Excerpt: ... burden of demonstrating that (1) an alternative forum is available; (2) that said alternative forum is adequate; and (3) that the balance of private and public interest factors tilts heavily in favor of the alternative forum. (Stangvik v. Shiley (1991) 54 Cal.3d 744, 751.) With respect to the first requirement, an alternative forum is “suitable” only if (1) there is jurisdiction over the defendant in the alternate forum; and (2) there is no ...

Excerpt: ... To strike, sua sponte, the Second Amended Complaint filed on February 9, 2021. (Code Civ. Proc., § 436, subd. (b).) Explanation: Meet and Confer. Before filing a demurrer, the demurring party “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer[.]” (Code Civ. Proc., § 430.41, subd. (a), emphasis added; see also Judicial Council form CIV‐140.) Where the parties are unable to su...

Excerpt: ...chment) causes of action. To grant leave to amend as to the third and fourth causes of action, but no leave to amend as to the sixth cause of action. Explanation: Breach of Bylaws (Second Cause of Action) “Whether a set of bylaws constitutes a contract ‘turns on whether the elements of a contract are present.'” (O'Byrne v. Santa Monica‐UCLA Medical Center (“O'Byrne”) (2001) 94 Cal.App.4th 797, 808, quoting Scott v. Lee (“Scott”) (...

Excerpt: ...t of papers. In the future the moving party must reserve the proper number of motions. Moving party shall pay an additional filing fee of $120.00 to be due and payable to the court clerk within 30 days of service of the minute order by the clerk. (Gov. Code § 70617, subd. (a).) To grant the moving party's motion to compel responses to the Form Interrogatories‐general (set one), Special Interrogatories (set one), and Request for Production of D...

Excerpt: .... All new allegations are to be set in bold. Explanation: A demurrer is only used to challenge defects that appear on the face of the pleading under attack, or from matters outside of the pleading that are judicially noticeable. (Code Civ. Proc., § 430.10; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Extrinsic evidence from the pleading otherwise cannot be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)1 Defendant general...

Excerpt: ...ndants to Strike Tentative Ruling: To grant defendants' motion to strike the first, second, third and fifth causes of action of the Second Amended Complaint (“SAC”). To deny the motion to strike punitive damage allegations. (Code Civ. Proc., § 436, subd. (a), (b).) To sustain the demurrer to the SAC's fourth cause of action, without leave to amend, only as to defendants Sherri Jones, Brandon Price, Emi Komaki, Sara Arad, David Mwangi, Virgin...

Excerpt: ...led two motions referencing an October 6, 2021 hearing date: (1) motion to vacate the November 17, 2020 order, strike defendant's answer and cross‐complaint, and enter default (filed March 18, 2021), and (2) strike defendant's answer and cross‐complaint, and enter default (filed September 8, 2021). Plaintiff reserved a hearing date for only the second motion1 . Defendant, a corporation that cannot represent itself (Merco Constr. Engineers, In...

Excerpt: ...ions to compel verified responses to form interrogatories ‐ general (set one), special interrogatories (set one), and demand for inspection of documents (set one) moot, as the requested responses appear to have been provided. To grant defendant's motion that the truth of the matters specified in the request for admissions (set one) be deemed admitted unless plaintiff serves, before the hearing, a proposed response to the requests for admission ...

Excerpt: ...rofessional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” [Citation.]'” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) However, the standard of care against which physicians acts are mea...

Excerpt: ...(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 conditionally cer...

Excerpt: ...ber 14, 2021. No reply to the response will be permitted. The Court continues the hearing to October 21, 2021, at 3:30 p.m., in Department 503. Explanation: Background On or about 2006, plaintiffs were hired by the defendant Panoche Water District (“District”) as “canal men.” As such, they operated, maintained, produced, stored, transmitted and distributed water for irrigation, both domestic and industrial purposes. Plaintiffs allege that...

Excerpt: ...bsence of contrary court order, a civil litigant's right to discovery is broad.”].) “In civil litigation, discovery may be obtained from a nonparty only through a ‘deposition subpoena.' [Citation.]” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127; Code Civ. Proc. § 2020.010, subd. (b).) However, “Discovery procedures are generally less onerous for strangers to the litigation. That is because they are less likely to be r...

Excerpt: ...on a party's motion to vacate a judgment or decree and enter ‘another and different judgment” because either an “[i]ncorrect or erroneous legal basis for the decision, not consistent with or … supported by the facts' or ‘[a] judgment or decree not consistent with or … supported by the special verdict' entitles the moving party to a different judgment.” (In re Marriage of Furie (2017) 16 Cal.App.5th 816, 831.) Plaintiff contends her ...

Excerpt: ...ompel arbitration with JAMS. Explanation: With a motion to compel arbitration, the moving party must prove by a preponderance of evidence the existence 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...

Excerpt: ...g 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 part...

Excerpt: ... litigation by eliminating needless trials. (Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558, 562.) Summary judgment is permissible in actions for declaratory relief. (Walker v. Munro (1960) 178 Cal.App.2d 67, 70‐71, overruled on other grounds by Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055.) Plaintiffs seek declaratory relief by judicial determination that the commercial general liability policy issued by defendant, for t...

Excerpt: ...ice by the clerk of the minute order. All new allegations are to be set in boldface type. To overrule defendant's evidentiary objections to Paragraphs 3, 4, 5 and Exhibit B of the Dobbins Declaration and to sustain the objection to Exhibit C. Explanation: The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the o...

Excerpt: ...ing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc., § 877.6, subd. (a)(1).) “The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed ...

Excerpt: ...default entered against them on December 28, 2020. To grant the motion of defendant Harpal Singh to set aside the default entered against him on January 4, 2021. (Code Civ. Proc., § 473, subd. (b).) Defendants shall file their answer within five (5) days of the clerk's service of this minute order. Explanation: Defendants contend that their defaults were taken as a result of mistake, inadvertence, surprise, or excusable neglect and that the serv...

Excerpt: ...udice, or when separate trials will be conducive to expedition and economy, the court may order a separate trial of any cause of action or of any separate issue, or any number therefrom. (Code Civ. Proc. § 1048, subd. (b).) Such an order may be made on motion of a party, after notice and hearing. (Id. § 598.) Separate trials, in this context, may be referred to as a bifurcation. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 880, 887...

Excerpt: ...rike, without leave to amend, as to request 1 (page 5, paragraph 22), request 2 (page 14, paragraph 81), and request 3 (page 16, paragraph 92). To grant defendant's motion to strike, with leave to amend, as to request 4 (page 16, paragraph 95). Plaintiffs are granted 20 days, running from service of the minute order by the clerk, to file and serve a third amended complaint. All new allegations in the amended complaint are to be set in boldface ty...

Excerpt: ...e).) To grant the motion to strike, with leave to amend. (Code Civ. Proc., § 436, subd. (a).) Plaintiff shall serve and file her third amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface type. Explanation: Demurrer Fourth Cause of Action for Constructive Fraud In ruling on a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that ma...

Excerpt: ... bench, petitioners seek to have the court award fees in addition to those that were conferred in the arbitration award that was served July 8, 2020 and that petitioners sought to confirm on February 5, 2021. The petition to confirm the award did not request attorney fees pursuant to the parties' agreement. (Petition to Confirm, filed February 5, 2021, ¶ 10f.) The arbitration award was confirmed and entered as judgment on March 4, 2021. The time...

Excerpt: ...iled pursuant to this part. 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. Howev...

Excerpt: ...., § 437c, subd. (q).) Explanation: 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 constru...

Excerpt: ...d Motor Company (“defendant” or “Ford”). As a part of that transaction, plaintiff signed a Retail Installment Sales Contract (“RISC”) which contained an arbitration clause. After problems with the vehicle ensued, this “lemon law” action was filed on February 19, 2021, against both Future Ford and Ford. However, plaintiff stated separate causes of action against each defendant. The causes of action stated against Ford are three cau...

Excerpt: ...tories, Set 2, Interrogatory No. 45. Request for production No. 58 seeks “Any DOCUMENTS relating to the calculation and payment of Harry Overly's salary, including bonus and/or other incentive pay from 2018 through the present.” Interrogatory No. 45 asks, “Since 2018, has Harry Overly received any sort of compensation from YOU as an incentive based on profits of Sun Maid.” In opposition, Sun Maid argues that plaintiffs' requests should be...

Excerpt: ...e Civ. Proc., § 437c.) To deem Aladdin's motion for summary adjudication of the eighth cause of action to be a motion for judgment on the pleadings, and to grant the motion without leave to amend for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438.) Explanation: Plaintiffs have sued Aladdin's Carpet for negligence and negligent infliction of emotional distress after their property was stolen from a sto...

Excerpt: ... pending demurrer. To sustain the demurrer to the second amended complaint, in its entirety. No leave to amend is granted. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349‐350.) Defendant shall submit a judgment of dismissal within 5 days of the clerk's service of this minute order. Explanation: I. Motion to Strike On January 11, 2021, the court sustained Sun‐Maid's demurrer as to all nine counts of plaintiffs' First Amended Complaint. The c...

Excerpt: ...of the clerk's mailing of the minute order. To deny the motion to quash as moot. Explanation: The court has power to set aside a judgment that is void as a matter of law. (Code Civ. Proc., § 473, subd. (d).) A judgment may be void as a matter of law for many reasons, including lack of or improper service of summons and lack of personal jurisdiction. (See Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1120–1121; see also Ellard v. Conway (2001...

Excerpt: ... of Civil Procedure section 437c. If motions to compel are necessary, defendant is excused from complying with Rule 2.1.17 of The Superior Court of Fresno County, Local Rules. Given how far out hearing dates are being set at this time, defendant may apply ex parte for hearing dates (or a hearing date) for said motion(s). Even so, counsel should move expeditiously to obtain the sought‐after discovery, since the court is not inclined to grant an ...

Excerpt: ...summary judgment. (See Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1, 8.) To prevail on the motion, plaintiffs must show that the order granting the motion for summary judgment was against the law, there was insufficient evidence, the court committed an error of law, or there was an incorrect or erroneous legal basis for the order that was not consistent with and not supported by the facts. (Code Civ. Proc., §§ 657, 663.) Plainti...

Excerpt: ...rvices rendered on appeal as well. (Wilson v. Wilson (1960) 54 Cal.2d 264, 272.) However, where the appellate decision contemplates further proceedings in the trial court, the successful party on appeal is not yet entitled to Civil Code section 1717 fees on appeal. (Presley of S. Cal. v. Whelan (1983) 146 Cal.App.3d 959, 961.) In Presley, in an action for a breach of contract, an appellate court reversed a trial court's granting of the defendant'...

Excerpt: ... the complaint may be amended will run from service of the order by the clerk. All new allegations shall be in boldface type. Explanation: “Standing is the threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer.” (Martin v. Bridgewater Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.) A minor may have standing for a wrongful death cause of action “if, at the time of the decedent's...

Excerpt: ...mplaint Tentative Ruling: To overrule the demurrer, with defendants Robert G. Melenbacker (individually and as trustee of the Robert and Cynthia Melenbacker Trust Dated June 5, 2009), Marvin A. Farris (individually and as trustee of the Marvin and Cindy Farris Family Trust Dated May 31, 2006), Rodney O. Swenson (individually and as trustee of the Swenson Family Trust of 1998), and Ted Torosian granted 10 days' leave to file their Answer(s) to the...

Excerpt: ...ary 26, 2020. Without the disclosure of the amount demanded on the Statement of Damages, the court cannot determine whether the amount of judgment requested is proper. Relief granted on default cannot exceed amount demanded in the separate statement. (Code Civ. Proc. §580, subd. (a); Greenup v. Rodman (1986) 42 Cal.3d 822, 824 [demand sets ceiling on recovery].) Insufficient Prove‐up Documents The court notes also that the evidence plaintiff h...

Excerpt: ...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); see also Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777 [strong judicial policy favoring resolution of all disputed matters in one action].) “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as ...

Excerpt: ...l be considered on September 21, 2021, at 4:00 p.m. in Department 403. Explanation: Certification of Class for Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected, although there is less scrutiny of manageability 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...

Excerpt: ...ocuments, set one, nos. 10, 11, 13, 16, 24, 25, 27, and 34. The motion is denied as it relates to Nos. 1 and 20. Defendant Harmony Communities, LLC shall provide further responses to nos. 10, 11, 13, 16, 24, 25, 27, and 34 within twenty (20) days from the date of this order. Explanation: Discovery requests are generally afforded liberal construction. (see Code of Civ. Proc., § 2017.010; Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) A mo...

Excerpt: ...acate [the arbitrator's] award.” (Code Civ. Proc., § 1285.) “A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.” (Code Civ. Proc., § 1288.) “‘[I]f one wishes to have an award vacated or corrected he must act within onehundred days of service of the award or be precluded from attacking the award.'” (Coord...

Excerpt: ...ading. To deny the motion to set aside default as to defendants Donald Krouskup, Askem Farms LLC, and McCall Village Mobile Home Park LLC, without prejudice. Explanation: On May 12, 2019, plaintiff filed suit alleging five causes of action: breach of express warranty; revocation of acceptance; breach of contract; breach of implied warranty of merchantability; and fraud in the inducement. Proofs of service were subsequently filed. On March 29, 202...

Excerpt: ...ney C. Haron, a professional corporation, in the amount of $1,301.20. (Code Civ. Proc., § 2023.030, subd. (a).) Sanctions must be paid to the Vogl Meredith Burke LLP law firm within 30 days of the clerk's service of the minute order. Explanation: Motion to Compel Plaintiff's Deposition Code of Civil Procedure section 2025.450, subdivision (a) states that, “[i]f, after service of a deposition notice, a party to the action ... without having ser...

Excerpt: ...tled “Acknowledgment and Agreement to be Bound by the Alternative Dispute Resolution Policy” (“arbitration agreement”) and the “Alternative Dispute Resolution Policy” (“ADR Policy”), including the Spanish language versions of these documents, which shorten the timeframe to bring a claim to one year from the termination of employment is severed from those documents. Explanation: The moving party bears the burden of showing the arbi...

Excerpt: ...s to this defendant, a dismissal of the other common counts must be filed and a judgment submitted within 10 days of notice of the ruling. Notice runs from the date that the minute order is served by the court, plus five days for service via mail. (Code Civ. Proc., § 1013.) Explanation: On December 23, 2020, plaintiff filed a Judicial Council form complaint alleging common counts for “open book account,” “account stated in writing,” “m...

Excerpt: ...of cases filed by Enrique Reyes and Guadalupe Reyes (Plaintiffs) that, taken as a whole, constitute “deliberate and egregious misconduct” sufficient to support dismissal. (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 738, 762.) To monetary sanctions in favor of the Kutnerian Defendants and against Plaintiffs and James Michel, jointly and severally, in the amount of $17,852.31 pursuant to Code of Civil Procedure section 12...

Excerpt: ...ses of action. Plaintiff shall serve and file his second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: First and Second Causes of Action – Breach of Written and Oral Contract: In its order sustaining the demurrer to the original complaint, the court noted that plaintiff had alleged that there was a written agreement, but did not attach it to the complaint. Plaintiff...

Excerpt: ...s otherwise denied. All requests for sanctions are denied. Explanation: Plaintiff moves to compel responses from defendant Rattaire to the first set of form interrogatories, special interrogatories, production demands, and requests for admission. However, defendant Rattaire served responses to the discovery requests, albeit late. Since the responses were late, any objections are waived. (See Code Civ. Proc., §§ 2030.290, subd. (a); 2031.300, su...

Excerpt: ...d. (b).) Should plaintiff desire to amend, the second amended complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should plaintiff elect not to amend, defendant shall file a responsive pleading within thirty (30) days from the date of this order. Explanation: Demurrer According to the court record, on March 11, 2021 defendant's demurrer papers were rejected for failure to pay the r...

Excerpt: ...irst amended complaint on the grounds that all causes of action stated therein are barred by the applicable statute of limitations and fail to state facts sufficient to constitute a cause of action. Demurrer, in general A demurrer tests only the legal sufficiency of the pleading. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's cl...

Excerpt: ...ount shall file and serve its First Amended Cross‐Complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. If oral argument is timely requested, such argument will be conducted at 2:30 p.m. on September 9, 2021, in Department 501. Explanation: Catamount has cross‐ complained against Dusten Perry (“Perry”) for equitable indemnity, contribution and declaratory relief on the assertion that Perr...

Excerpt: ...995) 11 Cal.4th 274, 278.) “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1032, subdivision (b), provides: “Except as otherwise express...

Excerpt: ...tigation by eliminating needless trials. (Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558, 562.) Summary judgment is permissible in actions for declaratory relief. (Walker v. Munro (1960) 178 Cal.App.2d 67, 70‐71, overruled on other grounds by Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055.) Plaintiffs seek declaratory relief by judicial determination that the commercial general liability policy issued by defendant, for the ...

Excerpt: ...ys for service via mail. (Code Civ. Proc., § 1013.) Explanation: As a matter of law, where the cause of action constitutes a tort, a plaintiff may seek punitive damages for “oppression, fraud or malice” by the defendant. (Civ. Code, § 3294, subd. (a)) The statute contains its own definitions: • “Malice” means conduct intended by the defendant to cause injury to the plaintiff or despicable conduct that is carried on by the defendant wi...

Excerpt: ... 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.) Defendant contends that the alleged arbitration agreement in this case is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq. Section 2 o...

Excerpt: ...own to the plaintiff, and all persons plaintiff “reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff” (i.e., this includes “persons unknown to be served by publication); 4) the estate as to which partition is sought and a prayer for partition of the interests therein; and 5) where the plaintiff seeks sale of the property, an allegation of the facts justifying...

Excerpt: ...d. (Code Civ. Proc., §§ 435, 436.) Plaintiffs shall serve and file their first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer to Sixth Cause of Action: AMCO demurs to the sixth cause of action for breach of contract on the ground that it fails to state a cause of action because plaintiffs were not parties to the insurance policy, which was issued by AMCO to ...

Excerpt: ...roposed judgment consistent with the court's summary judgment ruling. Explanation: “‘[I]n any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage re...

Excerpt: ...cation A party may seek summary adjudication of affirmative defenses and duties owed to the plaintiff. (Code Civ. Proc., § 437c, subd. (f)(1).) Summary adjudication must only be granted if it completely disposes of an affirmative defense, or an issue of duty. (Ibid.) The rules applicable to summary judgments apply equally to motions for summary adjudication. (Blue Shield of Cal. Life & Health Ins. Co. v. Sup. Ct. (2011) 192 Cal.App.4th 727, 732....

Excerpt: ...2030.300.) To limit the timeframe for the interrogatories to a period of three years before the plaintiffs made their claims. To grant sanctions against defendant for its unjustified refusal to respond to the interrogatories, in the amount of $1,375 per motion. (Ibid.) Defendant shall provide further responses within ten days of the date of service of this order. Defendant shall pay sanctions within 30 days of the date of service of this order. E...

Excerpt: ...pp.4th 876, 885‐886 citing Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322.) When a litigant seeks a stay based upon parallel criminal proceedings, an analysis should be undertaken "in light of the particular circumstances and competing interests involved in the case.” (Avant! v. Superior Court, supra, 79 Cal.App.4th at p. 885.) Courts should consider the following factors (“the Keating factors”): (1) the interest of t...

Excerpt: .... Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1800–1801; CRC 3.769(a), 3.770(a); In re Microsoft I–V Cases (2006) 135 Cal.App.4th 706, 723. This applies both to settlements reached before or after a class has been certified. 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, 236. Before the c...

Excerpt: ...n must be filed on or before September 17, 2021. Explanation: Plaintiff has corrected all the technical issues with the settlement agreement, the notice to class members, and the opt‐out form. However, the declaration of Javier Garcia is insufficient. Even where a motion for class certification is uncontested the court has a duty to determine whether certification is appropriate. (See Rubenstein, 3 Newberg on Class Actions § 7:3 (5th ed.); see...

Excerpt: ...s sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the court to reconsider its decision granting certification of the class. 2. Settlement Previously, the court found that the settlement was fair and reasonable based on the evidence that plaintiff submitted in support of the motion for preliminary approval. It does not appear that there is any reason for the court...

Excerpt: ...n a request for continuance to a later date, if plaintiff needs more time. Explanation: The court will allow the additional pages of the memorandum, as requested in the brief itself. However, in the future counsel should request this relief ex parte, prior to filing the brief. As for conditional class certification, plaintiff bears the burden of establishing the propriety of class treatment with admissible evidence. (Richmond v. Dart Industries, ...

Excerpt: ...spects. To overrule all objections. 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, court...

Excerpt: ...subdivision (c), “summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.” (Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119, 123.) Summary judgment is warranted when the moving party shows by admissible evidence that the “action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c...

Excerpt: ... without objections, to defendant Michelle Iarusso's Special Interrogatories, Set One, and Request for Production of Documents, Set One, no later than 15 court days from the date of this order, with the time to run from the service of this minute order by the clerk. The matters specified in defendant Michelle Iarusso's Requests for Admission, Set One, are deemed admitted, unless plaintiff Danae Schmitzer serves, before the hearing, a proposed res...

Excerpt: ...”) to provide further responses to Request for Production of Documents, Set 5, Nos. 105 ‐109, 115‐120, 126 – 131, 137 – 142, 148, 157 – 162, with any withheld documents based on attorney‐client privilege other than that of Flournoy to be identified and described in a privilege log. The documents shall be produced within 20 days of service of the order by the clerk. (Code Civ. Proc., § Code Civ. Proc. § 2031.310, subd. (a).) To den...

Excerpt: ... of the first cause of action. Explanation: The Underlying Case In the 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, defendants filed for bankruptcy protection on April 24, 2017, shortly befor...

Excerpt: ...Ct. Fresno County, Local Rules, rule 2.8.4) In the event that oral argument is requested, both Petitioner and Christian Rea are excused from appearing. Explanation: Petitioner proposes to accept a compromise of disabled adult Christian Rea's claims arising from a two auto collisions for a gross settlement of $45,000, paying $5,000 of the proceeds to cover in excess of $3.2 million in medical expenses, $690 in costs and $15,000, or approximately 3...

Excerpt: ...itially asserting three cases of action: deceit, fraud and negligent misrepresentation. Between February and October 2016, multiple demurrers were sustained so that plaintiffs' only remaining cause of action is malicious prosecution. On May 3, 2017, CCS filed the instant motion for summary judgment, based on: (1) collateral estoppel/res judicata; (2) failure to prove the elements of malicious prosecution; and (3) statute of limitations. This cour...

Excerpt: ... dates shall run from the new hearing date. Explanation: “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 reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code of C...

Excerpt: ...tion (SLAPP) Overview The anti‐SLAPP statute describes claims within its purview: “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a...

Excerpt: ...al fact and the moving party is entitled to judgment as a matter of law.” (Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119, 123.) Summary judgment is warranted when the moving party shows by admissible evidence that the “action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) To satisfy this burden, a moving defendant is not required to “conclusively ne...

Excerpt: ...n: “‘Summary judgment 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(c).) Summary judgment is properly directed toward the entire complaint and not portions thereof. (see Barnick v. Longs Drug Stores, Inc. (1988) 203 Cal.App.3d 377, 384; Khan v. Shiley, Inc. (1990) 217...

Excerpt: ...nd Deandre Whitten; (2) failure to prevent sexual harassment against defendant California Health Benefit Exchange (“Covered California”); (3) hostile work environment against all defendants; (4) retaliation for exercise of California Family Rights Act (“CFRA”) rights against all defendants; and (5) retaliation for exercise of Family Medical Leave Act (“FMLA”) rights against all defendants. Following meet and confer, the parties stipul...

Excerpt: ...rior Court Case No. 15CECG00659; In Re: Reyes U.S. Bankruptcy Court (E.D. Cal.) Case No. 18‐11357‐B‐13 and Reyes v. Bernel Fresno Superior Court Case No. 18CECG00202 as Exhibits 1‐8 attached to Defendants' Request for Judicial Notice. However, the court will not take judicial notice of Defendants' analysis of these cases. (See Fremont Indem. Co. v. Fremont Gen. Corp., supra, 148 Cal.App.4th at 113; Tenet Healthsystem Desert, Inc. v. Blue ...

Excerpt: ... initially brought to ask for a protective order in the form of a complete stay of discovery pending the ruling on defendant's demurrer to the original complaint. As plaintiff points out, defendant refused to take the motion off calendar once the court had ruled on that motion, sustaining demurrer with leave to amend, but instead defendant attempts to “repurpose” the motion to apply to its demurrer to the First Amended Complaint, which is not...

Excerpt: ... necessary. To deny, without prejudice, the Petition for Plaintiff Nelson Osvaldo Valladares Lopez. In the event that oral argument is requested, the Court finds good cause to excuse personal attendance by Petitioner and minor. To set a Status Conference for November 16, 2021, 8:30 a.m. in Department 403 for Petitioner to report from any investigations conducted regarding the issues raised as to the best arrangement for Plaintiff Nelson Osvaldo V...

Excerpt: ...o augment in order to add William Spina, M.D. as plaintiff's retained standard of care expert. Explanation: Defendants' motion to strike pursuant to Code of Civil Procedure section 435 and/or section 436 is not the authorized method to exclude expert witnesses from testifying at trial. Those statutes concern striking matter asserted in a pleading. Expert witness disclosures – whether original, supplemental, augmented, or amended – are not ple...

Excerpt: ...a motion when it has already brought a prior motion for the same relief, but the prior motion was denied, or only granted conditionally or on terms. The party moving for renewal must also specify what application was made, to what judge, when it was made, and what order or decision was made. (Code Civ. Proc. § 1008, subd. (b).) The renewal motion must also state what new or different facts, circumstances, or law exist that justify renewing the p...

Excerpt: ...of Defendant Virginia Valenzuela and against Plaintiff. (Code Civ. Proc. §§ 2023.010, subd. (g), and 2025.450, subd. (h).) Plaintiff is ordered to pay $846.75 in sanctions to the Carbone, Smith & Koyoma law firm, within 30 days of the clerk's service of the minute order. If a timely request for oral argument is made, such argument will be conducted on August 18, 2021, at 3:30 p.m., in Department 501. Explanation: Code of Civil Procedure section...

Excerpt: ...on August 18, 2021, at 3:30 p.m., in Department 501. Explanation: Defendants WISH, Sierra Imaging Associates Medical Group, Wishon Radiological Medical Group, and Dr. Alson move for summary judgment based on the declarations of their two medical experts, who have opined that Dr. Alson's care and treatment of plaintiff did not fall below the standard of care, and that nothing he did or failed to do caused plaintiff any injury. “The standard of c...

Excerpt: ...nation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading . . . .” (Code Civ. Proc., § 473, subd. (a); see also Code Civ. Proc., § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777.) Judicial policy favors resolution of all disputed matters between the parties in the same law...

Excerpt: ... Deborah Ann Fondrliak, owned the other 50 percent interest in the property after the death of her husband. Deborah passed her 50 percent interest in the property to plaintiff by will upon her death. Therefore, plaintiff only has a 50 percent joint tenancy interest in the property at this time based on her receipt of Deborah's share of the property. Nevertheless, plaintiff contends that defendant has abandoned his rights in the property because h...

Excerpt: ...ate to Amy Castro's renewed deposition and are non‐privileged. The renewed deposition of Amy Castro shall take place within 30 days of the clerk's service of this minute order. To grant sanctions in the amount of $2,652.50. Defendant Target Constructors, Inc. shall pay the sum of $2,652.50 to counsel for plaintiff within 30 days of the clerk's service of this minute order. If oral argument is timely requested, the matter will be heard on Thursd...

Excerpt: ...seventh (unjust enrichment), and eighth (interference with business relations) and tenth (conspiracy) causes of action. Leave to amend is granted as to the third, fourth, fifth, seventh, and eighth causes of action, but plaintiff must be able to allege claims either founded in contract and seeking contractual remedies, or founded in tort and based on “(1) facts showing that the plaintiff's property right in the information at issue stems from s...

Excerpt: ...ating other employees' names and contact information to be maintained as “Attorneys' Eyes Only” and not shared with plaintiff; and (2) a Belaire‐West notice, the cost of which to be shared equally by the parties. To decline to award sanctions. Explanation: In the absence of contrary court order, a civil litigant's right to discovery is broad. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the s...

Excerpt: ...$264,000.00. To order that the parties lodge a proposed judgment (as revised according to footnote 1, below) by August 31, 2021, which lists the class certified, provides that the Court retains jurisdiction to enforce the settlement, and enters judgment on the settlement (with the settlement attached thereto). Notice of said judgment is to be given to class members by an insert with checks distributed, which refers the class to the Court's Odysse...

Excerpt: ...Coast Employment Lawyers, APLC, within 30 days of the clerk's service of the minute order. Explanation: The dismissal of the cross‐complaint at issue means the court does not rule on the motion. However, the court is not divested of its authority to determine attorney's fees, and the moving party has requested that the court make a ruling on the attorney's fees sought. (Law Offices of Andrew L. Ellis V. Yang (2009) 178 Cal.App.4th 869, 876.) In...

Excerpt: ...arry Shapazian, in the amount of $2,250. (Ibid.) Defendant and his counsel shall pay sanctions to plaintiffs' counsel within 30 days of the date of service of this order. Explanation: Under Code of Civil Procedure sections 2030.090, 2031.060, and 2033.080, a party served with written discovery requests may move for a protective order to protect them from unwarranted annoyance, embarrassment, oppression, or undue burden or expense. (Code Civ. Proc...

Excerpt: ...gument is made, the argument will be conducted on August 26, 2021, at 3:30 p.m. Explanation: The court has identified certain deficiencies with respect to the instant petitions and proposed orders which are as follows: 1. The petitions fail to comply with California Rules of Court, rule 7.950. “A petition for court approval of a compromise of, or a covenant not to sue or enforce judgment on, a minor's disputed claim; a compromise or settlement ...

Excerpt: ... A.J. Rassamni shall provide further responses, without objections to Form Interrogatories – Employment, set one, numbers 207.2, 208.1, 208.2, 211.2, 211.3. (Code Civ. Proc. § 2030.300.) The motion is denied as to interrogatory number 209.1. Defendant A.J. Rassamni shall serve his responses no later than 20 court days from the date of this order, with the time to run from the service of this minute order by the clerk. To impose monetary sancti...

Excerpt: ...partment 501. Explanation: Proper service of notice of deposition compels the opposing party to appear, to testify, and to produce documents if requested. (Code Civ. Proc. § 2025.280, subd. (a).) The party noticing the deposition may move for an order compelling discovery from a party deponent who fails to appear or answer questions or to produce materials requested in the deposition notice, and who has not served a valid objection under section...

Excerpt: ...alse factual assertion; (3) the factual assertion is false; and (4) the defendant failed to take reasonable care to determine the truth or falsity of the assertion. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 470; Judicial Council of Cal. Civ. Jury Instns. (Feb. 2021 rev.) CACI No. 1704.) However, where the plaintiff is a private figure suing over a statement addressing an issue of public concern, plainti...

Excerpt: ...hese requests or provide a declaration by the Person Most Knowledgeable that such records do not exist within 10 days of the clerk's service of this minute order. The motion is denied as it relates to Request Nos. 46 and 47. To grant sanctions in the amount of $3,660. Defendant JT2, Inc. shall pay the sum of $3,660 to counsel for plaintiff within 30 days of the clerk's service of this minute order. Explanation: “If, after service of a depositio...

Excerpt: ...f covenant of quiet enjoyment, (4) negligence, (5) violation of Civil Code sections 1942.4, 1942.5, (6) unfair business practices. Plaintiffs move for summary judgment, or alternatively summary adjudication of each cause of action. Where plaintiffs seek summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling them to judgment. (Code Civ. Proc., § 437c, subd. (p)(1); see Hunter v. Pacific...

Excerpt: ...d, such argument will be conducted on August 26, 2021, at 3:30 p.m. in Department 501. 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. [Citations.] ‘ “The standard of care against which the acts of a physician are...

Excerpt: ...2034.300.) To deny plaintiffs' motion for leave to serve a tardy expert witness designation. (Code Civ. Proc. §§ 2034.710, 2034.720.) Explanation: Under Code of Civil Procedure section 2034.300, “[O]n objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the f...

Excerpt: ... described below, must be filed on or before Tuesday, August 24, 2021. The court will entertain a request for continuance to a later date, if plaintiff needs more time. Explanation: Technical Issues: First, insufficient notice of this motion was given: 22 days instead of the required 28 days. (Code Civ. Proc., § 1005, subd. (b); Cal. Rules of Court, Rule 3.764(c)(1).) Since no opposition was filed, this defect was not waived. On this basis alone...