Excerpt: ...s. The Motion is Authorized: Plaintiff contends the motion is unauthorized because Fresno County Superior Court Local Rule 2.1.17(A) provides: “. . . no motion under [C.C.P.] sections 2016.010 through 2036.050 . . . shall be heard . . . unless . . . [a] request for a Conference has either been denied and permission to file the motion is expressly granted via court order or the discovery dispute has not been resolved as a consequence of such a c...

Excerpt: ...to allow Plaintiff to allege some other basis for attorney's fees, if it can. Plaintiff shall have ten (10) court days in which to file a First Amended Complaint. 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 demurre...

Excerpt: ...strategic lawsuit against public participation (SLAPP) action. (Code Civ. Proc. §425.16.) Defendants' demurrer is ordered off calendar as moot. Plaintiff's attempted “discovery motion” is ordered off calendar, since Plaintiff did not obtain a hearing date for this motion. Defendants' evidentiary objections are overruled. Explanation: Anti‐SLAPP motion The anti‐SLAPP statute provides: “A cause of action against a person arising from any...

Excerpt: ...e of this order. All new allegations shall be in boldface. Explanation: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, aft...

Excerpt: ...ontribution, as Laticrete has also settled with plaintiff and obtained its own order determining the settlement to be in good faith. Thus, Benchmark's indemnity and contribution claims against Laticrete are barred. Explanation: Under Code of Civil Procedure section 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 o...

Excerpt: ...es have been mailed to over 90% of the class members, although a small percentage could not be located, apparently because they have moved. No objections have been received, and no class members have chosen to opt out of the class. It does not appear that any other events have occurred which would cast doubt on the reasonableness of the settlement. Therefore, the court intends to grant the motion for final approval of the class action settlement,...

Excerpt: ...Cal.App.4th 1049, 1054, internal quotation marks and citations omitted; see Code Civ. Proc. §472(a).) Accordingly, the filing of an amended pleading renders a demurrer to the original pleading moot. (Ibid.; Morehead v. Turner (1940) 41 Cal.App.2d 414, 418.) In the instant action, Defendants Growers Farm and Garcia filed a first amended answer on June 13, 2018. Though the amended answer was late‐filed (see Code Civ. Proc. §1005(b)), the Court ...

Excerpt: ... for $143,551.00. This includes an unpaid principal of $110,000, interest of $27,126.00, attorney's fees of $5,850.00, and court costs of $575.00. None of these are accounted for on the CIV‐100 form. Furthermore, the declaration does not explain, or contain any documentation supporting, the claim for $110,000 other than a conclusion that that was the unpaid principle for the note. Therefore, unless plaintiff can produce the evidentiary proof fo...

Excerpt: ...n good faith shall bar any other joint tortfeasor or co‐obligor from any further claims against the settling tortfeasor or co‐ obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc. §877.6(c).) In considering a motion pursuant to section 877.6, the court balances the statute's goals of (1) encouragement of settlements, and (2) equitable sh...

Excerpt: ...e reasonable “ballpark” of the settling crossdefendants' liability. (Code Civ. Proc. § 877.6; Tech‐Bilt, Inc. v. Woodward‐ Clyde & Associates (1985) 38 Cal.3d 488, 499‐500.) Explanation: Under Code of Civil Procedure section 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 settlem...

Excerpt: ...five‐ year trial date. Explanation: The court incorporates herein its ruling of May 9, 2017 for historical perspective. 1. CLASS CERTIFICATION a. Standards An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81 (rev. denied); see also Newberg, Newbe...

Excerpt: ...order. Explanation: The party moving for summary judgment/adjudication bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co., supra, (2001) 25 Cal.4th 826, 850.) Only then does the burden of production shift to the party opposing summary judgment, who is then subject to its own burden of production to make a prima facie showing that a triable issu...

Excerpt: ...erk's service of this order. As an evidence sanction, if the cell phone is not produced within 20 days of the clerk's service of this order, the court hereby orders that the cell phone and videos filmed on that cell phone may not be referred to at trial or introduced in evidence in this proceeding. To order plaintiffs Manuel Cubias and Gustavo Gonzalez to appear for properly noticed depositions within 30 days of the date of the clerk's service of...

Excerpt: ... payable within 30 days to defendants' counsel of record, McCormick, Barstow, Sheppard, Wayte & Carruth, LLP. Should plaintiff fail to appear at the newly noticed deposition, defendants may file a motion for terminating sanctions without first complying with Fresno County Superior Court Local Rule 2.1.17. Explanation: There was no need for defendants to comply with Local Rule 2.1.17 and request a pretrial discovery conference before filing this m...

Excerpt: ...e initial verified responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one, are moot. Responses have been provided. The motion that the truth of the matters specified in the requests for admission, set one, be deemed admitted as to defendant Paul Evert's RV Country, Inc. is moot. Defendant provided response to the requests for admission that are in substantial compliance with ...

Excerpt: ...e Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The anti‐SLAPP statute may be invoked to challenge suits based on statements made in connection with an issue being considered by a judicial body. (Code Civ. Proc. §425.16(e)(2).) Pleadings, statements and writings “in connection with” civil litigation come within the parameters of the anti‐SLAPP statute. It need not be shown that the litigated matter is of public i...

Excerpt: ...he petitions setting out the rule 7.955 factors and no Attachment 18a copy of the fee agreements attached to the petitions. The declarations and fee agreement were presented in a separate document dated a week after the petitioner signed the petitions. The petitions are supposed to contain all the required attachments and state how many pages are attached. See Item 23 of the petitions. This is how the Court can ensure that the petitioner had prop...

Excerpt: ... the “Alternative Dispute Resolution Policy” (“ADR policy”), including the Spanish language versions of these documents, which shorten the timeframe to bring a claim to one year from the termination of employment, are deemed severed from those documents. To overrule all of plaintiff's evidentiary objections. Explanation: The moving party bears the burden of showing the arbitration agreement exists. (Code Civ. Proc. § 1281.2; Engalla v. P...

Excerpt: .... Sup.Ct. (1986) 179 Cal.App.3d 494, 498.) Here, the declaration of Doctor Douglas B. Malcolm, M.D. creates a triable issue of fact. Dr. Malcom opines that Saint Agnes – being a “busy California metropolitan emergency room facility” (Malcom Dec., filed: 5/23/18 ¶11), breached the standard of care in not having a radiologist available to interpret film twenty‐four hours per day. (Ibid.) According to Dr. Malcom, hospitals like Saint Agnes ...

Excerpt: ...2016, California Code of Civil Procedure section 430.41 went into effect. Subdivision (a) of that section states, in pertinent part: Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. S...

Excerpt: ...gations shall be in boldface. Explanation: Demurrer for Uncertainty: Defendant first demurs to the complaint for uncertainty on the ground that the causes of action in the caption of the complaint do not match the numbers of the claims in the body of the complaint, and the causes of action do not specify against which defendant they are alleged. However, courts look with disfavor on demurrers for uncertainty and will not sustain them unless the c...

Excerpt: ...tlements, 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 proportionate share of comparative liability for the plaintiff's injuries. (Id. at. p. 499.) Where a motion for determination of good faith settlement is contested, the m...

Excerpt: ...r Admission admitted “establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) Any matter admitted in response to a Request for Admission is conclusively established against the party making the admission. (Code Civ. Proc. § 2033.410, subd. (a); see Murillo v. Sup.Ct. (People) (2006) 143 Cal.App.4th 730...

Excerpt: ...oc. §§ 598, 1048.) As the decision to bifurcate is discretionary with the trial judge, and recognizing that this department may not be the ultimate trial department, the Court denies the motion to bifurcate at this time, without prejudice to it being renewed in limine. Judgment on the Pleadings The sole question presented by a defendant's motion for judgment on the pleadings is whether or not the facts stated in the complaint constitute a c...

Excerpt: ... 11, 2018. Service shall be by email. Explanation: Defendant Aerotek moves to compel plaintiff to arbitrate his claims against “all defendants.” The notice of motion was not directed to defendant O'Neill Beverage Company, LLC, and that defendant has neither joined in this motion, nor opposed it. A refusal to arbitrate is a prerequisite to a motion or petition to compel arbitration. Also, Aerotek only cites authority indicating that a third pa...

Excerpt: ...A special motion to strike pursuant to Code of Civil Procedure §425.16 (an “AntiSLAPP motion”) provides a means for quickly identifying and eliminating suits brought to chill the valid exercise of a party's constitutional right of petition or free speech. In order to invoke the protection of the anti‐ SLAPP statute, the defendant must show that the plaintiff's lawsuit arises from defendant's exercise of free speech or petition rights as de...

Excerpt: ...r other device. The photos of the standard connection assembly and the one at issue in the fire show that a rubber ring was on the one used in the fire. All parties agree this caused a leak, which then led to the explosion. All agree such rubber ring is not part of the assembly as designed by moving defendant. So no design defect is at issue. Plaintiffs tries to argue that the ring may have been added at moving defendant's factory anyway, outside...

Excerpt: ... which to cut off the right to file cross‐complaints bringing in new parties without permission of court.” (Loney v. Superior Court (1984) 160 Cal.App.3d 719, 723.) Where a party files a cross‐complaint after the first trial date has been set, the cross‐complaint is subject to a motion to strike. (Code Civ. Proc. §436(b); Loney, supra, 160 Cal.App.3d at p. 724.) Leave of court is required to file a cross‐complaint, or amended cross‐c...

Excerpt: ...3d 311, 318.) “[P]laintiff's ability to prove the allegations, or the possible difficulty in making such proof, does not concern the reviewing court.” (Aragon–Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238; see Bainbridge v. Stoner (1940) 16 Cal.2d 423, 431 [“facts have no place in a demurrer”].) Demurrers supported by evidence are referred to as “speaking” demurrers and are improper. (Mohlmann v. Cit...

Excerpt: ...ars to have been filled out correctly. However, again, what Plaintiff appears to be asking for (as far as the declarations seem to suggest) does not appear to match the allegations in the complaint. The previous ruling asked for briefing on whether the change in terms was allowed for Plaintiff's specific performance claim. “A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plainti...

Excerpt: ...be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6(a)(1).) “The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affid...

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

Excerpt: ...ubdivision (b). The motion is timely and is based on Plaintiff's attorney's affidavit of fault. Counsel states he failed to appear at the OSC due to a calendaring error. The only possible exception to the mandatory provision of Code of Civil Procedure section 473, subdivision (b), is where the dismissal is not the result of attorney fault. Here, there is no evidence on which to base such a finding. Accordingly, Plaintiff's motion to have the dism...

Excerpt: ...r proceeding or by any other transfer of an interest. The action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." Here, the moving party presented evidence that it is the assignee of the claim. No opposition was filed to the motion. The moving party may be substituted in as the plaintiff in this action. The motion is...

Excerpt: ...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 of the nonexistence o...

Excerpt: .... All new allegations shall be in boldface. Explanation: First of all, plaintiff's counsel has not submitted a declaration stating that he attempted to meet and confer with opposing counsel before bringing the demurrer, as required by Code of Civil Procedure section 430.41. “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject...

Excerpt: ...he court grants defendant twenty days within which to comply with the statutes. Defendant must meet and confer “in person or by telephone” with plaintiff regarding the issues raised by the demurrer and motion to strike, or attempt to do so and provide sufficient evidence of the attempt and plaintiff's failure to meet and confer in good faith. If the parties cannot agree on the purported deficiencies in the complaint, defendant may file a new ...

Excerpt: ...� subject to the demurrer or motion. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) Both statutes clearly require the parties to “meet and confer in person or by telephone.” (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The moving party is required to file a declaration stating either of the following: (A) The means by which the [demurring or moving] party met and conferred with the party who filed the pleading . . . , and that the parties did not...

Excerpt: ...e a separate document and will be signed at the hearing. Explanation: This motion is brought under Code of Civil Procedure section 664.6 (“Section 664.6"). In pertinent part, Section 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court . . . for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms of the sett...

Excerpt: ...ng parties, seek approval of a settlement as a Private Attorney General Action (“PAGA”), pursuant to California Labor Code section 2698 et seq. Plaintiffs appear to be correct in asserting that the legislature did not provide any guidance to the courts in terms of reviewing a PAGA settlement. (See Labor Code § 2699 et seq.) While PAGA claims are procedurally distinct from class action claims, there are similarities in the two in terms of a c...

Excerpt: ...r. On April 28, 2016, pursuant to an “Order to Show Cause” hearing, the Court dismissed the case without prejudice. Plaintiff now moves to set aside the dismissal on the ground it is void for lack of jurisdiction and notice. As of June 8, 2018, no opposition to the motion had been filed. The general rule is that the filing of a notice of appeal divests subject matter over any matter embraced in or affected by the appeal during the pendency of...

Excerpt: ...n's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. (Code Civ. Proc., § 340.5.) This rule sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff th...

Excerpt: ...prevail on their claim. Indeed, it appears that defendant is correct, as the undisputed facts show that plaintiffs do not own the 0.37 acre parcel that they allege was taken by the State. As plaintiffs do not own the parcel, they cannot prevail on their taking claim. “Both eminent domain proceedings and inverse condemnation actions implement the constitutional rule that private property may not be ‘taken' (U.S. Const., 5th Amend.) or ‘taken...

Excerpt: ....4th 826, 850.) Only then does the burden of production shift to the party opposing summary judgment, who is then subject to its own burden of production to make a prima facie showing that a triable issue of material fact exists. (Id.) If the moving party fails to meet this burden of production, the opposing party has no evidentiary burden to even oppose the motion. “[T]here is no obligation on the opposing party . . . to establish anything by ...

Excerpt: ...). The case remains active as to defendant Brett Passmore. To grant Evans Electric Service's motion for monetary sanctions. Passmore Interprises, Inc. is ordered to pay monetary sanctions to the Law Offices of Barry E. Weber in the amount of $1,160.00 within 30 days after service of this order. Code of Civil Procedure §2023.030(a). Explanation: There is evidence that defendant Passmore Interprises, Inc. has engaged in misuse of the discovery pro...

Excerpt: ...and sanctions Tentative Ruling: The motions to compel United Automotive Incorporated to provide further responses to form interrogatories, set one and special interrogatories, set one, request for admissions, set one and for sanctions are off calendar. The motions to compel Hadie Saadeldin to provide further responses to form interrogatories, set one, and sanctions are off calendar. Carlos Gonzalez has failed to comply with Local Rule 2.1.17 prio...

Excerpt: ...arty will result from allowing the admission to be withdrawn or amended. (Code Civ. Proc., § 2033.300, subd. (b); see New Albertsons, Inc. v. Sup.Ct. (2008) 168 Cal.App.4th 1403, 1418.) Judicial policy favors relief. Section 2033.300 is designed to eliminate undeserved windfalls obtained through requests for admission and to further the policy favoring resolution of lawsuits on the merits. Therefore, any doubts must be resolved in favor of the p...

Excerpt: ...App.4th 1100, 1106.) The moving party has the burden of proving: 1) that his claim is one upon which an attachment may be issued; and 2) the probable validity of the claim. (Santa Clara Waste Water Company v. Allied World National Assurance Company (2017) 18 Cal.App.5th 881, 885.) The declaration of Mike Paternostro is insufficient to establish that the documents purporting to be defendants' credit application and guarantee and Citibank's extensi...