Excerpt: ...nded 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: 1. Judicial Notice The court takes judicial notice of the recordation of the requested documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) 2. Demurrer The function of a demurrer is to t...

Excerpt: ...minutes and 13 seconds.3 However, according to defendant's own legal authorities, the issue of whether a hazard existed long enough to give the defendant constructive notice of the dangerous condition is generally an issue of fact that should be resolved by the trier of fact, not an issue that is amenable to resolution as a matter of law. In Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, the California Supreme Court stated that, “[b]ecause the o...

Excerpt: ...rocedure section 473, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citati...

Excerpt: ... a judgment in conformity with this order. Explanation: Defendant Kingspan Insulated Panels, Inc. (“Kingspan”) moves for judgment on the pleadings as to the First Amended Cross‐Complaint (“FACC”) brought by Style‐Line Construction, Inc. (“Style‐Line”). A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired, and so the rules governing demurrers apply....

Excerpt: ...ke class allegations, as improperly filed, redundant, and moot. (Ibid.) Explanation: Under Code of Civil Procedure section 382, “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” (Code Civ. Proc., § 382.) “The party seeking certification as a class representative must ...

Excerpt: ...d date of the hearing, the nature of the relief sought, and the grounds on which the motion will be based. “Unless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion; (2) The motion itself; and (3) A memorandum in support of the motion or demurrer.” (Cal. Rules of Court, Rule 3.1112, subd. (a), emphasis added.) “The papers fi...

Excerpt: ...ill run from service by the clerk of the minute order. Explanation: A demurrer is appropriate “[w]hen any ground for an objection to a complaint … appears on the face thereof, or from any matter of which the court is required to or may take judicial notice ....” (Code Civ. Proc., § 430.30, subd. (a).) A court should sustain a demurrer where a complaint fails to state “facts sufficient to constitute a cause of action.” (Id. at § 430.10...

Excerpt: ...n not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exist are to be resolved in favor of the party opposing summary judgment. (Barbe...

Excerpt: ...dez and Hernandez Chiropractic Spinal Decompression, Inc. demur to the entire complaint on the ground that it is barred by the applicable statute of limitations, as they contend that plaintiff's claims accrued on September 26, 2016 when she was allegedly sexually assaulted by defendant Arthur Hernandez, and she did not file her complaint until October 23, 2018, more than two years after the assault. (See Code Civ. Proc. § 335.1 [establishing two...

Excerpt: ...and the federal court denied the motion as to the state law claims. (See Defendants' Exhibit U, Order of United States District Court for the Eastern District of California dated August 30, 2017.) In its order, the District Court expressly found that there were triable issues of material fact with regard to the state law wrongful death cause of action, and thus denied summary adjudication of that claim. (Order, pp. 21:19 ‐ 22:23.) The District ...

Excerpt: ...40,000. Explanation: 1. Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed settlement.” Subsection (h) states: “If the court approves the settlement agreement after the final approval hearing, the court must make and enter judgment. The judgment must include a provision for the retention of the court's jurisdiction over the...

Excerpt: ...e to amend as to the claim alleged under the Information Practices Act only. Any amended pleading must be filed within 30 days of the hearing. Plaintiff is allowed to appear through Court Call. Explanation: The Court incorporates its ruling of November 19, 2019. The demurrer on the ground of Code of Civil Procedure section 430.10, subdivision (d), is sustained for the same reasons it was sustained last time. Plaintiff's First Amended Complaint (F...

Excerpt: ...s sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To deny the motion to strike punitive damages; and to grant the motion to strike the prayer for attorney's fees. Explanation: Demurrer to First Cause of Action: “The elements of fraud are: (a) misrepresentation; (b) knowledge of falsity (scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. Fraud action...

Excerpt: ...128.7, a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440, citation omitted; see Musaelian v. Adams (2009) 45 Cal.4th 512, 519 [purpose of §127.8 is to deter filing abuses].) “A claim is factually frivolous if it is not well grounded in fact and is legally f...

Excerpt: ...tion: A motion to strike can be used to cut out any “irrelevant, false or improper” matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b); see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164 [A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint.].) With respect to ...

Excerpt: ...take the plaintiff's deposition. The court will decide the amount of attorney fees to be awarded upon defendant's noticed motion. Explanation: In determining a motion to withdraw an admission, the court considers: “(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276; Huh v. Wang (2007) 158 C...

Excerpt: ...urally defective in two respects. First, none of the exhibits supporting the motion are authenticated. Maria Lampasona in her declaration purports to authenticate around 18 exhibits attached to her declaration. But the declaration includes no exhibits or attachments. SCCCD separately filed a volume of evidence, but the declaration does not reference such a filing. None of the exhibits are actually authenticated. Second, and most significantly, th...

Excerpt: ... and the federal court denied the motion as to the state law claims. (See Defendants' Exhibit U, Order of United States District Court for the Eastern District of California dated August 30, 2017.) In its order, the District Court expressly found that there were triable issues of material fact with regard to the state law wrongful death cause of action, and thus denied summary adjudication of that claim. (Order, pp. 21:19 ‐ 22:23.) The District...

Excerpt: ... Foster Farms' motion for summary judgment. Defendant Foster Farms is directed to submit to this court, within 5 days of service of the minute order, a judgment consistent with the court's order. Explanation: In the case at bar, plaintiff alleges six causes of action: (1) discrimination on the basis of race/nationality and disability in violation of the FEHA; (2) failure to provide reasonable accommodations [FEHA]; (3) failure to engage in intera...

Excerpt: ...mended 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: 1. Judicial Notice The court takes judicial notice of the recordation of the requested documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) 2. Demurrer The function of a demurrer is to...

Excerpt: ...meet and confer requirements of Code of Civil Procedure sections 430.41 (demurrer) and 435.5 (strike). The court grants defendant twenty days within which to comply with the statutes. Defendant must meet and confer “in person or by telephone” with plaintiff, “at least five days before the date” the demurrer and/or motion to strike is due, regarding the issues raised by the demurrer and motion to strike, or attempt to do so and provide suf...

Excerpt: ... Practices Act only. Any amended pleading must be filed within 30 days of the hearing. Oral argument for this matter at 3:30 p.m. on May 7, 2020 in this Department. Plaintiff is ordered to appear through Court Call. Explanation: The Court incorporates its ruling of November 19, 2019. The demurrer on the ground of Code of Civil Procedure section 430.10(d) is sustained for the same reasons it was sustained last time. Plaintiff's FAC rests a claim u...

Excerpt: ...nsideration being paid for the release of those claims represents a reasonable compromise.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 133.) In Clark v. American Residential Services, LLC (2009) 175 Cal. App. 4th 785, the Court of Appeal stated that, “[the] court [must] receive and consider sufficient information on a core legal issue, affecting the strength of the case for plaintiffs on the merits, to make the requisit...

Excerpt: ...ich must state whether the inspection will be allowed, pose objections, or represent that responding party is unable to permit the inspection. Code of Civil Procedure section 2031.210 and 2031.220. That response has to be under oath. Code of Civil Procedure section 2031.250. The response is due in 30 days from service of the demand for inspection. Code of Civil Procedure section 2031.260. Failure to provide a timely response usually results in a ...

Excerpt: ... wage statements in violation of Labor Code section 226(a), (2) failure to provide meal and rest periods or compensation in lieu thereof in violation of Labor Code sections 226.7 and 512, and (3) constructive discharge in violation of public policy. The second and third causes of action are individual causes of action for plaintiff only, and are not brought on behalf of other aggrieved employees. Because an aggrieved employee's action under the [...

Excerpt: ...drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, trial courts usually follow a three‐step analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movan...

Excerpt: ...d the requests for admission. To order monetary sanctions in the amount of $385, payable by plaintiff to defense counsel within 30 days of the date of service of this order. Explanation: Motion to Compel Responses to Interrogatories “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: [¶] (a) The party to whom the interrogatories are directed waives . . . any objection to the interrogato...

Excerpt: ...the settlement.” (Code Civ. Proc., § 664.6.) When deciding whether to enter judgment pursuant to section 664.6, the court is empowered to conduct a mini trial on the enforceability of the settlement agreement. Courts may adjudicate disputed facts and “entertain challenges to the actual terms of the stipulation.” (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566 [statute's express authorization for trial courts to determine if a settlement oc...

Excerpt: ...entered by Plaintiff Arcarius, LLC, on two grounds: first, that because the foreign state judgment was based on a confession of judgment it violates Due Process; and, second, Plaintiff's use of the confession of judgment was “premature and wrongful,” because Defendants were not in default at the time of the entry of judgment. Defendants also appear to make an argument that they were not afforded “service of process, notice and a right to be...

Excerpt: ...t itself states the following: By virtue of Resident's consent, instruction and/or durable power of attorney, I hereby certify that I am authorized to act as Resident's agent in executing and delivering of this arbitration agreement. I acknowledge that the Facility is relying on this representation. However, defendant bore the burden of establishing a valid agreement to arbitrate. (Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 3...

Excerpt: ...f this minute order. Explanation: A motion to strike can be used to cut out any “irrelevant, false or improper” matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166...

Excerpt: ... proposed amended judgment consistent with the court's order. Explanation: Every case may only have one final judgment. Generally, in order to be considered “final,” a judgment must adjudicate the claims asserted in both a complaint and cross‐complaint. (Nicholson v. Henderson (1944) 25 Cal.2d 375, 381.) Here, Left Coast seeks dismissal of the cross‐complaint, so that it may have one final judgment. This court is inclined to grant Left Co...

Excerpt: ...s now dismissed those claims with prejudice. (Ibid.) To deny the CDCR's motion as to the fourth cause of action, as moot since that cause of action has been dismissed with prejudice. (Ibid.) To grant the CDCR's motion as to the first, second, third, and fifth causes of action, and McElroy's motion as to the fifth cause of action. (Ibid.) Defendants shall submit a proposed judgment consistent with this order for the court's signature within 10 day...

Excerpt: ...he alternative motion for summary adjudication. (Code Civ. Proc. § 437c.) To grant defendant Dycora's motion for summary judgment as to the entire complaint. (Ibid.) Dycora shall submit a proposed judgment consistent with the court's order within 10 days of the date of this order. Explanation: Beverly Healthcare's Motion: Beverly argues that plaintiff lacks the capacity to sue and has no attorney, conservator, or guardian ad litem, and therefore...

Excerpt: ...tiff's motion for summary judgment from June 2, 2020 to July 19, 2020 at 3:30 p.m. in Dept. 502. If defendant desires to move for summary adjudication, or summary judgment concerning the new eighth and ninth causes of action, it may do so in two ways. It may file a Supplemental Notice of Motion, Memorandum of Points and Authorities, Separate Statement, and any new evidence, relating to the eighth and ninth causes of action only, to be heard on Ju...

Excerpt: .... (e), (f).) To grant defendants' motion to strike portions of the complaint, in part, and deny, in part, as discussed below. (Code Civ. Proc. §§ 435, 436.) To grant leave to amend. Plaintiff shall serve and file his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: Plaintiff has failed to allege any facts showing that he complied with the Government Tor...

Excerpt: ...he entity operating as Jack's Resort) and its members, officers, employees and agents. One of those defendants is Susan Lanier, a registered unlawful detainer assistant, who received rent payments on behalf of S.S.M.A. as its agent and had a lead role in trying to unlawfully evict the plaintiffs. (Complaint ¶¶ 7, 24.) Lanier also prepared and served the notices of evictions that the plaintiffs received. (Complaint ¶ 87.) On the notices Lanier ...

Excerpt: ...ion, as well as based upon the economic loss rule and the statute of limitations. Defendant also moves to strike punitive damages. For the reasons provided below, the court does not find defendant's arguments compelling. I. Demurrer based upon Code of Civil Procedure section 430.10, subdivision (e) a. Cause of action four: fraudulent inducement – concealment To state a claim for concealment, plaintiff must allege: (1) defendant concealed or sup...

Excerpt: ...'s December 12, 2019 Minute Order adopting the tentative ruling stated: “Plaintiff's prior motion for pre‐appeal fees is hereby set for Tuesday, February 4, 2020 at 3:30 p.m. in Department 502.” The order did not authorize additional briefing. Accordingly, the court disregards all documents on the issue of pre‐appeal attorney's fees filed by the parties after December 12, 2019 and awards no fees for the preparation of those filings. CPRA ...

Excerpt: ....) To deny the application of John C. Richter for admission to the bar of this court pro hac vice, without prejudice. (Cal. Rule of Court, rule 9.40, subd. (c).) To overrule the demurrer of defendant Independent Financing Services (“IFS”). (Code Civ. Proc. § 430.10, subd. (e).) To order defendant IFS to file and serve its answer to the first amended complaint within 10 days of the date of service of this order. Explanation: Complex Case Moti...

Excerpt: ...ll have ten (10) court days from the date of service of the minute order in which to file a Third Amended Complaint. All new or additional allegations are to be set forth in boldface typeset. Explanation: Demurrer Defendant demurs to the second cause of action in the Second Amended Complaint for intentional infliction of emotional distress allegedly suffered by Plaintiff Brandon Griffith. The Court sustained a demurrer to the same cause of action...

Excerpt: ...ree 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 plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) As used in the statutory scheme, “… act in furtherance of a person's right of petition or free speech...

Excerpt: ...ee of Plaintiff Hanford Community Hospital and was employed to perform laboratory testing. According to the papers, during the course of a deposition in an unrelated matter, Defendant admitted to taking patient records home, as well as e‐mailing PDF copies of patient records between 2015 and the present. He saved this information to his home computer and other devices. He also acknowledged that he did not have Plaintiff's permission or authoriz...

Excerpt: ...sed judgment consistent with this Court's ruling on the motion for summary judgment. Explanation: Seal The court has “broad authority to protect confidential commercial information[.]” (Fireman's Fund Ins. Co. v. Superior Court (1991) 233 Cal.App.3d 1138, 1141.) However, the court may order that a record be filed under seal only if it expressly finds facts that establish: (1) an overriding interest that overcomes the right of public access to...

Excerpt: ... prevailing buyer in an action under the Song‐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 tria...

Excerpt: ...al notice.” (Code Civ. Proc., § 430.30, subd. (a); see Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “ ‘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...

Excerpt: ...for Attorney Fees The allegations and prayers for attorney fees on the first four causes of action1 are clearly based only on the purchase agreement and thus only apply to defendant Owens, which plaintiff appears to acknowledge. Thus, the motion to strike as to these allegations/prayers is denied. On plaintiff's recent motion to amend, plaintiff moved to re‐add the prayer for attorney fees on the fifth and sixth causes of action, based on the �...

Excerpt: ...d. (c).) A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff's causes of action, or shows that one or more elements of each cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) A moving defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Only when the initial burden ...

Excerpt: ...of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff Lisa Kauls, who is the mother of decedent Nicholas Kauls, has alleged a single cause of action for medical negligence based on “contacts and communications” by defendant Fresno Community Hospital's employees with plaintiff, which caused her emotional distress and suffering. (Attachment to Complaint MM‐1, ¶ 4.) She also alleges that defend...

Excerpt: ...hrust of Kerwin Jackson and KJ Worldwide Investments, Inc.'s (collectively, agent defendants) demurrer to the second amended complaint is that plaintiff's claims arise out of representations and warranties made in a sales transaction. They argue that they did not sign any of the disclosure documents. Their names do not appear on any of the contracts or disclosure documents, and they were not sellers of the property. They did not make any represen...

Excerpt: ...sed judgment consistent with the court's order. Explanation: The court notes that all plaintiffs have dismissed the action against defendant David Hovannisian except plaintiff Juan Sagrero. The court therefore addresses the motion as it is directed to plaintiff Juan Sagrero only. Summary adjudication is the proper mechanism for challenging a particular, “cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty....

Excerpt: ...ll be in boldface type font. Explanation: “ ‘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.) Third Cau...

Excerpt: ...id acts of unlawful sexual conduct by Bispham. Johnson moves to quash the summons on the ground the court lacks personal jurisdiction over him because he lives in Washington State and no longer has continuing contacts with California. Where jurisdiction is challenged by a non‐resident defendant, the burden of proof is upon the plaintiff to demonstrate that “minimum contacts” exist between defendant and the forum state to justify imposition ...

Excerpt: ... to what is intended regarding tolling on the form “Order on Request for Pretrial Discovery Conference” (Local Form TCV‐72 R10‐18). This form order was created in conjunction with Fresno County Superior Court Local Rule 2.1.17, which states: Filing a request for a Pretrial Discovery Conference tolls the time for filing a motion to compel discovery on the disputed issues for the number of days between the filing of the request and issuance...

Excerpt: ...his Court can exercise jurisdiction over defendant LG Chem, Ltd. The hearing will take place at 3:30 p.m. on Tuesday, May 5, 2020 in Department 502. Any supplemental briefing must be filed by Plaintiff no later than April 21, 2020. Any objections or reply must be filed no later than April 28, 2020. Explanation: Specially‐appearing defendant LG Chem, Ltd. (“LG Chem”) moves to quash the service of summons on it by Plaintiff Eric Fletcher, ind...

Excerpt: ...mits an arbitration agreement, purportedly signed by plaintiff Carmon. The agreement is dated September 6, 2012, and is signed by plaintiff Carmon as decedent's “Legal Representative/Agent.” (Healy Dec., filed Nov. 18, 2019, at Ex. A.) Plaintiffs oppose on several bases. Notably, plaintiffs object to defendant's declaration in support of the petition. They argue that the arbitration agreement lacks foundation. Plaintiffs also argue that defen...

Excerpt: ... Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229.) Therefore, the statutory ground of this motion is that the court lacks jurisdiction over defendant. (Code Civ. Proc., § 418.10, subd. (a)(1).) Until proper service is made on a defendant, he is under no duty to respond in any way to a defectively served summons. This is so even if he has actual knowledge of the action. That knowledge does not dispense with statutory requirements for ...

Excerpt: ...17.1 as to RFA nos. 10 and 12‐15, and Request for Production of Document nos. 36‐39, produce all responsive documents, and supplement the privilege log. (Code Civ. Proc. §§ 2030.300(c); 2031.310(c); Code Civ. Proc. § 2033.290(c).) Explanation: Initially, the court notes that all requests for judicial notice are granted, with the exception of Infinity's Exhibit 1 (insurance policy), due to lack of authentication. Requests for Admission Infi...

Excerpt: ...e summons, the government would have a valid defense, preventing that interested party from further challenging the government's proposed action.” San Diego v. San Diegans for Open Government (2016) 3 Cal. App. 5th 568, 579. “The validating statutes should be construed so as to uphold their purpose, i.e., ‘the acting agency's need to settle promptly all questions about the validity of its action.” McLeod v. Vista USD (2008) 158 Cal. App. ...

Excerpt: ...orders the Clerk to strike the defaults entered against the Defendants on the grounds that the various discrepancies in the proofs of service render them defective. Each proof of service indicates that Defendants were served at a business located at 1236 W. Shaw Ave., Fresno CA 93711. However, the declarations of diligence (which is on a document entitled “Non Service Report”) for each defendant describes this as a residential address. Furthe...

Excerpt: ...n the FAC for failure to state facts sufficient to constitute a cause of action. HMA argues that plaintiff has not adequately alleged facts showing that plaintiff's failed transmission was a part that should have been covered under the Extended Emissions System Warranty mandated by California law, which requires parts for emissions systems in Partial Zero Emissions Vehicles (PZEV's) to be warranted for 15 years or 150,000 miles, whichever comes f...

Excerpt: ...e of April 20, 2020, is vacated, and the parties shall appear at a Case Management Conference on June 16, 2020, at 3:30 p.m., in Department 403 to determine trial readiness. Explanation: This motion largely rests on the court's prior order deeming certain Requests for Admissions (RFAs) as being admitted. Any matter admitted in response to an RFA is “conclusively established” against the party making the admission unless the court has permitte...

Excerpt: ... (e).) To deny the motion to strike. (Code Civ. Proc. §§ 435, 436.) To grant leave to amend as to the portions of the cross‐ complaint to which the demurrer has been sustained. Defendants/crosscomplainants shall serve and file their second amended cross‐complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer ‐ Second Cause of Action: “This covenant [of good faith and...

Excerpt: ...for lack of evidence showing how the requested damages and interest were calculated. The matter was continued to allow plaintiff to submit additional evidence. Plaintiff has now submitted a supplemental declaration from its First Vice President, Paul Thaxter, regarding computation of the damages and interest. The declaration includes an attachment which shows the principal amounts, payments made, and interest on the debt. However, the attachment ...

Excerpt: ...l run from service of the order by the clerk. To grant the motion to strike the prayer for punitive damages. (Code Civ. Proc. § 435, 431.10(b).) To deny the motion to strike the attachments to the Complaint. Explanation: On July 22, 2019 plaintiff filed his Complaint against defendant John Emerzian. The Judicial Council form complaint indicates that the action is for medical malpractice and defamation. There are no cause of action attachments. I...

Excerpt: ... vacate the award if the court determines any of the following: (1) The award was procured by corruption, fraud or other undue means. (2) There was corruption in any of the arbitrators. (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. (5) The rights...

Excerpt: ...ation: I. Motion to Confirm Any party to an arbitration in which an award has been made may petition the court to confirm the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other person bound by the arbitration award. (Code Civ. Proc., §1285.) A petition shall: (a) set forth the substance or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence ...

Excerpt: ...nded Complaint to correct the Vehicle Identification Number (VIN) for the automobile that is subject to the claims under the Song‐Beverly Act. Defendant filed a late opposition, noting in the supporting declaration that it did not receive the moving papers. The Court would be inclined to continue the hearing to allow Plaintiff to file a reply brief should Plaintiff request oral argument and seek such a continuance at the hearing. The court's di...

Excerpt: ... administrator must be submitted with the proposed notice. Plaintiff is to pay for the notice, subject to recovery of the sums paid as costs. Explanation: 1. Records Lodged Under Seal The Court has not been presented with any order or agreement for sealing of materials in this case. No motion has been filed. The Court's review of the materials shows no basis for sealing the motion or points and authorities, and those shall be placed in the public...

Excerpt: ... Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.) Albeit, the running of the statute must appear “clearly and affirmatively” from the face of the complaint. It is not enough that the complaint might be time‐barred. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324‐325; Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.A...

Excerpt: ...to the first through fourth causes of action only. A First Amended Complaint consistent with this ruling shall be filed and served within 10 days from the clerk's service of this minute order. New allegations shall be in boldface type font. The trial date, mandatory settlement conference, and trial readiness conferences are vacated. A status conference is set for March 26, 2020, at 3:30 p.m. in Department 503. Explanation: Initial Procedural Matt...

Excerpt: ...f law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) “The [summary judgment] procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods of determination of issues of fact. Affidavits of the moving party must be strictly construed and those of [the] opponent liberally construed. The opposing affidavit must be accepted as true, and need not be composed wh...

Excerpt: ...otion for Leave to File Cross‐Complaint A defendant may cross‐complain against a third person not yet a party to the action where the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against [it] or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against [it].” (Code Civ. Proc. §428.1...

Excerpt: ...the general demurrers with leave to amend. To grant the motion to strike. Plaintiffs shall file and serve a Third Amended Complaint in conformity herewith within 10 days of the clerk's mailing of this minute order. New allegations shall be in boldface type font. Explanation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also co...

Excerpt: ...eave to amend. Plaintiffs will have ten (10) court days from the date of service of this order to file a Second Amended Complaint setting forth a more thorough factual basis for the punitive damages, if they can. If Plaintiffs do not file a Second Amended Complaint, then Defendant will have twenty (20) court days from the service of this order to file a response to the First Amended Complaint. Any new or amended allegations are to be set forth in...

Excerpt: ...or the equitable estoppel claim as set forth below, if she can. Plaintiff shall have ten (10) court days from the date of notice of this order in which to file a Third Amended Complaint. Any new or additional allegations are to be set forth in boldface typeset. Explanation: Defendants demur to the complaint, as well as to the First, Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action. In ruling on the demurrer to the First Amended Complain...

Excerpt: ...ute order. New allegations/language must be set in boldface type. Explanation: Fourth Cause of Action: Unjust Enrichment “The elements of an unjust enrichment claim are the “receipt of a benefit and [the] unjust retention of the benefit at the expense of another.” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.) “However, the mere fact that a person benefits another is not of itself sufficient to require the other to ma...

Excerpt: ... Cal.App.4th 1042, 1049.) However, “[u]nsigned invoices . . . cannot on their own create a contract or add terms to a contract.” (C9 Ventures v. SVC‐West, L.P. (2012) 202 Cal.App.4th 1483, 1501, see also India Paint & Lacquer Co. v. United Steel Products Corp. (1954) 123 Cal.App.2d 597, 607‐608 [““[t]he prevailing rule is that an invoice, standing alone, is not a contract . . . and a buyer is ordinarily not bound by statements thereon...

Excerpt: ...lish at least one element of the cause of action.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. If a defendant makes this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) In a summary judgment motion, the pleadings determine the scope of relevant issues. (Nieto v. Blue Shiel...

Excerpt: ...vil Procedure section 387, subdivision (d)(1), which states, (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: … (B) 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 situated that the disposition of the action may impair or impede that pers...

Excerpt: ...stodial officer personnel records and records maintained by any state or local agency pursuant to section 832.5, or any information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” Evidence Code section 1043 requires a noticed motion which identifies the records sought, and “affidavits showing good cause fo...

Excerpt: ... Kaur has filed this motion to set aside the default entered by this Court. The Court's files show that a proof of service was filed with the Court on July 17, 2019 indicating that Defendant Kaur was served by substitute service on June 7, 2019, with the papers mailed to Defendant on June 10, 2019. Default was entered on July 23, 2019. Defendant filed her papers in support of the motion to set aside the default on November 12, 2019. It appears fr...

Excerpt: ...tration of issues pertinent to the resolution of a claim under PAGA, Labor Code section 2699 et seq., the contract violates the public policy of the State of California. (ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175; Iskanian v. CLS Trans. Los Angeles, LLC (2014) 59 Cal.4th 348.) Defendants recognize this legal principle in seeking arbitration of causes of action other than those brought as a PAGA claim. A stay of PAGA claims until an arbitrat...

Excerpt: ... manager for the Fresno Police Department (FPD) – is relevant to establishing his qualification to give evidence. Objection 2 was Lt. Rowe's statement attesting that FPD provided training to its officers on its pursuit policy on at least an annual basis. The objection was essentially to the sufficiency of this evidence to prove the required fact, and not to the statement's admissibility. Objection 3 is to Lt. Rowe's statement on information and...

Excerpt: ...ing summary judgment in favor of defendants Abolnik, Galamgam, and Nwaka and denying plaintiff's cross‐motion for summary judgment. (Code Civ. Proc. § 1008.) Explanation: “[A]fter entry of judgment, a trial court has no further power to rule on a motion for reconsideration. ‘A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered. Once judgment...

Excerpt: ...iff shall file and serve a new amended complaint, to be titled “Fifth Amended Complaint” within 20 days of the clerk's service of this order. Explanation: Strike Fourth Amended Complaint Code of Civil Procedure section 436 provides, in relevant part, that “[u]pon motion, or at any time in its own discretion, a court may grant a motion to strike . . . all or any part of any pleading not drawn in conformity with the laws of this state, a cour...

Excerpt: ...to comply with Code of Civil Procedure §431.30, subdivision (g). In all other respects, the demurrer is overruled. Defendant shall have ten (10) court days from the date of this order to file an amended answer. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Supe...

Excerpt: ...the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Except as otherwise provided by statute, “every action must be prosecuted in the name of the real party in interest . . . .” (Code Civ. Proc. § 367.) If “any person other than a real party in interest brings an action, it is subject to general demurrer. [Citations.]” (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 427.) “In gen...

Excerpt: .... To grant fees in the amount of $37,500.00 (25% of the fund), costs in the amount of $18,861.12, an incentive award to the named plaintiff in the amount of $5,000.00, and costs to the administrator in the amount of $12,000.00. To approve the amount of the PAGA payment. The amount to be paid to class members is therefore $73,638.88. To set October 20, 2020 at 3:30 p.m. in this department as the date and time for the parties to return to report on...

Excerpt: ...rder, a proposed judgment consistent with the court's summary judgment order. Explanation: “[S]ummary judgment law … may be reduced to, and justified by, a single proposition: If a party moving for summary judgment in any action … would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then [it] should prevail on summary judgment.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 8...

Excerpt: ...a party has appeared through an attorney, service of papers must be made on the attorney rather than the party. (Code Civ. Proc., § 1015.) Moving papers can be served by personal delivery, mail, express mail, “or another method of delivery providing for overnight delivery.” (Code Civ. Proc., §§ 1013, 1013a.) Proof of service is made by a declaration stating, among other requirements, the method of service used, the person(s) served and the...

Excerpt: ...miss the complaint under Code of Civil Procedure section 581, subdivision (f)(2), which states, “The court may dismiss the complaint as to that defendant when: ... after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” (Code Civ. Proc., § 581, subd. (f)(2).) “The decision to dismiss an action under section 581, subdivisi...

Excerpt: ... subd. (f) [uncertainty] and (g) [uncertain contract claim]. To sustain the demurrer to the second cause of action, without leave to amend. To grant the motion to amend in part, and deny in part: plaintiffs' request to reinstate their three causes of action based on violations of the California Labor Code is denied; plaintiffs' request to add allegations regarding the 2001 Employee handbook in order to support their breach of contract claim is gr...

Excerpt: ...nd file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.” (Cal. Rules of Court, rule 3.1113, subd. (a).) “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the sta...

Excerpt: ... the existence of an arbitrable controversy, rather than mere conclusions, and must allege not only the existence of the arbitration agreement but “also that the opposing party refuses to arbitrate the controversy.” (Strauch v. Eyring (1994) 30 Cal.App.4th 181, 186; see also Spear v. California State Auto Assn. (1992) 2 Cal.4th 1035, 1041].) Whether an Agreement Exists The party seeking to compel arbitration bears the burden of proving the ex...

Excerpt: ...eny all three motions for summary judgment. (Code Civ. Proc. § 437c.) Explanation: Bowman's Motion: Defendant Ashley Bowman moves for summary judgment of the entire complaint, contending that there is no evidence that she breached the standard of care or caused plaintiff's injuries, and that even if there were such evidence, she is statutorily immune from liability in the absence of evidence of gross negligence or bad faith. Under Health and Saf...

Excerpt: ... the request for costs, defendant is clearly entitled to an award of its costs as the prevailing party in the action. (Code Civ. Proc. § 1032, subd. (b) [“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”].) Here, defendant has filed its memorandum of costs in the amount of $4,300.69, and plaintiff has not objected to the memorandum or moved t...

Excerpt: ...es, with leave to amend. Explanation: Demurrer “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We 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.) Here...

Excerpt: ...ered to prepare a judgment within ten (10) court days of this order. Note‐ in the event that oral argument is requested, it will be heard at 3:30 p.m. on Thursday, March 19, 2020 in Department 502. Explanation: Petitioner filed his petition on June 2, 2014. Petitioner filed an amended Petition on April 26, 2019. The Amended Petition describes itself as an “Amended Petition for a Writ of Mandate to Discharge Civil Commitment Based on Lack of J...

Excerpt: ...failure to state facts sufficient to constitute a cause of action as to the individual plaintiffs. (Code Civ. Proc., § 430.10, subd. (e).) To sustain the demurrer to both the successor claim as well as the individual plaintiffs to the seventh cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To grant leave to amend. To deny the motion to strike and grant in part, as discussed below. (Code Civ. Proc., §§ 435, 436.) To grant leave to amen...