Excerpt: ...ing the court to “issue a TRO…and set the matter for hearing on Motion for Preliminary Injunction.” These are at odds with each other, and both are wrong, process‐wise. As for the Notice of Motion, a TRO and the preliminary injunction are never issued simultaneously; a TRO is simply the injunction issued prior to a hearing on an Order to Show Cause (OSC) re preliminary injunction. As for the Memorandum, it separates issuance of the TRO an...

Excerpt: ...dment to any pleading[.]” (Code Civ. Proc. §473(a)(1).) “[I]t is a rare case in which a court will be justified in refusing a party leave to amend [its] pleadings so that he may properly present [its] case.” (Morgan v. Superior Court of Cal. In and For Los AngelesCounty (1959) 172 Cal.App.2d 527, 530, citation and quotation marks omitted.) Accordingly, leave to amend should be “liberally granted as long as there is no timeliness problem ...

Excerpt: ...cted Plaintiff's initial proof of service on Defendant on July 16, 2018. A second proof of service was filed on October 5, 2018, after entry of the default on September 27, 2018. Defaults are disfavored, and any doubts existing as to setting aside a default should be resolved in favor of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) Reversal is particularly appropriate where relieving the default will not seriously ...

Excerpt: ...ses are to be given under oath, without objections and without the limit to “information presently available to and specifically known to this responding party.” The responses are to include all information sought for persons who are not current employees, omitting only address and telephone information for those who are current employees. Interrogatories Nos. 118 and 119: to overrule the burdensome and relevancy objections, but to sustain th...

Excerpt: ... Civil Procedure § 437c(c).) If the defendant carries this initial burden of production, the burden of production shifts to plaintiff to show that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 852.) “‘Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” (Lopez v. Superior Court (1996) 45 Cal.App....

Excerpt: ...ice of this minute order. Explanation: 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 anal...

Excerpt: ... is granted 10 days' leave to file its First Amended Answer, which will run from service by the clerk of the minute order; new allegations/language must be set in boldface type. To overrule all other special and general demurrers. To deny the motion to strike in its entirety. Explanation: Demurrer General Demurrers Plaintiff raises general demurrers to 44 of the affirmative defenses based on Code of Civil Procedure section 430.20, subdivision (a)...

Excerpt: ...on motion of a party, after notice and hearing, make an order…that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case…. Similarly, Code Civ. Proc. § 1048(b) specifies the court's discretion in regard to bifurcating issues for separate trial: The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may...

Excerpt: ...r of 2012 that she asked Michael Automotive Center to replace the vehicle. The evidence does not support this fact. The support cited is Exhibit 7 to Ms. Bocchini's deposition, which is not authenticated. Ms. Bocchini admitted that she did call, but also testified that she did not seek such from Michael Automotive Center, and she testified affirmatively that she did not request replacement/repurchase from Volkswagen until 2017. (See Defendants' A...

Excerpt: ...e 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 framed by the pleadings; determining whether the moving party has established facts negating th...

Excerpt: ...an be used to: “(a) Strike out any irrelevant, false, or improper matter inserted in any pleading”; or “(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”(Code Civ.Proc. §§ 431.10, subd.(b); 436, subd.(a).) A court will “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their ...

Excerpt: ...the court shall grant the motion only if it completely disposes of the defense. The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defe...

Excerpt: ...plaintiff to answer defense counsel's question regarding the documents she consulted before her deposition. To deny the motion to the extent that defendant seeks to compel plaintiff to provide further responses regarding the redacted responses to requests for production of documents. To grant defendant's request for sanctions against plaintiff, in the amount of $1,950. Plaintiff shall pay sanctions within 30 days. Explanation: First, plaintiff im...

Excerpt: ... to defendant if leave is granted on the eve of trial. “ ‘Code of Civil Procedure section 473, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adv...

Excerpt: ... at 3:30 p.m. in Department 503, as the return time for a report on distribution and possible amendment of the judgment pursuant to Code of Civil Procedure section 384(b). Declarations need be filed by April 17, 2010. To grant attorney's fees in the amount of $250,000, to be distributed 75 percent to the Boucher firm, 17.5 percent to the Selik firm, and 7.5 percent to the Majarian firm. To grant costs in the amount of $8,000 and an incentive awar...

Excerpt: ...te of service of this order. Explanation: Plaintiff has proved up the basic elements of his breach of contract claim, including the existence of a contract between the parties, his performance under the agreement, defendant's breach, and resulting damages. (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.) Plaintiff's evidence shows that he entered into a written contract with defendant in which plaintiff was to provide assistance in obtaining unpa...

Excerpt: ...and may name as respondents any other person bound by the arbitration award. (Code Civ. Proc., §1285.) A petition shall: (a) set forth the substance or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement; (b) set forth the names of the arbitrators; and (c) set forth or have attached a copy of the award and the written opinion of the arbitrators, if any. (Code Civ. Proc., §1285.4.) I...

Excerpt: ...including both its legal description and its street address; 2) all interests the plaintiff has or claims in the property; 3) all interests of record or actually known to the plaintiff, and all persons plaintiff “reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff” (i.e., this includes “persons unknown to be served by publication); 4) the estate as to which p...

Excerpt: ...§ 1987.1; 2020.220.) Patient A shall appear for his deposition within 15 days of the date of service of this order. To deny defendants' request for an evidence sanction barring the use of Patient A's testimony if he fails to appear for his deposition, as there is no statutory authority for such sanctions as to a non‐ party witness. However, Patient A may be subject to other sanctions, including contempt of court, if he fails to appear for his ...

Excerpt: ...right to file this case – as a result of defendant's refusal to pay mediation costs, pursuant to Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87 and Tillman v. Rheingold, Valet, Rheingold, Shkolnik & McCartney (9th Cir. 2016) 825 F.3d 1069. On a procedural note, defendant argues that this court should not consider plaintiff's opposition because the arbitration agreement is governed by the CAA, which requires plaintiff to respond within 10...

Excerpt: ...n.” (Code Civ. Proc. § 1033.5, subd. (c)(4).) All allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and they must be reasonable in amount and actually incurred. (Code Civ. Proc. § 1033.5, subd. (c)(1), (2) and (3).) On motion to tax costs, the initial burden depends on the nature of the costs that are being challenged. [T]he mere filing of a motion to ...

Excerpt: ... agreement of the parties provides for fee shifting. [Citation.] Labor Code section 218.5 requires the awarding of attorney's fees to the prevailing party ‘[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.' This provision awards fees to the prevailing party whether it is the employee or the employer; it is a two‐way fee‐shifting provision. However, Labor Code secti...

Excerpt: ...les of Court, Rule 3.1350(b).) This action was filed by plaintiff Cold Springs against Wells Fargo only, contending that plaintiff is the only entity with right to the funds on deposit with Wells Fargo in accounts XXXX‐1634, XXXX‐5109, XXXX‐8420, and XXXX‐8655. Wells Fargo filed a Cross‐Complaint in Interpleader on July 30, 2018, naming Cold Springs and Santa Rosa (the only other tribe claiming an interest in the accounts) as cross‐de...

Excerpt: ...sion (f)(2). Explanation: Under Code of Civil Procedure section 437c, subdivision (f)(2), “[a] party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc., § 437c, ...

Excerpt: ...court within 5 days of the clerk's service of this minute order. Explanation: 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 de...