Excerpt: ....2 states, in relevant part: 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 right to compel arbitration has been waiv...

Excerpt: ...court to select five nominees from the lists of arbitrators submitted by the parties, then have the parties jointly choose an arbitrator. (Code Civ. Proc., § 1281.6.) The court selects the following nominees: • Hon. Donald S. Black (ret.) • Hon. Joseph R. Brisco (ret.) • Hon. Craig S. Kamansky (ret.) • Hon. Alan Simpson (ret.) • Russell D. Cook, Esq. The parties may either choose an arbitrator from the list above, or jointly select an ...

Excerpt: ...laintiffs shall serve and file their first amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface type. To grant the motion to strike and strike the phrase “without limitation” from the complaint at pages: 3:7, 4:24, 5:1, 5:9, 5:11, 5:14, 5:20, 5:28, 6:11, 6:21, 6:24, 6:25‐ 7:1, 7:3, 7:10, 7:11, 7:13‐14, 7:16, 7:22, 7:26, 8:1, 8:7, 8:10, 8:11, 11:9, 12:20 ‐21, 12:25, 13:3, 1...

Excerpt: ... service by the clerk of the minute order. New allegations in the First Amended Complaint are to be set in boldface type. The court sustains the demurrer to the second cause of action without leave to amend. The court grants the motion to strike the prayer for pre‐judgment interest and punitive damages, in light of plaintiff's notice of non‐opposition, without leave to amend. The court grants the request for judicial notice of the tort claim ...

Excerpt: ...set in boldface type. Oral argument for this matter is set on November 2, 2022, at 3:30 p.m. in Department 503. Plaintiff may appear through CourtCall. Explanation: “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, r...

Excerpt: ...ns, pre‐ employment physical records, questionnaires, job descriptions, job duties, job applications, termination notices, exit interview records, disability payments, disability claims, disciplinary notices, leave of absence records, attendance records, hours worked, time cards, supervisor review notes, work related injury records, workers compensation claims, insurance benefits, and all other records for all dates pertaining to: DR. TIRATH GI...

Excerpt: ...ponent to personally attend the deposition and testify, as well as to attend any court session to consider any issue arising out of (inter alia) the deponent's refusal to be sworn, as here. (Code Civ. Proc., § 2020.220.) If a deponent on whom a deposition subpoena has been served fails to attend a deposition, the court may impose on the deponent sanctions described in Code of Civil Procedure section 2020.240. (Code Civ. Proc., §2025.440, subd. ...

Excerpt: ...1, 2022. 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, CCTC conducted an investigation into plaintiff's allegations against Aprile. On March 1, 2022, plaintiff served CCTC with a subpoena seeking production of documents generated in or rel...

Excerpt: ...he trial should be set on a shortened time basis to mitigate any prejudice to defendants from plaintiffs' continued occupancy of the premises. To grant defendants' motion to order plaintiffs to pay damages into an escrow account in order to remain in possession of the premises until the case is resolved. (Code Civ. Proc. § 1170.5, subd. (c).) Plaintiffs shall pay $3,185 per month into the escrow account. Explanation: First, to the extent that de...

Excerpt: ..., with leave to amend. Plaintiff shall serve and file an amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface type. Explanation: A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired, and so the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) As in demurrers,...

Excerpt: ...219 Cal.App.4th 367.) Explanation: Plaintiff Maria Angel (“plaintiff”) requests that the unlawful detainer action, Case No. 22CECL03151, be consolidated with the unlimited civil action, Case No. 22CECG02212, since the unlawful detainer action would otherwise proceed to trial more quickly, before plaintiff's claim to own title to the property could be decided, and she could be evicted from her own property. Under Code of Civil Procedure, secti...

Excerpt: ...Defendant contends that claims under Labor Code section 1102.5 are governed by a one‐year statute of limitations, since they are claims under a statute that provides for a civil penalty. (Code Civ. Proc., § 340, subd. (a).) Defendant notes that Labor Code section 1102.5, subdivision (f), provides for a mandatory civil penalty of no more than $10,000 for each violation. Thus, defendant concludes that, since plaintiff did not file his action wit...

Excerpt: ...'s summary judgment ruling. To sustain defendant's objections nos. 1 thru 3. All other objections are overruled pursuant to Code of Civil Procedure, section 437c, subdivision (q). Explanation: Summary Judgment A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610,...

Excerpt: ...ommercial real estate for plaintiff to operate an auto repair business, with the oral agreement being that, even though title would be taken in the Morenos' name, plaintiff would make the payments on the property (mortgage, insurance, taxes, and maintenance), and the Morenos would just “hold title” in their name. This alleged agreement has spawned two legal actions and years of litigation, with this action commenced in 2016. At one point, the...

Excerpt: ...the complaint within 10 days of service of this order. Explanation: These motions arise out of a complaint filed November 10, 2021 for (1) breach of written contract; (2) breach of the implied covenant of good faith and fair dealing; (3) unjust enrichment; (4) violation of Business and Profession Code section 17200 et seq.; (5) declaratory relief, with request for temporary, preliminary, and permanent injunctive relief; and (6) money had and rece...

Excerpt: ...court … for settlement of the case … , the court, upon motion, may enter judgment pursuant to the terms of the settlement.” 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 he agreed to pay under the settlement agreement, and then failed to cure his default. It does not appear to be disputed that, although defendant made several paym...

Excerpt: ...e first and second causes of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) To grant Montgomery's motions to strike the prayer for punitive damages, and the allegation at paragraph 30 that “Defendant AIMEE MONTGOMERY, D.M.D.'s actions as described above, were malicious, willful, and made in conscious disregard for Plaintiffs health and well‐being.” (Code Civ. Proc., §§ 436, 425.13.) To overrule Smith's demurrer to t...

Excerpt: ... truth of all material factual allegations in the complaint” and the plaintiff's “ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court ….” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496; Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 190 [“We assume the truth of the properly pleaded factual allegations, facts that reasonably can be i...

Excerpt: ...e second cause of action for conversion on the ground that the Complaint fails to state a claim. Mr. Weyant contends that the subject property of the action is not amenable to conversion as a matter of law. To state a claim for conversion, a plaintiff must allege: “(1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. ...

Excerpt: ...duction, Set One; and (3) For Monetary Sanctions Tentative Ruling: To grant plaintiff's motion to compel the deposition of Dycora Transitional Health— Quail Lake LLC's (“Dycora—Quail Lake”) person most knowledgeable. Defendant Dycora—Quail Lake 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 document production regarding requ...

Excerpt: ...ed person(s) who have not timely served an objection pursuant to Code of Civil Procedure section 2025.410 or otherwise obtained the consent of all interested parties agreeing to the non‐appearance of the party or person(s) at the deposition as noticed or subpoenaed, and motions to compel initial responses to interrogatories, requests for production and requests for admissions, no motion under sections 2016.010 through 2036.050, inclusive, of th...

Excerpt: ...lment Sale Contract. Explanation: Plaintiff contracted to purchase the vehicle from Lithia Nissan of Clovis on credit. (Pacheco Decl., ¶5, Exh. A.)The dealership then assigned its interest in the contract to American Credit Acceptance, LLC (ACA). (Pacheco Decl. ¶¶ 6‐9, Exh. B; Henao Decl. ¶¶ 7, 11‐12.) The retail sales installment contract (RISC) contained an agreement to arbitrate disputes that arise between plaintiff purchaser and Lith...

Excerpt: ...and dismiss the action against defendants. (Code Civ. Proc., §§ 2023.010, subd. (g); 2030.030, subd. (d).) Defendants 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 authorized to the ext...

Excerpt: ...il Procedure section 1255.010 [the probable amount of compensation to be awarded to defendants], plaintiff has failed to provide notice of its motion to all the requisite parties. Notice Requirement A motion for prejudgment possession must be served on the “record owner of the property and on the occupants, if any.” (Code Civ. Proc., § 1255.410, subd. (b).) “‘[R]ecord owner' means the owner of the legal or equitable title to the fee or a...

Excerpt: ... the same lawsuit. Thus, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) Courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) If plainti...

Excerpt: ...with adverse interests. The Complaint identifies three different legal actions wherein defendants represented parties with adverse interests: the Akoo, Misaghi and Sanchez actions. The Akoo action was filed on 7/15/20, and on 8/3/20 defendants accepted service of the Complaint and thereafter continued to litigate the matter. The Misaghi action was filed on 2/1/21. Defendants represented the defendant in that action, and filed an Answer and Cross�...

Excerpt: ...e to amend. Plaintiff is granted 20 days, running from the date of service of the minute order by the clerk, to file and serve a second amended complaint. Explanation: On December 16, 2021, this court sustained defendant's demurrer to plaintiff's original complaint, with leave to amend, except that leave to amend was not granted to state a petition for a writ of mandate. The court found that, among other things, the original complaint failed to s...

Excerpt: ...e in boldface. To deny defendants' motion to strike each cause of action of the First Amended Complaint. Explanation: On April 7, 2021, plaintiff filed suit against defendants alleging breaches of a leaseoption agreement of agricultural property. Plaintiff pled six causes of action: (1) breach of contract of lease of agricultural property; (2) breach of contract of purchase of a residence; (3) breach of implied covenant of good faith and fair dea...

Excerpt: ...esponses to Form Interrogatories (Set Two), Special Interrogatories (Set One), Request for Production of Documents (Set Two). To grant defendant Smart & Final's motion for an order deeming Requests for Admissions admitted. The truth of the matters specified in the Requests for Admissions, Set One, are to be deemed admitted unless plaintiff Laura Mendoza serves, before the hearing, a proposed response to the Requests for Admission that is in subst...

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, 93‐95.) “Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well‐defined community of in...

Excerpt: ...companied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: [�...

Excerpt: ... overrule plaintiffs' objection number 6. All other objections are overruled pursuant to Code of Civil Procedure, section 437c, subdivision (q). To vacate the April 17, 2023 trial date. Explanation: Summary Judgment/Adjudication 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); Schacter v. Citigroup (20...

Excerpt: ...t 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.” (Code Civ. Proc., § 1281.2, subd. (c), emphasis added.) Petitioner brings this motion to enforce the arbitration provision of the subcontractor agreement between itself and respondent JT2, Inc. The agreement states in pertinent part...

Excerpt: ... 85, subdivision (a), “an action or special proceeding shall not be treated as a limited civil case unless all of the following conditions are satisfied: [¶] (a) The amount in controversy does not exceed twenty‐five thousand dollars ($25,000).” (Code Civ. Proc. § 85, subd. (a).) “As used in this section, ‘amount in controversy' means the amount of the demand, or the recovery sought, or the value of the property, or the amount of the l...

Excerpt: ...s, but merely discovers, through the medium of affidavits or declarations, whether there are issues to be tried and whether the parties possess evidence that demands the analysis of a trial. (Melamed v City of Long Beach (1993) 15 Cal.App.4th 70, 76; Molko v Holy Spirit Ass'n (1988) 46 Cal.3d 1092, 1107; Schwoerer v Union Oil Co. (1993) 14 Cal.App.4th 103, 110.) In short, the motion is not a substitute for a bench trial. A summary judgment motion...

Excerpt: ...mended Complaint. The time to 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: Demurrer to the First and Fourth Causes of Action for Breach of Written Contract and Breach of Implied Covenant of Good Faith and Fair Dealing: Defendants demur to the first and fourth causes of action on the grounds that these causes of action cannot be maintained as ...

Excerpt: ... § 430.10, subds. (e) and (f).) Plaintiff is granted 20 days' leave to file a First 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: Untimely Opposition: “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days […] before the hearing.�...

Excerpt: ...Set One Tentative Ruling: To grant defendant Central California Ear Nose & Throat Medical Group's (“CCENT”) motion for relief from waiver of objections. (Code Civ. Proc., §§ 2030.290, subd. (a)(1); 2031.300, subd. (a)(1).) To take plaintiff's motions to compel off calendar due to failure to comply with Local Rule 2.1.17 or the meet and confer requirements of Code of Civil Procedure sections 2016.040, 2030.300, subdivision (b)(1), and 2031.3...

Excerpt: ... of Clovis on credit. (Pacheco Decl., ¶5, Exh. A.)The dealership then assigned its interest in the contract to American Credit Acceptance, LLC (ACA). (Pacheco Decl. ¶¶ 6‐9, Exh. B; Henao Decl. ¶¶ 7, 11‐12.) The retail sales installment contract (RISC) contained an agreement to arbitrate disputes that arise between plaintiff purchaser and Lithia Nissan or its assigns, which arise out of or relate to the credit application, purchase or con...

Excerpt: ...mpetent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies...

Excerpt: ...st plaintiff and his counsel in the amount of $1,035. (Code Civ. Proc., § 1987.2.) Plaintiff shall pay sanctions to defendant within 30 days of the date of service of this order. Explanation: Under Code of Civil Procedure section 1987.1, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the ta...

Excerpt: ...he parties as indicated below. (Code Civ. Proc., § 2025.450, subd. (c)(1).) To impose $2,865 in monetary sanctions, to be paid within 30 days to counsel for defendant. Explanation: The motion is brought pursuant to Code of Civil Procedure section 2025.450. subdivision (a), which provides: If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an o...

Excerpt: ... Young moves for summary judgment of the entire Complaint against her on the ground that she did not grant permission to the driver, defendant Ramzy Ibrahim, to drive her vehicle on the date of 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 u...

Excerpt: ...ion (a), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading 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 ...

Excerpt: ...; and (3) battery. Defendants Kevin F. Ciresi, M.D., and Kevin F. Ciresi, M.D., Inc. (together “Defendants”) bring a general demurrer as to the third cause of action, for battery, for failure to state facts sufficient to constitute an action, and a specially demurrer to the third cause of action for uncertainty. Applicable Standards On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. A demurrer is si...

Excerpt: ...nding between the same parties on the same causes of action. (Code Civ. Proc. § 430.10, subd. (c).) It claims that plaintiffs in the present action are members of the putative class of an earlier filed action in Fresno Superior Court for the same wage and hour claims against the same defendant. (See Defendant's Request for Judicial Notice, Exhs. 1 and 2, Complaint and First Amended Complaint filed in Gonzalez v. Charlie's Enterprises, Inc., et a...

Excerpt: ... plaintiff's double minimum wage claim. Plaintiff is granted 20 days' leave to file the first amended complaint, if necessary. If plaintiff cannot amend the complaint accordingly, plaintiff shall file a declaration indicating as such. The time to file the first amended complaint will run from service by the clerk of the minute order. All new allegations in the first amended complaint are to be set in boldface type. DMM Packaging, Inc.'s (“DMM�...

Excerpt: ... an action in which it is alleged that two 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).) “The issue of the good faith of a se...

Excerpt: ...division (a), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading 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...

Excerpt: ... M.D., moves for summary judgment based on the declarations of a medical expert, Lundy Campbell, M.D., who has opined that Dr. Van Putten's care and treatment of plaintiff did not fall below the standard of care, and that nothing he did or failed to do caused plaintiff any injury. “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care o...

Excerpt: ... (Code Civ. Proc. § 405.34.) 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 court may permit evidence to be received in the form o...

Excerpt: ...n 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 date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disabili...

Excerpt: ...ifornia and federal law “favor[] the enforcement of valid arbitration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) Nevertheless, arbitration is a “ ‘matter of consent, not coercion,'” and “ ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' ” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4...

Excerpt: ...ne whether the proposed class meets 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 (rev. denied); see also Newberg, Newberg on Class Acti...

Excerpt: ...ary adjudication of each separate cause of action. (Code Civ. Proc. § 437c.) Explanation: First, defendant Saint Agnes has moved for summary adjudication of the medical negligence cause of action on the ground that plaintiffs cannot prevail on their claim for malpractice against the hospital because the treating doctor, Dr. Iberdemaj, is not an employee or agent of the hospital and therefore the hospital cannot be held vicariously liable for his...

Excerpt: ...est for Production of Documents, Set Two, 15 days late. As a result, all objections were waived. (Code Civ. Proc., § 2031.300, subd. (a).) Relief from waiver of objections may be granted where both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (2) The party's failure to serve a timely response was th...

Excerpt: ...clerk to set the final approval hearing. Explanation: 1. Class Certification A precertification settlement may stipulate that a defined 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...

Excerpt: ...ourth Causes of Action for Racial and Age Harassment: Defendants demur to the third and fourth causes of action on the grounds that the Second Amended Complaint (“SAC”) fails to allege sufficient facts to state a cause of action for harassment. Plaintiff's third and fourth causes of action alleges harassment in violation of the California Fair Employment and Housing Act (“FEHA”), Government Code, section 12940, subdivision (j), by defenda...

Excerpt: ...es to special interrogatories, set one, numbers 1, 2 and 3, and requests for production of documents, numbers 3, 5, 7 and 9. (Code Civ. Proc. §§ 2030.300; 2031.310.) Defendant shall serve responses to the interrogatories 2 and 3 and requests for production 3, 5, 7, and 9 without objections within 21 days of the date of service of this order. The parties shall meet and confer regarding a Belaire‐West notice to be sent to the putative class mem...

Excerpt: ...vide responses as specified in the 2/28/22 order within 20 days of service of this order by the clerk. Explanation: On 2/14/22 plaintiff filed a Pretrial Discovery Conference (“PDC”) Request concerning production demands and special interrogatories propounded on defendant on 10/29/21. On 2/28/22 the court ordered defendant to provide discovery responses without objection due to defendant's failure to file an opposition to the PDC Request. On ...

Excerpt: ...ification a. Standards First, the court must determine whether the proposed class meets 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 (r...

Excerpt: ...28 Cal.App.4th 81 (rev. denied).) “Confronted with a request for settlement‐only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems for the proposal is that there will be no trial. But other specifications of the rule ‐‐ those designed to protect absentees by blocking unwarranted or overbroad class definitions ‐‐ demand undiluted, even heightened, attention ...

Excerpt: ...complaint under Code of Civil Procedure section 425.16, contending that the complaint is a strategic lawsuit against public participation (“SLAPP”), and thus subject to being stricken unless plaintiff can show by admissible evidence that he has a probability of prevailing on the merits of his claims. 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 ...

Excerpt: ...the Award of Attorney's Fees Plaintiff may not collect postjudgment interest on the award of attorney's fees. “In order to be an enforceable judgment for attorney fees under the Song‐Beverly Act, to which postjudgment interest begins to run, the judgment or order must finally dispose of the rights of the parties in the action.” (Hyundai Motor America v. Superior Court (2015) 235 Cal.App.4th 418, 426.) The award of attorney's fees to plainti...

Excerpt: ...n. The court will reconsider the sanctions request if necessary in connection with the motion for class certification. To deny the motion to compel compliance with the order regarding request for production of documents and to impose $6,027 in monetary sanctions against plaintiff's counsel, the Parris Law Firm and the Downey Law Firm. Explanation: Motion to Compel Depositions Plaintiff moves to compel depositions of defendant Sun‐Maid employees...

Excerpt: ...aint. Tentative Ruling: To deny each of Pearson's motions for summary judgment as to the Complaint, the Second Cross‐ Complaint, and the First Amended Third Cross‐ Complaint. To deny summary adjudication as to the Complaint. To deny summary adjudication as to the First and Second Causes of Action of the Second Cross‐ Complaint due to lack of standing. To deny summary adjudication as to the Fourth, Fifth and Sixth Causes of Action of the Fir...

Excerpt: ...planation: “[U]nder a long‐standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145...

Excerpt: ... court's order. Explanation: A special motion to strike provides a procedural remedy to dismiss 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...

Excerpt: ...y seeks relief from entry of default on March 9, 2021. Code of Civil Procedure section 473, subdivision (b) provides, in pertinent part: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of ...

Excerpt: ...g: To grant plaintiff Guadalupe Vargas' (“Decedent Plaintiff”) motions to compel further responses to (1) Requests for Production of Documents, Set One, as to Request Nos. 3‐49; (2) Form Interrogatories, Set One, as to Request Nos. 1.1, 3.1‐3.7, 4.1‐4.2, 12.1‐ 12.7, 14.1 and 17.1; (3) Special Interrogatories, Set One, as to Request Nos. 1‐33; and (4) Requests for Admissions, Set One, as to Request Nos. 1‐13. (Code Civ. Proc., § 2...

Excerpt: ...challenging a particular, “cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 242.) Furthermore, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c subd. (f)(1); see also Cata...

Excerpt: ...may be proper, allow a party to amend any pleading. (Code Civ. Proc., § 473, subd. (a)(1).) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) The policy favoring amendment is so strong that it is a r...

Excerpt: ...rney's fees against plaintiff, in the amount of $5,000. (Code Civ. Proc. § 425.16, subd. (c).) Plaintiff shall pay attorney's fees to Lyft within 30 days of the date of service of this order. To overrule Lyft's demurrer as moot in light of the court's ruling on the motion to strike. To grant defendant Vaughn's request to join in Lyft's special motion to strike. To grant the motion to strike the entire complaint against Vaughn, without leave to a...

Excerpt: ...grounds. Explanation: Plaintiff brings the present action for four causes of action: (1) breach of contract; (2) declaratory judgment; (3) unfair competition; and (4) unjust enrichment. Defendants Advanced BioEnergy LP (“ABLP”), California Energy Investment Center, LLC (“CEIC”), and Aemetis, Inc. bring the present demurrer to plaintiff Worldway International Investment Holdings Limited's First Amended Complaint (“FAC”) on the followin...

Excerpt: ...perior Court case no. 21C‐0031, has 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 same parties on the same cause of action.” (Code Civ. Proc., § 430.10, subd. (c).) “When a special demurrer is interposed alleg...

Excerpt: ...o deny the motion to quash as moot in light of the order on the motion to amend. Explanation: On May 6, 2022, Fresno Community Hospital and Medical Center, d/b/a Community Health System (“CMC”) filed a motion for leave to amend its Complaint to substitute Central California Faculty Medical Group (“CCFMG”), University Neurosciences Institute (“UNI”), Joyce Fields‐Keene (collectively, “Substituted Defendants”) as Doe Defendants 1 ...

Excerpt: ...t's summary judgment ruling. To sustain defendant's objection no. 5. All other objections are overruled pursuant to Code of Civil Procedure, section 437c, subdivision (q). To vacate the September 26, 2022, trial date. Explanation: I. Summary Judgment A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c); Sch...

Excerpt: ...re considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Civil Code section 3294, subdivision (a) provides: In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example a...

Excerpt: ...solely responsible for arbitration fees or appointing an arbitrator. Explanation: Plaintiff re‐filed a survival action on behalf of decedent Donald Stegmeir, for negligence to comply with Code of Civil Procedure section 377.34, subdivision (b). In response, defendants filed a motion to compel arbitration, citing an arbitration agreement (“Agreement”) among the parties. In response, plaintiff do not contest the Agreement nor its application ...

Excerpt: ...moving party, defendant Dr. Kuo bears the initial burden of proof to show that plaintiff cannot establish one or more elements of her cause of action or to show that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and this must be shown via speci...

Excerpt: ....) Defendants' demurrer and motion to strike are taken off calendar. Explanation: Plaintiffs move to set aside the June 22, 2022 Order, on the ground that defendants failed to properly serve plaintiffs with notice of their motion. Although defendants' motion included a proof of service indicating that defendants electronically served the motion, plaintiffs contend that they did not consent to electronic service and the proof of service was defect...

Excerpt: ...e the spreadsheet identified in its privilege log within 30 days of service of this order by the clerk. To impose a protective order limiting disclosure of the spreadsheet to only the attorneys for the parties, without further court order. To deny the request for monetary sanctions. Explanation: Compelled Disclosure of a Trade Secret “If he or his agent or employee claims the privilege, the owner of a trade secret has a privilege to refuse to d...

Excerpt: ...vehicle ensued, forming the basis of the instant complaint for damages. Plaintiff brought six causes of action against defendant FCA US, LLC (“defendant”) for express and implied violations of warranties afforded through the Song‐Beverly Act. Defendant moves to compel arbitration on an arbitration clause in a sales contract made between plaintiff and a dismissed party, Clovis Chrysler Dodge Jeep Ram.1 A trial court is required to grant a mo...

Excerpt: ...burden of persuasion on summary judgment/adjudication rests on the moving party. The initial burden of production is 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 dec...

Excerpt: ...ther the proposed class meets 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 (rev. denied); see also Newberg, Newberg on Class Actions (T...

Excerpt: ... a first amended complaint alleging a violation of Labor Code section 1102.5 (retaliation). Plaintiff is the former chief of police for the City of Parlier and alleges he was wrongfully terminated in retaliation for an investigation he conducted into embezzlement of public funds. Defendant City of Parlier argues that plaintiff failed to exhaust his administrative remedies prior to filing this action. Plaintiff argues that he is excused from exhau...

Excerpt: ... answer shall be set in boldface type. To grant the motion for leave to file cross‐ complaint. Defendant shall file and serve his Cross‐Complaintcomplaint within 2 days of service by the clerk of the minute order. Explanation: Motion for Leave to File Amended Answer The motion, though unopposed, was procedurally deficient in several respects. A motion to amend must comply with California Rules of Court, rule 3.1324. Under this rule, a motion ...

Excerpt: ...f service of this order. Explanation: First, to the extent that plaintiffs contend that defendants' motion is procedurally defective because defendants did not file a separate statement or meet and confer on all of the document requests before bringing their motion, the objection is without merit. A motion to compel compliance with a promise to produce documents does not require prior meet and confer efforts, nor does the moving party have to fil...

Excerpt: ...laintiff Marco Robles' responses have now been served and to award monetary sanctions in favor of defendant Shady Acres Dairy, LP against plaintiff in the amount $1,800 if a hearing is not required, or $2,000 if a hearing is required. Sanctions shall be payable within 30 days of service of this order by the clerk. Defendant is required to pay $180 for motion fees to the clerk (in addition to the $60 for motion fees already paid) for the correct t...

Excerpt: ...ground for denial of the motion exists (e.g., fraud, unconscionability, etc.) (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) Defendant contends that the alleged arbitration agreement in this case is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq. S...

Excerpt: ...onal limit for unlimited civil cases. (Code Civ. Proc. §§ 85; 403.040.) The hearing on the reclassification motion will be held on September 27, 2022, at 3:30 p.m. in Department 501. Both parties' briefs regarding the reclassification issue shall be filed and served by the close of business on September 20, 2022. Explanation: Plaintiff Viking Insurance Company of Wisconsin has moved for summary judgment on the ground that defendant has been dee...

Excerpt: ... well as the agreed upon lower administration costs. Explanation: A settlement of a class action requires court approval after a hearing. (Cal. Rules of Court, rule 3.769(a).) The approval of the settlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769(d).) Certification of the Class: The court has already granted certification of the class. Fairness of the Settlement: Settlements preceding class ...

Excerpt: ...n 30 days of the date of service of this order. 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 court may permit evidence to be rece...

Excerpt: ...ecl., filed July 27, 2022, Ex. 1, and Cervantes Decl., filed June 30, 2022, Ex. 4.) If defendant fails to timely sign the Quitclaim Deed, the court clerk is directed to sign the Quitclaim Deed as elisor. The Quitclaim Deed shall be attached to the revised proposed order as described below. Defendant is to pay $4,432.50 in attorney fees to Webb Law Group, APC within 30 days of the date of service of this order. Plaintiffs are to submit, within 10 ...

Excerpt: ...tions in the second amended complaint are to be set in boldface type. Explanation: Code of Civil Procedure section 473, subdivision (b), provides that the court may relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. It must be made within 6 months after the judgment, dismissal, order, or proceeding was taken. Relief may be based ...

Excerpt: ...ses having been served, defendant moved for and obtained a deemed admissions order, which was entered on August 1, 2018 – four years ago. Defendant remained in pro per until November 27, 2018, when he retained the offices of Robert Cervantes to represent him in this matter. Defendant is now represented by Roger Bonakdar, who states that he first learned of the deemed admissions order apparently in June 2022. On June 23, 2022, defendant filed th...

Excerpt: ...e Federal Arbitration Act (“FAA”), A written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controversy 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 C...

Excerpt: ...urt 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 consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable issue, and not to pass upon or determine the true...

Excerpt: ...rreparable injury to another party; (3) The defendant's acts would render final judgment ineffectual; (4) Money damages would not afford adequate relief; or (5) The amount of money damages needed to afford adequate relief is extremely difficult to determine. (See Code Civ. Proc., § 526, subd. (a)(1)‐(5).) The trial court evaluates two interrelated factors when deciding whether to issue a preliminary injunction. The first is the likelihood that...

Excerpt: ...t on all parties. Intervenor is to file its Answer in Intervention within 10 days of the clerk's services of the minute order. To the extent intervenor is requesting that default not be entered against the nonanswering defendant, there is no such request currently before the court. The granting of this motion effectively prevents such a default. (See Western Heritage Ins. Co. v. Superior Court (2011) 199 Cal.App.4th 1196, 1211.) Explanation: Inte...