Excerpt: ...a party has appeared through an attorney, service of papers must be made on the attorney rather than the party. (Code Civ. Proc., § 1015.) Moving papers can be served by personal delivery, mail, express mail, “or another method of delivery providing for overnight delivery.” (Code Civ. Proc., §§ 1013, 1013a.) Proof of service is made by a declaration stating, among other requirements, the method of service used, the person(s) served and the...

Excerpt: .... To grant fees in the amount of $37,500.00 (25% of the fund), costs in the amount of $18,861.12, an incentive award to the named plaintiff in the amount of $5,000.00, and costs to the administrator in the amount of $12,000.00. To approve the amount of the PAGA payment. The amount to be paid to class members is therefore $73,638.88. To set October 20, 2020 at 3:30 p.m. in this department as the date and time for the parties to return to report on...

Excerpt: ...the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Except as otherwise provided by statute, “every action must be prosecuted in the name of the real party in interest . . . .” (Code Civ. Proc. § 367.) If “any person other than a real party in interest brings an action, it is subject to general demurrer. [Citations.]” (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 427.) “In gen...

Excerpt: ...to comply with Code of Civil Procedure §431.30, subdivision (g). In all other respects, the demurrer is overruled. Defendant shall have ten (10) court days from the date of this order to file an amended answer. 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. Supe...

Excerpt: ...rder, a proposed judgment consistent with the court's summary judgment order. Explanation: “[S]ummary judgment law … may be reduced to, and justified by, a single proposition: If a party moving for summary judgment in any action … would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then [it] should prevail on summary judgment.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 8...

Excerpt: ...miss the complaint under Code of Civil Procedure section 581, subdivision (f)(2), which states, “The court may dismiss the complaint as to that defendant when: ... after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” (Code Civ. Proc., § 581, subd. (f)(2).) “The decision to dismiss an action under section 581, subdivisi...

Excerpt: ... subd. (f) [uncertainty] and (g) [uncertain contract claim]. To sustain the demurrer to the second cause of action, without leave to amend. To grant the motion to amend in part, and deny in part: plaintiffs' request to reinstate their three causes of action based on violations of the California Labor Code is denied; plaintiffs' request to add allegations regarding the 2001 Employee handbook in order to support their breach of contract claim is gr...

Excerpt: ... the request for costs, defendant is clearly entitled to an award of its costs as the prevailing party in the action. (Code Civ. Proc. § 1032, subd. (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.”].) Here, defendant has filed its memorandum of costs in the amount of $4,300.69, and plaintiff has not objected to the memorandum or moved t...

Excerpt: ...es, with leave to amend. Explanation: Demurrer “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here...

Excerpt: ...ered to prepare a judgment within ten (10) court days of this order. Note‐ in the event that oral argument is requested, it will be heard at 3:30 p.m. on Thursday, March 19, 2020 in Department 502. Explanation: Petitioner filed his petition on June 2, 2014. Petitioner filed an amended Petition on April 26, 2019. The Amended Petition describes itself as an “Amended Petition for a Writ of Mandate to Discharge Civil Commitment Based on Lack of J...

Excerpt: ...eny all three motions for summary judgment. (Code Civ. Proc. § 437c.) Explanation: Bowman's Motion: Defendant Ashley Bowman moves for summary judgment of the entire complaint, contending that there is no evidence that she breached the standard of care or caused plaintiff's injuries, and that even if there were such evidence, she is statutorily immune from liability in the absence of evidence of gross negligence or bad faith. Under Health and Saf...

Excerpt: ... the existence of an arbitrable controversy, rather than mere conclusions, and must allege not only the existence of the arbitration agreement but “also that the opposing party refuses to arbitrate the controversy.” (Strauch v. Eyring (1994) 30 Cal.App.4th 181, 186; see also Spear v. California State Auto Assn. (1992) 2 Cal.4th 1035, 1041].) Whether an Agreement Exists The party seeking to compel arbitration bears the burden of proving the ex...

Excerpt: ...nd file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.” (Cal. Rules of Court, rule 3.1113, subd. (a).) “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the sta...

Excerpt: ...failure to state facts sufficient to constitute a cause of action as to the individual plaintiffs. (Code Civ. Proc., § 430.10, subd. (e).) To sustain the demurrer to both the successor claim as well as the individual plaintiffs to the seventh cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To grant leave to amend. To deny the motion to strike and grant in part, as discussed below. (Code Civ. Proc., §§ 435, 436.) To grant leave to amen...

Excerpt: ...court, within five days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: The operative pleading, the Second Amended Complaint (“SAC”) alleges five causes of action arising out of the foreclosure of a four‐unit residential property owned by plaintiff: 1. Violation of Homeowners Bill of Rights; 2. Breach of Contract; 3. Breach of covenant of good faith and fair dealing; 4. Ne...

Excerpt: ...d serve its answer to the Second Amended Complaint within 10 days of the clerk's mailing of this minute order. Explanation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its p...

Excerpt: ...party from a judgment, order, or other proceeding taken against him or her as a result of mistake, inadvertence, surprise, or excusable neglect, where the application for relief is made within six months of entry of the judgment, order, or other proceeding. (Code Civ. Proc. §473(b).) Application for relief may be based on either (1) an attorney affidavit of fault, in which event relief is mandatory; or (2) declarations or other evidence showing ...

Excerpt: ...ns are overruled. Explanation: Plaintiff's Evidentiary Objections The job description is not irrelevant, and Jessica Sims' personal knowledge sufficient to authenticate this document can be readily inferred from the fact that she serves as Supervisor of the “Manager, Cash Applications” position. As for the remaining objections, defendant has offered the objected‐to statements as to what other employees said about plaintiff for the nonhearsa...

Excerpt: ...gainst defendant Union Pacific Railroad Company. The claim is brought pursuant to the Federal Employers Liability Act (“FELA”) 45 U.S.C. §51, et seq. Plaintiff is the widow of John R. Jane (“Decedent”) who was an employee of defendant from 1968 to 2010. Plaintiff alleges that Decedent was exposed to various toxic substances and carcinogens and that these exposures gave decedent various forms of cancer. In a single cause of action for neg...

Excerpt: ...ible. (Shaw v. Regents of Univ. of California (1997) 58 Cal.App.4th 44, 52.) However, interpretation of a written document is a question of law for the trial court to determine, only where extrinsic evidence is unnecessary. (Temple v. Velcro USA, Inc. (1983) 148 Cal.App.3d 1090, 1095.) In other words, interpretation is appropriate where the language is clear, understandable and completely unambiguous. (Ibid.) “When the meaning of contractual la...

Excerpt: ...nt of the entire complaint on the ground that there is no evidence that they acted in a grossly negligent manner or in bad faith. They point out that, under Health and Safety Code section 1799.106, “[A] firefighter, police officer or other law enforcement officer, EMT‐I, EMT‐II, EMT‐P, or registered nurse who renders emergency medical services at the scene of an emergency or during an emergency air or ground ambulance transport shall only...

Excerpt: ...tiff shows (1) the basis of his claim and that the plaintiff is entitled to possession of the property claimed; (2) that the property is wrongfully detained by the defendant, the manner in which the defendant came into possession of the property, and (on information and belief) the reason for detention; (3) a particular description of the property and a statement of its value; and (4) the location of the property. (Code Civ. Proc., § 512.010.) 1...

Excerpt: ...ears an overall burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Woodridge Escondido Property Owners Ass'n. v. Nielsen (2005) 130 Cal.App.4th 559, 578.) A plaintiff moving for summary judgment has met its burden of showing that there is no defense to a cause of action if it has proved each element of the cause...

Excerpt: ...SongBeverly – breach of express warranty; (2) violation of Song‐Beverly – breach of implied warranty; and (3) violation of Song‐ Beverly Section 1793.2. In response thereto, defendant General Motors LLC (hereafter “GM”) moves for summary judgement or adjudication. GM makes the same argument with regard to the complaint as a whole, as well as to each cause of action individually. GM argues that prior to litigation, it made a statutoril...

Excerpt: ... Private Attorney General Act (“PAGA”), pursuant to Code of Civil Procedure section 438(b)(2) and (b)(3)(B)(ii). A case management conference will occur at the same time. Explanation: 1. PAGA CLAIM AND SERVICE ISSUE “An employee plaintiff suing, as here, under [PAGA], does so as the proxy or agent of the state's labor law enforcement agencies.” Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal. App. 5th 667, 674. For that re...