Excerpt: ...fendant Richard Greene has moved to vacate and set aside the default entered in this case on February 15, 2019. 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 prejudice the opposing party. (Elston v. City of Turlock (1985) 38 C...

Excerpt: ... by the parties and submitted to the court for signature. Explanation: Plaintiffs originally moved to compel nonparty Fresno County Public Defender (“FCPD”) to produce documents responsive to seven requests for production of documents contained in a deposition subpoena. Following a continuance so that the parties could file a joint separate statement of items in dispute, the discovery dispute has been narrowed to four categories of documents ...

Excerpt: ...the completion of arbitration. Explanation: The parties have agreed to submit plaintiff's claims to arbitration pursuant to a Dispute Resolution Agreement. The parties are in disagreement as to the interpretation of paragraph 5 of the Agreement, and have stipulated to have the court resolve the issue. Paragraph 5 provides: Arbitration will be conducted within the county in which the employee works for CMC or last worked for CMC unless all parties...

Excerpt: ...s motion and all other proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby. (Code Civ. Proc., § 916, subd. (a).) By operation of law, this Court lacks jurisdiction to hear the motion and therefore vacates the hearing. Once the appeal is no longer pending, the moving party may contact the law and motion clerk to reschedule the hearing on the motion. Explanation: On April...

Excerpt: ...y September 13, 2019. To set a return date of Thursday, May 21, 2020 for a report to the Court of the final distribution and amendment of the judgment pursuant to Code of Civil Procedure section 384(b). Explanation: 1. Final Approval of Settlement California Rules of Court, Rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed settlement.” Subsection (h) states: “If the court appro...

Excerpt: ...), (f).) To grant the motion to strike the allegations and prayer regarding punitive damages from the cross‐complaint. (Code Civ. Proc. §§ 435, 436.) To grant the motion to strike the conspiracy claim against plaintiff's counsel and her law firm, for failure to comply with Civil Code section 1714.10 before filing the claim. To grant leave to amend. To deny both parties' requests for sanctions against each other. (Code Civ. Proc. §§ 128.5, 1...

Excerpt: ...spect to causes of action: four (breach of oral contract), five (breach of implied‐infact), and six (promissory estoppel). To deny defendant's motion to strike plaintiff's prayer for costs. To deny defendant's motion to strike plaintiff's prayer for restitution. Plaintiff is granted ten days' leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanati...

Excerpt: .... (1953) 38 Cal.2d 273. There, a couple was photographed by an employee in an affectionate pose at the LA Farmer's Market, and the photograph was published with an accompanying article in Ladies Home Journal, without their permission. [T]he caption under the picture describes it as “love at first sight” and the article says such love is based on 100 per cent sex. It is not unreasonable to believe such would be seriously humiliating and distur...

Excerpt: ...rtions of the First Amended Complaint Tentative Ruling: To sustain the demurrer of the City of Coalinga (“City”) in its entirety, with leave to amend as to the second cause of action, only. To grant City's motion to strike, without leave to amend. To sustain the demurrer of defendants Marissa Trejo, Shannon Jensen, Vivian Sauceda, and Jasmin Bains (“individual defendants”) in its entirety, with leave to amend. To grant the individual defe...

Excerpt: ...any generally applicable venue statutes, but relies, in principle part, on Welfare and Institutions Code §§6600, et seq. and, specifically, section 6601, subdivision (i) (effective January 1, 2019). A plaintiff's (or, in this case, a Petitioner's) choice of venue is presumptively valid, and a party moving to transfer venue bears the burden of demonstrating that the plaintiff's chosen venue is improper. (Battaglia Enterprises, Inc. v. Superior C...

Excerpt: ...which states, in the pertinent part: “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” The parties can stipulate to permit an amendment, but they still need a Court order before an amended pleading may be validly filed. Shoul...

Excerpt: ...�The court may, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading[.]” (Code Civ. Proc. §473(a)(1).) “[L]eave to amend a pleading should be liberally granted as long as there is no timeliness problem under a statute of limitations or prejudice to the opposing party. [Citations.]” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240; Glaser v. Meyers (1982) 137 Cal....

Excerpt: ... days of the date of service of this order. Explanation: Defendants argue that plaintiff expressly assumed the risk of being hit by a foul ball when he purchased his ticket for the game. The ticket contained an express release which stated, “Holder of this ticket assumes all risks incidental to the game of baseball, including specifically (but not exclusively) the danger of being injured by thrown or batted balls. Holder agrees that the Fresno ...

Excerpt: ...iff to call for oral argument. If defendant does not call for oral argument, this Tentative Ruling will be adopted without continuance. Explanation: Proof of Service Issue: One of the arguments plaintiff made was that the motion was not timely served. The original proof of service attached to the Notice of Motion attempts to indicate personal service of the papers on May 28, 2019 – which would be two days before the 75‐day deadline given in C...

Excerpt: ...ken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) In other words, to secure relief, the moving party must present a reasonable excuse as to why she was prevented from presenting her case to the court. (See Wilcox v. Ford (1988) 206 Cal.App.3d 1170, 1176; Guenter v. Lomas & Nettleton Co. (198...

Excerpt: ... court days of service of this order. A final proposed judgment is to be presented to the Court within ten (10) court days of service of this order. Explanation: Pursuant to the Stipulation and Order filed June 20, 2019, this case is set for several matters pending from previous hearings before this Court. For the reasons stated below, only the Order to Show Cause re: Dismissal for Failure to Join Indispensable Parties (and the Order to Show Caus...

Excerpt: ...ule is codified at Code of Civil Procedure section 1856. It is a rule of evidence, not of pleading, and requires evidence before it can apply—that there be proof that a writing was intended to be the final expression of an agreement. The Cross‐Complaint states that it was not and that there were oral and written parts of the “Joint Venture” agreement. (Cross‐Complaint, ¶ 13). There are also several exceptions or situations where the do...

Excerpt: ...scovery Act provides that a personal service of a deposition subpoena may command a third party deponent to produce business records on request. (Code Civ. Proc., § 2020.020, subd. (c).) Code of Civil Procedure section 1987.1 provides, in relevant part: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things . . . at the taking of a deposition, the court, upo...

Excerpt: ...Peel | Garcia within 30 days of the clerk's service of this minute order. Explanation: Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010.) And courts may impose a terminating sanction for misuse of the discovery process. (Code Civ. Proc., § 2023.030.) But before imposing a terminating sanction, courts should usually grant lesser sanctions: e.g., orders staying the action until defen...

Excerpt: ...ts in a string as to why the Fifth Cause of Action in the First Amended Complaint is improper. To the extent possible, the Court addresses the grounds listed in the notice, but notes that the manner of presentation creates confusion. 2. Statute of Limitations This is a basis for a general demurrer, as where the bar of the statute of limitations appears from the face of the pleading, it fails to state facts sufficient to allege a valid cause of ac...

Excerpt: ... 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 prejudice the opposing party. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 (superseded by statute on other grounds as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64).) Defendants make their motion under Code of Civil Procedure §473, subdivision (b)...

Excerpt: ...filed motions to quash service of summons on the grounds that the manner of service actually performed was not “personal service” in accordance with Code of Civil Procedure §415.10, et seq. According to the representations by Plaintiff in her opposition, the summons and complaint were left in envelopes with the secretary at the office of Defendant School District. Defendants claim the envelopes were unmarked, but Plaintiff has provided photo...

Excerpt: ...s asserted against Nakidi in this lawsuit and that Plaintiff has not made a sufficient showing that Nakidi waived the right to arbitrate the agreement or that "there is a possibility of conflicting rulings on a common issue of law or fact" if the court orders arbitration of the claims against Nakidi but not the claims against Defendant Teamsoft Technologies, LLC ("Teamsoft") in this action. (See C.C.P. § 1281.2; 9 U.S.C. § 2.) A. Existence and ...

Excerpt: ... Explanation: “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(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; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The motio...

Excerpt: ...to submit to this Court, within five (5) days of service of the minute order, a proposed judgment consistent with this Court's summary judgment ruling. Explanation: Summary Judgment 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. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the ini...