Excerpt: ...ter Community College District's (“SCCCD”) motion for protective order regarding the deposition of Chancellor Parnell, and impose $1,050 in monetary sanctions against plaintiff and in favor of SCCCD, to be paid to SCCCD's counsel within 30 days of service of the order by the clerk. Explanation: Set for November 13 are three motions concerning depositions of “apex witnesses” for SCCCD: Fresno City College Campus President Carole Goldsmith,...

Excerpt: ... the Court's files. Defendant City National Bank (“CNB”) moves for Summary Judgment, or, in the alternative, Summary Adjudication as to Plaintiff's Second Amended Complaint. Defendant's main argument is that the evidence does not support the claims plead by Plaintiff. 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 Ric...

Excerpt: ...he amount of $6,000 individually for each class representative. To grant $60,000 in costs to the class administrator. The amount to be paid to class members is therefore $2,905,104.47. To set August 26, 2020 as the date for the parties to return to report on the payout of the settlement fund, and amendment of the judgment for any unpaid residue distribution, pursuant to Code of Civil Procedure section 384. Explanation: 1. Final Approval of Settle...

Excerpt: ...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: 1. Judicial Notice The court takes judicial notice of the recordation of the requested documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) 2. Demurrer The function of a demurrer is to test the sufficiency o...

Excerpt: ... code that provides for a civil penalty to be assessed 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 ...

Excerpt: ...cing evidence showing that he did not breach the standard of care when he treated decedent, and that he did not cause decedent's injuries or death. “The 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. [Citations.] ‘ “The standard o...

Excerpt: ...d on April 3, 2018, on the ground that there was no claim therein against Wood and Access Medical providing for recovery of attorneys' fees other than Penal Code § 496(c), which Judge Snauffer found unrecoverable in this case. That ruling was reversed on appeal: “we reverse the trial court's denial of Switzer's motion for attorney fees premised on section 496(c), and the matter is remanded to the trial court for further proceedings to determin...

Excerpt: ...r to discuss the defects in the motion; and they are numerous. On a motion for a protective order seeking to restrict the disclosure of trade secrets, the moving party has the burden to prove, by the preponderance of the evidence, that there is good cause for issuance of a protective order. That party must provide an affidavit or declaration which: 1) lists the declarant's qualifications to give an opinion; 2) identifies the alleged trade secret;...

Excerpt: ...orth 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 from matters outside the pleading that ar...

Excerpt: ..., are deemed admitted irrespective of the difficulty of proof at trial. [Citation.] The allegations are to be liberally construed with a view to substantial justice between the parties.” (Universal By‐Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 151.) Here, Cross‐Defendant City of Parlier (“City”) demurs to the second amended cross‐complaint (“SACC”) on the ground that the claims were late‐filed pursuant to the Go...

Excerpt: ... Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564; Congleton v. Natl. Union Fire Ins. Co. (1...

Excerpt: ...on of the separate causes of action. (Code Civ. Proc. § 437c.) Explanation: Plaintiffs Cook and TJC Partners move for summary judgment of the entire complaint, or in the alternative adjudication of their breach of contract claims, contending that defendant Holmes owes $334,240 to Cook and $375,000 to TJC which he has failed to repay, despite having executed a series of promissory notes and guarantees of repayment. Plaintiffs also point to the fa...

Excerpt: ...parties argue over whether or not the May 2019 agreement was rescinded. The implication is that if the May agreement was rescinded, the February 2019 agreement is revived and can now be enforced pursuant to section 664.6. However, the evidence shows that the May 2019 agreement functioned as a novation to the February 2019 agreement. (See Civ. Code § 1531, subd. (1) [a novation is made by the substitution of a new obligation between the same part...

Excerpt: ...t any irrelevant, false, or improper matter inserted in any pleading; or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. §436; see also Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 104, fn. 35.) An “immaterial allegation in a pleading” includes an “allegation that is not essential to the statement of a claim”...

Excerpt: ...agreement, and that even if it is determined valid, defendants waived their right to arbitration when they persuaded plaintiffs to forgo the Labor Commissioner proceeding. The court finds plaintiffs' argument regarding waiver persuasive. On a procedural note, defendants argue that this court should not consider plaintiffs' opposition because plaintiffs were required to respond to their petition within 10 days, pursuant to Code of Civil Procedure ...

Excerpt: ...o run from service by the clerk of the minute order. Explanation:  Defect in the Motion Plaintiff is correct about the defect in defendant's motion: there is no “demurrer” included. Here, where the various components involved in the motion are combined into one, this means that a separately‐captioned portion which distinctly specifies the grounds of demurrer must be included. It was not. Instead, defendant's “notice” section simply i...

Excerpt: ...on appears in the Court's files. The parties appear to concede that the documents at issue are subject to federal privacy protections. The question is whether the relevance identified by Defendants is sufficient to pierce that privacy. As noted by Defendants, the privacy right is balanced against the need for the evidence in question. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Defendants have identified two separate items of discover...

Excerpt: ...ix months of the accrual of the cause of action. (Gov't Code. §911.2.) The parties do not dispute that the claim was filed late. (See also Gov't Code § 945.3 (claim‐filing requirement is not tolled while criminal charges are pending).) An application to present a late claim must be sent within one year of the accrual of the cause of action. (Gov't Code §911.4.) Respondent does not dispute that the application for leave to file a late claim i...

Excerpt: ...d Complaint are to be set in boldface type. To overrule the demurrer. The answer shall be filed within 20 days of the date of this order unless a Second Amended Complaint is timely filed. Explanation: Motion to Strike Allegations of fraud are not improper in claims of breach of contract against a public entity. (see E.H. Morrill Co. v. State (1967) 65 Cal.2d 787, 794.) However, there are no supporting facts of the claims which are the subject of ...

Excerpt: ...294, subd. (c)(1); see also College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [“absent an intent to injure the plaintiff, ‘malice' requires more than a willful and conscious disregard of the plaintiff's interests. The additional component of ‘despicable conduct' must be found”].) “'Despicable' conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and desp...

Excerpt: ...tion must be provided subject to the protective order on file. The further responses are to be served no later than November 7, 2019. To grant sanctions, but to reduce the amount to $885.00, payable by defendant and his counsel by November 7, 2019. Explanation: Interrogatories Nos. 6 and 8 seek the addresses of banks and other financial institutions where defendant Lisenko has had accounts in the past 13 years. Interrogatories Nos. 7 and 9 seek a...

Excerpt: ...ovided that both plaintiff and the dealership “agree that any claim, dispute, and/or controversy that either party may have against one another…arising from, related to, or having any relationship or connection whatsoever with [Plaintiff] seeking employment with, employment by, or other association with the [Dealership], whether based on tort, contract, statutory, or equitable law, or otherwise…shall be submitted to and determined exclusive...

Excerpt: ...nner connected with a judicial proceeding before it, in every matter pertaining thereto.' (Code Civ. Proc., § 128, subd. (a)(5); [citations].)” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee Oil).) Motions to disqualify generally arise in one of two contexts: (1) in cases of successive representation, where an attorney seeks to represent a client with interests that are potential...

Excerpt: ... . a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address[.]” (Code Civ. Proc. §415.20(a).) “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person's ...

Excerpt: ...d amended complaint detailing the basis for the punitive damages. All new or amended allegations are to be set forth in boldface typeset. Explanation: A motion to strike can be used to: “(a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;]” or “(b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. ...

Excerpt: ...ds published in the California Building Standards Code, the State Housing Law, and other rules and regulations adopted pursuant to the State Housing Law. (Health & Saf. Code, §§ 17980 to 17982.) When the violations or conditions of the property involve noncompliance with the requirements of the State Housing Law, or with the requirements of the published State Building Standards Code that implement the State Housing Law, or with local ordinance...

Excerpt: ...) the motions were untimely as to the initial discovery responses, and (2) the court did not give permission to file the motions after the PTDC as required by Local Rule 2.1.17. In opposing the motions to compel, plaintiff requested $6,000 in monetary sanctions. The tentative ruling did not address the request for sanctions. Neither party requested oral argument, and so on August 8 the tentative ruling became the order of the court. Plaintiff the...

Excerpt: ... an undertaking in order to obtain the writ. (Code Civ. Proc. § 515.010, subd. (b).) Explanation: Under Code of Civil Procedure section 512.010, (a) Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought. (b) The application shall be executed under oath and shall include all of ...

Excerpt: ...71) 5 Cal. 3d 584, 591. Defendant Logan is alleged to be the owner of the property, to have leased the property to the other defendants, and to have done so with the knowledge of their intention to use the property as a board and care facility. The amended pleading specifically alleges that Logan herself was negligent in hiring, supervising, and retaining employee caregivers. See paragraph 46. The new allegation that Logan herself was negligent i...

Excerpt: ...s order by the clerk. New allegations/language must be set in boldface type. Explanation: Plaintiff seeks leave to amend in order to substitute Kerwin Jackson (“Jackson”) and KJ Worldwide Investments, Inc. (“KJ Worldwide”) as Does 1 and 2, respectively, and to allege that, at all relevant times, they were agents or employees of defendants David Maclachlan and Nuestra Casa Real Estate (“Nuestra Casa”), and that either they or Maclachla...

Excerpt: ...le their substantive opposition and expert declaration by October 15, 2019. Defendant's reply shall be due five calendar days before the continued hearing date. Explanation: Under Code of Civil Procedure section 437c, subdivision (h), “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be...

Excerpt: ...nd Code of Civil Procedure section 575.2, which allow for sanctions for non‐compliance with the California Rules of Court and local rules. In this case, Plaintiff alleges that Defendant and her counsel are in violation of California Rules of Court, rule 3.894 and Fresno Superior Court Local Rule 2.4.1 and Civil Standing Order No. 07‐0628. Together, these rules require that all parties and attorneys of record must attend all mediation sessions...

Excerpt: ...roduced as the result of litigation. (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1088; see also Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 464‐465 [public entity produced pivotal email, photographs and 146 email documents at a court ordered PMK deposition after “unequivocally claim[ing] it had produced every document”. . ..].) Additionally, a plaintiff who prevails in a CPRA action is entitled to an awar...

Excerpt: ...endant may move to strike allegations from a pleading in two situations: (a) the allegation is “irrelevant, false, or improper” or “superfluous” or “abusive” and (b) where the “pleading was not drawn in conformity with the laws of the state or a court rule.” (Code Civ. Proc. § 436(a), (b).) Paragraphs 65.a), 65.i), 70, 75 and 78 These allegations are part of the fifth cause of action for bad faith against Infinity on behalf of Ca...

Excerpt: ...'s motion to decertify and to grant plaintiffs' motion to certify with directions. To set February 19, 2020, at 3:30 p.m., as a case management and trialsetting conference in Department 503. Explanation: DECERTIFICATION MOTION 1. Introduction The Court of Appeal decision in this matter specifically called on this Court to address the manageability issue as the case progressed: It does not appear a manageability analysis was explicitly conducted i...

Excerpt: ...r summary judgment, or alternatively summary adjudication, of both his complaint and the cross‐complaint filed by Derek Kazanjian. This is a repetitive motions, seeking summary judgment of the same pleadings and causes of action, and raising the same issues, as that denied on May 17, 2019. A party may not move for summary judgment “based on issues asserted in a prior motion for summary adjudication” that has been denied by the court unless ...

Excerpt: ...hnicon”) as to the entire complaint. (Code Civ. Proc. § 437c.) Technicon shall submit a proposed judgment consistent with this court's order within ten (10) days of the date of service of this order. Explanation: Technicon moves for summary judgment on the ground that all of the claims of plaintiff Hydroelectric Penetrations, L.P. (“HP”) against it are all barred by the settlement agreement and release executed between Technicon and Ernie ...

Excerpt: ...ation: Plaintiff has sued defendants Abolnik, Galamgam, and Nwaka for elder neglect based on their alleged failure to intervene to protect him from defendant Hodanu, who allegedly assaulted and battered plaintiff. He alleges that he is over the age of 65 and an inpatient at the Department of State Hospitals – Coalinga, and thus he is an elder or dependent adult. (Complaint, ¶ 1.) Hodanu allegedly attacked and battered plaintiff on November 12,...

Excerpt: ...by a judgment in an action brought by the government. The act authorizes a representative action only for the purpose of seeking statutory penalties for Labor Code violations (Lab.Code, section 2699, subds. (a), (g)), and an action to recover civil penalties ‘is fundamentally a law enforcement action designed to protect the public and not to benefit private parties.” Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 381....

Excerpt: ...ndant's demurrer, in its entirety. Explanation: In the case at bar, plaintiffs allege two causes of action: (1) violation of Government Code sections 820, subdivision (a) & 815.2, et. seq.; and (2) negligence. Only the first cause of action is directed at moving parties. Defendants demur to cause of action one, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) & (f). Defendants argue that: (1) the facts are insufficient to alle...

Excerpt: ...from service by the clerk of the minute order. New allegations in the Second Amended Complaint are to be set in boldface type. Explanation: Where the complaint fails to plead ultimate facts, the complaint is subject to demurrer. (Code of Civil Procedure § 430.10(e); Berger v. California Ins. Guar. Ass'n (2005) 128 Cal.App.4th 989, 1006.) Essentially, “[a] complaint must allege the ultimate facts necessary to the statement of an actionable clai...

Excerpt: ...Plaintiff shall have ten (10) court days from the clerk's service of this order in which to file a second amended complaint. All new or amended allegations are to be set forth in boldface typeset. Explanation: Demurrer 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 C...

Excerpt: ... that she is entitled to have the default set aside because she was not properly served with the complaint and summons or that the default was entered less than 30 days after she was served, she has failed to meet her burden of showing that the complaint and summons were not properly served, or that she was served after the date indicated on the proof of service. “‘[C]ompliance with the statutory procedures for service of process is essential...

Excerpt: ...). Plaintiff sues to recover unpaid back commissions owed under the Independent Producer's Agreement (“IP Agreement”). Plaintiff also claims that HRBC president Enrique Romero made defamatory statements about plaintiff in connection with this dispute. The Complaint alleges the following causes of action: 1. Breach of Contract 2. Breach of Implied Covenant of Good Faith and Fair Dealing 3. Conversion 4. Unfair Competition and Violation of Busi...

Excerpt: ... 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), subdivision(p)(2).) In a summary judgment motion, the pleadings determine the scope of relevant issues. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) A defendant need onl...

Excerpt: ...leadings. Second, we determine whether the moving party has met its statutory burden of proof. Once the defendant has made such a showing, the burden shifts to the plaintiff to produce evidence that a triable issue of fact exists as to an essential element of the cause of action. The third and final step is to determine whether the opposing party has demonstrated that a triable issue of fact exists as to the cause of action. In determining whethe...

Excerpt: ...ers, mental health rehab specialist, PSCs, caseworkers, personal service coordinators, education and mental health specialists, direct service aids, mental health professionals – unlicensed (same as mental health therapist – licensed), and who were provided with cell‐phones or radio communication devices or cell phone stipends by Turning Point. To also grant certification to a subclass of all such persons who separated from employment at an...

Excerpt: ...ories, Request for Production of Documents, and Requests for Admissions, and for Monetary Sanctions Tentative Ruling: To grant plaintiff's motions to compel defendants Auto USA and Tidalwave Finance Corporation to serve verified responses without objections to plaintiff's form and special interrogatories and request for production of documents. (Code Civ. Proc. §§ 2030.290; 2031.300.) Defendants shall serve verified responses without objections...

Excerpt: ...ctual and legal predicate for his claims. 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: ...tly, in the Complaint, Plaintiff seeks specific performance of a particular contract. But that contract is only between them and Defendant Church. Bell is not a party to that purchase agreement. The judgment seeks to require Bell to sign papers to transfer property to Plaintiff. Plaintiff has cited to no case authority that entitles a plaintiff to specific performance of a contract against a non‐signatory. It seems likely that Plaintiff is seek...

Excerpt: ...nd Sandy's Place LLC (for purposes of this motion, “owner defendants”) are owners and proprietors of a bar known as Sandy's Place. Plaintiff alleges on information and belief that owner defendants knew, or in the exercise of ordinary care should have known, that defendant George Gonzales “was a person of violent, vicious, and dangerous character and disposition while intoxicated, and a person whose presence in Defendants' bar while into...

Excerpt: ...e ordered to pay the costs and fees incurred by the requesting party in proving that matter. The court shall order the payment of such fees and costs unless it finds: (1) that an objection to the request was sustained or a response to the request was waived; (2) the admission sought was of no substantial importance; (3) the party failing to make the admission had reasonable ground to believe that the party would prevail on the matter; or (4) ther...

Excerpt: ...nforcement of any judgment or order. (b) If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed. (c) This section applies whether or not an appeal wi...

Excerpt: ...Cross‐Defendants The Woodmont Company and Greg Newman to Strike Portions of the Prime Cross‐Complaint Tentative Ruling: To sustain the general demurrers to the second and third causes of action of the Prime Cross‐Complaint, without leave to amend. The motion to strike is ordered off calendar as moot, given the ruling on demurrer. Cross‐Defendants The Woodmont Company and Greg Newman are directed to submit to this court, within 7 days of s...

Excerpt: ...ff also prays for compensatory, general and punitive damages. Defendant's Demurrer Defendant demurs to both causes of action. Defendant moves pursuant to Code of Civil Procedure section 430.10, subdivision (e)—failure to state a cause of action. Defendant also demurs to plaintiff's request for punitive damages.2 5. First Cause of Action: Assault The essential elements of a cause of action for assault are: (1) defendant acted with intent to caus...

Excerpt: ... clerk. To deny the request for terminating, issue, and evidence sanctions at this point. Explanation: Nowhere in Mr. Waterman's declaration or in the opposition argument is it acknowledged that Mr. Waterman received notice of the Request for Pretrial Discovery Conference (“PDC”) well before his planned time of “unavailability.” Thus, he had time to file an Opposition in order to signal his willingness to participate in the PDC process. T...

Excerpt: ...Civil Procedure section 1285, “Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” (Code Civ. Proc., § 1285.) “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as mad...

Excerpt: ...d 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: In the case at bar, plaintiff alleges four causes of action: (1) breach of contract; (2) wrongful termination – age discrimination; (3) wrongful termination – gender discrimination; and (4) disparate treatment. Defendant demurs to each cause of action based upon Code of Civil ...

Excerpt: ...o both of the following: (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts. Code of Civil Procedure section 2018.030 provides: (a) A writing that reflects an attorn...

Excerpt: ...ation: 1. Objections The Court sustains all objections made by defendants Gurvinder Kandola and Julie Su, referred to herein collectively as the “Labor Commissioner.” The Court also notes that the evidence supplied with the reply papers on the issue of commerce is devoid of any actual ads allegedly placed in out of state publications or invoices showing that was done. There are no receipts or order confirmation for purchases from out of state...

Excerpt: ...y judgment order. Explanation: As the moving party, a defendant bears the initial burden of proof to show that the plaintiff cannot establish one or more elements of the causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists—and th...

Excerpt: ...onable 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, 318.) Facts appearing in exhibits attached to the complaint will also be accepted as...

Excerpt: ...e causes of action, the motion to strike items 4 thru 6 stated in the Notice of Motion is denied. To deny the motion to strike as to items 3 and 7 (re punitive damages) stated in the Notice of Motion. To grant the motion to strike as to items 1 and 2 (re pain and suffering) stated in the Notice of Motion. The plaintiffs are granted 20 days leave to file a First Amended Complaint. The time in which the Complaint can be amended will run from the co...

Excerpt: ...ainst defendants Young, Clarke, and Podratz. (Ibid.) Defendants shall submit a proposed judgment consistent with this order within 10 days of the date of service of the order. Explanation: First, the individual defendants move for summary adjudication of the discrimination, retaliation, and failure to prevent discrimination and retaliation claims against them on the ground that individuals cannot be held liable for discrimination or retaliation u...

Excerpt: ...e 30‐day period permitted by law. (Code Civ. Proc. § 430.40, subd. (a).) However, “[a] motion for judgment on the pleadings is equivalent of a general demurrer but is made after the time for demurrer has expired. The rules governing demurrers apply.” (Evans v. California Trailer Court (1994) 28 Cal.App.4th 540, 548.) Code of Civil Procedure section 438, subdivision (c)(1)(B)(ii) permits a motion for judgment on the pleadings by a defendant...

Excerpt: ...to Frazer, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To sustain the demurrer as to the eighth cause action, for failure to state facts sufficient to constitute a cause of action as to both Frazer and Matthews' estate. (Ibid.) To overrule the demurrer as to the ninth cause of action. To deny the motion to strike and grant in part, as discussed below. (Code Civ. Proc. §§ 435, 43...

Excerpt: ... of action: (1) retaliation in violation of FEHA, Gov. Code § 12940(h); (2) violation of Labor Code § 6310; and (3) violation of Labor Code § 6311. Summary judgment was previously granted as to the first cause of action, and it should not have been included in the SAC. Defendants now move for judgment on the pleadings as to the remaining causes of action on the ground that plaintiff did not comply with the Government Tort Claims Act. "[A] ...

Excerpt: ...ction 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 wi...

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

Excerpt: ...mplaint (FAC) alleged against Defendants Laton Unified School District, Laton High School, and Jason Krikava for failing to file the claims within the applicable statute of limitations. Plaintiff shall have ten (10) court days in which to file the Second Amended Complaint (SAC). Any new or altered allegations shall be set forth in boldface typeset. Explanation: A general demurrer admits the truth of all material allegations and a Court will “gi...

Excerpt: ...submitted within 5 days of notice of the ruling. Explanation: Standard of Care The appropriate standard of care required of a medical professional is not a matter of common lay knowledge. Therefore, except in cases of “egregious” medical negligence, expert medical testimony is required in medical malpractice actions to establish the standard of care required of a physician (or other health care provider) under the circumstances. See Flowers v...

Excerpt: ... some issue therein, be referred for decision to a third party (referee). Such reference may be made pursuant to the parties' agreement or, in certain cases, without the parties' consent. Under Code of Civil Procedure § 638, the court may order a reference either: • “(U)pon the agreement of the parties filed with the clerk, or judge, or entered in the minutes ... ”; or • “(U)pon the motion of a party to a written contract or le...

Excerpt: ...ral, set one, directed to Defendant Duchscherer; and request for production of documents, set one, directed to Defendant Duchscherer. (Code Civ. Proc. §§ 2030.290(b), 2031.300(b).) Defendants Tobias and Duchscherer are ordered to serve complete verified responses to the discovery set forth above, without objection, within 15 days of the clerk's service of the minute order. To impose monetary sanctions in favor of Plaintiff, against Defendants T...

Excerpt: ...erty released from levy. (Code Civ. Proc., § 485.240, subd. (a).) On a showing of “clear and convincing” reasons, courts have inherent power to vacate ex parte attachments without any notice (i.e., on defendant's application). (Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal.App.3d 1108, 1116‐1117.) At the hearing, the plaintiff bears the burden of proving that the attachment was proper. (Loeb & Loeb v. Beverly Glen Music...

Excerpt: ... petitions, without prejudice. However, the court does intend to set a status conference on March 28, 2019 at 3:30 p.m. in Department 502 and require petitioners' counsel to update the court on the status of the administrative records in each case, as well as whether the cases have been set for hearings on the merits. If petitioners fail to lodge an administrative record in each case and set the cases for hearings on the merits within a reasonabl...

Excerpt: ...cal Rules, rule 2.1.17.) Explanation: Motion to Set Aside Default The court may relieve a party from a judgment, order or other proceeding 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, etc. (Code Civ. Proc. §473(b).) Application for relief may be based on either (1) an attorney affidavit of fault, in which event re...

Excerpt: ...roposed judgment consistent with this order. To take the motion to consolidate off calendar in light of the dismissal of the Morones action. Explanation: Defendants Del Monte Fresh Produce N.A., Inc. and Del Monte Fresh Porduce (West Coast), INc. (collectively, “Del Monte”) move to dismiss Morones v. Del Monte Fresno Produce N.A., Inc. et al., Case No. 14CECG02849. The action was filed on January 31, 2014. "An action shall be brought to t...

Excerpt: ...deny all motions. Explanation: The motions before the court seek leave to file cross‐complaints and to amend defendants' answers. All of the proposed new and amended pleadings are premised on factual allegations postulating alleged concealment and misrepresentations by plaintiff before the moving defendants became members as to whether plaintiff was running a deficit, was mismanaged, etc. Insofar as the proposed amendments seek to assert a cros...

Excerpt: ...der a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc. §128.5(a); see Levy v. Blum (2001) 92 Cal.App.4th 625, 635 [§128.5 which “permits the award of attorney fees, not simply as appropriate compensation to the prevailing pa...

Excerpt: ...n for class certification and preliminary approval of settlement is proof that the matter truly is litigated as a class action, more such complex motions requiring substantial time to resolve are expected. The matter is therefore deemed complex pursuant to Rule 3.400(b)(1); the complex fees must be paid on or before February 22, 2019. 2. Class Certification a. Standards An agreement of the parties is not sufficient to establish a class for settle...

Excerpt: ...t v. County of Los Angeles (1994) 27 Cal.App.4th 125, 145.)  To sustain defendant's demurrers based upon: (1) Gurpreet's lack of capacity; (2) Jasbir's claims of negligent infliction of emotional distress which are based upon: 31‐315.2; 31‐320.5; 31‐335.1 and 31‐405 (for both mandatory duty and vicarious liability); (3) social worker liability; (4) negligent hiring; (5) acts of independent contractors; and (6) plaintiffs' allegation of...

Excerpt: ...nsufficient to show a good faith attempt to confer with defendant regarding the motion. (Code Civ. Proc. § 439, subd. (a).) Plaintiff's counsel shall file a supplemental declaration regarding her meet and confer efforts by March 15, 2019. Explanation: “Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subj...

Excerpt: ...defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (United States Liab. Ins. Co. v. Haidinger–Hayes, Inc. (1970) 1 Cal.3d 586, 594.) Likewise, in order to establish premises liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205. Defendants' motion is based solely on the theory that pr...

Excerpt: ... October 1, 2018, the parties filed a stipulation deeming the prematurely filed Memorandum of Costs timely filed. See ¶ 6 of the Stipulation. On November 13, 2018, notice of entry of judgment was filed. On November 26, 2018, Defendant filed a motion seeking to tax costs; specifically, the amount of $29,446.44 listed at line 13 as “interest pursuant to CC § 33289.” No opposition was filed. Merits In the case at bench, an appeal has been file...

Excerpt: ...that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement.” (Code Civ. Proc. §1281.2(a), (b); see Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 104...

Excerpt: ...om the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. (Civ. Proc. Code §437c, subd. (h).) A continuance (normally a matter within the court...

Excerpt: ...erned by CCP §§872.010 through 874.240. CCP § 872.210 states: (a) A partition action may be commenced and maintained by any of the following persons: (1) A coowner of personal property. (2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates. (b) Notwithstanding subdivision (a), an action between...

Excerpt: ...g parties shall submit proposed judgments consistent with the court's order within 10 days of the date of this order. Explanation: California State University's Motion: Plaintiff has alleged only one cause of action against CSU based on CSU's allegedly negligent hiring training, supervision, retention, and investigation of defendant Andres Perez‐Esteban. However, defendant has presented evidence that it never hired Esteban, and that Esteban was...

Excerpt: ...ommencing with Section 701.510) of Chapter 3 of Division 2 of Title 9. The sale is not final until confirmed by the court.” (Code Civ. Proc., § 568.5.) The proposed sale of the property will be conducted according to law. California Rule of Court 3.1180 provides: A receiver must not employ an attorney without the approval of the court. The application for approval to employ an attorney must be in writing and must state: (1) The necessity for t...

Excerpt: ...42,500, with the balance going to the nonappearing defendants. Any supplemental papers must be received by the Court no later than Friday, February 22, 2019. Explanation: The legislature requires the Court to approve any settlement of a complaint seeking civil penalties under the Labor Code Private Attorneys General Act of 2004 (“PAGA”). (See Labor Code §§2699, subd.(l); 2689, et seq.) However, neither the Legislature nor the California Lab...

Excerpt: ...ego will unduly prejudice defendants; and (4) bifurcation will result in jury confusion. Plaintiffs oppose, arguing judicial economy will not be promoted because there is significant overlap between the evidence related to alter ego liability and the evidence that will be relevant to the balance of the issues. Under Code of Civil Procedure section 1048(b) the court “in furtherance of convenience or to avoid prejudice, or when separate trials wi...

Excerpt: ...ipt of the hearing), as defense counsel states they did. Further, the trial minute order from September 10, 2018, indicates it was “not reported,” so it does not appear it could have been put “on the record.” Thus, the court can only consider the terms of the written settlement agreement to determine if it is enforceable pursuant to Code of Civil Procedure section 664.6 (“section 664.6”). The written agreement was signed only by Mrs. ...

Excerpt: ... proofs of service for the opposition indicate that it was served, by regular mail, on January 11, 2019 as required. Motion to Vacate. When an application for enforcement of a sister‐state judgment is filed, a judgment debtor has thirty days from service in which to challenge the sister‐state judgment. (Code Civ.Proc. § 1710.40 subd.(b).) Challenges to the judgment on the grounds that there was no subject matter or personal jurisdiction in t...

Excerpt: ...ia Rule of Court 3.500(e). Moving party is also ordered to “take all appropriate action necessary to assure that the transfer takes place and that proceedings are initiated in” San Joaquin County Superior Court “to complete consolidation” with the case pending in that court, pursuant to California Rule of Court 3.500(f). The trial date of February 25, 2019, mandatory settlement conference date of January 30, 2019, and trial readiness hear...

Excerpt: ...on for sanctions without prejudice. Plaintiff has not successfully made a motion. Explanation: The evidence presented is insufficient to support the motion. All that need be shown in the moving papers is that the discovery was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (See Leach v. Sup.Ct. (1980) 111 CA3d 902, 905–906.) Plaintiff has failed to provide evidence ...

Excerpt: ...ake 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 thereto. (Code Civ. Proc. § 437c, subds. (p)(2), (o)(2).) Once the moving party has met its initial burden, the burden shifts to the opposing party to produ...

Excerpt: ...on settlement, plaintiff also seeks class certification for the purposes of approving the settlement. Therefore, the court must first determine whether the class should be certified before deciding whether the settlement should be preliminarily approved. “Code of Civil Procedure section 382 authorizes class actions ‘when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impractic...

Excerpt: ...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 terms as may be just, an amendment to any pleading or proceeding in other particulars...” (Code Civ. Proc., § 473, subd. (a).) “ ‘Code of Civil Procedure section 473, which gives the courts power to permit amendments in fur...

Excerpt: ...errule Defendants' demurrer to the remaining causes of action. To grant Defendants' motion to strike Plaintiff's claims for punitive, special, and exemplary damages, with leave to amend. Plaintiff is granted 20 days, commencing from service of the minute order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer In testing a pleading against a...

Excerpt: ...aint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Second Cause of Action: Failure to Engage in Good Faith Interactive Process It is a jurisdictional prerequisite to state a claim under the Fair Employment and Housing Act (FEHA) that the plaintiff exhausted his administrative remedies before commencing a lawsuit. (Gov. Code, §§ 12960, 12901, 12925, subd. (b); O...