Excerpt: ...frontation, attacking CrossComplainant, surreptitiously recording it, and using the footage in an effort to have CrossComplainant unjustly fired, is so extreme as to be beyond all bounds of decency tolerated by society.” (Cross Complaint, ¶ 22.) A SLAPP suit (Strategic Litigation Against Public Participation) is a suit brought “primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for redress of gri...

Excerpt: ....” (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) “Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute.” (Mendez v. Mid‐Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) Defendant Nissan North American, Inc. (“Nissan”) moves to compel arbitration of plaintiffs' action on an arbitration clause in a retail installment s...

Excerpt: ... process” to include “failing to respond or submit to an authorized method of discovery” and “disobeying a court order to provide discovery.” (Code Civ. Proc. § 2030.010, subds. (d) & (g).) Code of Civil Procedure section 2023.030 states, in relevant part: To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or atto...

Excerpt: ...intiff's claim for violation of the Federal Locomotive Inspection Act (“LIA”), 49 U.S.C. § 20701, et seq. under the Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51, et seq. Under 45 U.S.C. section 51, Every common carrier by railroad while engaging in commerce between any of the several States or Territories, … shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, �...

Excerpt: ...nation: A prevailing buyer in an action under the Song–Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires...

Excerpt: ...is a suspended corporation and thus has no right to appear in the action or move to set aside the default. (Corp. Code § 2205; Palm Valley Homeowners Assn. v. Design MTC (2000) 85 Cal.App.4th 553, 560; Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th 1361, 1365‐1366.) The court intends to take judicial notice of the California Secretary of State's website, which shows that Midline is a suspended corporation. The court intends to deny the ...

Excerpt: ...Plaintiff is directed to submit a new proposed Final Order. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the court to reconsider its decision granting certification of the class. Therefore, the court c...

Excerpt: ...mended Complaint filed August 26, 2022 for 1) Medical Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”); 2) Intentional Infliction of Emotional Distress; 3) Retaliation in Violation of FEHA; 4) Failure to Prevent Discrimination and Harassment; 5) Failure to Accommodate; 6) Failure to Engage in the Interactive Process of Accommodation; 7) Hostile Work Environment in Violation of FEHA; 8) Sex/Gender Discrimination in V...

Excerpt: ...amount actually paid to the class members, pursuant to Code of Civil Procedure section 384, subdivision (b), so that the judgment can be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before January 17, 2024. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquir...

Excerpt: ...the original 5 UDMFs, four are undisputed between the parties and one remains in dispute, number 5. This pertains to whether the Standard of Care was met during Plaintiff's surgery. Moving Defendant's expert Dr. Tyner opined that the standard of care for Plaintiff's surgery was met by Dr. Yankey. (Statement of Evidence Exhibit 5.) Plaintiff disputes this and cites as supporting evidence the Declaration of Arthur Hill, M.D., para. 1‐13, stating ...

Excerpt: ...he ground that they did not owe a legal duty toward plaintiffs' decedents because the decedents were not listed as tenants on the lease, and the lease specifically prohibited anyone not listed as a tenant from residing on the premises. They also claim that they had no knowledge of the dangerous condition that caused the fire, which was allegedly caused by a candle left unattended in the bathroom by a tenant. In addition, they contend that they ha...

Excerpt: ... submit to an authorized method of discovery and disobeying court orders to provide discovery. The action will be dismissed as to defendants Zaid Altahan and K&K Home, LLC. (Code Civ. Proc. § 2023.030, subd. (d)(3).) Explanation: Requests for Production of Documents, as well as Form and Special Interrogatories, were served by defendants Zaid Altahan and K&K Home, LLC, on plaintiffs in September 2021. Because plaintiffs never served responses, mo...

Excerpt: ...ey licensed to practice in California. Explanation: Defendants move to set aside their defaults, entered on July 25, 2022, pursuant to the discretionary relief afforded under Code of Civil Procedure section 473, subdivision (b), on the grounds of inadvertence, surprise, mistake, or excusable neglect. 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 ...

Excerpt: ...n. To deny the motion to consolidate without prejudice. Explanation: Court's Motion to Strike Code of Civil Procedure section 436 provides, in relevant part, “… at any time in its own discretion, a court may grant a motion to strike … all or any part of any pleading not drawn in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 472 allows that, “[a] party may amend its plead...

Excerpt: ... for summary adjudication in its entirety. To deny the motion to bifurcate, without prejudice. Explanation: At issue in all three motions is a single inquiry by defendants Jose Olivarez and Fresno County Economic Opportunities Commission (collectively “defendants”) regarding Civil Code section 3333.4 to plaintiff Maria Benitez Perez's complaint seeking damages arising from a motor vehicle collision. Civil Code section 3333.4 provides, in pert...

Excerpt: ... for summary judgment bears the initial burden to show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense thereto. (Code Civ. Proc. § 437c, subd. (o)(2). Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) If defendant carries this initial burden of production, the burden of production shifts to plaintiff to show that a triable issue of material fact exists. Plaintiff ...

Excerpt: ...ed class be conditionally certified for settlement purposes. The court may make an order approving or denying certification of a provisional settlement class after the preliminary settlement hearing. (Cal. Rules of Court, rule 3.769(d).) Before the court may approve the settlement, however, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Products, Inc. v. Windsor (1997) 521 US 591, 625‐ 627; see also Newbe...

Excerpt: ...5.16. On June 27, 2022, prior to the anti‐SLAPP motion being heard, plaintiff dismissed the suit with prejudice. Defendant now seeks attorney's fees. Where a defendant files a motion pursuant to Code of Civil Procedure section 425.16 and prevails, the defendant shall be entitled to recover attorney's fees and costs. (Code Civ. Proc. § 425.16, subd. (c)(1).) Where a plaintiff voluntarily dismisses a defendant, with or without prejudice, after f...

Excerpt: ...be filed within the time allowed to respond to said pleading. (See Code Civ. Proc., § 435, subd. (b)(1).) Here, defendant's motion is not timely because it was filed after the 30 day period set forth in Code of Civil Procedure section 435 and the extension agreed to between the parties. However, this is comparable to a late filed demurrer, and the court has discretion to hear an untimely demurrer. (See Jackson v. Doe (2011) 192 Cal.App.4th 742, ...

Excerpt: ...al.App.2d 528. In Oliver v. The Swiss Club Tell, supra, 222 Cal.App.2d 528, 533, an unincorporated association was sued and answered, stating the answer was on behalf of the “The Swiss Club Tell,” an unincorporated association, “if any such organization exists.” (Ibid. at 533.) Plaintiff failed to appear at the hearing where summary judgment was granted to defendant. That judgment was reversed on appeal and the court held the case should ...

Excerpt: ...o submit to this court, within 7 days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendant. Explanation: Defendant North Cal Cleaning Company (NCCC) demurs to the Second Amended Complaint of plaintiff Joe Louis Pena Jr. (Pena) on the grounds that the breach of contract cause of action alleged against it in the Second Amended Complaint is barred by the exclusive remedy of workers' compensation. (C...

Excerpt: ...ion is strictly “a matter of consent”'” and ‘ “ ‘a party cannot be required to submit to an arbitration any dispute which he has not agreed so to submit”'” (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 252, internal citations omitted.) As a general principle, “ ‘questions about the “making of the agreement to arbitrate” are for the courts to decide unless the parties have clearly and unmistakably referred those...

Excerpt: ...rs to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Omega and Mr. Asay demur to the first and sole cause of action for failure to pay monies due, on the ground that the complaint fails to state a claim against them. The moving parties contend that the December 19, 2018 Order adopting the November 29, 2018 Proposed Decision and Order (the “Penalty Order”), attached...

Excerpt: ...e a cause of action, without leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) To overrule the demurrer of defendants California Correctional Health Care Services (CCHCS) and Tveritina to the first cause of action. To sustain the demurrer of CCHCS and Tveritina to the second cause of action, for failure to state facts sufficient to constitute a cause of action. To deny leave to amend the second cause of action as to CCHCS, but to grant leav...

Excerpt: ...) the request that petitioner be allowed to deposit the money in a custodial account under the California Uniform Transfers to Minors Act (“CUTMA”) and 2) the request for $5,000 of the settlement to go to petitioner. While CUTMA accounts are often used by private parties as a means of giving gifts to minors, it is extremely uncommon for the court to order this in a minor's compromise situation. Petitioner has provided no basis for the court t...

Excerpt: ...ts on appeal, seeking $91.10 for Item 1 filing fees, and $1,363.68 for Item 6 “Transmitting, filing, and serving of record, briefs, and other papers.” CVC moves to tax Item 6, contending this cost is excessive and unreasonable because “[i]t is impossible to determine from the face of the Memorandum of Costs why the claimed costs are in excess of the amounts listed on the Appellate Court Register of Actions page for the case and whether the ...

Excerpt: ...efendants' Motion to Dismiss: David Bray, Jr., and Dawn Bray move to dismiss the action against them as well as the claims against David Bray, Sr., and Robert Bray, under both the five‐year mandatory dismissal statute, Code of Civil Procedure section 583.310, and the discretionary statute for failure to prosecute the action diligently, Code of Civil Procedure sections 583.410 and 583.420. Under section 583.310, “[a]n action shall be brought t...

Excerpt: ...ended Complaint by plaintiff be filed by an attorney licensed to practice law in California. Plaintiff is granted 30 days' leave to a First Amended Complaint within the limitations above. The time in which the answer can be filed will run from service by the clerk of the minute order. To grant the Request for Judicial Notice Explanation: 1. Demurrer based on Res judicata Because there has already been Small Claims litigation and a judgment betwee...

Excerpt: ...ting a real property claim. (Code Civ. Proc., § 405.1.) A real property claim is an action, “which would, if meritorious, affect … title to, or the right of possession of, specific real property ….” (§ 405.4.) In addition to grounds not asserted here, a lis pendens may be ordered expunged upon a finding that the claimant cannot establish probable validity to their claim. (Code Civ. Proc., § 405.32; Defs. Points & Auth. at p. 5:13‐18....

Excerpt: ...ompelling arbitration under both the Federal Arbitration Act and the California Arbitration Act, Code of Civil Procedure section 1281, et seq. Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent ...

Excerpt: ...precede the trial of any other issue or any part thereof in the case….” (Code Civ. Proc., § 598.) Similarly, Code of Civil Procedure section 1048 provides that “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action…or of any separate issue or of any number of causes of action or issues.” (Code Civ. Proc., �...

Excerpt: ...defendant's failure to demonstrate compliance with Code of Civil Procedure section 439, subdivision (a), which requires defendant to meet and confer prior to filing a motion for judgment on the pleadings. The parties must engage in good faith meet and confer, in person or by telephone. (Code Civ. Proc. § 439, subd. (a).) The court's normal practice is to take such motions off calendar, subject to being re‐calendared once the parties have met a...

Excerpt: ... fifth, sixth, eighth and ninth causes of action of the Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To sustain the demurrer of defendant Jennings to the entire Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) In the event a timely request for oral arg...

Excerpt: ...days' leave to file a first amended complaint. The time in which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be placed in boldface type. Explanation: The complaint alleges two causes of action against the City of Fresno for premises liability and general negligence based on plaintiff's alleged trip on a raised section of concrete sidewalk at 9th Street and Grand Ave. in the city of Fresn...

Excerpt: ...st Amended Complaint are to be set in boldface type. Explanation: Demurrer to the First Cause of Action for Breach of Contract Defendant demurs to the first cause of action for breach of contract on the grounds that the Complaint fails to state facts sufficient to constitute a cause of action. “A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorp...

Excerpt: ... file a Notice of Related Case in the Los Angeles Superior Court Case Number 20STCV33816 or submit proof that such has already been filed. Explanation: Misjoinder of Parties Code of Civil Procedure section 389 articulates when a nonparty must be joined to the action. A person is a necessary and indispensable party where 1) complete relief cannot be obtained in the nonparty's absence, 2) the nonparty claims an interest relating to the subject of t...

Excerpt: ...on for failure to state facts sufficient to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subd. (e), (f).) To sustain, with leave to amend, De La Pena's demurrer to the second cause of action for failure to state facts sufficient to state a cause of action (Code Civ. Proc., § 430.10, subd. (f).) To overrule De La Pena's demurrer to the first, fourth, fifth, sixth and eighth causes of action. To overrule FAIHP's demurrer t...

Excerpt: ...t does not resolve the issues, defense counsel shall file a declaration, on or before February 10, 2023, stating the efforts made. Explanation: Defendant did not satisfy the requirement to meet and confer prior to filing the demurrer and motion to strike. Code of Civil Procedure sections 430.41 and 435.5 make it very clear that meet and confer must be conducted “in person or by telephone.” (Id., subd. (a) as to both.) Sending written communic...

Excerpt: ... Wednesday, March 1, 2023 at 3:30 p.m. in Dept. 502. The deadline for plaintiff and defendant to file supplemental briefing is Friday, February 3, 2023. The briefs shall be no longer than ten pages in length. Explanation: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Pr...

Excerpt: ...sses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, 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….” (Code Civ. Proc., § 598.) Similarly, Code of Civil Procedure section 1048 provides that “[t]he court, in furtherance of convenience or to av...

Excerpt: .... Defendant Rudy Holguin is ordered to serve verified responses, without objections, to plaintiff Sylvia Kissing's Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One, no later than 20 days from the date of this order, with time to run from the service of this minute order by the clerk. To impose monetary sanctions in favor of plaintiff Sylvia Kissing, and against defendant Rudy Holgui...

Excerpt: ...ce to support the requested amount of fees and costs. (Code Civ. Proc. § 405.38.) Explanation: Under Code of Civil Procedure section 405.30, any party, or any nonparty with an interest in real property affected by a lis pendens, can move to expunge the lis pendens at any time after the notice of pendency of action has been recorded. (Code Civ. Proc. § 405.30.) “Evidence or declarations may be filed with the motion to expunge the notice. The c...

Excerpt: ...mez, Stella Villagomez, and All Ag., Inc., for the time period from 2006 to 2022; and transactions involving Villagomez Farms, Inc., for the time period from 2006 to 2022. To deny both parties' requests for monetary sanctions against each other. Explanation: Under Code of Civil Procedure section 1987.1, If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things befo...

Excerpt: ...ode of Civil Procedure section 425.16, on the ground it is a strategic lawsuit against public participation (SLAPP) action. To grant defendant's request for attorney's fees and costs, in the amount of $1,800 in fees and $503 in costs. (Code Civ. Proc. § 425.16, subd. (c)(1).) Plaintiff shall pay fees and costs to defendant within 30 days of the date of service of this order. To overrule defendant's demurrer as moot in light of the ruling on the ...

Excerpt: ... at 3:30 p.m. in Dept. 502 Explanation: 1. Fair, Adequate, and Reasonable Settlement The court “bears the responsibility to ensure that the recovery represents a reasonable compromise, given the magnitude and apparent merit of the claims being released, discounted by the risks and expenses of attempting to establish and collect on those claims by pursuing litigation. The court has a fiduciary responsibility as guardians of the rights of the abs...

Excerpt: ..., 2023 at 3:30 p.m. in Dept. 502 Explanation: 1. Fair, Adequate, and Reasonable Settlement The court “bears the responsibility to ensure that the recovery represents a reasonable compromise, given the magnitude and apparent merit of the claims being released, discounted by the risks and expenses of attempting to establish and collect on those claims by pursuing litigation. The court has a fiduciary responsibility as guardians of the rights of t...

Excerpt: ...tween the parties. (Code Civ. Proc., § 452.) The allegations in the complaint are considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) As an initial matter, the court notes that, notwithstanding the breadth of the request stated in the Notice of Motion, defendant's memorandum of points and authorities only actually makes arguments regarding the request to strike the prayer for punitive dama...

Excerpt: ...admitted and compelling defendant's responses to plaintiff's Form Interrogatories, Set One, and Request for Production of Documents, Set One. The requests for monetary sanctions made by both parties are denied. Explanation: Notice Defects: Proof of service by mail may be made by either an affidavit or certificate “setting forth the exact title of the document served and filed in the cause…” (Code Civ. Proc., §1013a, subds. (1)‐(4), empha...

Excerpt: ...t”) is a Little Caesars Pizza franchisee. Tenant assumed a lease entered into on August 18, 2003 for 1,265 square feet in Landlord's retail shopping center. The Lease includes the following provision at Section 26.09: … at any time during the term of this Lease, upon at least thirty (30) days prior written notice to Tenant (“Notice of Relocation”), Landlord may require Tenant to relocate to another leased space within the Shopping Center ...

Excerpt: ...The new amendments shall be in bold print. Should plaintiff elect not to amend, defendants shall file responsive pleadings within twenty (20) days from the date of this order. The demurrer is overruled in all other respects. Explanation: In deciding a demurrer, the test is whether the plaintiff has succeeded in stating a cause of action ‐ the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving...

Excerpt: ... has succeeded in stating a cause of action – the court does not concern itself with the issue of the plaintiff's possible difficulty or inability in proving the allegations of their complaint. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572; Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) The complaint is liberally construed, which “means that the reviewing court draws inferences favorable to the plaintiff, not the defendant...

Excerpt: ...h respect to the second cause of action, this motion addresses the sufficiency of the first cause of action for intentional infliction of emotional distress. The elements of a cause of action for intentional infliction of emotional distress (“IIED”) are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering sever...

Excerpt: ...file an undertaking, in the amount of $50,000, under Code of Civil Procedure section 1030. Section 1030, subdivision (a), states, When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action o...

Excerpt: ...bid.) Defendant shall pay sanctions to plaintiff's counsel within 30 days of the date of service of this order. Explanation: Under Code of Civil Procedure section 1281.97, subdivision (a), “In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, the drafting party to pay certain fees and costs before the arbitration can proceed, if the fees...

Excerpt: ...isappropriated. (Code Civ. Proc. § 2019.210.) Plaintiff is ordered to file a notice of compliance no later than 20 days from the date of this order, with time to run from the service of this minute order by the clerk. To deny plaintiff's motion for an order compelling responses to request for production of documents. (Coder Civ. Proc. § 2031.300.) Explanation: Defendants' Motion for Protective Order Defendants seek a protective order directing ...

Excerpt: ...n to quash a subpoena requiring production of documents. If a subpoena requires … the production of books, documents, or other things … at the taking of a deposition, the court, upon motion … may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriat...

Excerpt: ... and $285 against defendant Surinder Kaur Sandhu, payable within 30 days of the date of service of this order. The matters specified in plaintiff's Requests to Admit (Set Two) propounded on defendant Devinder Sihota and defendant Surinder Kaur Sandhu, are deemed admitted, unless defendants serve, before the hearing, proposed responses to the requests that are in substantial compliance with Code of Civil Procedure section 2033.220. Explanation: Fa...

Excerpt: ...ed in time and to records for only the body parts/issues of which plaintiff complains. Plaintiff appears to have placed every conceivable form of economic recovery at issue in her Complaint. In her Complaint, page 3, at paragraph 11, every box is checked for damages and plaintiff adds: “ALL ECONOMIC AND NON‐ECONOMIC DAMAGES KNOWN AND UNKNOWN TO PLAINTIFF AT THIS TIME, BUT SUBJECT TO PROOF AT THE TIME OF TRIAL; PLUS STATUTORY INTEREST.” Both...

Excerpt: ...fendants Carolina Transportation, Inc., Carolina Logistic, Inc., and Dispatch & Services, Inc. (collectively “Carolina defendants”) move to quash service of summons for lack of personal jurisdiction over them. The Carolina defendants are each incorporated in the State of North Carolina and each has its principal place of business in North Carolina. (Hoover Decl., ¶ 3.) Additionally, the Carolina defendants have no offices or employees in Cal...

Excerpt: ...f Civil Procedure section 418.10, subdivision (a)(1), “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” When a defendant moves to quash on the ground that service of summons did ...

Excerpt: ...the date of service of this order. All new allegations shall be in boldface. Explanation: “ ‘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, whe...

Excerpt: ...rvice by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Defendant demurs to plaintiff's Complaint, which alleges a single cause of action for medical malpractice. Defendant contends that the cause of action is barred by the applicable statute of limitations under Code of Civil Procedure section 340.5. The function of a demurrer is to test the sufficiency of a plaintiff's pleading by...

Excerpt: ...d, Inc., dba Re/Max Gold. (Code Civ. Proc., § 4301.10, subd. (e).) NorCal shall file its Answer to the FAC within 10 days of service of the minute order. Explanation: In this action, plaintiff sues all involved in a real estate transaction in which Ms. Lewis purchased the “Subject Property,” and intended to purchase the assisted living facility business (“Assisted Living Business”) operated on that property. It appears that Ms. Lewis suc...

Excerpt: ...uit against public participation (SLAPP) action, and dismiss the complaint with prejudice. (Code Civ. Proc., § 425.16.) Explanation: Under Code of Civil Procedure section 425.16, “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a specia...

Excerpt: ...tion to vacate the judgment and/or the clerk's entry of default that preceded it. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the statutory time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Here, defendant moves to set aside its default, entered on July 21, 2022, pursuant to the discretionary relief afforded under Code of C...

Excerpt: ...ersy 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. (9 U.S.C. § 2.) “In recognition of Congress' principal purpose of ensuring that private arbitration agreements are enforced according to their terms, we have held that the FAA pre‐ empts st...

Excerpt: ...are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549, citing Lab. Code, § 2699, subd. (l)(2) [“The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.”].) The trial ...

Excerpt: ...omplaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code of Civil Procedure §430.10, subd. (e); Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 841–842.) In making this determination, the court may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact...

Excerpt: ...n boldface type. Explanation: The court's tentative ruling for defendant's demurrer to the third amended complaint was to sustain the demurrer without leave to amend. Upon plaintiff counsel's vehement representations at oral argument that curative facts could be plead, the court modified its tentative ruling and granted leave to amend as to the first cause of action (breach of contract) only. In particular, at oral argument, counsel argued that a...

Excerpt: ...ncellation pursuant to Civil Code sections 1689.5 through 1689.14; breach of contract; unfair business practices; injunctive relief; and declaratory relief. Plaintiffs allege, among other things, that defendants subjected plaintiffs to high‐pressure and fraudulent sales practices that resulted in financial loss, damage to credit, emotional distress, and other related injuries. Plaintiffs allege that defendants caused plaintiffs to be enrolled i...

Excerpt: ..., U.S.A. is directed to submit to the court a proposed judgment consistent with the summary adjudication ruling within ten (10) days from the date of this order. To grant plaintiffs motion for leave to file a first amended complaint. The amended complaint “shall not include a cause of action under the Song–Beverly Consumer Warranty Act.” (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 929; Code Civ. Proc., § 473, subd. (a)(1) [“The...

Excerpt: ...the court's order within 10 days of the date of service of this order. Explanation: CVSH moves for summary judgment or adjudication of plaintiff's medical malpractice/wrongful death claim on the ground that it did not breach the standard of care. CVSH has presented the declaration of its expert, Dr. Errol Omaar Ozdalga, M.D., who opines that CVSH's care and treatment of decedent did not fall below the standard of care. Since CVSH did not breach t...

Excerpt: ...s such, Loya requests the court grant it permission to intervene to protect its interests in this matter. Intervention is the procedure by which a non‐ party to an action may become a party. (See Code Civ. Proc., § 387.) Intervention may be as of right or permissive. (Ibid.) Here, Loya seeks permissive intervention pursuant to Code of Civil Procedure section 387, subdivision (d)(2), which provides that “[t]he court may, upon timely applicati...

Excerpt: .... (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally c...

Excerpt: ...date of this order. Explanation: Plaintiff has alleged that defendants are liable because they failed to take reasonable steps to prevent her son, decedent Matthew Gonzalez, from committing suicide while he was in custody at the Fresno County Jail. She alleges that defendants should have realized that decedent was depressed and suicidal because he asked for a spiritual advisor to absolve him of his sins before he died, that he made statements in ...

Excerpt: ...ponses, without objections, to Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production of Documents, Set One, and produce all documents responsive to the Requests for Production of Documents. To grant the motion seeking an order deeming the truth of matters specified in the Requests for Admission, Set One, established pursuant to Code of Civil Procedure section 2033.280, subdivision (b) against defendant Johnny...

Excerpt: ... of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … resulting … dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) Relief pursuant to Code of Civil Procedure...

Excerpt: ... 20CECG01868 for purposes of trial only. A copy of this order shall be filed in each case. Lemons v. Ballantyne, Superior Court Case No. 19CECG00924 is designated as the lead case. To vacate the trial date of June 26, 2023. Trial, and all related dates, shall commence on April 15, 2024. To overrule plaintiff's objections. Explanation: “When actions involving a common question of law or fact are pending before the court, it may order a joint hea...

Excerpt: ...tative Ruling: To grant the motion to compel responses. Within 20 days of service of the order by the clerk, plaintiff Kimberly Ramirez shall serve verified responses, without objections, to defendant's Form Interrogatories – General [Set One], Form Interrogatories – Employment [Set One], Special Interrogatories [Set One], and Requests for Production of Documents. As for the motion to establish admissions, this is denied in part, as moot, sin...

Excerpt: ... judgment. To deny summary adjudication of issues one, three and four. To grant summary adjudication of issue five. To grant summary adjudication of issue two, which results in the summary adjudication of the second cause of action in favor of cross‐defendants. (Code of Civ. Proc., § 437c, subd. (f).) Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to j...

Excerpt: ...xtinguishment of the deed of trust because they have now paid off the loan in full, they have not presented any admissible evidence to support their asserted facts. The only evidence submitted in support of the application is the declaration of plaintiffs' counsel, who does not appear to have personal knowledge of the facts to which he testifies. (See declaration of Ian Brady filed on March 14, 2022.) Therefore, his statements regarding the owner...

Excerpt: ...laintiffs are entitled to judgment on the pleadings with regard to their contract and specific performance claims, although not their fraud claim, as defendant had been deemed to have admitted the truth of plaintiffs' claims when he failed to respond to plaintiffs' requests for admissions. (Court's Order of July 20, 2022, pp. 6‐8.) However, the court also found that plaintiffs needed to prove up their damages before obtaining a final judgment o...

Excerpt: ...ntal declaration by his attorney to challenge certain procedural aspects of the motion, arguing as follows: (1) the motion was untimely served under Code of Civil Procedure section 1005, subdivision (b); (2) the motion was untimely filed pursuant to California Rules of Court, rule 3.1702(b)(1); (3) the motion should not be heard as the parties are involved in an arbitration that was set to commence on December 5, 2022; (4) the moving papers are d...

Excerpt: ...Brandi Marie Smith to Request for Admissions, Set One, and Request for Sanctions By Plaintiffs for an Order Compelling Initial Responses from Defendant Raquel Morelos to Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production of Documents, Set One; and Request for Sanctions By Plaintiffs for an Order Deeming Admissions of Defendant Raquel Morelos to Request for Admissions, Set One, and Request for Sanctions Ten...

Excerpt: ...alescent Hospital v. Sup. Ct. (Sims) (2006) 143 Cal.App.4th 1558, 1562‐63.) Defendant's motion for protective order prohibiting Ms. Hare's deposition or, in the alternative, limiting the scope of Ms. Hare's deposition is rendered moot. Explanation: Defendant seeks a protective order prohibiting the deposition of Ms. Hare or, in the alternative, limiting the scope of Ms. Hare's deposition to identifying the sources of information contained in he...

Excerpt: ... Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) As in demurrers, grounds for the motion must appear on the face of the challenged pleading or on facts which the court may judicially notice. (Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.) When reviewing a pleading, a demurrer or motion for judgment on the pleadings admits the truth of all material allegations and a court will “give the complaint a reasonable interpreta...

Excerpt: ...or more parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐ obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6(a)(1).) “A determination by the court that the settlement was made in good faith shall...

Excerpt: ... the clerk's service of this order. New or different allegations in the second amended complaint are to be set in boldface type. Explanation: General Demurrer A party may file a general demurrer on claims that “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [“‘A demurrer can be utilized where the complaint itself is inc...

Excerpt: ...dure authorizes a class action when ‘the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.' ‘[W]e have articulated clear requirements for the certification of a class' under this statute. ‘The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well‐defined communi...

Excerpt: ...er judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc., § 664.6.) “Code of Civil Procedure section 664.6 provides a summary procedure to enforce a settlement agreement by entering judgment pursuant to the terms of the settlement… The court retains jurisdiction to...

Excerpt: ...ehicle ensued which form the basis of the Complaint for damages. Plaintiff brought two causes of action against each of defendant Lithia NF, Inc. (“Lithia”), and the moving defendant Nissan North America, Inc. (“Nissan”), for express and implied violations of the Song‐Beverly Act regarding warranties. Compel Arbitration Nissan moves to compel arbitration on an arbitration clause in a retail installment sales contract (“RISC”) made b...

Excerpt: ...the motion as to Request Nos. 3, 5, and 6‐9. Defendant shall provide further verified responses, and produce all relevant documents and a privilege log if necessary, within 30 days of the date of service of the order by the clerk. Explanation: Plaintiffs move to compel further responses to their Request for Production of Documents, Set Two, which are broadly divisible into the following three categories: (1) all documents relating to the subjec...

Excerpt: ...within 10 days of the date of service of this order. Explanation: This action stems from a fire that occurred at plaintiffs' home on July 4, 2018. Plaintiffs' original complaint, filed August 13, 2019, alleged the following causes of action against the moving parties: fifth cause action against defendant Nutting Enterprises, Inc. dba CPR Carpet and Restoration (“CPR”) for negligence; and seventh cause of action against CPR's surety, defendant...

Excerpt: ...eement. Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The...

Excerpt: ...ination in Violation of California's Fair Employment and Housing Act (“FEHA”); 2) Failure to Accommodate in Violation of FEHA; 3) Failure to Engage in a Good Faith Interactive Process in Violation of FEHA; 4) Retaliation in Violation of FEHA; 5) Associational DisabilityBased Discrimination in Violation of FEHA; 6) Discrimination and Retaliation in Violation of the California Family Rights Act; 7) Failure to Prevent Discrimination in Violation...

Excerpt: ...r consistent with the court's summary adjudication ruling. Explanation: Summary Judgment/Adjudication A motion for summary judgment is generally directed toward an entire action or pleading. (Code of Civ. Proc., §437c, subd. (a).) By comparison “[a] party may move for summary adjudication as to one or more causes of action within an action ….” (§ 437c, subd. (f)(1).) Plaintiff's notice of motion confirms that the motion is directed to the...

Excerpt: ...ts the requirements for certification before it can grant preliminary approval of the proposed settlement. An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93‐95.) “Confronted with a request for settlement‐only class certification, a dist...

Excerpt: ...n: Notice of Hearing Following the progression of the asserted instruments, it appears that plaintiff has a basis for bringing this action. Assuming such evidence is admitted at the hearing, there appears a presumptive basis to grant the proposed judgment. Nevertheless, reflecting the general uniqueness conferred to real property, quiet title proceedings do not follow the typical path toward obtaining judgment. (Harbour Vista, LLC v. HSBC Mortgag...

Excerpt: ...ggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amou...

Excerpt: ...d, resulting in a balance of $90) in favor of defendant and against plaintiff and its counsel, jointly and severally, payable within 30 days of service of this order. (Cal. Rules of Court, rule 3.1348(a).) Explanation: The instant motions were filed on June 15, 2022. The opposition and reply papers confirm that code‐ compliant responses to the discovery at issue were served on August 15, 2022. Therefore, the court denies the instant motions as ...