Excerpt: ...8.4.) Explanation: An original or a photocopy of a doctor's report containing a diagnosis of and prognosis of the injuries, and a report of the minor‘s present condition, must be attached to the petition as Attachment 9. There is no Attachment 9. Attorney's fees are sought but there is no Attachment 14a to the petition setting out the rule 7.955 factors and no Attachment 18a, copy of the fee agreements attached to the petition. The attorney see...

Excerpt: ...idering a motion pursuant to section 877.6, the court balances the statute's twin goals of (1) encouragement of settlements, and (2) equitable sharing of costs among the parties at fault. (Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 494.) The standard is whether the amount of the settlement is within the “reasonable range” or “ballpark” of the settling tortfeasor's proportional share of comparative liability for the pla...

Excerpt: ...e clerk's mailing of this minute order. Explanation: Each element of the contempt must be proved beyond a reasonable doubt. (In re Coleman (1974) 12 Cal.3d 568, 572.) These include: (1) Defendant's knowledge of the order disobeyed; (2) Defendant's ability to comply; and (3) Defendant's willful disobedience of the order. (In re Jones (1975) 47 Cal.App.3d 879, 881; People v. Gonzalez (1996) 12 Cal.4th 804, 816.) Contract interpretation ...

Excerpt: ...person or by telephone with the party who filed the pleading that is subject to demurrer[.]” (Code Civ. Proc. §430.41(a), bold added; see Judicial Counsel form CIV‐140.) Where the parties are unable to sufficiently meet and confer five or more days prior to the date the responsive pleading is due, a 30‐day extension is automatically granted upon the filing by the demurring party of a declaration stating that a good faith effort was made to...

Excerpt: ...lexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.” (Dunk v. Ford Motor Company (1996) 48 Cal. App. 4th 1794, 1801, citation omitted.) In Kul...

Excerpt: ...gment debtor shall be filed. Explanation: On December 21, 2016, a default judgment was entered in favor of plaintiff/judgment creditor M4 Associates, LLC and against defendant/judgment debtor Dr. Eric Lee in the total amount of $65,078.37, which consisted of principal in the amount of $60,108.87, attorneys' fees in the amount of $4,505.00, and costs in the amount of $464.50. (Doerksen Decl. ¶ 5, Exhibit “B.”) On June 5, 2018, M4 Associates f...

Excerpt: ...ction without leave to amend. To sustain the general demurrer to the second cause of action with leave to amend. To overrule the general demurrer to the third cause of action. An amended complaint in conformity with the ruling is to be filed within 10 days of notice of the ruling. The time in which the complaint can be amended will run from service by the clerk of the minute order. All new allegations in the first amended complaint are to be set ...

Excerpt: ...73, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citation.] ‘In the fur...

Excerpt: ...ard such sanctions. The parties are directed to meet and confer in the next thirty (30) days in order attempt a resolution of the issues regarding Plaintiff's health and her availability to pursue this case. The Court also sets a status conference for Thursday, August 30, 2018 in Department 501 at 3:30 p.m. Explanation: Defendant seeks issue, evidentiary, terminating, and or monetary sanctions pursuant to Code of Civil Procedure §§2023.010, 202...

Excerpt: ...n of proof to show that plaintiff cannot establish one or more elements of her causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(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 specific facts and not mere allegations. (Id.) “California courts ...

Excerpt: ... 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 framed by the pleadings; determining whether the moving party has established facts negating the opposing party's cla...

Excerpt: ... Explanation: It is a misuse of the discovery process to fail to respond to an authorized method of discovery, or disobey a court order to provide discovery. (Code Civ. Proc. §2023.010(d), (f), (g).) Though the decision to order terminating sanctions is not to be made lightly, where a violation is “willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules,&#...

Excerpt: ...ce six months have elapsed since the entry of a judgment, “a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) A judgment that is facially invalid may be set aside at any time, “with no limit on the time within which the motion must be made.' (Citation.)”].) (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 18...

Excerpt: ...every rental agreement is a covenant of “quiet enjoyment.” The landlord impliedly promises to allow the tenant possession and “quiet enjoyment” of the premises during the contract term and not to, through act or omission, disturb the tenant's possession and beneficial enjoyment of the premises for the purposes contemplated by the rental agreement. (Civ. Code § 1927; see also e.g. Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.A...

Excerpt: ...rities that plaintiff is actually seeking to adjudicate the entire breach of contract claim. Plaintiff requests adjudication of the “issues” of each separate element of a breach of contract cause of action, including the existence of a contract, performance by plaintiff, breach by defendant, and damages to plaintiff caused by the breach. In essence, plaintiff seeks to adjudicate the entire cause of action, even though it seeks to parse each s...

Excerpt: ...8, 2017, plaintiffs served Form Interrogatories (Set One), Special Interrogatories (Set One), Requests for Production of Documents (Set One), and Requests for Admissions (Set One) on defendant via mail. (Devlin Decl., ¶ 7, Ex. 3.) On March 2, 2018, defendant responded to plaintiffs' written discovery. (See Devlin Decl. ¶ 8, Ex. 4.) Plaintiffs filed the instant Motions to Compel Further Responses and to Deem Admissions Admitted, within the stipu...

Excerpt: ... form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Code Civ. Proc., §§ 2030.290, subd. (b) and 2031.300, subd. (b).) Defendant Henry Macias to provide complete verified responses to all discovery set out above, without objection within 10 days after service of this order. To grant plaintiff Fred Garza, Jr.'s motion that the truth of the matters specified in the requests for admis...

Excerpt: ...rules 3.1112‐3.1113. Plaintiff has failed to provide the statutory grounds upon which she is moving to set aside the dismissal. See San Francisco Lathing v. Superior Court (1969) 271 C.A.2d 78, 82 and 8 Witkin, Cal. Proc. 5th Attack § 174 (2008). With such, the court cannot entertain this motion. Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary. T...

Excerpt: ...at 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 . . .” “In any event, if proof of a demand and refusal to arbitrate under the agreement is a necessary prerequisite to a petition to compel arbitration under section 1281.2, the failure to prove such demand and refusal is a failure ...

Excerpt: ...ecial interrogatories, set one and request for production of documents, set one. (Code of Civil Procedure sections 2030.290(b), 2031.300(b).) The evidence before this court is insufficient to determine if initial responses are due. To deny Jasvir Kaur Jhutti dba A Plus Taxi Cab Co.'s motion for sanctions. (Code of Civil Procedure sections 2030.290(c), 2031.300(c).) Explanation: Defendant has failed to file points and authorities to support any of...

Excerpt: ...ropriate where violation was willful, preceded by history of abuse, or where is shown that less severe sanctions would not produce compliance with procedural rule].) It is an abuse of discretion to dismiss an action solely on the ground that a party has failed to pay monetary sanctions ordered by the court. (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 615; Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64‐65.) In the instant case, Defen...

Excerpt: ...s without merit. (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 of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. §437c, subds. (p)(2), (o)(2).) Thus, the elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession comm...

Excerpt: ...nt order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiffs cannot establish one or more elements of their causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(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...

Excerpt: ...rst cause of action in the complaint. Defendant is ordered to prepare and file a proposed judgment consistent with this ruling within five (5) court days of service of this order. Explanation: In response to this motion for summary judgment, Plaintiff sought, and obtained, a continuance in order to conduct discovery pursuant to Code of Civil Procedure section 437c, subdivision (h). On July 3, 2018, Plaintiff filed a notice of non‐opposition, in...

Excerpt: ...of action. To sustain the general demurrers to the second and fourth causes of action, with leave to amend. Explanation: The court will only rule on the one motion that was properly calendared (by YCA), and will not rule on the District's motions unless and until they are properly calendared pursuant to the Superior Court of Fresno County Local Rules, Rule 2.2.1.  YCA's Demurrer for Uncertainty The memorandum does not make any arguments as to ...