Excerpt: ... grant preliminary approval of the proposed settlement. 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, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontest...

Excerpt: ...ing, grief, anxiety, humiliation and/or emotional distress. To exclude from the description of the subpoenas issued to each of Dignity Health Mercy Medical Center and Clovis Community Medical Center employment documents pertaining to manager/supervisor files, performance evaluations and reviews, and disciplinary actions related to plaintiff. Explanation: Plaintiff seeks to quash subpoenas seeking certain records from Kaiser Fresno Medical Center,...

Excerpt: ...360 (6 motions x $60 each). The additional filing fees must be paid on or before December 15, 2022. To order plaintiffs Candice Burciaga, Cady Wade, and Serenah Pickens, by and through her guardian ad litem, to serve separate, verified responses, without objections, to defendants' Form Interrogatories, Set One, Special Interrogatories, Set One, and Demand for Production, Set One (a separate set of which was served on each plaintiff), no later tha...

Excerpt: ...itrator in this matter; that defendants pay all of the costs of arbitration; and that the California Rules of Civil Procedure be the rules by which the arbitration is conducted. Explanation: Plaintiff refiled a survival action on behalf of decedent Sandra Troupe for negligence, to comply with Code of Civil Procedure section 377.34, subdivision (b). Defendants filed a motion to compel arbitration, citing an arbitration agreement (“the Agreement�...

Excerpt: ...Plaintiff brings a single cause of action under PAGA on behalf of himself and all aggrieved employees under Labor Code section 2698 et seq. Defendant now seeks an order compelling plaintiff to private arbitration of his PAGA claim as an individual, and to dismiss the representative portion of the PAGA claim brought on behalf of all aggrieved employees. Motion to Compel Arbitration A trial court is required to grant a motion to compel arbitration ...

Excerpt: ...he entire complaint. (Code Civ. Proc., § 437c.) CRMC shall submit a proposed judgment consistent with the court's order within 10 days of the date of service of this order. Explanation: CRMC moves for summary judgment or adjudication of plaintiff's medical malpractice/wrongful death claim on the ground that it did not breach the standard of care. CRMC has presented the declaration of its expert, Dr. Gary W. Steinke, M.D., who opines that CRMC's ...

Excerpt: ...ll, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … resulting … dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.�...

Excerpt: ...rrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The truth of the facts alleged in the complaint are assumed true as well as the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 2 Cal.4th 876, 883; see also Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1168 [actual relianc...

Excerpt: ... the motion to strike the “but not limited to” language. Plaintiffs are to file a Second Amended Complaint consistent with this ruling. Such pleading shall be filed within 10 days from the date of service of the minute order. Caltrans shall file its Answer to the Second Amended Complaint no later than 10 days after service of the Second Amended Complaint on it. Explanation: There are differences in the named plaintiffs from the original Compl...

Excerpt: ...lanation: Defendants have admitted to liability by allowing their default to be entered, so liability is not an issue. (Morehouse v. Wanzo (1968) 266 Cal.App.2d 846, 853 [by defaulting, defendants admit liability for the debt or obligation on all well pleaded causes of action].) However, default does not admit that the amount prayed for is the proper amount. (Brown v. Superior Court (1966) 242 Cal.App.2d 519, 526.) Damages must be proved up with ...

Excerpt: ...order. Explanation: Defendants Zisha Lipschutz and Esti Lipschutz demur generally and specially to the tenth through fifteenth causes of action1 , contending that there are no facts alleged to show these individual defendants are the alter egos of entity defendants Eminence Healthcare Services, LLC (EHS) and Centuri Health Ventures, LLC (Centuri) and that these causes of action are uncertain because they are pled against “all defendants” but ...

Excerpt: ... 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. The parties are ordered to file a declaration from the administrator as to the payout and amount of uncashed checks no later than October 17, 2023. As required by California Rules of Court, rule 3.771(b), notice of the judgment is to be given to the class. Notice may be given by an insert with the se...

Excerpt: ...g 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, 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 of Civil Procedure section 473, whi...

Excerpt: ...ancing while dancing and drinking in violation of Newsom's orders”) and the allegations in the first sentence in paragraph 23, on page 6, lines 7‐9 (“El Bukanas was operating in violation of the Blueprint for a Safer Economy, in that the business was allowing indoor and outdoor seating, failing to enforce social distancing and allowing patrons to order alcohol without ordering food”) are stricken. The motion to strike the remaining allega...

Excerpt: ...ss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged...

Excerpt: ...expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) “‘Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against tha...

Excerpt: ...ntractors Indemnity Company (“ACIC”). The entirety of ACIC's $47,000 settlement is credited to defendant Bank of Stockton (“Bank”). (2) To grant plaintiff's motion for prejudgment interest in the sum of $16,013.28. (3) To grant plaintiff's motion for attorney fees in the sum of $157,382.50. (4) To grant the Bank's motion to tax costs claimed by plaintiff in the sum of $5,125.71, reducing the recoverable costs to $4,571.67. Explanation: Th...

Excerpt: ...nc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9.) 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 certified for settlement purposes. Th...

Excerpt: ...erk's service of this order. New or different allegations in the first amended complaint are to be set in boldface type. Explanation: General Demurrer As a threshold matter, “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.) In addition, a party may file a general ...

Excerpt: ...nts are directed to submit to this court, within five days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: In this action, plaintiff Los Arboles Family Apartments, LP (“Los Arboles”) seeks to invalidate and enjoin defendants from utilizing an easement created in 2007 burdening Los Arboles and benefitting the neighboring property. The easement, referred to as the Access Agree...

Excerpt: ...9. Code of Civil Procedure section 529, subdivision (a) provides, in relevant part: On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Damages wh...

Excerpt: ...der (1990) 217 Cal.App.3d 1509, 1512; see also Rev. & Tax. Code, § 23305.5, subd. (a)(2).) In addition, “a plea of lack of capacity of a corporation to maintain an action by reason of a suspension of corporate powers for nonpayment of its taxes ‘is a plea in abatement which is not favored in law, is to be strictly construed, and must be supported by facts warranting the abatement' at the time of the plea.” (Traub Co. v. Coffee Break Servic...

Excerpt: ...action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e), (f).) To overrule the demurrer to the fifth cause of action. To sustain the demurrer of defendant City of Fresno (“City”) to plaintiff's third, fourth, and sixth causes of action for failure to state facts sufficient to constitute a cause of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff shall serve and file its first amended complaint within...

Excerpt: ...ubdivision (b).1 On application, the court may, on any terms as may be just, relieve a party from a default taken against it due to mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) In order to obtain relief under Code of Civil Procedure section 473, the party's application for relief, among other things, “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, othe...

Excerpt: ... than 20 court days from the date of this order, with the time to run from the service of this minute order by the clerk. Explanation: Code of Civil Procedure section 2023.010(g) makes “[d]isobeying a court order to provide discovery” a “misuse of the discovery process,” but sanctions are only authorized to the extent permitted by each discovery procedure. Once a motion to compel answers is granted, continued failure to respond or inadequ...