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: ...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: ...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: ... 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: ...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: ...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: ...plaint alleges dangerous condition of public property and negligence. On September 7, 2015, Plaintiff was riding his motorcycle on State Route 198 East, near Firestone Avenue, when defendant Rodriguez, who was driving a tractor‐trailer, owned by Defendant L.A. Hearn Co., allowed part of the tractor‐trailer to cross the center line, into plaintiff's path of travel. While Rodriguez states that it was plaintiff who crossed the center line, for p...

Excerpt: ...All dates currently on calendar in Case No. 17CECG01880, including the trial date, are vacated. All applicable deadlines will be calculated once the initial trial date is set in the consolidated case. Explanation: There has been no opposition filed to the instant motion. The declaration of counsel for Defendant identifies a stipulation for consolidation signed by nearly all the parties in each action (counsel for the plaintiff in Patron purported...

Excerpt: ... as a fact that Federated Insurance Company “stands in the shoes of” Kjar Rental Company. The supporting evidence cites to a mass of papers filed for a prior motion in this case, without any specification as to where the actual evidence might be located within those filings. The Court declines to hunt through the papers and guess what might support the fact claimed. (Artiglio v. GE (1998) 61 Cal.App.4th 830, 841‐842.) Other evidence cited i...

Excerpt: ...onally served subpoena is enforceable against a California resident and obligates that individual to produce business records specified in the subpoena. (Code Civ. Proc., § 2020.220, sub. (c).) The subpoena further obligates that individual to appear at a discovery motion proceeding that seeks to enforce the subpoena. (Id., subd. (c)(3); see also Code Civ. Proc., § 1987.1, subd. (a).) When the nonparty fails to comply with the issued subpoena, ...

Excerpt: ...et and confer letter mentions that there are “more than 60” such questions, which makes it all the more important that plaintiff identify these in the Separate Statement, rather than (apparently) expecting the court to pore over the 63 transcript pages to parse out what was objectionable. Plaintiff's reply argument that no Separate Statement was necessary under California Rules of Court, Rule 3.1345, is not a correct statement. While that rul...

Excerpt: ...ought in an action pending in that court. (b) The motion for leave to conduct discovery pending appeal shall set forth all of the following: (1) The names and addresses of the natural persons or organizations from whom the discovery is being sought. (2) The particular discovery methods described in Section 2036.020 for which authorization is being sought. (3) The reasons for perpetuating testimony or preserving evidence.” “Admittedly, the Dis...

Excerpt: ...ation: Service of an examination order on the judgment debtor generally creates a one‐year lien on all of the debtor's nonexempt personal property whether or not it is in the debtor's possession and control. (Code Civ. Proc., § 708.110, subd. (d); In re Burns (9th Cir. BAP 2003) 291 BR 846, 851.) There is a split of authority as to whether the debtors' filing for bankruptcy stays the one year lien created by an order of examination. (S...

Excerpt: ...intiff is to pay transfer fees in accordance with Code of Civil Procedure section 399. Explanation: Defendant California Physicians' Service, dba Blue Shield of California (“Blue Shield”) has filed this motion for change of venue to transfer this action to San Francisco County on the ground that Plaintiff, a resident of Fresno County who sustained serious physical and mental injuries in a car accident, and who alleges Blue Shield denied cover...

Excerpt: ...rder. Explanation: This is a legal malpractice action. Plaintiff alleges that he retained defendants Nicholas Wagner and Wagner, Jones, Kopfman & Artenian to represent him in a wrongful discharge matter filed in federal court against his employer. SK Foods filed for bankruptcy, and defendants negligently represented him in that they (1) failed to properly prosecute the case in bankruptcy court by failing to have the bankruptcy stay lifted to proc...

Excerpt: ... LLC (“Ocwen”) from implementing the impending foreclosure sale of the premises located at 1093 East Menlo Avenue, Fresno California 93710. Plaintiff relied on several arguments in the ex parte application to secure the temporary restraining order. Namely, Plaintiff argued that he was likely to succeed on the merits because there was a break in the chain of title, because Defendants failed to comply with Civil Code section 1095, and because t...

Excerpt: ... the ground of inconvenient forum. (Code Civ. Proc. § 418.10(a)(2).) It is not disputed that all of plaintiff's claims against Jeffrey Hacker arise from and are based on the stipulated Judgment for Dissolution of Marriage entered in case no. 16CEFL00096. The Judgment for Dissolution specifically reserved jurisdiction in the Family Court action for any enforcement of the Judgment and to resolve any matter subject to the jurisdiction of the court....

Excerpt: ...no moving papers were filed. Plaintiff is granted ten days leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanation: Defendant Syngenta Seeds, LLC demurs to the following causes of action: (1) negligence (production and delivery of defective seed); (2) negligence (sale of old seed); (3) negligent misrepresentation; and (4) intentional misrepresenta...

Excerpt: ...based upon Code of Civil Procedure section 430.10, subdivisions (e). Defendants argue that: (1) plaintiff has failed to comply with the Government Claims Act; (2) defendants are immune; and (3) plaintiff fails to state a cause of action. Each of these arguments is addressed below. Government Claims Act If a complaint against a public entity does not allege facts showing that a claim was timely made under the Government Claims Act, or that complia...

Excerpt: ...and place in the next 30 days. Explanation: In this action plaintiffs allege that the Fresno County Public Defender's Office suffers from structural deficiencies that prevent it from providing indigent defendants with meaningful and effective assistance of counsel in violation of the federal and California constitutional guarantees of due process and right to counsel, and the constitutional and statutory rights to a speedy trial. Plaintiffs alleg...

Excerpt: ...he motion to strike without leave to amend. Defendants are to submit a proposed order dismissing the Plaintiff's first amended complaint as to them with prejudice within ten (10) days of the date of service of this order. Explanation: Defendants James Davis, M.D. and the Regents of the University of California (“Moving Defendants”) have filed a demurrer and a motion to strike the first amended complaint filed by Plaintiff Verrees. The argumen...

Excerpt: ...of the minute order. New allegations/language must be set in boldface type. Explanation: First Cause of Action – Dangerous Condition of Public Property To state a cause of action under this statute, plaintiff must allege: 1) a dangerous condition existed on the public property at the time of the injury; 2) the dangerous condition proximately caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of inju...

Excerpt: ...y set for May 9, 2019, are off calendar as moot in light of this ruling. Explanation: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading ... ” (Code Civ. Proc. § 473(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard...

Excerpt: ...oyment and Housing Act (FEHA)].” (§ 12930, subd. (f)(1).) Upon receiving a complaint of discrimination, the DFEH is directed to promptly investigate the complaint. (§ 12963.) In pursuit of its investigation, the DFEH has the power, among other things, to issue subpoenas for the production of documents and to issue written interrogatories. (§ 12930, subd. (g)(1) & (3).) As a part of its investigation of Chandler's complaint pursuant to Sectio...

Excerpt: ...w Office of John Cadwalader within 30 days after service of this order. Explanation: Motion to Strike Code of Civil Procedure section 436 provides, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted into any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the ...

Excerpt: ...cy favoring arbitration is so strong that "any doubt on the issue must be resolved in favor of arbitration." (Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406; See also AT & T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 650 [any doubt as to whether a particular dispute falls within ambit of arbitration clause resolved in favor of arbitration]; See also, United Transp. Union, AF...

Excerpt: ...d preliminary approval lists the Turley and Mara Firm. The settlement attached to the most recent Mara declaration lists the Turley and Mara firm as class counsel. But the Notice to Class lists the Mara Firm. The most recent declarations are filed with the Mara Law Firm listed as counsel, at a new address. The Court takes judicial notice on its own motion of the February 6, 2019 filing by the Turley Firm on Trade Street in San Diego listing Willi...

Excerpt: ...iv. Proc., § 473, subd. (b).) Here, defendant Hanna Design Group, Inc., seeks to set‐aside its default which was entered on January 7, 2019. In support thereof, it makes three arguments: (1) plaintiffs' complaint is improperly drafted; (2) plaintiffs failed to notify defendant of their intent to seek default before doing so; and (3) attorney fault. The first two arguments are unpersuasive. First, defendant argues that default must be set aside...

Excerpt: ... fees by May 1, 2019. Explanation: 1. Substitution of Attorney Required for New Firm Until a substitution of attorney is filed, signed by the client, counsel of record and the firm of record remain the same. Code of Civil Procedure sections 284 and 285, People ex rel. Department of Public Works (1967) 248 Cal. App. 2d 618, 623. 2. Merits of Motion The interrogatories formally state they may not contain all information, and that a diligent search ...

Excerpt: ...planation: Burden on Summary Judgment “A plaintiff moving for summary judgment meets its burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling that party to judgment on that cause of action.” (Pasadena Metro Blue Line Const. Authority v. Pacific Bell Telephone Co. (2006) 140 Cal.App.4th 658, 663; see also Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Comp...

Excerpt: ...6. Explanation: Attorney Fees: Attorneys' fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc. § 1033.5, subd. (a)(1)(B).) Here, plaintiffs achieved their litigation objective in this action under the Song‐Beverly Act by way of accepting defendant's offer pursuant to Code of Civil Procedure section 998 (“998 Offer”), wherein defendant agreed to pay plaintiff $37,387.95. Plaintiff says this amount was inc...

Excerpt: ...den of persuasion thereon (Evid. Code § 500). Thus, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Plaintiffs moving for summary judgment bear the burden of persuasion that each element of the cause of action in question...

Excerpt: ...e provided this information sooner, it is a valid excuse for nonattendance, if substantiated. The minor's father (GAL and co‐plaintiff) was deposed, and it is reasonable to assume he could have, or may have, testified to his son's condition or that he came to the deposition with other proof of it. And yet defendant did not provide any evidence on this subject, such as evidence that Mr. Melendez failed to corroborate Mr. Quigg's contention that ...

Excerpt: ...nswered, and, moreover, has asserted affirmative defenses that, if proven, might prove a defense for the claims against Eastgate and Raman. (Cf. Adams Mfg. & Eng. Co. v. Coast Centerless Grinding Co. (1960) 194 Cal.App.2d 649, 655 (if it appears that the defaulting defendant's liability is dependent on the answering defendant being held liable, default judgment is not proper). Here, Volvo has pleaded defenses that the accident was entirely the fa...

Excerpt: ...nswered, and, moreover, has asserted affirmative defenses that, if proven, might prove a defense for the claims against Eastgate and Raman. (Cf. Adams Mfg. & Eng. Co. v. Coast Centerless Grinding Co. (1960) 194 Cal.App.2d 649, 655 (if it appears that the defaulting defendant's liability is dependent on the answering defendant being held liable, default judgment is not proper). Here, Volvo has pleaded defenses that the accident was entirely the fa...

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: ...irs of the decedent.” (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 76.) As there is only a “single action for wrongful death, an heir bringing the action should join all known heirs. If an heir refuses to join as a plaintiff, he or she may be named as a defendant, so all heirs are before the court in the same action.” (Adams, supra, 196 Cal.App.4th at p. 77; see Romero v. Pacific Gas & Electric Co. (2007) 156 Cal.App.4th 211, 216 [�...

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

Excerpt: ... to Plaintiff and Cross‐Defendants' ability to raise the challenge to the alleged failure to abide by the pre‐filing requirements of Civil Code section 1714.10 through a more appropriate procedural vehicle. The Court declines to award sanctions. Explanation: Plaintiff and Cross‐Defendants move for sanctions pursuant to Code of Civil Procedure sections 128.5 and 128.7. Code of Civil Procedure section 128.5, subdivision (a), states: A trial c...

Excerpt: ...omplaint of plaintiff Douglas Jackson alleges that on 3/17/15 at Nashville's Bar and Grill (owned and operated by defendant Nashville Investment Group, LLC), defendants Raustyn Hurst, Sharonja Curry, Elizabeth Ferreira, Luke Coghlan, John Hurst, III, and Doreen Duinkerken aka Doreen Hurst (referred to herein as “Doreen”) assaulted and battered plaintiff by striking his face and body. Against the individual defendants plaintiff alleges causes ...

Excerpt: ...efendant Kuldip Singh Preet Marok, as defendant was not properly named in the complaint at the time he was served, and thus was not a party to the action. “A person or entity may become a party defendant only in two ways: by being named as a defendant, or by being properly named and served as a fictitiously named defendant pursuant to [Code of Civil Procedure] section 474.” (Kerr‐Mcgee Chemical Corp. v. Superior Court (1984) 160 Cal.App.3d ...

Excerpt: ....3d 159, 164.) With respect to punitive damage allegations, mere legal conclusions of oppression, fraud or malice are insufficient and therefore may be stricken. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6; see also Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.) In this context, “fraud” means intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with th...

Excerpt: ...f 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 Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620...

Excerpt: ...y LLP's general and special demurrer to the entire “Bill in Equity” without leave to amend. (Code Civ. Proc. §430.10(e), (f).) To grant State Farm Mutual Automobile Insurance Company's motion for sanctions. (Code Civ. Proc. §128.7.) Claimant Andrew Arthur Wysotski is ordered to pay monetary sanctions in the amount of $2,000 to Sheppard, Mullin, Richter & Hampton, LLP within 30 days of notice of this order. Claimant has filed and then subseq...

Excerpt: ... the demurring defendants. Explanation: The court will address these two actions together. Aside from the addresses and dates, the relevant facts, causes of action, allegations and arguments are the same in each action. Trustee's Privilege Defendants contend that all claims against them are barred by the Trustee's privilege. As in the demurrers to the original complaints, plaintiffs do not respond to this argument. Civil Code § 2924(d) states th...

Excerpt: ...., there is house on the property and as a result, the property cannot be physically divided. But, there are no facts pleaded regarding attempts to obtain an agreement to sell. More importantly, CCP § 872.510 states: The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partitio...

Excerpt: ...mages. (Ibid.) Explanation: Motion for Summary Judgment The summary judgment procedure “is drastic and should be used with caution.” (Buehler v. Oregon‐Washington Plywood Corp. (1976) 17 Cal.3d 520, 526.) Accordingly, the affidavits of the moving party are strictly construed, while those of the opposing party are liberally construed. (Huynh v. Ingersoll‐Rand (1993) 16 Cal.App.4th 825, 830.) “[A]ny doubts as to whether summary judgment i...

Excerpt: ...nation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc. §425.16, subd.(a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court deci...

Excerpt: ...complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer Breach of Fiduciary Duty To adequately allege breach of fiduciary duty, a plaintiff must allege a fiduciary relationship, its breach, and damage proximately caused by that breach. (Knox v. Dean (2012) 205 Cal.App.4th 417, 432.) Where a person was once a limited partner, but then sells his or her partnership interest, the “mere fact that...

Excerpt: ...entatives for such claim, and 3) show manageability for trial of all claims. Plaintiff must file that motion by April 17, 2019. Any opposition is due by May 1, 2019, and a reply may be filed on or before May 10, 2019. Explanation: There is no trial date in this action. The claim under Labor Code section 203 is derivative of and dependent on the success of the already‐pled certified claims. The fact that class members have separated from their e...

Excerpt: ...n as to the Sixth Affirmative Defense. Defendant is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with this order. Explanation: The court disregards defendant's “Objections” to plaintiff's amended Separate Statement filed on March 19, 2019, which amounts to a “reply separate statement,” which the summary judgment statute does not provide for or allow. (Nazir v. United Airlin...

Excerpt: ...he Summons and Complaint. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414 [“[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.”].) On the other hand, it is also true that if the evidence supports a finding that defendants were properly served, then their a...

Excerpt: ...430.10(e).) Explanation: Though the pleadings are somewhat vague, it is clear that the trespass claim is premised on judicial orders issued by defendants Judge Pro Tem Amy Lopez and Judge David Kalemkarian in other cases involving plaintiff. "[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement." (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.) "Otherwise, hi...

Excerpt: ...he planned cohabitation did not occur. Plaintiff alleges that despite requests to the Defendant for the return of his property, the items remain in her possession. As a result, on October 29, 2018, he filed a Complaint entitled “Possession of Personal Property and for Damages.” On October 31, 2018, Defendant was personally served with the summons, complaint and other documents. She did not file a response. On December 3, 2018, default was ent...

Excerpt: ...��In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.�...

Excerpt: ...ettlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769, subd.(d).) Fairness of the Settlement Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The Court has a fiduciary responsibility as guardian of absent class members' rights to ensur...

Excerpt: ...Act is to enable a party to obtain evidence in the control of [her] adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits. Its purpose is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits.” (Caryl Richards, Inc. v. Superior Court In and For Los Angeles County (1961) 188 Cal.App.2d 300, 303, internal citations and quotation marks omitt...

Excerpt: ...�Jurisdiction of all interested parties may be had by publication of summons pursuant to Section 6063 of the Government Code in a newspaper of general circulation designated by the court, published in the county where the action is pending and whenever possible within the boundaries of the public agency, and in such other counties as may be ordered by the court, and if there be no such newspaper in any such county or counties then in some adjoini...

Excerpt: ...ld that witness statements obtained as a result of interviews conducted by an attorney, or by an attorney's agent at the attorney's behest, constitute work product protected by section 2018.030. (Caito v. Superior Court, supra, 54 Cal.4th at p. 494.) However, the Court also held that the identities of the witnesses are discoverable, absent a showing that privilege applies. (Id. at p. 502.) Here, plaintiff seeks production of documents and...

Excerpt: ...int within 10 days of the date of this order. Explanation: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to ...

Excerpt: ...tion: 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.) However, where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial. (A...

Excerpt: ...ied on the merits on September 18, 2018. (See minute order adopting tentative ruling dated September 18, 2018.) A motion that seeks the same relief as a previously denied motion is “an application for the same order” within the meaning of Code of Civil Procedure section 1008, subdivision (b), regardless of “‘“the label attached to it. The law is not a mere game of words.”'” (California Correctional Peace Officers Assn. v. Virga (201...

Excerpt: ...ral 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. (Blank v. Kirwan (19...

Excerpt: ...996) 48 Cal.App.4th 1544, discussed the definition of prevailing party under Code of Civil Procedure 1032 and held that, where one meets that definition, fees are to be awarded as a matter of right. There is no discretion to deny fees under such circumstance. (Rancho Mirage Country Club Homeowners Ass'n. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263.) The arguments made by cross‐complainant Westcare California, Inc. (“WestCare”) against any f...

Excerpt: ...ace type. Explanation: A demurrer brought pursuant Code of Civil Procedure section 430.10, subdivision (e), contends that the pleading does not state facts sufficient to constitute a cause of action. In ruling on a demurrer, “the trial court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice[.]” (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 11...

Excerpt: ...lly and dba GSS Truck Parking Terminal. Each court has the power to “control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ. Proc. § 128(a)(5).) This power permits courts to disqualify an attorney based upon a conflict of interest on the motion of another party. (In re Complex Asbestos Lit...

Excerpt: ...on the pleadings. The arbitration agreement attached to the previous motion indicated it was between Plaintiff and an “employer,” but nothing in the submitted papers indicated that “employer” meant Defendant. Therefore, the Court denied the motion to compel arbitration by a minute order dated December 20, 2018. On February 13, 2019, Defendants filed a second motion to compel arbitration. The second motion does not mention the first motion...

Excerpt: ...fifth and sixth causes of action, with leave to amend. Plaintiff is granted 10 days' leave to file an amended pleading. The time in which the complaint may be amended will run from the clerk's service of the minute order. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer Special demurrer to first through fourth causes of action “Following an order sustaining a demurrer … with leave to amend, th...

Excerpt: ...ts 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. (Blank v. Kirwan (1985) 39 Cal.3d 311...

Excerpt: ...y defendant LiDestri Foods, Inc., he fell from an unguarded and elevated height while dumping waste into a lower level recycling dumpster due to lack of proper or adequate guardrail or other safeguards to prevent falls. The cause of action alleges counts of negligence and willful failure to warn. The moving papers show that plaintiff was in fact an employee of employment agency Select Staffing, assigned to work at LiDestri Foods providing sanitat...

Excerpt: ... mutually agreed upon between him and plaintiff's counsel, or (2) a date, time and place as directed in a Notice of Deposition which is properly served upon him. To order defense counsel, G. Andrew Slater, to refrain from advising Mr. Lee not to answer questions where the objection is not based on privilege. To award monetary sanctions against defense counsel, G. Andrew Slater, in the amount of $2,310, payable within 20 days. In the event a heari...

Excerpt: ...as a result, Defendant has not met his burden pursuant to Code of Civil Procedure section 437c(p)(2). Explanation: On December 7, 2018, Defendant Samuel Lucido filed a Notice of Motion seeking summary judgment. The date listed on the Notice for the hearing was February 21, 2019. On the same day, a Memorandum of Points and Authorities, a Request for Judicial Notice, a Separate Statement of Undisputed Facts, the Declaration of Walt Whelan and the D...

Excerpt: ...oposed judgment consistent with the court's summary judgment order. Explanation: In this action plaintiff Amandeep Sandhu dba Akal Carriers, Inc. essentially alleges that defendant Benjamin Ama converted plaintiff's tractor and trailer that plaintiff provided him in connection with his employment. The complaint alleges causes of action for breach of contract, common counts, and conversion. Defendant HST, who was brought into this action through a...

Excerpt: ...pation (“SLAPP”) provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc. §425.16(a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant...

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

Excerpt: ...y defendant LiDestri Foods, Inc., he fell from an unguarded and elevated height while dumping waste into a lower level recycling dumpster due to lack of proper or adequate guardrail or other safeguards to prevent falls. The cause of action alleges counts of negligence and willful failure to warn. The moving papers show that plaintiff was in fact an employee of employment agency Select Staffing, assigned to work at LiDestri Foods providing sanitat...

Excerpt: ...petition. (Super. Ct. Fresno County, Local Rules, rule 2.8.4.) Explanation: The petition indicates that the minor has recovered. The only medical reports provided are from the day of the accident. These records clearly show that the minor had a right tibial plateau fracture and was to follow‐up with Dr. Wiemann in the ortho clinic. The billing attached to the MediCal lien clearly shows services provided in July and August of 2016 yet those reco...

Excerpt: ...d upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” (Code Civ. Proc., § 583.210, subd. (a).) However, in computing the time within which service must be made pursuant to section 583.210, if “[s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's con...

Excerpt: ...injuries. See Declaration of Plaintiff at ¶ 7 and see the deposition of Arenas at page 31 lines 10‐16 attached as Exhibit A to the Declaration of Milligan. Explanation: In support of its motion, the Defendant relies extensively on the case of Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030. In that case, Ms. Peralta fell in the bakery section of Vons. An assistant store manager was summoned. She observed that Ms. Peralta was wea...

Excerpt: ...s of Possession: Plaintiff has met all of the requirements for issuance of the writs of possession under Code of Civil Procedure section 512.010. Plaintiff's claim is based on two written loan agreements and the associated guaranties executed by defendants. The claim appears to be probably valid, as plaintiff loaned defendants money pursuant to the written contracts, defendants promised to repay the loans, and defendants have allegedly failed to ...

Excerpt: ...mend. (Code Civ. Proc. § 430.10(e).) Defendants are to submit to this court, within seven days of service of the minute order, a proposed judgment dismissing this action as to the demurring defendants. The motion to strike punitive damages allegations are moot in light of the ruling on the demurrer. Explanation: Initially the court notes that it does not appear that the Ciresi defendants have met and conferred in person or by telephone as requir...

Excerpt: ...rity for costs and attorney's fees; motion; hearing; undertaking states in full: (a) When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purpose...

Excerpt: ...37c.) The County 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: Defendants Interstate and Meza have filed a cross‐complaint against the County based on the theory that the County is liable for plaintiffs' injuries due to the existence of an allegedly dangerous condition on the property where the accident occurred, which was t...

Excerpt: ...h 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 by showing that one or more elements of the cause(s) of action cannot be established, or that there is a complete defense there...

Excerpt: ...plaint on the ground that plaintiff's exclusive remedy against them is through the payment of workers' compensation benefits, and therefore he cannot prevail on his sole cause of action for motor vehicle negligence. However, defendants have not met their burden of producing evidence showing that they are entitled to the protection of the workers' compensation exclusive remedy rule. First, to the extent that defendant De La Cruz argues that plaint...

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

Excerpt: ...ber 26, 2018. The papers must, at the very least, demonstrate a valid excuse for failing to respond to the Pretrial Discovery Conference Order for purposes of the Code of Civil Procedure §473. Plaintiff may seek any other appropriate relief as well. The Court may be inclined to attach conditions to the relief sought, including the payment of court and/or attorney's fees incurred during this process. The stay on enforcement of the November 26, 20...

Excerpt: ...e the facts appearing on the face of the complaint, it also accepts as true the facts appearing in the attached exhibits, and if the exhibits' facts are contrary to the pleading's allegations, the exhibits will be given precedence. (Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1146.) However, plaintiff's interpretation of the contract must be accepted as correct in testing the sufficiency of the complaint. On general demu...

Excerpt: ...sident's [Greg Bray's] consent, instruction and/or durable power of attorney,” and she stated, “I hereby certify that I am authorized to act as Resident's agent in executing and delivering of this Arbitration Agreement.” Defendant argues that it relied on Sarah's statement of her authority to sign as Greg's agent. However, defendant bore the burden of establishing a valid agreement to arbitrate. (Pagarigan v. Libby Care Center, Inc. (2002) ...

Excerpt: ... court … determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc. § 639, subd. (a)(5).) On the other hand, Rule of Court 3.920, subdivision (c) provides that a discovery referee may not be appointed under Code of Civil Procedure section 639, subdivision (a)(...

Excerpt: ... a single cause of action for retaliation in violation of Government Code section 12940, subdivision (h). As a condition of plaintiff being granted leave to file a Second Amended Complaint alleging two new causes of action, this motion is being treated as one for summary adjudication of the retaliation cause of action. Plaintiff objects to the motion on the ground that the moving papers were not timely served. The proof of service of the motion s...

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...

Excerpt: ...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: 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 to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests onl...

Excerpt: ...hearing is required and plaintiff does not prevail, for plaintiff's bad faith opposition and his refusal to withdraw or modify his subpoena. (Code Civ. Proc. § 1987.2.) Plaintiff shall pay monetary sanctions to defendants within 30 days of the date of service of this order. Explanation: “If a subpoena requires … the production of books, documents, electronically stored information, or other things before a court, … the court, upon motion r...

Excerpt: ..., upon motion of the injured party, or its own motion, 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. (Id., emphasis added.) Defendant argues that the “default is void” because the summons served on him named the person served as “Lawrence K. Logan.” Neither the comp...

Excerpt: ... Civ. Proc. §2025.450(g)(1).) Plaintiffs to pay sanctions to the Betts & Rubin law firm, within 30 days of the clerk's mailing of the minute order. Explanation: “The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that actio...