Excerpt: ... Amended Complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: First Cause of Action: The first cause of action attempts to state a claim for discrimination in violation of the Fair Employment and Housing Act (FEHA) based on plaintiff's age at the time of his termination. However, plaintiff does not allege any facts in the first cause of action to support his claim that he was termin...

Excerpt: ...eny the motion to bifurcate, without prejudice. Explanation: Motion to Strike Defendants seek to strike from the first amended complaint (“FAC”), a prayer for punitive damages. Defendants contend that the FAC fails to state sufficient facts to support the prayer for punitive damages as to each of them. Pleadings are to be construed liberally with a view to substantial justice between the parties. (Code Civ. Proc. § 452.) The allegations in t...

Excerpt: ...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.) California 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 are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located;...

Excerpt: ...e a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) To grant CHCC's motion to strike the portions of the First Amended Complaint (“FAC”) as it pertains to punitive damages and attorney's fees pursuant to Code of Civil Procedure, section 1021.4, specifically: (1) paragraphs 33, 41, 46, and 65; (2) page 10, lines 5‐7; (3) the prayer on page 17, lines 17‐18; and (4) the prayer on page 17, lines 19‐ 21, with leave to amend. Explan...

Excerpt: ...nt, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Defendant Fresno Unified School District (FUSD) brings this demurrer to the fourth, fifth, sixth and seventh causes of action pursuant to Code of Civil Procedure section 430.10 for failure to state a cause of action against FUSD. The causes of action at issue are intentional torts and include allegations that FUSD ...

Excerpt: ... to compel defendant Dycora Transitional Health – Quail Lake, LLC to provide further responses to form interrogatories, set one, special interrogatories, set one, requests for production of documents, set one, and requests for admissions, set one, and for monetary sanctions. (Code Civ. Proc. §§ 2030.300; 2031.310; 2033.290.) To grant monetary sanctions against defendant Dycora only in the amount of $1440. Defendant shall serve verified furthe...

Excerpt: ...nced in the declarations. The errata and death certificate shall be filed no later than August 25, 2022. Explanation: “Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) Also, “[a] pending action or proceeding does not abate by the death of a party if the cause of a...

Excerpt: ...e, a proposed judgment which is consistent with the terms as agreed upon in the December 21, 2021 agreement. Explanation: Code of Civil Procedure, section 664.6 provides in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the s...

Excerpt: ...ry 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, fn. 12.) “Confronted with a request for settlement‐only class certification, a district court need not inquire whether the case, if tried, would pr...

Excerpt: ...t in boldface type. Explanation: The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but a...

Excerpt: ...are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concea...

Excerpt: ...to amend. (Code Civ. Proc., § 430.10, subd. (e).) Prevailing defendants shall submit to this court, within seven days of service of the minute order, an ex parte request dismissing the action as to the demurring defendants. To grant the motions to strike the prayers for punitive damages (Complaint p. 52, line 6) and attorneys' fees (Complaint ¶¶ 136, 141, p. 52, lines 10‐11), without leave to amend. (Code Civ. Proc., § 436.) Explanation: De...

Excerpt: ... motion. (Ibid.) Explanation: Saint Agnes Medical Center and its employees, Shannon Soliz, RN, Natalie Woods, RN, and Marisol Salazar, RN, move for summary judgment on the theory that plaintiffs cannot prove their negligence and loss of consortium claims because they cannot prove that there was a causal link between the alleged overdose of Pitocin administered by defendants and plaintiff's subsequent intracranial bleeding and resulting damages. S...

Excerpt: ...mal claim has first been presented to that entity, and has been rejected, or is deemed rejected by the passage of time. (Gov. Code §§ 945.4, 912.4; see Munoz v. State of Calif. (1995) 33 Cal.App.4th 1767, 1776.) The pre‐lawsuit claim must be presented to the governmental entity within six months of accrual of the cause of action. (Gov. Code § 911.2.) The time limit runs from the date the claimant's right to sue arises; i.e., from the time th...

Excerpt: ...scretion of the trial court. (Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 746.) An order staying discovery until expiration of the criminal statute of limitations allows plaintiff to prepare his or her action “while alleviating [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 constitu...

Excerpt: ...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 Congress' principal purpose of ...

Excerpt: ...m to respond further to discovery requests. (Code Civ. Proc. §§ 2023.010 (d), (g); 2023.030 (d)(4); 2030.290 (c) and 2030.300 (e).) The court strikes defendants' answer filed December 17, 2019 and enters default against defendants, Great American Investments, Inc., Liberty Financial Group, Inc., A.J. Rassamni, and Sharon Rassamni. The court vacates the trial date of April 24, 2023, trial readiness hearing on April 21, 2023 and Mandatory Settlem...

Excerpt: ...of a legal duty owed to him by defendant. In essence, then, defendant's motion is more akin to a demurrer or motion for judgment on the pleadings than a summary judgment motion. “‘A defendant's motion for summary judgment necessarily includes a test of the sufficiency of the complaint. When a motion for summary judgment is used to test whether the complaint states a cause of action, the court will apply the rule applicable to demurrers and ac...

Excerpt: ...ndants for the sale of farm equipment. Defendant Goodland Global Farm Inc. was served with the application for writ of possession at the same time as it was served with the summons and complaint. This defendant has answered and defendant's attorney has filed a motion to be relieved as counsel, to be heard September 20, 2022. Counsel for Goodland Global has not filed an opposition or made a request to continue this hearing to a date after counsel'...

Excerpt: ...posing Monetary Sanctions 3) by Defendant Paul Speece, M.D., for an Order Compelling Plaintiff Maciej Kopacz, M.D., to Respond to Form Interrogatories, Special Interrogatories, Request for Production, and Request for Nature and Amount of Damages, and Imposing Monetary Sanctions Tentative Ruling: To grant defendant's motion to deem requests for admissions admitted and to award sanctions in the amount of $480 against plaintiff Maciej Kopacz, M.D., ...

Excerpt: ...eightliner Dealership (FFD) moves for summary adjudication of plaintiff's claims for fraud and breach of contract on the ground that plaintiff cannot prevail on his claims because he agreed that he was purchasing the truck “as is” without any express or implied warranties, and with no representation that the truck was merchantable or fit for a particular purpose. Defendant also points out that plaintiff had a chance to inspect the truck befor...

Excerpt: ...f the minute order. New allegations/language must be set in boldface type. Explanation: The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of acti...

Excerpt: ...not filed. California Rules of Court, rule 3.1300(c) requires that the proof of service to be filed no later than five (5) court days before the hearing. In addition, the proof of service also shows untimely service. Service of the motion must be made at least 16 court days before the hearing, plus additional calendar days, depending on the type of service made. (Code Civ. Proc., § 1005, subd. (b).) Here, since service was made by mail to a Cali...

Excerpt: ...trial. Plaintiff now moves under Code of Civil Procedure section 2033.420 for costs of proof. Timeliness Defendant Diaz Amaya opposes the motion as untimely because on December 20, 2021, plaintiff filed an Acknowledgement of Satisfaction of Judgment. The Acknowledgement indicated that the judgment was satisfied in full. On reply, plaintiff does not address this point. Rather, plaintiff argues that defendant Diaz Amaya cites no authority regarding...

Excerpt: ...ney'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, subd. (d).) The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge bei...

Excerpt: ...its motion on multiple grounds, including res judicata and plaintiff's failure to exhaust administrative remedies, in addition to the argument that plaintiff cannot proffer evidence of pretext or that defendant's legitimate, nonretaliatory and non‐discriminatory reason for the August 1, 2019 Adverse Action was false. The ability to provide admissible evidence in support of his arguments for pretext is essential and where plaintiff ultimately fa...

Excerpt: ...ial counsel familiar with trial counsel's calendar, shall appear at the hearing in order to set trial date and to reschedule the hearing on Defendant's demurrer (telephonic appearances is acceptable). Explanation: Motion to File Evidence Under Seal The plaintiff requests that most of his voluminous medical records (totaling 262 pages) that Dr. Beron relied upon in forming his expert opinion be filed under seal. These records were included as Exhi...

Excerpt: ...embers, pursuant to 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. Documentation as to the amount paid to class members must be filed on or before July 7, 2023. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed set...

Excerpt: ..., whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause u...

Excerpt: ...o statutory grounds: Code of Civil Procedure section 473, subdivision (b) and Code of Civil Procedure section 473.5. Code of Civil Procedure section 473, subdivision (b) 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).) Setting aside the default is within the sound discretion of the trial co...

Excerpt: ...d only in the lead case, and shall include the caption and case number of the lead case, followed by the case number of the other consolidated case. Explanation: Code of Civil Procedure section 1048, subdivision (a), provides: “When actions 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 of the matters in issue in the actions, it may order all the actions consolidated,...

Excerpt: ...itioner and respondent made a valid agreement to arbitrate wage claims. (Declaration of Allison Medica, ¶¶ 4‐5, and Ex. A.) The only contested issue is whether petitioner waived its right to compel arbitration. On petition of a party to an arbitration agreement, the court shall order the petitioner and respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that, amo...

Excerpt: ...ng that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d...

Excerpt: ...eading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits t...

Excerpt: ...lso been defaulted after his answer was stricken due to his repeated refusal to comply with court orders requiring him to appear for his deposition. Therefore, both defendants are now deemed to have admitted the allegations of the complaint, including the allegations that they made false and defamatory statements to third parties accusing plaintiff of being a child molester. As a result, they are subject to having a default judgment entered again...

Excerpt: ...nt with the court's order within 10 days of the date of service of this order. Explanation: Defendant moves for summary judgment or adjudication of plaintiffs' negligence/wrongful death claim on the ground that its employee Dr. James Kuo did not breach the standard of care. Defendant has presented the declaration of its expert, Dr. Gary Steinke, who opines that Dr. Kuo's care and treatment of plaintiffs' decedent did not fall below the standard o...

Excerpt: ... it a proper case number for a probate action and shall enter it into Odyssey. Once the case has been transferred, this civil action will be considered closed. Plaintiff is given leave to amend his pleading by filing, within 30 calendar days of the file being transferred, a petition pursuant to Probate Code section 17200 in that action. The clerk of the Probate Department shall assign a hearing date for the petition, and plaintiff shall give prop...

Excerpt: ... action: (1) retaliation in violation of Labor Code section 1102.5; (2) retaliation in violation of Government Code section 12940, subdivision (h); (3) wrongful termination in violation of public policy; and (4) defamation. All four cases of action are alleged against Stoneledge. The only claim alleged against Jorgensen is the fourth cause of action for defamation. Defendants jointly move for summary judgment or, in the alternative, summary adjud...

Excerpt: ...ed judgment dismissing the action as to the demurring defendant. Explanation: Procedural Issues The deadline for filing and serving opposition papers is nine (9) court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).) Here, the opposition papers were filed and served late. The opposition was filed on July 15, 2022, nine (9) calendar days before the hearing. Plaintiffs' counsel filed a declaration regarding the untimely filing of t...

Excerpt: ...test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether the plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of the plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) For the purpose of testing the sufficien...

Excerpt: ...rgues that the plaintiff's counsel did not meet and confer in good faith before bringing the motions to compel, it appears that plaintiff's counsel engaged in adequate and good faith meet and confer efforts. Plaintiff's counsel exchanged multiple meet and confer letters with defense counsel about the disputed responses in March and April 2022 after receiving the defendant's responses to the discovery and objections. When defendant refused to prov...

Excerpt: ...�Cross‐Complainant”) Tentative Ruling: To continue the hearing on this motion to September 15, 2022, at 3:30 p.m. in Department 503, for supplemental briefing as set forth below. Briefing schedule is as follows: Cross‐ Defendants' initial brief shall be filed on or before August 12, 2022. CrossComplainant's opposition shall be filed on or before August 22, 2022. Reply, if any, shall be filed on or before August 29, 2022. Explanation: Cross�...

Excerpt: ...al responses render the motion moot as to these requests. To grant the motion to compel defendant Titlemax of California, Inc. (“defendant”) to provide further responses to requests for production numbers 24 and 25. Defendant shall provide verified further responses within 10 days of the date of service of this order. (Code Civ. Proc., § 2031.310.) To deny the motion to compel defendant to provide unredacted copies of the documents regarding...

Excerpt: ...th in Code of Civil Procedure section 1033.5, subdivision (a), and disallowed costs are set forth in subdivision (b). Items not expressly mentioned in the statute “upon application may be allowed or denied in the court's discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) All allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and they must be reaso...

Excerpt: ...fied responses to the form and special interrogatories, set one, and requests for production of documents, set one, served on her on November 4, 2021. (Code Civ. Proc. §§ 2030.290; 2031.300.) Barnett shall serve verified responses without objections within 10 days of the date of service of this order. To grant plaintiff's motion to deem defendant Barnett to have admitted the truth of the matters in the request for admissions, set one, as well a...

Excerpt: ...ent 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 certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The court has a fid...

Excerpt: .... Instead, plaintiff must separately file the Second Amended Complaint within 10 days from the clerk's service of the minute order granting this motion. Explanation: Amended Complaint “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading ….” (Code Civ. Proc. § 473, subd. (a); see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the compl...

Excerpt: ...21, against James Hinson (“James”) and Does 1‐20. James filed an Answer to the Complaint on March 12, 2021. On November 18, 2021, plaintiff filed an Amendment to the Complaint, substituting Jesse Hinson (“Jesse”) for Doe 1. A party may amend its pleading once without leave of court at any time before an answer or other responsive pleading is filed. (Code Civ. Proc., § 472.) Except where section 472 applies, amendment of any pleading re...

Excerpt: ... to waive notice as to both motions, then the court will continue the hearing to rule on the merits at that time. Alternatively, if Aerotek was, in fact, properly served, the court will consider continuing the motions if DMM Packaging, Inc. (“DMM”) files a corrected proof of service prior to or at the hearing. Explanation: Notice Defects: “[A]ll moving and supporting papers shall be served and filed at least 16 court days before the hearing...

Excerpt: ...ctive Notice Not Grounds for Denial California Rules of Court, Rule 3.1350 Subdivision (b) requires that on motions for summary adjudication, “the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the Separate Statement of undisputed material facts.” Here, the notice is a narrative summary of defendant's contentions and does no...

Excerpt: ...al burden of production to make a prima facie showing that no triable issue of material fact exists. Only when the initial burden of production is met, does the burden shift to the responding party to demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850‐51; see also Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.) A defendant moving for summary judgment must ...

Excerpt: ...evidence that Hernandez left the scene of the accident in violation of Vehicle Code section 20001. "[L]eave to amend should not be granted where, in all probability, amendment would be futile.'' (Vaillette v. Fireman's Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.) “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, ...

Excerpt: ...wer and cross‐complaint within 10 days of the clerk's services of the minute order. Explanation: The trial court has broad discretion to vacate the judgment and/or 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.) Here...

Excerpt: ...d. (Code Civ. Proc., § 436.) (2) To sustain the demurrer to the Complaint as to defendants Rodney Horton and Ana Manzula, without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Explanation: All Star Plumbing and Bewarder Motion to Strike A motion to strike pursuant to Code of Civil Procedure section 436 may be used to remove a claim for punitive damages that is not adequately supported by the facts alleged in the complaint. (Cryolife, ...

Excerpt: .... Problems with the vehicle ensued, forming the basis of the instant complaint for damages. Plaintiff brought five causes of action against defendant FCA US, LLC (“defendant”) for express and implied violations of warranties afforded through the Song‐Beverly Act. Defendant moves for an order compelling arbitration pursuant to an arbitration clause in a lease agreement made between plaintiff and a dismissed party, Fresno Chrysler Dodge Jeep ...

Excerpt: ... judgment on the pleadings as to their complaint and defendant's answer. (Code Civ. Proc. § 438.) Explanation: Defendant's Motion for Reconsideration: Under Code of Civil Procedure section 1008, subdivision (a), a party moving for reconsideration of a court order must show that there are “new or different facts, circumstances, or law” that justify reconsideration of the order. (Code Civ. Proc. § 1008, subd. (a).) “A party seeking reconsid...

Excerpt: ... Tentative Ruling: To overrule the demurrers and deny the motions to strike. (Code Civ. Proc., §§ 430.10, subds. (e), (f), 435, 436.) Defendants FTF Enterprises, Inc. and Remarc, Inc. dba Fox Property Management shall file their answers to the Third Amended Complaint within ten (10) days from the date of service of this order. Explanation: General Demurrer Both demurring defendants challenge the sufficiency of the fourth and sixth causes of act...

Excerpt: ...ories, set one, and requests for production of documents, set one, unless defendants serve verified responses before the hearing. (Code Civ. Proc. § 2030.290; 2031.300.) Defendants are deemed to have waived all objections. (Ibid.) The court also intends to impose monetary sanctions of $460 per motion against defendants for their unjustified failure to respond to the requests. (Ibid.) Defendants' shall serve verified responses without objections ...

Excerpt: ...ed as compared to the harm that the opposing party is likely to suffer if the preliminary injunction were issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69‐70.) In considering these factors, the court “balances the relative hardships.” (Ibid.) The second factor (interim harm) “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status ...

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.) 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 s...

Excerpt: ...ts demurrers. To deny defendants' motions to strike. Defendants shall file responsive pleadings within ten (10) days from the date of this order. Explanation: Judicial Notice It is “well settled” that the court is authorized to consider matters which may be judicially noticed when determining whether a complaint is sufficient to survive a demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Code Civ. Proc., 430.30, subd. (a).) Furthermore,�...

Excerpt: ...d as to plaintiffs' products liability claim based on the breach of express warranty theory. (Code Civ. Proc., § 430.010, subd. (e).) Plaintiffs are granted 20 days' leave to file the second amended complaint. The time to file the second amended complaint will run from service by the clerk on the minute order. All new allegations in the second amended complaint are to be set in boldface type. Explanation: Demurrer as to the Second Cause of Actio...

Excerpt: ... certain warranties. Problems with the vehicle ensued, forming the basis of the instant complaint for damages. Plaintiffs brought five causes of action against 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 plaintiffs and a non‐party, Lithia Ford Lincoln of Fresno. A trial court is required to gran...

Excerpt: ...ient minimum contacts with the State of California to exercise personal jurisdiction over him. He also argues that it would offend traditional notions of fair play and substantial justice to require him to appear in California to defend against the lawsuit given the lack of evidence that he did anything to cause the accident. Therefore, he concludes that the court should refuse to exercise jurisdiction over him. However, while Wheeler states that...

Excerpt: ...ns on defendants John Mahoney and Laura Mahoney. Explanation: The court has personal jurisdiction over a party “from the time summons is served on him provided by Chapter 4 ….” (Code Civ. Proc., § 410.50, subd. (a).) The court may set aside a default in the event that service of a summons has not resulted in actual notice to a party in time to defend the action. (Code Civ. Proc., § 473.5, subd. (a).) This section is designed to provide re...

Excerpt: ...st 11, 2022. Explanation: Code of Civil Procedure section 664.6 provides, in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for 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 have a writing and litigati...

Excerpt: ...uno Lometti because of the default entered against him on July 29, 2021. To deny without prejudice as to defendant American Payroll Outsourcing Inc. because of the dismissal of this party on July 14, 2021. By minute order dated July 8, 2022, the court found that William Reiland is no longer attorney of record for defendant Lometti. Mr. Reiland's suspension and disbarment terminated the attorney‐client relationship by operation of law. (See Civ....

Excerpt: ...of their corporation, Concord Development, Inc. (“Concord”), and are therefore personally liable for Concord's alleged misconduct. The seventh cause of action seeks disgorgement of all money paid to Concord for the project, under the theory that Concord's contractor's license was suspended by operation of law at the time it performed the contract because it failed to obtain workers' compensation insurance for its employees, therefore entitlin...

Excerpt: ...raud; 4. Constructive Fraud; 5. Monetary Conversion; 6. Accounting; 7. Constructive Trust; 8. Restitution (Unjust Enrichment); and 9. Violation of California Penal Code section 496, subdivision (a). Each cause of action is stated against all defendants: Ramiro Flores Martinez, and moving defendant Tabitha Loraine Lopez. The matter involves a transaction between the parties regarding the sale of certain vehicles. On June 14, 2022, this court found...

Excerpt: ...hat he was ready to file the motion (having already obtained a hearing date), and left a message asking him to call if the date would not work for him, and/or to call in order to discuss the demurrer. This effort is insufficient. The legislative intent behind the meet and confer statutes for demurrers, motions to strike, and motions for judgment on the pleadings is to require the parties to have a good faith discussion about what the moving party...

Excerpt: ...nez 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 cause of action is one arising from protected activity, by demonstrating that the facts underlying plaintiff's complaint fit one of the categories set forth in section 425.16, s...

Excerpt: ...es. Problems with the vehicle ensued, forming the basis of the instant complaint for damages. Plaintiff brought three causes of action against defendant for express and implied violations of warranties afforded through the Song‐Beverly Act. Defendant moves to compel arbitration based on an arbitration clause in a sales contract made between plaintiff and a non‐party, Auto Resources Inc. A trial court is required to grant a motion to compel ar...

Excerpt: ...ant to California Code of Civil Procedure section 1281.2, 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 com...

Excerpt: ...ore 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...

Excerpt: ...f action following defendant's deposition testimony and expert Dunnett's medical analysis. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “The court may, in furtherance of justice, and on any terms as 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, th...

Excerpt: ...0602.6.) Any briefing to be submitted by defendant addressing the issues herein must be filed and served no later than Wednesday, July 27, 2022. All papers in response to defendant's briefings must be filed and served no later than Friday, August 5, 2022. Alternatively, the court will take the motion off calendar if defendant pays the initial filing fee of $435 prior to Wednesday, July 27, 2022. Explanation: Plaintiff seeks reconsideration of an ...

Excerpt: ...suant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that 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 r...

Excerpt: ...ullar, owner of Varsity Liquors, moves for summary judgment, or alternatively for summary adjudication. Initially the court notes that if defendant does not show that summary judgment should be granted, the court should not grant summary adjudication of any particular cause of action or count. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative de...

Excerpt: ...ttlement 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 certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The court has ...

Excerpt: ...blish 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 whether certification...

Excerpt: ...vision (b), contending that the order was the result of his counsel's mistake or excusable neglect. His attorney claims that she submitted invoices to support the requested costs as soon as she learned of the mistake, and that the court granted permission to submit the invoices at the hearing. However, the court later refused to consider the invoices because counsel had not requested oral argument before the hearing. Bassi's counsel contends that...

Excerpt: ...al burden of production is met, does the burden shift to the responding party to demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850‐51; see also Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.) A plaintiff moving for summary judgment or adjudication of a cause of action must “prove[] each element of the cause of action entitling the party to judgment on t...

Excerpt: ...ley LLC (“Dycora”). The moving brief informs the court that plaintiffs and Dycora have resolved plaintiffs' claims made in the third cause of action, but both sides believe that a court order granting a judgment on the pleadings as to the first and second causes of action is needed to “fully resolve this matter for the Parties and the Court.” (Weintraub Decl., ¶ 10.) These causes of action do not ostensibly appear to be stated against Dy...

Excerpt: ...d. (Ibid.) Explanation: Defendants FCA and Selma Chrysler move for judgment on the pleadings as to the sixth cause of action for fraudulent concealment and the seventh cause of action for negligent failure to repair, as well as the punitive damage claim. Their primary contention is that the “economic loss rule” bars plaintiff's tort claims, and therefore plaintiff's fraud and negligence causes of action do not state valid causes of action. Al...

Excerpt: ...e first, second, third, fifth, sixth and eighth causes of action, with plaintiff Ana Lewis (“Mrs. Lewis”) granted 10 days' leave to file a First Amended Complaint. (Code Civ. Proc., § 4301.10, subd. (e).) All new allegations shall be in boldface type. The time in which the Complaint may be amended will run from service of the order by the clerk. Explanation: In this action plaintiffs sue all involved in a real estate transaction in which Mrs...

Excerpt: ...ion 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), emphasis added.) “The issue of the g...

Excerpt: ...bject of the court's order dated October 28, 2021. (Code Civ. Proc. § 2031.300, subd. (c).) Monetary sanctions in the amount of $1,282.20 are ordered against defendants, jointly and severally, and payable no later than 20 court days from the date of this Order. Explanation: The Notice of Motion indicates plaintiff is making its motion pursuant to Code of Civil Procedure section 2031.300, subdivision (c), which governs the failure to respond to r...

Excerpt: ...n: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading ….” (Code Civ. Proc. § 473, subd. (a); see also Code Civ. Proc., § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) Accordingly, the California Supreme Court has held that...

Excerpt: ...e to show that Cambridge Spa Group had the authority to act on behalf of defendant CSG Holdings CA, LLC in signing the August 17, 2021 substitution of attorney. Defendant submitted a declaration confirming that the party who signed the August 17, 2021 substitution of attorney, Ian Cahn‐Fuller on behalf of Cambridge Spa Group, had the authority to sign the form on defendant's behalf. (See Cahn‐Fuller Decl., filed May 3, 2022, ¶¶ 3‐4.) The ...

Excerpt: ...laint 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, no further proceedings may be held in the action, and the action must be dismissed by the court on its ...

Excerpt: ...in Dept. 403 Explanation: Discovery requests are generally afforded liberal construction. (see Code of Civ. Proc., § 2017.010; Williams v. Superior Court (2017) 3 Cal.5th 531, 541 [“In the absence of contrary court order, a civil litigant's right to discovery is broad.”].) “In civil litigation, discovery may be obtained from a nonparty only through a ‘deposition subpoena.' [Citation.]” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App...

Excerpt: ...in intervention within 10 days of the clerk's service of the minute order. To continue Titlemax of California, Inc.'s petition to compel arbitration to July 28, 2022, which will be treated as the original hearing date for purposes of filing deadlines. Explanation: Intervention Proposed intervenor Division of Labor Standards Enforcement Labor Commissioner (“DLSE”) seeks to intervene on the present petition under Code of Civil Procedure section...

Excerpt: ...er responses must to be filed “within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing ….” (Code Civ. Proc., § 2031.310, subd. (c), emphasis added.) The parties agreed to an extension of time up to January 3, 2022 for plaintiff to file her motions to compel further responses. (See Pannell Decl. ¶ ...

Excerpt: ...ation and training; signing off on SIERRA VISTA's policies and procedures and/or employee handbook; confirmation of employment dates, resumes, letters, recommendations, accommodations, or any disciplinary action; any record of discipline, retraining and/or termination related to this case and/or similar types of cases or events. PERSONNEL FILE shall NOT include employee's social security number; wage, salary, and tax information, and any other co...

Excerpt: ...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.) Furthermore, “[o]nly when the inferences are indisputable may the court decide the issues as a matter of law ... An issue of fact becomes one of law only when ‘the undisputed facts leave no room for a reasonable difference of opinion.'” (Manuel v. Pacific Gas & Electric C...

Excerpt: ...ation: The court previously sustained demurrers to the first cause of action for battery and sixth cause of action for violation of Civil Code section 1942.4. Plaintiffs filed an amended complaint, adding allegations that defendants willfully ignored plaintiffs' multiple complaints about bedbugs and willfully refused to remedy plaintiffs' complaints to management. Defendant Granville Realty, Inc. again demurs to the first and sixth causes of acti...

Excerpt: ...or a motion to strike, the parties must sufficiently comply with the meet and confer requirements pursuant to Code of Civil Procedure, sections 430.41 and 435.5. Explanation: The trial court has broad discretion to vacate the judgment and/or 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...

Excerpt: ...t]he superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) The statute does not explain what exactly the trial court should consider when reviewing a proposed PAGA settlement. However, recently the Court of Appeal in Moniz v. Adecco USA, Inc. (2021) 72 Ca...

Excerpt: ...ourt review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549, citing Labor Code section 2699(l)(2) [“The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.”].) The trial court is to “evaluate a...

Excerpt: ...she was injured as a result of wet, slippery floor tiles at defendant Target's store. She claims that her expert has concluded that the floor tiles in the area where she fell did not comply with the ADA, as they were “high gloss” and did not have any non‐slip or slip‐resistant coating or treatment, and thus she is entitled to summary adjudication in her favor. However, plaintiff has not met her burden of showing that she is entitled to su...