Excerpt: ...nation: A prevailing buyer in an action under the Song–Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires...

Excerpt: ... submit to an authorized method of discovery and disobeying court orders to provide discovery. The action will be dismissed as to defendants Zaid Altahan and K&K Home, LLC. (Code Civ. Proc. § 2023.030, subd. (d)(3).) Explanation: Requests for Production of Documents, as well as Form and Special Interrogatories, were served by defendants Zaid Altahan and K&K Home, LLC, on plaintiffs in September 2021. Because plaintiffs never served responses, mo...

Excerpt: ...he ground that they did not owe a legal duty toward plaintiffs' decedents because the decedents were not listed as tenants on the lease, and the lease specifically prohibited anyone not listed as a tenant from residing on the premises. They also claim that they had no knowledge of the dangerous condition that caused the fire, which was allegedly caused by a candle left unattended in the bathroom by a tenant. In addition, they contend that they ha...

Excerpt: ...the original 5 UDMFs, four are undisputed between the parties and one remains in dispute, number 5. This pertains to whether the Standard of Care was met during Plaintiff's surgery. Moving Defendant's expert Dr. Tyner opined that the standard of care for Plaintiff's surgery was met by Dr. Yankey. (Statement of Evidence Exhibit 5.) Plaintiff disputes this and cites as supporting evidence the Declaration of Arthur Hill, M.D., para. 1‐13, stating ...

Excerpt: ...Plaintiff is directed to submit a new proposed Final Order. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the court to reconsider its decision granting certification of the class. Therefore, the court c...

Excerpt: ...amount actually paid to the class members, pursuant to Code of Civil Procedure section 384, subdivision (b), so that the judgment can be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before January 17, 2024. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquir...

Excerpt: ...mended Complaint filed August 26, 2022 for 1) Medical Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”); 2) Intentional Infliction of Emotional Distress; 3) Retaliation in Violation of FEHA; 4) Failure to Prevent Discrimination and Harassment; 5) Failure to Accommodate; 6) Failure to Engage in the Interactive Process of Accommodation; 7) Hostile Work Environment in Violation of FEHA; 8) Sex/Gender Discrimination in V...

Excerpt: ...ey licensed to practice in California. Explanation: Defendants move to set aside their defaults, entered on July 25, 2022, pursuant to the discretionary relief afforded under Code of Civil Procedure section 473, subdivision (b), on the grounds of inadvertence, surprise, mistake, or excusable neglect. The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against ...

Excerpt: ...ed class be conditionally certified for settlement purposes. The court may make an order approving or denying certification of a provisional settlement class after the preliminary settlement hearing. (Cal. Rules of Court, rule 3.769(d).) Before the court may approve the settlement, however, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Products, Inc. v. Windsor (1997) 521 US 591, 625‐ 627; see also Newbe...

Excerpt: ...5.16. On June 27, 2022, prior to the anti‐SLAPP motion being heard, plaintiff dismissed the suit with prejudice. Defendant now seeks attorney's fees. Where a defendant files a motion pursuant to Code of Civil Procedure section 425.16 and prevails, the defendant shall be entitled to recover attorney's fees and costs. (Code Civ. Proc. § 425.16, subd. (c)(1).) Where a plaintiff voluntarily dismisses a defendant, with or without prejudice, after f...

Excerpt: ... for summary judgment bears the initial burden to show either that one or more elements of plaintiff's cause of action cannot be established or that there is a complete defense thereto. (Code Civ. Proc. § 437c, subd. (o)(2). Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) If defendant carries this initial burden of production, the burden of production shifts to plaintiff to show that a triable issue of material fact exists. Plaintiff ...

Excerpt: ... for summary adjudication in its entirety. To deny the motion to bifurcate, without prejudice. Explanation: At issue in all three motions is a single inquiry by defendants Jose Olivarez and Fresno County Economic Opportunities Commission (collectively “defendants”) regarding Civil Code section 3333.4 to plaintiff Maria Benitez Perez's complaint seeking damages arising from a motor vehicle collision. Civil Code section 3333.4 provides, in pert...

Excerpt: ...n. To deny the motion to consolidate without prejudice. Explanation: Court's Motion to Strike Code of Civil Procedure section 436 provides, in relevant part, “… at any time in its own discretion, a court may grant a motion to strike … all or any part of any pleading not drawn in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 472 allows that, “[a] party may amend its plead...

Excerpt: ...be filed within the time allowed to respond to said pleading. (See Code Civ. Proc., § 435, subd. (b)(1).) Here, defendant's motion is not timely because it was filed after the 30 day period set forth in Code of Civil Procedure section 435 and the extension agreed to between the parties. However, this is comparable to a late filed demurrer, and the court has discretion to hear an untimely demurrer. (See Jackson v. Doe (2011) 192 Cal.App.4th 742, ...

Excerpt: ...al.App.2d 528. In Oliver v. The Swiss Club Tell, supra, 222 Cal.App.2d 528, 533, an unincorporated association was sued and answered, stating the answer was on behalf of the “The Swiss Club Tell,” an unincorporated association, “if any such organization exists.” (Ibid. at 533.) Plaintiff failed to appear at the hearing where summary judgment was granted to defendant. That judgment was reversed on appeal and the court held the case should ...

Excerpt: ...o submit to this court, within 7 days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendant. Explanation: Defendant North Cal Cleaning Company (NCCC) demurs to the Second Amended Complaint of plaintiff Joe Louis Pena Jr. (Pena) on the grounds that the breach of contract cause of action alleged against it in the Second Amended Complaint is barred by the exclusive remedy of workers' compensation. (C...

Excerpt: ...efendants' Motion to Dismiss: David Bray, Jr., and Dawn Bray move to dismiss the action against them as well as the claims against David Bray, Sr., and Robert Bray, under both the five‐year mandatory dismissal statute, Code of Civil Procedure section 583.310, and the discretionary statute for failure to prosecute the action diligently, Code of Civil Procedure sections 583.410 and 583.420. Under section 583.310, “[a]n action shall be brought t...

Excerpt: ...ts on appeal, seeking $91.10 for Item 1 filing fees, and $1,363.68 for Item 6 “Transmitting, filing, and serving of record, briefs, and other papers.” CVC moves to tax Item 6, contending this cost is excessive and unreasonable because “[i]t is impossible to determine from the face of the Memorandum of Costs why the claimed costs are in excess of the amounts listed on the Appellate Court Register of Actions page for the case and whether the ...

Excerpt: ...) the request that petitioner be allowed to deposit the money in a custodial account under the California Uniform Transfers to Minors Act (“CUTMA”) and 2) the request for $5,000 of the settlement to go to petitioner. While CUTMA accounts are often used by private parties as a means of giving gifts to minors, it is extremely uncommon for the court to order this in a minor's compromise situation. Petitioner has provided no basis for the court t...

Excerpt: ...ion is strictly “a matter of consent”'” and ‘ “ ‘a party cannot be required to submit to an arbitration any dispute which he has not agreed so to submit”'” (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 252, internal citations omitted.) As a general principle, “ ‘questions about the “making of the agreement to arbitrate” are for the courts to decide unless the parties have clearly and unmistakably referred those...

Excerpt: ...rs to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Omega and Mr. Asay demur to the first and sole cause of action for failure to pay monies due, on the ground that the complaint fails to state a claim against them. The moving parties contend that the December 19, 2018 Order adopting the November 29, 2018 Proposed Decision and Order (the “Penalty Order”), attached...

Excerpt: ...e a cause of action, without leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) To overrule the demurrer of defendants California Correctional Health Care Services (CCHCS) and Tveritina to the first cause of action. To sustain the demurrer of CCHCS and Tveritina to the second cause of action, for failure to state facts sufficient to constitute a cause of action. To deny leave to amend the second cause of action as to CCHCS, but to grant leav...

Excerpt: ...ended Complaint by plaintiff be filed by an attorney licensed to practice law in California. Plaintiff is granted 30 days' leave to a First Amended Complaint within the limitations above. The time in which the answer can be filed will run from service by the clerk of the minute order. To grant the Request for Judicial Notice Explanation: 1. Demurrer based on Res judicata Because there has already been Small Claims litigation and a judgment betwee...

Excerpt: ...ting a real property claim. (Code Civ. Proc., § 405.1.) A real property claim is an action, “which would, if meritorious, affect … title to, or the right of possession of, specific real property ….” (§ 405.4.) In addition to grounds not asserted here, a lis pendens may be ordered expunged upon a finding that the claimant cannot establish probable validity to their claim. (Code Civ. Proc., § 405.32; Defs. Points & Auth. at p. 5:13‐18....

Excerpt: ...ompelling arbitration under both the Federal Arbitration Act and the California Arbitration Act, Code of Civil Procedure section 1281, et seq. Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent ...