Excerpt: ..., 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 the application for an order to arbitrate is determined …” The question is whether the pendency of appeal of an order denying a petition to arbitrate means “such application” is still “undetermined.” The only two courts to consider the issue come to different conclusions. Plaintiffs ...

Excerpt: ... of the settlement.” (Code Civ. Proc., § 664.6 emphasis added.) The purpose of Code of Civil Procedure section 664.6 is to permit a court, via a summary proceeding, to finally dispose of an action. (Wackeen v. Malis (2002) 97 Cal.App.4th 429.) Here, the parties settled in February 2014. At that time, this case was (and still is) pending. The agreement contains a provision making it enforceable under Code of Civil Procedure section 664.6. Howev...

Excerpt: ... Dispute Resolution (Rutter Group 2017) “Contractual Arbitration” §§ 5:301, 5:304; Code Civ. Proc. §1290.2.) The motion/petition must allege specific facts demonstrating the existence of an arbitrable controversy, rather than mere conclusions, and must allege not only the existence of the arbitration agreement but “also that the opposing party refuses to arbitrate the controversy.” (Id. at 5:307 [citing Strauch v. Eyring (1994) 30 Cal....

Excerpt: ... summary judgment order. Explanation: Civil Code section 55.3, subdivision (b)(1), provides that an attorney “shall provide” the specified written advisory form “with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction‐related accessibility claim . . . .” (Emphasis added.) Civil Code section 55.54, subdivision (a)(1), provides that “an attorney who causes a summons and comp...

Excerpt: ...e a receiver appointed for the purpose of transferring the judgment debtor's interest in the license. (Code Civ. Proc. § 708.630.) A necessary part of a motion for appointment of a receiver is to identify the person the moving party wishes to have serve as the receiver, showing that he or she has the necessary qualifications. The moving party here did not do this, but instead proposes that the receiver will be selected after the motion is grante...

Excerpt: ...from the date of this order in which to file a First Amended Complaint addressing the issues noted below. All new or changed allegations shall be set forth in boldface typeset. Explanation: Moving Parties Growers Farm Management, Inc. and George Garcia (“Moving Defendants”) demur to the First, Second, and Fourth Causes of action for Breach of Contract, Negligent Misrepresentation, and Fraud, respectively. The grounds for the demurrer, and the...

Excerpt: ...e Osiride Inis Towt Trust, uta dated 2‐1‐91. Plaintiff is the son of Ms. Towt. Contrary to the pleadings, which allege that Plaintiff loaned money to Defendants, Plaintiff states in his declaration in support of his default judgment request that his mother loaned $250,000 to Defendants “as evidenced by a Borrower's Closing Statement” attached as Exhibit A. (Kliegl Decl. at ¶ 3.) There is no Exhibit A attached to Plaintiff's declaration. ...

Excerpt: ...00 is not contingent on FCA scheduling surrender of the vehicle. (Code Civ. Proc. § 664.6.) To deny the motion for sanctions. (Code Civ. Proc. § 128.5.) Explanation: Motion to Enforce Settlement Code of Civil Procedure section 664.6 provides: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon mot...

Excerpt: ...the debtor's assets until final adjudication of the claim sued upon. (Code Civ. Proc., §481.010 et seq.) A creditor must follow statutory guidelines in applying for the attachment and establish a prima facie claim. (Lorber Industries of Calif. v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) An attachment may be issued only if the claim sued upon meets the following requirements: (1) it is a claim for money based on a contract, express or im...

Excerpt: ..., and to prohibit defendant from interfering with the receiver's discharge of his duties. Explanation: Under Code of Civil Procedure section 564, subdivision (a), “A receiver may be appointed, in the manner provided in this chapter, by the court in which an action or proceeding is pending in any case in which the court is empowered by law to appoint a receiver.” Also, “A receiver may be appointed by the court in which an action or proceedin...

Excerpt: ...ruction, Inc. contracted to provide labor, services and materials in the rehabilitation of a construction project for defendants Ramos Ruiz Brothers, Inc. dba, Ramos Furniture, Jose Ramos, and Jose Ramos AG Land Ventures (hereinafter “Ramos”). Ramos amended the contract with Pickett to exclude insulation, flooring and painting, which work was performed by Peters Roofing, Inc., TCC Construction, Inc., and Spectrum Building Insulation Services....

Excerpt: ...(2000) 79 Cal.App.4th 876, 885‐886 citing Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322.) And when faced with parallel criminal proceedings, an analysis should be undertaken "in light of the particular circumstances and competing interests involved in the case.” (Avant!, supra, 79 Cal.App.4th at 885, citing Keating, supra, 45 F.3d at 324‐325.) In general, Courts should consider the following factors (“the Keating...

Excerpt: ... Plaintiff fails to adequately justify its request for increased attorney's fees; (4) Plaintiff improperly requests costs for a litigation guarantee; (5) Plaintiff fails to elect between remedies; and (6) Plaintiff provides no interest calculations. 1. Notice Due process considerations limit the amount of damages awardable on default: “In all default judgments, the demand sets a ceiling on recovery.” (Greenup v. Rodman (1986) 42 Cal.3d 822, 8...

Excerpt: ...rt judgment.” But, this is a minor error. However, Plaintiffs' attorney neglected to sign the Sec. 7 regarding the correctness of the amount of costs submitted. On the one hand, Plaintiffs are not requesting any costs. But, on the other hand, the section indicating a waiver of costs and disbursements was not checked. More importantly, the Declaration of nonmilitary status was not signed on any of the requests for entry of court judgment. Federa...

Excerpt: ...t. Fresno County, Local Rules, rule 2.8.4.) Explanation: Ordinarily, the reasonable attorney's fees in a petition to compromise the minor's claim are 25% of the net settlement without a clear explanation of why the higher fee would be justified per code. In the current petition the attorney seeks 33% of gross. There is nothing about this case that warrants this increased fee amount. The signature of the petitioner is not dated. The top portion of...

Excerpt: ...n of the defendant if to do so appears to the court appropriate under the circumstances of the case.” Code of Civil Procedure section 583.420 authorizes the court to exercise its discretion to dismiss a matter in three circumstances: if service is not made within two years after the action is commenced against a defendant; if the matter is not brought to trial or conditionally settled within three years, and if the action is not tried within tw...

Excerpt: ...e complete verified responses to the discovery set out above, without objection, within 10 days after service of this order. To grant defendant Donald Inman's motion for sanctions. Plaintiff Eduardo Calderon and his attorney of record, jointly and severally, are ordered to pay monetary sanctions to Ericksen Arbuthnot in amount of $315.00 within 30 days after service of this order. (Code Civ. Pro., § 2031.300(c).) Pursuant to California Rules of ...

Excerpt: ...g).) Plaintiff is ordered to pay $1,372.10 in sanctions to the Yarra Law Group, within 30 days of the clerk's service of the minute order. Explanation: Proper service of a notice of deposition compels the opposing party to appear, to testify, and to produce documents if requested. (Code Civ. Proc. §2025.280(a); see Code Civ. Proc. §2025.410 [party served with deposition notice may serve objections on party that noticed the deposition].) Where a...

Excerpt: ...877.6, “Any party to 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, subd. (a)(1).) “A de...

Excerpt: ...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 uncontested motion for class certification does not relieve the Court of the duty of determining whet...

Excerpt: ...defense counsel before he filed his demurrer. (Code Civ. Proc., § 430.41, subd. (a)(3).) Therefore, he has failed to comply with the requirements of section 430.41. However, the failure to meet and confer is not enough, by itself, to justify overruling the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).) Also, since plaintiff is involuntarily confined at Coalinga State Hospital, he obviously cannot meet and confer in person with defense cou...

Excerpt: ...ant's residential care facility with a diagnosis of schizophrenia. A few months after admission, Plaintiff was allegedly physically attacked by Doe 1, another resident. On or about May 2017, Plaintiff alleges that he was physically attacked by yet another resident, Doe 2. Eventually, Plaintiff moved to another care facility. On March 23, 2018, Plaintiff filed his complaint alleging causes of action for elder abuse, negligent hiring and supervisio...

Excerpt: ...etition to confirm. See CCP § 1285. If a petition or response requesting confirmation is duly filed and served, the court must confirm the award as made, unless it corrects or vacates the award or dismisses the proceeding. [CCP § 1286 and see Valsan Partners Ltd. Partnership v. Calcor Space Facility (1994) 25 Cal.App.4th 809, 819 and Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075, 1084.] A party may seek confirmation by fili...

Excerpt: ...mplaint. The time in which the complaint may be amended will run from the clerk's service of the minute order. New allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer In California, a complaint must contain a statement of the facts constituting the cause of action, in ordinary and concise language; and a demand for judgment for the relief to which the pleader claims to be entitled. (Code Civ. Proc. §425.10....

Excerpt: ...ice of this minute order. All new allegations shall be in boldface typefont. Explanation: A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “[P]laintiff's ability to prove the allegations, or the possible difficulty in making such proof, does not concern the reviewing court.�...