Excerpt: ...he class; and (2) additional evidence is needed to support a finding that certification will provide substantial benefits to litigants and the courts. The class representative must be able to represent the class adequately. (Caro v. Procter & Gamble (1993) 18 Cal.App.4th 644, 669.) “[I]t has never been the law in California that the class representative must have identical interests with the class members.” (Classen v. Weller (1983) 145 Cal.A...

Excerpt: ...es to the requests for production of documents, and to compel third party Cal Pure Produce, Inc. to produce documents in compliance with the business records subpoena. Defendants and Cal Pure shall serve further responses and produce documents within 30 days of the date of service of this order. Also, to the extent that defendants or Cal Pure withhold any documents under a claim of privilege, they shall provide a privilege log. (Code Civ. Proc., ...

Excerpt: ...he litigation would be promoted thereby ….” (Code Civ. Proc., § 598.) In addition, “the decision to bifurcate is discretionary with the trial court.” (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 833; Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 205 [“It is within the discretion of the court to bifurcate issues or order separate trials of actions ... and to determine the...

Excerpt: ...ontract, plaintiff has met its burden of producing evidence showing that defendant breached its lease with plaintiff, and that plaintiff was damaged as a result. The elements of a breach of contract claim are (1) the existence of a contract between the parties, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) resulting damage to plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Her...

Excerpt: ...de of Civil Procedure, section 1255.010 [the probable amount of compensation to be awarded to defendants], plaintiff has failed to provide notice of its motion to all the requisite parties. Notice Requirement: A motion for prejudgment possession must be served on the “record owner of the property and on the occupants, if any.” (Code Civ. Proc. § 1255.410, subd. (b).) “'[R]ecord owner' means the owner of the legal or equitable title to the ...

Excerpt: ...mend. (Code Civ. Proc. § 430.10, subd. (e).) Explanation: Cause of Action No. 1: Violation of California Civil Code Section 2923.6 Under Civil Code section 2923.6, If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not...

Excerpt: ...ion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the statutory time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Appli...

Excerpt: ...North 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,...

Excerpt: ...int seeks to recover civil penalties under the Private Attorneys General Act of 2004 (“PAGA,” Lab. Code, §§ 2698 et seq.) for labor violations that defendants allegedly committed against their non‐exempt employees. Defendants move for summary adjudication of the ninth cause of action, arguing that the PAGA notice1 was defective. Specifically, they argue the notice was defective because: (1) it did not adequately allege “facts and theori...

Excerpt: ...out of tortious injury to her spouse, but arising out of injury to her spouse by way of violations of the Fair Employment and Housing Act and Labor Code; and alternatively that defendant is immune from common law claims.1 The standard of review in a motion for judgment on the pleadings is well settled; the motion is confined to the face of the pleading under attack, and all facts alleged in the complaint must be accepted as true. (Rangel v. Inter...

Excerpt: ...f Court, rule 3.770.) Explanation: 1. Introduction “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).) 2. Notice to Labor and Workforce Development Agency Plaintiff's counsel states that notice of the settlement was given to the Labor and Workfor...

Excerpt: ...es of action. To grant leave to amend as to the second, third, fifth, and sixth causes of action. To deny leave to amend as to the seventh and ninth causes of action. Plaintiff shall serve 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: Second Cause of Action: The second cause of action fails to state a valid claim for breach of the implied covenant ...

Excerpt: ...f 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).) Explanation: Plaintiff seeks to compel the deposition of Kia America, Inc.'s (“KA”) person most knowledgeable (PMK) and custodian of records, and to compel production of various categories of records. Plaintiff served KA with a deposition notice setting the deposition f...

Excerpt: ...nc., a suspended corporation; Felix Tiscanero; Fruit Valley Harvest, Inc. dba Fruit Valley Harvesting; and Domingo Eustacio Cruz‐Lopez dba De Cruz FLC, to recover loaned monies made between August and September 2021, in the approximate amount of $500,000. Plaintiffs now seek to attach certain real property and farm products as a provisional remedy. No timely opposition was filed. (Code Civ. Proc. § 484.060, subd. (a).) Preliminary Facts Plaint...

Excerpt: ...posture and similarity of contentions, the court intends to advance defendants' motion to bifurcate and deny it, without prejudice. (Code Civ. Proc., § 1048.) Explanation: Summary Adjudication Summary adjudication is the proper mechanism for challenging a particular, “cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 242.) Furt...

Excerpt: ...burden to establish a prima facie case of discrimination… While the plaintiff's prima facie burden is ‘not onerous', he must at least show ‘“ ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion ....'”'” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354‐355, internal citations omitte...

Excerpt: ... issues. (Wershba 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, 19.a) 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 conditio...

Excerpt: ... to amend under Code of Civil Procedure, section 473, subdivision (a), and Code of Civil Procedure, section 576, favoring resolution of all disputed matters between the parties in the same lawsuit. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Additionally, where “the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint…” (Code Civ. ...

Excerpt: ... order, and did not pertain to this motion. The court now rules on the merits of the motion. Under Code of Civil Procedure section 877.6, a settlement entered by one or more of several joint tortfeasors may be determined by the court to be in “good faith.” The court determines whether a settlement is within the “good faith ballpark” by considering the following factors (evaluated as of the time of the settlement): 1) a rough approximation...

Excerpt: ...reble damages, specifically page 8, lines 9‐11 and the prayer on page 9, line 3, with leave to amend. Plaintiff is granted 10 days' leave to file the Second Amended Complaint. The time in which the FAC can be amended will run from service by the clerk of the minute order. Explanation: Defendant moves to strike the language in the First Amended Complaint (“FAC”) seeking exemplary damages pursuant to California Civil Code, section 3294 and tr...

Excerpt: ...nation: Attorney Affidavit of Fault: The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. § 473, subd. (b).) Where a motion seeking this relief is based on an “attorney affidavit of fault,” the relief is mandatory. Otherwise, relief is discretio...

Excerpt: ...nce to a later date, if plaintiff needs more time. The Case Management conference is also continued to March 8, 2022. Explanation: Class Certification The settlement class is described as current and former non‐exempt truck drivers employed by defendant. The dates of employment of the settlement class vary greatly depending on what document the court is reading. The definition of the settlement class in the Settlement Agreement is from January ...

Excerpt: ...Code, § 2699, subd. (l)(2).) PAGA itself does not set forth a clear applicable standard for approval of such settlements. (See Flores v. Starwood Hotels & Resorts Worldwide, Inc. (C.D. Cal. 2017) 253 F.Supp.3d 1074, 1075; Patel v. Nike Retail Services, Inc. (N.D. Cal., May 8, 2019) 2019 WL 2029061, at *2 [“PAGA does not establish a clear standard for evaluating PAGA settlements.”].)1 Accordingly, this court assesses settlement proposals unde...

Excerpt: ...aint in interpleader as a standalone action against defendants Kenneth Matthew Green, Schicuan Green, and Janet Green, seeking to dispose of its obligation to defendants in relation to benefits paid out on the death of Robert Green. On June 3, 2021, plaintiff lodged $43,500 with the court. Plaintiff now seeks an order discharging it from: its liabilities as to the monies deposited; the present action with prejudice; and for costs and attorney's f...

Excerpt: ...une 18, 2021 pretrial discovery conference. Responsive documents shall be provided within ten (10) days of the clerk's service of this minute order. To grant the request for monetary sanctions in the amount requested. Defendants Pacifica Real Estate Services, Inc., Pacifica Enterprises, Inc., Island Lake Investors, LP, River Park Villas, Bullhead City, LTD, L.P. shall pay the sum of $3,660 to counsel for plaintiff within 30 days of the clerk's se...

Excerpt: ...nd twenty. (Ibid.) Explanation: Third Affirmative Defense: With regard to affirmative defense number three, statute of limitations, plaintiff asked Hurley to admit that she had no facts to support the defense. (Plaintiff's Undisputed Material Fact Nos. 4, 5.) Hurley responded with an admission, and also conceded that she had no facts, witnesses, or documents to support the defense and that “[i]t does not appear that there is a statute of limita...

Excerpt: ...clarations will not be considered in any way in connection with the motion for class certification or any other proceeding unless nonparties John Morquecho and Ruben Vela submit to deposition. To deny all requests for sanctions. (Code Civ. Proc., § 1987.2.) Explanation: Non‐parties John Morquecho and Ruben Vela failed to appear for their depositions despite issuance of subpoenas requiring their appearance. Defendant sought to depose these indi...

Excerpt: ...perty during the pendency of the action, including property taxes, utilities, hazard insurance, pool and yard maintenance, pest control, and for any necessary repairs, and to keep Vantage Point Finance, LLC (“Vantage Point”), reasonably well informed as to the status of these payments so it is ensured there are no missed payments. The court will also order Mr. Arballo to open an escrow account and make monthly rental payments during the pende...

Excerpt: ...t motion. On May 9, 2018, plaintiff filed a complaint on behalf of herself and as a limited partner in Boise Telecasters, LP (BT).1 On July 24, 2018, plaintiff filed a first amended complaint (FAC). BT was created in 2004 between plaintiff and defendant Gary Cocola. (FAC, ¶ 21.) Plaintiff held a limited partner interest in BT in the amount of 49 percent, along with Cocola, who also held a limited partner interest in BT in the amount of 49 percen...

Excerpt: ...nce charges totaling over $460,000. (Mayhew Decl. ¶ 2‐3.) Defendant Billan is a resident of Arizona, and defendant Melonco, LLC is also based in Arizona. The court's file does not reflect that defendant Billan has been served in this action. Notice of the hearing must be served on the defendant at least 16 court days before the hearing. (Code Civ. Proc., §§ 484.040, 1005, subds. (a)(1) & (b).) A proof of service must be filed with the court ...

Excerpt: ...ent Creditor Assignee Forster‐Gill, Inc., seeks to add Canales Group LLC as a judgment debtor on the Judgment entered against Canales‐Selma LLC and Michael Canales, individually and doing business as Michael Canales Construction on July 24, 2012. After a judgment creditor obtains a judgment against a corporation and it then discovers that the corporation has few or no assets and is controlled by a nonparty alter ego, the judgment creditor may...

Excerpt: ... restaurant. She slipped and fell on a slippery substance on the floor as she walked back to her table after using the restroom. She felt sudden and severe pain in her right knee. The Complaint alleges a single cause of action for premises liability. Initially the court will address plaintiff's evidentiary objections. The first three objections are expressly directed at portions of defendant's separate statement. These objections should be overru...

Excerpt: ...gment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713, quoting Code Civ. Proc., § 437c, subd. (c).) To prevail on a motion for summary judgment, it is the defendant's burden to prove there is a complete defense or that the plaintiff cannot establish one or more elements of each of his causes of action. (B...

Excerpt: ...for Judgment on the Pleadings: Defendants move for judgment on the pleadings as to the entire Complaint on the ground that the case has become moot due to the Governor's decision to rescind the Blueprint for a Safer Economy. A motion for judgment on the pleadings will lie where the issues of the case have become moot. (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746.) “Courts do not decide abstract questions of law. An indispensable ...

Excerpt: ...inute order by the clerk, to file and serve a first amended complaint. Explanation: Complaint In a Judicial Council form complaint, plaintiff appears to allege two causes of action against defendant: (1) workplace discrimination/wrongful termination and (2) negligence.2 The allegations in support of the complaint are set forth in attachments to the complaint, specifically an undated letter from plaintiff to the court (which plaintiff refers to as...

Excerpt: ...within 30 days of the clerk's service of the minute order. Explanation: Background Plaintiff is a joint powers authority organized and existing under the Commission of the California Statewide Communities Development Authority. Defendant is the owner in fee simple of the residential property located at 2286 East Sierra Avenue, in Fresno, California. Plaintiff and defendant allegedly contracted for the loan of monies to secure improvements to defe...

Excerpt: ...onses to Requests for Production of Documents, Set One Tentative Ruling: To deny. Explanation: Motions to compel further responses to interrogatories or requests for production must be accompanied by a declaration showing a “reasonable” and “good faith” attempt to resolve the issues outside of court. (Code Civ. Proc., §§ 2016.040, 2030.300, subd.(b), 2031.310, subd. (b)(2).) Various factors may be considered by the court in determining ...

Excerpt: ...t aside. Defendants are excused from including a copy of their proposed pleading as a precondition for the set aside and are granted 30 days' leave to file their responsive pleadings to the First Amended Complaint, with the time to run from service by the clerk of the minute order. If this response is a demurrer, as defendants have indicated, then the parties must comply with the meet and confer requirements outlined in Code of Civil Procedure se...

Excerpt: ...arry Wilmoth, Jr. for the benefit of the Harry Wilmoth Sr. and Doris Wilmoth Trust (“Senior Trust”)1 Plaintiff formed in 2006 between William Van Erickson dba Van Erickson Contractor, Junior, and Roxy Lewis. Van Erickson Contractor had previously been in operation since the 1960s. (Verified Complaint, ¶ 6, 10.) The verified complaint alleges that Junior was the trustee of the Senior Trust, and was acting in his capacity as trustee in securin...

Excerpt: ...n from service by the clerk of the minute order. Explanation: Actual Notice and Proof of Service: Where service of summons has not resulted in actual notice to a party in time to defend the action, the court is empowered to grant relief from a default. (Code Civ. Proc., § 473.5.) Pacific asserts that it had no knowledge of the proceeding until after default was entered against it in July 2021. Plaintiffs purported to serve defendant Pacific with...

Excerpt: ...nfidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).) “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) “A party requesting that a record be filed under seal must file a motion or an application for an order sealin...

Excerpt: ... plaintiff filed Case No. 21CECG00398 (“00398”) against defendants Henry Nunez and Henry Nunez Law Corporation for professional negligence and breach of fiduciary duty claims. Plaintiff now brings the present motion to consolidate the two cases. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the acti...

Excerpt: ...).) Explanation: Summary Judgment/Adjudication A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The moving party bears the burden of showing the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima faci...

Excerpt: ...ents; and Request for Monetary Sanctions Tentative Ruling: To grant and to award monetary sanctions in the total amount of $730 against plaintiff David Herrera, and his attorney Justin B. Toobi, 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. Plaintiff shall serve verified responses without objections, to defendant Falcon Private Security, Inc.'s For...

Excerpt: ...re the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Code Civ. Proc., §1048, subd. (a).) Consolidation promotes trial convenience by avoiding duplicative procedures, particularly in proving issues common to both actions. (See McClure v. Donovan ...

Excerpt: ...he Underlying Case In underlying Case No. 13CECG03811 entitled Cal LeDuc; Tori Abby; Miley Abby, a minor by and through her Guardian ad litem, Tori Abby, Mandy Jobe, Lukus LeDuc, Jay LeDuc and Cal LeDuc as successor in interest to the estate of Marsha Kay LeDuc v. Mario Alberto Guerro; Daniel M. Canchola and Guerra Produce, the defendants filed for bankruptcy protection on April 24, 2017, shortly before the initial trial date. The Plaintiffs peti...

Excerpt: ...consider all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for ...

Excerpt: ...ee. Plaintiff alleges that defendants entered into a contract to purchase four trailers, and defendants breached the agreement by failing to make the required payments. A party moving for summary judgment bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Only when the initial burden of production is met, does the burden shift to the responding party to demonstrate the existence of ...

Excerpt: ...t may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (Code Civ. Proc., §36, subd. (d), emphasis added.) In support of her motion, plain...

Excerpt: ...ge (“FIE”) a Request for Admissions, Set Three (“RFAs”), containing 59 requests. (Declaration of Nicholas J. Peterson, ¶ 2.) On January 4, 2021, FIE served only objection responses to each of the 59 requests. (Id., ¶ 3, and Ex. A.) On February 16, 2021, plaintiff requested a pre‐trial discovery conference on, among other things, all of the 59 requests of the RFAs. On February 22, 2021, the court issued an order that plaintiff may proc...

Excerpt: ...rguments: (1) under Code of Civil Procedure section 1281.2, subdivision (c), arbitration is no longer required; (2) decedent did not consent to the arbitration clause; (3) delay in arbitration requires that the order compelling arbitration be vacated; and (4) the arbitration agreement at issue is unconscionable. In opposition, defendant Covenant Care California, LLC, dba Pacific Gardens Nursing and Rehabilitation Center argues: (1) plaintiff fail...

Excerpt: ...ion of emotional distress; (4) violation of Business and Professions Code section 17200; and (5) wrongful death. Plaintiff is litigating cause of action three [NIED] and five [wrongful death] in her individual capacity. Petitioner, defendant Antonis Antoniou, M.D., now moves to compel arbitration. In opposition, plaintiff argues that the petition at issue should be denied because: (1) pursuant to Code of Civil Procedure section 1281.2, subdivisio...

Excerpt: ...e of the arbitration agreement and that the dispute is covered 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 1...

Excerpt: ...�§ 436, 431.10, subd. (b).) To grant leave to amend. Should cross‐complainant Jing Yang desire to amend, the First Amended Cross Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should cross‐complainant elect not to amend, cross defendants shall file responsive pleadings within thirty (30) days from the date of this order. Explanation: “Any party, within the time allowed ...

Excerpt: ...ccessor‐in‐ Interest to Jessica Cortez, brought suit against, among others, defendant and moving party, Kevin Ciresi, M.D. The complaint alleges one cause of action for medical malpractice resulting in wrongful death. Plaintiff is alleged to be the husband of Cortez, who passed away on September 25, 2019, and as such is the “wrongful death heir.” Ciresi brings this motion to compel joinder of Alyza and Isaiah Boriphanvichitr, as omitted a...

Excerpt: ... unable resolve disputes regarding plaintiff's counsel's stated objections and instructions to his client. Motion to Compel Plaintiff's Further Deposition To the extent the motion requests a further response to a particular deposition question or document request a Separate Statement is necessary under California Rules of Court, rule 3.1345. While that rule does provide an exception where “no response has been provided to the request for discov...

Excerpt: ...planation: Exclusivity of the Workers' Compensation Remedy Defendant North Cal Cleaning Company (NCCC) demurs to the First Amended Complaint on the grounds that the breach of contract cause of action alleged against it in the First Amended Complaint is barred by the exclusive remedy of workers' compensation. (Code Civ. Proc., § 430.10, subd. (e).) Labor Code section 3600, subdivision (a), provides that liability for the compensation provided by ...

Excerpt: ... and $262.10 in costs. (Code Civ. Proc., § 425.16, subd. (c).) Explanation: A special motion to strike (an “anti‐ SLAPP” motion) provides a procedural remedy to dismiss non‐meritorious 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.) A prevailing defendant on an a...

Excerpt: ...grant the motion to strike, in part, and strike paragraph 36, p. 10:8‐10; to deny as to the remainder of the items. (Code Civ. Proc., § 436.) Defendants shall file their answer to the SAC within 10 days of the date of service of the order by the clerk. Explanation: Demurrer Fifth Cause of Action The fifth cause of action is for intentional interference with prospective economic advantage. The cause of action vaguely alleges that plaintiffs and...

Excerpt: ...nded Complaint Tentative Ruling: To sustain the demurrers to the Second Amended Complaint's ninth and tenth causes of action. (Code Civ. Proc., § 430.10, subds. (e) and (f).) To grant the motions to strike. (Code Civ. Proc., §§ 435 and 431.10, subd. (b).) To grant leave to amend. Should plaintiff desire to amend, the Third Amended Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold pri...

Excerpt: ...e class list and related information to the class administrator, for the class administrator to mail notice to the class members, and for class members to mail objections or requests for exclusion, shall be as set forth in that order. A hearing for final approval is set for May 17, 2022, at 3:30 p.m. in Department 403. Papers for this hearing must be filed on or before April 20, 2022. Explanation: Plaintiff has addressed the issues included in th...

Excerpt: ... issues the parties have not agreed to arbitrate.” (Garlach v. Sports Club Co. (2012) 209 Ca1.App.4th 1497, 1505.) “Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute.” (Mendez v. Mid‐Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) Defendant Hyundai Motor America (“HMA”) admits it is not a signatory to the arbitration agreement in...

Excerpt: ... defamation, false light, and interference with prospective economic advantage against defendants. Each cause of action refers to or relies on two types of statements: statements made on a GoFundMe page, and statements made to or reported by various news publications. Defendants now bring a special motion to strike the entirety of plaintiffs' complaint, pursuant to Code of Civil Procedure section 425.16. Code of Civil Procedure section 425.16 (th...

Excerpt: ... against public participation (SLAPP) statute. (Code Civ. Proc., § 426.16, subd. (g).) To condition relief on limiting the scope of discovery. To deny plaintiff's motion in all other respects. To continue the hearing to December 16, 2021, at 3:30 p.m., in Department 503, to allow the parties to address the proposed scope of discovery as it relates to the legitimate business purpose argument and the discovery parameters allowed pursuant to the an...

Excerpt: ...er by the clerk, a proposed judgment consistent with the written settlement agreement. Explanation: Code of Civil Procedure Section 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court . . . for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement.” It also provides that the parties may request ...

Excerpt: ... grant the motion for summary adjudication as to the claim for punitive damages. (Code Civ. Proc. § 437c.) Cross‐defendants' objections to Michael Carrigan's Declaration nos. 5, 6, 7, 8, 9, and 10 are overruled. All other objections were not material to the determination of the motions. (Code Civ. Proc., § 437c, subd. (q).) Explanation: Burden on Summary Judgment Summary judgment law turns on issue finding rather than issue determination. (Di...

Excerpt: ...murrer to the second cause of action in the Second Amended Cross‐Complaint, with leave to amend. Bazan is granted 10 days' leave to file a Third Amended Cross‐Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To sustain CFM's demurrers to the fourth and fifth causes of action in the Second Amended Cross‐Complaint, without leave to amend. CFM is directed to submit ...

Excerpt: ...ion: Defendant demurs to the fraudulent misrepresentation claims in the third and fourth causes of action, contending that plaintiff has not alleged sufficient facts to support his fraud claims. As defendant notes, fraud must be pled with specificity. The elements of fraud are (1) a misrepresentation (false representation, concealment or nondisclosure); knowledge of falsity (“scienter”); (2) intent to defraud, i.e., to induce reliance; (3) ju...

Excerpt: ...material fact and the moving 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...

Excerpt: ...owing that the notice of motion and supporting documents were served on all defendants prior to the hearing. (Code Civ. Proc. § 437c, subd. (a)(2).) Explanation: Plaintiff moves for summary adjudication of defendants' third, fourth, and seventeenth affirmative defenses, as well as their first, second, and fifth cross‐claims in their cross‐ complaint. Plaintiff alleges that it entered into a lease agreement with defendants for defendants to o...

Excerpt: ...: Under Government Code section 985, “after a verdict has been returned against a public entity that includes damages for which payment from a collateral source listed below has already been paid or is obligated to be paid for services or benefits that were provided prior to the commencement of trial, … the defendant public entity may, by a motion noticed within the time set in Section 659 of the Code of Civil Procedure, request a posttrial h...

Excerpt: ...f service of the minute order by the clerk. Explanation: Demurrer Defendants Orange Cove Amaya Associates ("Amaya") and AMG & Associates, LLC ("AMG") (collectively referred to as “defendants” for purposes of these motions) demur to each cause of action of the complaint, both generally for failure to state a cause of action, and specially, for uncertainty. (Code Civ. Poc., § 430.10, subd. (e), (f).) The court will quickly dispose of the speci...

Excerpt: ... will be entertained at 2:30 p.m. Explanation: Before filing a demurrer, the moving party “shall file and serve with the demurrer a declaration stating… (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a)(3)(A) [emphasis added].) Here, thou...

Excerpt: ...omplaint is entrusted to the sound discretion of the trial court ....” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909.) “The court may ... in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading ....” (Code Civ. Proc., § 473, subd. (a)(1).) “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper,...

Excerpt: .... (q).) Explanation: Burden on Summary Judgment In ruling on a motion for summary judgment or summary adjudication, the court must consider all of the evidence and all of the inferences reasonably drawn there from and must view such evidence and such inferences ‘in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three‐prong an...

Excerpt: ...ees already paid) for the correct total motion fee of $360 (6 motions x $60 each). The additional filing fees must be paid no later than November 30, 2021. Plaintiffs Brandon A. Escalante and Samantha Quintero are ordered to serve separate, verified responses, without objections, to defendants' Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One (a separate set of which was served on e...

Excerpt: ...ver, petitioners have not yet filed a civil action against Dr. Foxley or anyone else to the court's knowledge, and it is not clear if they intend to do so in the future. Nevertheless, they seek to preserve the complaint and to compel its production, citing to Code of Civil Procedure sections 2035.010 to 2035.060. Under section 2035.010, “One who expects to be a party or expects a successor in interest to be a party to an action that may be cogn...

Excerpt: ..., California. To grant petitioners' request for attorney's fees and costs from respondents. Explanation: Abatement and Receivership Under Health and Safety Code section 17980.6: If any building is maintained in a manner that violates any provisions of this part, the building standards published in the State Building Standards Code relating to the provisions of this part, any other rule or regulation adopted pursuant to the provisions of this part...

Excerpt: ...�40%) on amounts withheld from tenants' security deposits. The First Amended Complaint (“FAC”) filed on July 28, 2016, alleges causes of action for (1) Unfair Competition (Bus. & Prof. Code § 17200); (2) Preliminary and Permanent Injunction; (3) Declaratory Relief; and (4) Violation of Civ. Code § 1950.5. All causes of action are premised on violation of section 1950.5. The FAC simply alleges that “[t]he 40% administration fees deducted f...

Excerpt: .....” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909.) “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading ... by adding ... any party.” (Code Civ. Proc., § 473, subd. (a)(1).) “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading ... in other particulars ....” (Code Civ. Proc., § ...

Excerpt: ...days of service of the order by the clerk. Explanation: Motion to Strike A defendant may move to strike allegations from a pleading in two situations: (a) the allegation is “irrelevant, false, or improper” or “superfluous” or “abusive” and (b) where the “pleading was not drawn in conformity with the laws of the state or a court rule.” (Code Civ. Proc., § 436, subd. (a), (b).) The motion to strike is denied for two reasons. First,...

Excerpt: ...ned below. Explanation: Agreement to Arbitrate. “Under both federal and California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98; see Federal Arbitration Act (FAA)(9 U.S.C. § 1 et seq.).) Title 9 United States Code section 2 states that, “A written...

Excerpt: ...Civ. Proc. § 386.6.) Explanation: “‘Interpleader is an equitable proceeding by which an obligor who is a mere stakeholder may compel conflicting claimants to money or property to interplead and litigate the claims among themselves instead of separately against the obligor.... After admitting liability and depositing the money or property with the court, the obligor is discharged from liability and freed from the necessity of participating in...

Excerpt: ...ction 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court . . . for settlement of the case . . . the court, upon 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...

Excerpt: ... Nos. 3, 13, 16, 17, 18, 19, 20, 22, 23, and 24, and produce all documents responsive to the Requests for Production. The further responses shall specify which documents are responsive to which request and be in a format that is accessible. To grant monetary sanctions in the amount of $555 against Claimant, in favor of Respondent California Capital Insurance Company. Within thirty (30) days of service of the order by the clerk, Claimant shall pay...

Excerpt: ...To grant plaintiff's motion for terminating sanctions against defendant Carney. (Code Civ. Proc., § 2023.030.) To strike defendant Carney's answer and enter default against him. Explanation: Defendant Castillo's Motion for Reconsideration: A party moving for reconsideration 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 seeki...

Excerpt: ...sponses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Code Civ. Proc. §§ 2030.290(b), 2031.300(b).) Plaintiffs are ordered to serve complete verified responses to all discovery set forth above, without objection, on or before November 23, 2021. To impose monetary sanctions the total amount of $1,260 in favor of Defendant Ygrene Energy Fund, Inc., and against Plaintiffs and...

Excerpt: ...de Civ. Proc. § 405.30; 405.32.) Plaintiff shall file and serve its sur‐reply by the close of business on January 19, 2022. Defendant Barnett shall file and serve her response by the close of business on January 26, 2022. Explanation: Under Code of Civil Procedure section 405.30, any party, or any nonparty with an interest in real property affected by a lis pendens, can move to expunge the lis pendens at any time after the notice of pendency o...

Excerpt: ...n costs. Defendant now seeks to tax those costs on two grounds: that plaintiff is not a prevailing party within the meaning of Code of Civil Procedure section 1032 and California Rules of Court Rule 3.1700; and that the costs claimed are disallowed. Though defendant argues that plaintiff is not the prevailing party within the meaning of Code of Civil Procedure section 1032, section 1032 does not control. (See Stratton v. Beck (2018) 30 Cal.App.5t...

Excerpt: .... 1 and plaintiff Westlands Water District Distribution District No. 2 (collectively, “Westlands”). (Code Civ. Proc., § 860 et seq.) Explanation: 1. General Principles of Validation Actions “A public agency may upon the existence of any matter which under any other law is authorized to be determined pursuant to this chapter, and for 60 days thereafter, bring an action in the superior court of the county in which the principal office of the...

Excerpt: ...ligent entrustment and violation of Vehicle Code section 12202.7. To deny summary adjudication as to the issues of negligence, and violation of Health and Safety Code section 103900. Explanation: In ruling on a motion for summary judgment or summary adjudication, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom and must view these in the light most favorable to the opposing party. (Aguilar v. Atlant...

Excerpt: ...n: 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 by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice...

Excerpt: ... or comparative indemnity, based on comparative negligence or comparative fault on the condition that defendant/crossdefendant is able to provide proof of service of the notice of motion on defendant/crossdefendant Rainworthy Roofing, Inc. (Code Civ. Proc., § 877.6.) Explanation: Pursuant to Code of Civil Procedure section 877.6, subdivision (a)(1), “Any party to an action in which it is alleged that two or more parties are joint tortfeasors o...

Excerpt: ... 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) [20‐calendar‐day extension for service to address outside the United States].) 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 ...

Excerpt: ...anation: The motion for consolidation must be denied because, as more fully discussed below, the balancing test for determining whether plaintiff's defenses can be presented in the unlawful detainer action is for the unlawful detainer court, upon noticed motion, to decide; it cannot be addressed by the court in a civil action via consolidation. Under Code of Civil Procedure section 1048, subdivision (a), "When actions involving a common question ...

Excerpt: ...nses related to the subject property during the pendency of the action, including property taxes, utilities, insurance, and the annual payment related to the property's solar panels, and to keep Ms. Rogers reasonably well informed as to the status of these payments so she is ensured there are no missed payments Explanation: Since the parties are each “plaintiff” and “defendant” (in reversed roles) between the two cases, they will be refer...

Excerpt: ...inute order. Explanation: Plaintiff states one cause of action for loss of consortium based on his wife's termination from employment with defendant, which he alleges was wrongful as it was based on her disability and in violation of her right to protected medical leave.1 A claim for loss of consortium has four elements: (1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury t...

Excerpt: ...f and failed to pay him wages owed. All defendants but NextStep Arthropedix, LLC were dismissed following grant of their motions to quash service of summons. They seek costs as prevailing parties pursuant to Code of Civil Procedure section 1032. “In the absence of a specific Labor Code provision, costs are awarded in employment dispute matters under Code of Civil Procedure section 1032.” (Ling v. P.F. Chang's China Bistro, Inc. (2016) 245 Cal...

Excerpt: ...ements. (Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 25; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97; see Code Civ. Proc. §1281.2.) “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is r...

Excerpt: ...e conducted on October 27, 2021, at 1:30 p.m., in Department 501. Explanation: Plaintiff has brought its renewed motion under Code of Civil Procedure section 1008, subdivision (b), (hereafter “Section 1008(b)”) which provides: A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circums...