Excerpt: ...er Brittany Goto's house (“the incident”). Defendant is Goto's father, and for almost a year prior to the incident, Merlin lived at defendant's while Goto lived elsewhere. Defendant's liability depends on whether he was either an owner of Merlin, or a keeper with knowledge of Merlin's viciousness. Civil Code section 3342 provides that an "owner of any dog is liable for the damages suffered by any person who is bitten by the dog ... regard...

Excerpt: ... the normal prerequisites for a class action. (Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 625‐ 627.) However, because a trial court is considering certification in a settlement context, the court's review of certification is lessened, particularly those related to management of the class. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93.) On the other hand, other certification issues, such as those designed to protect absentees ...

Excerpt: ...was 14 months ending on March 1, 2018. On January 3, 2018, Plaintiff notified the Defendant that he was in default in the amount of $76,250. On June 1, 2018, Plaintiff served another notice of default. At that time, the Defendant owed $103,250. Defendant remained in default. On June 19, 2018, the Plaintiff filed a complaint alleging causes of action for breach of contract, “intentional tort”, and “claim and delivery.” On January 10, 2019,...

Excerpt: ...od in which it transacted business in California without having obtained a certificate of qualification from the Secretary of State. (Corp. Code §2203(c).) Explanation: “It has been uniformly held that reasonable amendments to pleadings should, in the interest of justice, be granted, and that section 473 . . . should be liberally construed to accomplish that purpose.” (Jorgensen v. Dahlstrom (1942) 53 Cal.App.2d 322, 331, citations omitted.)...

Excerpt: ...�Prime Cross‐ Complaint”) 3) Sierra Vista's Motion to Strike Portions of the Answer to the Cross‐ Complaint (the “Sierra Vista Cross‐Complaint”) Tentative Ruling: To overrule the demurrer in its entirety. To grant the motion to strike FRI's answer to the Sierra Vista Cross‐Complaint, but to grant FRI 30 days' leave to obtain representation by an attorney, to file evidence that its corporate status has been restored to “active” a...

Excerpt: ...orandum of $30,128.75. To grant the motion to tax plaintiff David Bray's costs, in part, and tax the sum of tax $6,130.00 from plaintiff Bray's Cost Memorandum of $16,502.45. To deny the motions in all other respects. Explanation: Items of allowable costs are set forth in Code of Civil Procedure section 1033.5, subdivision (a), and disallowed costs are set forth in subdivision (b). Items not expressly mentioned in the statute “upon application ...

Excerpt: ...onsistent with the equitable objectives of the statute.” (Tech‐Bilt, Inc. v. Woodward‐Clyde & Assocs. (1985) 38 Cal.3d 488, 499‐500) The application will be granted and the settlement between Mr. Hernandez and the Plaintiff will be determined to be in “good faith” pursuant to CCP § 877.6(a)(2). Explanation: Background On May 27, 2017, Plaintiff was driving a 2016 Polaris Crew XP Utility Task Vehicle (aka UTV). She was wearing a helme...

Excerpt: ...ry sanctions, monetary sanctions, and/or to re‐open discovery and continue trial, as well as the alternative motion to disqualify defense counsel. To deny defendants' request for monetary sanctions against plaintiffs and their counsel. Explanation: First of all, this is not a normal motion for terminating, issue, evidentiary or monetary sanctions based on the opposing party's abuse of the discovery process under the Discovery Act. There is no i...

Excerpt: ...e ruling. Notice runs from the date that the Minute Order is mailed plus five (5) days for service via mail. (Code Civ. Proc., § 1013.) Explanation: Labor Code section 3853 provides: If either the employee or the employer brings an action against such third person, he shall forthwith give to the other a copy of the complaint by personal service or certified mail. Proof of such service shall be filed in such action. If the action is brought by ei...

Excerpt: ...omplaint Tentative Ruling: To deny the motion without prejudice. Explanation: Background On July 1, 2017, Plaintiff, then 10 years of age, fell into a smoldering pile of debris on the property of Defendants Stephen and Julie DeBenedetto. Plaintiff sustained severe injuries. It is alleged that Defendants Mountain Property Services, Raymond Slocum and Matthew Marvin had been hired by the couple to perform tree cutting services on the property. Thes...

Excerpt: ... general demurrers to the first cause of action. To sustain the general demurrer to the second cause of action with leave to amend. To sustain the special demurrer under Code of Civil Procedure section 430.10, subdivision (h), to the third cause of action, with leave to amend. To overrule the general demurrer to the third cause of action. Explanation: First Cause of Action – Breach of Contract Statute of Limitations “ ‘When a complaint show...

Excerpt: ...section 1048(a) states: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Neither of these matters involves a certified class. Thus there are no class members in commo...

Excerpt: ...are liberally construed. (Huynh v. Ingersoll‐Rand (1993) 16 Cal.App.4th 825, 830.) “[A]ny doubts as to whether summary judgment is proper should be resolved against the moving party.” (Buehler, supra, 17 Cal.3d at p. 526.) “When the meaning of the language of a contract is doubtful or uncertain and parol evidence is introduced in aid of its interpretation, the question of its meaning is one of fact. […] In such circumstances it is the p...

Excerpt: ...ion: In this action, plaintiff Maddie Wade (“plaintiff”) alleges that she was discriminated against, harassed, and constructively discharged after revealing to her manager, defendant Dustin Guthrie (“Guthrie”), that she was diagnosed with gender dysphoria and would be transitioning from male to female. The complaint alleges four causes of action: (1) wrongful constructive termination against plaintiff's employer, defendant Starbucks Corpo...

Excerpt: ...n & Bellardinelli and the Law Firm of Campagne and Campagne shall pay the sum of $15,000 to Whitney, Thompson & Jeffcoach LLP within 10 days of the clerk's service of this order. To deny the motion in part, as the court will not impose evidence or issue sanctions at this time. Explanation: Code of Civil Procedure section 2031.310, subdivision (i) provides, in relevant part: “[I]f a party fails to obey an order compelling further response, the c...

Excerpt: ...suance of Writ of Mandate: Judicial review of an agency decision by administrative mandamus is available where the agency was required “by law” to conduct an evidentiary hearing. (Code Civ. Proc., § 1094.5, subd. (a).) An evidentiary hearing is required “by law” if it is required by a statute (other than the APA), a regulation, or constitutional due process. (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 279.) Respondent Bo...

Excerpt: ...the Court would have signed one. That is the situation that arose here, with each side submitting its own proposed statement of decision, without the other party's having signed off on it. The Court signed Defendant's proposed statement of decision. Moving party fails to provide adequate authority to grant the relief requested under these circumstances. Accordingly, Plaintiff's motion to strike Defendant's statement of decision is denied. Pursuan...

Excerpt: ...emed to be true, as it is “not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. [Citation.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's cla...

Excerpt: ...osemead (2009) 174 Cal.App.4th 1067.) One has to “opt‐in” to an FLSA action. (Millan v. Cascade Water Services, Inc. (E.D. Cal. 2015) 310 F.R.D. 593.) Courts within the Ninth Circuit have found that Rule 23 class actions are incompatible with FLSA collective actions, but the Ninth Circuit has thus far refused to reconcile the split of authority. (Pitts v. Terrible Herbst, Inc. (9th Cir. 2011) 653 F.3d 1081, 1093.) The “opt‐ins” have t...

Excerpt: ...he clerk's service of this minute order. Explanation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3...

Excerpt: ...es Bell is entitled to summary judgment because, even if it is assumed he was treasurer of the defendant corporation, he does not become personally liable based only that status: Directors or officers of a corporation do not incur personal liability for torts of the corporation merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done[.] They may be liable, under the rules of tort and...

Excerpt: ... defendant bears the initial burden of proof to show that the plaintiff cannot establish one or more elements of his/her 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 must be shown via specific facts and not mere ...

Excerpt: .... shows that it has paid all outstanding penalties, fees, and taxes for the time period in which it transacted business in California without first obtaining a certificate of qualification from the Secretary of State. (Corp. Code § 2203, subd. (c).) 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 ...

Excerpt: ...for attorney's fees and costs, the motion is untimely. Under section 1038, subdivision (a), “In any civil proceeding under the Government Claims Act… or for express or implied indemnity or for contribution in any civil action, the court, upon motion of the defendant or cross‐ defendant, shall, at the time of the granting of any summary judgment, … determine whether or not the plaintiff, petitioner, cross‐complainant, or intervenor broug...

Excerpt: ... applicable” and “all rights, remedies, obligations, liabilities and procedures set forth in Article 3 [of the Civil Discovery Act] shall be available to both the insured and the insurer . . . . [¶] [W]henever . . . provision is made for application to the court or obtaining leave of court or approval by the court, the court that shall have jurisdiction for the purposes of this section shall be the superior court of the State of California�...

Excerpt: ... liable in tort for negligent injury to those workers. (Lab.Code §3602(a); see also Johnson v. Berkofsky‐Barret Productions, Inc. (1989) 211 Cal.App.3d 1067 [injured employee's relief against employer is limited to workers' compensation]; Santa Cruz Poultry v. Superior Court (1987) 194 Cal.App.3rd 575 [plaintiff's loss of right to bring tort action against employer justified where plaintiff has received workers' compensation coverage].) There ...

Excerpt: ...ult to sift through the facts to determine which were actually material and disputed. The two important functions of a separate statement are (1) to notify the parties which material facts are at issue, and (2) to “permit trial courts to expeditiously review complex motions for ... summary judgment to determine quickly and efficiently whether material facts are disputed. (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 72, emphasis added.) Ho...

Excerpt: ...he complaint “(3) [a]fter a motion to strike the whole of a complaint is granted without leave to amend and either party moves for dismissal.” (Code Civ. Proc., § 581, subd. (f)(3).) Here, on April 18, 2019, this court granted defendants' motion to strike plaintiffs' first amended complaint in its entirety, without granting leave to amend. Therefore, defendants' request that this court now dismiss this case is granted pursuant to Code Civil ...

Excerpt: ...) Explanation: 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 following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (...

Excerpt: ...e accident, loaned to Kozi as part of a farm labor contractor agreement. In the cross‐complaint Kozi asserts two causes of action against RJL for equitable indemnity and comparative fault. RJL's motion is dependent on the conclusion that Kozi totally and completely controlled all of Euceda's employment activities. Initially, the court notes the following rulings on ACM's objections to RJL's evidence: objections nos. 1‐4, 26‐43 are overruled...

Excerpt: ...o strike special damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) Plaintiff is granted 20 days, commencing from service of the minute order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: I. Demurrer In testing a pleading against a demurrer, the facts alleged are deemed to be true, as it is “not the ordinary function of a demurrer ...

Excerpt: ...ction, in ordinary and concise language.” (Code Civ. Proc. § 425.10.) Plaintiff alleges that defendant "did me wrong," "is derelict in her duties," "is a public servant" who "refused to perform her service." Plaintiff further contends that defendant is his "servant" and that she "failed to provide a service as my servant." The factual basis for plaintiff's claim is entirely unclear and uncertain....

Excerpt: ... either party.” (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 732.) Code of Civil Procedure section 1033.5(c)(2) states: “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Further, section 1033.5(c)(3) provides: “Allowable costs shall be reasonable in amount.” “In ruling upon a motion to tax costs, the trial court's first determination...

Excerpt: ...lement Agreement states that it will be served on the LWDA only after preliminary approval, but neither the parties nor the Court have the power to decline the Legislature's directive on this issue. The motion must be denied due to failure to timely serve the LWDA. 2. 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 cou...

Excerpt: ...intiff's causes of action which are closely related to the Fair Employment and Housing Act (“FEHA”) claims are likewise governed by the FEHA fee/cost provision. (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1059‐1060.) Here, the non‐FEHA claims were intertwined with the FEHA claims, as they were based on the same set of facts. The rule under Government Code section 12965, subdivision (b), is that an award of attorney's fees ...

Excerpt: ...clams. All new allegations must be set forth in boldface typeset. Explanation: As of May 17, 2019, no opposition appears in the Court's files. 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 d...

Excerpt: ...for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.” CDF Firefighters v. Maldonado (5th Dist. 2008) 158 Cal. App. 4th 1226, 1239. The pleading alleges a workers compensation policy, with a limit of $1,000,000, policy number GWRC847238, with a coverage period of October 15, 2017 to October 15, 2018, for a price of $4,850, payable in 11 monthly installments with a deposit of $727.50. That is rev...

Excerpt: ...n which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be placed in boldface type. Prior to filing an amended complaint, the parties shall hold a telephonic or inperson conference pursuant to Code of Civil Procedure section 430.41, subdivision (c). With the amended complaint, plaintiff shall file a declaration detailing the compliance with this requirement. Explanation: First Cause of Actio...

Excerpt: ... discussed in those rulings. The same settlement is now submitted for approval a third time. In the time since it was signed, case law has clarified several issues which also weigh against approval. In Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal. App. 5th 667, 674‐ 675, the Court of Appeal determined that the 226.3 penalty applied to all violations of Labor Code section 226(a), not just where the employer completely failed t...

Excerpt: ...39;s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge bein...

Excerpt: ...laintiff, as only a defendant has standing to move for a change of venue based on the action being filed in the wrong court. (Code Civ. Proc. §§ 395, subd. (a); 396a, subd. (b).) Plaintiff shall pay all fees and costs for transfer of the action to Kern County within 30 days of the date of service of this order. (Code Civ. Proc. § 399, subd. (a).) Explanation: Plaintiff moves to transfer the action from Fresno County to Kern County, contending ...

Excerpt: ...laintiff, as only a defendant has standing to move for a change of venue based on the action being filed in the wrong court. (Code Civ. Proc. §§ 395, subd. (a); 396a, subd. (b).) Plaintiff shall pay all fees and costs for transfer of the action to Kern County within 30 days of the date of service of this order. (Code Civ. Proc. § 399, subd. (a).) Explanation: Plaintiff moves to transfer the action from Fresno County to Kern County, contending ...

Excerpt: ...in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Orange Cnty. Air Pollution Control Dist. v. Superior Court (1972) 27 Cal.App.3d 109, 113.) “The purpose of the motion for summary judgment is to determine whether issues presented by the pleadings actually are triable iss...

Excerpt: ...ned by the parties outside of the presence of the court . . . for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (Emphasis added.) In ruling on a Section 664.6 motion, the court may receive oral testimony, or may rule on the motion based on declarations alone. (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994.) Where the settlement agreement is ambiguous, the court ...

Excerpt: ...he initial burden of demonstrating facts justifying the exercise of jurisdiction. The plaintiff must do more than merely allege jurisdictional facts; plaintiff must provide affidavits and other authenticated documents demonstrating competent evidence of jurisdictional facts. (BBA Aviation PLC v. Superior Court (2010) 190 Cal.App.4th 421, 428‐429.) If this is met, the defendant then has the burden of demonstrating that the exercise of jurisdicti...

Excerpt: ...itations.]” (Munoz v. Lopez (1969) 275 Cal.App.2d 178, 181.) The terms “extrinsic fraud” and “mistake” are “given a broad meaning and tend to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (In re Marriage of Park (1980) 27 Cal.3d 337, 342.) To set aside a default judgment “based on extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate...

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

Excerpt: ... independently. However, plaintiffs have alleged facts with respect to the allegedly inadequate design of the driver's seat structure of the subject automobile, and MMC's knowledge of internal and external test results and external investigations which revealed these inadequacies. The remoteness of time regarding some of these tests does not invalidate these allegations, since adoption of, and continued retention of, defective designs despite all...

Excerpt: ...e).) To overrule the demurrer to the fifth cause of action. (Code Civ. Proc. § 430.41(b).) To grant the motion to strike SACC ¶ 55 and page 17, lines 1‐2 of the prayer for relief, without leave to amend. (Code Civ. Proc. § 436.) Ross shall file their answer to the SACC within 10 days of service of the order by the clerk. Explanation: Demurrer Ross demurs only to the fourth and fifth causes of action, for intentional and negligent misrepresen...

Excerpt: ...improper requests for fees. To grant the motion for costs, less $520 for Court Call fees which are expressly prohibited by Civil Code section 1033.5. Sukhdev Gill and Harjit Singh are awarded costs in the amount of $3,724.38. Explanation: In the case at bar, Sukhdev Gill and Harjit Singh move for an award of attorney fees in the amount of $ 41,852.00 pursuant to Civil Code section 1717, as well as costs in the amount of $ 4,244.38. Opposing parti...

Excerpt: ...ust 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 class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Am...

Excerpt: ...rt's files. The granting or denial of a motion to consolidate rests in the sound discretion of the court and will not be reversed except upon a clear showing of abuse of discretion. (Fellner v. Steinbaum (1955) 1332 Cal.App.2d 509, 511.) Consolidation is proper when it would avoid unnecessary costs and delays and when the proposed consolidated action contain common questions of law or fact. (CCP §1048, subdivision (a).) California Rule of Court ...

Excerpt: ...t SEIU Local 2015 plaintiff alleges causes of action for negligence and intentional tort. Plaintiff alleges that he was an employee of the State of California In Home Supportive Services. As an employee plaintiff was represented by defendant SEIU Local 2015, who informed plaintiff that he would have insurance within a few months. On May 4, 2017, plaintiff was in an auto accident caused by an uninsured motorist. Though plaintiff was employed by th...

Excerpt: ...onse within 10 days after service, the Court will exercise its discretion and consider Plaintiff/Respondent Inmany's (“Respondent”) late‐filed opposition, as no prejudice to Petitioner is apparent. (See, e.g., Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847; Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 488.) PAGA/Waiver A PAGA action may be brought “by an aggrieved employee on behalf o...

Excerpt: ... accordance with the rules applicable to motions generally. (Knight, Fannin, Chernick & Haldeman, California Practice Guide: Alternative Dispute Resolution (Rutter Group 2017) “Contractual Arbitration” §§ 5:301, 5:304; Code Civ. Proc. §1290.2.) The motion/petition must allege specific facts demonstrating the existence of an arbitrable controversy, rather than mere conclusions, and must allege not only the existence of the arbitration agree...

Excerpt: ...s President of the Sikh Center; and (3) plaintiff is seeking damages for the alleged conspiracy, yet damages are not permitted under a conspiracy theory. Issue 1: Is civil conspiracy an actionable tort? The elements of a civil conspiracy are (1) formation and operation of the conspiracy, (2) damage resulting to plaintiff, and (3) from an act done in furtherance of the common design. (I‐CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Ca...

Excerpt: ... state or local building maintenance regulations and the violations are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered, the local enforcement agency may issue a notice and order requiring repair or abatement of the unlawful conditions. If the owner of the building thereafter fails to comply with the notice and order in a reasonable period of time, the enforcement agency can seek...

Excerpt: ...der dated January 23, 2019. Plaintiff failed to appear at the March 21, 2019 hearing. The Court has set a hearing on May 23, 2019 at 3:00 p.m. in Dept. 501 for the plaintiff to show cause why the case should not be dismissed. At that hearing the plaintiff can present the argument made in the declaration filed on March 29, 2019. If the Court determines there is good cause the Court will proceed with a trial setting conference. Plaintiff requests t...

Excerpt: ...ion. Explanation: To obtain summary judgment, “all a defendant needs to do is to show that the plaintiff cannot establish at least one element of the cause of action.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) If a defendant makes this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (Code Civ. Proc. § 437(...

Excerpt: ... defendant is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. 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 Cal.4th 826, 850.) A defendant meets that burden...

Excerpt: ...f the minute order. All new allegations in the first amended complaint are to be set in boldface type. Explanation: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in ...

Excerpt: ...demurrer to the second through seventh causes of action with leave to amend. To grant the motion to strike references to punitive damages with leave to amend. A Third Amended Complaint in conformity herewith shall be filed and served within 10 days of the clerk's service of this minute order. All new allegations shall be in boldface type font. Explanation: Court's Own Motion to Strike Third Amended Complaint: Code of Civil Procedure section 436 p...

Excerpt: ...on to compel as to Special Interrogatory Nos. 2 and 10, but deny as to Special Interrogatory No. 15. To find the motion moot as to Special Interrogatory Nos. 5, 6, and 8, due to defendant's supplemental responses to these interrogatories after the motion was filed. To deny the request for monetary sanctions. Explanation: Special Interrogatory No. 2 Drafting and filing articles of incorporation, and other duties of an Incorporator (e.g., selecting...

Excerpt: ... court has already ordered CMF to provide documents responsive to those requests at the pretrial discovery conference, and thus no new order is necessary. The court's prior order is still in effect, and CMF is obligated to comply with it. If CMF continues to fail to produce documents as ordered, it will be subject to additional sanctions, including potential issue, evidence or terminating sanctions. (Code Civ. Proc. § 2031.320, subd.'s (b) and (...

Excerpt: ...50, subdivision (a), provides for a motion to compel a deponent's attendance and testimony where the responding party fails to appear for deposition. However, where the deponent fails to attend her deposition, a motion to compel attendance must be accompanied by a declaration stating that the attorney for the moving party has contacted the deponent to inquire about her nonappearance. (Code Civ. Proc. §2025.450(b)(2).) Implicit in this statute is...

Excerpt: ...to the fifth sixth, eleventh, and twelfth causes of action. To overrule the demurrer to the third, seventh, eighth, ninth, and thirteenth causes of action. A Second Amended complaint shall be filed and served within 10 days of the clerk's service of this minute order. All new allegations shall be in boldface type font. Explanation: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or co...

Excerpt: ...c(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 must be shown via specific facts and not mere allegations. (Id.) “California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment...

Excerpt: ... request for punitive damages. Plaintiffs are 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. Explanation: I. Demurrer A. Intentional Infliction of Emotional Distress: “Outrageousness” “[W]hether conduct is outrageous is ‘usually a question of fact.'” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235.) And a judge may not reso...

Excerpt: ... a writ of possession shall issue if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff's claim to possession of the property. (2) The undertaking requirements of Section 515.010 are satisfied.” Section 515.010 concerns the necessity of an undertaking and states: “(a) Except as provided in subdivision (b), the court shall not issue a temporary restraining order or a writ of possession...

Excerpt: ...t seq.) To lift the stay on the action and allow the litigation to proceed in Superior Court as to the remaining causes of action. Explanation: The court intends to deny the motion to compel the plaintiff to arbitrate the remaining six causes of action in the first amended complaint. The court has already ruled a year ago on the defendant's prior motion to compel arbitration that the first six causes of action are not arbitrable, as they raise PA...

Excerpt: ...mpelling defendant to provide documents pursuant to his agreement to do so. (Code Civ. Proc. §§ 2031.310; 2031.320.) Defendant shall provide further responses without objections and responsive documents within 10 days of the date of this order. To grant sanctions against defendant (but not his attorney) in the amount of $1,060. Sanctions shall be paid within 30 days of the date of this order. Explanation: First, while defendant Schoonover has a...

Excerpt: ...minute order. Explanation: Motion for Attorney's Fees: A prevailing buyer in an action under the Song– Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ...

Excerpt: ...s in the amount of $500. (Ibid.) Defense counsel shall pay the fees within 30 days of this order. Explanation: Defendant Dawn Bray moves for relief from the default and default judgment under the attorney affidavit of fault provision of Code of Civil Procedure section 473, subdivision (b). Under that provision, Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six mont...

Excerpt: ...elieving the petitioner from Section 945.4." (Gov't. Code § 946.6, subd. (a).) Under section 946.6, subdivision (c), "The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 [e.g., no more than one year after the claim accrued] and was denied or d...

Excerpt: ...n of documents is ordered stayed until five days after the protective order is signed by the Court. Explanation: A motion to quash or modify a subpoena may be made on the grounds that the matters sought to be discovered are privileged, protected, or otherwise beyond the scope of discovery. (Code Civ. Proc. §2017.010.) A motion may also be brought on the grounds that the discovery sought is unreasonable, or oppressive or is an unreasonable violat...

Excerpt: ...construction project. The motion is opposed by plaintiff, as well as by George A Bics Plumbing, Inc. (“Bics”). Bics' opposition will not be considered due to the untimely service of the papers. (See Code Civ. Proc. §§ 437c(b)(2), 1005(c); Sande Dec. ¶ 2.) Regarding evidentiary objections, the court sustains plaintiff's objection no. 2, and overrules no. 1. Objections nos. 3‐12 are also overruled, as evidentiary objections can only be mad...

Excerpt: ...h sides have already paid the complex case fees. The Court finds that this matter meets the definition of “complex” under California Rules of Court, Rule 3.400(b)(1). 2. 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. ...

Excerpt: ...t 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 issue of material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[A]ll a defendan...

Excerpt: ...ee. In addition to the claims pertaining to the internal affairs of the trust, the petition asserts a cause of action for financial elder abuse. The Probate Court has exclusive jurisdiction over proceedings concerning the internal affairs of trusts. (Prob. Code § 17000, subd. (a).) Under Probate Code section 7000, subdivision (b), the Probate Court has concurrent jurisdiction over: “(1) Actions and proceedings to determine the existence of tru...

Excerpt: ...proceeding. Explanation: A motion to quash or modify a subpoena may be made on the grounds that the matters sought to be discovered are privileged, protected, or otherwise beyond the scope of discovery. (Code Civ. Proc. §2017.010.) A motion may also be brought on the grounds that the discovery sought is unreasonable, or oppressive or is an unreasonable violation of a right to privacy. (Code Civ.Proc. §1987.1, subd.(a).) Defendants seek to quash...

Excerpt: ...ee. In addition to the claims pertaining to the internal affairs of the trust, the petition asserts a cause of action for financial elder abuse. The Probate Court has exclusive jurisdiction over proceedings concerning the internal affairs of trusts. (Prob. Code § 17000, subd. (a).) Under Probate Code section 7000, subdivision (b), the Probate Court has concurrent jurisdiction over: “(1) Actions and proceedings to determine the existence of tru...

Excerpt: ...ee. In addition to the claims pertaining to the internal affairs of the trust, the petition asserts a cause of action for financial elder abuse. The Probate Court has exclusive jurisdiction over proceedings concerning the internal affairs of trusts. (Prob. Code § 17000, subd. (a).) Under Probate Code section 7000, subdivision (b), the Probate Court has concurrent jurisdiction over: “(1) Actions and proceedings to determine the existence of tru...

Excerpt: ...ninth causes of action, and stay litigation thereof until after arbitration is completed. Explanation: When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine: (1) whether the agreement exists and, (2) if any defense to its enforcement is raised, whether it is enforceable. The petitioner (seeking to compel arbitration) bears the bur...

Excerpt: ...l basis. These motions were Plaintiff's motions to strike Defendant's cross‐complaint and his verified answer (and portions thereof), and to set aside the Court's order of August 30, 2018. Section 128.7, subdivision (b) provides that by submitting any motion or similar paper to the Court, the submitting person is certifying that, after a reasonable inquiry: (1) It is not being presented primarily for an improper purpose, such as to harass or to...

Excerpt: ...ion, fees are to be awarded as a matter of right. There is no discretion to deny fees under such circumstances. (Rancho Mirage Country Club Homeowners Ass'n. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263.) The arguments made by Westcare California, Inc. (“Westcare”) against any fee award are unpersuasive. The fees request is made directly by Comprehensive Addiction Program, Inc. (“CAP”) on a cross‐complaint brought against CAP by Westcare...

Excerpt: ... filed no later than July 15, 2019. Explanation: 1. Failure of Service of Moving Papers The proof of service omits Mr. Delao, who substituted himself in pro per in August of 2018. As a named party to this action, he must be served as any other named party. 2. Final Approval of Settlement a. General Standards California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the propos...

Excerpt: ...s within 5 days of the clerk's service of the minute order. Explanation: A defendant may cross‐complain against a co‐defendant or third person not yet a party to the action where the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against [it] or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause ...

Excerpt: ...f the minute order. Explanation: Upon timely application, any person who has an interest in a matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. (Code Civ. Proc. § 387; Fireman's Fund Ins. Co. v. Gerlach (1976) 56 Cal.App.3d 299, 303‐ 305.) The intervention must not enlarge the issues in the case and the reasons for intervention must outweigh any opposit...

Excerpt: ...rd, eighth, eleventh, fifteenth, sixteenth and eighteenth causes of action. (Code Civ. Proc. § 437c(f)(1).) Explanation: Plaintiff asserts 18 different employment‐related claims, including discrimination, harassment, retaliation, and wage and hour claims. As pointed out in the moving papers, plaintiff made many admissions at his deposition that were devastating to most of his claims. The court notes that the moving papers primarily rely on pla...

Excerpt: ...stake, inadvertence, surprise, or excusable neglect, and therefore the court should set aside the default. Under the discretionary relief portion of section 473, subdivision (b), The court may, upon any terms as may 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. Application for this...

Excerpt: ...stake, inadvertence, surprise, or excusable neglect, and therefore the court should set aside the default. Under the discretionary relief portion of section 473, subdivision (b), The court may, upon any terms as may 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. Application for this...

Excerpt: ... is correct that the plaintiff's causes of action survive even after her death. “Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) Also, “A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc.,...

Excerpt: ... action for sex discrimination based on the fact that she, as a division manager, was paid less than other division managers. Just before trial, the court ruled that the comparison of plaintiff's salary with that of other managers was inappropriate evidence, as a similarity in job duties had not been shown. At the end of plaintiff's presentation of her case, she moved for leave to amend her complaint to proof offered that she was paid les...

Excerpt: ... motion for reclassification after the time for that party to amend that party's initial pleading or to respond to a complaint, crosscomplaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both of the following conditions are satisfied: (1) The case is incorrectly classified. (2) The moving party shows good cause for not seeking reclassification earlier. Also, “[i]f a case is re...

Excerpt: ... is correct that the plaintiff's causes of action survive even after her death. “Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) Also, “A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc.,...

Excerpt: ...d of litigation costs under [Code of Civil Procedure] section 1032, subdivision (b), implements a clear legislative goal of encouraging potentially meritorious FEHA suits. (Williams [v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97], 112 . . . .) Although section 1032, subdivision (b), also serves an important purpose, relieving a party whose position was vindicated in court of the basic costs of litigation, when those costs have not b...

Excerpt: ...ade on one of the following grounds: (A) If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd.'s (b)(1) and (c)(1)(A).) Here, plaintiff contends that the answer fails to allege any facts to support an affirmative defense to the claims al...

Excerpt: ...mon question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Here, it does not appear that there are sufficient overlapping facts or issues of law that would justify consolidating the cases. Plaintiffs claim tha...

Excerpt: ...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) Section 7:3 [“The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.”].) The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted with ...

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