Excerpt: ...q. A judgment or order directing the sale, conveyance or delivery of possession of real property is stayed on appeal only by posting bond or undertaking. (§ 917.4; First Federal Bank of California v. Fegen (2005) 131 Cal.App.4th 798, 800.) The amount of the undertaking of bond is fixed by the trial court on the appellant's motion. (§ 917.4.) The bond or undertaking is given on the condition that “the appellant or party ordered to sell, convey...

Excerpt: ...ablish one or more elements of her causes of action or to show that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and this must be shown via specific facts and not mere allegations. (Id.) “California courts have incorporated the expert eviden...

Excerpt: ...otion for summary adjudication of defendant City of Firebaugh's affirmative defense of design immunity. (Ibid.) To deny defendant City of Firebaugh's motion for sanctions against plaintiff for bringing a frivolous motion for summary adjudication. (Code Civ. Proc. § 128.7.) Explanation: Hiller Aircraft's Motion for Summary Judgment: Hiller has only moved for summary judgment as to the entire complaint, not summary adjudication of each separate ca...

Excerpt: ...ard on Friday, November 13, 2020, at 8.30 a.m., in Dept. 54. Explanation: Demurrer ‐ General Standard of Ruling “The rule governing pleading in this state is that a plaintiff need only ‘set forth the ultimate facts constituting the cause of action, not the evidence by which [the] plaintiff proposes to prove those facts' [Citation].” (Knox v. Dean (2012) 205 Cal.App.4th 417, 431.) Further, “[w]e treat the demurrer as admitting all materi...

Excerpt: ...s informed that the bankruptcy petition had been dismissed; trial therefore was set for July 30, 2020. On July 30, 2020, the court received a copy of a bankruptcy court order dated July 24, 2020 dismissing defendant's bankruptcy petition for failure to timely file documents. At the time scheduled for trial, defendant asserted that a bankruptcy petition had been filed by the second defendant in this action, again staying the action. Although defen...

Excerpt: ... subd. (e).) Plaintiff is granted 10 days' leave to file the Second Amended Complaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the Second Amended Complaint are to be set in boldface type. Explanation: Demurrer, in General The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d...

Excerpt: ...o comply with Code of Civil Procedure section 1008, which governs motions for reconsideration. Section 1008 states that, When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstanc...

Excerpt: ...f Civ. Proc., §§ 435, 436.) Plaintiff is granted 10 days' leave to file the second amended complaint. The time in which the complaint can be amended will run from the date of service by the clerk of the minute order. New allegations in the second amended complaint are to be set in boldface type. Explanation: Demurrer The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (19...

Excerpt: ...ed judgment dismissing the claims against her within 10 days of the date of this order. Explanation: In its ruling on a prior demurrer, the court held that plaintiffs had failed to state sufficient facts to support their negligence claims against Martinez, as they had not alleged any facts showing that Martinez actually knew that her husband had a propensity to molest children. Instead, plaintiffs only alleged that defendant “knew or should hav...

Excerpt: ...rst cause of action for disability or medical condition discrimination, arguing that plaintiff cannot meet her prima facie burden of showing that she was terminated because of her medical condition or disability. FEHA provides, in relevant part, that it shall be an unlawful employment practice for an employer, because of the physical disability or medical condition of any person, to refuse to hire or employ the person or to bar or to discharge th...

Excerpt: ...f Rights, which is granted without leave to amend. Defendant is granted 10 days' leave to file its answer to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer The Complaint alleges sufficient facts for a cause of action for Elder Abuse and Neglect if the plaintiff shows: (1) Defendant had a responsibility for meeting the basic needs of Plaintiff; (2) Defendant kn...

Excerpt: ...f Rights, which is granted without leave to amend. Defendant is granted 10 days' leave to file its answer to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer The Complaint alleges sufficient facts for a cause of action for Elder Abuse and Neglect if the plaintiff shows: (1) Defendant had a responsibility for meeting the basic needs of Plaintiff; (2) Defendant kn...

Excerpt: ... is the same for each cause of action, since they are based on the same underlying facts. A SLAPP suit (Strategic Litigation Against Public Participation) is a suit brought “primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) The provisions of the anti‐SLAPP statute are to be construed broadly in order to safeguard the constitut...

Excerpt: ...the motion on the plaintiff. The proof of service indicates that the notice of motion and supporting documents were served on plaintiff by mail at 9720 Zelzah Avenue, Apartment 207 in Northridge California. However, plaintiff's address of record with the court is 17730 Lassen Street, Apartment 123 in Northridge. Since the address on the motion proof of service does not match the address of record with the court, it does not appear that plaintiff ...

Excerpt: ...answer to the second amended complaint within ten (10) days of the date of service of this order. Explanation: Demurrer: Defendant demurs generally and specially to the twenty‐eighth cause of action in the second amended complaint, contending that there are no facts alleged to show that defendant engaged in any unlawful, fraudulent, or unfair conduct, and that the entire cause of action is uncertain because it fails to allege which statutes or ...

Excerpt: ...nation: Motion to Quash Service of Summons A summons is issued by the clerk upon request by the plaintiff. (Code of Civ. Proc., § 412.10; Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1107.) Proper service of summons is required to establish personal jurisdiction over a party. (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547.) The plaintiff bears the burden to prove effective service where the defendant properly moves to quash service...

Excerpt: ...urth Amended Complaint. (Code Civ. Proc. § 437c.) Explanation: First of all, plaintiff Peter Farrington's claims against CCMC are time‐barred. Under Code of Civil Procedure section 340.5, In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or throu...

Excerpt: ...le of Court 3.1382. Under Rule 3.1382, “The notice of motion or application for determination of good faith settlement must list each party and pleading or portion of pleading affected by the settlement and the date on which the affected pleading was filed.” (Italics added.) The language of the rule is mandatory, so failure to comply with its requirements can support denial of the motion to determine a good faith settlement. Here, Vasquez's n...

Excerpt: ...des evidence at the hearing that the LWDA has been served with the settlement agreement and motion for approval, then the court intends to approve the settlement. Explanation: 1. Introduction Under Labor Code section 2699, subdivision (a), the Private Attorneys General Act of 2004 (“PAGA”), “Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and ...

Excerpt: ...tion to strike is granted, in part. (Code of Civ. Proc., § 436, subd. (b).) Plaintiff is granted leave to amend to include future plaintiffs who become eligible for relief. Explanation: Demurrer Demurrer ‐ General Standard of Ruling “The rule governing pleading in this state is that a plaintiff need only ‘set forth the ultimate facts constituting the cause of action, not the evidence by which [the] plaintiff proposes to prove those facts' ...

Excerpt: ...436.) To grant leave to amend. Plaintiffs would be granted 10 days' leave to file a Second Amended Complaint. The time in which such pleading can be amended will run from service by the clerk of the minute order. New allegations in the Second Amended Complaint are to be set in boldface type. Explanation: Demurrer Demurrer, in General The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plum...

Excerpt: ... owes on his accounts. With regard to the breach of contract cause of action, the elements of a contract claim are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) resulting damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Here, plaintiff's evidence shows that the parties entered into a series of contracts starting in 1991 and ending with a revised...

Excerpt: ...bor Standards Act (“FLSA”) in the settlement, and denied preliminary approval because such were not met. Those rulings are incorporated herein for reference. The problem language from the prior settlements was removed, and preliminary approval was given to the current proposed settlement. However, in reviewing the settlement for this final approval motion, the Court finds that four lines purporting to lay FLSA claims to rest are included. (Ex...

Excerpt: ...alleged rental use of the property. Explanation: Reconsideration of Service by Publication Order Inadequate service violates constitutional due process requirements of notice and a reasonable opportunity to be heard. (Brown & Weil, Civil Procedure Before Trial, section 4:4, citing Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314: “The means employed must be such as one desirous of actually informing the defendant might reaso...

Excerpt: ...llate attorney fees unless the statute specifically provides otherwise.” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.) Accordingly, “[s]ince [Code of Civil Procedure] section 425.16, subdivision (c) provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees by a prevailing defendant‐respondent, those fees are recoverable.” (Dove A...

Excerpt: ... breach of oral or implied contract, and the third cause of action for breach of the implied covenant of good faith and fair dealing on the ground that plaintiff's employment was at‐will, and therefore they had the right to fire him at any time with or without cause. However, there are triable issues of material fact as to whether plaintiff was an at‐will employee, or whether he had a partly written and partly oral agreement to work for defen...

Excerpt: ...mount of $1,060. (Code Civ. Proc. § 2017.020, subd. (b).) Plaintiff shall pay monetary sanctions to defendant within 30 days of the date of this order. Explanation: Under Code of Civil Procedure section 2017.020, “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence...

Excerpt: ...s legally entitled to judgment on the basis of the facts presented. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416; Kulesa v. Castleberry (1996) 47 Cal.App.4th 103.) Moving party must demonstrate that the opposing party does not have and cannot reasonably obtain evidence to raise factual or legal issues with regard to matters raised in the pleadings. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 854.) Evidence is ...

Excerpt: ...n must establish three things: (1) the existence of an ascertainable and sufficiently numerous class; (2) a welldefined community of interest; and (3) substantial benefits from certification that render proceeding as a class superior to the alternatives. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) Whether the Class is Sufficiently Numerous and Ascertainable. A class is required to be ascertainable in order to give p...

Excerpt: ... “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) Here, it is clear that pla...

Excerpt: ...nation: Code of Civil Procedure sections 435.5 and 430.41 require in‐person or telephonic meet and confer prior to filing a motion to strike or demurrer. Slack's counsel sent a meet and confer letter but did not make any effort to meet and confer in person or by telephone. Ordinarily the court would take the motions off calendar pending compliance with this statutory requirement. In this instance the court will not do so due to the delays in he...

Excerpt: ...ublication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702, internal quotes omitted.) Plaintiffs have clearly alleged a publication by defendant, since they allege she, or her agent, posted the picture attached as Exhibit 1 (itself an arrangement of photos and text) to her Facebook account. A person posts something to Faceb...

Excerpt: ... 36, subdivision (a), A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) “Upon the granting...

Excerpt: ...may order a separate trial of any cause of action . . . .” (Code Civ. Proc., § 1048, subd. (b).) Also, Code of Civil Procedure section 598 provides: 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 conference in cases in which such pretrial c...

Excerpt: ...ntiffs are granted 20 days' leave to file a second amended complaint. The time in which the complaint may be amended will run from service of the minute order by the clerk. All new allegations shall be in boldface type. Explanation: Demurrer “[T]he rule governing pleading in this state is that a plaintiff need only ‘set forth the ultimate facts constituting the cause of action, not the evidence by which [the] plaintiff proposes to prove those...

Excerpt: ...ode section 17200, et seq. (the Unfair Competition Law, or “UCL” claim), without leave to amend. To sustain the special demurrer for uncertainty to the UCL claim, with leave to amend. To overrule the general demurrer to the UCL claim, but with defendants being given leave to demur generally to this claim should plaintiff file an amended complaint. To be clear to plaintiff: she is given leave only to file an amended complaint raising a UCL cla...

Excerpt: ... not sue or defend itself against a lawsuit. (Rev. & Tax Code, § 23301.) Code of Civil Procedure, section 387, subdivision (d) provides that “[t]he court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied … [¶] (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that pers...

Excerpt: ...s, ascertainable class, (2) of a well‐defined community of interest, and (3) that certification will provide substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods. In turn, 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 who ...

Excerpt: ...ke or tax costs. (See Cal. Rules of Court, rule 3.1700(b).) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Item 4 ...

Excerpt: ...tent with the ruling on this motion. Explanation: Judgment creditor (formerly plaintiff) Maricela Vazquez seeks to add three new names as judgment debtors on the judgment entered against Aimhigh Group, LLC (“Aimhigh”) on October 31, 2019: Manjit Singh, Sukhninder Singh, and R&S Diversified, Inc. (“R&S”). Although the opposition was very late‐filed, the court will consider it. The moving party objected to the lateness, but she nonetheles...

Excerpt: ...g arbitration. However, the court severs the confidentiality provision found in paragraph 6 of the Dispute Resolution Agreement, with the remaining provisions continuing in full force and effect. To overrule all of defendant's evidentiary objections. Explanation: When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine: (1) whether t...

Excerpt: ... (c), “No pretrial discovery by the plaintiff shall be permitted with respect to the evidence [of defendant's financial condition] unless the court enters an order permitting such discovery pursuant to this subdivision.” (Civ. Code, § 3295, subd. (c).) “Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the d...

Excerpt: ...5) 39 Cal.3d 290, 296 [courts “bound to apply” policy of great liberality in permitting amendments to complaint at any stage of proceedings, up to and including trial]; Desny v. Wilder (1956) 46 Cal.2d 715, 751 [“Great liberality is indulged in matters of amendment to the end that lawsuits may be determined upon their merits.”]; Dye v. Caterpillar, Inc. (2011) 195 Cal.App.4th 1366, 1380 [leave to amend to be liberally granted]; Landis v. ...

Excerpt: ...t, 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 the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” (Civ. Code, § 1717, subd. (a).) Also, under Code of Civil Procedure section 1033.5, attorney's fees are allowable as an item of costs when authorized b...

Excerpt: ...ggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: … Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts …” A Section 663 motion must be directed at a final judgment. (Remington v. Davis (1951) 108 Cal.Ap...

Excerpt: ...otherwise, the specific issue of the duty in question, as required by California Rules of Court, rule 3.1350(b) (“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, . . . issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”). Therefore, the court only addresses defendant's motion for sum...

Excerpt: ...g dispossessed from the real property at issue, i.e., the cost of use for other offices and worship space, etc. by October 15, 2020. A brief not to exceed five pages may also be filed and served at that time. Defendants shall file and serve any response (including competent evidence) by October 30, 2020. Any responsive brief may not exceed five pages. Explanation: Code of Civil Procedure1 section 916 provides the general provision which stays all...

Excerpt: ...lanation: Motion to Quash Service of Summons A summons is issued by the clerk upon request by the plaintiff. (Code of Civ. Proc., § 412.10; Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1107.) Proper service of summons is required to establish personal jurisdiction over a party. (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547.) The plaintiff bears the burden to prove effective service where the defendant properly moves to quash servi...

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

Excerpt: ...settled. The motion is confined to the face of the pleading under attack, and all facts alleged in the complaint must be accepted as true. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 815; Rangel v. Interinsurance Exchange (1992) 4 Cal.4th 1, 7.) The applicable standards oblige the court to indulge all inferences in favor of the party against whom the motion was made and bars the court from inferring a fact that might defeat the cl...

Excerpt: ...th Rules of Court, Rule 3.1350. Weil & Brown, Civil Procedure Before Trial (TRG, 2019) section 10:96 states: “The statement must be a separate document, not part of the notice of motion” and that it “should” have a separate caption. Furthermore, pursuant to California Rules of Court, rule 3.1350(g) “[i]f evidence in support of … a motion exceeds 25 pages, the evidence must be separately bound and must include a table of contents.” D...

Excerpt: ...Villalpando, in the amount of $735. (Code Civ. Proc. § 2025.480, subd. (j).) Explanation: If a nonparty disobeys a deposition subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (Code Civ. Proc., § 2025.480, subd. (b); see Unzipped Apparel, LLC v. Bader (2007) 156 CA4th 123, 127.) A nonparty opposing such motion without substantial j...

Excerpt: ...action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820; see also CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) The facts of the complaint, are taken as true, as is plaintiff's interpretation of a contract, if reasonable. ...

Excerpt: ...t certification will provide substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods. In turn, 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 who can adequately represent the class.” (In re Tobacco II Cases (2009) 46 Cal. 4th ...

Excerpt: ...d the motion to deem the admissions admitted. To grant the motion to compel further responses to request for production of documents number 68; to deny as to the remaining requests. To grant the motion to compel further responses to Form Interrogatory 17.1/RFA nos. 51‐55; to deny the motion as to form interrogatory 17.1/RFA nos. 60, 68, 69 and 71. To deny the motion for sanctions. Verified responses to request for production of documents, numbe...

Excerpt: ...n to compel the deposition of defendant Vantage's person most knowledgeable was withdrawn the day before the hearing. To deny plaintiff's motion to compel further responses to requests for admissions, form interrogatory 17.1, request for production of documents, and special interrogatories. (Code Civ. Proc. §§ 2030.300; 2031.310; 2033.290.) To deny plaintiff's request for monetary sanctions against Vantage. (Ibid.) Explanation: Motion to Compel...

Excerpt: ...nd, Third, Fourth, and Sixth Causes of Action Under FEHA: Defendant contends that the undisputed facts show that plaintiff was unable to perform the essential functions of his job, with or without accommodation, and therefore plaintiff cannot prevail on his FEHA claims. “FEHA prohibits employment discrimination based on a physical disability. (Gov. Code, § 12940, subd. (a).) The Legislature has made it clear that FEHA's statutory provisions ar...

Excerpt: ...ceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” Relief under section 473, subdivision (b) can be based either on: an “attorney affidavit of fault,” in which event relief is mandatory; or declarations or other evidence showing “mistake, inadvertence, surprise or excusable neglect,” in which event relief is discretionary. Code of Civil Procedure section 473, subdivision (b) also p...

Excerpt: ...dwin, case number 18CECG01751, shall be the lead case. To deny defendant's motion for compulsory joinder of the minors. (Code Civ. Proc., § 389.) Explanation: Motion to Consolidate Cases Under Code of Civil Procedure section 1048, subdivision (a), "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the acti...

Excerpt: ...ng that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549; Lab. Code § 2699, subd. (l)(2) [“The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.”].) The court in O'Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F....

Excerpt: ...test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against the demurrer, we treat the demurrer as admitting all material facts properly pleaded, bearing in mind the appellate courts' ...

Excerpt: ...ter Dal Pezzo, on all causes of action, based on lack of standing, with leave to amend; 3) to the extent plaintiffs can sufficiently plead delayed discovery and Mr. Dal Pezzo's standing, to deny the motion as to the two breach causes of action; 4) to grant the motion as to the Consumer Legal Remedies Act (CLRA) cause of action with regard to the LLC plaintiff, Scuderia Dal Pezzo, LLC, without leave to amend; and 5) to the extent plaintiffs can su...

Excerpt: ...y adjudication as to all claims alleged against Signal Energy Constructors, LLC. To grant summary adjudication as to vicarious liability only, with regard to Signal Energy, LLC. To deny summary adjudication in all other respects. Explanation: A defendant moving for summary judgment or adjudication has the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co...

Excerpt: ...Explanation: Special Motion to Strike: Code of Civil Procedure section 425.16 provides, “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 ...

Excerpt: ... 437c.) To deny defendants' motion for summary judgment, and the alternative motion for summary adjudication. (Ibid.) Explanation: Plaintiff's Motion for Summary Judgment/Adjudication Initially, to the extent plaintiff has moved for summary judgment or adjudication of its sole cause of action for judicial foreclosure, the motion is problematic because, as plaintiff admits, the Modoc parcel that constitutes the security for the loan has already be...

Excerpt: ...ruled. (Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142, 149; Walter E. Heller Western, Inc. v. Tecrim Corp. (1987) 196 Cal.App.3d 149, 158.) The remaining objections to evidence are not material to disposition of the motion. (Code of Civ. Proc. § 437c, subd. (q).) Explanation: Summary Adjudication Summary adjudication is the proper mechanism for challenging a particular, “cause of action, an affirmative defense, a claim for punit...

Excerpt: ...ke, without leave to amend. Defendant Hudson Insurance Company is granted 10 days' leave to file its answer to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Plaintiff does not oppose the motion to strike the prayer and allegations regarding punitive damages, so it is granted. As for the demurrer for uncertainty, defendant fails to specify what is uncertain about the s...

Excerpt: ...the legal sufficiency of the complaint, raising issues of law regarding the form or content of the pleading. A general demurrer for failure to state a cause of action asks the court to consider whether all essential elements of each cause of action have been alleged. (Code Civ. Proc., §§ 422.10, 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In ruling on a demurrer, the court should construe the complaint liberally “wit...

Excerpt: ...equested documents on or before September 20, 2020. To impose monetary sanctions in the amount of $ 4,950 against defendant Fresno Community Hospital & Medical Center and its attorneys of record, King & Spalding LLP. (Code Civ. Proc., § 2025.450.) Sanctions must be paid to Carpenter Law within 30 days after service of this order. If oral argument is requested, the court will consider the additional costs incurred for plaintiff. Explanation: A pa...

Excerpt: ...1, 620.) California requires admissible proof sufficient to meet the substantial evidence test. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470; Lockhead Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106.) “Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well‐defined community of interest, and (3) that certification will provide substantial benefits to litigants and the c...

Excerpt: ...l essential elements of each cause of action have been alleged. (Code Civ. Proc., §§ 422.10 and 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In ruling on a demurrer, the court should construe the complaint liberally “with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; Stevens v. Sup.Ct. (API Auto Ins. Services) (1999) 75 Cal.App.4th 594, 601; Perez v. Golden Empire Transit Dist. (2012)...

Excerpt: ...d. Should plaintiffs desire to file a Second Amended Complaint, that must be done in 20 days from the date of this order and any new allegations must be in bold print. Explanation: I. Demurrer General Standard of Ruling The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The test is whether plaintiff has succeeded in stating a cause of action;...

Excerpt: ... be set in boldface type. Explanation: General Standard of Ruling The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlander...

Excerpt: ... CLASS CERTIFICATION “Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well‐defined community of interest, and (3) that certification will provide substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class represen...

Excerpt: ...adjudication be deemed to seek summary adjudication of the First Amended Complaint's (“FAC”) seventh cause of action. (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) Plaintiff shall file and serve the First Amended Complaint within 5 days of service of the order by the clerk. To grant SCCCD's motion to compel answers to deposition questions as to question numbers 30‐35 (as set forth in SCCCD's separate statement), and to deny the remainder ...

Excerpt: ...grant monetary sanctions against John Waterman in the amount of $1,460.00, payable within 30 days of the date of this order, with the time to run from the service of this minute order by the clerk. Defendants may re‐notice the deposition at a mutually convenient date and time, and Mr. Waterman shall appear and be deposed. Explanation: As an initial matter, the court notes that defendants Rite Aid Corporation and Thrifty PayLess, Inc. (collectiv...

Excerpt: ...cussed below. (Code Civ. Proc. § 438.) To grant leave to amend. Plaintiff shall file and serve his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. To grant defendants Bank of America and Countrywide Bank's motion for judgment on the pleadings as to the entire complaint. To grant leave to amend as to the first and tenth causes of action, but to deny leave to amend as to the ot...

Excerpt: ...of action five: Summary adjudication is denied as to cause of action five, as it applies to defendant Solorio. Summary adjudication is granted for sexual, gender, and national origin/racial discrimination only, as to Sarama and denied on all other bases. To the extent claims against Kalel, Inc. are derivative, they are granted and denied accordingly. Causes of action six and seven: Summary adjudication is denied. Explanation: Plaintiff alleges th...

Excerpt: ...d. (c); Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1036.) The court intends to find that $2.50 per page is a reasonable rate to charge for the transcript. The court also intends to find that plaintiffs are not required to pay for additional charges such as “litigation packages” and “condensed copies” if they have not requested them. Finally, the court intends to deny the request for attorney's fees and costs...

Excerpt: ... September 10, 2020, in Department 501. To the extent the court compels production of any personnel records to plaintiff, the court will issue a protective order limiting use of the records to the present litigation only, and requiring plaintiff's counsel to return the records to the Attorney General's office upon conclusion of the litigation. Explanation: Under Evidence Code section 1043, subdivision (a), “In any case in which discovery or dis...

Excerpt: ...As that is the only cause of action asserted against Eduardo, plaintiff is entitled to judgment against Eduardo in the sum of $8,697,330.08, plus 10 percent interest (UMF No. 10), accruing at the rate of $2,382.83 per day. (Code Civ. Proc., § 437c.) Plaintiff shall submit a proposed judgment consistent with the court's summary adjudication order within five (5) days of service of the order by the clerk. Explanation: I. Relevant Facts Plaintiff i...

Excerpt: ...�Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to make an initial determination of the...

Excerpt: ...0(a)(1), 3) testing is limited to the tests described in Amended Notice for the June 8, 2020 date, 4) the exam is limited to eight hours, and 5) that the exam be completed by October 31, 2020. To deny sanctions. Explanation: An independent mental examination “is the only procedure as to which a court order is still required before commencing discovery. Notice and hearing are deemed essential to protect against unreasonable examinations and to s...

Excerpt: ...dant “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If defendant meets this burden, then the burden of production shifts to plaintiff “to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) Summary adjudication is the proper mechanism for challenging a par...

Excerpt: ...in which such pleading can be amended will run from service by the clerk of the minute order. New allegations in a Second Amended Complaint are to be set in boldface type. In the event plaintiff elects to not file a Second Amended Complaint, defendant shall file an Answer to the First Amended Complaint within 30 days from the date of this order. Explanation: As a preliminary matter, defendant's reply contends that plaintiff's admission that the l...

Excerpt: ...ayte & Carruth, LLP's (“McCormick Barstow”) Motion: To deny the motion to compel further responses to Request for Admissions (“RFA”). To grant the motion to compel further responses to Form Interrogatory no. 17.1 as to RFA nos. 35‐43, 45‐51, 53‐83, 86‐99, 100‐108; otherwise deny. To impose monetary sanctions against plaintiff Ted Switzer and in favor of the moving party in the sum of $1,485. Gordon M. Park, Dana B. Denno and Ire...

Excerpt: ...ntiff Nevarez. 2. Defendant Is the Prevailing Party Case law makes clear that dismissal under the five‐year statute does not affect prevailing party status under the catalyst theory. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553; Maria P. v. Riles (1987) 43 Cal.3d 1281.) However, the catalyst theory does require a showing that the party advancing it made reasonable attempts to settle the litigation before filing suit. (Tipton–Whittin...

Excerpt: ...at date plaintiff's former attorney (Benjamin Hakimfar of Kabateck Brown Kellner, LLP) filed a request for dismissal of the action with prejudice. The dismissal was the result of a settlement agreement between the parties, which was negotiated between Mr. Hakimfar and defendant's attorney. The dismissal was signed on behalf of plaintiff by Mr. Hakimfar and the dismissal was entered. No executed release by plaintiff acknowledging the permanent los...

Excerpt: ...California requires admissible proof sufficient to meet the substantial evidence test. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470; Lockhead Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106.) Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well‐defined community of interest, and (3) that certification will provide substantial benefits to litigants and the courts, i.e.,...

Excerpt: ...rtify the class does not match the proposed class as described in the third amended complaint, which can justify denial of certification. In the third amended complaint, plaintiffs defined the proposed class as: All individuals and entities in the Northeast Fresno, California area who own or lease real property receiving water from the City of Fresno's Northeast Surface Water Treatment Facility who have been harmed in their person or property, in...

Excerpt: ...minute order. New allegations in the Fourth Amended Complaint are to be set in boldface type. Explanation: Where the complaint fails to plead ultimate facts, the complaint is subject to demurrer. (Code of Civil Procedure § 430.10(e); Berger v. California Ins. Guar. Ass'n (2005) 128 Cal.App.4th 989, 1006.) Essentially, “[a] complaint must allege the ultimate facts necessary to the statement of an actionable claim. It is both improper and insuff...

Excerpt: ...). They involve numerous pretrial motions that raise difficult legal issues which are time‐consuming to resolve, and involve significant documentary and other evidence. Motions seeking class certification in conjunction with settlement approval are exceptionally demanding, as the Court is the sole guardian of the rights of the absent class members who will be bound. “[S]ettlement class actions present unique due process concerns for absent cl...

Excerpt: ...law.'” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713, quoting § 437c, subd. (c).) To prevail on a motion for summary judgment, it is the defendant's burden to prove there is a complete defense or that the plaintiff cannot establish one or more elements of each of his causes of action. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) To show that the plaintiff cannot establish his claims, the defendant may either (1) a...

Excerpt: ...espect to, in, over or upon property, . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross‐complaint in the superior court for a declaration of his or her rights and duties in the premises. . . . He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties...

Excerpt: ...ss members (as defined in Plaintiff's First Amended Complaint) are hereby invalidated and deemed unenforceable. To further order defendants to send a curative notice to the putative class members who signed an Employee Arbitration Agreement informing them that the “Class Action Waiver(s)” provision contained in the Employee Arbitration Agreement in question have been invalidated and rendered unenforceable by the court, and that they are still...

Excerpt: ...the answer can be filed will run from service by the clerk of the minute order. Explanation: The demurrer to the First Amended Complaint clearly stated defendant was demurring only to the fourth cause of action for unjust enrichment, and defendant's opening argument did not mention a demurrer to the third cause of action for constructive trust. The opposition brief appeared to assume the demurrer was to both the third and fourth causes of action,...

Excerpt: ...remises serving as a hazard, and further allowed said dangerous condition to remain in disrepair, notwithstanding the fact that Defendants knew and/or should have known of the dangerous condition but failed to warn and/or repair, remedy the dangerous condition, that “there had been numerous prior Incidents.” Defendant has the burden of proving that there is a complete defense or that plaintiff cannot establish one or more elements of each of ...

Excerpt: ... submitted in support of defendant's opposition. To grant plaintiffs' motion for attorney's fees in the amount of $ 41,385.00. To also award costs and expenses of $ 2,509.98. Payment shall be made by defendant General Motors, LLC, to the Knight Law Group within 30 days of the clerk's service of this minute order. Explanation: In the case at bar, plaintiffs move pursuant to Civil Code section 1794. Plaintiffs seek attorney's fees in the amount of ...

Excerpt: ...ttorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge...

Excerpt: ... for Production of Documents, Statement of Damages, and for Monetary Sanctions Tentative Rulings: To grant defendant Fresno Community Hospital's motion for joinder of omitted heir. (Code Civ. Proc. §§ 382 and 389.) To grant Dr. Gill's motion for summary adjudication of the medical battery cause of action alleged against him. (Code Civ. Proc. § 437c.) To grant Dr. Rohlen's motion for summary adjudication of the fraud and medical battery/wrongfu...