Excerpt: ...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 prerequisite to invoking the power of the court to...

Excerpt: ...s entered into after a verdict and judgment were entered. Explanation: Under Code of Civil Procedure section 877, “Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdi ct or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, … it shall have the following effect: … It shall discharge the party to whom it is given f...

Excerpt: ...1. Explanation: First, while plaintiff relies on Code of Civil Procedure section 473.5, subdivision (a), to support her motion, that provision of law does not apply here. That provision states that, “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or 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...

Excerpt: ...ust provi de affidavits and other authenticated documents demonstrating competent evidence of jurisdictional facts. (BBA Aviation PLC v. Superior Court (2010) 190 Cal.App.4th 421, 428 -429.) If this is met, the defendant then has the burden of demonstrating that the exercise of jurisdiction would be unreasonable. (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) California courts may exercise personal jurisdiction over out -...

Excerpt: ...n: Motions for leave to amend the pleadings are directed to the sound discretion of the trial court. “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 to allow amendments will usually be exercised in favor of perm...

Excerpt: ...plaint, w ithout leave to amend. (Code Civ. Proc., § 430.010, subd. (e).) If oral argument is timely requested, such argument will be entertained on Wednesday, April 17, 2024, at 3:30 p.m. in Department 501. Explanation: Each defendant demurs to plaintiff's Second Amended Complaint, which alleges a single cause of action for medical malpractice. Defendants all contend that the cause of action is barred by the applicable statute of limitations un...

Excerpt: ...enteri a in light of the dismissal entered November 17, 2023 as to this defendant. Explanation: No Continuance/Extension Plaintiff, after the time his opposition was due, has filed a request for a continuance or extension of time to file his opposition. This req uest was filed as a notice and motion, without a new hearing date attached to said notice. In addition to procedural issues with this request, the request does not appear well founded....

Excerpt: ...efing is authorized to address the rights and interests of the parties in the subject real property. Defendant Christopher S. Kelley may file a supplemental opposition no later than 5:00 p.m. on May 3, 2024. Plaintiff Amy L. Knight may file a supplemental reply no later than 5:00 p.m. on May 9, 2024. If oral argument is timely requested, such argument will be entertained on Wednesday, April 17, 2024, at 3:30 p.m. in Department 501. Explanation...

Excerpt: ...dant and cross -co mplainant Mighty Mart, Inc. (“Mighty Mart”) (collectively, “defendants”), for a total fee award of $188,188.00 against plaintiff and cross -defendant Morteza Javaherie (“plaintiff”). To deny an award of costs, without prejudice. Explanation: Defendants joi ntly seek an award of attorney fees pursuant to Civil Code section 1717 following a court trial on plaintiff's first amended complaint and defendants' cross -com...

Excerpt: ... requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769, subd. (d).) “If the court grants preliminary approval, its order must include the time, date, and place of the final approval hearing; the notice to be given to th e class; and any other matters deemed necessary for the proper conduct of a settlement hearing. (Cal. Rules of Court, Rule 3.769, subd. (e).) “If the court has certified the action as a ...

Excerpt: ...ose of approving the settlement. There is no reason for the court to reconsider its decision granting certification of the class. Therefore, the court certifies the class for the purpose of final approval of the settlement. 2. a. Settlement Legal Standards “Wh en, as here, a class settlement is negotiated prior to formal class certification, there is an increased risk that the named plaintiffs and class counsel will breach the fiduciary ob...

Excerpt: ...3 :30 p.m. in Department 501. No later than Thursday, April 18, 2024, defendant Nale is to provide a supplemental brief addressing the portions of the opposition for which he did not have timely service. To deny the Kubota defendants' motion for summary jud gment. To deny summary judgment as to Pioneer Farm Equipment Co. Explanation: Evidentiary Objections For plaintiffs' evidentiary objections numbers 1 -3, these were not dispositive to the moti...

Excerpt: ...summary ju dgment. Specifically, plaintiff seeks to set aside (1) the court's order denying the January 24, 2024, ex parte application to continue the hearing for summary judgment pursuant to Code of Civil Procedure section 437c, subdivision (h); (2) the court's deni al of plaintiff's untimely request for oral argument on the January 25, 2024, motion for summary judgment; (3) the January 25, 2024, order granting defendants' motion for summary ju...

Excerpt: ...for preference and continue the hearing on plaintiff's motion for preference to Friday, April 12, 2024 at 10:00 a.m. in Dept. 501 to allow for the submission of admissible evidence. (Code Civ. Proc. §36, subd. (d).) To grant plaintiff's ex parte application to serve deposition notices fewer than 20 days after service of summons. (Code Civ. Proc. § 2025.210, subd. (b).) To deny without prejudice plaintiff's motion to use deposition testimony at ...

Excerpt: ...ithin 10 days of the date of service of this order. Explanation: Under Code of Civil Procedure section 473, subdivision (a), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding b y adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or de...

Excerpt: ...��arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Market Ins. Corp. v. Integrity Ins. Co. (1987) 188 Cal. App. 3d 1095, 1098, internal citations omitted.) Similarly, cases applying Federal Arbitration Association rules note that, “ ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration ...

Excerpt: ...mely ap plication, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.” (Code Civ. Proc., § 387, subd. (d)(2).) “‘If proper procedures are followed [citation], the court has discretion to permit a nonparty to intervene in litigation pending between others, provided: [¶] The nonparty has a direct and im...

Excerpt: ...fraud cause of action (cause of action “2B”), for failure to state facts sufficient to constitute a cause of action, without leave to amend. To sustain the demurrer to the slander cause of action, without leave to amend. To deny the motion to strike the allegations of paragraphs 11, 12, 19, and 20. To grant the motion to strike paragraphs 16, 17, 21, 22 (second sentence only), and 38 (first sentence only) from the first amended complaint. T...

Excerpt: ... of the service of this order. All new allegations shall be in boldface. Explanation: Demurrer Defendant GM demurs to the fifth cause of action for "Fraudulent InducementConcealment” on the basis that it is barred by the three -year statute of limitations. (Code Civ. Pr oc. § 430.10, subd. (e).) Plaintiff purchased a 2020 Chevrolet Silverado 1500 truck on February 8, 2020 and this action was not filed until May 11, 2023. Defendant conten...

Excerpt: ...st 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 has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's p ossible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint aga...

Excerpt: ...dants , without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) To continue plaintiff's motion for leave to file the Fifth Amended Complaint to Wednesday, June 5, 2024, to allow time for the limited purpose of allowing plaintiff to lodge a revised propo sed pleading, deleting any and all reference to defendants Hmong Cultural New Year Celebration, Inc., Mitch Herr, Vilay Lee, Cher Yang, Xang Moua, Kayasit Ly, Vang Chong Thao, Michael He...

Excerpt: ... of the min ute order, a proposed judgment dismissing the first amended complaint as to the demurring defendant. Explanation: Plaintiff, S.C., sued the County of Fresno (County), KTDA Group Home, Inc. (Facility), and Does 3 through 25, in a revival action under Cod e of Civil Procedure section 340.1. S.C. alleges he was sexually abused and assaulted in foster care when he was minor, while under the defendants' legal custody, care, and contro...

Excerpt: ...third an d fourth causes of action, without leave to amend. Defendant is directed to submit to this court, within 7 days of service of the minute order, a proposed judgment dismissing the third and fourth causes of action as to this defendant. Explanation: The fun ction 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 has...

Excerpt: ... as it pertains to punitive damages, specifically on page 3, Item No. 14(a)(2), without leave to amend. (Gov. Code, § 818.) Plaintiffs are granted 20 days' leave to file the Second Amended Complaint. The time in which the Second Amended Complaint can be amended will run from service by the clerk of the minute order. All new allegations in the Second Amended Complaint are to be set in boldface type. Explanation: Demurrer Plaintiffs' operative c...

Excerpt: ...ded Complaint. The time in which the First Amended Complaint can be amended 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. Explanation: Defendants demur to each cause of action asserted in the complaint for failing to state facts sufficient to state a claim and uncertainty. First Cause of Action – Discrimination Government Code section 12940, subdivision...

Excerpt: ...rst Amended Complaint (“FAC”) without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) To grant JPMorgan Chase and Co. and JPMorgan Chase Bank, N.A.'s Motion for Judgment on the Pleadings on the FAC (joined by U.S. Bank N.A.) without leave to amend. (Code Civ . Proc., § 438.) To grant plaintiff's motion to substitute Bank of America, N.A. (“BANA”) for ReconTrust Company, N.A. (Code Civ. Proc., § 368.5; Corp. Code, § 1107, subd....

Excerpt: ..., a nd 71 of the complaint. To deny the motion to strike the “Introduction and Summary of Case” from the complaint. To grant the motion to strike the references to attorney's fees from paragraphs 33, 38, 44, 52, 58, 64 of the complaint, and the prayer for re lief on the second cause of action, paragraph 8, the prayer for relief on the third cause of action, paragraph 7, the prayer for relief on the fourth cause of action, paragraph 8, the pra...

Excerpt: ...om the Complaint, defendant has not provided any legal authority or argument to support the motion to strike. Indeed, defendant only briefly mentions the prayer for attorney's fees in the notice of motion, and never mentions attorney's fees in its memo of p oints and authorities at all. Therefore, the motion to strike the prayer for attorney's fees is unsupported by any legal authorities or argument, and the court intends to deny the motion. Sec...

Excerpt: ... grant defendants Fresno County Economic Opportunities Commission and Brian Angus's motion for dismissal. Defendants Fresno County Economic Opportunities Commission and Brian Angus are directed to submit a proposed judgment within five days of service of the minute order consistent with the order. To deny the motion for judgment on the pleadings of the entirety of the second amended complaint. To grant the motion to bifurcate trial into a liabil...

Excerpt: ... of law. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party's papers are construed strictly and the opposing party's liberally, and “any doubts as to the propriety of granting the moti on [are resolved] in favor of [the opposing party].” (Ibid.) Defendant contends that a pre -fire transaction discharged plaintiffs' loan and effectively terminated their insurable ...

Excerpt: ...he court previo usly denied the motion on the basis that defendant did not meet its burden to establish the independent contractor relationships between the parties. Defendant now moves for summary judgment or, alternatively, summary adjudication on the issue of its duty to plaintiffs with evidence obtained after the court ruled on the initial motion. (Code Civ. Proc. § 437c, subd. (f)(2).) Plaintiffs objection to hearing the second motion on it...

Excerpt: ...in the amount of $1,605.00, to be paid within twenty (20) calendar days from the date of service of the minute order by the clerk. Explanation: Unverified Responses Resulting in Motions to Compel A propounding party may move for an order compelling response to its propounded interrogatories and/or demand. (Code Civ. Proc., §§ 2030.290, 2031.300.) For a motion to compel initial responses, no meet and confer is required. All that needs to be sho...

Excerpt: ... (1967) 66 Cal.2d 738, 746.) An order staying discovery until expiration of the criminal statute of limitations allows plaintiff to prepare his or her action “while alleviating [defendant's] difficult choice between defending either the civil or criminal cas e.” (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.) Fifth Amendment - parallel civil and criminal actions Pursuant to both the United States and California constitutions,...

Excerpt: ...der the Private Attorney General Act (“PAGA”) as defined by Labor Code section 2698 et seq., on behalf of herself and all aggrieved employees. Defendant Family Tree Farms, Inc. (“Defendant”) now seeks an order compelling Plaintiff to private arbitration of her in dividual claims, to dismiss the class action components, and to stay the representative portion of the PAGA claim. A trial court is required to grant a motion to compel arbitrat...

Excerpt: ... 1207.) The cou rt does not decide the merits of the issues, but merely discovers, through the medium of affidavits or declarations, whether there are issues to be tried and whether the parties possess evidence that demands the analysis of a trial. (Melamed v City of Long Beach (1993) 15 Cal.App.4th 70, 76; Molko v Holy Spirit Ass'n (1988) 46 Cal.3d 1092, 1107; Schwoerer v Union Oil Co. (1993) 14 Cal.App.4th 103, 110.) In short, the motion is...