Excerpt: ...e Judicial Council complaint form, but filed only the first three introductory pages and failed to attach the pages required to comprise the causes of action. Even so, plaintiff did check the box for "general negligence" at Item 10b (page 3), and also added the following at the "other" box at Item 10f: "Missing the Statue [Sicl of Limitations, Not Keeping Copies of Client File, Failure to Perform, Failure to Communicate, Improper Withdraw." Const...

Excerpt: ...parties are ordered to appear so that the court may determine whether such an interested party exists and if so, set a new court trial date. Explanation: Burden on Summary Judgment As the party moving for summary judgment, plaintiff bears an overall burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Woodridge Es...

Excerpt: ...ere preference is to be granted based on age, medical reasons, in the interests of justice, or based on time for trial. Here, plaintiff and cross-defendant are requesting preference based on the Code of Civil Procedure section 36, subdivision (a). Subdivision (a) provides: (a) A party to a civil acton 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:...

Excerpt: ...") for indemnity and declaratory relief, pursuant to Code of Civil Procedure section 426.50. Defendant contends that it seeks to state a claim against plaintiff for issues arising out of the same facts and incidents alleged by plaintiff in the first amended complaint. As defendant seeks to state a claim against plaintiff related to plaintiff's causes of action, the cross-complaint is compulsory. (Code Civ. Proc. S 426.30, subd. (a).) Where a prop...

Excerpt: ... only the evidence on reply may be filed by plaintiff no later than on Friday, June 16, 2023, at 5:00 p.m. A response to plaintiff's briefing may be filed by PVB no later than on Thursday, June 22, 2023, at 5:00 p.m. Explanation: A defendant who prevails on an ant-SLAPP (Strategic Litigation Against Public Participation) motion is entitled to attorney fees. (Code Civ. Proc., S 425.16, subd. (c)(l).) Even where the plaintiff dismisses the action o...

Excerpt: ...tacking the same pleading, set to be heard over a month apart. In the interests of judicial economy, the court continued Dr. Montgomery's motions to be heard jointly with Dr. Smith's motion on June 13, 2023. Because plaintiff's counsel failed to cooperate with defendants' efforts to meet and confer in connection with their challenges to the original Complaint, on October 4, 2022, the court ordered: "In light of plaintiff's counsel's refusal to me...

Excerpt: ... amend. (Code Civ. Proc. S 430.10, subd. (e).) To overrule the demurrer on all other grounds. (Code Civ. Proc. S 430.10, subd. (e),(f).) Plaintiff shall file and serve an amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: On August 22, 2022, plaintiff filed suit against defendants California Department of State Hospitals ("CDSH"), Robert Withrow, Brandon Price, Stanf...

Excerpt: ...the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible diffculty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against ...

Excerpt: ...e the second amended complaint. The time to file the second amended complaint will run from service by the clerk of the minute order. Explanation: Defendant Farmers Insurance demurs to the sole cause of action stemming from a motor vehicle accident, contending that the First Amended Complaint ("FAC") fails to state cause of action, there is a nonjoinder or misjoinder of parties, the FAC is vague and ambiguous, and the cause of action is time-barr...

Excerpt: ...murrer Generally The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697....

Excerpt: ... entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005." (Code Civ. Proc., S 877.5, subd. (a)(l).) A determination that the settlement was made in good faith bars any other joint tortfeasor or co-obligor from further claims against the settling tortfeasor or...

Excerpt: ... notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass orto cause unnecessary delay or needless increase in the cost of litigation. (2) The claims, defenses, an...

Excerpt: ... minute order, a order consistent with the court's summary adjudication ruling. Explanation: Successive Motions for Summary Judgment/Adjudicabon "A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summ...

Excerpt: ...noticed by Defendants County of Fresno and Fresno County Sheriff's Offce ("County Defendants") of plaintiff, Dale Blickenstaff, and/or other witnesses identified in those depositions. (Code Civ. Proc. S 2033.300, subd. (c).) To deny Defendants County of Fresno and Fresno County Sheriff's Office's motion for summary judgment. (Code. Civ. Proc. S 437c, subd. (p)(2).) Explanation: Plaintiff's Motion to Withdraw Admissions Deemed Admitted Plaintiff m...

Excerpt: ...ssue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., S 437c, subd. (c).) In moving for summary judgment, a "defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of achon „ cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc. S 437c, subd. If ...

Excerpt: ... grant preliminary approval of the proposed settlement. 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 acton 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 ...

Excerpt: ...ward. Explanation: 1. Legal Standards "When, as here, a class settlement is negotiated prior to formal class certification, there is an increased risk that the named plaintiffs and class counsel will breach the fiduciary obligations they owe to the absent class members. As a result, such agreements must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) ...

Excerpt: ... which the complaint may be amended will run from service of the order by the clerk. In light of plaintiff's counsel's refusal to meet and confer prior to the filing of the demurrer, the court will require plaintiff to initiate and conduct a telephonic or in-person conference of the parties prior to amending the complaint. (See Cade Civ. Proc., S 430.41, subd. (c).) Plaintiffs counsel shall file with the amended complaint a declaration describing...

Excerpt: ...ls to state facts sufficient to constitute a cause of action[.l " (Dem., p. 2:15-17, citing Code Civ. Proc., 5430.10, subd. (e).) Any valid cause of action overcomes a general demurrer. (Quelimane Co., Inc. v. Stewart Title Guarantee Co. (1998) 19 Cal.426, 38-39.) The court must overrule a general demurrer if the complaint states a cause of action under any possible legal theory. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) ...

Excerpt: ...o contnue the demurrer to June 28, 2023, at 3:30 p.m. in Department 501. The deadlines for opposition and reply papers will remain the same as for the original hearing date. Explanation: On 12/23/22, a motion to dismiss was filed by defendants Bank of America, N.A. (for itself and as successor by merger to BAC Home Loans Servicing, LP and Recontrust Company, N.A.), Mortgage Electronic Registration Systems, Inc., MERSCORP Holdings, lnc„ and The ...

Excerpt: ...y is certain, the motion may be renewed. To overrule the objections of Amazing Energy Partners, Inc. Explanation: Interpleader, Generally "When a person may be subject to conflicting claims for money or property, the person may bring an interpleader action to compel the claimants to litigate their claims among themselves." (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122.) "An interpleader action is an equitable proceeding. [Citatio...

Excerpt: ...anguage must be set in boldface type. Explanation: The Fair Employment and Housing Act ("FEHA") exempts religious associations or corporations which are not organized for private profit. (Gov. Code, S 12926, subd. (d).) Plaintiff concedes that the religious exemption in FEHA would normally apply to defendant, but that defendant's acts of displaying ant-discriminatory posters constitutes a waiver of the religious organization exemption and that de...

Excerpt: ...iego (2020) 59 Cal.App.5th 63, 72.) Government Code section 911.2, subdivision (a), provides that such a claim is to be presented no later than six months after the accrual of the cause of action. (Gov. Code, S 911.2; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) The policy behind the requirement to file a timely claim is threefold, as it 1) gives the entity an opportunity to promptly remedy the condition, 2) allows the entity t...

Excerpt: ...5 and Exhibit A. To overrule plaintiffs remaining objections. To reserve the issue of sanctions. If oral argument is timely requested, the matter will be heard on Friday, June 2, 2023, 3:30 p.m. in Dept. 403. Explanation: Notice Counsel is required to provide notice to the opposing party when issuing a third party subpoena for business records. (See Code Civ. Proc„ S 2025.220, subd. (b); California Shellfish Inc. v. United Shellfish Company (19...

Excerpt: ...es, Set One, and Request for Production of Documents, Set One. Plaintiff Melinda Frias is ordered to serve verified responses, without objections, to plaintiff Sylvia Kissing's Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One, no later than 30 days from the date of this order, with time to run from the service of this minute order by the clerk. To impose monetary sanctions in favor ...