Excerpt: ... judgment on the pleadings as to their complaint and defendant's answer. (Code Civ. Proc. § 438.) Explanation: Defendant's Motion for Reconsideration: Under Code of Civil Procedure section 1008, subdivision (a), a party moving for reconsideration of a court order must show that there are “new or different facts, circumstances, or law” that justify reconsideration of the order. (Code Civ. Proc. § 1008, subd. (a).) “A party seeking reconsid...

Excerpt: ... Tentative Ruling: To overrule the demurrers and deny the motions to strike. (Code Civ. Proc., §§ 430.10, subds. (e), (f), 435, 436.) Defendants FTF Enterprises, Inc. and Remarc, Inc. dba Fox Property Management shall file their answers to the Third Amended Complaint within ten (10) days from the date of service of this order. Explanation: General Demurrer Both demurring defendants challenge the sufficiency of the fourth and sixth causes of act...

Excerpt: ...ories, set one, and requests for production of documents, set one, unless defendants serve verified responses before the hearing. (Code Civ. Proc. § 2030.290; 2031.300.) Defendants are deemed to have waived all objections. (Ibid.) The court also intends to impose monetary sanctions of $460 per motion against defendants for their unjustified failure to respond to the requests. (Ibid.) Defendants' shall serve verified responses without objections ...

Excerpt: ...ed as compared to the harm that the opposing party is likely to suffer if the preliminary injunction were issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69‐70.) In considering these factors, the court “balances the relative hardships.” (Ibid.) The second factor (interim harm) “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status ...

Excerpt: ...a 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.) 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 s...

Excerpt: ...ts demurrers. To deny defendants' motions to strike. Defendants shall file responsive pleadings within ten (10) days from the date of this order. Explanation: Judicial Notice It is “well settled” that the court is authorized to consider matters which may be judicially noticed when determining whether a complaint is sufficient to survive a demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Code Civ. Proc., 430.30, subd. (a).) Furthermore,�...

Excerpt: ...ns on defendants John Mahoney and Laura Mahoney. Explanation: The court has personal jurisdiction over a party “from the time summons is served on him provided by Chapter 4 ….” (Code Civ. Proc., § 410.50, subd. (a).) The court may set aside a default in the event that service of a summons has not resulted in actual notice to a party in time to defend the action. (Code Civ. Proc., § 473.5, subd. (a).) This section is designed to provide re...

Excerpt: ...ient minimum contacts with the State of California to exercise personal jurisdiction over him. He also argues that it would offend traditional notions of fair play and substantial justice to require him to appear in California to defend against the lawsuit given the lack of evidence that he did anything to cause the accident. Therefore, he concludes that the court should refuse to exercise jurisdiction over him. However, while Wheeler states that...

Excerpt: ...st 11, 2022. Explanation: Code of Civil Procedure section 664.6 provides, in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. (Code Civ. Proc., § 664.6, subd. (a).) Here, the parties have a writing and litigati...

Excerpt: ... certain warranties. Problems with the vehicle ensued, forming the basis of the instant complaint for damages. Plaintiffs brought five causes of action against defendant for express and implied violations of warranties afforded through the Song‐Beverly Act. Defendant moves to compel arbitration on an arbitration clause in a sales contract made between plaintiffs and a non‐party, Lithia Ford Lincoln of Fresno. A trial court is required to gran...

Excerpt: ...d as to plaintiffs' products liability claim based on the breach of express warranty theory. (Code Civ. Proc., § 430.010, subd. (e).) Plaintiffs are granted 20 days' leave to file the second amended complaint. The time to file the second amended complaint will run from service by the clerk on the minute order. All new allegations in the second amended complaint are to be set in boldface type. Explanation: Demurrer as to the Second Cause of Actio...

Excerpt: ...hat he was ready to file the motion (having already obtained a hearing date), and left a message asking him to call if the date would not work for him, and/or to call in order to discuss the demurrer. This effort is insufficient. The legislative intent behind the meet and confer statutes for demurrers, motions to strike, and motions for judgment on the pleadings is to require the parties to have a good faith discussion about what the moving party...

Excerpt: ...of their corporation, Concord Development, Inc. (“Concord”), and are therefore personally liable for Concord's alleged misconduct. The seventh cause of action seeks disgorgement of all money paid to Concord for the project, under the theory that Concord's contractor's license was suspended by operation of law at the time it performed the contract because it failed to obtain workers' compensation insurance for its employees, therefore entitlin...

Excerpt: ...raud; 4. Constructive Fraud; 5. Monetary Conversion; 6. Accounting; 7. Constructive Trust; 8. Restitution (Unjust Enrichment); and 9. Violation of California Penal Code section 496, subdivision (a). Each cause of action is stated against all defendants: Ramiro Flores Martinez, and moving defendant Tabitha Loraine Lopez. The matter involves a transaction between the parties regarding the sale of certain vehicles. On June 14, 2022, this court found...

Excerpt: ...uno Lometti because of the default entered against him on July 29, 2021. To deny without prejudice as to defendant American Payroll Outsourcing Inc. because of the dismissal of this party on July 14, 2021. By minute order dated July 8, 2022, the court found that William Reiland is no longer attorney of record for defendant Lometti. Mr. Reiland's suspension and disbarment terminated the attorney‐client relationship by operation of law. (See Civ....

Excerpt: ...nez 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 cause of action is one arising from protected activity, by demonstrating that the facts underlying plaintiff's complaint fit one of the categories set forth in section 425.16, s...

Excerpt: ...es. Problems with the vehicle ensued, forming the basis of the instant complaint for damages. Plaintiff brought three causes of action against defendant for express and implied violations of warranties afforded through the Song‐Beverly Act. Defendant moves to compel arbitration based on an arbitration clause in a sales contract made between plaintiff and a non‐party, Auto Resources Inc. A trial court is required to grant a motion to compel ar...

Excerpt: ...ant 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 to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to com...

Excerpt: ...ore it can 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...

Excerpt: ...f action following defendant's deposition testimony and expert Dunnett's medical analysis. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473, subd. (a)(1).) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, th...

Excerpt: ...suant 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 to the agreement refuses to arbitrate 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 r...

Excerpt: ...ullar, owner of Varsity Liquors, moves for summary judgment, or alternatively for summary adjudication. Initially the court notes that if defendant does not show that summary judgment should be granted, the court should not grant summary adjudication of any particular cause of action or count. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative de...

Excerpt: ...0602.6.) Any briefing to be submitted by defendant addressing the issues herein must be filed and served no later than Wednesday, July 27, 2022. All papers in response to defendant's briefings must be filed and served no later than Friday, August 5, 2022. Alternatively, the court will take the motion off calendar if defendant pays the initial filing fee of $435 prior to Wednesday, July 27, 2022. Explanation: Plaintiff seeks reconsideration of an ...

Excerpt: ...ttlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769(d).) Certification of the Class: The court has already granted certification of the class. Fairness of the Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The court has ...

Excerpt: ...blish 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 whether certification...