Excerpt: ...ulative. To overrule all of defendant's remaining objections to the expert declaration provided by plaintiff. To overrule all of plaintiff's objections to the expert declaration provided by defendant. Explanation: Declarations by expert witnesses are generally required when expert witness testimony would be required at trial (such as on the issue of the standard of care in a professional malpractice case). (See e.g. Kelley v. Trunk (1998) 66 Cal....

Excerpt: ...fth causes of action. Code of Civil Procedure section 437c, subdivision (f)(l), provides that "[a] party may move for summary adjudication as to one or more causes of action within an acton if that party contends that there is no affirmative defense thereto A motion for summary adjudication shall be granted only if it completely disposes of a cause of action ..." Plaintiff must "prove[ ] each element of the cause of achon entitling the party to j...

Excerpt: ...om service by the clerk of the minute order. Explanation: Demurrer The function of a demurrer is to test the suffciency 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 Belf with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlander...

Excerpt: ...to the first amended complaint within 10 days of the date of service of this order. Explanation: Meet and Confer: First of all, it does not appear that defendant complied with the meet and confer requirement for demurrers and motions to strike before bringing the present motions. under Code of Civil Procedure section 430.41, "[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone w...

Excerpt: ...f an undertaking. Explanation: A right to attach order, stating the amount to be secured by the attachment, shall issued if the court finds all of the following: 1. the claim upon which the attachment is based is one upon which an attachment may be issued; 2. the plaintff has established the probable validity of the claim upon which the attachment is based; 3. the attachment is not sought for a purpose other than the recovery on the claim upon wh...

Excerpt: ...the merits of the issues, but merely discovers, through the medium of affdavits or declarations, whether there are issues to be tried and whether the parties possess evidence that demands the analysis of a trial. (Melamed v City of Long Beach (1993) 15 cal.App.4th 70, 76; Malko v Holy spirit Ass n (1988) 46 cal.3d 1092, 1107; Schwoerer v Union Oil Co. (1993) 14 Cal.App.4th 103, 110.) In short, the motion is not a substitute for a bench trial. A s...

Excerpt: ...rder and Code of Civil Procedure section 872.720. The court intends to appoint a partition referee pursuant to Code of Civil Procedure section 873.010 in the interlocutory judgment, however the name of the referee shall be left blank so that the court can determine who should be appointed. To grant all requests for judicial notice. Explanation: Burden on Summary Judgment As the party moving for summary judgment, plaintiff bears an overall burden ...

Excerpt: ...f action for premises liability, without leave to amend. Explanation: In January 2022 plaintiff Manuel Salazar suffered severe personal injuries in an accident that occurred while he was riding his dirt bike in the Kings River riverbed. He alleges a gap in a mountain of dirt created by Stoney's caused him to fall off his bike. In addition to the operator, Stoney's Sand & Gravel LLC (Stoney s), he has sued Carol Evans and Michael Evans (the Evans ...

Excerpt: ...cre walnut orchard is part of the larger parcel. To deny plaintiff's motion to exclude the expert testimony of Stephen Roach. Explanation: Moton to Exclude Expert Testimony: Plaintiff moves to exclude Mr. Roach's testimony under Code of Civil Procedure section 1260.040, which states, "If there is a dispute between plaintiff and defendant over an evidentiary or other legal issue affecting the determination of compensation, either party may move th...

Excerpt: ..., and number 14 (last sentence), but to overrule the rest of these objections. As to defendant's evidentiary objections, to overrule numbers 1, 3, 4, 5, 6, 7 and 9, and to sustain numbers 2 and 8. Explanation: The parol evidence rule is not merely an evidentiary rule, but is a rule of substantive law. (Alling v. Universal Manufacturing Corp. (1992) 5 Cal.App.4th 1412, 1433.) It "generally prohibits the introduction of any extrinsic evidence, whet...

Excerpt: ...'s prior order on a motion to compel further responses to inspection demands, entered on July 26, 2022. Plaintiff moves under Code of Civil Procedure section 2031.320, which states that "if a party fails to obey an order compelling inspection, copying, testing, or sampling, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. (Code Civ. Proc. S 2031.320, sub...

Excerpt: ...oc., S 128.5.) To impose sanctions in the amount of $750 against defense counsel, David V. Roth, and his law firm, Manning & Kass, Ellrod, Ramirez, Trester LLP, pursuant to Code of Civil Procedure section 177.5 for failing to appear at the April 12, 2023, hearing in violation of a court order. Sanctions are due and payable to the court within 30 days of the date of this order, with the time to run from the service of this minute order by the cler...

Excerpt: ...damages from the complaint. Defendants content that the complaint fails to state sufficient facts to support the prayer for punitive damages as to each of them. The court notes initially that there is a dispute as to the timeliness of the present motion. Code of Civil Procedure section 435, under which defendants move, allows for the filing of a motion to strike within the time allowed to respond to a pleading. (Code Civ. Proc. S 435, subd. (b)(l...

Excerpt: ... (Code Civ. Proc. S 396b, subd. (b).) Explanation: This is an insurance bad faith achon in which plaintiffs sued two corporations and multiple individual defendants. No defendant resides in Fresno County, though the underlying auto accident occurred in Fresno County. Moving party's headquarters and principal place of business are in Orange County; Andrea Condrey resides in Orange County; Alexander Morales resides in Los Angeles County; Timothy St...

Excerpt: ...fied in plaintiffs' Requests for Admission, Set Two, are deemed admitted, unless defendant serves, before the hearing, proposed responses to the requests for admission that are in substantial compliance with Code of Civil Procedure, Section 2033.220. Explanation: Compel Compliance with Deposition Subpoena Plaintiffs Sharon Vulich, individually, and as successor in interest to the Estate of Jerry Vulich, Nicole Vulich Miller, Crystal Vulish, and J...

Excerpt: ...e Company's Complaint. To deny summary judgment of Plaintiff Hallmark Specialty Insurance Company's Second Amended Complaint. 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. S437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The issue to be determined by the trial court in consideration of a motion...

Excerpt: ... subdivision (c) provides: No pretrial discovery by the plaintiff shall be permitted with respect to [defendant's financial condition] unless the court enters an order permitting such discovery pursuant to this subdivision. Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this...

Excerpt: ...First Amended Complaint. Explanation: Meet and Confer Code of Civil Procedure section 435.5 makes it clear that meet and confer must be conducted "in person or by telephone. (ld., subd. (a).) There are limited instances in which the meet and confer requirement does not apply: 1) for an unrepresented party who is incarcerated; 2) proceedings in forcible entry, forcible detainer, or unlawful detainer; 3) an ant-SLAPP motion; and 4) a motion less th...

Excerpt: ...e standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. ' "The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice actio...

Excerpt: ...ification before it can grant preliminary approval of the proposed settlement. An agreement of the parties is not suffcient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representati...

Excerpt: ...adings in compliance with Code of Civil Procedure, section 439. Rather, he argues that meeting and conferring is not required to bring his motion, and even if so, any efforts would have been futile. The parties must engage in good faith meet and confer, in person or by telephone, as set forth in the statute. (Code Civ. Proc., S 439, subd. The moving party is not excused from this requirement unless he shows that plaintiff and cross-defendant Deli...

Excerpt: ...mplaint to allege that defendant Mostafa Heidari ("defendant Heidari"), his attorney Henry Nunez, and "others" misrepresented to plaintiff that he could not qualify to become an ARCO dealer because he did not have two years' experience, and, as a result, defendant Heidari needed to remain on title to both the staton and the land and plaintiff would have to work at the staton for two years to gain the requisite experience. Plaintiff seeks to alleg...

Excerpt: ...t One); and 5) for Monetary Sanctions Jointly Against All Defendants Tentative Ruling: To continue the hearing on the motions to Thursday, June 29, 2023, at 3:30 p.m. in Department 501, in order to allow the parties to meet and confer in person or by telephone, as required for the moton to strike. If this resolves the issues, plaintiff shall call the court to take the motion off calendar. If it does not resolve the issues, counsel for plaintiff s...

Excerpt: ...o deny all motions. Explanation: These motions were continued from April 11, 2023, because plaintiff's counsel had not attached to the motions defendants' discovery responses, which was necessary for the court to determine when and how the responses were served, and to determine if the responses were accurately stated in the Separate Statements for each motion. Plaintiff's counsel has now supplied the responses via three separate supplemental dec...

Excerpt: ...e remaining civil proceedings are stayed pending the outcome of this arbitration motion. Explanation: Defendants Cerca Trova Steakhouse, LP., Cerca Trova Steakhouse, Inc., Cerca Trova Restaurant Concepts, Inc., T-Bird Restaurant Group, Inc., and Out West Restaurant Group, Inc. move for an order compelling arbitration under the Federal Arbitration Act, and request to dismiss, or alternatively, stay the action pending arbitration. Pursuant to the F...