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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...tiff has now submitted competent evidence proving up his actual damages of $70,000, which is substantially less than the amount he sought in prior applications, he has not shown that he is entitled to prejudgment interest at a rate of 10% per annum from the date of formation of the contract. Plaintiff's evidence shows that he invested $70,000 into the partnership, with $55,000 paid as an initial capital investment when the partnership agreement w...

Excerpt: ...mpliance is not required. Any First Amended Complaint must be filed within ten (10) court days of this order and any new or changed allegations are to be set forth in boldface typeset. To deny the request for attorney's fees raised by the Defendants in their reply brief. 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 i...

Excerpt: ...Explanation: Demurrer: A demurrer under section 430.10, subdivision (c), is essentially a plea in abatement. “A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action. In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only whe...

Excerpt: ...h the applicable provisions of the Code of Civil Procedure. Should Plaintiff file a motion to continue trial, the costs of such a filing shall be reimbursed by Defendants. Explanation: Defendants have filed a motion for leave to file a cross‐complaint against codefendant Beyond Tech Solutions, Inc. (“Beyond Tech”). Defendants assert that they believe Beyond Tech to be responsible for some portion of the accident at issue in this case. They ...

Excerpt: ...s shall be filed in connection with the summary judgment motion. Defendants' motion for summary judgment will be heard on August 15, 2019, at 3:30 p.m. in Dept. 403. Explanation: Due to the fact that plaintiff's counsel failed to file plaintiff's opposition brief and supporting declarations, defendants' motion for summary judgment was granted without considering the opposition. Plaintiff's counsel, Steven Glickman, explains that he mistakenly bel...

Excerpt: ...equires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. [Citations.] ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their...

Excerpt: ...es this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (CCP § 437(c), subdivision(p)(2).) In a summary judgment motion, the pleadings determine the scope of relevant issues. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) A defendant need only “negate plaintiff's theories of liability a...

Excerpt: ...made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … resulting … default entered by the clerk against his or her client, unless the court finds that the default … was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (CCP §473(b).) The court is a...

Excerpt: ...ritten agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: …. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same tran...

Excerpt: ...court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. Such order shall not be considered to be a determination on the merits o...

Excerpt: ... (c), and 2023.030, subdivision(d)(3) for Plaintiff's failure to comply with a previous order to produce responses, issued on April 16, 2019. Section 2023.030 provides: To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging...

Excerpt: ...murrer are defective, as they fail to give adequate notice of the specific ground relied upon in the demurrer or the causes of action being challenged. Under California Rules of Court, Rule 3.1320, subdivision (a), “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross‐complaint, or answer, or to specified causes of action or defenses.” Statutory grounds for demurrer include...

Excerpt: ...Explanation: On May 1, 2019, Defendants SPOC and Dr. Taylor filed a motion for summary judgment. It was served via hand delivery on the other parties. A statement of nonopposition was filed by the Plaintiff on July 3, 2019. It has been held that the standard of care against which the acts of a physician and other health care providers are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpr...

Excerpt: ...ant. To tax costs in the amount of $10,240. To award Pacific Plastics costs in the amount of $5,316.78. Explanation: 1. Pacific Plastics' Motion to Strike Pacific Plastics argues that Western Ag is not entitled to costs. First, it argues that costs are inappropriate because Western Ag is not the “prevailing party.” However, Western Ag was a cross‐defendant in whose favor a dismissal of the cross‐complaint was entered, and as such, it is a...

Excerpt: ...ement entered into between it and Plaintiffs. According to the applicable statute, in such circumstances, the moving party must serve the notice, application, and proposed order by certified mail, return receipt requested, or by personal service. (Code Civ. Pro., §877.6, subd.(a)(2).) The proof of service must then be filed with the Court. (Ibid.) According to the proof of service attached to the Notice of Motion, the papers were served via regu...

Excerpt: ...n, as herein noted: ∙ Plaintiff has not signed box 6, the declaration of mailing, from mandatory form CIV‐100. ∙ In the Proposed Judgment, the “Judgment in the Prior Action” is listed as for $74,387.88 in paragraph 1, but only $4,905.66 in paragraph 5. Further, the amount of the judgment listed on the CIV‐100 form does not appear anywhere in the Proposed Judgment. ∙ The interest recorded in the CIV‐100 form ($10,414.18) appears no...

Excerpt: ...gs,” and decide the Petition on the “pleadings alone and without further unnecessary litigation.” (Petitioners' Memorandum of Points and Authorities at 3:9‐10, 4:22‐23, 9:16‐17.) California is a code pleading state. The Code of Civil Procedure provides that pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court. (Code Civ. Proc., § 420.) The Code provides that the pl...

Excerpt: ...eview and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” The agency in question is the Labor Workforce Development Agency (“LWDA”). 2. Complex Case The law and motion in this matter is expected to be formidable, as in most class actions, even if it is resolved by settlement. If the matter goes to trial, ther...

Excerpt: ... the corporate designee need acquire all information available to the company, through company sources, not outside counsel, with a further four hours for deposition. To order that deposition be taken in Fresno or that defendant pay the fees of plaintiff's attorney for travel time to attend elsewhere, in addition to said counsel's travel costs, said deposition to be completed by August 1, 2019. To overrule all objections to the PMK Topics 1 throu...

Excerpt: ...ation: 1. CLASS CERTIFICATION a. Standards An agreement of the parties 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 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for ...

Excerpt: ...the motion to set aside default of defendant Juan Miramontes, with said defendant granted 20 days' leave to file his responsive pleading to the complaint. The time in which said pleading can be filed will run from service by the clerk of the minute order. Explanation: Motion to Set Aside Default The motion was timely filed. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 901 [interpreting the six‐month time limit in section 473 to equal 182 days].)...

Excerpt: ...ining that its settlement with plaintiffs is in good faith. (Code Civ. Proc. § 877.6.) Explanation: Under Code of Civil Procedure section 877.6, “[a]ny party to an action in which it is alleged that two or more 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‐...

Excerpt: ...n. On February 16, 2017, Bravo and Defendant Ghasan Ali Ahmed entered into a contract whereby Bravo was to construct a home on property located at 6640 W. Yale Avenue, Fresno, CA. See Exhibit A attached to the verified original complaint. The price was $270,000. Ahmed was to pay 10% down‐‐$27,000. However, it is alleged that he insisted on paying $30,000. At some point, it is alleged that Ghasan agreed to pay the subcontractors and materials ...

Excerpt: ...und that plaintiffs' amendment to add him in place of a Doe defendant is ineffective and thus plaintiffs' claims against him are barred by the twoyear statute of limitations. (Code Civ. Proc. § 335.1.) He contends that plaintiffs have known his identity and role in the accident since the filing of the original complaint, and therefore their amendment to add him as a defendant does not “relate back” to the date of filing of the original compl...

Excerpt: ...vice of process or in any other manner in compliance with CCP § 416.10. Explanation: On February 26, 2018, Plaintiffs, in pro per, filed a complaint alleging that Defendant West Coast Towing unlawfully towed their vehicle at the improper request of Defendant Avery Apartment. They further assert that property was missing from the vehicle upon its retrieval. On March 23, 2018, an Answer was filed by Avery Apartment. On March 28, 2018 and on August...

Excerpt: ...ter the accountant's investigation was complete. However, in the complaint, plaintiffs alleged that they are seeking “no less than $500,000”, which is considerably less than what plaintiffs seek now. Thus, the requested default judgment appears to violate the rule against seeking damages in a default judgment that exceed the amount pled in the complaint. “An entry of a default judgment which exceeds the relief requested is an act beyond the...

Excerpt: ...eading 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.) Defendant demurs to each cause of action in Plaintiff's complaint on the grounds that: ∙ The address a...

Excerpt: ...pects. In sum, the costs are reduced from $30,065.77 to $28,650.06, a total reduction of $1,414.94. Explanation: A motion to strike or tax costs must be directed to particular items in the Memorandum of Costs and state why each is objectionable. Additionally, the challenged items must be referred to in the same order in which they appear in the Memorandum of Costs. (Cal. R.Court 3.1700, subd.(b)(2).) Where the reasonableness of a particular item ...

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

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: ...al.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.) Cause of Action Under Civil Code §3342. Civil Code §3342 provides that the “owner of any dog is liable for the damages suffered by the dog while in a public place.” Defendant argues that the First Amended Compl...

Excerpt: ...ition and complaint may be amended will run from service of the order by the clerk. Explanation: In the fifth cause of action petitioner seeks a writ of mandate to compel the County of Fresno to comply with the Government Code § 8899.50(b) requirement to administer its programs and activities relating to housing and community development in a manner to affirmatively further fair housing and to take no action that is materially inconsistent with ...

Excerpt: ...t. 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 judicially noticeable...

Excerpt: ...ure section 685.040 provides: The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the ju...

Excerpt: ...n, 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) actual loss or damage resulting from the professional's negligence.” [Citation.]'” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) “Whe...

Excerpt: ...urgery Center's demurrer to the complaint. (Code Civ. Proc. § 430.10, subd. (e).) To order North Point to file its answer to the complaint within 10 days of the date of service of this order. Explanation: Trial Preference Motion: Under Code of Civil Procedure 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 follow...

Excerpt: ...9;irrelevant, false or improper' matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) With respect to punitive damage allegations, mere legal conclusions of oppre...

Excerpt: ...n within 10 days of service of this minute order by the clerk. (Code Civ. Proc. §387(d).) Explanation: A suspended corporation may not sue or defend itself against a lawsuit. (Rev. & Tax Code §23301.) “The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: (A) A provision of law confers an unconditional right to intervene. (B) The person seeking ...

Excerpt: ...e Company, the workers compensation carrier for Mendez's employer served a joint statutory offer to compromise. They sought $990,000 in full satisfaction of Mendez's claims and that of the insurer. The offer stated that the funds “shall be subsequently divided by Plaintiffs upon receipt. Defendants argue that the offer was not made in “good faith” because the workers compensation carrier was seeking only $65,489.37 for reimbursement of the ...

Excerpt: ...ays of the date of service 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 un...

Excerpt: ...time of the assignment and therefore had no right to recover. The case cited for that proposition is Doser v. Middlesex Mutual Ins. Co. (1980) 101 Cal. App. 3d 883, 890. In Doser, assignees of an estate's cause of action for bad faith of an insurance contract. The alleged bad faith arose out of the insurer's alleged failure to settle a wrongful death claim brought by the decedent's heirs. The estate administrator executed an assignment of the cla...

Excerpt: ...rt's summary judgment order. Plaintiff's objections are overruled. The court declines to rule on all other objections as none are material to the disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) Explanation: A defendant moving for summary judgment or adjudication has the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Ca...

Excerpt: ...der, a proposed judgment consistent with the court's summary judgment order. Explanation: Defendants Saint Agnes and Dr. Simons have both moved for summary judgment as to the entire complaint on the grounds that plaintiffs cannot prevail on their negligence and loss of consortium claims because, according to defendant's expert witness, defendants did not breach the applicable standard of care when providing care and treatment for plaintiff, a...

Excerpt: ...osition to this motion appears in the Court's files. Code of Civil Procedure section 387 allows a non‐party, “upon timely application” to intervene in an action where “(A) a provision of law confers an unconditional right to intervene” or “(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may...

Excerpt: ...d with a public entity has been rejected. If the public entity gives written notice of rejection of the claim in accordance with section 913, the statute of limitations is six months from the day such notice is personally delivered or deposited in the mail. If such notice is not given in compliance with section 913, the statute of limitations is two years from accrual of the cause of action.” (Dowell v. County of Contra Costa (1985) 173 Cal.App...

Excerpt: ...may be imposed: 1) an enactment must impose a mandatory duty, not a discretionary or permissive one; 2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting §815.6 as a basis for liability; and 3) breach of the mandatory duty must be a proximate cause of the injury suffered. (State of California v. Superior Court (1984) 150 Cal.App.3d 848, 854; County of Los Angeles v. Superior Court (2002) 102 ...

Excerpt: ...Jacob, LLP, within 30 days after service of this order. Explanation: “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. §2025.420(b).) Such a protective order may include directions that all or certain of the writings or tangible things designa...

Excerpt: ...acts. (Code Civ. Proc. § 464; Flood v. Simpson (1975) 45 Cal.App.3d 644, 647.) Explanation: While leave to amend a pleading is generally liberally granted, here it appears that plaintiff is actually seeking to supplement his first amended complaint with new facts and new causes of action based on events that occurred after the filing of the prior complaints. Thus, plaintiff is actually seeking to file a supplemental complaint, not an amended com...

Excerpt: ...3.020.) Defendant shall pay sanctions to plaintiff within 30 days of the date of service of this order. Explanation: Defendant moves to compel plaintiff to provide further responses and documents pursuant to the document request served as part of the deposition notice to plaintiff. (Code Civ. Proc., §§ 2025.280, subd. (a); 2025.450, subd. (a).) Defendant contends that plaintiff failed to comply with the document request served with the depositi...

Excerpt: ...at the action is moot. Resolution of this motion requires determining whether this is a reverse validation action and, if so, can the court still afford the parties effective relief despite the project being long completed. An action under Code of Civil Procedure section 860, et seq., to either validate or challenge an ordinance or resolution, is recognized as a proceeding “in rem.” (Community Youth Athletic Center v. City of Nat. City (2009)...

Excerpt: ...ion subpoena duces tecum may be made by a party or the non‐party witness. (Civ. Proc. §1987.1.) A motion to quash production of documents must be accompanied by a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled. (CRC 3.1345, subpara. (a)(5).) That provision also includes the format requirements for a separate statement, which requires that ea...

Excerpt: ...two years after the action is commenced if to do so appears to the court appropriate under the circumstances. (Code Civ. Proc., § 583.410, subd. (a) & Code Civ. Proc., § 583.420, subd. (a)(1).) The criteria which a court must use to determine whether to grant a motion to dismiss under Code of Civil Procedure sections 583.410, subdivision (a) and 583.420, subdivision (a)(1) are set forth in California Rules of Court, rule 3.1342, subdivision (e)...

Excerpt: ... a proposed judgment consistent with the court's summary judgment order. Explanation: 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 initial burden of production to make a prima facie showing of the “nonexistence of any triable is...

Excerpt: ...(d) of Code of Civil Procedure section 473 permits the court to “correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” “Section 473 empowers a trial court to set aside any judgment or order that is void as a matter of law … or otherwise because the judgment or order violat...

Excerpt: ...r 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.) In her fourth amended complaint, plaintiff pleads a single cause of action for breach of contract. Among other arguments, Defendant argues that the claims are barred by the statute of limitations. In the Fourth Amended Complaint, Plaintiff all...

Excerpt: ...12.1 The interrogatory seeks identification of witnesses or persons with knowledge of “the INCIDENT.” Plaintiff defined “INCIDENT” as follows: INCIDENT includes the circumstances and events: (1) alleged in PLAINTIFF's Complaint; (2) giving rise to this action or proceeding; and/or (3) surrounding the alleged: 1. DISCRIMINATION BASED ON DISABILITY IN VIOLATION OF GOVERNMENT CODE SECTION 12940 (a) 2. FAILURE TO PROVIDE REASONABLE ACCOMM...

Excerpt: ...burden of proof. Triable issues of material fact exists as to the type of shoe that the Plaintiff was wearing at the time of her fall and as to its cause. See infra for evidence in support of this finding. Explanation: Purpose of Summary Judgment Summary judgment law turns on issue finding rather than issue determination. (Diep v California Fair Plan Ass'n (1993) 15 Cal.App.4th 1205, 1207.) The court does not decide the merits of the issues, ...

Excerpt: ...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 the opposing party...

Excerpt: ...position to the motion appears in the Court's files.] 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 Cal.3d 227, 235 (superseded by statute on other grounds as ...

Excerpt: ...t need rule only on material objections.) To overrule all of defendants' evidentiary objections. Explanation: The court disregards defendants' “response” to plaintiff's additional facts, filed on May 10, 2019, as the summary judgment statute does not provide for this response. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 248.) Evidentiary Objections  Plaintiff's Objections Plaintiff is correct that a declaration supporting a...

Excerpt: ...l be filed and served within 10 days of the clerk's service of this minute order. New allegations shall be in boldface type font. Explanation: Timeliness of Demurrer and Motion to Strike Plaintiff opposes the demurrer and motion to strike on the grounds that they were untimely served. Code of Civil Procedure section 1005, subdivision (b), provides that “all moving and supporting papers shall be served and filed at least 16 court days before the...

Excerpt: ...ile and serve a Third Amended Complaint, addressing the issues noted by the Court below, if they can. All amended allegations are to be set forth in boldface typeset. Explanation: Defendant Dr. Kuldeep Gill has (“Defendant Dr. Gill”) filed a demurrer as to the Fifth Cause of Action for Fraud. Defendant Clovis Community Hospital (“Defendant Hospital,” or “Fresno Community”) has filed a demurrer to the First Cause of Action for Fraud, t...

Excerpt: ... nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff. (Judicial Council of Cal. Civ. Jury Instns. (Sept. 2018 rev.) CACI No. 300; see also Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) Here, plaintiffs adequately allege breach of contract. First, plaintiffs allege that on December 8, 2017, the parties entered into an oral agreement wherein defendant promised that all r...

Excerpt: ...pending in the Supreme Court. Nor does it appear that there is any reason for the court to stay the action under its discretionary power. It appears that plaintiff is arguing that he cannot proceed with his case until he obtains certain documents that he sought through the subpoena duces tecum, but he fails to explain exactly which documents he needs to obtain or why he needs to stay the action until he can obtain relief from the Supreme Court. T...

Excerpt: ...endens, as the lis pendens was never served on her as a party claiming an adverse interest in the property and the second amended complaint fails to allege any real property claims. (Code Civ. Proc. §§ 405.4; 405.23; 405.30.) To grant McKissen's request for reasonable attorney's fees and costs against plaintiff, in the amount of $2,434.90. (Code Civ. Proc. § 405.38.) Plaintiff shall pay sanctions to McKissen within 30 days of the date of servi...

Excerpt: ...e period 6:00 a.m. to 7:00 p.m. on June 19, 2017. Explanation: Plaintiff seeks documents and information from AT&T c/o CT Corporation System concerning various cell phone records from June 19, 2017, the day of the accident which is the subject of this lawsuit, as well as from the time of a separate accident which occurred on June 1, 2016. Defendant Paulino was involved in both accidents. Plaintiff argues that these documents are relevant to show ...

Excerpt: ...posed order by certified mail, return receipt requested, or by personal service. (Civ.Proc. §877.6, subd.(a)(2).) Then the proof of service must be filed with the Court. (Id.) This motion was served by E‐ Service and not by the specific service requirements of section 877.6. Barring an express waiver of that requirement, the motion must be denied without prejudice for failure to comply with the service statute. Moreover, even on the merits, th...

Excerpt: ...cause of action as to which defendants seek summary adjudication, and therefore they are defective. (Cal. Rules of Court, Rule 3.1350.) However, while the notice of motion does not set forth each separate cause of action that defendants seek to adjudicate, it does state that defendants are seeking summary judgment as to the entire complaint and each separate cause of action. The separate statement also includes facts for each of the individual ca...

Excerpt: ...rvice of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: Moving defendants are entitled to summary judgment because plaintiff cannot prove any actual, pecuniary, or economic damage, and plaintiff is not entitled to punitive damages. Plaintiff's only remaining claim, the third cause of action for common law misappropriation of trade name, is one for damages. The prayer for compensatory dam...

Excerpt: ...der with language directing that the net settlement money be deposited into a blocked account for the benefit of the minor. Explanation: In general, the petitions appear to be in order. However, petitioner has requested that the court order the entire net settlement sum for Aaron to be paid directly to him rather than being deposited into a blocked account at a bank. The net settlement is only $900, and petitioner argues that this “nominal amou...