Excerpt: ...ch the answer can be filed will run from service by the clerk of the minute order. To grant defendants' motion to strike the prayer for punitive damages and the allegations at paragraph 29 and 36 as to defendant Anderson only, that his conduct was “malicious and oppressive and warrants the imposition of punitive damages.” (Code Civ. Proc., §§ 436, 425.13.) The striking of the punitive damages allegations is without prejudice to plaintiffs f...

Excerpt: ...on to Strike Portions of the Second Amended Complaint Tentative Ruling: To sustain all defendants' demurrers to the first cause of action for failure to state facts sufficient to constitute a cause of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) To grant the motion to strike, in part, and deny, in part. The allegations pertaining to a physician or surgeon's statutory duty to report a patient diagnosed with a condition cha...

Excerpt: ...ure §473(d). Effectuating service on “Brandon – Person apparently in charge” at the purported “business office or usual place of business” was improper. A defunct business organization has no office or usual place of business. The Proof of Service indicates service at a “business address.” However, the unrefuted evidence establishes that 10 Seasons Court is a residential address. No one by the name of “Brandon” lives or works a...

Excerpt: ...settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. (Code Civ. Proc., § 664.6, subd. (a).) Here, the parties entered into a written settlement agreement including a stipulation for entry of judgment in the event defendant failed to pay the amounts it agreed to pay under the settlement agreement, and then failed to cure its default. It does not appear to be disputed that alt...

Excerpt: ... 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 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontest...

Excerpt: ... Civ. Proc., § 2025.480, subd. (j).) Explanation: Plaintiff in this action asserts various causes of action alleging sex abuse as a minor committed by teacher and defendant Stacey Aprile, employed by defendant Clovis Unified School District. Based on plaintiff's allegations of sexual assault, California Commission on Teacher Credentialing (“CCTC”) conducted an investigation into plaintiff's allegations against Aprile. On March 1, 2022 plaint...

Excerpt: ...ll, whenever an application for relief is made no more than six months after entry 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.�...

Excerpt: ...lanation: Defendants have admitted to liability by allowing their default to be entered, so liability is not an issue. (Morehouse v. Wanzo (1968) 266 Cal.App.2d 846, 853 [by defaulting, defendants admit liability for the debt or obligation on all well pleaded causes of action].) However, default does not admit that the amount prayed for is the proper amount. (Brown v. Superior Court (1966) 242 Cal.App.2d 519, 526.) Damages must be proved up with ...

Excerpt: ...rrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The truth of the facts alleged in the complaint are assumed true as well as the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 2 Cal.4th 876, 883; see also Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1168 [actual relianc...

Excerpt: ... the motion to strike the “but not limited to” language. Plaintiffs are to file a Second Amended Complaint consistent with this ruling. Such pleading shall be filed within 10 days from the date of service of the minute order. Caltrans shall file its Answer to the Second Amended Complaint no later than 10 days after service of the Second Amended Complaint on it. Explanation: There are differences in the named plaintiffs from the original Compl...

Excerpt: ...he entire complaint. (Code Civ. Proc., § 437c.) CRMC shall submit a proposed judgment consistent with the court's order within 10 days of the date of service of this order. Explanation: CRMC 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. CRMC has presented the declaration of its expert, Dr. Gary W. Steinke, M.D., who opines that CRMC's ...

Excerpt: ...Plaintiff brings a single cause of action under PAGA on behalf of himself and all aggrieved employees under Labor Code section 2698 et seq. Defendant now seeks an order compelling plaintiff to private arbitration of his PAGA claim as an individual, and to dismiss the representative portion of the PAGA claim brought on behalf of all aggrieved employees. Motion to Compel Arbitration A trial court is required to grant a motion to compel arbitration ...

Excerpt: ...itrator in this matter; that defendants pay all of the costs of arbitration; and that the California Rules of Civil Procedure be the rules by which the arbitration is conducted. Explanation: Plaintiff refiled a survival action on behalf of decedent Sandra Troupe for negligence, to comply with Code of Civil Procedure section 377.34, subdivision (b). Defendants filed a motion to compel arbitration, citing an arbitration agreement (“the Agreement�...

Excerpt: ...360 (6 motions x $60 each). The additional filing fees must be paid on or before December 15, 2022. To order plaintiffs Candice Burciaga, Cady Wade, and Serenah Pickens, by and through her guardian ad litem, to serve separate, verified responses, without objections, to defendants' Form Interrogatories, Set One, Special Interrogatories, Set One, and Demand for Production, Set One (a separate set of which was served on each plaintiff), no later tha...

Excerpt: ...ing, grief, anxiety, humiliation and/or emotional distress. To exclude from the description of the subpoenas issued to each of Dignity Health Mercy Medical Center and Clovis Community Medical Center employment documents pertaining to manager/supervisor files, performance evaluations and reviews, and disciplinary actions related to plaintiff. Explanation: Plaintiff seeks to quash subpoenas seeking certain records from Kaiser Fresno Medical Center,...

Excerpt: ...ancing while dancing and drinking in violation of Newsom's orders”) and the allegations in the first sentence in paragraph 23, on page 6, lines 7‐9 (“El Bukanas was operating in violation of the Blueprint for a Safer Economy, in that the business was allowing indoor and outdoor seating, failing to enforce social distancing and allowing patrons to order alcohol without ordering food”) are stricken. The motion to strike the remaining allega...

Excerpt: ...g or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. 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...” “‘Code of Civil Procedure section 473, whi...

Excerpt: ... 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. The parties are ordered to file a declaration from the administrator as to the payout and amount of uncashed checks no later than October 17, 2023. As required by California Rules of Court, rule 3.771(b), notice of the judgment is to be given to the class. Notice may be given by an insert with the se...

Excerpt: ...order. Explanation: Defendants Zisha Lipschutz and Esti Lipschutz demur generally and specially to the tenth through fifteenth causes of action1 , contending that there are no facts alleged to show these individual defendants are the alter egos of entity defendants Eminence Healthcare Services, LLC (EHS) and Centuri Health Ventures, LLC (Centuri) and that these causes of action are uncertain because they are pled against “all defendants” but ...

Excerpt: ...ss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged...

Excerpt: ...expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) “‘Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against tha...

Excerpt: ...ntractors Indemnity Company (“ACIC”). The entirety of ACIC's $47,000 settlement is credited to defendant Bank of Stockton (“Bank”). (2) To grant plaintiff's motion for prejudgment interest in the sum of $16,013.28. (3) To grant plaintiff's motion for attorney fees in the sum of $157,382.50. (4) To grant the Bank's motion to tax costs claimed by plaintiff in the sum of $5,125.71, reducing the recoverable costs to $4,571.67. Explanation: Th...

Excerpt: ...nc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9.) 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 certified for settlement purposes. Th...

Excerpt: ...erk's service of this order. New or different allegations in the first amended complaint are to be set in boldface type. Explanation: General Demurrer As a threshold matter, “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.) In addition, a party may file a general ...

Excerpt: ...9. Code of Civil Procedure section 529, subdivision (a) provides, in relevant part: On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Damages wh...

Excerpt: ...nts are directed to submit to this court, within five days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: In this action, plaintiff Los Arboles Family Apartments, LP (“Los Arboles”) seeks to invalidate and enjoin defendants from utilizing an easement created in 2007 burdening Los Arboles and benefitting the neighboring property. The easement, referred to as the Access Agree...

Excerpt: ...action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e), (f).) To overrule the demurrer to the fifth cause of action. To sustain the demurrer of defendant City of Fresno (“City”) to plaintiff's third, fourth, and sixth causes of action for failure to state facts sufficient to constitute a cause of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff shall serve and file its first amended complaint within...

Excerpt: ...der (1990) 217 Cal.App.3d 1509, 1512; see also Rev. & Tax. Code, § 23305.5, subd. (a)(2).) In addition, “a plea of lack of capacity of a corporation to maintain an action by reason of a suspension of corporate powers for nonpayment of its taxes ‘is a plea in abatement which is not favored in law, is to be strictly construed, and must be supported by facts warranting the abatement' at the time of the plea.” (Traub Co. v. Coffee Break Servic...

Excerpt: ...ubdivision (b).1 On application, the court may, on any terms as may be just, relieve a party from a default taken against it due to mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) In order to obtain relief under Code of Civil Procedure section 473, the party's application for relief, among other things, “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, othe...

Excerpt: ... than 20 court days from the date of this order, with the time to run from the service of this minute order by the clerk. Explanation: Code of Civil Procedure section 2023.010(g) makes “[d]isobeying a court order to provide discovery” a “misuse of the discovery process,” but sanctions are only authorized to the extent permitted by each discovery procedure. Once a motion to compel answers is granted, continued failure to respond or inadequ...

Excerpt: ...applicable summary judgment framework is well explained in Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150: “In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibit...

Excerpt: ... condition, and in any event defendants had no actual or constructive notice of the unsafe condition to create a duty that defendants thereon breached.1 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 issue to be determined by the trial court in considerat...

Excerpt: ...rt 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 Newberg, Newberg and Rubenstein on Class Actions (Westlaw, 2017) Section 7...

Excerpt: ...plaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer Defendant‐attorney demurs to plaintiff's sole cause of action for legal malpractice on the grounds that the Third Amended Complaint (“TAC”) fails to state facts sufficient to constitute a cause of action and the pleading is uncertain. Objections that a complaint is ambiguous or uncertain, or that essential facts ap...

Excerpt: ...sponses to Special Interrogatories, Set One, as to Requests Nos. 14, 40‐45, and 53. To order GM to provide further responses to Request for Production of Documents, Set One, as to Requests Nos. 1, 6‐9, 15, 16, 24, 25, and 27. To deny the motion as to Request for Production of Documents, Set One, as to Requests Nos. 3, 17, 31 and 33. GM shall serve verified supplemental responses without objections within 20 days of the date of the service of ...

Excerpt: ... 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 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 a...

Excerpt: ...�[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” (Civ....

Excerpt: ...ion 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 analysis: identifying the issues as fra...

Excerpt: ...t al. for Attorneys' Fees and Costs by Plaintiff Westlands to Tax Memorandum of Costs Filed by Defendant North Coast River Alliance Tentative Ruling: To grant the motion of defendants County of San Joaquin and County of Trinity for an award of attorneys' fees against plaintiff Westlands Water District (Westlands) in the amount of $197,163.75. To grant the motion of defendants California Water Impact Network (CWIN) et al. for an award of attorneys...

Excerpt: ...ctions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” The purpose for consolidation is to promote trial convenience and economy by avoiding duplication of procedure particularly in t...

Excerpt: ...order 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).) In addition, “[a] motion for summary adjudication shall be granted...

Excerpt: ...tial responses to Form Interrogatories, Set Two from plaintiff Ericka Lollis; and request for sanctions Tentative Ruling: To grant the motion seeking an order deeming the truth of matters specified in the Requests for Admission, Set Two established pursuant to Code of Civil Procedure section 2033.280, subdivision (b) against plaintiff Reginald Robinson unless responses in substantial conformity with Code of Civil Procedure section 2033.220 are se...

Excerpt: ...stayed until plaintiff proffers proof that he has posted the security as ordered. (Code Civ. Proc. § 391.6.) If plaintiff fails to post security within 30 days as ordered, the court will dismiss the action upon an ex parte application by defendants. (Code Civ. Proc. § 391.4.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits ...

Excerpt: ...nd 20 of plaintiff's Request for Production of Documents, set one within twenty (20) days from the date of this order. To grant the request for monetary sanctions in the amount of $2,560, payable no later than twenty (20) court days from the date of this order, with the time to run from the service of this minute order by the clerk. Explanation: Discovery requests are generally afforded liberal construction. (See Code of Civ. Proc., § 2017.010; ...

Excerpt: ... dismiss the representative portion of the PAGA claim. Explanation: Notice of Joinder Defendant Aerotek, Inc. (“Aerotek”) seeks an order compelling plaintiff to private arbitration of his wage and hour claims and his PAGA claim as an individual, and to dismiss the representative portion of the PAGA claim brought on behalf of all aggrieved employees. A notice of joinder to join in Aerotek's motion was filed by DMM Packaging, Inc. (“DMM”) o...

Excerpt: ...en (7) days of the date of service by the clerk of this order, a proposed judgment dismissing this action as to them. The court denies defendants' additional request for monetary sanctions. Explanation: Code of Civil Procedure section 2023.010, subdivision (g) construes “[d]isobeying a court order to provide discovery” to be a “misuse of the discovery process,” but sanctions are only authorized to the extent permitted by each discovery pr...

Excerpt: ...judgment. To deny summary adjudication of issues one, two, three and four. To grant summary adjudication of issue five. (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 judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c).) Summary adjudication is the proper mechanism for challenging a particular “c...

Excerpt: ...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 Newberg, Newberg and Rubenstein ...

Excerpt: ...p. (1998) 67 Cal.App.4th 995, 999; see also Templo v. State of Calif. (2018) 24 Cal.App.5th 730, 735 [“‘motion for judgment on the pleadings is equivalent to a demurrer'”].) Accordingly, a defendant is entitled to a judgment on the pleadings where the plaintiff's complaint shows, on its face, that its causes of action are barred by an applicable statute of limitations. (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440; see also Commi...

Excerpt: ...g: To overrule defendant Clovis Unified School District's (“CUSD”) demurrer to the fourth cause of action of the First Amended Complaint (“FAC”). (Code Civ. Proc., § 430.10, subds. (b), (d).) CUSD shall file its answer to the FAC within 10 days of service of the order by the clerk. To quash the subpoena served on Saint Mary's Medical Center (“St. Mary's”), without prejudice to CUSD serving a more narrowly tailored subpoena. (Code Civ...

Excerpt: ...f the accident, or on any other date. Therefore, she contends that plaintiff Felix Guevara, who was a passenger in the car and who was injured when Ibrahim allegedly drove the car in a negligent manner and caused it to roll over, cannot recover against her under a negligent entrustment theory or under the vehicle owner liability statute, Vehicle Code section 17150. Under Vehicle Code section 17150, “[e]very owner of a motor vehicle is liable an...

Excerpt: ...y department at defendant Madera Community Hospital (MCH) on April 15, 2020 in great pain and was diagnosed with a torn artery which required surgery. Decedent was subsequently transferred to a couple other medical facilities, but passed away on April 24, 2020. Plaintiff alleges that MCH negligently failed to exercise the proper degree of knowledge and skill in examining, diagnosing, treating, and caring for decedent. As the moving party, a defen...

Excerpt: ...t, or in the alternative summary adjudication. (Ibid.) Defendant shall submit a proposed judgment consistent with this court's order within 10 days of the date of service of the order. Explanation: First, to the extent that plaintiffs have moved for summary adjudication of their first cause of action under an unjust enrichment theory, the motion has been improperly brought because the court has already ruled that plaintiffs cannot state a claim a...

Excerpt: ...laintiff brings a single cause of action under PAGA on behalf of himself and all aggrieved employees under Labor Code section 2698 et seq. Defendant now seeks an order compelling plaintiff to private arbitration of his PAGA claim as an individual, and to dismiss the representative portion of the PAGA claim brought on behalf of all aggrieved employees. Motion to Compel Arbitration A trial court is required to grant a motion to compel arbitration �...

Excerpt: ...ossComplaint. The time to file such pleading will run from service by the clerk of this minute order. All new allegations in the Second Amended Cross‐Complaint are to be set in boldface type. Explanation: First American demurs to Cross‐Complainant's first and only cause of action for professional negligence, contending that she fails to allege facts sufficient to state a valid claim. In particular, First American contends that the First Amend...

Excerpt: ...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.) 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 him or her through his...

Excerpt: ...btor is not the occupant, on the judgment debtor. Service shall be made personally or by mail. At the hearing on the motion the court shall determine the occupant's right to possession and shall make an order including terms and conditions that are appropriate under the circumstances of the case. (Code Civ. Proc., § 700.080(c) (emphasis added).) Where, as here, the personal property subject to the writ of possession is being used as a dwelling t...

Excerpt: ...r 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 state laws which ...

Excerpt: ...tion against defendant alleging five causes of action: (1) right of possession of personal property; (2) fraud; (3) conversion; (4) declaratory relief; and (5) injunctive relief, regarding a 1926 Ford Phaeton convertible. Plaintiff now seeks summary judgment of his Complaint or, in the alternative, summary adjudication of the claims that “Defendant converted, and is in wrongful possession of Plaintiff's property, and Plaintiff is entitled to it...

Excerpt: ...f contract. (Code Civ. Proc., § 437c.) Explanation: Plaintiffs have met their burden of showing that defendants' second cross‐ claim for breach of contract is barred by the statute of frauds. Under Civil Code section 1624, “The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: [¶] (1) An agreement that by its terms is not to be ...

Excerpt: ...laintiff and defendant Central California Faculty Medical Group, Inc. (“CCFMG”) on 3/22/22. Southwest shall bates stamp all documents responsive to the subpoena served on 2/8/22, and within 20 days of service of the order deliver the documents to CCFMG. CCFMG may then apply the “Attorneys' Eyes Only” designation to any documents it contends include trade secrets or other protected confidential information. CCFMG shall produce all document...

Excerpt: ...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 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an unc...

Excerpt: ...ourth causes of action. To sustain, without leave to amend, Harco National Insurance Company's demurrer to the fifth cause of action. Plaintiff is granted 20 days' leave to file a Second Amended Complaint. The time to file such pleading will run from service by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Plaintiff filed the operative First Amended Complaint (“FAC”) against de...

Excerpt: ...other causes of action. (Code of Civil Procedure § 430.10, subd. (e).) Plaintiff is granted 10 days' leave to file a First Amended Complaint. The time in which such pleading can be filed will run from service by the clerk of the minute order. New allegations in a First Amended Complaint are to be set in boldface type. Plaintiff shall correctly number the causes of action, and refrain from cumulative or “chain letter” pleading. (Kelly v. Gene...

Excerpt: ...ones Food Company, Fresno County Superior Court case no. 21CECG01408 and Sarmiento v. The Neil Jones Food Company, Fresno County Superior Court case no. 21CECG03825, have been resolved. Explanation: “The party against whom a complaint or cross‐complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: … (c) There is another action pending between the...

Excerpt: ...confer regarding the protective order. To grant defendant's motion to compel further responses to Request for Production No. 18 and direct plaintiff to serve a written verification. To grant plaintiff's motion to compel further responses to Requests for Production Nos. 26, 28 and 31, subject to a protective order. To direct the parties to meet and confer regarding the protective order. To grant plaintiff's motion to compel further responses to Re...

Excerpt: ...mended complaint and dismiss the action against defendant. (Code Civ. Proc., §§ 2023.010, subd. (g); 2030.030, subd. (d).) Defendant shall submit a proposed judgment consistent with the court's order within 10 days of service of the minute order. Explanation: Code of Civil Procedure section 2023.010, subdivision (g) makes “[d]isobeying a court order to provide discovery” a “misuse of the discovery process,” but sanctions are only author...

Excerpt: ...) no. 3. Plaintiffs shall provide a further response to Special Interrogatory (set two), no. 3 within twenty (20) days from the date of this order. The motions are denied in all other respects. To deny the request for imposition of monetary sanctions. Explanation: Associational Privacy (Special Interrogatory no. 2/Requests for Production of Documents nos. 3 and 4) Defendants contend that the requested discovery is justified because “[t]he plain...

Excerpt: ...n, (6) fraudulent concealment, (7) constructive fraud, (8) breach of contract, (9) breach of written contract, (10) unjust enrichment, and (11) unfair competition. Defendant Lometti initially did not respond to the complaint. Plaintiff entered defendant Lometti's default on May 22, 2018, but it was set aside on February 1, 2019 when the court determined that defendant Lometti did not have actual notice of the complaint and summons. Defendant Lome...

Excerpt: ...or monetary sanctions. To deny defendant's motion for a protective order. Explanation: Although there are exceptions, generally the scope of discovery is broad. (Williams v. Superior Court (2017) 3 Cal.5th 531, 541; Tien v. Superior Court (2006) 139 Cal.App.4th 528, 536; Code Civ. Proc., § 2017.010.) In Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282 (Liberty Mutual) the plaintiff alleged a workers compensation insurer made ...

Excerpt: ...aced or affected by the order being appealed. (Code Civ. Proc., § 916, subd. (a).) Explanation: “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter em...

Excerpt: ...request for costs, without prejudice. Explanation: Plaintiffs Antonio Mercado (“Mercado”) and Miriam Olivares (“Olivares”) bring a Complaint with eight causes of action related to the purchase of a 2015 Dodge Charger. Plaintiffs allege a cause of action for fraud and deceit; four causes of action for negligence under various theories; a cause of action for violation of the Consumer Legal Remedies Act; a cause of action for violation of Bu...

Excerpt: ...hasis added).) 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.) Cal. Rules of Court, Rule 3.1324 provides that a motion to amend must: (1) include a copy of the proposed amendment, (2) state what allegations in the previous pleading ar...

Excerpt: ...ules 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 approves the settlement agreement after the final approval hearing, the court must make and enter judgment. The judgment must include a provision for the retention of the court's jurisdiction over the parties to enforce the terms of the judgment. The court may not ...

Excerpt: ...ding shall be filed within 20 days of 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 utili...

Excerpt: ...mber 20, 2022, at 3:30 p.m. in Department 501. To impose a monetary sanction against defendant FCA US LLC in the amount of $5,130, payable no later than thirty (30) days from the date of service of this order. Explanation: Plaintiffs seek to restore jurisdiction of the action to this court by vacating an earlier order compelling arbitration and staying the action. Plaintiffs also seek attorney's fees incurred on the aborted arbitration. Defendant...

Excerpt: ...ore 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, subd. (a)(1).) “A determination by the court that the settlement was made in good faith ...

Excerpt: ...a 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 certified ...

Excerpt: ...il Procedure, section 1290 authorizes a party to seek to compel arbitration by filing a petition in court, and states the petition allegations “are deemed to be admitted … unless a response is duly served and filed.” (Code Civ. Proc., § 1290.) “A response shall be served and filed within 10 days after service of the petition… The time provided in this section for serving and filing a response may be extended by an agreement in writing ...

Excerpt: ...tional Facts” filed on September 8, 2022, is disregarded, as the summary judgment statute does not provide for this. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 248.) Evidentiary Objections No proper evidentiary objections have been made, by either side. Objections are made to the evidence and not to the fact stated on the Separate Statement. Written objections are (inter alia) to be filed separately from other papers, and quote...

Excerpt: ...covery subpoena utilizing the California Judicial Council form SUBP‐030. Metropolitan AME contends that the deponent has not complied with the subpoena and thus petitions, in part, for relief under the provisions of Code of Civil Procedure section 2029.060. That section provides that “[i]f a dispute arises relating to discovery under this article, any request for a protective order or to enforce, quash, or modify a subpoena, or for other reli...

Excerpt: ...e amount of $630 against plaintiff Camalah Kopacz. Sanctions are ordered to be paid by plaintiff within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. Plaintiff shall serve responses, without objections, to defendant Fresno Community Hospital and Medical Center's Form Interrogatories, Set One, Special Interrogatories, Set One, Request for Production of Documents, Set One, and Request fo...

Excerpt: ...depositions. To grant defendant's request for monetary sanctions against plaintiffs John Geyer and Jarrett Geyer in the amount of $730 against each plaintiff for their unjustified and willful refusal to appear for their depositions. (Code Civ. Proc. § 2025.450, subd. (g).) Plaintiffs shall pay monetary sanctions to defense counsel within 30 days of the date of service of this order. To deny defendant's request for terminating sanctions against p...

Excerpt: ...to amend as to all defenses, except for the thirteenth defense. Defendants shall serve and file their first amended answer within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff demurs to each of the 13 affirmative defenses raised in the Answer. A party can object to an answer by demurrer on any one or more of three grounds: (a) The answer does not state facts sufficient to constitute...

Excerpt: ...om service of the notice of ruling and is extended where such notice is served by mail, fax, overnight delivery or electronically. (Code Civ. Proc., §§ 1010.6 and 1013, subd. (a); People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 692.) New allegations/language must be set in boldface type. Explanation: Demurrer Generally The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumle...

Excerpt: ...will run from service by the clerk of the minute order. New allegations/language in the first amended complaint are to be set in boldface type. Explanation: The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The truth of the facts alleged in the complaint are assumed true as well as the reasonable inferences that may be drawn from those facts...

Excerpt: ...he time the complaint is filed. The requirements of the code relating to the time for service of summons are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute. (Code Civ. Proc., § 583.250, subd. (b).) If service is not made in an action within the time prescribed, the action may not be further prosecuted and no further proceedings may be held in the action, and the action must be dismissed b...

Excerpt: .... Explanation: Defendant Target Corporation moves to strike the punitive damages allegations and prayer from plaintiff's FAC filed on January 13, 2022. The FAC alleges that plaintiff was “injured due to negligently installed and negligently maintained handicap sign located at or near the entrance to the premises.” Punitive damages are sought because defendants “forc[ed] patrons to enter and exit the aforesaid Target retail store through a n...

Excerpt: ...xplanation: Code of Civil Procedure section 436 provides, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading, (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.” A motion to strike may be use...

Excerpt: ...ation: Unless otherwise provided for, no suit for money or damages may be brought against a government entity (or against a government employee acting in the scope of employment) unless and until a timely claim has been presented pursuant to the Government Claims Act and either acted upon or deemed rejected by the passage of time. (Govt. Code, §§ 945.4, 950.2, 912.4.) “A claim relating to a cause of action for death or injury to person… sha...

Excerpt: ...n “while alleviating [the defendant's] difficult choice between defending either the civil or criminal case.” (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.) Pursuant to both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding. (U.S. Const., 5th Amend.; Cal. Const., art. 1, § 15; see Evid. Code, § 940.) The privile...

Excerpt: ...he presiding judge prior to filing any new litigation in the courts of this state in propria persona. (Code Civ. Proc. § 391.7.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260,...

Excerpt: ...ng judge prior to filing any new litigation in the courts of this state in propria persona. (Code Civ. Proc. § 391.7.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265.) Th...

Excerpt: ...o compel the deposition of Julianne Williams without prejudice. (Cal. Rules of Court, rule 3.1345(a)(5), (b).) To grant plaintiff's motion to compel the deposition of Dycora Transitional Health— Weber Oaks LLC's (“Dycora—Weber Oaks”) person most knowledgeable. Dycora— Weber Oaks shall produce the person most qualified to testify regarding categories 1‐16. (Code Civ. Proc., § 2025.450, subd. (a).) To grant plaintiff's motion to compel...

Excerpt: ...visions continuing in full force and effect. (See Defendant's Evidence, Ex. A [Dispute Resolution Agreement].) To grant defendant's motion to stay the pending court action until the arbitration has been resolved. (Code Civ. Proc., § 1281.4.) In light of the court's order granting the motion to compel arbitration, the demurrer set for October 27, 2022 is taken off calendar as moot. Explanation: Pursuant to California Code of Civil Procedure secti...

Excerpt: ...ence, 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).) “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that dat...

Excerpt: ...le their second amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. To deny the motion for terminating sanctions, but to grant the motion for monetary sanctions and impose monetary sanctions against plaintiffs and their attorney of record, Ilan N. Rosen Janfaza, jointly and severally, in the amount of $3,458.14, payable no later than thirty (30) days from the date of service of th...

Excerpt: ...against plaintiff Maciej Kopacz, M.D. Sanctions are ordered to be paid by plaintiff within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. Plaintiff shall serve responses, without objections, to defendant Fresno Community Hospital and Medical Center's Special Interrogatories, Set One, Request for Production of Documents, Set One, and Request for Nature and Amount of Damages no later than...

Excerpt: ...e 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 state laws which ‘require a judicial forum for the resolution of claims which the contracting p...

Excerpt: ...vely. Robert and Sharleen Robson have both since passed away, and defendant Steven A. Smith is the sole Trustee of The Sharleen G. Robson Survivor's Trust, established under the terms of the Robson Family Living Trust dated March 27, 2001 as amended and restated July 31, 2015. Plaintiffs assert that they attempted to exercise their option to purchase the interest Sharleen Robson had as to both the orchard and the ranch, pursuant to the terms of b...