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: ... 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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...

Excerpt: ... to the fourth cause of action with leave to amend. To sustain the general demurrers to the sixth through eighth and tenth causes of action with leave to amend. A fourth amended complaint shall be filed and served within 10 days of the clerk's service of this order. 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...

Excerpt: ...East Olive Avenue, Fresno, APN 451‐ 265‐‐3 ("Parcel"), which encompasses the premises operated as a restaurant and brewery by J&A known as Sequoia Brewing Company (777 and 779 East Olive, hereinafter "Premises"). Church's sole cause of action is for specific performance of the “Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate” (“PSA”) between Church and Tower, entered into in September 2020. The PSA as a...

Excerpt: ...utral 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 is appropriate.”) “Confronted with a request for settlement‐only class certific...

Excerpt: .... (1967) 66 Cal.2d 738, 746.) An order staying discovery until determination of criminal charges 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. Super. Ct. (1984) 162 Cal.App.3d 686, 690.) An objecting party is generally entitled to a stay of discovery in the civil action until disposition of the criminal matter. (Ibid.) Here...

Excerpt: ....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 facts in the case. (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 775.) The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of ...

Excerpt: ...justified, and, if so, what remedy is appropriate. (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 604.) “If PERB applies to the court for injunctive relief … the court must determine that there exists reasonable cause to believe an unfair labor practice has been committed and that the relief sought is just and proper.” (Public Employment Relations Bd. v. Modesto City Schools Dist. (1986) 136 Cal.App.3d 881...

Excerpt: ... 1‐15, 17 and 19. The court intends to enter defendant Cooper Tire & Rubber Company's (“Cooper Tire”) proposed protective order. Cooper Tire shall submit a proposed order consistent with the court's order and the terms of the proposed stipulated protective order set forth in Exhibit “A” of the Declaration of David T. McCann, within 10 days of the date of this order, and serve further responses in full compliance with Code of Civil Proce...

Excerpt: ...djudication as to the issue of the fraudulent transfer exception to the general rule of successor nonliability in favor of defendant Lummus Corporation. To deny summary adjudication on all other grounds. Explanation: On October 21, 2019, plaintiff filed the instant action for products liability. Plaintiff is an insurance company who paid out benefits on a worker's compensation policy regarding an injury to an insured's employee, Gabino Orrostieta...

Excerpt: ...n their claims for violation of the California Superfund Act (also known as the Carpenter‐Presley‐Tanner Hazardous Substances Account Act or the HSAA), nuisance, trespass and declaratory relief because there is no evidence that Delta or Cordes ever released hazardous substances onto the property when they operated the dry cleaning business there. They note that plaintiffs' discovery responses do not point to any direct evidence showing that d...

Excerpt: ...'s stipulated order regarding disclosure of expert materials. (Code Civ. Proc. § 2023.030.) Plaintiff shall pay monetary sanctions to defendant Vantage within 30 days of the date of service of this order. Additionally, plaintiff will be responsible for the cost of the second deposition of its expert which includes expert fees, court reporter fees and reasonable attorney's fees. Explanation: “The Civil Discovery Act imbues trial courts with ‘...

Excerpt: ... . . .” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are “allowable as costs under Section 1032” when they are “authorized by” either “[c]ontract,” “[s]tatute,” or “[l]aw.” Here, both the Loan Agreement (the subject of the first cause of action) and the Guaranty (the subject of the Second Cause of Action) provide for attorney's fees. Debtor hereby agr...

Excerpt: ...s . . . .” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are “allowable as costs under Section 1032” when they are “authorized by” either “[c]ontract,” “[s]tatute,” or “[l]aw.” Here, the lease agreement between the parties, attached as Exhibit 1 to the complaint, provides for attorney's fees: 18.16 Attorney Fees. If either Landlord or Tenant institutes...

Excerpt: ...states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. ‘[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.'” (Quelimane ...

Excerpt: ... ..” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are "allowable as costs under Section 1032" when they are "authorized by" either "Contract," "Statute," or "Law." Here, the lease agreement between the parties, attached as Exhibit 1 to the Complaint provides for attorney's fees: 18.16 Attorney Fees. If either Landlord or Tenant institutes any action or proceeding against...

Excerpt: ...days […] before the hearing.” (Code Civ. Proc., § 1005, subd. (b).)” Here, as the moving party points out, plaintiff untimely filed her opposition on June 2, 2022, eight court days before the hearing, and did not serve her opposition until June 6, 2022, six court days before the hearing. The moving party does not waive proper service. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the cou...

Excerpt: ...ended complaint within twenty (20) days of the date of service of this order. All new allegations shall be in boldface. To grant the motion to strike the prayer for exemplary damages. Explanation: Plaintiff filed the instant complaint against defendant on seven causes of action: (1) disparate treatment based on race, color, national origin and ancestry; (2) hostile work environment harassment directed at plaintiff based on race, color, national o...

Excerpt: ... ..” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are "allowable as costs under Section 1032" when they are "authorized by" either "Contract," "Statute," or "Law." Here, the lease agreement between the parties, attached as Exhibit 1 to the Complaint provides for attorney's fees: 18.16 Attorney Fees. If either Landlord or Tenant institutes any action or proceeding against...

Excerpt: ...mpel further responses to the special interrogatories, set one, numbers 14, 42, 43, 45 and 57. To deny the motion to compel further responses to interrogatories numbers 40, 41 and 44. (Code Civ. Proc. § 2030.300.) To grant plaintiff's motion to compel further responses to form interrogatories, set one, number 12.1. (Code Civ. Proc. § 2030.300.) To grant plaintiff's motion to compel further responses to document requests, set one, numbers 1, 3, ...

Excerpt: ...vil Procedure section 877.6, “[a]ny 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...

Excerpt: ... to this court, within five (5) days of service of the minute order, a proposed judgment consistent with the court's summary judgment ruling. Explanation: 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, 618.) “The moving party bears the burden of showing ...

Excerpt: ...rsonal injury action arising out of an auto accident allegedly caused by defendant James Hinson, a defendant California Department of Transportation employee. The complaint alleges a single cause of action for motor vehicle negligence. The Judicial Council form complaint checks boxes indicating that plaintiff is required to comply with a claims statute and has complied. (Complaint ¶ 9(a).) Defendants move for summary judgment on the ground that ...

Excerpt: ...omplaint for damages. Plaintiffs brought two causes of action against defendant ‐ for express and implied violations of the SongBeverly Act regarding warranties. Compel Arbitration Defendant moves to compel arbitration on an arbitration clause in a sales contract made between plaintiffs and a non‐party, Selma Honda. A trial court is required to grant a motion to compel arbitration “if it determines that an agreement to arbitrate the controv...

Excerpt: ...nd 3.1113.) The brief in support of the motion is 46 pages long, which is about three times the page limit for points and authorities briefs. (Cal. Rules of Court, rule 3.1113(d).) Plaintiff's brief also does not contain any cognizable legal argument or citations to authorities that would support his contentions. It is simply a copy of the second amended complaint with random citations to documents and deposition testimony, without any explanatio...

Excerpt: ...settlement through prior hearings, each with its own filings. The settlement here generally meets the standards for fairness, and the class has approved it, with no objections, opt‐ outs or disputes. Only one of 197 notices were undeliverable. The court finds that the method of notice followed, which this court approved at the prior hearing, comports with due process and was “reasonably calculated to reach the absent class members: “Individ...

Excerpt: ...ge Point Finance, LLC's demurrer to the second, seventh and eighth causes of action, with leave to amend. To overrule on all other grounds. Plaintiff shall serve and file his amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff filed the operative verified First Amended Complaint (“FAC”) against defendant Karen Aminian for eight causes of action: (1) brea...

Excerpt: ...ision is made by the administrator in the probate proceeding to accept or reject plaintiff's creditor claim. 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 a First Amended Complaint are to be set in boldface type. Explanation: Demurrer to the First Cause of Action for Breach of Contract: Defendants Morris S. Srabia...

Excerpt: ...h causes of action identified below. Any amendments shall be in bold print. Explanation: Judgment on the pleadings “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; see also Templo v. State of Calif. (2018) 24 Cal.App.5th 73...

Excerpt: ...in order to continue litigating the present action. (Code Civ. Proc., § 391.1.) The 30‐day time limit will run from the service of the minute order by the clerk. (Code Civ. Proc., § 1013, subd. (a).) This action is stayed pending proof that such security has been furnished, and if no security is posted within the time allowed, the case shall be dismissed by the court upon ex parte application therefor by defendants. (Code Civ. Proc., § 391.4...

Excerpt: ...quests are waived due to the failure to serve timely responses. Plaintiff and defendant Central California Ear Nose & Throat Medical Group shall meet and confer in a good faith effort to resolve the discovery disputes. If the discovery disputes are not resolved, plaintiff shall file a separate statement of items in dispute for each motion. A meet and confer declaration, the separate statement, supplemental opposition and reply papers shall be fil...

Excerpt: ...nting verified responses from defendant RJMS Corporation DBA Toyota Material Handling of Northern California to form interrogatories, sets one and two, special interrogatories, set one, and request for production of documents, set one, moot in light of the service of verifications on May 20, 2022. To deny the motion for an order deeming matters in requests for admission be admitted by defendant RJMS Corporation DBA Toyota Material Handling of Nor...

Excerpt: ..., after notice and hearing, make an order…that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case….” (Code Civ. Proc., § 598.) Similarly, Code of Civil Procedure section 1048 provides that “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action...

Excerpt: ... violation of FEHA, as well as the claim for failure to prevent discrimination and retaliation, on the ground that plaintiff cannot prove an essential element of his claims, namely that he was competently performing his job at the time of the termination. In addition, the County claims that it had a legitimate, nondiscriminatory reason for terminating plaintiff, and plaintiff cannot show that the stated reason for his termination was merely a pre...

Excerpt: ...ly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exist are to be resolved in favor of the party opposing summary judgment/adjudication. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562; see also See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900 [“Summary adjudication is a drastic remedy and...

Excerpt: ...o the “American rule” that each party bears its own attorney fees. (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147.) The fundamental objective of the private attorney general doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565 (Graham).) Under section 1021.5, the...

Excerpt: ... The time in which the answer can be filed will run from service by the clerk of the minute order. To grant, in part, and deny, in part, the motion to strike. Explanation: Demurrer Slander Per Se With slander per se under the “accusation of crime” category, courts generally find that the offense must be one involving moral turpitude which is indictable or punishable by death or imprisonment. (Cunningham v. Simpson (1969) 1 Cal.3d 301, 307 [ch...

Excerpt: ...will be heard on Thursday, June 9, 2022, at 3:30 p.m. in Dept. 501. Explanation: With regard to the first, second, third and fourth causes of action for retaliation, racial discrimination, age discrimination, and national origin discrimination under FEHA, defendant contends that plaintiff has no evidence that he was ever subject to an “adverse employment action”, which is an essential element of his prima facie claims for retaliation and disc...

Excerpt: ... 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 settlement ...

Excerpt: ...anced remedies under Welfare and Institutions Code section 15657. (Code Civ. Proc., § 437c, subd. (h).) Explanation: In this case, plaintiff Linda Anderson (“plaintiff”) alleges a series of negligent actions by numerous healthcare providers, commencing with her having knee replacement surgery. From there, she suffered through various complications, many of which she alleges were either caused or worsened by the treatment she received from th...

Excerpt: ...ensued, forming the basis of the instant complaint for damages. The complaint alleges six causes of action against defendant FCA US LLC (“FCA US”), and one cause of action against defendant Fresno Chrysler Jeep Inc. dba Clovis Chrysler Dodge Jeep Ram (“Clovis CDJR”) for negligent repair. All of the causes of action against FCA US comprise alleged breaches of Civil Code section 1790 et seq. regarding consumer warranties and fraud by omissi...

Excerpt: ...tion Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) “When presented with a petition to compel arbitration, the initial issue before the court is whether an agreement has been formed.” (Diaz v. Sohnen Enterprises (2019) 34 Cal.App.5th 126, 129.) In addition, 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.' ...

Excerpt: ...tration of the dispute pursuant to the Federal Arbitration Act (9 U.S.C. section 1, et seq.), or under the California Arbitration Act. (Code Civ. Proc., § 1281.2, et seq.) Under the Federal Arbitration Act, 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, … shal...

Excerpt: ...ifornia, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens ... , but a motion based on a forum selection clause is a special type of forum non conveniens motion. The factors that apply generally to a forum non conveniens motion do not control in a case involving a mandatory forum selection clause.' When a case involves a mandatory forum selection clause, it will usually be given effect un...

Excerpt: ... does not appear that plaintiff has a viable plan to bring the case to trial before the deadline expires. (Duran v. U.S. Bank Nat. Assoc. (2014) 59 Cal. 4th 1, 32.) Plaintiff is incorrect that the statutory deadline to bring the case to trial is tolled by CCP section 1775.7(b). As defendant points out, that portion of the CCP only applies to the Los Angeles County Superior Court, and other courts that expressly opt into the pilot program for cour...

Excerpt: ...nt Mark Alson, M.D. moves for summary judgment based on the declarations of a medical expert, Fred S. Vernacchia, M.D., who has opined that Dr. Alson'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, knowledg...

Excerpt: ...Athenix Body Sculpting Institute (together “Athenix”), on any cause of action. The time in which the Complaint may be amended will run from service by the clerk of the minute order. Explanation: Plaintiffs seek leave to amend to add claims and prayers for punitive damages against all defendants pursuant to Code of Civil Procedure section 425.13. Plaintiffs' motion must be filed within two years after the original complaint was filed, or nine ...

Excerpt: ...l.App.4th 367.) To deny the motion to set aside the September 20, 2019 power of attorney. (Prob. Code, § 811, subd. (a)‐ (d).) Explanation: Since the Luis G. Cobarruvias (“Luis”) is the defendant in the unlimited civil action, but also the plaintiff in the unlawful detainer action, all parties will be referred to by their names, to avoid confusion. Motion to Consolidate: Under Code of Civil Procedure, section 1048, subdivision (a), "[w]hen...

Excerpt: ...inst defendant Christopher Allen Moore and his attorneys, the Law Offices of Lynn M. Yempuku, jointly and severally, payable within 20 days of the date of this Order, with the time to run from the service of this minute order by the clerk. Defendant Christopher Allen Moore shall serve a verification to the responses already made to plaintiff Victor Moreno's Form Interrogatories, Set One, Special Interrogatories, Set One, and the Request for Produ...

Excerpt: ...very. To grant the request for terminating sanctions in favor of defendant Marco Martinez and against plaintiffs Jose Luis Madrigal and Marisela Mendez‐Hernandez. Defendant is directed to submit to this court, within 7 days of service of the minute order, a proposed judgment dismissing this action. To grant monetary sanctions in the amount of $1,840.00, payable by plaintiffs within 20 calendar days of the date of this order, with the time to ru...

Excerpt: ...l be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or standards for making the assessment. Published California case law has not done so either. However, the common practice when ruling on PAGA settlements ...

Excerpt: ...st for monetary sanctions, as set forth below. Explanation: Merits Ordinarily, discovery proceedings are required to be completed before the 30th day before trial and a trial continuance does not automatically reopen discovery. (Code Civ. Proc., § 2024.020.) Nevertheless, urgency legislation related to the state of emergency proclaimed by the Governor on March 4, 2020 specified that a continuance or postponement of a trial “extends any deadlin...

Excerpt: ...., § 2023.010, subd. (g); 2030.290, subd. (c); 2031.300, subd. (c).) To dismiss the action against defendant Falcon Private Security, Inc. (“Falcon Security”) only. Falcon Security shall submit a proposed judgment consistent with this court's order within 10 days of the date of service of this order by the clerk. To award monetary sanctions in the amount of $765 against plaintiffs and their attorney of record, Justin B. Toobi, jointly and se...

Excerpt: ... pending the outcome of the appeal in case no. F080399. Explanation: Defendant John Wash moves for an order declaring him to have satisfied the orders for attorney's fees under Code of Civil Procedure section 724.050. Section 724.050 states, (a) If a money judgment has been satisfied, the judgment debtor, the owner of real or personal property subject to a judgment lien created under the judgment, or a person having a security interest in or a li...