Excerpt: ...d serve its answer to the Second Amended Complaint within 10 days of the clerk's mailing of this minute order. Explanation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its p...

Excerpt: ...court, within five days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: The operative pleading, the Second Amended Complaint (“SAC”) alleges five causes of action arising out of the foreclosure of a four‐unit residential property owned by plaintiff: 1. Violation of Homeowners Bill of Rights; 2. Breach of Contract; 3. Breach of covenant of good faith and fair dealing; 4. Ne...

Excerpt: ...party from a judgment, order, or other proceeding taken against him or her as a result of mistake, inadvertence, surprise, or excusable neglect, where the application for relief is made within six months of entry of the judgment, order, or other proceeding. (Code Civ. Proc. §473(b).) Application for relief may be based on either (1) an attorney affidavit of fault, in which event relief is mandatory; or (2) declarations or other evidence showing ...

Excerpt: ...ns are overruled. Explanation: Plaintiff's Evidentiary Objections The job description is not irrelevant, and Jessica Sims' personal knowledge sufficient to authenticate this document can be readily inferred from the fact that she serves as Supervisor of the “Manager, Cash Applications” position. As for the remaining objections, defendant has offered the objected‐to statements as to what other employees said about plaintiff for the nonhearsa...

Excerpt: ...gainst defendant Union Pacific Railroad Company. The claim is brought pursuant to the Federal Employers Liability Act (“FELA”) 45 U.S.C. §51, et seq. Plaintiff is the widow of John R. Jane (“Decedent”) who was an employee of defendant from 1968 to 2010. Plaintiff alleges that Decedent was exposed to various toxic substances and carcinogens and that these exposures gave decedent various forms of cancer. In a single cause of action for neg...

Excerpt: ...ible. (Shaw v. Regents of Univ. of California (1997) 58 Cal.App.4th 44, 52.) However, interpretation of a written document is a question of law for the trial court to determine, only where extrinsic evidence is unnecessary. (Temple v. Velcro USA, Inc. (1983) 148 Cal.App.3d 1090, 1095.) In other words, interpretation is appropriate where the language is clear, understandable and completely unambiguous. (Ibid.) “When the meaning of contractual la...

Excerpt: ...nt of the entire complaint on the ground that there is no evidence that they acted in a grossly negligent manner or in bad faith. They point out that, under Health and Safety Code section 1799.106, “[A] firefighter, police officer or other law enforcement officer, EMT‐I, EMT‐II, EMT‐P, or registered nurse who renders emergency medical services at the scene of an emergency or during an emergency air or ground ambulance transport shall only...

Excerpt: ...tiff shows (1) the basis of his claim and that the plaintiff is entitled to possession of the property claimed; (2) that the property is wrongfully detained by the defendant, the manner in which the defendant came into possession of the property, and (on information and belief) the reason for detention; (3) a particular description of the property and a statement of its value; and (4) the location of the property. (Code Civ. Proc., § 512.010.) 1...

Excerpt: ...ears an overall burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Woodridge Escondido Property Owners Ass'n. v. Nielsen (2005) 130 Cal.App.4th 559, 578.) A plaintiff moving for summary judgment has met its burden of showing that there is no defense to a cause of action if it has proved each element of the cause...

Excerpt: ...SongBeverly – breach of express warranty; (2) violation of Song‐Beverly – breach of implied warranty; and (3) violation of Song‐ Beverly Section 1793.2. In response thereto, defendant General Motors LLC (hereafter “GM”) moves for summary judgement or adjudication. GM makes the same argument with regard to the complaint as a whole, as well as to each cause of action individually. GM argues that prior to litigation, it made a statutoril...

Excerpt: ... Private Attorney General Act (“PAGA”), pursuant to Code of Civil Procedure section 438(b)(2) and (b)(3)(B)(ii). A case management conference will occur at the same time. Explanation: 1. PAGA CLAIM AND SERVICE ISSUE “An employee plaintiff suing, as here, under [PAGA], does so as the proxy or agent of the state's labor law enforcement agencies.” Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal. App. 5th 667, 674. For that re...

Excerpt: ...is minute order. Explanation: Demurrer “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We 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...

Excerpt: ...ng the present action, the court intends to abate it until the appeal in the first action has been finally resolved. (Karp v. Dunn (1964) 229 Cal.App.2d 192, 195.) Explanation: Respondents have demurred to the entire petition on the ground of failure to state facts sufficient to constitute a cause of action, contending that the present action is barred under the doctrine of res judicata, as well as being barred by statutory immunity for mental in...

Excerpt: ...Tentative Ruling: To overrule the demurrer to the Second and Fourth Causes of Action. To sustain the demurrer to the Third Cause of Action without leave to amend. Unless Plaintiffs ask for oral argument and offer a specific factual basis for their inability to specify who spoke the allegedly fraudulent statement, to sustain the demurrer to the Fifth Cause of Action without leave to amend. Defendants shall have ten (10) court days in which to file...

Excerpt: ...de Civ. Proc. § 437c(f)(1).) To deny Mazda Motor Corporation' (“MC”) motion for summary adjudication of plaintiffs' claim for punitive damages. (Code Civ. Proc. § 437c(f)(1).) Explanation: In light of plaintiffs' statement of non‐opposition to MNAO's motion for summary adjudication, the motion will be granted for the reasons stated in the moving papers. MC moves for summary adjudication of plaintiffs' claim for punitive damages on two gro...

Excerpt: ...ive damages, plaintiffs can then discover their financial information. To that end, since trial is set for a date in the very near future, defendants are ordered to have this information efficiently organized and ready to produce at trial if necessary, so as to minimize any delay in the conduct of the trial. Explanation: Civil Code section 3295, subdivision (c) permits pretrial discovery of a defendants' financial information for purposes of obta...

Excerpt: ... cause of action. (Code Civ. Proc. §437c(c).) To grant Defendant/Cross‐Complainant JMA's motion for summary adjudication as follows: Cross‐Defendant Alamillo Rebar, Inc., has an immediate duty to defend JMA in the instant matter; Alamillo's duty to defend arose on the date of tender; and JMA is entitled to reimbursement of costs and fees paid from the date of tender to present; and to deny as to Alamillo's duty to indemnify JMA. (Code Civ. P...

Excerpt: ...extent the request is directed at the existence of the documents and not the truth of the factual findings contained therein. (Evid. Code § 452(d); Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120 [“Judicial notice is properly taken of the existence of a factual finding in another proceeding, but not of the truth of that finding.”].) Special Motion to Strike The Anti‐SLAPP Statute. “A SLAPP suit—a strategic lawsu...

Excerpt: ...e; and Kaiser Permanente Hospital Fresno – films. To deny plaintiffs' motion to quash the subpoena directed at American Ambulance. To deny plaintiffs' request for a “first look.” To impose sanctions against defendants, in the amount of: $430. (Code Civ. Proc., §§ 2023.010, subds. (a) & (h), 2023.030, subd. (a).) Sanctions must be paid by defendants to the Law Office of Frank M. Nunes within 30 days after service of this order. Explanation...

Excerpt: ...ration 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 arbitrati...

Excerpt: ...ruary 20, 2020, at 3:00 p.m. in Department 501. On or before this date, plaintiff FRI must file a Substitution of Attorney evidencing that it has hired counsel, and said attorney must also appear on its behalf at the status hearing. If there is no substitution of attorney or appearance at the hearing, the court will dismiss FRI's four causes of action raised in the FAC. Explanation: Motion for Reconsideration The motion for reconsideration must b...

Excerpt: ...23.010.) Explanation: Because plaintiff identified in her interrogatory response Barbara J. Morlan, M.D., as a health care physician who performed a consultation or examination of plaintiff related to “symptoms of sleeplessness,” SCCCD subpoenaed all of plaintiff's medical records from Dry Creek Medical Group, the practice group identified with the address provided for Dr. Morlan. Plaintiff moves to quash the subpoena. Prior to filing this mo...

Excerpt: ...dants' facility used an electronic call button in their rooms or apartments, and how long it took for defendants' staff to respond to such calls, for the period from January 1, 2016 to February 1, 2017. To deny defendants' motion for a protective order barring disclosure of the requested information outside the scope of the litigation. Explanation: Defendants move to quash the subpoena under Code of Civil Procedure section 1987.1, which states, I...

Excerpt: ...lodge a proposed judgment by January 28, 2020. Explanation: Defendant moves to dismiss the action on the ground that plaintiffs failed to bring the matter to trial within five years of the date their complaint was filed and therefore dismissal is mandatory pursuant to Code of Civil Procedure sections 583.310 and 583.360. Code of Civil Procedure section 583.310 states, “An action shall be brought to trial within five years after the action is co...

Excerpt: ...ing the court to “issue a TRO…and set the matter for hearing on Motion for Preliminary Injunction.” These are at odds with each other, and both are wrong, process‐wise. As for the Notice of Motion, a TRO and the preliminary injunction are never issued simultaneously; a TRO is simply the injunction issued prior to a hearing on an Order to Show Cause (OSC) re preliminary injunction. As for the Memorandum, it separates issuance of the TRO an...

Excerpt: ...dment to any pleading[.]” (Code Civ. Proc. §473(a)(1).) “[I]t is a rare case in which a court will be justified in refusing a party leave to amend [its] pleadings so that he may properly present [its] case.” (Morgan v. Superior Court of Cal. In and For Los AngelesCounty (1959) 172 Cal.App.2d 527, 530, citation and quotation marks omitted.) Accordingly, leave to amend should be “liberally granted as long as there is no timeliness problem ...

Excerpt: ...ice of this minute order. Explanation: In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three‐prong anal...

Excerpt: ... is granted 10 days' leave to file its First Amended Answer, which will run from service by the clerk of the minute order; new allegations/language must be set in boldface type. To overrule all other special and general demurrers. To deny the motion to strike in its entirety. Explanation: Demurrer General Demurrers Plaintiff raises general demurrers to 44 of the affirmative defenses based on Code of Civil Procedure section 430.20, subdivision (a)...

Excerpt: ...cted Plaintiff's initial proof of service on Defendant on July 16, 2018. A second proof of service was filed on October 5, 2018, after entry of the default on September 27, 2018. Defaults are disfavored, and any doubts existing as to setting aside a default should be resolved in favor of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) Reversal is particularly appropriate where relieving the default will not seriously ...

Excerpt: ... Civil Procedure § 437c(c).) If the defendant carries this initial burden of production, the burden of production shifts to plaintiff to show that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 852.) “‘Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” (Lopez v. Superior Court (1996) 45 Cal.App....

Excerpt: ...ses are to be given under oath, without objections and without the limit to “information presently available to and specifically known to this responding party.” The responses are to include all information sought for persons who are not current employees, omitting only address and telephone information for those who are current employees. Interrogatories Nos. 118 and 119: to overrule the burdensome and relevancy objections, but to sustain th...

Excerpt: ...on motion of a party, after notice and hearing, make an order…that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case…. Similarly, Code Civ. Proc. § 1048(b) specifies the court's discretion in regard to bifurcating issues for separate trial: The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may...

Excerpt: ...r of 2012 that she asked Michael Automotive Center to replace the vehicle. The evidence does not support this fact. The support cited is Exhibit 7 to Ms. Bocchini's deposition, which is not authenticated. Ms. Bocchini admitted that she did call, but also testified that she did not seek such from Michael Automotive Center, and she testified affirmatively that she did not request replacement/repurchase from Volkswagen until 2017. (See Defendants' A...

Excerpt: ...an be used to: “(a) Strike out any irrelevant, false, or improper matter inserted in any pleading”; or “(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”(Code Civ.Proc. §§ 431.10, subd.(b); 436, subd.(a).) A court will “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their ...

Excerpt: ... damages and non‐economic, emotional distress damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) Plaintiff shall serve and file his first amended complaint within twenty days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: First, the entire complaint is uncertain in that plaintiff has not alleged clearly which defendants committed which wrongful acts against him, or how their ac...

Excerpt: ...the court shall grant the motion only if it completely disposes of the defense. The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defe...

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

Excerpt: ...ause of action. To deny the motion to strike allegations concerning punitive damages. To grant the motion to strike the prayer for attorney's fees. Explanation: Demurrer: First Cause of Action – Quiet Title A cause of action for quiet title must be verified and include the following: 1) a description of the real property that is the subject of the action, including both the legal description and street address; 2) the title or interest of the p...

Excerpt: ... action settlement, it must grant preliminary certification of the proposed class. (Cal. Rules of Court, rule 3.769(d).) Before a court may approve the settlement, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Prods., Inc. v. Windsor (1997) 521 US 591, 625‐27.) However, because a trial court is considering certification in a settlement context, the court's review of certification is lessened, particularl...

Excerpt: ...t of $950.00 are ordered against plaintiff's counsel Edward Kerley, and his law firm, Kerley Schaffer LLP, and shall be paid to the court no later than Wednesday, October 16, 2019. Explanation: Sanctions under Code of Civil Procedure section 128.5 Sanctions under this statute must be denied, since subdivision (i) of Code of Civil Procedure Section 128.5 expressly states that this sanctions statute “applies to actions or tactics that were part o...

Excerpt: ...to consider late‐filed papers so long as the responding party has been given adequate notice and an opportunity to respond. (See Michael H. v. Gerald D. (1987) 191 Cal.App.3d 995, 1004.) Defendants provided a timely, complete reply to Plaintiff's opposition. Plaintiff's late papers will be considered. Burden on Summary Judgment In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence'...

Excerpt: ...ins unanswered, as plaintiff has failed to provide any valid basis to determine potential damages. Considering that counsel interviewed some fifty of the class members (almost 1/6th of the class) and obtained payroll and time records, the employment of an expert to determine a violation rate and consequent probable damages in a statistically valid manner should be relatively uncomplicated, but is necessary. b. Standards An agreement of the partie...

Excerpt: ...g Materials Co. Tentative Ruling: To overrule all special demurrers. To overrule all general demurrers to the fourth through eighth causes of action. To sustain the general demurrers to the second and third causes of action with leave to amend. To grant the motions to strike allegations relating to punitive damages with leave to amend. To deny the balance of the motions to strike. The plaintiffs shall file and serve a Second Amended Complaint wit...

Excerpt: ...construe the failure to file a memorandum as an admission that the motion is not meritorious and there is cause for its denial. (Cal. Rules of Court, rule 3.113, subd. (a).) Nonetheless, it is assumed that Petitioner is seeking relief from dismissal under Code of Civil Procedure section 473, and the motion has been analyzed based on that assumption. The reason Petitioner gives to justify relief from dismissal is that he did not know about the Ord...

Excerpt: .... To impose monetary sanctions against defendant General Motors LLC, in the amount of $810. Payment shall be made to the Knight Law Group within 30 days of the clerk's service of this minute order. Explanation: Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) Courts may impose a monetary sanctions for misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd....

Excerpt: ...sted in the deposition notice shall be provided no later than 30 days from the date of this order. To deny the moving party's request for monetary sanctions. To grant the motion for leave to file a First Amended Complaint. The plaintiff is granted 10 days leave to file the proposed First Amended Complaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. Explanation: Motion to Compel An order ...

Excerpt: ...lly and Singh's motion to strike the request for attorney's fees, and to deny as to the remaining requests. (Code Civ. Proc. §436.) Explanation: Demurrer Special demurrer Special demurrers are disfavored, “and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; Merlino v. West Coast Macaroni Mfg. Co. (1949) ...

Excerpt: ...nated from their employment with defendant Kings View Corporation because of their age. In additional to discrimination and wrongful discharge causes of action, plaintiffs allege causes of action for intentional infliction of emotional distress and harassment. Defendant Leon Hoover, Kings View Corporation's CEO, demurs to the intentional infliction of emotional distress and harassment causes of action. Both causes of action are premised on the al...

Excerpt: ...planation: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial.” (At...

Excerpt: ...Explanation: Under Code of Civil Procedure section 387, subdivision (d)(2), “The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.” Also, under Labor Code section 3852, “Any employer who pays, or becomes obligated to pay compensation, or who pays, or becomes obligate...

Excerpt: ...Rules of Court, rule 3.350(b).) A copy of this order shall be filed in each case, and all subsequent documents shall be filed only in the lead case. (Cal. Rules of Court, rule 3.350(c).) Explanation: “A consolidation of actions does not affect the rights of the parties. The purpose of consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions....

Excerpt: ...e granted if the manager class were limited to manager‐level employees who did not met the salary test set forth in Title 8, California Code of Regulations, section 11070, for exempt status. It could also be met for the hourly employees. All claims at issue could be certified as class claims but for the reimbursement claim, for which no policy is shown, and if that claim were limited to cell phone usage. The record does not support certificatio...

Excerpt: ...motion to dismiss, motion for joinder, or such other procedural vehicle as might be appropriate. The demurrer to the Third Cause of Action is sustained without leave to amend, unless Plaintiffs request oral argument and make a specific proffer of facts in accordance with Code of Civil Procedure §430.41, subdivision (e)(1). The demurrers to the Fifth Cause of Action are sustained with leave to amend. Plaintiff may allege the facts as set forth in...

Excerpt: ...th through eleventh causes of action. To sustain the demurrer as to the twelfth cause of action, for failure to allege whether the contract is written, oral, or implied by conduct. (Code Civ. Proc. § 430.10, subd. (g).) To grant leave to amend as to the twelfth cause of action. Plaintiffs shall serve and file their second amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explan...

Excerpt: ...ion of the First Amended Complaint (FAC) alleged against Defendants Laton Unified School District, Laton High School, and Jason Krikava for failing to file the claims within the applicable statute of limitations. Defendants shall have ten (10) court days in which to respond the FAC. 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 who...

Excerpt: ...ivil Procedure § 664.6 provides, in pertinent part, as follows: If parties to pending litigation stipulate . . . 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 the terms of the settlement. Here, there is no ...

Excerpt: ...the motion is denied as to any of the causes of action, then the entire motion must be denied. (Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 497‐498.) Next, Sarantos contends that he is entitled to summary judgment as to all causes of action because neither he nor any manager of Club 500 authorized, directed, or ratified the conduct of their employee, Nai Saelee, when she wrote “Blackiiee” on plaintiff's receipt and told h...

Excerpt: ...ed judgment consistent with the court's summary judgment order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiffs cannot establish one or more elements of their causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue ...

Excerpt: ...nd to comply with section 430.41 prior to the potential filing of any future demurrer. Because Defendant Self has been dismissed from the case, the demurrer on Defendant Self's behalf is overruled as moot. 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. Superior C...

Excerpt: ... are imposed against plaintiff and her attorney, Rodney C. Haron. Sanctions must be paid to the Law Offices of Lewis Brisbois Bisgaard & Smith within 30 days after service of this order. Explanation: “Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. . . .” (Code Civ. Proc., § 2025.010.) Code of Civil Procedure section 2025.450, subdivision (a) provides for a mo...

Excerpt: ...sis for his 42 U.S.C. section 1983 claim, as well as other claims. Plaintiff shall have ten (10) court days in which to file and serve a first amended complaint. Any new or changed allegations must be set forth in boldface typeset. To deny the motion to compel without prejudice. Explanation: Demurrer Plaintiff's complaint is over 100 pages in length and recounts his disagreement with a course of treatment implemented by defendants from 2005 to 20...

Excerpt: ...n order relieving them from their waiver of objections to the request for production of documents, set one. (Code Civ. Proc. § 2031.300, subd. (a).) To grant defendants' motion for a protective order precluding them from producing documents containing proprietary and confidential information. (Code Civ. Proc. § 2031.060, subd. (a), (b).) Explanation: Motion for Relief from Waiver of Objections: Defendants seek relief under Code of Civil Procedu...

Excerpt: ...the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, in “‘any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) ac...

Excerpt: ...nna Owens in Bernard v. Ashria Holdings, LLC, Case No. 17CECG04106. To deny the motion with respect to the representation of co‐defendants Mao Vang and Jose Yepez. Explanation: Defendant Ariyanna Owens (“Owens”) moves to disqualify William Braun (“Braun”) from further representation of Ashria Holdings, LLC (“Ashria”), Mao Vang, Jose Yepez and Owens. A trial court's authority to disqualify an attorney derives from the court's inheren...

Excerpt: ...d Fred Avalli. (Code Civ. Proc. § 437c.) Explanation: With regard to the first cause of action for breach of contract, plaintiff has met its burden of producing evidence showing that defendants breached their agreement with plaintiff, and that plaintiff was damaged as a result. The elements of a breach of contract claim are (1) the existence of a contract between the parties, (2) plaintiff's performance or excuse for nonperformance, (3) defendan...

Excerpt: ... Kaur Bains, BKSG Transportation, LLC, Karnvir Singh, AM2 Logistic, Inc., shall provide verified responses to plaintiff's Requests for Production, Set One without objection within 10 days of the clerk's service of this minute order. To order defendants Mawinder Kaur Bains, BKSG Transportation, LLC, Karnvir Singh, AM2 Logistic, Inc., jointly and severally, to pay to plaintiff Julie Su, Labor Commissioner for the State of California, Department of ...

Excerpt: ...v. Eden Township Hospital Dist. (1992) 4 Cal.App.4th 1488, 1497.) Explanation: No suit for money or damages may be maintained against a governmental entity unless a formal claim has first been presented to that entity, and has been rejected, or is deemed rejected by the passage of time. (Gov. Code, §§ 945.4, 912.4; see Munoz v. State of Calif. (1995) 33 Cal.App.4th 1767, 1776.) The pre‐lawsuit claim must be presented to the governmental entit...

Excerpt: ...for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery. [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540; see Code Civ. Proc. §2017.010.) “Unless otherwise limited by order of the court in accordance with this tit...

Excerpt: ...efault judgment form in conjunction with its application. In addition, plaintiff has not submitted a proposed default judgment for the court's signature. Furthermore, plaintiff has not dismissed the Doe defendants against whom it is not seeking a default judgment. There is also some ambiguity about the requested default judgment. Plaintiff seeks a declaration that its first deed of trust has priority over other claims against the property, based ...

Excerpt: ...mend. Defendant Taja Investments, LLC, is granted 10 days' leave to file its answer to the complaint, with the time to run from service by the clerk of the minute order. Explanation: Standing to Sue Defendant begins by arguing that plaintiff does not have legal capacity to sue, and refers to Code of Civil Procedure section 430.10, subdivision (b), but then it argues that plaintiff is not a real party in interest and therefore lacks standing, with...

Excerpt: ...can attached to Debbie Raven's declaration, except that the submissions need also provide values for each item listed. If such evidence shows any party to this case taking a loss on their one‐third share of the assets, or obtaining a higher percentage than one‐third, briefs explaining why such loss or gain is justified need also be filed. Any such briefing shall be filed by October 10, 2019, and a further hearing will be held on October 24, 2...

Excerpt: ...There are two categories of evidence plaintiff Jane Doe (“plaintiff”) claims she cannot obtain while the criminal case of defendant Francisco Peña (“Peña”) is pending: (1) answers to deposition questions to which Peña asserted his Fifth Amendment privilege during his November 2018 deposition, and (2) the contents of plaintiff's cell phone which has been in the custody of the Fresno County District Attorney since shortly after Peña was...

Excerpt: ...ducement), and fourth (intentional infliction of emotional distress) causes of action, and without leave to amend as to fifth (slander of title) and sixth (declaratory relief) causes of action. Plaintiffs are granted 30 days' leave to file the Fourth Amended Complaint, which will run from service by the clerk of the minute order. Explanation:  First Cause of Action: Standing In ruling on a demurrer, the trial court is obligated to look past th...

Excerpt: ...breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal citation and quotation marks omitted.) In the instant action, Plaintiff alleges that he was employed by the State as an inhome caregiver; was a member of the union; was told that when he began work, he would be provided with medical insurance within a few months; and that medical insurance was not provided for over ...

Excerpt: ...t briefing on the issue of a stay. The parties were advised that the court would consider the following factors: the status of the foreign action; the convenience of the parties; the seriousness of the threat of multiple litigation; and the competing interests of the two forums. (Wong v. Tenneco, Inc. (1985) 39 Cal.3d 126; Leadford v. Leadford (1992) 6 Cal.App.4th 571, 575; see Minute Order, filed August 7, 2019, p. 2.) The parties submitted supp...

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

Excerpt: ...0 days of the date of service of this order. All new allegations shall be in boldface. 3 Explanation: First, to the extent that plaintiff has objected that defendant's demurrer contains a number of typographical errors that render the demurrer overly confusing with regard to which causes of action and parties are at issue, defendant has now filed notices of errata that clarify that the demurrer relates to the first and fifth causes of action for ...

Excerpt: ... at 3:30 p.m. in Department 503, as the return time for a report on distribution and possible amendment of the judgment pursuant to Code of Civil Procedure section 384(b). Declarations need be filed by April 17, 2010. To grant attorney's fees in the amount of $250,000, to be distributed 75 percent to the Boucher firm, 17.5 percent to the Selik firm, and 7.5 percent to the Majarian firm. To grant costs in the amount of $8,000 and an incentive awar...

Excerpt: ...te of service of this order. Explanation: Plaintiff has proved up the basic elements of his breach of contract claim, including the existence of a contract between the parties, his performance under the agreement, defendant's breach, and resulting damages. (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.) Plaintiff's evidence shows that he entered into a written contract with defendant in which plaintiff was to provide assistance in obtaining unpa...

Excerpt: ...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 of such an agreement; (b) set forth the names of the arbitrators; and (c) set forth or have attached a copy of the award and the written opinion of the arbitrators, if any. (Code Civ. Proc., §1285.4.) I...

Excerpt: ...plaintiff to answer defense counsel's question regarding the documents she consulted before her deposition. To deny the motion to the extent that defendant seeks to compel plaintiff to provide further responses regarding the redacted responses to requests for production of documents. To grant defendant's request for sanctions against plaintiff, in the amount of $1,950. Plaintiff shall pay sanctions within 30 days. Explanation: First, plaintiff im...

Excerpt: ...§ 1987.1; 2020.220.) Patient A shall appear for his deposition within 15 days of the date of service of this order. To deny defendants' request for an evidence sanction barring the use of Patient A's testimony if he fails to appear for his deposition, as there is no statutory authority for such sanctions as to a non‐ party witness. However, Patient A may be subject to other sanctions, including contempt of court, if he fails to appear for his ...

Excerpt: ... to defendant if leave is granted on the eve of trial. “ ‘Code of Civil Procedure 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 adv...

Excerpt: ...including both its legal description and its street address; 2) all interests the plaintiff has or claims in the property; 3) all interests of record or actually known to the plaintiff, and all persons plaintiff “reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff” (i.e., this includes “persons unknown to be served by publication); 4) the estate as to which p...

Excerpt: ... agreement of the parties provides for fee shifting. [Citation.] Labor Code section 218.5 requires the awarding of attorney's fees to the prevailing party ‘[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.' This provision awards fees to the prevailing party whether it is the employee or the employer; it is a two‐way fee‐shifting provision. However, Labor Code secti...

Excerpt: ...n.” (Code Civ. Proc. § 1033.5, subd. (c)(4).) All allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and they must be reasonable in amount and actually incurred. (Code Civ. Proc. § 1033.5, subd. (c)(1), (2) and (3).) On motion to tax costs, the initial burden depends on the nature of the costs that are being challenged. [T]he mere filing of a motion to ...

Excerpt: ...right to file this case – as a result of defendant's refusal to pay mediation costs, pursuant to Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87 and Tillman v. Rheingold, Valet, Rheingold, Shkolnik & McCartney (9th Cir. 2016) 825 F.3d 1069. On a procedural note, defendant argues that this court should not consider plaintiff's opposition because the arbitration agreement is governed by the CAA, which requires plaintiff to respond within 10...

Excerpt: ...les of Court, Rule 3.1350(b).) This action was filed by plaintiff Cold Springs against Wells Fargo only, contending that plaintiff is the only entity with right to the funds on deposit with Wells Fargo in accounts XXXX‐1634, XXXX‐5109, XXXX‐8420, and XXXX‐8655. Wells Fargo filed a Cross‐Complaint in Interpleader on July 30, 2018, naming Cold Springs and Santa Rosa (the only other tribe claiming an interest in the accounts) as cross‐de...

Excerpt: ...sion (f)(2). Explanation: Under Code of Civil Procedure section 437c, subdivision (f)(2), “[a] party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc., § 437c, ...

Excerpt: ...court within 5 days of the clerk's service of this minute order. Explanation: In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this de...

Excerpt: ... balance of the award to be deposited into a pooled special needs trust in order to preserve the minor's public benefits. However, petitioner must first file a petition under Probate Code section 3604 with the Probate Department, so it can confirm that the trust complies with California Rules of Court, rule 7.903, and provide for ongoing court supervision. Once that is accomplished, petitioner may refile his compromise petition with this court. I...

Excerpt: ...served on 10/3/18. This motion must be served within 45 days after service of a verified response (extended if served by mail, overnight delivery or fax or electronically; see Code Civ. Proc. § 1010.6(a)(4), 1013). Otherwise, the demanding party waives the right to compel any further response to the discovery. (Code Civ. Proc. §§ 2030.300(c), 2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.) The 45‐day time limi...

Excerpt: ...for bringing the motion. To grant plaintiffs' motion to amend the complaint. To treat defendant's motion for summary judgment/adjudication as a motion for judgment on the pleadings, and to grant it with leave to amend. Plaintiffs are given leave to amend the causes of action now predicated on alleged Labor Code violations to state causes of action for failure to pay overtime on other bases as may be provided by law. Plaintiffs are granted 15 days...

Excerpt: ...to the plaintiff, determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used.” (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234, internal citations and quotation marks omitted; see also Swaner v. Santa Monica (1984) 150 Cal.App.3d 789, 799.) “In making the determination of whether ...

Excerpt: ...nt public entity for collateral source payments paid or obligated to be paid for services or benefits that were provided prior to the commencement of trial.” (Gov. Code, § 985, subd. (b).) A “collateral source payment” is money “paid or obligated to be paid” by “private medical programs, health maintenance organizations, state disability, unemployment insurance, private disability insurance, or other sources of compensation similar t...

Excerpt: ...t to the applicable Local Rules and the court will reset the trial at that time. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473; see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777.) Judicial policy favors resolution of all d...

Excerpt: ... class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confr...

Excerpt: ...th 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. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) He...

Excerpt: ...ailure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To deny the motions to strike the allegations and prayers for punitive damages and attorney's fees. To grant leave to amend, except as stated below. 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: A. Demurrer Untimely Opp...

Excerpt: ...efendants demur to the first, second, and third causes of action in the complaint on the ground that there is another action pending between the same parties on the same cause of action. (Code Civ. Proc. § 430.10, subd. (c).) They claim that some of the plaintiffs in the present action have also brought the same construction defect claims in another action that was previously filed in Fresno Superior Court against the same defendants. (See Defen...