Excerpt: .... Proof of undertaking must be filed with the Court before the writ will be issued. Explanation: (Note‐ as of December 17, 2019, no opposition appears in the Court's files.) Plaintiff asks this Court to issue a writ of attachment against Kelly English, dba Maverick Academic Prep Program in the amount of $55,899.61. Attachment is a prejudgment remedy that allows a creditor to have a lien on the debtor's assets until final adjudication of the cla...

Excerpt: ...nd all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three‐prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and...

Excerpt: ...s for summary adjudication, without prejudice, as it appears that plaintiff has not been properly served at her current address with the motions and she is not competent to represent herself in the action. (Code Civ. Proc. § 437c.) To order the Public Guardian's Office to appear at the hearing to discuss appointing a guardian or conservator and legal counsel to represent plaintiff's interests in the case. Also, the court intends to take the pend...

Excerpt: ... no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. As the party moving for summary judgment, the defendant has the burden to show it is entitled to judgment concerning all theories of liability asserted by plaintiff. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717.) The ultimate burden of persuasion on summary judgment/adjudication rests on the moving party. The initial burden of pro...

Excerpt: ...Explanation: The California Public Records Act (“CPRA”) is contained in Chapter 3.5 of Title 1 of the Government Code. (Gov. Code, § 6251.) The California Supreme Court observed that the CPRA “was enacted for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies.” (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425.) Specifically, section 6259, subdi...

Excerpt: ... and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3. In addition, “The superior court shall review and appro...

Excerpt: ...oceeding taken against him or her as a result of mistake, inadvertence, surprise, or excusable neglect, where the application for relief is made within six months of entry of the judgment, order, or other proceeding. (Code Civ. Proc. §473(b).) Application for relief may be based on either (1) an attorney affidavit of fault, in which event relief is mandatory; or (2) declarations or other evidence showing mistake, inadvertence, surprise or excusa...

Excerpt: ...permits a motion to quash a subpoena. It does not fall under the statutes which require a pre‐trial discovery request. The entirety of Code of Civil Procedure sections 2020.410 – 2020.440 do not discuss motions to compel compliance or to quash. The word “motion” does not appear. Fresno Superior Court Local Rule 2.1.17 applies solely to motions made under the sections listed, thus no pre‐trial discovery conference is required. Likewise, ...

Excerpt: ... Semper, and Lauren Semper without prejudice to securing their depositions at a later date after relevant adult witnesses have been deposed and other discovery has been conducted. Any future depositions with minor children shall be subject to a protective order. Prior to noticing any further motions to compel the depositions of the minor children, the parties are ordered to meet and confer on a proposed protective order. To grant the motion to co...

Excerpt: ... as the parties may agree in writing. To deny the motion to compel production of documents at such deposition. Sanctions in the amount of $310 are awarded against Defendant William Alexander Carney, payable to Whelan Law Group within forty‐five (45) days of the date of service of this order. Explanation: Plaintiff moves to compel the deposition of Defendant William Alexander Carney pursuant to a notice of deposition, served on September 9, 2019...

Excerpt: ...subdivision (d), aka Song‐Beverly, provides: “If the buyer prevails in an action under this section, the buyer 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. Code §...

Excerpt: ...tatements in violation of Labor Code section 226(a), (2) failure to provide meal and rest periods or compensation in lieu thereof in violation of Labor Code sections 226.7 and 512, and (3) constructive discharge in violation of public policy. The second and third causes of action are individual causes of action for plaintiff only, and are not brought on behalf of other aggrieved employees. Because an aggrieved employee's action under the [PAGA] f...

Excerpt: ...did not met statutory requirements, and the Court exercises its discretion to consider both. Code of Civil Procedure section 403 states: “A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards ...

Excerpt: ...post a bond on the ground that plaintiff is a vexatious litigant and “there is not a reasonable probability that he will prevail in the litigation against the moving defendant.” Plaintiff clearly was deemed a vexatious litigant. The question is whether plaintiff has a reasonable likelihood of prevailing. The court is not bound to assume the truthfulness of the vexatious litigant's complaint. It may weigh the evidence presented on a motion to ...

Excerpt: ...e of a Writ of Attachment as to Cross‐Defendant BCJ Sand and Rock, Inc. 3) Hearing on Defendant and Cross‐Complainant Sequoia Equipment Company, Inc.'s Application for Right to Attach Order and for Issuance of a Writ of Attachment as to Cross‐Defendant Darwin Christ Tentative Ruling: To deny all applications. Explanation: Plaintiff Macquarie Equipment Capital, Inc.'s Application The court finds that the operative question with the applicati...

Excerpt: ...1942) 19 Cal.2d 570, 576‐578; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300; Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97.) For attorney misconduct to support equitable relief due to extrinsic mistake, there must have been “neglect of an extreme degree amounting to positive misconduct” by counsel, rather than mere inexcusable neglect, sufficient to obliterate the attorneyclient relationship and thereby preclude an...

Excerpt: ...ent with the ruling on the motion. Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c).) 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...

Excerpt: ...g: To sustain the demurrer of defendants Biltz and Guzman to each cause of action alleged against them for failure to state facts sufficient to constitute a cause of action. To deny leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) To grant Biltz and Guzman's motion to strike the allegations and prayer for punitive damages, without leave to amend. (Code Civ. Proc. §§ 435, 436.) To sustain the demurrer of St. Agnes in part, and overrule in...

Excerpt: ...pe. Explanation: “Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. Fairness dictates that a complaint give the defendant sufficient notice of the cause of action stated to be able to prepare the case.” (Leek v. Coop...

Excerpt: ...or, in the alternative, for issue, evidence, and/or monetary sanctions against Plaintiffs Yan Li and Yuqiang Yang as individuals and as successors in interest to Qinsong Yang Tentative Ruling: To grant the motion for an order deeming admitted the truth of facts in Defendants' Request for Admission, Set One, as to Plaintiff Yan Li and to award sanctions in the amount of $495 against Plaintiff Yan Li, payable within thirty (30) days of the date of ...

Excerpt: ...n 583.410 should not be entered if this paperwork is not submitted by the deadline of January 31, 2020. Explanation: There has been an inordinate amount of delay in this case. The only remaining defendant was defaulted in November 2017, and yet the initial application for entry of judgment was not even presented until April 2018. Then, the delay from the court's denial of the request for default judgment in May 2018,1 until entry of dismissal on ...

Excerpt: ...ng sanctions and an order dismissing this case pursuant Code of Civil Procedure §2023.030(d)(3). To grant defendants' motion to compel the plaintiff Mariaelena Galindo's attendance at deposition. Mariaelena Galindo is ordered to attend deposition as rescheduled by defendants, who shall provide plaintiff a minimum of ten days' notice so that she may make arrangements to attend the deposition. To grant defendants' motion for monetary sanctions. CC...

Excerpt: ...roc. § 430.10.) To strike the second and third amended answers on the court's own motion, as they were improperly filed without leave of court. (Code Civ. Proc. § 472.) To grant leave to amend the answer. Defendant shall file and serve his second amended answer within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: First, the second and third amended answers were both improperly filed b...

Excerpt: ...orth in boldface typeset. Explanation: Defendants Lopez, Garza, Tienda, Molina, Vasquez and Robles (“Moving Defendants”) have filed the present demurrer to Plaintiff's complaint. 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 ...

Excerpt: ...r 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 opposition by the existing parties. (Code Civ. Proc. § 387; Truck Ins. Exch. v. Sup.Ct. (1997) 60 Cal.App.4th 342, 346; Reliance...

Excerpt: ...cal conditions/injuries. The court also intends to issue a protective order as requested by County Counsel, limiting use of any records that may be disclosed after the court's in camera inspection to the defense team and plaintiffs' team. Any transcripts or copies of the records made by the court shall be placed under seal. The moving party shall contact the department to schedule the in camera review. Explanation: Preliminarily, Evidence Code §...

Excerpt: ... terms of the settlement. (Code Civ. Proc. § 664.6.) Explanation: Under Code of Civil Procedure section 664.6, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” “If the court determines that the parties entered into an en...

Excerpt: ...488, contains the list of factors for use in determining whether the settlement was made in good faith. These include the following: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs (4) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial; (5) the ...

Excerpt: ...uld be filed by March 31, 2020, with the final approval hearing set for 3:30 p.m. on April 21, 2020 in this Department. Explanation: 1. CLASS CERTIFICATION a. Standards An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Ne...

Excerpt: ...ll make installment payments for several years. Sealing mandates a “document by document analysis and the threshold inquires required by the First Amendment.” In re Marriage of Burkle (2006) 135 Cal. App. 4th 1045, 1050. Defendants have not attempted to demonstrate that each of the 8,125 pages of materials meet the tests required by law for sealing. They assert privacy and that they will somehow be harmed if disclosure occurs, but do not stat...

Excerpt: ...int. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the First Amended Complaint are to be set in boldface type. Explanation: First Cause of Action – Breach of Contract Generally, “[i]t is well established that a judgment in an action for breach of contract bars a subsequent action for additional relief based on the same breach.” (Mycogen Corp. v. Monsanto Co. (2002) ...

Excerpt: ...erk of the minute order. Explanation: The core issue here is whether the decision made by the Personnel Commission which is the subject of the Petition herein was both final and binding, and whether this can be discerned on demurrer. Both sides refer to this as an “arbitration,” so it appears no one quarrels with this designation. However, arbitration in the context of administrative decisions can be either binding or nonbinding, and unless t...

Excerpt: ...of the class, one concern is the adequacy of the class representative, who has executed a confidential side settlement agreement, for which he seeks a payment of $10,000. That is approximately 30 times the amount of his likely individual class settlement, as estimated by the Court based on the amount of time he worked for defendant (between 8 and 9 months) and the figures set forth in the points and authorities. The figure represents $180 an hour...

Excerpt: ... the issue of summary judgment based on standing, in order to allow Plaintiff the opportunity to seek appointment in the Probate Court as Personal Representative of the Estate of Elvin Jones, as required, and then to file an Amendment to the Complaint once Letters have been obtained. If no such appointment and amendment is made, the court intends to grant summary judgment in defendant's favor based on plaintiff's lack of standing to bring the cla...

Excerpt: ...r date, time, and place as the parties shall agree to in writing). Sanctions are awarded jointly and severally against Mr. Simpson and counsel for Plaintiff in the amount of $2,975.00, payable within thirty (30) days of this order. The independent medical examination is to occur within ten (15) court days of this order (or on such other date, time, and place as the parties shall agree to in writing). The scope of the examination is limited to an ...

Excerpt: ... order, limiting the scope of the subpoenas to the time period from January 1, 2008 to June 3, 2015. (Ibid.) To deny both parties' requests for monetary sanctions against the other. (Code Civ. Proc. § 1987.2.) Explanation: Code of Civil Procedure section 1987.1, subdivision (a) provides: If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or ...

Excerpt: ...xplanation: 1. Preliminary Certification of the Class Before the court can grant preliminary approval of the class action settlement, it must grant preliminary certification of the proposed class. (Cal. Rules of Court, rule 3.769(d).) Before a court may approve the settlement, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Prods., Inc. v. Windsor (1997) 521 US 591, 625‐27.) However, because a trial court ...

Excerpt: ...an (“the Srabians”) to issue acknowledgment of satisfaction of judgment, or, in the alternative, to have the clerk of the Court enter the same, on the ground that acknowledgments of full satisfaction of judgment have been entered, and the motion is therefore moot. To deny the request for attorney fees and costs pursuant to Code of Civil Procedure section 724.050. Explanation: On October 24, 2019, defendant and cross‐complainant Larry K. Bue...

Excerpt: ...compel further responses, without objection, to Form Interrogatory (“FI”) nos. 1.1, 15.1, 17.1. To deny as to FI no. 12.1. (Code Civ. Proc. § 2030.300(c).) To grant the motion to compel further responses, without objection, to Requests for Admission (“RFA”) nos. 17‐19, 21, 22. To deny as to RFA nos. 2, 20, 24, 27‐38. (Code Civ. Proc. § 2033.290(c).) To grant the motion to compel further responses, without objection, to Request for P...

Excerpt: ...to Code of Civil Procedure section 425.16. City argues that plaintiff's entire case stems from administrative investigations into suspected misconduct of plaintiff and his coworker La‐Kebbia Wilson, and that such constitutes “official proceeding[s] authorized by law” within the meaning of the SLAPP statute. City then argues that plaintiff is not likely to prevail on the merits. The court finds City's arguments persuasive. Code of Civil Proc...

Excerpt: ...in judgment in the action.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.) The defendant need only show that it is reasonably possible they will win. (Id. at 1432 [noting that burden is satisfied through demonstration of an arbitration award, the arbitrator's letter and police report]; see also Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914 [arbitration award sufficient demonstration of reasonable possib...

Excerpt: ...s that she can make the requisite evidentiary showing under Code of Civil Procedure section 425.13, then she may bring a motion to amend the complaint to add her prayer for punitive damages against defendant Clark. Explanation: Demurrer: Defendant contends that plaintiff has not stated a valid claim for assault or battery because she consented to the medical procedure that was performed on her. However, plaintiff has alleged that she withdrew her...

Excerpt: ... part of paragraph 20 which states “and are forever barred and enjoined from prosecuting such released claims against the Released Parties.” The Judgment need also reflect that if all checks for the class members are cashed, $115,792.12 will be paid to class members, and that the parties are to report back on July 23, 2020 at 3:30 p.m. in this Department as to the amounts paid and the total amount of any uncashed checks for possible amendment...

Excerpt: ...g: To sustain the demurrer of defendants Biltz and Guzman to each cause of action alleged against them for failure to state facts sufficient to constitute a cause of action. To deny leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) To grant Biltz and Guzman's motion to strike the allegations and prayer for punitive damages, without leave to amend. (Code Civ. Proc. §§ 435, 436.) To sustain the demurrer of St. Agnes in part, and overrule in...

Excerpt: .... To deny all requests in the motion to strike except the request to strike the prayer for punitive damages in the seventh cause of action, at Paragraph 52, which is granted without leave to amend absent plaintiff making a timely motion under Code of Civil Procedure section 425.13. The motion to strike is moot as to the second cause of action (elder financial abuse) due to the ruling on demurrer. Plaintiffs are granted 10 days' leave to file the ...

Excerpt: ...“SVP”) housed as a civil detainee at the Department of State Hospitals Coalinga facility (“DSH – Coalinga”) wants to tithe 10 percent of his income to the Hospital Protestant Chapel by mailing to the chapel items deemed to be contraband by DSH – Coalinga regulations. According to the amended complaint, plaintiff's various efforts to do so have been rebuffed. He is now suing under 42 U.S.C. section 1983 (“section 1983”). The one de...

Excerpt: ...orcing a judgment for costs against a person who is not within the court's jurisdiction. The statute therefore acts to prevent out‐of‐ state residents from filing frivolous lawsuits against California residents.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428, citations and quotation marks omitted.) The statute “provides that upon a defendant's motion, the trial court is required to order an out‐of‐state plaintiff to file an un...

Excerpt: ...99, subd. (a).) Explanation: California Code of Civil Procedure section 399, subdivision (a) authorizes a court to dismiss a case without prejudice if the costs and fees relating to a transfer order are not timely paid. In pertinent part, it states: If the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, those costs and fees, including any expen...

Excerpt: ...t, or in the Alternative, Motion for Summary Adjudication (filed June 7, 2019) Tentative Ruling: To deny all three motions, in their entirety. Explanation: When defendant filed its first motion, on May 22, 2019, the accompanying declaration from defense counsel, August B. Hotchkin, stated that he “attempted to comply” with the requirements of subdivision (t) of California Code of Civil Procedure section 437c, which allows a party to move for ...

Excerpt: ... objections. Objections of Cardiovascular Consultants Heart Center (“CVC”): The objections do not comply with California Rules of Court, rule 3.1354(b). None of the objections are sequentially numbered, and some objections fail to quote or set forth the objectionable statement or material. (Cal. Rules of Court, rule 3.1354(b).) Having reviewed the objections and the material objected to, the objections would be overruled on the merits, as wel...

Excerpt: ...son Most Knowledgeable and custodian of records. Plaintiffs' Notice of Deposition identifies 39 matters for examination and 42 categories of documents to be produced. Plaintiffs' Notice unilaterally set the deposition for 7/25/19. On 7/1/19 Plaintiffs requested alternative dates by 7/19/19 if GM and its counsel were not available on the unilaterally chosen date. (Morse Dec. Exh. B). There was some communication about when the deposition would tak...

Excerpt: ...er's fees and costs. Explanation: The property has now been sold and remediated, so there is no longer any need for the receiver to manage the property. Therefore, the court grants the motion to discharge the receiver. (Sly v. Superior Court (1925) 71 Cal.App. 290, 294 [trial court has inherent power to discharge receiver as part of its power of appointment].) Also, the receiver has filed his final report and accounting, which appears to be reaso...

Excerpt: ...new or amended allegations shall be set forth in boldface typeset. Explanation: A general demurrer admits the truth of all material allegations and a court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or ...

Excerpt: ... 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 causes of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. § 437c, subds. (p)(2), (o)(2).) Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action and...

Excerpt: ...87, “[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.” ...

Excerpt: ...quests for production of documents, set one. To grant ADM's motion for additional monetary sanctions of $1,750 jointly and severally against RBT and its counsel, Georgeson & Bellardinelli and the Law Firm of Campagne and Campagne, for their continued willful and deliberate failure to comply with this court's prior orders of November 20, 2018 and June 21, 2019 compelling RBT to respond to the document requests. RBT and its counsel shall pay moneta...

Excerpt: ... cases for the proposition that declaratory review of an administrative decision is not allowed. The Legislature disagrees where the decision is to adopt a regulation. The rule for scope of judicial review of the validity of regulations is set forth at Government Code sections 11350‐11350.3. Section 11350(a) states: “Any interested person may obtain a judicial declaration as to the validity of any regulation or order of repeal by bringing an ...

Excerpt: ...fin, M.D. is granted 10 days' leave to file his answer to the complaint, notwithstanding the fact that plaintiffs are given leave to amend the complaint as to other causes of action not stated against defendant Griffin. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer to 42nd Cause of Action for Intentional Infliction of Emotional Distress by Plaintiff Linda J. Anderson The el...

Excerpt: ...s of action. To sustain the demurrer to the fifteenth and sixteenth causes of action for failure to state facts sufficient to constitute a cause of action, with leave to amend. (Ibid.) Plaintiff shall serve and file his third amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: In his fourth through eighth causes of action, plaintiff alleges claims for slander of title, negl...

Excerpt: ...he motion to strike specifications 2, 4 and 5, without leave to amend. To deny the motion to strike specifications 1, 3, and 6. Defendants shall file their answer to the First Amended Complaint within 10 days of the 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 ma...

Excerpt: ...the minute order. Explanation: Defendant demurrers to the entire complaint based on uncertainty, and also demurs generally, i.e., failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e) and (f).) On Page 2, Paragraph 8, plaintiff checked the box indicating the cause of action attached was for breach of contract, and at Paragraph 10 she indicated that the amount of damages requested was $37,000, wi...

Excerpt: ...tled to some relief.” (Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1152.) The complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc. § 425.10.) Plaintiff does not allege any facts in his Complaint, having failed to include any cause of action attachment to the Judicial Council form complaint. Since plaintiff pleads no facts, he fails to state a cause of ...

Excerpt: ...e trial to a mutually agreeable date no later than July 2, 2019. (California Rules of Court, rule 3.1332, subdivision (c)(6) & (c)(7).) 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.) In the case at bar, plaintiff seeks leave: (1) to correctly name her veh...

Excerpt: ...o ensure that they can continue farming on the remainder of their property. Explanation: Under Code of Civil Procedure section 1255.410, subdivision (a), “At the time of filing the complaint or at any time after filing the complaint and prior to entry of judgment, the plaintiff may move the court for an order for possession under this article, demonstrating that the plaintiff is entitled to take the property by eminent domain and has deposited ...

Excerpt: ...bjections. Explanation: Special Summary Judgment Rules in Employment Discrimination Cases Special rules govern allocation of the burden of proof on motions for summary judgment in employment discrimination cases, under both federal and state law, and state courts follow the approach taken by federal courts in these cases. The test uses a system of shifting burdens. (Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 354‐355.) It is intended ...

Excerpt: ...a bench trial. Given that the moving party has not met its burden, it is not necessary to examine the opposition or the reply. It is not necessary to rule upon evidentiary objections. See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. Explanation: Defective Separate Statement CCP § 437c(b)(1) states in relevant part: …The supporting papers shall include a separate statement setting forth plainly and concisely all material fa...

Excerpt: ...n a manner that violates any provisions of this part, the building standards published in the State Building Standards Code relating to the provisions of this part, any other rule or regulation adopted pursuant to the provisions of this part, or any provision in a local ordinance that is similar to a provision in this part, and the violations are so extensive and of such a nature that the health and safety of residents or the public is substantia...

Excerpt: ... on the ground that it was improperly filed without first seeking leave of court under Code of Civil Procedure section 473, subdivision (a)(1), this contention is not a proper ground for a demurrer. Failure to obtain leave of court for an amended pleading is not one of the listed statutory grounds for a demurrer. (See Code Civ. Proc. § 430.10, subd. (a)‐(i).) Instead, if a party objects to an improperly filed amended pleading, the correct reme...

Excerpt: ...s after the completion of the record. (Code of Civ. Pro., § 2025.480(b).) Here, 75 days elapsed, and the motion must therefore be denied. (See infra.) If the instant motion is treated as a motion to compel further responses to inspection demands, to deny on the ground that the motion was filed more than 45 days after the response containing the objection was served. As a result, Plaintiff has waived the right to compel pursuant to Code of Civil ...

Excerpt: ...alidly allege facts to support the punitive damages claims. Explanation: Defendant has filed a purported demurrer to the Third Amended Complaint. Although the documents contain a memorandum of points and authorities and a notice, it does not appear that Defendant has filed a separate demurrer. The notice states that the “demurrer” is made on the ground that the Third Amended Complaint “is uncertain, fails to state sufficient facts to suppor...

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

Excerpt: ... by affidavit stated facts establishing every element . . . necessary to sustain a judgment in his favor.” (See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 (emphasis in original, internal quotations omitted).) Given that the moving party has not met her burden, it is not necessary to examine the opposition or the reply. It is also not necessary to rule upon evidentiary objections. Explanation: Requirements for Summary Adjud...

Excerpt: ... to form interrogatories, set one, and request for production of documents, set one, deem request for admissions, set one, admitted and for monetary sanctions Bradley Oberg's motions to compel the defendants Jamie Cerda and Linda Cerda's attendance at deposition Tentative Ruling: The court notes that the City scheduled 2 motions and filed 2 sets of moving papers. In actuality each set of moving papers consisted of 3 motions combined into one set ...

Excerpt: ...ce of this ruling by the clerk to file either their answers or other appropriate response. Explanation: Motion to Quash Defendant Mazda Motor Corporation (“MMC”) specially appears and moves to quash the service of summons on it pursuant to Code of Civil Procedure sections 418.10 and 581, subdivision (h), on the following grounds: 1) the service of process was not made in accordance with the Hague Convention on the Service Abroad of Judicial a...

Excerpt: ... whether or not this matter and Amaro v. Gerawan Farming, Inc., United States District Court Case No. 1:14‐cv‐00147‐DAD are related pursuant to California Rules of Court, rule 3.300, and the impact of the certified class in that matter on the instant case. To order those papers to be filed on or before March 12, 2019. Explanation: 1. Class Certification a. Standards An agreement of the parties is not sufficient to establish a class for sett...

Excerpt: ...he time in which the amended pleading may be filed will run from service by the clerk of the minute order. All new allegations are to be set in boldface type. 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...

Excerpt: ...sly authorized under Civil Code section 3439.07, subdivision (a)(2), which provides that in an action for relief under the UVTA the creditor may obtain “[a]n attachment or other provisional remedy against the asset transferred or other property of the transferee” “in accordance with the procedures described in Title 6.5 (commencing with Section 481.010) of Part 2 of the Code of Civil Procedure.” This provides one of the statutory exceptio...

Excerpt: ...the Uniform Fraudulent Transfers Act (UFTA). Under Civil Code section 3439.07, (a) In an action for relief against a transfer or obligation under this chapter, a creditor, subject to the limitations in Section 3439.08, may obtain: (1) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor's claim. (2) An attachment or other provisional remedy against the asset transferred or other property of the transferee in...

Excerpt: ...provisions of the Code of Civil Procedure. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the...

Excerpt: ...tice to a party in time to defend the action and a default or a default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action." (Code Civ. Proc., § 473.5, subd. (a).) Section 473.5, subdivision (c) allows the court to set aside the default judgment if it finds the defendant's lack of actual notice in time ...

Excerpt: ...omplainant Norcal Mutual Insurance Company (“NORCAL”) to the evidence submitted by Plaintiff and Cross‐ Defendant Cardiovascular Consultants Heart Center (“CVC”): Jamison Declaration: Sustain objection nos. 4 and 8; overrule the remainder. Morrow Declaration: Sustain objection nos. 3, 6, 7, 9, 10, 11; overrule objection nos. 1, 2, 4, 5, 8. Boran Declaration: Sustain objection no. 6; overrule objection nos. 1‐5, 7, 8. Additionally, CVC...

Excerpt: ...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.) 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 includ...

Excerpt: ...phs 74, 80, 87, and 92 and the reference to “defendants' in paragraph 108, to deny the opposed motion to strike as to the remainder. Plaintiff shall file and serve a Second Amended Complaint within 10 days of the clerk's service of this minute order. New allegations shall be in boldface type font. Explanation: Demurrer: Defendants generally demur to the first and sixth causes of action. First Cause of Action – FEHA Retaliation Plaintiff's fir...

Excerpt: ...or uncertainty to the second cause of action and the common count and rendered moot. An amended pleading in conformity with the ruling of the Court is to be served and filed within 20 days of notice of the ruling. Notice runs from the date that the Minute Order is served by the Clerk plus 5 days for service via U.S. Mail. (CCP § 1013). Explanation: Requests for Judicial Notice Defendants request judicial notice of the certified license history o...

Excerpt: ...on 473(a)(1) states: “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 the adverse party, allow, upon any ter...

Excerpt: ...hing the reason each cost claimed was incurred, so that it can be determined which costs arose from Plaintiff's non‐ FEHA causes of action. The Court will continue the hearing on the instant motion to Wednesday, March 20, 2019, to allow Defendant time to file its evidence regarding its costs incurred in defending against Plaintiff's non‐FEHA claims. Explanation: “California courts have followed federal law, and hold that, in exercising its ...

Excerpt: ...y the clerk. Explanation: On April 19, 2018, Shaver Springs successfully moved to strike certain punitive damages allegations from the Complaint. Any amended complaint was to be filed and served within 10 days of service of the order by the clerk. (See April 19, 2018 Order.) Six months later, on October 17, 2018, plaintiff filed a First Amended Complaint. (Actually, plaintiff filed three versions of the First Amended Complaint on October 17, 2018...

Excerpt: ...f all, to the extent that defendants move for summary adjudication of the separate causes of action alleged against them as well as the claim for punitive damages, their motion is defective because it fails to specify in the notice of motion or the separate statement which causes of action or damages they seek to adjudicate. California Rules of Court, Rule 3.1350, subdivision (b), requires a party seeking summary adjudication of a separate cause ...

Excerpt: ... proposed 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 throug...

Excerpt: ...e overruled. 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. (CCP § 437(c), su...

Excerpt: ...t B at 67:9‐21. UMF No. 9 cites to Exhibit C at 13:3‐15 when it should cite to Exhibit B at 67:22‐25. The Court has been unable to locate evidence supporting UMF Nos. 8 and 11. This is grounds for denying the motion. (Code Civ. Proc., § 437c, subd. (b)(1) [“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material fac...

Excerpt: ...ffidavit stated facts establishing every element ... necessary to sustain a judgment in his favor.” See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. Given that the moving party has not met its burden, it is not necessary to examine the opposition, the reply or any objections submitted. Explanation: Plaintiff's Separate Statement Plaintiff submits a Separate Statement of 8 “undisputed facts.” However, the Separate Statem...

Excerpt: ...for punitive damages. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “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, subd. (a)(1); see also Code Civ. Proc. § 576.) Judicial policy favors resolution of cases on the merits, and thus the court's discretion as to allowing amendments will usually be exerci...

Excerpt: ...lic Participation (SLAPP) Overview: The anti‐SLAPP statute describes claims within its purview: “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has establish...

Excerpt: ... 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 with a ...

Excerpt: ... To grant Breckenridge's motion for judgment on the pleadings as to the first through eleventh and thirteenth causes of action with leave to amend; to grant Breckenridge's motion as to the twelfth cause of action without leave to amend. Plaintiff shall file and serve an amended complaint in conformity herewith, within 10 days of the clerk's service of this minute order. All new allegations shall be in boldface print. Explanation: Demurrer by Free...

Excerpt: ...laint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777.) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court's discretion will usually be exercised liberally to allow amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) A motion for leave to amend must comply with California Rule of Court 3.1324. Under...

Excerpt: ...nt Shalaka Ritesh Gadewar based on the allegation that she was the driver and owner of the van that was involved in the accident with them. However, according to the undisputed facts presented by defendant, she was neither the owner nor the driver of the van. (Defendant's UMF Nos. 1‐4.) The van was driven by her husband, Ritesh Ashokrao Gadewar, and it was owned by EAN Holdings, LLC, aka Enterprise Rent‐A‐Car. (UMF Nos. 2, 4.) Plaintiffs ha...

Excerpt: ...spondeat superior, an employer is vicariously liable for torts committed by an employee within the scope of employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) This includes tortious conduct which can be characterized as an “outgrowth” of employment, “inherent in the working environment,” “typical of or broadly incidental to” the employer's business, or, in a general way, foreseeable from the employee's dut...

Excerpt: ...vil case as a limited civil case may be granted only if the court determines that plaintiff's claim necessarily involves less than $25,000; in other words, that a greater recovery “could not be obtained” or is “virtually unobtainable.” (See Walker v. Sup.Ct. (1991) 53 Cal.3d 257, 269‐270.) Requests for attorney's fees are not analyzed as part of the calculation to determine whether the complaint seeks a recovery more than $25,000. (...