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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...

Excerpt: ...spondent opposes nonetheless. Respondent argues that the controversy is not arbitrable. Specifically, respondent argues that petitioner is seeking an advisory opinion – e.g., what will damages be if it terminates early. According to respondent, such is not appropriate for arbitration. Respondent also opposes petitioner's request for attorney's fees. On a procedural note, respondent initially objected to service. The court notes that this issue ...

Excerpt: ...a Salazar based on the allegations that Salazar drove his vehicle recklessly at a high rate of speed without looking in his rear view mirror while backing out of a driveway in a residential neighborhood. (Complaint, EX‐2.) He “accelerated the vehicle loudly causing the tires to screech as he backed out of the driveway at an extremely excessive speed.” (Ibid.) Defendant allegedly knew that decedent was directly behind him, standing next to a...

Excerpt: ...s Guardian Angel's Adult Day Health Care LLC and John Thao are stayed until the February 11, 2020 Order for Discovery is obeyed. The court awards an additional $820 in monetary sanctions payable by plaintiffs Guardian Angel's Adult Day Health Care LLC and John Thao, and attorney Douglas V. Thornton, jointly and severally, to Resnick & Louis, P.C. within 30 days of this clerk's service of this order. Explanation: Section 2023.010 defines “misuse...

Excerpt: ...e to file answer. Explanation: Motion to File Answer‐in‐Intervention: Under Code of Civil Procedure section 387, subdivision (d)(1), “The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: … The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situat...

Excerpt: ... Civil Procedure section 428.50, (a) A party shall file a cross‐complaint against any of the parties who filed the complaint or cross‐complaint against him or her before or at the same time as the answer to the complaint or cross‐ complaint. (b) Any other cross‐complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross‐complaint except one filed within the time...

Excerpt: ...s. This is not the basis for a special demurrer, but is a general demurrer for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) It will be treated as such, and will be dealt with first. The allegations concerning defendant Brix are sufficient to state a cause of action for medical negligence. Plaintiff has sufficiently alleged the duty element, in that an emergency room doctor making admi...

Excerpt: ... order. Explanation: Plaintiffs' motion to set aside the dismissal has been brought more than six months after they originally entered the dismissal of Delta Cleaners, so they cannot seek relief under Code of Civil Procedure section 473, subdivision (b), which requires that such motions be brought within six months of the default, default judgment, or dismissal. (Code Civ. Proc. § 473, subd. (b).) Instead, they seek to set aside the dismissal un...

Excerpt: ...endants shall be produced as a further response to Request for Production 6. To deny the motion with regard to Special Interrogatories 1, 2, 3, 8, 14, and 17 and Requests for Production 9 and 10. Explanation: There are essentially two major issues raised by this motion: (1) whether plaintiff's assertion of Code of Civil Procedure section 2030.20 (“section 2030.20 election”) in response to Special Interrogatories (SROGs) 5, 8, 11, 14, 17, 24, ...

Excerpt: ...er Code of Civil Procedure section 664.6, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of ...

Excerpt: ...rd on August 20, 2020 at 3:30 p.m. in Department 502. Explanation: As the California Supreme Court has ruled, “conduct amounting to a breach of contract becomes tortious only 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 cannot accept the argument by cross‐defendant John Foggy (“Foggy”) that the promissory not...

Excerpt: ...iff has objected to the motion on the ground that it is procedurally defective because the separate statement does not set forth verbatim the same request for relief that is contained in the notice of motion, the court intends to find that any procedural defect in the separate statement is de minimis and does not require denial of the motion. Rule of Court 3.1350, subdivision (b) does state that “If summary adjudication is sought, … the speci...

Excerpt: ...wer to the complaint within 10 days of the date of service of this order. Explanation: Defendant demurs to plaintiffs' single cause of action for declaratory relief on the ground that it fails to state facts sufficient to constitute a cause of action. Under Code of Civil Procedure section 1060, “[a]ny person interested under a written instrument, . . . or under a contract, . . . may, in cases of actual controversy relating to the legal rights a...

Excerpt: ...n for leave to file a Second Amended Complaint is denied as the proposed pleading continues to contain a claim for penalties which can be collected only in a class action (see paragraph 24). Further, California Rules of Court, Rule 3.770(a) states, in part, that: “Requests for dismissal must be accompanied by a declaration setting forth the facts on which the party relies. The declaration must clearly state whether consideration, direct or indi...

Excerpt: ...dicate that the instant matter was e‐filed on June 7, 2018. On June 11, 2018, plaintiff's counsel's office filed a second duplicate complaint, identical in every respect to the first case. The duplicate complaint was given case no. 18CECG02066, and the matter was assigned to Judge Hamilton and set for a case management conference on October 9, 2018. The second case was never served on defendant and defendant never appeared. Ultimately, the seco...

Excerpt: ...f the class allegations. (Code Civ. Proc., § 436, subd. (a).) To sustain the demurrer to the second cause of action, with plaintiff Terri Drew granted 10 days' leave to file a second amended complaint. (Code Civ. Proc., § 430.10, subd. (e), (f).) The time in which the complaint can be amended will run from service by the clerk of the minute order. All new allegations shall be in boldface type. The time in Explanation: Plaintiffs brought this co...

Excerpt: ..., defendant Keith Ross (hereinafter “Ross”) shall provide further verified responses to Special Interrogatory nos. 1, 2, 4, 13‐16, 22‐24, 33, Requests for Production of Document nos. 1‐5, 7, 9, 17, 18, 20, 21, and Requests for Admission nos. 9, 19‐21, 29. The motions are otherwise denied. All documents responsive to the above production demands shall be produced within 20 days of service of the order. To impose $6,494 in monetary sanc...

Excerpt: ...arily possessed and exercised by members of the medical profession under similar circumstances. [Citations.] ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of...

Excerpt: ...ve relief. The court elects to treat the complaint as a writ of mandate. Explanation: The challenger of the validity of a regulation may bring a declaratory relief action against the state agency that adopted the regulation in accordance with the Code of Civil Procedure section 1060. (Gov't. Code, § 11350, subd. (a).) However, under the Code of Civil Procedure section 1060, a party seeking a declaration of rights and duties with respect to anoth...

Excerpt: ...service of this order to file and serve a first amended answer providing ultimate facts supporting the respective affirmative defenses. Explanation: As an initial matter, plaintiff has not filed a demurrer as a separate document. All that is on file is the notice and the memorandum of points and authorities. This is a sufficient ground to overrule the demurrer. (Cal. Rules of Court, rule 3.1320; Witkin, Cal. Procedure (5th ed. 2020) Pleading, § ...

Excerpt: ...he court. At the continued hearing, the court will take limited, competent evidence from plaintiff and any witness she offers to support her general damages. Plaintiff and any other witnesses may appear via CourtCall. To deny the motion for sanctions. Explanation: Defendant's Reclassification Motion Civil cases formerly within the jurisdiction of municipal courts are classified as “limited” civil cases, while matters formerly within the juris...

Excerpt: ...ut any invitation or permission from the court. While the court exercises its discretion to consider these materials for this hearing, the parties are reminded that they must seek leave of court to submit additional materials after a tentative is posted or in excess of the page limit permitted by the California Rules of court. 2. Is the Settlement Fair and Reasonable? “[A court must be] provided with basic information about the nature and magni...

Excerpt: ...ng 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 opposing party is likely to suffer if the preliminary injunction were issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69‐70.) In considering these factors...

Excerpt: ...ant plaintiffs' request for monetary sanctions against defendants, in the amount of $2,175. Explanation: Defendants have not stated the statutory authority for their motion to quash the subpoenas. However, it appears that they are moving under Code of Civil Procedure sections 1985.3 and 1987.1. Under section 1985.3, “[a]ny consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this s...

Excerpt: ... or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” Unless the application is accompanied by an “attorney affidavit of fault”, relief is discretionary and must be based on a showing of “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); see Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) There are a couple...

Excerpt: ...ot set forth any particular standards for approval, but class settlement standards are commonly used, as plaintiffs point out. “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 PAGA does not require class action pro...

Excerpt: ...C (“Boardwalk”). The action is stayed as to North Point and Boardwalk pending arbitration. Explanation: In moving to compel arbitration, defendants must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.). ...

Excerpt: ...y proceeding.” The losing party may dispute any or all of the items in the prevailing party's costs memorandum by a motion to strike 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 bur...

Excerpt: ...0.10, subd. (e).) To grant the motion to strike the prayer for punitive damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: With regard to the first cause of action for elder abuse and neglect, plaintiffs have not alleged sufficient facts to state a claim. I...

Excerpt: ...stice require such action. (People v. Coleman (1975) 13 Cal.3d 867, 885; Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885‐886 citing Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322.) When a litigant seeks a stay based upon parallel criminal proceedings, an analysis should be undertaken "in light of the particular circumstances and competing interests involved in the case.” (Avant! v. Superior Court, supra, 79 ...

Excerpt: ...he clerk, defendant General Motors, LLC, (GM) shall serve further verified responses to Request for Production of Documents, Set One, Nos. 10‐ 12, 16, 17, 20, 23‐26, 28, 29, 37, 38 and 40‐75, without objection, and produce all responsive documents. Plaintiff and defendant shall also meet and confer and agree on a protective order pursuant to which the records will be produced. To grant the motion to compel further responses to Special Inter...

Excerpt: ...212; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198‐1201.) Further, “[a]n order denying a motion for reconsideration is interpreted as a determination that the application does not meet the requirements of section 1008. If the requirements have been met to the satisfaction of the court but the court is not persuaded the earlier ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the earlier...

Excerpt: ....) With regard to item 9, plaintiff's counsel is ordered to provide evidence regarding the amount he spent to purchase copies of the transcripts ordered by the court so that the court can calculate the amount of recoverable costs for transcripts. Explanation: First, the court intends to deny the defendants' motions to strike the entire memo of costs, as plaintiff is the prevailing party on the action and is entitled to an award of costs. Under Co...

Excerpt: ...ion. Explanation: FirstChoice's Notice of Joinder to Motion: First of all, the court intends to disregard the “notice of joinder” to Vantage's summary judgment/adjudication motion that was filed by FirstChoice and the individual defendants, and deny their request to join in Vantage's motion. The notice of joinder is improper, as a defendant who seeks to move for summary judgment must still file its own notice of motion and separate statement,...

Excerpt: ...ntiff's action until the arbitration is resolved. (Code Civ. Proc. § 1281.4.) Explanation: “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].'” (Market Ins. Corp. v. Integ...

Excerpt: ... section 395, “[e]xcept as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” (Code Civ. Proc., § 395, subd. (a).) Also, “[i]f the action is for injury to person or personal property or for death from wrongf...

Excerpt: ...ve to amend will be granted as to the punitive damages allegations unless plaintiff's counsel requests oral argument and appears at the hearing with an offer as to how the complaint could effectively be amended. (Code Civ. Proc. § 436.) Defendant shall file its answer to the complaint within 10 days of service of the order by the clerk. Explanation: In this elder abuse action, the complaint alleges that, on January 11, 2019, decedent Martha Conn...

Excerpt: ...and confer with regard to dates and locations for the second deposition and IME. Explanation: “Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.” (Code Civ. Proc., § 2025.610, subd. (a).) “Thus, a natural person may ...

Excerpt: ...tions and prayers regarding emotional distress and punitive damages, without leave to amend. (Code Civ. Proc. §§ 435 and 436.) To deny Price's motion to strike the cause of action for declaratory relief. (Ibid.) Explanation: Demurrer – Compliance with Government Tort Claims Act: Price demurs to the second through seventh causes of action based on plaintiff's failure to show that he filed a government tort claim naming him as a potential defen...

Excerpt: ... tort claims filing requirement pursuant to Government Code section 946.6. They contend that their failure to file a timely claim with the County of Fresno was due to mistake, inadvertence, surprise or excusable neglect, and therefore the court should allow them to proceed with their civil action against the County. However, petitioners have failed to present any evidence showing that their failure to file a claim within six months of the acciden...

Excerpt: ...l, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. [Citations.] ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is wit...

Excerpt: ...t Amended Complaint brought by Plaintiff Fri Poutinerie (Plaintiff). The motion is directed at the First Cause of Action for Breach of Contract, the Second Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing, the Third Cause of Action for Intentional Misrepresentation and the Fourth Cause of Action for Negligent Misrepresentation. Plaintiff's claims arise from a commercial lease agreement to rent space for a restaurant from ...

Excerpt: ...Amalgam, and Nwaka, as well as the motion for reconsideration of plaintiff's cross‐motion for summary judgment. (Code Civ. Proc. § 1008, subd. (a); Penal Code § 2601, subd. (d).) Explanation: In Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, the Fifth District Court of Appeal held that the trial court erred when it failed to exercise its discretion in response to the indigent prisoner plaintiff's motion for appointment of counsel in his civil ac...

Excerpt: ...fendant's motion to strike the prayer for punitive damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) To deny defendant's motion to strike the allegations regarding other customers' complaints about defective transmissions. (Ibid.) To deny defendant's motion to strike the allegations set forth in paragraph 77. Plaintiffs shall serve and file their first amended complaint within 10 days of the date of service of this order. All new all...

Excerpt: ...ry judgment order. Explanation: Plaintiff alleges that on December 31, 2016, she was terminated from her employment with defendant Duncan Enterprises. She alleges that she was discriminated against by defendant based upon her gender and age. She also alleges that she was retaliated against and terminated by defendant, for complaining about said violations. The Complaint alleges the following causes of action: (1) violation of FEHA – gender hara...

Excerpt: ...lusak and Cydney Fang. Explanation: Electronic Service: Preliminarily, the court notes that Ms. Glusak and Ms. Fang served their motions by electronic mail. Plaintiff's counsel claims this is improper, yet plaintiff provides a full opposition on the merits of each motion. Any service defects are therefore waived. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 696–698.) Anti‐SLAPP Overview: Code of Civil Procedure section 425.16 provides, “A c...

Excerpt: ... and she has no contacts with the state. (F. Hoffman‐La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 795; Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, 1258.) Therefore, she concludes that the court must quash service of the summons and complaint on her, as well as dismiss the action. “California's long‐arm statute permits a court to exercise personal jurisdiction over a nonresident defendant to the full exte...

Excerpt: ...granted plaintiffs' motion to approve the PAGA settlement in this case. The settlement agreement acknowledged that the treatment of wages as a penalty under PAGA was questionable. In fact, paragraph 4.3 of the settlement agreement states: “Defendants maintain providing wage payments to alleged aggrieved employees under PAGA is contrary to law but have agreed to this for settlement purposes only.” On September 12, 2019, the California Supreme ...

Excerpt: ...d to treat it as such for purposes of discovery. The Court orders that paragraph 3 of the proposed order be stricken, as California courts are barred from finding materials to be confidential based on a stipulation of the parties. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130; Cal. Rules of Court, rule 2.550 et seq.) Further, “[c]ourt records are open to the public unless they are specifically exempted from disclosure by statute or are ...

Excerpt: ...obile Club of Southern California (2008) 42 Cal.4th 1142, 1147.) The fundamental objective of the private attorney general doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565 (Graham).) Under section 1021.5, the court may award attorney fees to (1) a successful party in any action (2) that has re...

Excerpt: ...rrers to the tenth, twelfth, thirteenth, and fourteenth causes of action. Explanation: Breach of Fiduciary Duty (Third Cause of Action) A joint venture is an undertaking between two or more parties to carry out a joint business enterprise for profit. (James v. Herbert (1957) 149 Cal.App.2d 741, 748.) A joint venture exists when: (a) the parties have joint control over the enterprise, even though that control may be delegated; (b) the parties agre...

Excerpt: ...e clerk of the minute order. Explanation:  Second Cause of Action: Bane Act Violations (Civ. Code, § 52.1) Defendant argues this claim is barred because it was not included in plaintiffs' prefiling claim under the Tort Claims Act. There is no dispute that a claim under the Bane Act is not exempt from the claim filing requirements. (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 764.) The issue is the sufficiency of the claim to allow pl...

Excerpt: ...ove for judgment on the pleadings as to the defamation and intentional infliction of emotional distress causes of action, arguing that plaintiff has not and cannot state valid tort causes of action due to his failure to file a timely tort claim with the Board of Trustees for California State University Fresno. Under Government Code section 911.2, “A claim relating to a cause of action for death or for injury to person or to personal property or...

Excerpt: ...d amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Defendant Martinez demurs to the negligence claims, contending that plaintiffs have not alleged sufficient facts to state a valid claim because they have not alleged that she actually knew that her husband had a propensity to molest children. Defendant contends that, in order to allege the existence of a duty in negligen...

Excerpt: ...evelopment Agency. To grant plaintiff an incentive award of $2,250. To award attorney fees in the amount of $30,000. To order that the parties to lodge a proposed judgment by June 30, 2020, which lists the class certified, that the court retains jurisdiction to enforce the settlement, and enters judgment on the settlement (with the settlement attached thereto). Same need also state that the court determines the amount payable to all class members...

Excerpt: ...First, the appellate court must identify the issue framed by the pleadings. Second, we determine whether the moving party has met its statutory burden of proof. Once the defendant has made such a showing, the burden shifts to the plaintiff to produce evidence that a triable issue of fact exists as to an essential element of the cause of action. The third and final step is to determine whether the opposing party has demonstrated that a triable iss...

Excerpt: ...e: To deny terminating sanctions, but to issue evidence sanctions as specified below. (Code Civ. Proc., § 2023.030, subd. (c).) (2) Defendant's Motion for Summary Judgment, or Alternatively for Summary Adjudication: To deny summary judgment. (Code Civ. Proc., § 437c, subd. (c).) To grant summary adjudication of plaintiff's eighth and ninth causes of action of the First Amended Cross‐ Complaint (FACC), and to deny as to the remainder of plaint...

Excerpt: ...t the releases which are the subject of this motion are invalidated. To find that no curative notice is required at this time. Explanation: 1. Findings of Fact The court sustains the objections on the grounds of hearsay to plaintiff's counsel's declaration. The admissible evidence shows defendant's owner appointed an employee to give presentations about a settlement offer to three groups of employees on Christmas Eve 2019, about a month after the...

Excerpt: ... of Civil Procedure section 425.16, which states that, “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plainti...

Excerpt: ...ion shall be filed on or before 5:00 p.m. on Tuesday, July 21, 2020. Defendants' supplemental reply shall be filed on or before 5:00 p.m. on Thursday, July 30, 2020. Explanation: No Summary Adjudication of the Element of Damages Under Code of Civil Procedure section 437c, subdivision (f)(1), “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for da...

Excerpt: ...ss‐Complaint off calendar because (1) it is moot as to the first and second causes of action in light of the ruling on the good faith settlement motion, and (2) CMC has failed to comply with Code of Civil Procedure section 430.41. Explanation: Good Faith Settlement Motion Fresno Community Hospital and Medical Center, dba Community Regional Medical Center, dba Community Medical Centers (“CMC”) moves for determination that its settlement with...

Excerpt: ...planation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Second Cause of Action – Fra...

Excerpt: ...e 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: Judicial Notice The court may take judicial notice of court records. (Evid. Code § 452(d).) Also, the court may take judicial notice of settlement agreements and arbitration documents. (see Performance Plastering v. Richmond American Homes of California, ...

Excerpt: ... (“Central Valley”) is granted 10 days, running from service of the minute order by the clerk, to file and serve a second amended complaint, amending the fifth cause of action only to address the deficiency noted below. All new allegations in the amended complaint are to be set in boldface type. Explanation: First cause of action The first cause of action alleges that the net profits received by Golden State YMCA (“Golden State”) for its ...

Excerpt: ... Pursuant to the Uniform Electronic Transactions Act, found at Civil Code sections 1633.1 et seq., and Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, as well as the lack of evidence from plaintiff, the Court finds that an agreement to arbitrate exists. 2. Interpretation of Arbitration Agreements Interpretation of contracts is solely judicial function where there is no extrinsic evidence. (Powers v. Dickson, Carson & Campillo (199...

Excerpt: ...signature within 10 days. Explanation: The court intends to grant the motion for summary judgment in favor of defendants NP Brown, Dr. Jose Bautista, and Dr. Luis Bautista, as they have met their burden of presenting expert testimony showing that they did not breach the standard of care and that their acts or omissions did not cause plaintiffs' injuries. “The standard of care in a medical malpractice case requires that physicians exercise in di...

Excerpt: ..., 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 can adequately represent the class.” (In re Tobacco II Cases (2009)...

Excerpt: ...eave to amend. Because plaintiff's counsel had a habit of not responding to defense counsel's meet and confer requests, pursuant to Code of Civil Procedure section 430.41(c), the court ordered plaintiff's counsel to hold a conference of attorneys prior to filing an amended complaint. Defendant then moved to dismiss the complaint pursuant to Code of Civil Procedure section 581(f)(2) because plaintiff's counsel had not communicated with defense cou...

Excerpt: ... does not support the requested amount. Explanation: As an initial matter, to the extent that plaintiff seeks an order determining that it is the prevailing party on the contract action, such an order is unnecessary as the Court of Appeal has already determined that plaintiff is entitled to its attorney's fees on appeal as the prevailing party in the appeal. “Appellants do not challenge the trial court's award of attorney fees. The credit appli...

Excerpt: ...tiff's allegedly late‐filed opposition, the objection is overruled. Plaintiff's opposition was timely filed nine court days before the continued hearing date, so it does not appear that the opposition was filed late under Code of Civil Procedure section 1005, subdivision (b). Even assuming that the opposition was late based on the earlier hearing date, defendant has forfeited the objection by filing a reply that addresses the merits of the oppo...

Excerpt: ...eir truth. (See, e.g., Evid. Code §§ 451‐452.) Even so, the declaration can be considered as evidence in support of this motion, since affidavits and declarations are a routine form of evidence in motions to compel arbitration. It does not stop being evidence simply because it was filed in connection with a different motion. It was Ms. Boujikian's declaration then, and it is her declaration now. Also, the fact that the documents attached to t...

Excerpt: ...y adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal adjudication prohibited].) The ultimate burden of persuasion rests on defendant, as the moving party. The initial burden of production is on defendant to show by a preponderance of the evidence that i...

Excerpt: ...rike the prayer for prejudgment interest, contending that Civil Code section 3288 only permits an award of prejudgment interest in actions not arising from contract, and that Civil Code section 3287, subdivision (a), only allows prejudgment interest where the damages are certain or capable of being made certain by calculation. In the present case, defendant contends that plaintiff's claims arise out of the contract between the parties for the des...

Excerpt: ... objection and that made on the basis that the demand does not reasonably particularize the category of item. To limit further response and production to 1) any complaint or other initial filing in a court case or third party resolution process involving Ford and the owner of a 2016 Ford Explorer wherein Ford repurchased the vehicle, and where the repair history for that vehicle contains a problem for which the plaintiffs in this case also sought...

Excerpt: ...int can be amended will run from service by the clerk of the minute order. All new allegations in the amended complaint are to be set in boldface type. To order the JOP off calendar. Explanation: A court may, in the furtherance of justice, allow a party to amend any pleading on any terms as may be proper. (See Code Civ. Proc., §§ 473, subd. (a), 576.) “This statutory provision giving the courts the power to permit amendments in furtherance of...

Excerpt: ...omplaint within ten days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff's complaint attempts to state a single cause of action for breach of contract as to all of the defendants, including Ygrene Energy (incorrectly named as “Ygrene Financial, Inc.”). Plaintiff alleges that she entered into the contract with defendants on October 2, 2017, which was for installation of a new roof and sola...

Excerpt: ...n to strike the prayer for punitive damages (SAC p. 11) without leave to amend. To grant the motion to strike the SAC as a whole because it was not signed, with plaintiff granted 10 days leave to file a Third Amended Complaint. (Code Civ. Proc. § 436.) The time in which the complaint may be amended will run from service of the order by the clerk. To set a motion to reclassify this case as a small claims matter on July 30, 2020 at 9:00 am in Depa...

Excerpt: ...uses of action could be amended to state a cause of action. (Code Civ. Proc. § 430.10(e).) Respondents shall file their answer to the First Amended Petition and Complaint (“FAP”) within 10 days of service of the order by the clerk. If oral argument is timely requested, the matter will be heard on Monday, July 13, 2020 at 1:30 a.m. Explanation: Fourth Cause of Action The fourth cause of action alleges unlawful land use discrimination in viola...

Excerpt: ...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.) Accordingly, “[b]ecause the function of a demurrer is not to test the truth or accuracy of the facts alleged in the complaint, we assume the truth of all properly pleaded factual allegations.” (Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 203.) The test is whether plaintiff ha...

Excerpt: ... has the initial burden of showing the essential facts of jurisdiction, that is the facts requisite to an effective service. (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; Dill v. Berquist Const. (1994) 24 Cal.App.4th 1426, 1439‐ 40.) This may be done through presentation of declarations, with opposing declarations received in response. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.) Furthermore, filing a proof of service...

Excerpt: ...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.) The alleged arbitration agreement in this case is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq. Section 2 of the FAA provides for enforcement ...