Excerpt: ... 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 April 13, 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 settlement.” Subsection (h...

Excerpt: ... the second amended complaint within 20 days of service of the order by the clerk. Explanation: “If the complaint 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 ...

Excerpt: ...m CIV‐100, as well as a supplemental points and authorities. Previously, the court noted, among other issues, that no evidence or argument was given to establish the values sought in general damages; and the calculation for attorney's fees, while supported by factors required by local rules, exceed the allowable amount on a default judgment based on an action on contract's Civil Code section 1717 fees provision (Fresno Super. Ct. Local Rules, A...

Excerpt: ...f sought only a claim on a statutory bond. On October 15, 2020, Hudson filed a verified cross‐complaint in the present action seeking, among other things, an interpleader to deposit the sum amount held in surety under applicable statutory bond, and to disclaim any interest in such amount. On October 21, 2020, the court received a deposit of interpleader from Hudson in the amount of $50,000. On November 9, 2021, the court granted the discharge o...

Excerpt: ...pare 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 constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding. (U.S. Const., 5th Amend.; Cal. Const., art. 1, § 15; see Evid. Code §94...

Excerpt: ...”) argues that plaintiff failed to comply with Fresno County Superior Court Local Rule, rule 2.1.17, by failing to first obtain the court's permission to file his motion. At issue, is whether the court's June 2, 2021 Order After Pretrial Discovery Conference granted such permission to plaintiff to file the instant motion to compel further responses to defendant's supplemental responses to the request for production of documents, set one. The re...

Excerpt: ...tial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for ph...

Excerpt: .... The trial date set for June 27, 2022, is vacated, as is the Trial Readiness hearing set for June 24, 2022. To grant the request for attorney fees in the amount of $2,122.50. To deny the request that the court find plaintiff in contempt of court and order contempt sanctions, as the order dismissing the action is sufficient. Explanation: Once a motion to compel a party to comply with a discovery request is granted, continued failure to comply may...

Excerpt: ...ency, California Department of Corrections and Rehabilitation, Brown, Schwarzenegger, Kernan, Beard, Cate, Hubbard, Hysen, Rothschild, Frauenheim, Trimble, Yates, Allen, Bonilla, Briggs, Lewis, Lozano, Martinez, Van Leer, and Uranday (“State defendants”) is sustained, without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) The motion to strike is taken off calendar as moot in light of the ruling on the demurrer, and because the motio...

Excerpt: ...rve and file her second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: First, to the extent that defendant argues that the opposition was not properly served and thus the court should disregard it, defense counsel has forfeited this argument by arguing the merits of the opposition in the reply. Nor has counsel shown that she was prejudiced by the allegedly improper ser...

Excerpt: ...rder. Explanation: In her complaint, plaintiff alleges two causes of action (negligence and intentional tort) against defendant Kate Watts, an instructor employed by State Center Community College District (“SCCCD”). Paragraph 5 of the complaint is where plaintiff is to check boxes indicating whether she is required to comply with a claims statute, and either has complied or is excused from complying. Plaintiff checked no boxes, indicating sh...

Excerpt: ...of mandate filed pursuant to Section 1088.5 presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ.” This motion presents only issues of law. The inquiry in a writ of administrative mandate includes whether “the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial;...

Excerpt: ...in the action. Plaintiff asserts that the terms “Individually and as Executrix of the Estate of Kent L. Kilburn, deceased” were inadvertently omitted from the caption of the First Amended Complaint(“FAC”) as a result of a clerical error and that it is apparent by the face of the FAC that plaintiff intended to bring suit in her individual and representative capacity. Plaintiff has met the formalities required of a motion to amend the first...

Excerpt: ... 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 the various defendants. Plaintiff's husband, Lloyd Anderson, also sued for loss of consortium against each defendant, but he died on December 20, 2019. Dr. Griffin seeks summary judgment of Ms. Anderson's twenty‐six...

Excerpt: ...e the September 12, 2022 trial date. 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 the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima facie ...

Excerpt: ...pond to discovery. (Code Civ. Proc. §§ 2023.010, subd. (g); 2030.290, subd. (c); 2031.300, subd. (c).) To strike plaintiff's complaint and dismiss the action against defendant Teri Elizabeth McMichael. The court intends to sign the proposed judgment as to defendant Teri Elizabeth McMichael only. To deny defendant Uber Technologies, Inc., Rasier, LLC, and Rasier‐CA, LLC's joinder regarding terminating sanctions. To grant defendant Uber Technol...

Excerpt: ...y sanctions to plaintiff's counsel within 30 days of the date of service of this order. Explanation: “If a party desiring to take the deposition of an expert witness under this article deems that the hourly or daily fee of that expert for providing deposition testimony is unreasonable, that party may move for an order setting the compensation of that expert. Notice of this motion shall also be given to the expert.” (Code Civ. Proc., § 2034.4...

Excerpt: ...vered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) There is a strong public policy in favor of ...

Excerpt: ...., § 473c, subd. (c).) Where defendant is the moving party, summary judgment is proper where defendant demonstrates the absence of an essential element of the plaintiff's case. (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266.) “Because of the very drastic nature of the summary judgment statute, power given thereby should be used with caution, and hence when there is doubt as to the propriety of the motion, courts should, without...

Excerpt: ...nd such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three‐prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movant's favor; and determining whether the opposition d...

Excerpt: ...gence cause of action listed on the First Amended Complaint, Judicial Council Form Item 10, box (b). To deny defendant's motion to strike the legal malpractice cause of action listed on the First Amended Complaint, Judicial Council Form Item 10, box (f). To grant, with leave to amend, defendant's motion to strike the portions of the First Amended Complaint referencing to Exhibits A and B, on the document titled “AMENDED COMPLAINT #1, Causes of ...

Excerpt: ...ons shall be in boldface type. Explanation: Demurrer to Complaint Initially, defendants demur to the entire Complaint on the ground that plaintiffs fail to state a cause of action against Maria Navarro because the alter‐ego allegations are insufficient. “To recover on an alter ego theory, a plaintiff need not use the words ‘alter ego,' but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the co...

Excerpt: ...propria persona. (Code Civ. Proc., § 391.7.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265.) The statutes were intended to “address the problem created by the persiste...

Excerpt: ...tion it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).) The availability of a suitable alternative forum for the action is critical. As noted by the United States Supreme Court: “In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the d...

Excerpt: ...1) the likelihood that the moving party will prevail on the merits at trial, and (2) the interim harm that the moving party is likely to sustain if the injunction were denied 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 fac...

Excerpt: ... 2022 trial date. (Code Civ. Proc., § 473, subd. (a)(2).) The parties are directed to appear at the hearing to schedule a new trial date. Explanation: Plaintiff seeks leave to amend to substitute defendant's true name, Kristine Lynn Ballantyne, as trustee of the Kristine Lynn Ballantyne Revocable Trust dated August 17, 2018 (“Kristine as Trustee”), for Doe 1. Additionally, plaintiff seeks to add allegations, causes of actions and prayers per...

Excerpt: ...gs suit for public disclosure of private facts, intrusion into private affairs, defamation, and false light. Plaintiff alleges, among other things, that he and defendant formerly dated from 2016 to 2018; that in June 2020, defendant began making statements about the parties' relationship; that those statements portrayed plaintiff's actions as unreasonable and unwelcome, and that the parties never dated; that defendant threatened to publish intima...

Excerpt: ... Civil Procedure section 418.10, subdivision (a). In opposition, plaintiff notes that defendant merely challenges jurisdiction based on a lack of capacity to be sued. Plaintiff argues that a challenge based on capacity is not jurisdictional, and therefore the motion to quash must be denied. The purpose of Code of Civil Procedure section 418.10 is to provide a defendant upon whom service of summons has been made a means to serve and file a notice ...

Excerpt: ... 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 fiduciary r...

Excerpt: ... (“RAA”) demur to the twelfth cause of action of the fourth amended complaint, filed on May 19, 2021. In this iteration of the complaint, plaintiffs added RAA to the Private Attorneys General Act (“PAGA”) cause of action for penalties under PAGA. Exhaustion of Administrative Remedies Defendants first contend that plaintiffs failed to exhaust administrative remedies as to RAA. Under PAGA, a plaintiff must comply with statutory prerequisite...

Excerpt: ...l based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) Also, the court must make certain express findings in order to seal records. Specifically, the court must find that the facts establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overridin...

Excerpt: ...oral argument, such argument will be entertained on May 12, 2022, at 3:30 p.m. in Department 501. Explanation: The court shall issue a writ of possession if it finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ have been satisfied. (Code Civ. Proc. §§ 512.040, subd. (b); 515.060, subd. (a)(1).) Among other things, the plaintiff's application must show the basis of the plaintiff's claim, that the p...

Excerpt: ...has emphasized, “any SLAPP [(strategic lawsuit against public participation)] defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Attorney's Fees While plaintiff has not filled an opposition to challenge the amount of fees to be awarded, the court may only award a reasonable fee. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362.) Accordingly, the co...

Excerpt: ...e plaintiff's complaint and dismiss the action against defendant Ittai Hernandez Rodriguez. To order plaintiff to pay additional monetary sanctions of $435 to plaintiff's counsel, Miller & Ayala, LLP, within 30 days of the date of service of this order. (Code Civ. Proc., § 2023.010.) Defendant shall submit a proposed judgment consistent with the court's order within 10 days. Explanation: Code of Civil Procedure section 2023.010, subdivision (g) ...

Excerpt: ...rney of record, jointly and severally, payable within 30 days of the date of this order, with the time to run from the service of this minute order by the clerk. The request for an order compelling plaintiff's answers or productions to deposition questions in defendant's reply is not considered. If defendant seeks such relief, defendant must file a motion to compel pursuant to Code of Civil Procedure section 2025.480. In the event of a timely req...

Excerpt: ...n Plaintiff's counsel attributes the untimely opposition to his “clerical error.” Defendants were able to file a reply and do not assert prejudice. Therefore, the opposition was considered in determining this motion. (See Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) Defendants' reply notes that the requested amount is now $9,077.55, and requests that it be taxed and reduced to $4,759.22. Allowable Costs Generally Ite...

Excerpt: ...n. Explanation: “Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) In addition, “judges shall have the responsibility to eliminate delay in the progress and ultimate resolution of litigation ….” (Gov. Code, § 68607.) Furthermore, “[e]very court shall have the power to do all of the fo...

Excerpt: ... Clean Energy (“PACE”) program that allows financing for home improvement projects to be repaid by a special property tax assessment. Plaintiffs filed this action against The Solar Group, Inc. and Ygrene Energy Fund, Inc. seeking declaratory relief regarding the parties' rights and duties for repayment of the solar installation. The complaint also seeks injunctive relief from the demanded excessive assessments against the plaintiffs' property...

Excerpt: ...troduction “The 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).) 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 stand...

Excerpt: ...liction of emotional distress for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) To grant leave to amend as to the fourth cause of action. To deny both defendants' motions to strike the prayers for punitive damages, predeath pain and suffering damages, and attorney's fees from the first amended complaint. To grant the motions to strike with regard to the prayer for treble damages under ...

Excerpt: ...planation: As stated in CCP Sec. 430.10(f), a pleading is “uncertain” if it is ambiguous and/or unintelligible. Ordinarily, a demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. [Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 6...

Excerpt: ...County Economic Opportunities Commission (collectively “defendants”) demur on the ground that the complaint fails to allege facts sufficient to state causes of action against them and based on the applicable for statutes of limitations. Defendants specifically challenge the fourth, sixth, seventh, and eighth causes of action, for, respectively, intentional infliction of emotional distress, defamation, intentional interference with prospective...

Excerpt: ...nt, such argument will be conducted on May 12, 2022, at 3:30 p.m. in Department 501. Explanation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in...

Excerpt: ...ve Ruling: To deny the motion to dismiss and the motion to strike. To overrule the general demurrer on the ground of failure to state compliance with the Government Claims Act as to plaintiff Marissa Mercado, as successor‐in‐interest to the Estate of Maria Cumplido, and sustain as to plaintiff Marissa Mercado, an individual, and plaintiff Vanessa Mercado, with leave to amend. To overrule the general demurrer to the ninth cause of action on th...

Excerpt: ...ant, but to require plaintiff to pay $240 for motion fees to the clerk (in addition to the $60 for the motion fees already paid) for the correct total motion fee of $300 (5 motions x $60 each). The additional filing fees must be paid on or before May 25, 2022. Defendant Hart Family Trust is ordered to serve verified responses, without objections, to plaintiff Terry L. Thelen's Form Interrogatories, Set One, Special Interrogatories, Set One, Reque...

Excerpt: ...tends to review the documents responsive to requests 42 to 44 and 46 to 48 in camera to determine whether they are covered by the medical peer review privilege under Evidence Code section 1157. The court will only compel production of non‐privileged documents. Explanation: First, to the extent that defendants have requested that the court take judicial notice of other court actions involving plaintiff, the court intends to deny the request. Whi...

Excerpt: ...in 10 days of service of the order by the clerk. To overrule the general demurrer to the second cause of action. (Code Civ. Proc., § 430.10, subd. (e).) To grant judicial notice of items nos. 1 and 2 of defendant's request, but to deny item nos. 3 and 4. Explanation: “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties....

Excerpt: ...tion: Meet and Confer The parties have not met and conferred as required by Code of Civil Procedure section 430.41, subdivision (a) and section 435.5, subdivision (a). Defense counsel's declaration filed April 26, 2022, and again on May 2, 2022, advises of two phone calls to plaintiffs' counsel's office on April 22, 2022, which were answered with a recording indicating no voicemail was set up and ending the call. There was no effort to contact pl...

Excerpt: ...es from the complaint, as improperly alleged. (Code Civ. Proc. § 436.) To deny leave to amend as to the first, second, and fourth causes of action and the prayer for punitive damages. To grant leave to amend as to the third cause of action. Plaintiff shall file and serve his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer to First Cause of Action: Plaint...

Excerpt: ...tial function “is not to try any factual issues, but to ascertain whether any triable issues of fact exist.” (Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 597.) Accordingly, the trial court does not make findings of fact in determining a motion for summary adjudication, and may not grant the motion on its evaluation of weight of evidence or witness credibility, nor may it grant the motion “based simply on its opin...

Excerpt: ... 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).) 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 p...

Excerpt: ...and Community Regional Anesthesia Medical Group, Inc. (CRAMG). (Code Civ. Proc. § 1281.2.) To stay the civil action on the cross‐claims until the resolution of the arbitration. (Code Civ. Proc. § 1281.4.) If there is a timely request for oral argument, such argument will be conducted on May 4, 2022, at 3:30 p.m. Explanation: Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleg...

Excerpt: ...complexes, two limited liability companies and two limited partnerships. On August 2, 2021, plaintiffs filed their first motion to compel further production of financial documents. On October 13, 2021, the court denied the motion without prejudice due to a lack of showing of relevance. Plaintiffs now bring the present second motion to compel further production. Plaintiffs incorrectly conclude this court earlier denied plaintiffs' motion owing to ...

Excerpt: ...rshba 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 fo...

Excerpt: ... a later date, if plaintiff needs more time. The Case Management Conference scheduled for May 3, 2022 is also continued to June 29, 2022. Explanation: Class Certification With regard to class certification, additional evidence is needed to support a finding that plaintiff possesses claims or defenses typical of the class. The class representative must be able to represent the class adequately. (Caro v. Procter & Gamble (1993) 18 Cal.App.4th 644, ...

Excerpt: ....10, subd. (e).) To grant, with leave to amend, defendants' motion to strike the prayer for attorney's fees under the tort of another doctrine, on page 11, lines 2‐4. To deny defendants' motion to strike the prayer for attorney's fees qua attorney's fees, on page 10, line 27. To deny defendants' motion to strike the portions of the First Amended Complaint as it pertains to punitive damages, specifically paragraphs 31 and 36, and the prayer on p...

Excerpt: ...n May 4, 2022, at 3:30 p.m. Explanation: Demurrer A party may file a general demurrer on claims that “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [“‘A demurrer can be utilized where the complaint itself is incomplete ….' [Citations.]”].) Although in ruling on a demurrer the complaint is liberally construed, “[t...

Excerpt: ...on: The ultimate burden of persuasion on summary judgment/adjudication rests on the moving party. The initial burden of production is to show, by a preponderance of the evidence, that it is more likely than not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally...

Excerpt: ...ssary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Accordingly, “the pleadings delimit the scope of the issues, and the function of affidavits, declarations, or other supporting evidence is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1132.) In ruling on...

Excerpt: ...the clerk of the minute order. Explanation: Demurrer to the Seventh Cause of Action—Professional Negligence: The elements of a claim for professional negligence are as follows: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession; (2) a breach of that duty; and (3) a proximate causal connection between the negligent conduct and the resulting injury. (Weimer v. Nationstar Mortgage, LLC (2...

Excerpt: ...the purposes of approving the settlement. Therefore, the court must first determine whether the class should be certified before deciding whether the settlement should be preliminarily approved. 1. Class Certification Where certification of a class is sought in conjunction with settlement, the motion is treated the same as if it were a motion solely for certification but for one factor – the proponent need not prove the case is manageable for t...

Excerpt: ...grant the motion to strike in its entirety, without leave to amend. (Code Civ. Proc., § 436.) Explanation: Demurrer to First Cause of Action: Defendants demur to the first cause of action for breach of written contract, contending that plaintiff has not alleged a valid claim because the written contract only provides that plaintiff has a right of first refusal if defendant Don Milligan either decides to transfer the business to a third party, di...

Excerpt: ...eviating [the 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 Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding. (U.S. Const., 5th Amend.; Cal. Const., art. 1, § 15; see Evid. Code, § 940.) The privilege against sel...

Excerpt: ...party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable issue, and not to pass upon or determine the true facts in the case. (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 775.) The moving party ...

Excerpt: ... on or before May 19, 2022. Explanation: This is a personal injury action arising out of an automobile accident allegedly caused by James Hinson, a 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 ...

Excerpt: ...the pleadings. (Code Civ. Proc. § 436.) To deny leave to amend at this time. However, plaintiffs may bring a properly noticed motion to amend the complaint to substitute the new defendants in place of fictitious defendants in compliance with Code of Civil Procedure sections 473 and 474. Explanation: When a court sustains a demurrer or grants a motion for judgment on the pleadings with leave to amend, the plaintiff is only permitted to amend the ...

Excerpt: ...d Statewide General Election ballot that proposed to authorize the City of Fresno (“City”) to collect a 3/8 percent sales and use tax. The initiative received 52.17 percent affirmative votes and was declared failed on December 12, 2018 by the Fresno City Council, which believed that two‐thirds voter approval was required. Fresno Building Healthy Communities (“FBHC”) protested that decision, contending that only a simple majority was nee...

Excerpt: ...ary adjudication of the second and fifth causes of action, as the motion is moot as to those claims, which have now been dismissed with prejudice. Defendants are ordered to submit a proposed judgment consistent with the language of this order within 10 days of the date of service of this order. Explanation: First, the court intends to deny summary adjudication of the breach of fiduciary duty and negligent misrepresentation claims, as plaintiff ha...

Excerpt: ...Cal. 2014) 63 F.Supp.3d 1171, cited for the first time by plaintiffs during oral argument on the motion and relied on by the court in its April 4, 2022 order denying the motion with respect to the trespass to chattels/conversion claims. The parties are to appear at the hearing on April 26, 2022, at 3:30 p.m. in Department 503, to discuss the briefing schedule and new trial date. To deny the request to stay the trial. Explanation: Motion for Recon...

Excerpt: ... sustain, with leave to amend, defendants' demurrer to the second cause of action as to both plaintiffs, for failure to state sufficient facts to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subd. (e), (f).) To sustain, with leave to amend, defendant Linda Bowman's (“Bowman”) demurrer to the third and sixth causes of actions as to Caro, for failure to state sufficient facts to state a cause of action and uncertainty. ...

Excerpt: ...motor vehicle; general negligence; and tort of a public entity. Plaintiff alleges that on October 6, 2020, plaintiff was a passenger on a FAX bus, which is alleged to be owned, supervised, managed, maintained, equipped, repaired, controlled and/or operated by the City. That bus, the Route 9 Shaw bus driven by defendants' employee, was carelessly and negligently controlled and operated, leading the bus to be driven at an accelerated, high rate of ...

Excerpt: ...if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440, citation omitted; see Musaelian v. Adams (2009) 45 Cal.4th 512, 519 [purpose of §127.8 is to deter filing abuses].) The Legislature included a “safe harbor” provision in section 128.7 to ensure the statute is “remedial, not punitive.” (Peake, supra, 2...

Excerpt: ...��) (collectively, “crosscomplainants”) an immediate duty to defend against plaintiff Gene Miller's (“plaintiff”) claims pursuant to the contractual language. To grant, in part, summary adjudication of Issue 3: Parsons and FMC's November 18, 2019 tender letter triggered Securitas' duty to immediately defend and indemnify Parsons and FMC against plaintiff's complaint. To deny summary adjudication of Issue 2: Securitas must indemnify Parson...

Excerpt: ...issues set forth below. All briefing must be filed on or before May 14, 2022. To vacate the existing trial date, trial readiness date, and mandatory settlement conference and schedule a trial setting conference on May 26, 2022, at 3:30 p.m., in Department 503. Explanation: Reconsideration of Court's December 9, 2021 December 21, 2021 Orders Deeming Requests to Admit Truth of Facts against Plaintiffs, Granting Defendant's Motions to Compel Plainti...

Excerpt: ...rcement of valid arbitration agreements.” (Armendariz v. Foundation 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...

Excerpt: ...aint and dismiss the action. The proposed order has errors, as noted below, so it must be corrected and resubmitted for signature. Defendant shall submit a corrected proposed order consistent with the court's order within 10 days. Explanation: Terminating Sanctions: Code of Civil Procedure section 2023.010, subdivision (g) construes “[d]isobeying a court order to provide discovery” to be a “misuse of the discovery process,” but sanctions ...

Excerpt: ...on motion, may enter judgment pursuant to the terms of the settlement.” It also provides that the parties may request that the court “retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc. § 664.6.) Due to the summary nature of the statute authorizing judgment to enforce a settlement agreement, strict compliance with its requirements is a prerequisite to in...

Excerpt: ...ract against defendants Mike Garcia and Silvia Garcia (the Garcias); and trespass against Jose Ventura Rivera Moreno. On July 11, 2018, Rivera Moreno filed a cross‐complaint for indemnification. Following a two‐day court trial, this court issued a proposed statement of decision. The proposed statement of decision found that plaintiffs' three claims against the Garcias failed, and that plaintiff's claim against Rivera Moreno failed. Because pl...

Excerpt: ...rth America, Inc.'s person most knowledgeable and custodian of records to attend his or her deposition, and to produce documents pursuant to the demand for production of documents served with the deposition notice. (Code Civ. Proc. § 2025.450.) To deny plaintiffs' request for sanctions against defendant. (Code Civ. Proc. § 2025.450(g)(1).) To deny plaintiff's motion to compel Lithia Nissan of Clovis's person most qualified and Timothy Bowden, T...

Excerpt: ...of this order. Explanation: “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents t...

Excerpt: ...rder by the clerk. Explanation: Contending that the Complaint alleges insufficient facts to state a claim for punitive damages, defendants move to strike the following from the Complaint: Item 1: Page 3, section 14, paragraph (2), which states: "Plaintiff prays for judgment for costs of suit for such relief as is fair, just and equitable; and for punitive damages." Item 2: Page 5, section Prem.L.‐3., which states: "Count Two – Willful Failure...

Excerpt: ...ervice of summons did not result in actual notice; and (3) The judgment is void due to plaintiff and plaintiff's counsel's conspiracy to commit fraud and because the court lacks jurisdiction to enter a judgment on a defendant based on a frivolous complaint. Relief Pursuant to Code of Civil Procedure section 473, subdivision (b) The trial court has broad discretion to vacate a judgment and/or the clerk's entry of a default that preceded it. Howeve...

Excerpt: ...ries, Set One, as to Request Nos. 2.12, 2.13, 4.1, 6.3, 6.4, 6.5, 10.1, 10.3 and 12.1. As to Request No. 17.1, defendant's request to compel plaintiff's supplemental response is denied. To grant defendant's motion to compel plaintiff's supplemental responses to defendant's Request for Admission, Set One, Requests Nos. 1, 2, 12 and 15. Plaintiff shall serve verified supplemental responses in full compliance with Code of Civil Procedure, sections 2...

Excerpt: ...on plaintiff's complaint in favor of defendant James Britton (“Britton”). 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 issue to be determined by the trial court in consideration of a motion for summary judgment is whether or no...

Excerpt: ...at justify reconsideration of the order. (Code Civ. Proc. § 1008, subd. (a).) “A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212, internal citations omitted.) “Case law after the 1992 amendments to section 1008 has relaxed the definition of ‘new or different facts,' but it is still ...

Excerpt: ...gainst a general demurrer a complaint will be liberally construed[…]; that any mere ground of special demurrer for uncertainty will be resolved in support of the complaint and the demurrer overruled, when the necessary facts are shown to exist, although inaccurately or ambiguously stated, or appearing only by necessary implication.” (Hunter v. Freeman (1951) 105 Cal.App.2d 129, 133; see Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App....

Excerpt: ...e Ruling: To deny. (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c); 1010.) To grant defendants' request for sanctions and to award monetary sanctions in the total amount of $800 against plaintiffs' counsel, payable within 30 days of the date of the clerk's service of this order. (Code Civ. Proc., §§ 2030.300, subd. (d); 2031.300, subd. (c); 2023.010, subd. (h).) Explanation: Timeliness of Motions A notice of motion to compel fur...

Excerpt: ...or April 21, 2022, at 3:30 p.m., in Department 503. The parties are directed to meet and confer on proposed trial dates, as previously ordered, in light of their prior stipulation to continue the trial date. (See September 15, 2021 Minute Order.) Explanation: Under Code of Civil Procedure section 473, subdivision (a), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding ...

Excerpt: ...ees in the amount of $1,283,333. To grant the named plaintiff (class representative) an incentive award in the amount of $15,000. To order the parties to return on March 21, 2023, at 3:30 p.m. in Department 501 to inform the court of the total amount actually paid to the class members, 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. Doc...

Excerpt: ...duct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ. Proc., § 128, subd. (a)(5).) Substantial Relationship of Representation: Cases disqualifying attorneys for receiving confidential information in the absence of an attorney‐client relationship, as is this case, are generally limited to situations where the information is relev...

Excerpt: ...ion of punitive damages. (Cal. Rules of Court, rule 3.1350(b).) Explanation: Fourth Cause of Action: The elements of a fraudulent concealment cause of action 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 pl...

Excerpt: ...xamination (“IME”). (Code Civ. Proc., §§ 2032.310, 2032.320.) To find defendants' motions to compel responses to defendants' requests for production of documents, sets two and three, moot in light of plaintiff's responses to those discovery requests, served on March 11, 2022. To impose monetary sanctions in the total amount of $720 in favor of defendants and against plaintiff, payable within 30 days of the date of this order, with the time ...

Excerpt: ... conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.' (Code Civ. Proc., § 187 (section 187).) Buried in this opaque language is the power of a t...

Excerpt: ...governmental immunity. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. (Barquis v. Merchants Collection Assn. (1972)...

Excerpt: ...uperior Court (2014) 227 Cal.App.4th 226, 242.) However, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, sub. (f)(1); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal adjudication prohibited].) California Rules of Court, rule 3.1350(b) provides in relevant part [emp...

Excerpt: ... complaint and the demurrer overruled, when the necessary facts are shown to exist, although inaccurately or ambiguously stated, or appearing only by necessary implication.” (Hunter v. Freeman (1951) 105 Cal.App.2d 129, 133; see Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 [pursuant to rule of liberal construction, court draws inferences favorable to plaintiff, not defendant].) In testing a pleading against a demurrer,...

Excerpt: ...ED AT 3:00 PM. Explanation: Plaintiff has sued the State of California for negligence, negligent supervision, and negligence per se. However, since the State is a public entity, it is immune from liability unless there is a statute that imposes a duty of care on it. (Gov. Code § 815, subd. (a).) Thus, in order to state a claim against a public entity, plaintiff must allege that the there was a statute that imposed a duty on the entity to protect...

Excerpt: ...ther witnesses to the alleged property sale agreement. Once plaintiff has obtained discovery responses, the court will hear the merits of the motion to expunge. Explanation: In its order issued after the last hearing, the court was concerned that plaintiff had not had a chance to respond to Ms. Barnett's reply evidence, which raised serious concerns about the credibility of plaintiff's version of events and cast doubt on whether plaintiff was lik...

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

Excerpt: ...edaction, and instructing that the statement “unrelated medical condition” to justify a redaction is insufficient. Plaintiff timely files the present motion for reconsideration to vacate the February 2, 2022 order.1 Reconsideration Motions for reconsideration fall under the purview of Code of Civil Procedure section 1008, which states in pertinent part: When an application for an order has been made to a judge, or to a court, and … granted,...