Excerpt: ... complaint or cross‐complaint may file a cross‐complaint setting forth either or both of the following: (a) Any cause of action he has against any of the parties who filed the complaint or cross‐complaint against him. . . . (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross‐complaint (1) arises out of the sa...

Excerpt: ...sue 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).) Under Tech‐Bilt, Inc. v. Woodward‐Clyde & Assocs. (1985) 38 Cal.3d 488 (“Tech‐ Bilt”), whether the settlement falls within the parameters of the good faith “ball park” is ...

Excerpt: ...xplanation: 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. Plaintiff alleges this was a violation of the California Fair Employment and Housing Act (FEHA), as well as a wrongful termination in violation of public policy under Tameny v. Atlantic Richfi...

Excerpt: ...on: Defendant contends that its default was taken as a result of mistake, inadvertence, surprise, or excusable neglect. A court has discretion to relieve a party from entry of default or default judgment upon a proper showing of “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.) The defendant has the burden of proving one of th...

Excerpt: ...de Civ. Proc., § 473, subd. (a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) California Rules of Court, rule 3.1324 provides that a motion to amend must: (1) include a copy of the proposed amendment, (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, t...

Excerpt: ...il 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. (l)(2).) 2. Notice to Labor and Workforce Development Agency Plaintiff's counsel states that notice of the settlement was given to the Labor and Workforce Development Agency (“LWDA”) on December 23, 2020, as required by Labor Code section 2699, subdivision (l)(2). (Favar...

Excerpt: ...der 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 analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the o...

Excerpt: ...s argument that he did not take part in the fight in which plaintiff alleges he was injured, but rather he simply observed the fight as he was leaving the bar at closing time, and then he continued walking home. Each cause of action is premised on the same facts: that defendants, including defendant Young, “physically attacked and struck Plaintiff in the face with their fist, feet and/or objects. The actions by Defendants, and each of them, cau...

Excerpt: ...tiff Anthony Moffit alleges defendant Western Oilfields Supply Company dba Rain 4 Rent rented a portable water tank to plaintiff's employer. The tank had a fixed individual rung ladder to access the roof. The ladder was mangled, bent, distorted, defective and unfit for use. When plaintiff was using the ladder in a reasonably foreseeable manner he fell and was severely injured. The operative pleading is the First Amended Complaint, which alleges o...

Excerpt: ...s. None are material to the outcome of the instant motion. (Code Civ. Proc., § 437c, sub. (q).) Explanation: A defendant moving for summary judgment meets its burden of showing that a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established. (Code Civ. Proc., § 437c; see also Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 286.) However, if a single triable issue o...

Excerpt: ...ative pleading is the Second Amended Cross‐Complaint (the SACC), which alleges four causes of action against V&N: (1) Indemnity; (2) Apportionment; (3) Declaratory Relief; and (4) Contractual Indemnity. 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....

Excerpt: ...tories, set two, within 20 days after service of this Order. Explanation: Each answer in response to a request for admission shall, “[¶] (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. [¶] (2) Deny so much of the matter involved in the request as is untrue. [¶] (3) Specify so much of the matter involved in the request...

Excerpt: ...equests for Admission, Set 17, Admitted. Tentative Ruling: (1) To grant and award monetary sanctions in the amount of $1,290 against plaintiff Noe Luna and his attorney, L. Dean Smith, Jr., 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 is ordered to serve further responses without objections to PLH Group, Inc.'s Special Interrogatories, S...

Excerpt: ...atories against Defendant Robert Graham and for Related Sanctions, by Plaintiff (5) Motion to Compel Initial Responses to a Request for Production against Defendant Robert Graham and for Related Sanctions, by Plaintiff Tentative Ruling: To deny the motion for stay, without prejudice. To deny the motion to compel deposition of defendant Ayde Adame Mendibles, without prejudice. To grant the motion to deem requests for admissions admitted. To grant ...

Excerpt: ...against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. Code of Civil Procedure section 473.5 states: (a...

Excerpt: ... days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Unsigned Pleading The Court notes that plaintiff's second amended complaint (SAC) is neither signed nor dated. Every pleading, petition, written notice of motion, or other similar paper shall be signed by the attorney of record or by the party personally if not represented by counsel. (Code Civ. Proc., § 128.7, subd. (a).)...

Excerpt: ... “irrelevant, false or improper” matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166‐167.) Defendants claim that there are insufficient facts to support a claim ...

Excerpt: ... Meadows Senior Living, LLC's Deposition Subpoenas issued on August 20, 2020, within 30 days of moving defendant's service of this order on the Custodian of Records. (Code Civ. Proc., § 1987.1.) Explanation: Defendant Sierra Meadows Senior Living, LLC's motion was timely filed. It seeks medical, radiology and billing records from Clovis Community Medical Center. While defendant received medical records directly from plaintiff, there was legitima...

Excerpt: .... (Code Civ. Proc. § 437c.) Explanation: Defendants DPM and CPN contend that they are entitled to summary judgment because they were not beneficiaries of the asset purchase agreement between FirstChoice and Vantage that is at the heart of plaintiff's claim. They contend that they were “innocent bystanders” to the FirstChoice‐Vantage asset transfer, and therefore they cannot be held liable under the Uniform Voidable Transfers Act (UVTA). In...

Excerpt: ...ollowing: [¶] (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross‐complaint [¶] (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him ….” (Code Civ. Proc., § 428.10, subd. (b); see also Newhall Land and Farming Co. v. McCarthy Const. (20...

Excerpt: ...ts tentative ruling indicating that it was going to deny the motion for preliminary approval of the class settlement without prejudice, as the parties had not resolved all of the court's concerns with the prior motions. Specifically, the court found that the class met the requirements for class certification, the class counsel was adequate, and most of the class representatives were appropriate. However, the court also found that one of the class...

Excerpt: ...ond cause of action in plaintiff's Complaint on grounds of misjoinder. (Code Civ. Proc., § 430.10, subd. (d).) Defendants contend that plaintiff's Complaint alleges two separate occurrences resulting in bodily injury: a trip and fall (first cause of action) and a motor vehicle accident (second cause of action), that the two events are separated by 427 days, that there are no allegations suggesting the events are related or resulted in overlappin...

Excerpt: ...le 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 certified for sett...

Excerpt: ... the motion to compel after defense counsel informed him that defendant would not be producing the witness for the deposition. Plaintiff's counsel served the deposition notice on December 18, 2020 for the deposition of the hospital's PMQ. (Collins decl., ¶ 11.) Defense counsel stated on December 20, 2020 that the hospital would not be producing the witness for deposition, at least on the date unilaterally selected by plaintiff's counsel. (Id. at...

Excerpt: ...nder penalty of perjury, to support facts stated in their opposition brief to defendants' anti‐SLAPP motion. No further briefing is authorized by this order, but only the supplemental declaration by Mr. Dawood in support of the anti‐SLAPP motion, and any evidentiary objections defendants wish to file regarding that declaration. The supplemental declaration shall be filed on or before May 13, 2021, and any evidentiary objections shall be filed...

Excerpt: ...djudication as to one or more causes of action within an action . . . if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action . . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action.” Subdivision (p)(1) addresses summary adjudication when sought by the plaintiff: “A plaintiff . . . has met his or her burden of showing that t...

Excerpt: ...s that he has no minimum contacts with the State of California and there is therefore no basis for exercising jurisdiction over him. He alleges that he is a resident of Ohio, he has never lived or worked in California, and he does not do business in the state. He has no real estate or other property in California. He has never filed a lawsuit in California, or consented to its jurisdiction over him. (See Theken Decl., ¶¶ 2‐8.) He did not empl...

Excerpt: ... any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: … When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc., § 639, subd. (a)(5).) �...

Excerpt: ...nary settlement approval must be remedied before the instant motion can be granted. Class Certification With regard to class certification, the following issues exist: (1) additional evidence is needed to support a finding that plaintiff possesses claims or defenses typical of the class; and (2) additional evidence is needed to support a finding that certification will provide substantial benefits to litigants and the courts. 1. Additional eviden...

Excerpt: ...served by May 20, 2021. Defendants shall file and serve any supplemental opposition by June 10, 2021. Explanation: Under Civil Code section 1717, subdivision (a), “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on ...

Excerpt: ...e preservation of the status quo until a final determination of the merits of the action.” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) In considering whether to issue a preliminary injunction, the court should consider (1) the likelihood that the moving party will prevail on the merits at trial, and (2) the interim harm that the moving party is likely to sustain if the injunction were denied as compared to the harm that the oppo...

Excerpt: ...medy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that t...

Excerpt: ...y brief on this motion. If a hearing on this motion is necessary, the court will award an additional $350 in attorney fees. Costs on appeal are fixed in the total amount of $1,165.65, in accordance with the unopposed Memorandum of Costs on Appeal in the amount of $1,100.40 plus the filing fee of $65.25 associated with this motion. Explanation: An award of costs on appeal, as the appellate court awarded here, does not include an award of appellate...

Excerpt: ...bmitted 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 under PAGA. Nor has the legislature provided any structure or standards for making the assessment. Published California case law has not done so either. However, the common practice when ruling on PAGA settleme...

Excerpt: ...intiff in the amount of $555 to be paid to defendant's counsel within 30 days of service of the order. This is in addition to the monetary sanctions in the amount of $1,005 previously ordered that are still outstanding. Explanation: Code of Civil Procedure section 2023.030 authorizes the Court to impose sanctions against any party engaging in conduct that is a misuse of the discovery process, including a terminating sanction dismissing the action...

Excerpt: ... of the date of this order, defendant shall provide the identifying information of those persons who were facility residents and their responsible persons during the time period of May 26, 2017, to April 27, 2021. This information shall be provided to third party administrator CPT Group, which shall mail out a notice letter to the residents and their responsible persons, giving them the opportunity to opt into disclosure of their information to p...

Excerpt: ..., Rory Coetzee, Andrew Westover, Kayleigh Walsh, Raechelle Velarde, and the Law Firm of J. Hector Moreno, Jr. & Associates (“defendants”) to declare plaintiff Madhu Sameer (“plaintiff”) to be a vexatious litigant. (Code Civ. Proc., § 391.) To order plaintiff to post security of $250,000, within 30 days of the date of service of this order, in order to continue litigating the present action. (Code Civ. Proc., § 391.1.) This action is sta...

Excerpt: ...endants' demurrer to the entire complaint, without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Defendants shall submit a judgment of dismissal within five days of the clerk's service of this minute order. Explanation: General Standard of Ruling In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University...

Excerpt: ...st for Admissions. Within 5 court days of the continued hearing date, moving party's counsel are directed to file a declaration informing the court whether or not plaintiff has served responses to the discovery. If plaintiff still fails to serve responses, the court will consider granting terminating sanctions. Explanation: On November 6, 2019 defendant served on plaintiff Special Interrogatories, Form Interrogatories, Demand for Production of Do...

Excerpt: ...numerous, and it is impracticable to bring them all before the court.' ‘[W]e have articulated clear requirements for the certification of a class' under this statute. ‘The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a welldefined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.'” (Noel v....

Excerpt: ...ndemnity fail to state causes of action. On that ground, the court sets its own motion for judgment on the pleadings as to the third and fourth causes of action. (Code Civ. Proc., § 438, subd. (b)(2); Camacho v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394, 1396.) Hearing on the court's motion is set for Tuesday, May 25, 2021, at 3:30 p.m. in Department 501. Plaintiff's opposing brief, not to exceed ten pages, must be filed...

Excerpt: ...d Ambrocio Hernandez Demurrer to defendant Department of State Hospitals' Answer, by Plaintiff Tentative Ruling: To take all hearings off calendar for failure to comply with Code of Civil Procedure sections 430.41 & 435.5. The parties are ordered to meet and confer as set forth in the statutes and, if needed, schedule new hearing dates for the demurrers and motion to strike. Explanation: Before filing a demurrer, the demurring party “shall meet...

Excerpt: ... Ashley v. Slatic, et al., Superior Court Case No. 19CECG04593 for purposes of discovery and trial only. A copy of this order shall be filed in each case. Slatic v. Ashley, Superior Court Case No. 19CECG04036 is designated as the lead case. Explanation: Consolidation “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 m...

Excerpt: ...roceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.” (Code Civ. Proc., § 387, subd. (d)(2).) Specifically, a court may, in its discretion, grant permissive intervention “if (1) the party has a direct and immediate interest in the action; (2) the intervention will not enlarge the issues in the litigation; and (3) the reasons for the intervention outweigh...

Excerpt: ... contest, as well as fees on appeal. Section 1021.5 provides that a court may award fees to a “successful party” if the underlying litigation has enforced an important right affecting the public interest, has conferred a significant benefit on the general public or a large class of persons, and has imposed a financial burden on the fee claimants out of proportion to their individual stake in the matter. (Baggett v. Gates (1982) 32 Cal.3d 128,...

Excerpt: ...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 provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter a...

Excerpt: ...orth any issues for adjudication in either motion. No summary adjudication can be granted unless there was specific notice of the exact issue(s) presented in the notice of motion. (Cal. Rules of Court, rule 3.1350(b); Maryland Casualty Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974, fn. 4 ‐ 75 days' notice of such issue is required; McMahon v. Superior Court (2003) 106 Cal. App. 4th 112.) The result is that if summary judgment is not warranted,...

Excerpt: .... Proc., § 425.16.) To take the demurrers to the Answers off calendar as moot in light of the striking of the Cross‐Complaint. Explanation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.)...

Excerpt: ..., if necessary. (Code Civ. Proc. § 598, 1048, subd. (b).) Also, the punitive damage claim will be tried after the jury trial of the legal claims. (Civil Code § 3295, subd. (d).) Explanation: “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial ...

Excerpt: ...um depression following the birth of her second child on August 8, 2018. The evidence presented shows that Vu was diagnosed with post‐partum depression on September 20, 2018. Decl. Dr. Dickinson, ¶6. Vu was disabled and unable to perform normal daily activities. Decl. Dr. Dickinson, ¶6. The disability continued until December 3, 2018. Decl. Dr. Dickinson, ¶8. Vu fails to explain what action she took regarding the court action before her defa...

Excerpt: ...boldface. Explanation: Under Civil Code section 3294, in order to obtain punitive damages, plaintiff must allege ultimate facts showing that defendant acted with malice, fraud, or oppression. (Civil Code § 3294; Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316–317.) “Malice is defined as ‘conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and c...

Excerpt: ...ate facts sufficient to constitute a cause of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Defendant/crosscomplainant Pasquale De Santis shall serve and file his first amended cross‐complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. To deny plaintiff/cross‐defendant's motion for appointment of a receiver and motion for preliminary injunction. (Code Civ. Proc....

Excerpt: ...nt RV Country, Inc.'s motion to reform the stipulation. To deny plaintiffs' motion for judgment on the pleadings. All objections are overruled. Explanation: Policy of Adjudicating Disputes on their Merits Adjudicating matters on their merits is preferable to seizing upon or taking advantage of an obvious error by an unsuspecting attorney. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 855 [“[T]he policy of the law is to have every litigated case trie...

Excerpt: ...int are to be set in boldface type. Explanation: Second Cause of Action – Negligent Infliction of Emotional Distress (NIED) Defendants demur to plaintiff Naomi Hendrix's cause of action for negligent infliction of emotional distress (NIED) on the grounds that the first amended complaint (FAC) fails to allege facts sufficient to state a cause of action. Specifically, defendants contend that the FAC fails to plead sufficient facts to demonstrate ...

Excerpt: ...dants, or plaintiffs may offset sums they owe by that amount. (Code Civ. Proc., § 643, subd. (c).) Explanation: On 12/15/2020 referee Robert Hillison submitted his Second Report, and on 12/17/2020 submitted a supplement to the report, clarifying one issue. A referee appointed pursuant to Section 639 shall file with the court a report that includes a recommendation on the merits of any disputed issue, a statement of the total hours spent and the ...

Excerpt: ... oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) In other words, a showing that the defendant's conduct was negligent, grossly negligent or even reckless is insufficien...

Excerpt: ...al date is required it should request oral argument on this motion pursuant to the applicable Local Rules and the court will reset the trial at that time. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading ….” (Code Civ. Proc. § 473, subd. (a); see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v....

Excerpt: ... plaintiff did not know the location of the accident site and that her use of a scooter within the subject park was forbidden by park rules, and this motion is focused more narrowly on the contention that the crack in the roadway which plaintiff maintains caused the accident was a trivial defect, rather than a dangerous condition of public property. Therefore, this second motion does not fall under the prohibition of repetitive summary judgment m...

Excerpt: ... [4AC] at paragraphs 35-43." The motion to strike these allegations in the general allegation section of the pleading is DENIED. The Court's demurrer order was directed to causes of action, not allegations. These eight paragraphs provide background in addition to describing the plaintiff's emotional state. Causes of action for negligent and intentional infliction of emotional distress have been removed from the pleading. (2) The District contends...

Excerpt: ...rtinez, and Cathy Ariana Martinez. Explanation: The court previously indicated that it intended to deny the petitions without prejudice, as it was not clear why some minors were receiving substantially more money than others, even though their injuries were very similar. The court also noted that two of the minors, Carlos and Esmeralda, did require treatment from doctors, but Esmeralda was receiving less than Carlos, even though Esmeralda appeare...

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

Excerpt: ...e monetary sanctions against plaintiff Pavitarjit Sihota and his attorneys of record, Fishman Larsen & Callister, in the amount of $ 2,775. (Code Civ. Proc., §§ 2033.290, subd. (c), 2031.310, subd. (h), 2030.300, subd. (d).) Sanctions in the amount of $925 must be paid to the Law Office of Emerson ∙ Church within 30 days after service of this order. Sanctions in the amount of $1,850 must also be paid to the Whelan Law Group within 30 days aft...

Excerpt: ...y fees. The court finds the issue of temporal limitation could have been resolved without the need for the instant motion. Explanation: Defendant Doshier moves to quash the subpoena directed to Cintas dated October 23, 2020. He argues: (a) there is no “compelling interest” to justify disclosure of private records; (b) the subpoena is overbroad in time and scope; and (c) the subpoena seeks documents that are neither relevant nor reasonably cal...

Excerpt: ...ning of the contractual language and the circumstances under which the agreement was made (Civ. Code, §§ 1636, 1644, 1647).” (Rice v. Downs (2016) 248 Cal.App.4th 175, 186, internal quotations omitted.) The evidence shows that an entity named Sebastian Enterprises, Inc. agreed with plaintiff to arbitrate any disputes between them. That entity is not a defendant, and no dispute between plaintiff and it is shown. The evidence shows that plainti...

Excerpt: ...r more may sue or defend for the benefit of all.” “The party seeking certification as a class representative must establish the existence of an ascertainable class and a well‐defined community of interest among the class members. The community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives w...

Excerpt: ...os now move for summary judgment or adjudication. They argue: (1) Officer Santos did not owe a duty to plaintiffs; (2) Officer Santos did not breach any duty; (3) Officer Santos' actions were neither the cause‐ in‐fact nor the proximate of plaintiffs' injuries; (4) Officer Santos is immune from liability; and (5) the California Highway Patrol cannot be held liable pursuant to respondent superior. Each argument is examined below. 1. Duty There...

Excerpt: ...ablishing the moving party's right to the relief sought. (Regents of Univ. of Calif. v. Superior Court (1996) 41 Cal.App.4th 1040, 1044.) Plaintiff re‐filed the motion, albeit narrower in scope, and again neglected to include the policy in the volume of evidence, only submitting it with a notice of errata after the opposition had already been filed. The court would let that omission slide except that many of the other exhibits are not properly ...

Excerpt: ...ed Beverly's motion for summary judgment or adjudication on the merits in March of 2020, and Beverly has not shown that there are any newly discovered facts, circumstances or a change in the law that would justify renewal of the motion.1 Under Code of Civil Procedure section 437c, subdivision (f)(2), “A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless th...

Excerpt: ...rit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440, citation omitted; see Musaelian v. Adams (2009) 45 Cal.4th 512, 519 [purpose of §127.8 is to deter filing abuses].) The Legislature included a “safe harbor” provision in section 128.7 to ensure the statute is “remedial, not punitive.” (Peake, supra, 227 Cal.App.4th at p. 441; see Code Civ. Proc. §128.7(c)(1).) Where a party does not take advantage ...

Excerpt: ...plained others to the court's satisfaction. The court finds that the class meets the requirements for class certification, that class counsel is adequate to the task of representation (but for the below), and that all proposed class representatives (but for Ms. Perkins) are appropriate to the appointment sought. Ms. Perkins' decision to retain her personal claims against what is represented to be a financially stressed defendant renders her an in...

Excerpt: ...4th 701, 706; Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 42, fn. 7, citing Code Civ. Proc., § 452.) Defendants contend that the allegations of the first amended complaint require that...

Excerpt: ... for Breach of Contract – Specific Performance Defendant demurs to the first cause of action on the grounds that it fails to state a claim upon which relief can be granted. (Code Civ. Proc., § 430.10, subd. (e).) Specifically, defendant contends that a contract for the sale of real property must be in writing under Civil Code section 1624, subdivision (a)(3), and thus plaintiff's cause of action to enforce an oral contract for the sale of real...

Excerpt: ...nation: Summary Judgment The court's sole function on a motion for summary judgment is issue‐finding. The court must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c); see Zavala v. Arce (1997) 58 Cal.App.4th 915, 926; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) If there is a single such issue, the motion must be denied. (Versa Tec...

Excerpt: ...cause plaintiff has no memory of the accident, and thus he cannot prove that a dangerous condition of the premises caused him to fall and hit his head. However, plaintiff has submitted evidence in opposition which raises a triable issue of material fact as to whether defendant's negligence in failing to maintain the premises caused his injuries. A plaintiff cannot prevail on a premises liability claim against a landowner without a showing that th...

Excerpt: ... 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 1223, 1230.) There is a stron...

Excerpt: ...he valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protecte...

Excerpt: ... speedy and inexpensive method of dispute resolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Market Ins. Corp. v. Integrity Ins. Co. (1987) 188 Cal. App. 3d 1095, 1098, internal citations omitted.) However, “[a]s our Supreme Court stressed several decades ago, the contractual terms themselves must b...

Excerpt: ...1, 2021, and that any claim file for which consent is received be produced by May 17, 2021. A further response, under oath, need also be served on May 17, 2021 which states that production was allowed in full, with the exception of documents identified in that further response as falling within the attorney/client privilege or work product doctrine. Such identification shall list the document's “author, date of preparation, all recipients, and ...

Excerpt: ... post an undertaking to continue prosecuting the case. (Code Civ. Proc. §§ 437c; 1030.) Explanation: Motion for Summary Judgment: Defendant Caltrans moves for summary judgment as to the entire complaint, arguing that plaintiffs cannot prevail on their claim that the section of Highway 180 where their son died constitutes a dangerous condition of public property because the claim is barred by the design immunity defense. “A public entity may b...

Excerpt: ...rovide a further response to the form interrogatories. To grant plaintiffs' motion to compel further responses to the requests for admission. To grant monetary sanctions against defendant and its attorney, Larry Shapazian, in the amount of $2,580. Defendant shall serve further responses without objections within 10 days of the date of service of this order. Defendant shall pay monetary sanctions within 30 days of the date of service of this order...

Excerpt: ... (Code Civ. Proc., § 128.5.) “The award of sanctions for a frivolous action [or tactic] under Code of Civil Procedure section 128.5 is within the sound discretion of the trial court. [Citation.] Once imposed, ‘[the] test on appeal is whether the trial court has abused the broad discretion to justify our interference with a sanction award.' [Citation.] In reviewing that exercise of discretion we are informed by ‘several policy guidelines: (...

Excerpt: ...unitive Damages Allegations from Donald R. Levitt's Cross‐Complaint Tentative Ruling: To sustain cross‐defendants' general demurrer to the third and eighth causes of action, with leave to amend. (Code Civ. Proc., §430.10, subd. (e).) To overrule crossdefendants' general demurrer to the sixth and seventh causes of action. Crosscomplainant is granted 20 days, running from service of the minute order by the clerk, to file and serve a first amen...

Excerpt: ...ly when it also violates a duty independent of the contract arising from principles of tort law. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551 [87 Cal.Rptr.2d 886, 981.) The court gave cross‐complainant John Foggy (“Foggy”) an opportunity to amend in the abundance of caution, in the event there was some way he could allege a relationship formed from the agreement at issue (promissory note) which created fiduciary duties. However, the court ...

Excerpt: ... (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, by demonstrating that the facts underlying plaintiff's complaint fit one...

Excerpt: ...Development Agency (“LWDA”) on how settlement of PAGA claims should be assessed, in O'Connor v. Uber Technologies, Inc. (N.D.Cal. 2016) 201 F. Supp. 3d 1110. “It is important to note that where plaintiffs bring a PAGA representative claim, they take on a special responsibility to their fellow aggrieved workers who are effectively bound by any judgment . . . The duty imposed on the PAGA representative is especially significant given that PAG...

Excerpt: ...ntegral part of plaintiff's cause of action. (Williams v. Horvath (1976) 16 Cal.3d 834, 842.) The government claim presentation deadline is not a statute of limitations. (City of Pasadena v. Superior Court (2017) 12 Cal.App.5th 1340, 1352.) The claim presentation must be made to the public entity separate from subsequently seeking redress in the courts. (DiCampli‐Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991, fn. 8.) Plaintiff premi...

Excerpt: ...ve simultaneous briefs on April 7, 2021 which address each of the nine (9) issues identified by the court in bold typeface below. The briefs shall not exceed 15 total pages (exclusive of tables of contents and authorities). Electronic service is permitted. Any requests to exceed this page limit must be brought ex parte pursuant to Fresno County Superior Court, Local Rule 2.72, and California Rules of Court, rules 3.1200 through 3.1207. Explanatio...

Excerpt: ...arbitration under California Code of Civil Procedure section 1281.2 and the Federal Arbitration Act (“FAA”). “California courts traditionally have maintained a strong preference for arbitration as a speedy and inexpensive method of dispute resolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Marke...

Excerpt: ... consistent with the court's summary judgment order. Explanation: Objections The court rules as follows on defendants' objections:  Plescia Declaration: Sustain objection nos. 3‐8, 10, 11, 13, 15, 16, 19‐23, 30, 32, 33, 35, 38 and 39. Overrule objection nos. 1, 2, 9, 10, 12, 17, 18, 24‐29, 31, 34, 36, 37 and 38.  Smith Declaration: Sustain all 20 objections. Attorney Smith is testifying to matters for which he does not have personal k...

Excerpt: ...s controls over any language fixing the settlement amount at $390,000. The Final Settlement Approval hearing is set at 3:30 p.m. on July 8, 2021. Papers shall be filed no later than June 23, 2021. Explanation: 1. Class Certification Standards An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luck...

Excerpt: ... answer to the first amended crosscomplaint within 10 days of the date of service of this order. Explanation: Plaintiff/cross‐ defendants AMP Trucking and Pannu have moved to strike portions of the cross‐complaint on the ground that the cross‐claims are partially or completely barred by the statutes of limitation that apply to each cross‐claim. However, a general demurrer is normally the correct procedure for challenging a cause of action...

Excerpt: ...es 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 sealing the record. The motion or application must be accompanied by a memorandum and a dec...

Excerpt: ...ourt has held that there is no tort cause of action in California for intentional spoliation evidence, when both the injured party and the alleged “spoliator” were parties to the underlying litigation, and the injured party knew or reasonably should have known of the alleged loss or destruction of evidence before the trial or other decision on the merits of the underlying cause of action. (Cedars‐Sinai Medical Center v. Superior Court (1998...

Excerpt: ...rties' Agreement “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 of Civ. Proc., § 1021.) The franchise agreement here addresses attorney fees and court costs incurred to secure a temporary or...

Excerpt: ...e demurrer of defendant National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) to the third cause of action with leave to amend. To overrule National Union's demurrer to the first and second causes of action. To grant National Union's motion to strike in its entirety, with leave to amend. Plaintiff is granted 30 days' leave to file a second amended complaint. The time in which the complaint can be filed will run from the d...

Excerpt: ...ttorney's fees and costs. To grant the motion to strike the prayer for treble damages without leave to amend. Defendant Saint Agnes Medical Center shall file and serve an answer to the First Amended Complaint within 10 days of the clerk's service of this minute order. Explanation: Demurrer “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We al...

Excerpt: ...nce, as attached as “Appendix B” in the record presented by petitioner, was improperly excluded at the hearing before respondent, and to remand the case to be reconsidered in light of that evidence. To order the motion to strike off calendar as moot in light of the ruling on the motion to augment. Explanation: These motions both concern expense vouchers (called TECs) which were submitted to real party in interest California Department of Tran...

Excerpt: ...dum of Costs and signed the Opposition to the Motion to Tax Costs) to appear telephonically through CourtCall or personally at the Sisk Courthouse. The court orders counsel for Fresno Community Hospital, attorney Karen J. Ray (who verified the Memorandum of Costs and signed the Response to the Motion to Tax Costs) to appear telephonically through CourtCall or personally at the Sisk Courthouse. Masks are required at the Sisk courthouse and entranc...

Excerpt: ... including a cause of action asserted in a cross‐complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Code Civ. Proc., § 1048, subd. (b).) Albeit, section 1048 is based on Federal Rule of Civil Procedure 42, subdivision (b). (See Legislative Committee Comment to 1971 Amendment to Code of Civi...

Excerpt: ...emphasis added).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Colonial has largely complied with Cal. Rules of Court, Rule 3.1324. Colonial seeks to add a workers' compensation exclusivity affirmative defense. The court agrees wit...