Excerpt: ...tive, summary adjudication on the Complaint filed by Plaintiff Felix Rocha. Mr. Rocha filed a complaint on January 16, 2018 alleging injuries from a motor vehicle accident and general negligence. The injuries were alleged to have occurred on January 18, 2016 and stemmed from the negligent operation of one of Defendant Mid Valley Disposal's fork lift trucks by co‐Defendant Toby Taylor. To obtain summary judgment, “all a defendant needs to do i...

Excerpt: ...mmary judgment order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiff cannot establish one or more elements of his 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 of one or more material facts exists – and ...

Excerpt: ...n of bullying, harassment and discrimination based on race by coworker Joyce Kennedy and supervisor Sharon Murphy. Plaintiff was terminated following an investigation into a potential threatening or harassing email sent by plaintiff to Murphy. Plaintiff contends that the termination was pretextual. Defendants move for summary adjudication of plaintiff's fifth cause of action for wrongful termination in violation of public policy. When a plaintiff...

Excerpt: ...dants/petitioners are correct that Code of Civil Procedure section 1290.6 requires a party responding to a petition to compel arbitration to serve and file its response within 10 days after service, the Court will consider plaintiffs/respondents' opposition on its merits, as no prejudice to defendants/petitioners is apparent. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847; see also Hoover Community Hotel Development Corp. v....

Excerpt: ...), (f).) To grant the motion to strike the allegations and prayer regarding punitive damages from the cross‐complaint. (Code Civ. Proc. §§ 435, 436.) To grant the motion to strike the conspiracy claim against plaintiff's counsel and her law firm, for failure to comply with Civil Code section 1714.10 before filing the claim. To grant leave to amend. To deny both parties' requests for sanctions against each other. (Code Civ. Proc. §§ 128.5, 1...

Excerpt: ...Costs are taxed by $53,855.58. Costs awarded to Triangle Truck against the Srabians therefore total $7,278.83. Explanation: The parties to this case filed cross‐motions to strike and/or tax costs and for attorney's fees after a jury trial. By order dated July 31, 2019, the Court ruled on all the motions except for the Srabians' motion to strike and/or tax the costs of Triangle Truck. In its order, the Court noted that “[w]here co‐parties jo...

Excerpt: ...fendant Richard Greene has moved to vacate and set aside the default entered in this case on February 15, 2019. 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 prejudice the opposing party. (Elston v. City of Turlock (1985) 38 C...

Excerpt: ... by the parties and submitted to the court for signature. Explanation: Plaintiffs originally moved to compel nonparty Fresno County Public Defender (“FCPD”) to produce documents responsive to seven requests for production of documents contained in a deposition subpoena. Following a continuance so that the parties could file a joint separate statement of items in dispute, the discovery dispute has been narrowed to four categories of documents ...

Excerpt: ...the completion of arbitration. Explanation: The parties have agreed to submit plaintiff's claims to arbitration pursuant to a Dispute Resolution Agreement. The parties are in disagreement as to the interpretation of paragraph 5 of the Agreement, and have stipulated to have the court resolve the issue. Paragraph 5 provides: Arbitration will be conducted within the county in which the employee works for CMC or last worked for CMC unless all parties...

Excerpt: ...s motion and all other proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby. (Code Civ. Proc., § 916, subd. (a).) By operation of law, this Court lacks jurisdiction to hear the motion and therefore vacates the hearing. Once the appeal is no longer pending, the moving party may contact the law and motion clerk to reschedule the hearing on the motion. Explanation: On April...

Excerpt: ...y September 13, 2019. To set a return date of Thursday, May 21, 2020 for a report to the Court of the final distribution and amendment of the judgment pursuant to Code of Civil Procedure section 384(b). 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 appro...

Excerpt: ...spect to causes of action: four (breach of oral contract), five (breach of implied‐infact), and six (promissory estoppel). To deny defendant's motion to strike plaintiff's prayer for costs. To deny defendant's motion to strike plaintiff's prayer for restitution. Plaintiff is granted ten days' leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanati...

Excerpt: .... (1953) 38 Cal.2d 273. There, a couple was photographed by an employee in an affectionate pose at the LA Farmer's Market, and the photograph was published with an accompanying article in Ladies Home Journal, without their permission. [T]he caption under the picture describes it as “love at first sight” and the article says such love is based on 100 per cent sex. It is not unreasonable to believe such would be seriously humiliating and distur...

Excerpt: ...�The court may, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading[.]” (Code Civ. Proc. §473(a)(1).) “[L]eave to amend a pleading should be liberally granted as long as there is no timeliness problem under a statute of limitations or prejudice to the opposing party. [Citations.]” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240; Glaser v. Meyers (1982) 137 Cal....

Excerpt: ...any generally applicable venue statutes, but relies, in principle part, on Welfare and Institutions Code §§6600, et seq. and, specifically, section 6601, subdivision (i) (effective January 1, 2019). A plaintiff's (or, in this case, a Petitioner's) choice of venue is presumptively valid, and a party moving to transfer venue bears the burden of demonstrating that the plaintiff's chosen venue is improper. (Battaglia Enterprises, Inc. v. Superior C...

Excerpt: ...which states, in the pertinent part: “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” The parties can stipulate to permit an amendment, but they still need a Court order before an amended pleading may be validly filed. Shoul...

Excerpt: ... court days of service of this order. A final proposed judgment is to be presented to the Court within ten (10) court days of service of this order. Explanation: Pursuant to the Stipulation and Order filed June 20, 2019, this case is set for several matters pending from previous hearings before this Court. For the reasons stated below, only the Order to Show Cause re: Dismissal for Failure to Join Indispensable Parties (and the Order to Show Caus...

Excerpt: ... days of the date of service of this order. Explanation: Defendants argue that plaintiff expressly assumed the risk of being hit by a foul ball when he purchased his ticket for the game. The ticket contained an express release which stated, “Holder of this ticket assumes all risks incidental to the game of baseball, including specifically (but not exclusively) the danger of being injured by thrown or batted balls. Holder agrees that the Fresno ...

Excerpt: ...iff to call for oral argument. If defendant does not call for oral argument, this Tentative Ruling will be adopted without continuance. Explanation: Proof of Service Issue: One of the arguments plaintiff made was that the motion was not timely served. The original proof of service attached to the Notice of Motion attempts to indicate personal service of the papers on May 28, 2019 – which would be two days before the 75‐day deadline given in C...

Excerpt: ...ken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) In other words, to secure relief, the moving party must present a reasonable excuse as to why she was prevented from presenting her case to the court. (See Wilcox v. Ford (1988) 206 Cal.App.3d 1170, 1176; Guenter v. Lomas & Nettleton Co. (198...

Excerpt: ...rtions of the First Amended Complaint Tentative Ruling: To sustain the demurrer of the City of Coalinga (“City”) in its entirety, with leave to amend as to the second cause of action, only. To grant City's motion to strike, without leave to amend. To sustain the demurrer of defendants Marissa Trejo, Shannon Jensen, Vivian Sauceda, and Jasmin Bains (“individual defendants”) in its entirety, with leave to amend. To grant the individual defe...

Excerpt: ...ts in a string as to why the Fifth Cause of Action in the First Amended Complaint is improper. To the extent possible, the Court addresses the grounds listed in the notice, but notes that the manner of presentation creates confusion. 2. Statute of Limitations This is a basis for a general demurrer, as where the bar of the statute of limitations appears from the face of the pleading, it fails to state facts sufficient to allege a valid cause of ac...

Excerpt: ...Peel | Garcia 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.) And courts may impose a terminating sanction for misuse of the discovery process. (Code Civ. Proc., § 2023.030.) But before imposing a terminating sanction, courts should usually grant lesser sanctions: e.g., orders staying the action until defen...

Excerpt: ...scovery Act provides that a personal service of a deposition subpoena may command a third party deponent to produce business records on request. (Code Civ. Proc., § 2020.020, subd. (c).) Code of Civil Procedure section 1987.1 provides, in relevant part: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things . . . at the taking of a deposition, the court, upo...

Excerpt: ...ule is codified at Code of Civil Procedure section 1856. It is a rule of evidence, not of pleading, and requires evidence before it can apply—that there be proof that a writing was intended to be the final expression of an agreement. The Cross‐Complaint states that it was not and that there were oral and written parts of the “Joint Venture” agreement. (Cross‐Complaint, ¶ 13). There are also several exceptions or situations where the do...

Excerpt: ...to submit to this Court, within five (5) days of service of the minute order, a proposed judgment consistent with this Court's summary judgment ruling. Explanation: Summary Judgment A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the ini...

Excerpt: ... order. Explanation: Standing Here, defendant JPMorgan Chase Bank argues that plaintiff lacks standing to challenge the foreclosure proceedings because he does not (and cannot) allege that he has a relationship with Chase. In support of this argument, defendant JPMorgan Chase Bank cites to the following cases: (1) Mega Life & Health Ins. Co. v. Super. Ct. (Mega Life) (2009) 172 Cal.App.4th 1522, 1528‐32; (2) Hatchwell v. Blue Shield of Cal. (Ha...

Excerpt: ...ropriate procedure for determining the truth of disputed facts.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113–114, internal citations and quotation marks omitted.) It is error to sustain a demurrer where plaintiff “has stated a cause of action under any possible legal theory. In assessing the sufficiency of a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implicati...

Excerpt: ...nation: Respondent seeks leave to amend its answer to assert a fifth affirmative defense, that being a statute of limitations defense. Judicial policy favors resolution of cases on the merits, and thus the court's discretion as to allowing amendments will usually be exercised in favor of permitting amendments. This policy is so strong, that denial of a request to amend is rarely justified, particularly where “the motion to amend is timely made ...

Excerpt: ... 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 prejudice the opposing party. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 (superseded by statute on other grounds as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64).) Defendants make their motion under Code of Civil Procedure §473, subdivision (b)...

Excerpt: ... Explanation: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . . .” (Code Civ. Proc. § 473(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The motio...

Excerpt: ...filed motions to quash service of summons on the grounds that the manner of service actually performed was not “personal service” in accordance with Code of Civil Procedure §415.10, et seq. According to the representations by Plaintiff in her opposition, the summons and complaint were left in envelopes with the secretary at the office of Defendant School District. Defendants claim the envelopes were unmarked, but Plaintiff has provided photo...

Excerpt: ...s asserted against Nakidi in this lawsuit and that Plaintiff has not made a sufficient showing that Nakidi waived the right to arbitrate the agreement or that "there is a possibility of conflicting rulings on a common issue of law or fact" if the court orders arbitration of the claims against Nakidi but not the claims against Defendant Teamsoft Technologies, LLC ("Teamsoft") in this action. (See C.C.P. § 1281.2; 9 U.S.C. § 2.) A. Existence and ...

Excerpt: ...motion for leave to file a First Amended Complaint. Plaintiff seeks (1) to add a new Doe Defendant, Laboratory Corporation of America, as Plaintiff's joint employer; and (2) to add a cause of action for failure to hire Plaintiff in violation of FEHA. The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a motion to amend is made in a timely fashion, a...

Excerpt: ...end. To sustain the general demurrer to the third cause of action with leave to amend. To overrule the demurrer to the fourth cause of action. To overrule the special demurrers. To grant the motion to strike enhanced remedies under the Elder Abuse Act with leave to amend. To grant the motion to strike treble damages with leave to amend. To deny the motions to strike in all other respects. A Third Amended Complaint shall be filed and served within...

Excerpt: ...d. 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 ci...

Excerpt: ...ourt days of this order. 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 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...

Excerpt: ...urn to Department 503 on September 24, 2019, at 3:30 p.m., for the Court to assign an arbitrator. Explanation: 1. Limitations Period with Tolling Defense counsel is incorrect with respect to the statute of limitations and Code of Civil Procedure section 1281.12. Tolling adds to the time period to seek arbitration. It means that the statute of limitations does not run during the tolled period. The date on which plaintiff contends that he was termi...

Excerpt: ... by law, court records are presumed to be open.” Subpart (d) requires very specific findings by the Court prior to allowing a record filed in connection with a non‐discovery dispute to be sealed. Same states: “The Court may order that a record be filed under seal only if it expressly find facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest support...

Excerpt: ...sic fraud or mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576‐578; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300; Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97.) With regard to extrinsic mistake however, relief will be denied if the complaining party's negligence permitted the mistake to occur. Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473; Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47; see also Wils...

Excerpt: ...earing is required, the court will consider increasing the sanctions awarded to include plaintiff's counsel's costs/fees for appearance. All evidentiary objections are overruled. Explanation: A party bringing a motion to commence discovery into a plaintiff's sexual history must proceed by noticed motion. The moving party must provide evidence of a good faith attempt to resolve the matter informally, and must establish both: (1) specific facts sho...

Excerpt: ...nforceable. The petitioner (seeking to compel arbitration) bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence. The party claiming a defense bears the same burden as to the defense. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413‐ 414.) The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement. (Engalla v. P...

Excerpt: ...Defendants Wildwood Packing and Cooling, Inc. and Luke Woods to Continue Trial in Case Number 15CECG03406. Tentative Ruling: To deny the motion for summary judgment or, in the alternative, for summary adjudication in Case Number 15CECG03406. To grant the motion for consolidation. Case Number 15CECG03406 is thereby ordered consolidated with Case Number 18CECG03169 for all purposes. All trial dates and associated discovery deadlines are thereby ord...

Excerpt: ...order. Explanation: This is a legal malpractice action. Plaintiff alleges that he retained defendants Nicholas Wagner and Wagner, Jones, Kopfman & Artenian to represent him in a wrongful discharge matter filed in federal court against his employer. In his causes of action for legal malpractice and breach of fiduciary duty, plaintiff alleges that SK Foods filed for bankruptcy, and defendants negligently represented him in that they (1) failed to p...

Excerpt: ...ute a cause of action against that defendant. The grounds for the motion must appear on the face of the challenged pleading or from matters that may be judicially noticed. The trial court must accept as true all material facts properly pleaded[.]” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219, internal citations and quotation marks omitted.) “A dangerous condition exists...

Excerpt: ...seph A. West to pay the sum of $1,030 in sanctions to Cochran, Davis & Associates within 30 days of the clerk's service of this order. Explanation: Special Interrogatories, Set Two were served on plaintiff by mail on March 29, 2019. (Hansen Decl. ¶ 1; Ex. A.) Responses were mailed August 1, 2019, after this motion was filed June 17, 2019. (West Decl. ¶ 2.) The motion to compel the initial responses to the form interrogatories is moot, save for ...

Excerpt: ...nce of justice, and on any terms as may be proper, allow a party to amend any pleading ... ” (Code Civ. Proc. § 473(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Plaintiffs have largely complied with Code of Civil pro...

Excerpt: ...tion to strike punitive damage allegations with leave to amend. A Fourth Amended Complaint must be filed and served within 10 days of the clerk's service of this minute order. New allegations must be in boldface type font. Explanation: Demurrer: First Cause of Action – Breach of Insurance Contract CACI No. 2300 sets forth three elements of a claim for breach of an insurance contract by nonpayment: (1) plaintiff suffered a loss, which was covere...

Excerpt: ...order. Explanation: Defendant Certain Underwriters at Lloyd's London (hereinafter “Lloyd's”) has met its burden of presenting evidence showing that it is entitled to summary judgment of the two remaining causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing. Plaintiff has alleged that defendant breached the insurance contract it issued to plaintiff when it denied coverage for the accident th...

Excerpt: ...eing stricken under Code of Civil Procedure section 435. It appears to be appropriate to raise this issue at the pleading stage via a motion to strike. In Reply defendant cited to Interactive Multimedia Artists, Inc. v. Superior Court (Allstate Ins. Co.) (1998) 62 Cal.App.4th 1546 for this issue. However, there the motion to strike was brought as a motion in limine (Id. at p. 1550), so it was not done at the pleading stage. However, in Nationwide...

Excerpt: ...rcing a judgment. . . .” The court shall make an order allowing or disallowing the costs “to the extent justified under the circumstances.” (Code Civ. Proc., § 685.040, subd. (c).) Code of Civil Procedure section 685.070, subdivision (a), authorizes recovery of five categories of statutory costs for enforcing a judgment. Section 685.070, subdivision (b) provides, in relevant part: “Before the judgment is fully satisfied but not later tha...

Excerpt: ...or legal] cause between the breach and (4) the plaintiff's injury.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.) Whether a duty exists is a question of law. (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128.) “[E]ach person has a duty to use ordinary care and is liable for injuries caused by his [or her] failure to exercise reasonable care in the circumstances. (Parsons v. Crown Disposal ...

Excerpt: ...judgment order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiff cannot establish one or more elements of his 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 of one or more material facts exists—and this mus...

Excerpt: ...n: Attorney's Fees While the fee awards should be fully compensatory, the trial court's role is not to simply rubber stamp the defendant's request. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 361.) Rather, the court must ascertain whether the amount sought is reasonable. (Robertson v. Rodriguez, supra, 36 Cal.App.4th at p. 361.) The party seeking attorney's fees has the burden of e...

Excerpt: ...be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. §473(b).) “Where a default is entered because defendant has relied upon a codefendant or other interested party to defend, the question is whether the defendant was reasonably justified under the circumstances in ...

Excerpt: ...demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, though “allegations of a complaint must be accepted as true for purposes of demurrer, the facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the...

Excerpt: ... of the class. However, the court intends to reduce the amount of the class representative's incentive compensation to $6,500. The plaintiffs shall provide an order for final approval of the settlement and judgment within 10 days of the date of service of this order. If oral argument is requested, it will be heard on August 7, 2019 at 3:30 p.m. in Department 502. Explanation: Certification of the Class: The court has already granted provisional c...

Excerpt: ...rprises, Inc. dba Triangle Truck Center for Attorney's Fees; and (5) By Morris and Lucille Srabian for Attorney's Fees. Tentative Ruling: To continue Morris and Lucille Srabian's (“the Srabians'”) Motion to Strike and/or Tax Costs of Twin Falls Enterprises, Inc. dba Triangle Truck Center (Triangle Truck) to Wednesday, August 28, 2019, at 3:30 p.m. in Department 503. Triangle Truck may file a supplemental opposition no later than August 14, 20...

Excerpt: ...All other proceedings in the case will be stayed until the trustee has been added. Explanation: Defendant moves to dismiss the action on the ground that plaintiff has no standing to pursue his claims because his claims should have been listed as assets of his Chapter 7 bankruptcy estate. “Causes of action that exist prior to a bankruptcy filing become assets of the bankruptcy estate. See 11 U.S.C. § 541(a)(1); Sierra Switchboard Co. v. Westing...

Excerpt: ...h was a proximate or legal cause of injuries suffered by the plaintiff.” (United States Liab. Ins. Co. v. Haidinger– Hayes, Inc. (1970) 1 Cal.3d 586, 594.) Likewise, in order to establish premises liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205. Defendant's motion is based solely on the theory that property owners are not liable for damages cause...

Excerpt: ...l be filed with the Court before the writ will be issued. Explanation: Attachment is a prejudgment remedy that allows a creditor to have a lien on the debtor's assets until final adjudication of the claim sued upon. (Code Civ. Proc., §481.010, et seq.) A creditor must follow statutory guidelines in applying for the attachment and establish a prima facie claim. (Lorber Industries of Calif. v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) An a...

Excerpt: ...Hospital & Medical Center's the motion to strike the fourth cause action and the prayer for relief for civil penalties pursuant to Health & Safety Code § 7158.3(b)(4), without leave to amend. (Code Civ. Proc. § 436(a).) Defendants shall file their answers to the Fifth Amended Complaint within 10 days of service of the order by the clerk. Explanation: Initially the court notes that Fresno Community Hospital Medical Center (“Community Hospital�...

Excerpt: ...t to state a cause of action and uncertainty, without leave to amend. (Code Civ. Proc. § 430.10, subd.'s (e), (f).) Defendants shall serve and file a judgment dismissing the action as to them within 10 days. If oral argument is requested, it will be heard on August 7, 2019 at 3:30 p.m. in Department 501. Explanation: The plaintiff's second amended complaint appears to be premised on the theory that MERS had no standing to assign the note and dee...

Excerpt: ...order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: The SAC alleges the following causes of action: (1) intentional tort against the State of California (for failure to provide health insurance as required by law); (2) intentional tort against SIEU Local 2015 (for failure to provide health insurance); (3) intentional tort against Department of Motor Vehicles (because driver of the vehicle that caused plai...

Excerpt: ...rer to the seventh cause of action without leave to amend. To grant the motion to strike specifications 4‐11, with leave to amend. To strike the first cause of action. To deny the motion to strike the second cause of action and specifications 1‐3. Plaintiff shall file and serve a First Amended Complaint within 15 days of the clerk's service of this minute order. New allegations shall be in bold type font. Explanation: Demurrer: “ ‘We trea...

Excerpt: ...ays of the date of this order. All new allegations shall be in boldface. Explanation: Under Code of Civil Procedure section 430.10, “The party against whom a complaint or cross‐complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: .. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As...

Excerpt: ...ourt, within seven (7) days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Background On December 24, 2018, Plaintiff, representing himself, filed a form complaint, alleging a cause of action for motor vehicle negligence. As can best be determined, he was involved in a motor vehicle collision on December 24, 2015 with a vehicle driven by Cipriano Espinosa on eastbound Highway...

Excerpt: ...as moot. Cross‐Defendant J. Stanley Teixeira is directed to submit to this court, within seven (7) days of service of the minute order, a proposed judgment dismissing the third‐party cross‐complaint of Oscar Luna. Explanation: The third‐party cross‐complaint filed by Cross‐Complainant Oscar Luna (“Luna”) raises causes of action: (1) abuse of process, (2) intentional infliction of emotional distress, (3) negligent infliction of emo...

Excerpt: ... the reply brief, is denied without prejudice. Explanation: Plaintiff Armida Gonzales has filed this motion for leave to file a First Amended Complaint. Plaintiff seeks to add causes of action for vicarious liability for the tortious acts and omissions of an employee and/or independent contractors, violation of a mandatory duty, and dangerous condition of public property against Defendants City of Fresno and Fresno Housing Authority (FHA). The FA...

Excerpt: ...esponding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible. If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propoundi...

Excerpt: ...hus, it is somewhat unclear exactly what the legal or factual basis for the motion is. Nevertheless, it appears that defendant is moving for relief from the default under Code of Civil Procedure section 473, subdivision (b), which provides for relief from defaults where the default was entered as a result of mistake, surprise, inadvertence, or excusable neglect. “Where the mistake is excusable and the party seeking relief has been diligent, cou...

Excerpt: ...e statement, then plaintiffs' separate statement shall be filed by August 8, 2019, and opposing parties' responsive separate statement shall be filed by August 21, 2019. Explanation: Plaintiffs move to compel nonparty County of Fresno Public Defender to produce documents responsive to seven requests for production of documents contained in a deposition subpoena. However, plaintiffs have not filed the required separate statement, which the court b...

Excerpt: ... 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: Defendant Saelee demurs to the first cause of action for violation of the Unruh Act, contending that the Unruh Act only applies to “business establishments” and not individuals, and therefore plaintiff cannot state a claim against her. However, defendant has failed to show that plaintiff c...

Excerpt: ...laint show the cause of action is barred by the statute of limitations, a general demurrer lies. (It is not ground for special demurrer.) (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.) Various statutes of limitations apply here depending on the cause of action, including the new causes of action in the proposed amended complaint. Breach of any oral agreements (such as the "handshake" agreement alleged in Complaint ¶ ...

Excerpt: ...be answered will run from service by the clerk of the minute order plus 5 days for service via mail. (CCP § 1013.) Explanation: Demurrer to a Common Count A common count is not usually subject to a general demurrer for failure to state sufficient facts given that it is not a specific cause of action. “[R]ather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that aris...

Excerpt: ...n boldface. If oral argument is requested, it will be heard on July 31, 2019 at 3:30 p.m. in Department 502. Explanation: “ ‘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 presenti...

Excerpt: ... Civ. Proc. §§ 435, 436.) Plaintiff shall serve and file her first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: First, it is somewhat unclear exactly which causes of action plaintiff is actually attempting to allege. The form complaint has boxes checked for breach of contract and personal injury, as well as an attached claim labeled “negligent inflictio...

Excerpt: ...measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties . . ..” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are "allowable as costs under Section 1032" when they are "authorized by" either "Contract," "Statute," or "Law." Civil Code section 1717 provides, in ...

Excerpt: ...Fief, who shall redact and produce the application to plaintiff's counsel as set forth below. In the event that oral argument is requested it will be held on Wednesday, July 31, 2019 at 3:30 p.m. in Dept. 502. Explanation: Plaintiff issued a subpoena to CalPERS seeking the following records: A copy of any and all applications for disability retirement submitted by Gary L. Fief with CaIPERS, and the decision of the Administrative Law Judge to Gary...

Excerpt: ...tion until after the twelfth, thirteenth and fourteenth causes of action have been fully resolved in this court. Explanation: Plaintiffs in this action filed a complaint alleging 15 causes of action arising out of two agreements executed with defendants executed on September 20, 2017. Under the Asset Purchase Agreement ("APA"), Defendants were to timely file applications required to assign Plaintiffs' DHCS certifications and were to u...

Excerpt: ...vidence is provided. Plaintiff does point to the provision within the settlement agreement authorizing attorney's fees and costs, but no evidence is provided as to the nature and value of the services rendered by plaintiff's attorney, Mr. Thornton. Such is required before attorney's fees can be awarded. (See City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784 [The party seeking attorney's fees has the burden of establishing entitleme...

Excerpt: ...ervice via mail. (CCP § 1013) Finally, the Third Amended Complaint must be served on all named Defendants on the grounds that the defaults have been opened. (Engebretson & Co., Inc. v. Harrison (1981) 125 Cal.App.3d 436, 442‐443) Explanation: Background This action concerns property located at 536 E. Street, Fresno. It is a 2 bedroom, one bathroom house consisting of 472 sq. feet. On December 27, 2017, the Plaintiffs filed a verified Complaint...

Excerpt: ...an action is subject to the anti‐ SLAPP statute: first, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, by demonstrating that the facts underlying the plaintiff's complaint fit one of the categories set forth in section 425.16, subdivision (e); if the court finds that such a showing has been made, it then determines whether the plaintiff has dem...

Excerpt: ...which the aggrieved person would have worked but for the alleged unlawful practice; however, if the defendant is not found within any of these counties, the action may be brought within the county of defendant's residence or principal office. (Gov't. Code § 12965, subd. (b).) In Ford Motor Credit Co. v. Superior Court (1996) 50 Cal.App.4th 306 the Appellate Court held that a change of venue is mandatory under Government Code section 12965, s...

Excerpt: ...to September 3, 2019. Opposition to both motions must be filed and served no later than 14 calendar days before the new date of the hearing. Any reply must be filed and no later than 5 calendar days before the hearing. Explanation: There is a split of authority as to whether the court has discretion to deny a continuance based on the party's lack of diligence in discovering facts earlier. Some cases have held that, if the party seeking a cont...

Excerpt: ...ties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81; see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) § 7:3 [“The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether cert...

Excerpt: ...typeset. Explanation: Defendant Eskander Yousseff Eskander has moved to strike the requests for punitive damages from the complaint filed by Plaintiffs Brandon Griffith and Dareen Malaythong, a married couple. Plaintiffs have filed claims for negligence per se/general negligence and loss of consortium stemming from an alleged hit‐and‐run accident. Defendant contends that punitive damages are not available for a claim for negligence and that t...

Excerpt: ...o file a First Amended Complaint. The proposed First Amended Complaint contains some additions and deletions of general allegations, as well as a Fifth Cause of Action for Breach of Contract. The allegations of the proposed Fifth Cause of Action appear to concern allegations in Defendant's Cross‐Complaint. Plaintiff has filed a supporting declaration by counsel detailing that the facts supporting the Fifth Cause of Action were only revealed dur...

Excerpt: ...Celestino Perales's cross‐complaint. (Code Civ. Proc. §473c(c); Cal. Rules of Court, rule 3.1350(b).) Explanation: Summary adjudication As an initial matter, the Court will not summarily adjudicate any issues or causes of action, as the moving papers fail to comply with California Rules of Court, rule 3.1350(b). Notice of motion Defendants argue that service on counsel on April 19, 2019, made by handserving copies of the moving papers after th...

Excerpt: ...ttorney's fees in the amount of $1,260 and costs in the amount of $60. To deny the request for sanctions pursuant to Code of Civil Procedure section 128.7. Explanation: Code of Civil Procedure Section 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court . . . for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms...

Excerpt: ...the record, and $2,457.85 for the transcript of the arbitration hearing. The appeals court decision awarded Castaneda his costs on the appeal. The right to recover costs on appeal is governed by Cal. Rules of Court, rule 8.278, which sets forth the recoverable costs on appeal, if reasonable: (1) A party may recover only the following costs, if reasonable: (A) Filing fees; (B) The amount the party paid for any portion of the record, whether an ori...

Excerpt: ...ive class actions are provisionally designated complex upon filing. California Rules of Court, Rule 3.400(c)(6). Subpart (b) of that rule states “In deciding whether an action is a complex case under (a), the court must consider, among other things, whether the action is likely to involve: (1) Numerous pretrial motions raising difficult or novel legal issues that will be time‐consuming to resolve; (2) Management of a large number of witnesses...

Excerpt: ...roc. § 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 a 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 tax costs may be...

Excerpt: ... “(a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;]” or “(b) [s]trike 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 tru...

Excerpt: ...ourt's satisfaction that: (1) they have a “substantial interest in the action as a whole”; and (2) their health is “such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., § 36, subds. (a), (c)(2).) The court has discretion to determine the extent of moving party's interest and to find as a matter of fact the risk posed of that party's death or incapacity if tr...

Excerpt: ...f Court, Rule 3.1350(b).) This action was filed by plaintiff against Wells Fargo only, contending that plaintiff is the only entity with right to the funds on deposit with Wells Fargo in accounts XXXX1634, 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‐defendants. Having no i...

Excerpt: ...ance with Civil Code §§ 8204 and 8410; whether the Mechanic's Lien was properly served in compliance with Civil Code § 8416(a)(7) and thus, whether the Mechanic's Lien is valid. See Civil Code § 8416(e). See the Declaration of Carlos Colima and Exhibits 26 and 27 attached to the Plaintiff's Compendium of Evidence. The Plaintiff has not met its burden pursuant to CCP 437c(p)(1) as the moving party. As a result, there is no need to address the ...

Excerpt: ...irm in the amount of $953.40. A proposed order and judgment reflecting the above is to be submitted forthwith. The proposed order lodged on June 3, 2019 is acceptable if paragraph 10 is removed and replaced by a new paragraph 10 which describes the class members (CRC 3.771(a)), changes the amount of costs, omits the first paragraph of the judgment, and modifies the last paragraph to state: Pursuant to California Code of Civil Procedure section 66...

Excerpt: ...ore parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐ obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6(a)(1), emphasis added.) “A determination by the court that the settlement was made in good...

Excerpt: ...en of proving (1) that his claim is one upon which an attachment may be issued, and (2) the probable validity of such claim.'). ‘Generally, an order of attachment may be issued only in an action for a claim of money which is based upon an express or implied contract where the total amount of such claim is a fixed or “readily ascertainable” amount not less than $500.00.' [Citation.]” (VFS Financing, Inc. v. CHF Express, LLC (C.D. Cal. 2009...