Excerpt: ...efault judgment form in conjunction with its application. In addition, plaintiff has not submitted a proposed default judgment for the court's signature. Furthermore, plaintiff has not dismissed the Doe defendants against whom it is not seeking a default judgment. There is also some ambiguity about the requested default judgment. Plaintiff seeks a declaration that its first deed of trust has priority over other claims against the property, based ...

Excerpt: ...There are two categories of evidence plaintiff Jane Doe (“plaintiff”) claims she cannot obtain while the criminal case of defendant Francisco Peña (“Peña”) is pending: (1) answers to deposition questions to which Peña asserted his Fifth Amendment privilege during his November 2018 deposition, and (2) the contents of plaintiff's cell phone which has been in the custody of the Fresno County District Attorney since shortly after Peña was...

Excerpt: ...can attached to Debbie Raven's declaration, except that the submissions need also provide values for each item listed. If such evidence shows any party to this case taking a loss on their one‐third share of the assets, or obtaining a higher percentage than one‐third, briefs explaining why such loss or gain is justified need also be filed. Any such briefing shall be filed by October 10, 2019, and a further hearing will be held on October 24, 2...

Excerpt: ...mend. Defendant Taja Investments, LLC, is granted 10 days' leave to file its answer to the complaint, with the time to run from service by the clerk of the minute order. Explanation: Standing to Sue Defendant begins by arguing that plaintiff does not have legal capacity to sue, and refers to Code of Civil Procedure section 430.10, subdivision (b), but then it argues that plaintiff is not a real party in interest and therefore lacks standing, with...

Excerpt: ...0 days of the date of service of this order. All new allegations shall be in boldface. 3 Explanation: First, to the extent that plaintiff has objected that defendant's demurrer contains a number of typographical errors that render the demurrer overly confusing with regard to which causes of action and parties are at issue, defendant has now filed notices of errata that clarify that the demurrer relates to the first and fifth causes of action for ...

Excerpt: ...ducement), and fourth (intentional infliction of emotional distress) causes of action, and without leave to amend as to fifth (slander of title) and sixth (declaratory relief) causes of action. Plaintiffs are granted 30 days' leave to file the Fourth Amended Complaint, which will run from service by the clerk of the minute order. Explanation:  First Cause of Action: Standing In ruling on a demurrer, the trial court is obligated to look past th...

Excerpt: ...breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal citation and quotation marks omitted.) In the instant action, Plaintiff alleges that he was employed by the State as an inhome caregiver; was a member of the union; was told that when he began work, he would be provided with medical insurance within a few months; and that medical insurance was not provided for over ...

Excerpt: ...t briefing on the issue of a stay. The parties were advised that the court would consider the following factors: the status of the foreign action; the convenience of the parties; the seriousness of the threat of multiple litigation; and the competing interests of the two forums. (Wong v. Tenneco, Inc. (1985) 39 Cal.3d 126; Leadford v. Leadford (1992) 6 Cal.App.4th 571, 575; see Minute Order, filed August 7, 2019, p. 2.) The parties submitted supp...

Excerpt: ...dure section 36, subdivision (a), A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) “U...

Excerpt: ...dants/petitioners are correct that Code of Civil Procedure section 1290.6 requires a party responding to a petition to compel arbitration to serve and file its response within 10 days after service, the Court will consider plaintiffs/respondents' opposition on its merits, as no prejudice to defendants/petitioners is apparent. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847; see also Hoover Community Hotel Development Corp. v....

Excerpt: ...n of bullying, harassment and discrimination based on race by coworker Joyce Kennedy and supervisor Sharon Murphy. Plaintiff was terminated following an investigation into a potential threatening or harassing email sent by plaintiff to Murphy. Plaintiff contends that the termination was pretextual. Defendants move for summary adjudication of plaintiff's fifth cause of action for wrongful termination in violation of public policy. When a plaintiff...

Excerpt: ...mmary judgment order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiff cannot establish one or more elements of his causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(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 ...

Excerpt: ...tive, summary adjudication on the Complaint filed by Plaintiff Felix Rocha. Mr. Rocha filed a complaint on January 16, 2018 alleging injuries from a motor vehicle accident and general negligence. The injuries were alleged to have occurred on January 18, 2016 and stemmed from the negligent operation of one of Defendant Mid Valley Disposal's fork lift trucks by co‐Defendant Toby Taylor. To obtain summary judgment, “all a defendant needs to do i...

Excerpt: ...Costs are taxed by $53,855.58. Costs awarded to Triangle Truck against the Srabians therefore total $7,278.83. Explanation: The parties to this case filed cross‐motions to strike and/or tax costs and for attorney's fees after a jury trial. By order dated July 31, 2019, the Court ruled on all the motions except for the Srabians' motion to strike and/or tax the costs of Triangle Truck. In its order, the Court noted that “[w]here co‐parties jo...

Excerpt: ...t to the applicable Local Rules and the court will reset the trial at that time. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473; see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777.) Judicial policy favors resolution of all d...

Excerpt: ... class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confr...

Excerpt: ...nt public entity for collateral source payments paid or obligated to be paid for services or benefits that were provided prior to the commencement of trial.” (Gov. Code, § 985, subd. (b).) A “collateral source payment” is money “paid or obligated to be paid” by “private medical programs, health maintenance organizations, state disability, unemployment insurance, private disability insurance, or other sources of compensation similar t...

Excerpt: ...for bringing the motion. To grant plaintiffs' motion to amend the complaint. To treat defendant's motion for summary judgment/adjudication as a motion for judgment on the pleadings, and to grant it with leave to amend. Plaintiffs are given leave to amend the causes of action now predicated on alleged Labor Code violations to state causes of action for failure to pay overtime on other bases as may be provided by law. Plaintiffs are granted 15 days...

Excerpt: ...served on 10/3/18. This motion must be served within 45 days after service of a verified response (extended if served by mail, overnight delivery or fax or electronically; see Code Civ. Proc. § 1010.6(a)(4), 1013). Otherwise, the demanding party waives the right to compel any further response to the discovery. (Code Civ. Proc. §§ 2030.300(c), 2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.) The 45‐day time limi...

Excerpt: ... balance of the award to be deposited into a pooled special needs trust in order to preserve the minor's public benefits. However, petitioner must first file a petition under Probate Code section 3604 with the Probate Department, so it can confirm that the trust complies with California Rules of Court, rule 7.903, and provide for ongoing court supervision. Once that is accomplished, petitioner may refile his compromise petition with this court. I...

Excerpt: ...to the plaintiff, determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used.” (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234, internal citations and quotation marks omitted; see also Swaner v. Santa Monica (1984) 150 Cal.App.3d 789, 799.) “In making the determination of whether ...

Excerpt: ...th 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. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) He...

Excerpt: ...ailure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To deny the motions to strike the allegations and prayers for punitive damages and attorney's fees. To grant leave to amend, except as stated below. Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: A. Demurrer Untimely Opp...

Excerpt: ...efendants demur to the first, second, and third causes of action in the complaint on the ground that there is another action pending between the same parties on the same cause of action. (Code Civ. Proc. § 430.10, subd. (c).) They claim that some of the plaintiffs in the present action have also brought the same construction defect claims in another action that was previously filed in Fresno Superior Court against the same defendants. (See Defen...

Excerpt: ...n: Attorney's Fees While the fee awards should be fully compensatory, the trial court's role is not to simply rubber stamp the defendant's request. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 361.) Rather, the court must ascertain whether the amount sought is reasonable. (Robertson v. Rodriguez, supra, 36 Cal.App.4th at p. 361.) The party seeking attorney's fees has the burden of e...