Excerpt: ...ipt of the hearing), as defense counsel states they did. Further, the trial minute order from September 10, 2018, indicates it was “not reported,” so it does not appear it could have been put “on the record.” Thus, the court can only consider the terms of the written settlement agreement to determine if it is enforceable pursuant to Code of Civil Procedure section 664.6 (“section 664.6”). The written agreement was signed only by Mrs. ...

Excerpt: ...g parties shall submit proposed judgments consistent with the court's order within 10 days of the date of this order. Explanation: California State University's Motion: Plaintiff has alleged only one cause of action against CSU based on CSU's allegedly negligent hiring training, supervision, retention, and investigation of defendant Andres Perez‐Esteban. However, defendant has presented evidence that it never hired Esteban, and that Esteban was...

Excerpt: ...42,500, with the balance going to the nonappearing defendants. Any supplemental papers must be received by the Court no later than Friday, February 22, 2019. Explanation: The legislature requires the Court to approve any settlement of a complaint seeking civil penalties under the Labor Code Private Attorneys General Act of 2004 (“PAGA”). (See Labor Code §§2699, subd.(l); 2689, et seq.) However, neither the Legislature nor the California Lab...

Excerpt: ...ommencing with Section 701.510) of Chapter 3 of Division 2 of Title 9. The sale is not final until confirmed by the court.” (Code Civ. Proc., § 568.5.) The proposed sale of the property will be conducted according to law. California Rule of Court 3.1180 provides: A receiver must not employ an attorney without the approval of the court. The application for approval to employ an attorney must be in writing and must state: (1) The necessity for t...

Excerpt: ...ego will unduly prejudice defendants; and (4) bifurcation will result in jury confusion. Plaintiffs oppose, arguing judicial economy will not be promoted because there is significant overlap between the evidence related to alter ego liability and the evidence that will be relevant to the balance of the issues. Under Code of Civil Procedure section 1048(b) the court “in furtherance of convenience or to avoid prejudice, or when separate trials wi...

Excerpt: ...ia Rule of Court 3.500(e). Moving party is also ordered to “take all appropriate action necessary to assure that the transfer takes place and that proceedings are initiated in” San Joaquin County Superior Court “to complete consolidation” with the case pending in that court, pursuant to California Rule of Court 3.500(f). The trial date of February 25, 2019, mandatory settlement conference date of January 30, 2019, and trial readiness hear...

Excerpt: ...on for sanctions without prejudice. Plaintiff has not successfully made a motion. Explanation: The evidence presented is insufficient to support the motion. All that need be shown in the moving papers is that the discovery was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (See Leach v. Sup.Ct. (1980) 111 CA3d 902, 905–906.) Plaintiff has failed to provide evidence ...

Excerpt: ...ake a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant meets that burden by showing that one or more elements of the cause(s) of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. § 437c, subds. (p)(2), (o)(2).) Once the moving party has met its initial burden, the burden shifts to the opposing party to produ...

Excerpt: ...on settlement, plaintiff also seeks class certification for the purposes of approving the settlement. Therefore, the court must first determine whether the class should be certified before deciding whether the settlement should be preliminarily approved. “Code of Civil Procedure section 382 authorizes class actions ‘when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impractic...

Excerpt: ...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 Civ. Proc., § 473, subd. (a).) “ ‘Code of Civil Procedure section 473, which gives the courts power to permit amendments in fur...

Excerpt: ...errule Defendants' demurrer to the remaining causes of action. To grant Defendants' motion to strike Plaintiff's claims for punitive, special, and exemplary damages, with leave to amend. Plaintiff is granted 20 days, commencing from service of the minute order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer In testing a pleading against a...

Excerpt: ...aint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Second Cause of Action: Failure to Engage in Good Faith Interactive Process It is a jurisdictional prerequisite to state a claim under the Fair Employment and Housing Act (FEHA) that the plaintiff exhausted his administrative remedies before commencing a lawsuit. (Gov. Code, §§ 12960, 12901, 12925, subd. (b); O...

Excerpt: ... a writ of possession concerning personal property identified as a “Vatech PAX‐I 3D Green 15X15, Mfg. #30P15X15, Master Serial Number 055‐0991” which is valued at $32,100. Plaintiff contends that the equipment was delivered to 5151 N. Palm Ave. Suite 320, in Fresno, CA, pursuant to an Equipment Finance Agreement and that the Defendants are in default of the Agreement by failing to make monthly payments. Whether a writ of possession is to ...

Excerpt: ...ree speech rights and/or right to petition. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658.) The defendant must establish that the “core injury‐producing conduct upon which the plaintiff's claim is premised” is protected speech. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 2364, 1272.) The meaning of “arising from” in Code of Civil Procedure, section 425.16, subdivision (b)(1...

Excerpt: ...ant to show, by a preponderance of the evidence, that it is more likely than not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exist...

Excerpt: ...esolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Market Ins. Corp. v. Integrity Ins. Co. (1987) 188 Cal. App. 3d 1095, 1098, internal citations omitted.) “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, th...

Excerpt: ...r the Federal Employers Liability Act. He claims that on March 15, 2015, he suffered neck and lower back injuries when he was struck on the right side of the head by an object that entered through an open window while he was operating a locomotive owned by the Defendant Union Pacific. He alleges that the air conditioner was broken and the windows were open for cooling purposes. At the time, he was working as a locomotive engineer on UP644 at Defe...

Excerpt: ...within 10 days of service of the minute order plus 5 days for service via mail. (CCP § 1013) Explanation: Background On February 10, 2017, Plaintiff filed a judicial form Complaint alleging a cause of action for motor vehicle negligence and a cause of action for general negligence arising from a multi‐vehicle collision that took place on April 2, 2016 on Interstate 70 near Spiceland, Indiana. Plaintiff alleges that its truck was “rear‐ end...

Excerpt: ...been issued, this is unnecessary. Jack filed this motion twice, once on June 14, 2018, in an attempt to have it heard ex parte, which the court ordered off calendar, and a second time on July 2, 2018, after the court instructed defendant that he must file a noticed motion.2 Since the supporting declarations filed with each motion are slightly different as to some crucial details, they are both considered in analyzing defendant's request to set as...

Excerpt: ...ring the 45‐ day leave to amend period. The time in which the answer can be amended will run from service by the clerk of the minute order. Explanation: Defendant Golden, a corporation, filed its Answer to the Complaint in pro per. The answer was signed by Golden's CFO. A corporation cannot represent itself in court either pro per or through an officer or agent who is not an attorney. (Caressa Camille, Inc. v. Alcohol Beverage Control Appeals B...

Excerpt: ...t One, and Request for Production of Documents, Set One, without objection, and shall produce all documents responsive to the requests for production. All objections are waived. To impose monetary sanctions in favor of plaintiffs in the amount of $767.00 against Voua Yang and Cindy Mai Xiong (Code Civ. Proc. §§ 2023.010(d), 2023.030(a)), to be paid within 30 days of service of the order by the clerk. To order plaintiffs to pay filing fees of $1...

Excerpt: ... order. Explanation: A prevailing buyer in an action under the Song–Beverly Consumer Warranty 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, ...

Excerpt: ...irst amended 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 grant defendant First American's motion to strike the references to malice, fraud, and oppression, and the requests for punitive damages and attorney's fees against it in the first amended complaint, as improper and unsupported. (Code Civ. Proc. §§ 435, 436.) To deny leave to amend. To...

Excerpt: ....40, subds. (a), (d).) Here, Mr. McKey's application does not meet the requirements set forth in California Rules of Court, rule 9.40. The application does not include his place of residency, and no evidence is submitted to show that he does not regularly engage in substantial business, professional, or other activities in the State of California. Pursuant to California Rules of Court, rule 391(a) and Code of Civil Procedure section 1019.5, subd....

Excerpt: ...ther equipment with a California Certificate of Title and eligibility to be licensed for travel on public roads in California) as part of the receivership estate. Although they have filed no opposition to this motion, Defendants apparently objected to the Receiver's sale of vehicles because Plaintiff has no security interest in them. The Order at paragraph 2 provides that the Receiver was to “take possession of all that certain Personal Propert...