Excerpt: ...t. Fresno County, Local Rules, rule 2.8.4.) Explanation: Ordinarily, the reasonable attorney's fees in a petition to compromise the minor's claim are 25% of the net settlement without a clear explanation of why the higher fee would be justified per code. In the current petition the attorney seeks 33% of gross. There is nothing about this case that warrants this increased fee amount. The signature of the petitioner is not dated. The top portion of...

Excerpt: ...e complete verified responses to the discovery set out above, without objection, within 10 days after service of this order. To grant defendant Donald Inman's motion for sanctions. Plaintiff Eduardo Calderon and his attorney of record, jointly and severally, are ordered to pay monetary sanctions to Ericksen Arbuthnot in amount of $315.00 within 30 days after service of this order. (Code Civ. Pro., § 2031.300(c).) Pursuant to California Rules of ...

Excerpt: ...g).) Plaintiff is ordered to pay $1,372.10 in sanctions to the Yarra Law Group, within 30 days of the clerk's service of the minute order. Explanation: Proper service of a notice of deposition compels the opposing party to appear, to testify, and to produce documents if requested. (Code Civ. Proc. §2025.280(a); see Code Civ. Proc. §2025.410 [party served with deposition notice may serve objections on party that noticed the deposition].) Where a...

Excerpt: ...877.6, “Any party to an action in which it is alleged that two or more parties are joint tortfeasors 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, subd. (a)(1).) “A de...

Excerpt: ...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 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 whet...

Excerpt: ...defense counsel before he filed his demurrer. (Code Civ. Proc., § 430.41, subd. (a)(3).) Therefore, he has failed to comply with the requirements of section 430.41. However, the failure to meet and confer is not enough, by itself, to justify overruling the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).) Also, since plaintiff is involuntarily confined at Coalinga State Hospital, he obviously cannot meet and confer in person with defense cou...

Excerpt: ...ant's residential care facility with a diagnosis of schizophrenia. A few months after admission, Plaintiff was allegedly physically attacked by Doe 1, another resident. On or about May 2017, Plaintiff alleges that he was physically attacked by yet another resident, Doe 2. Eventually, Plaintiff moved to another care facility. On March 23, 2018, Plaintiff filed his complaint alleging causes of action for elder abuse, negligent hiring and supervisio...

Excerpt: ... Plaintiff fails to adequately justify its request for increased attorney's fees; (4) Plaintiff improperly requests costs for a litigation guarantee; (5) Plaintiff fails to elect between remedies; and (6) Plaintiff provides no interest calculations. 1. Notice Due process considerations limit the amount of damages awardable on default: “In all default judgments, the demand sets a ceiling on recovery.” (Greenup v. Rodman (1986) 42 Cal.3d 822, 8...

Excerpt: ...rt judgment.” But, this is a minor error. However, Plaintiffs' attorney neglected to sign the Sec. 7 regarding the correctness of the amount of costs submitted. On the one hand, Plaintiffs are not requesting any costs. But, on the other hand, the section indicating a waiver of costs and disbursements was not checked. More importantly, the Declaration of nonmilitary status was not signed on any of the requests for entry of court judgment. Federa...

Excerpt: ...n of the defendant if to do so appears to the court appropriate under the circumstances of the case.” Code of Civil Procedure section 583.420 authorizes the court to exercise its discretion to dismiss a matter in three circumstances: if service is not made within two years after the action is commenced against a defendant; if the matter is not brought to trial or conditionally settled within three years, and if the action is not tried within tw...

Excerpt: ...ard such sanctions. The parties are directed to meet and confer in the next thirty (30) days in order attempt a resolution of the issues regarding Plaintiff's health and her availability to pursue this case. The Court also sets a status conference for Thursday, August 30, 2018 in Department 501 at 3:30 p.m. Explanation: Defendant seeks issue, evidentiary, terminating, and or monetary sanctions pursuant to Code of Civil Procedure §§2023.010, 202...

Excerpt: ...person or by telephone with the party who filed the pleading that is subject to demurrer[.]” (Code Civ. Proc. §430.41(a), bold added; see Judicial Counsel form CIV‐140.) Where the parties are unable to sufficiently meet and confer five or more days prior to the date the responsive pleading is due, a 30‐day extension is automatically granted upon the filing by the demurring party of a declaration stating that a good faith effort was made to...

Excerpt: ...lexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.” (Dunk v. Ford Motor Company (1996) 48 Cal. App. 4th 1794, 1801, citation omitted.) In Kul...

Excerpt: ...gment debtor shall be filed. Explanation: On December 21, 2016, a default judgment was entered in favor of plaintiff/judgment creditor M4 Associates, LLC and against defendant/judgment debtor Dr. Eric Lee in the total amount of $65,078.37, which consisted of principal in the amount of $60,108.87, attorneys' fees in the amount of $4,505.00, and costs in the amount of $464.50. (Doerksen Decl. ¶ 5, Exhibit “B.”) On June 5, 2018, M4 Associates f...

Excerpt: ...idering a motion pursuant to section 877.6, the court balances the statute's twin goals of (1) encouragement of settlements, and (2) equitable sharing of costs among the parties at fault. (Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 494.) The standard is whether the amount of the settlement is within the “reasonable range” or “ballpark” of the settling tortfeasor's proportional share of comparative liability for the pla...

Excerpt: ...73, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citation.] ‘In the fur...

Excerpt: ...ction without leave to amend. To sustain the general demurrer to the second cause of action with leave to amend. To overrule the general demurrer to the third cause of action. An amended complaint in conformity with the ruling is to be filed within 10 days of notice of the ruling. The time in which the complaint can be amended will run from service by the clerk of the minute order. All new allegations in the first amended complaint are to be set ...

Excerpt: ...n of proof to show that plaintiff cannot establish one or more elements of her 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 this must be shown via specific facts and not mere allegations. (Id.) “California courts ...

Excerpt: ... 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 cla...

Excerpt: ... Explanation: It is a misuse of the discovery process to fail to respond to an authorized method of discovery, or disobey a court order to provide discovery. (Code Civ. Proc. §2023.010(d), (f), (g).) Though the decision to order terminating sanctions is not to be made lightly, where a violation is “willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules,&#...

Excerpt: ...ce six months have elapsed since the entry of a judgment, “a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) A judgment that is facially invalid may be set aside at any time, “with no limit on the time within which the motion must be made.' (Citation.)”].) (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 18...

Excerpt: ...e clerk's mailing of this minute order. Explanation: Each element of the contempt must be proved beyond a reasonable doubt. (In re Coleman (1974) 12 Cal.3d 568, 572.) These include: (1) Defendant's knowledge of the order disobeyed; (2) Defendant's ability to comply; and (3) Defendant's willful disobedience of the order. (In re Jones (1975) 47 Cal.App.3d 879, 881; People v. Gonzalez (1996) 12 Cal.4th 804, 816.) Contract interpretation ...

Excerpt: ...8.4.) Explanation: An original or a photocopy of a doctor's report containing a diagnosis of and prognosis of the injuries, and a report of the minor‘s present condition, must be attached to the petition as Attachment 9. There is no Attachment 9. Attorney's fees are sought but there is no Attachment 14a to the petition setting out the rule 7.955 factors and no Attachment 18a, copy of the fee agreements attached to the petition. The attorney see...

Excerpt: ...etition to confirm. See CCP § 1285. If a petition or response requesting confirmation is duly filed and served, the court must confirm the award as made, unless it corrects or vacates the award or dismisses the proceeding. [CCP § 1286 and see Valsan Partners Ltd. Partnership v. Calcor Space Facility (1994) 25 Cal.App.4th 809, 819 and Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075, 1084.] A party may seek confirmation by fili...

Excerpt: ...rules 3.1112‐3.1113. Plaintiff has failed to provide the statutory grounds upon which she is moving to set aside the dismissal. See San Francisco Lathing v. Superior Court (1969) 271 C.A.2d 78, 82 and 8 Witkin, Cal. Proc. 5th Attack § 174 (2008). With such, the court cannot entertain this motion. Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary. T...

Excerpt: ... form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Code Civ. Proc., §§ 2030.290, subd. (b) and 2031.300, subd. (b).) Defendant Henry Macias to provide complete verified responses to all discovery set out above, without objection within 10 days after service of this order. To grant plaintiff Fred Garza, Jr.'s motion that the truth of the matters specified in the requests for admis...

Excerpt: ...8, 2017, plaintiffs served Form Interrogatories (Set One), Special Interrogatories (Set One), Requests for Production of Documents (Set One), and Requests for Admissions (Set One) on defendant via mail. (Devlin Decl., ¶ 7, Ex. 3.) On March 2, 2018, defendant responded to plaintiffs' written discovery. (See Devlin Decl. ¶ 8, Ex. 4.) Plaintiffs filed the instant Motions to Compel Further Responses and to Deem Admissions Admitted, within the stipu...

Excerpt: ...rities that plaintiff is actually seeking to adjudicate the entire breach of contract claim. Plaintiff requests adjudication of the “issues” of each separate element of a breach of contract cause of action, including the existence of a contract, performance by plaintiff, breach by defendant, and damages to plaintiff caused by the breach. In essence, plaintiff seeks to adjudicate the entire cause of action, even though it seeks to parse each s...

Excerpt: ...every rental agreement is a covenant of “quiet enjoyment.” The landlord impliedly promises to allow the tenant possession and “quiet enjoyment” of the premises during the contract term and not to, through act or omission, disturb the tenant's possession and beneficial enjoyment of the premises for the purposes contemplated by the rental agreement. (Civ. Code § 1927; see also e.g. Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.A...

Excerpt: ...plaint is not brought against Plaintiff. As it appears that Plaintiff has no standing to bring the instant demurrer, the demurrer is overruled. Motion to strike Papers filed in support of a motion must consist of at least a notice of hearing; the motion itself; and a memorandum in support of the motion. (Calif. Rules of Court, rule 3.1112(a).) The court may construe the absence of a memorandum as an admission that the motion is not meritorious an...

Excerpt: ...of action. To sustain the general demurrers to the second and fourth causes of action, with leave to amend. Explanation: The court will only rule on the one motion that was properly calendared (by YCA), and will not rule on the District's motions unless and until they are properly calendared pursuant to the Superior Court of Fresno County Local Rules, Rule 2.2.1.  YCA's Demurrer for Uncertainty The memorandum does not make any arguments as to ...

Excerpt: ...rst cause of action in the complaint. Defendant is ordered to prepare and file a proposed judgment consistent with this ruling within five (5) court days of service of this order. Explanation: In response to this motion for summary judgment, Plaintiff sought, and obtained, a continuance in order to conduct discovery pursuant to Code of Civil Procedure section 437c, subdivision (h). On July 3, 2018, Plaintiff filed a notice of non‐opposition, in...

Excerpt: ...s without merit. (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 of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. §437c, subds. (p)(2), (o)(2).) Thus, the elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession comm...

Excerpt: ...nt order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiffs cannot establish one or more elements of their 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 this must...

Excerpt: ...ropriate where violation was willful, preceded by history of abuse, or where is shown that less severe sanctions would not produce compliance with procedural rule].) It is an abuse of discretion to dismiss an action solely on the ground that a party has failed to pay monetary sanctions ordered by the court. (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 615; Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64‐65.) In the instant case, Defen...

Excerpt: ...ecial interrogatories, set one and request for production of documents, set one. (Code of Civil Procedure sections 2030.290(b), 2031.300(b).) The evidence before this court is insufficient to determine if initial responses are due. To deny Jasvir Kaur Jhutti dba A Plus Taxi Cab Co.'s motion for sanctions. (Code of Civil Procedure sections 2030.290(c), 2031.300(c).) Explanation: Defendant has failed to file points and authorities to support any of...

Excerpt: ...at a party thereto refuses to arbitrate such 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 . . .” “In any event, if proof of a demand and refusal to arbitrate under the agreement is a necessary prerequisite to a petition to compel arbitration under section 1281.2, the failure to prove such demand and refusal is a failure ...

Excerpt: ...he time frame specified under rule 3.1700(a)(1) of the California Rules of Court and should not be considered. California Rules of Court, rule 3.1700(a)(1) provides in pertinent part, “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of services of written noti...

Excerpt: ...Cal. Rev. & Tax. Code § 23301. A corporation that has had its powers suspended “lacks legal capacity to prosecute or defend a civil action during its suspension.” (Sade Shoe Co. v. Oschin & Snyder (1990) 217 Cal.App.3d 1509, 1512.) On the other hand, a suspended corporation may be sued and a default judgment may be entered upon its failure to respond. (Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306.) Tabarrejo v. Superior Court...

Excerpt: ... If the person to whom a copy of the summons and of the complaint are mailed pursuant to this section fails to complete and return the acknowledgment form set forth in subdivision (b) within 20 days from the date of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses thereafter incurred in serving or attempting to serve the party by another method permitted by this chapter, and, except for good cause sho...

Excerpt: ...aint; or to unite with the defendant in resisting the plaintiff's claims; or to demand anything adverse to both parties. (Code Civ. Proc., § 387, subd. (a).) "If any provision of law confers an unconditional right to intervene ... the court shall, upon timely application, permit that person to intervene." (Code Civ. Proc., § 387, subd. (b).) The People, through the Attorney General, have an unconditional right to intervene in the cu...

Excerpt: ...se or defenses before the trial of any other issue in the case, and if the decision of the court, or the verdict of the jury, upon any special defense so tried … is in favor of the defendant pleading the same, judgment for the defendant shall thereupon be entered and no trial of other issues in the action shall be had[.]” (Code Civ. Proc. §597.) Thus, courts have long recognized that where the answer to a complaint raises a statute of limita...

Excerpt: ... the order by the clerk. Explanation: In response to this motion for judgment on the pleadings, plaintiff filed a First Amended Complaint, and did not address the merits of the motion as directed at the operative complaint. The Complaint was filed on September 20, 2016, and defendant filed its answer on December 7, 2016. Thereafter, plaintiff needed leave of court to amend the Complaint. (Code Civ. Proc. § 472.) Contrary to plaintiff's implied a...

Excerpt: ...rsuant to section 877.6, the court balances the statute's twin goals of (1) encouragement of settlements, and (2) equitable sharing of costs among the parties at fault. (Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 494.) The standard is whether the amount of the settlement is within the “reasonable range” or “ballpark” of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries. ...

Excerpt: ... 2d 7, 8, referencing repealed Art. XII, Section 16. Code of Civil Procedure, section 395(a), states (at its pertinent parts): “Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action . . . “Subject to subdi...

Excerpt: ...ugust 25, 2015, she “was at Selma Hospital waiting to get x‐rays done when the chair she was sitting on broke, causing her to fall to the ground. As a result, Mrs. Vargas was seriously injured.” Plaintiff alleges one cause of action for general negligence, and one for premises liability. Defendant Adventist Medical‐ Center‐Selma (“defendant” or “AMC‐S”) now moves for summary judgment, contending that the one‐ year statute of...

Excerpt: ...) It must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. (Id. at subd. (b).) The Court may construe the absence of any such memorandum as an admission that the motion is not meritorious and cause for its denial. (Id. at subd. (a).) Here, none of Plaintiff's motions complies with California Rules of Cou...

Excerpt: ... (5) court days in which to file their pleading. Service is to be perfected in accordance with the applicable provisions of the Code of Civil Procedure. Explanation: (Note‐ as of July 9, no opposition appears in the Court's files.) This is a complex action filed on August 2, 2016. Plaintiffs allege that they were a lender for a purchase of real estate in Contra Costa County on which they foreclosed. The site is allegedly contaminated with vario...

Excerpt: ...ejudice. The entire action is dismissed. Explanation: The Court has considered both the conduct being sanctioned and its effect on the party seeking discovery. There is evidence that plaintiff has engaged in misuse of the discovery process. The harm caused by the withheld discovery and the refusal to participate in discovery is a complete inability to prepare for trial. There is no evidence that any lesser sanction will result in plaintiff partic...

Excerpt: ...conomy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order…that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case. …” (Code Civ. Proc. § 598.) Similarly, Code of Civil Procedure section 1048 specifies the court's discretion in regard to bifurcating issues for separate trial: “The court, in fur...

Excerpt: ...ainst minors who voluntarily dismiss their case without prejudice, through their guardian ad litem. (See e.g. Jacquelyn Fries, a minor, etc. v. Rite Aid Corp. (2009) 173 Cal.App.4th 182; see also Fields v. Napa Mill Co. (1958) 164 Cal.App.2d 442.) In the alternative, Plaintiff moves to tax the following costs: (1) deposition costs for Anila Thampy, M.D. ($290); (2) exhibits used for depositions ($42.05); (3) subpoenas for health care providers ($...

Excerpt: ...hearing or a memorandum of points and authorities, as required by California Rules of Court, Rule 3.1112, subdivision (a) (1) and (3). At best, it bears the title of “motion” and the second page includes some elements required for the motion itself: it identifies who is bringing the motion (plaintiff), the relief requested (to be allowed to file a Second Amended Complaint) and the basis for the relief sought (“due to more information found ...

Excerpt: ...rder. New allegations shall be in boldface type font. To grant the motion to file a cross‐complaint. The cross‐ complaint shall be filed and served within 10 days of the clerk's service of this minute order. Explanation: Motion for Leave to File Amended Complaint “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473; see also, Code Civ. Proc. § 576.) T...

Excerpt: ...pose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §430.41, subd. (a).) A demurring party must file and serve with the demurrer a declaration stating the means by which it met and conferred with the party that filed the pleading subject to demurrer and that the parties did not reach an agreement resolving the objections raised in the demurrer or stating that t...

Excerpt: ...all cross‐defendants' demurrers to the third cause of action without leave to amend. To sustain all cross‐defendants' general demurrers to the second, fourth and seventh causes of action with leave to amend. To overrule the general demurrers to the fifth and six causes of action. To grant motion to strike as prayed for with leave to amend. An amended crosscomplaint shall be filed and served within 10 days of the clerk's service of this minute...

Excerpt: ...is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his abili...

Excerpt: ... is subject to” the demurrer or motion to strike. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The self‐represented litigant “is held to the same restrictive rules of procedure as an attorney.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267, internal citations and quotation marks omitted.) In the instant case, moving party failed to meet and confer with Defendant prior to filing the instant motions. Parties are requi...

Excerpt: ...n indirect contempt proceeding, “an affidavit must be presented to the court stating the facts constituting the contempt, an order to show cause must be issued, and hearing on the facts must be held by the judge.” (Arthur v. Superior Court (1965) 62 Cal.2d 494, 407‐08.) The affidavit in support of the request for the OSC must cover each element of the commission of the contempt; it serves as the “complaint” in the indirect contempt proc...

Excerpt: ...for admissions, Plaintiff responded that she "can neither admit nor deny" the request. These admissions includedcritical contentions about having any evidence to support plaintiff's claims. In her concurrently served responses to form interrogatories, plaintiff responded to interrogatory 17.1 for all of the above requests for admissions by stating "Responding Party lacks sufficient information to respond to this request at this time, ...

Excerpt: ...fendant American Matar International, Inc., dba Statewide Commercial Insurance Brokers is ordered to serve verified responses without objections to the First Set of Special Interrogatories and the First Set of Form Interrogatories within ten (10) court days of this order. Plaintiffs are awarded sanctions in the amount of $660.00 against American Matar International, Inc., dba Statewide Commercial Insurance Brokers for each motion, for a total of ...

Excerpt: ...t plaintiff Fred Garza, Jr.'s motion to compel defendant Margarita Garza, aka Margarita Macias, to provide initial verified responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Code Civ. Proc., §§ 2030.290, subd. (b) and 2031.300, subd. (b).) Defendant Margarita Garza, aka Margarita Macias, to provide complete verified responses to all discovery set out above, without o...

Excerpt: ...anation: California Rules of Court, rule 3.350(a)(1) requires that notice of a motion to consolidate be filed in each case sought to be consolidated. Here, the moving party failed to file notice of the instant motion in case no. 16CECG04000. Accordingly, the motion is denied without prejudice. Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure §1019.5(a), no further written order is necessary. The minute order adop...

Excerpt: ...ueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054.) The court finds that what plaintiff filed is the Second Amended Complaint despite plaintiff's attempt to style it as a “supplemental” pleading. It was filed in response to the demurrer, in lieu of opposition. Thus, it will be regarded as an amended pleading for purposes of counting the number of amendments plaintiff is allowed without leave of court pursuant to Code of Civil...

Excerpt: ...allegations of false arrest, planting evidence, fabrication of police reports, fabrication of probable cause, false testimony, perjury, making false arrests, and false or misleading internal reports including but not limited to false overtime or medical reports. Defendant has not shown that records related to complaints of excessive force are relevant to the issues and defenses raised in the present case, so the court will not require such record...

Excerpt: ...errogatories. Plaintiff is to provide verifications within ten (10) court days of this order. To grant the motion for deemed admissions unless Plaintiff requests a hearing on this tentative and can provide a verification for the responses, or proof that verification has been provided, at the hearing. To deny the request for sanctions. The Court orders Moving Party to pay additional filing fees of $120.00 to be due and payable to the court clerk w...

Excerpt: ...rule the overbreadth objection for all other demands. For Demands Nos. 1, 3, 4, 9, 11, 17, and 21, to order that Zenith produce all documents not identified in a further verified response as subject to the attorney‐ client and/or work product privileges. The identification must be in a further response under oath which identifies each document withheld with its author, date of preparation, all recipients, and the specific privilege claimed. If ...

Excerpt: ...ence in support of the moving party establishes that there is no issue of fact to be tried.” (Buehler v. OregonWashington Plywood Corp. (1976) 17 Cal.3d 520, 526.) The affidavits of the moving party are strictly construed, while those of the opposing party are liberally construed. (Ibid.; Huynh v. Ingersoll‐ Rand (1993) 16 Cal.App.4th 825, 830.) A defendant moving for summary judgment bears the initial burden of making a prima facie showing o...

Excerpt: ...(1)(B).) Here, plaintiffs achieved their litigation objective in this action under the Song‐Beverly Act via the mediation settlement, wherein defendant agreed to pay them $200,000 in damages, including a full statutory “buy‐back” of their vehicle, incidental and consequential damages, and a maximum civil penalty. Thus, they are the prevailing party, and as such they are entitled to attorneys' fees. (Civ. Code § 1794, subd. (d).) The stat...

Excerpt: ... cause of action, with leave to amend. Any amended pleading must be filed and served within 10 days of the clerk's service of this minute order. New allegations must be in boldface typefont. Explanation: Demurrer: General Demurrer: Jurisdiction (Worker's Compensation) Colonial demurs to the first, second and fourth causes of action pursuant to Code of Civil Procedure section 430.10, subdivision (a) on the grounds this court lacks subject matter j...

Excerpt: .... Rules of Court, Rule 9.40.) Explanation: The Court does not find that Mr. Ibarguen's representation of Defendants by virtue of his representation of Hearst Television, Inc. and Hearst Communications, Inc., constitutes the practice of law in California. Plaintiff offered no authority for this argument. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is n...

Excerpt: ...from the clerk's service of the minute order. New allegations in the amended complaint are to be set in boldface type. Explanation: A complaint must allege ultimate facts stating an actionable claim; simply pleading the evidence by which plaintiff intends to prove his or her case is insufficient. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390; see Code Civ. Proc. §425.10(a)(1).) “Because the insurer...

Excerpt: ...torney's fees and costs to defendant within 30 days of the date of this order. Explanation: Defendant seeks attorney fees after prevailing on a motion to strike plaintiff's strategic lawsuit against public participation (SLAPP) action. Under Code of Civil Procedure section 425.16, subdivision (c)(1), “in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney&#...

Excerpt: ....300, 2031.300, 2031.310.) Plaintiff is 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 Defendants E. and R. Lemus, and against Plaintiff. (Code Civ. Proc. §§ 2023.010(d), 2030.290(c), 2030.300(d), 2031.300(c).) Plaintiff is ordered to pay $1,065.00 in sanctions to the Hartsuyker, Stratman & Willi...

Excerpt: ... plaintiff William Gong's Form and Special Interrogatories, Set One and plaintiff William Gong's Requests for Production, Set One as to Defendant Cristallo Ventures, LLC. Defendant Cristallo Ventures, LLC will provide verified responses to the Form Interrogatories, Set One, Special Interrogatories, Set One and Requests for Production, Set One without objection within 20 days after the clerk's service of this order. To grant the Motion to Deem Req...

Excerpt: ...ssor in interest, or the vested owner at the time of the trustee's sale. (Civ. Code §2924k(a)(1)‐ (4).) A declaration signed under penalty of perjury outside of California must state on its face that it is made “under the laws of the State of California.” (Code Civ. Proc. §2015.5; see Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.) In the case at bench, a tr...

Excerpt: ...ising from a multi‐vehicle collision that took place on April 2, 2016 on I‐70 near Spiceland, Indiana. Plaintiff alleges that its truck was “rear‐ended” by a truck owned by the Defendant causing damages totaling $68,252.95. On September 27, 2017, the Plaintiff filed a motion seeking to serve the Defendant via service of summons upon the Secretary of State on the grounds that CHD Transport, Inc. is a suspended corporation and it had been...

Excerpt: ...ued to August 28, 2018, at 3:30 p.m. in Dept. 503, to allow the moving party time to engage in additional discovery, as requested. Explanation: A settlement entered into by one or more of several joint tortfeasors may be determined by the court to be in “good faith.” (Code Civ. Proc. §877.6.) To encourage settlement, it is “quite proper for a settling defendant to pay less than [its] proportionate share of the anticipated damages. . . . Wh...

Excerpt: ... alleges that he was physically attacked by yet another resident, Doe 2. Eventually, Plaintiff moved to another care facility. On March 23, 2018, Plaintiff filed a complaint alleging causes of action for elder abuse, negligent hiring and supervision, and assault and battery. On April 19, 2018, Plaintiff filed a motion seeking trial preference. An opposition and a reply were filed. Trial Setting Preference Code of Civil Procedure section 36 states...

Excerpt: ...of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citation.] ‘In the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial.... Motions to amend are appropriatel...

Excerpt: ...nt. Explanation: Defendants Strong Holdings, Inc. (erroneously sued as Keller Williams Westland Realty) and Mel Kilner (“Defendant Brokers”) demur to the cause of action for breach of contract contained in the First Amended Complaint based on the Purchase Agreement, attached as Exhibit A to the First Amended Complaint. Defendant Brokers also move to strike the claim for attorney's fees based on the Purchase Agreement. Defendant Brokers' princ...

Excerpt: ...est.” Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting. (Evid. Code, § 500.) The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact. (Evid. Code, § 550, subd. (b).) A claimant of surplus sale proceeds bears the burden of proving his ...

Excerpt: ...ore, the matter will be taken off calendar. The Court notes that the papers on file in support of the application are probably insufficient to support the relief claimed. In order to be entitled to relief, a plaintiff must show that the claim as “probable validity,” which means “it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc. §481.190.) The evidence presented mus...

Excerpt: ...service of summons on the grounds that the court lacks jurisdiction. This embodies any of the basic defects – no jurisdiction, no valid service. Plaintiff is a foreign corporation and the method of service utilized by the plaintiff did to comply with Code of Civil Procedure §413.10(c). Failure to comply with the Hague Convention renders service on foreign defendant void. See Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789....

Excerpt: ...hese arguments, California and federal courts have consistently found that indigent plaintiffs in civil actions do not have a right to appointed counsel.” See Defendant's Memorandum of Points and Authorities in opposition at page 8 lines 12‐19 citing inter alia Turner v. Rogers (2011) 564 U.S. 431 and Storseth v. Spellman (9th Cir. 1981) 654 F.2d 1349, 1353. Plaintiff can only present policy arguments and innovative interpretations of federal...

Excerpt: ...ed responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Code Civ. Proc., §§ 2030.290, subd. (b) and 2031.300, subd. (b).) Frank Cruz to provide complete verified responses to all discovery set out above, without objection within 10 days after service of this order. To deny defendant Mel Abdelaziz's motion that the truth of the matters specified in the requests for admis...

Excerpt: ...ement and a brief description of the dispute is sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251; Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) Defendant Aimhigh Group LLC has made the required barebones showing. Pursuant to California Rules of Court, rule 3.1312, subd. (a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary. The minute order adopting t...

Excerpt: ...re of moving party to prove service of its Request for Pretrial Discovery Conference. Explanation: For sake of clarity, Northbrook Indemnity Company will be referred to as “Respondent” and Robert Knight will be referred to as “Claimant.” Pursuant to Insurance Code section 11580.2, subdivision (f)(1), the superior court has exclusive jurisdiction over discovery disputes for uninsured and underinsured motorist arbitration. (Miranda v. 21st ...

Excerpt: ...ubd. (b).) Plaintiffs' counsel shall pay sanctions to defendants within 30 days of the date of service of this order. Plaintiffs shall also pay the costs of transferring the action. (Code Civ. Proc. § 399, subd. (a).) Explanation: Under Code of Civil Procedure section 395, subdivision (a), “[i]f the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where th...

Excerpt: ...s of action for conversion and replevin, contending that plaintiff Allstate has not alleged sufficient facts to constitute a cause of action. “The elements of a conversion cause of action are (1) plaintiffs' ownership or right to possession of the property at the time of the conversion; (2) defendants' conversion by a wrongful act or disposition of plaintiffs' property rights; and (3) damages.” (Baldwin v. Marina City Properties, ...

Excerpt: ... supervision and assault and battery. On March 1, 2018, Plaintiff filed a motion seeking trial preference. Opposition and a reply have been filed. Trial Setting Preference CCP § 36 states in relevant part: (a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole...

Excerpt: ... mediation and therefore the extent to which any agreements reached during that meeting are subject to applicable mediation privileges. Any party to an arbitration in which an award has been made may petition the court to confirm the award. (Code Civ.Proc. §1286.) A petition must do at least the following: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate; (b) Set forth the names of the arbitrators; (c) Set for...

Excerpt: ...proceeds is not properly supported. The proceeds may be delivered to the petitioner/mother to be held in trust for the minor if the requirements of Probate Code §3401(c) have been satisfied. However, the requirements of Probate Code §3401(c) have not been satisfied. There is no evidence that the petitioner/parent has provided a written assurance, verified by oath that the total estate of the minor, including the money or other property to be pa...

Excerpt: ...ke Plaintiff's first amended complaint on the ground that it is a strategic lawsuit against public participation (SLAPP) action. (Code Civ. Proc. §425.16.) To grant Jonathan Donnellan's application for admission to the bar of this Court pro hac vice. (Cal. Rules of Court, Rule 9.40.) Explanation: Application Pro Hac Vice The Court does not find that Mr. Donnellan's representation of Defendants, by virtue of his representation of Hearst Televisio...

Excerpt: ... 17CECG01691 as the lead case. All hearing dates currently scheduled in case number 17CECG02981 are ordered vacated. An Order to Show Cause re: Service is scheduled in Department 404 on July 12, 2018 at 8:30 a.m. Explanation: Rule 3.350 of the California Rules of Court governs the procedure to be used when filing a motion to consolidate. The motion must: (a) list all named parties in each case, the names of those who have appeared, and the names ...

Excerpt: ... Currently the property is rented to non‐parties to this litigation. Plaintiff has served a demand on defendants to conduct a one‐hour inspection of the property. Defendants were unsuccessful in their attempts to obtain the current tenants' permission to inspect the property. Plaintiff moves to compel defendants to permit the inspection. The motion is brought under Code of Civil Procedure section 2031.320(a), which provides that if the party ...

Excerpt: ... v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally certifi...

Excerpt: ...e judgment. CCP §989 et seq. The plaintiff must present an affidavit of himself or herself, his or her agent, representative, or attorney attesting that the judgment is in whole or part unsatisfied, and specifying the amount due. CCP §991. The declaration filed on July 26, 2017 never specified the amount due. Further, Code Civ. Proc. §§ 989 et seq. applies only when the alleged joint debtor was named or joined as a party and a joint liability...

Excerpt: ...ees are calculated Petitioner does not clearly explain how the attorney fees are calculated. The court can see by the one fee agreement attached to the petition, and by checking the calculations, that petitioner proposes a fee that is 40% of the settlement. But the petitions should have clearly stated this, preferably in the attorney declarations.  Fee calculated on gross award rather than net The petitions are calculating the fee on the gross...

Excerpt: ... SLAPP statute, defendants need make only a prima facie showing that plaintiff's complaint “arises from” defendant's constitutionallyprotected free speech or petition activity rights as defined in Code of Civil Procedure section 425.16, subdivision (e). (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458‐459; see also...

Excerpt: ...ication Although plaintiff's motion is entitled a motion for preliminary approval of the class action 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...