Excerpt: ...rd, eighth, eleventh, fifteenth, sixteenth and eighteenth causes of action. (Code Civ. Proc. § 437c(f)(1).) Explanation: Plaintiff asserts 18 different employment‐related claims, including discrimination, harassment, retaliation, and wage and hour claims. As pointed out in the moving papers, plaintiff made many admissions at his deposition that were devastating to most of his claims. The court notes that the moving papers primarily rely on pla...

Excerpt: ...f the minute order. Explanation: Upon timely application, any person who has an interest in a matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. (Code Civ. Proc. § 387; Fireman's Fund Ins. Co. v. Gerlach (1976) 56 Cal.App.3d 299, 303‐ 305.) The intervention must not enlarge the issues in the case and the reasons for intervention must outweigh any opposit...

Excerpt: ...s within 5 days of the clerk's service of the minute order. Explanation: A defendant may cross‐complain against a co‐defendant or third person not yet a party to the action where the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against [it] or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause ...

Excerpt: ... filed no later than July 15, 2019. Explanation: 1. Failure of Service of Moving Papers The proof of service omits Mr. Delao, who substituted himself in pro per in August of 2018. As a named party to this action, he must be served as any other named party. 2. Final Approval of Settlement a. General Standards California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the propos...

Excerpt: ...ion, fees are to be awarded as a matter of right. There is no discretion to deny fees under such circumstances. (Rancho Mirage Country Club Homeowners Ass'n. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263.) The arguments made by Westcare California, Inc. (“Westcare”) against any fee award are unpersuasive. The fees request is made directly by Comprehensive Addiction Program, Inc. (“CAP”) on a cross‐complaint brought against CAP by Westcare...

Excerpt: ...l basis. These motions were Plaintiff's motions to strike Defendant's cross‐complaint and his verified answer (and portions thereof), and to set aside the Court's order of August 30, 2018. Section 128.7, subdivision (b) provides that by submitting any motion or similar paper to the Court, the submitting person is certifying that, after a reasonable inquiry: (1) It is not being presented primarily for an improper purpose, such as to harass or to...

Excerpt: ...plaint alleges dangerous condition of public property and negligence. On September 7, 2015, Plaintiff was riding his motorcycle on State Route 198 East, near Firestone Avenue, when defendant Rodriguez, who was driving a tractor‐trailer, owned by Defendant L.A. Hearn Co., allowed part of the tractor‐trailer to cross the center line, into plaintiff's path of travel. While Rodriguez states that it was plaintiff who crossed the center line, for p...

Excerpt: ...onally served subpoena is enforceable against a California resident and obligates that individual to produce business records specified in the subpoena. (Code Civ. Proc., § 2020.220, sub. (c).) The subpoena further obligates that individual to appear at a discovery motion proceeding that seeks to enforce the subpoena. (Id., subd. (c)(3); see also Code Civ. Proc., § 1987.1, subd. (a).) When the nonparty fails to comply with the issued subpoena, ...

Excerpt: ... as a fact that Federated Insurance Company “stands in the shoes of” Kjar Rental Company. The supporting evidence cites to a mass of papers filed for a prior motion in this case, without any specification as to where the actual evidence might be located within those filings. The Court declines to hunt through the papers and guess what might support the fact claimed. (Artiglio v. GE (1998) 61 Cal.App.4th 830, 841‐842.) Other evidence cited i...

Excerpt: ...ought in an action pending in that court. (b) The motion for leave to conduct discovery pending appeal shall set forth all of the following: (1) The names and addresses of the natural persons or organizations from whom the discovery is being sought. (2) The particular discovery methods described in Section 2036.020 for which authorization is being sought. (3) The reasons for perpetuating testimony or preserving evidence.” “Admittedly, the Dis...

Excerpt: ...All dates currently on calendar in Case No. 17CECG01880, including the trial date, are vacated. All applicable deadlines will be calculated once the initial trial date is set in the consolidated case. Explanation: There has been no opposition filed to the instant motion. The declaration of counsel for Defendant identifies a stipulation for consolidation signed by nearly all the parties in each action (counsel for the plaintiff in Patron purported...

Excerpt: ...et and confer letter mentions that there are “more than 60” such questions, which makes it all the more important that plaintiff identify these in the Separate Statement, rather than (apparently) expecting the court to pore over the 63 transcript pages to parse out what was objectionable. Plaintiff's reply argument that no Separate Statement was necessary under California Rules of Court, Rule 3.1345, is not a correct statement. While that rul...

Excerpt: ...rder. Explanation: This is a legal malpractice action. Plaintiff alleges that he retained defendants Nicholas Wagner and Wagner, Jones, Kopfman & Artenian to represent him in a wrongful discharge matter filed in federal court against his employer. SK Foods filed for bankruptcy, and defendants negligently represented him in that they (1) failed to properly prosecute the case in bankruptcy court by failing to have the bankruptcy stay lifted to proc...

Excerpt: ...ation: Service of an examination order on the judgment debtor generally creates a one‐year lien on all of the debtor's nonexempt personal property whether or not it is in the debtor's possession and control. (Code Civ. Proc., § 708.110, subd. (d); In re Burns (9th Cir. BAP 2003) 291 BR 846, 851.) There is a split of authority as to whether the debtors' filing for bankruptcy stays the one year lien created by an order of examination. (S...

Excerpt: ...intiff is to pay transfer fees in accordance with Code of Civil Procedure section 399. Explanation: Defendant California Physicians' Service, dba Blue Shield of California (“Blue Shield”) has filed this motion for change of venue to transfer this action to San Francisco County on the ground that Plaintiff, a resident of Fresno County who sustained serious physical and mental injuries in a car accident, and who alleges Blue Shield denied cover...

Excerpt: ... LLC (“Ocwen”) from implementing the impending foreclosure sale of the premises located at 1093 East Menlo Avenue, Fresno California 93710. Plaintiff relied on several arguments in the ex parte application to secure the temporary restraining order. Namely, Plaintiff argued that he was likely to succeed on the merits because there was a break in the chain of title, because Defendants failed to comply with Civil Code section 1095, and because t...

Excerpt: ... the ground of inconvenient forum. (Code Civ. Proc. § 418.10(a)(2).) It is not disputed that all of plaintiff's claims against Jeffrey Hacker arise from and are based on the stipulated Judgment for Dissolution of Marriage entered in case no. 16CEFL00096. The Judgment for Dissolution specifically reserved jurisdiction in the Family Court action for any enforcement of the Judgment and to resolve any matter subject to the jurisdiction of the court....

Excerpt: ...no moving papers were filed. Plaintiff is granted ten days leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanation: Defendant Syngenta Seeds, LLC demurs to the following causes of action: (1) negligence (production and delivery of defective seed); (2) negligence (sale of old seed); (3) negligent misrepresentation; and (4) intentional misrepresenta...

Excerpt: ...and place in the next 30 days. Explanation: In this action plaintiffs allege that the Fresno County Public Defender's Office suffers from structural deficiencies that prevent it from providing indigent defendants with meaningful and effective assistance of counsel in violation of the federal and California constitutional guarantees of due process and right to counsel, and the constitutional and statutory rights to a speedy trial. Plaintiffs alleg...

Excerpt: ...y set for May 9, 2019, are off calendar as moot in light of this ruling. Explanation: “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(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard...

Excerpt: ...based upon Code of Civil Procedure section 430.10, subdivisions (e). Defendants argue that: (1) plaintiff has failed to comply with the Government Claims Act; (2) defendants are immune; and (3) plaintiff fails to state a cause of action. Each of these arguments is addressed below. Government Claims Act If a complaint against a public entity does not allege facts showing that a claim was timely made under the Government Claims Act, or that complia...

Excerpt: ...he motion to strike without leave to amend. Defendants are to submit a proposed order dismissing the Plaintiff's first amended complaint as to them with prejudice within ten (10) days of the date of service of this order. Explanation: Defendants James Davis, M.D. and the Regents of the University of California (“Moving Defendants”) have filed a demurrer and a motion to strike the first amended complaint filed by Plaintiff Verrees. The argumen...

Excerpt: ...of the minute order. New allegations/language must be set in boldface type. Explanation: First Cause of Action – Dangerous Condition of Public Property To state a cause of action under this statute, plaintiff must allege: 1) a dangerous condition existed on the public property at the time of the injury; 2) the dangerous condition proximately caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of inju...

Excerpt: ...w Office of John Cadwalader within 30 days after service of this order. Explanation: Motion to Strike Code of Civil Procedure section 436 provides, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted into any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the ...

Excerpt: ...oyment and Housing Act (FEHA)].” (§ 12930, subd. (f)(1).) Upon receiving a complaint of discrimination, the DFEH is directed to promptly investigate the complaint. (§ 12963.) In pursuit of its investigation, the DFEH has the power, among other things, to issue subpoenas for the production of documents and to issue written interrogatories. (§ 12930, subd. (g)(1) & (3).) As a part of its investigation of Chandler's complaint pursuant to Sectio...

Excerpt: ...d preliminary approval lists the Turley and Mara Firm. The settlement attached to the most recent Mara declaration lists the Turley and Mara firm as class counsel. But the Notice to Class lists the Mara Firm. The most recent declarations are filed with the Mara Law Firm listed as counsel, at a new address. The Court takes judicial notice on its own motion of the February 6, 2019 filing by the Turley Firm on Trade Street in San Diego listing Willi...

Excerpt: ...cy favoring arbitration is so strong that "any doubt on the issue must be resolved in favor of arbitration." (Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406; See also AT & T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 650 [any doubt as to whether a particular dispute falls within ambit of arbitration clause resolved in favor of arbitration]; See also, United Transp. Union, AF...

Excerpt: ... fees by May 1, 2019. Explanation: 1. Substitution of Attorney Required for New Firm Until a substitution of attorney is filed, signed by the client, counsel of record and the firm of record remain the same. Code of Civil Procedure sections 284 and 285, People ex rel. Department of Public Works (1967) 248 Cal. App. 2d 618, 623. 2. Merits of Motion The interrogatories formally state they may not contain all information, and that a diligent search ...

Excerpt: ...planation: Burden on Summary Judgment “A plaintiff moving for summary judgment meets its burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling that party to judgment on that cause of action.” (Pasadena Metro Blue Line Const. Authority v. Pacific Bell Telephone Co. (2006) 140 Cal.App.4th 658, 663; see also Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Comp...

Excerpt: ...6. Explanation: Attorney Fees: Attorneys' fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc. § 1033.5, subd. (a)(1)(B).) Here, plaintiffs achieved their litigation objective in this action under the Song‐Beverly Act by way of accepting defendant's offer pursuant to Code of Civil Procedure section 998 (“998 Offer”), wherein defendant agreed to pay plaintiff $37,387.95. Plaintiff says this amount was inc...

Excerpt: ...iv. Proc., § 473, subd. (b).) Here, defendant Hanna Design Group, Inc., seeks to set‐aside its default which was entered on January 7, 2019. In support thereof, it makes three arguments: (1) plaintiffs' complaint is improperly drafted; (2) plaintiffs failed to notify defendant of their intent to seek default before doing so; and (3) attorney fault. The first two arguments are unpersuasive. First, defendant argues that default must be set aside...

Excerpt: ...den of persuasion thereon (Evid. Code § 500). Thus, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Plaintiffs moving for summary judgment bear the burden of persuasion that each element of the cause of action in question...

Excerpt: ...e provided this information sooner, it is a valid excuse for nonattendance, if substantiated. The minor's father (GAL and co‐plaintiff) was deposed, and it is reasonable to assume he could have, or may have, testified to his son's condition or that he came to the deposition with other proof of it. And yet defendant did not provide any evidence on this subject, such as evidence that Mr. Melendez failed to corroborate Mr. Quigg's contention that ...

Excerpt: ...nswered, and, moreover, has asserted affirmative defenses that, if proven, might prove a defense for the claims against Eastgate and Raman. (Cf. Adams Mfg. & Eng. Co. v. Coast Centerless Grinding Co. (1960) 194 Cal.App.2d 649, 655 (if it appears that the defaulting defendant's liability is dependent on the answering defendant being held liable, default judgment is not proper). Here, Volvo has pleaded defenses that the accident was entirely the fa...

Excerpt: ...nswered, and, moreover, has asserted affirmative defenses that, if proven, might prove a defense for the claims against Eastgate and Raman. (Cf. Adams Mfg. & Eng. Co. v. Coast Centerless Grinding Co. (1960) 194 Cal.App.2d 649, 655 (if it appears that the defaulting defendant's liability is dependent on the answering defendant being held liable, default judgment is not proper). Here, Volvo has pleaded defenses that the accident was entirely the fa...

Excerpt: ... is correct that the plaintiff's causes of action survive even after her death. “Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) Also, “A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc.,...

Excerpt: ...irs of the decedent.” (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 76.) As there is only a “single action for wrongful death, an heir bringing the action should join all known heirs. If an heir refuses to join as a plaintiff, he or she may be named as a defendant, so all heirs are before the court in the same action.” (Adams, supra, 196 Cal.App.4th at p. 77; see Romero v. Pacific Gas & Electric Co. (2007) 156 Cal.App.4th 211, 216 [�...

Excerpt: ...tion 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 is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted wit...

Excerpt: ...a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81; 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 is appropriate.”].) The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted with ...

Excerpt: ...mon question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Here, it does not appear that there are sufficient overlapping facts or issues of law that would justify consolidating the cases. Plaintiffs claim tha...

Excerpt: ...ade on one of the following grounds: (A) If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd.'s (b)(1) and (c)(1)(A).) Here, plaintiff contends that the answer fails to allege any facts to support an affirmative defense to the claims al...

Excerpt: ...d of litigation costs under [Code of Civil Procedure] section 1032, subdivision (b), implements a clear legislative goal of encouraging potentially meritorious FEHA suits. (Williams [v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97], 112 . . . .) Although section 1032, subdivision (b), also serves an important purpose, relieving a party whose position was vindicated in court of the basic costs of litigation, when those costs have not b...

Excerpt: ...rity for costs and attorney's fees; motion; hearing; undertaking states in full: (a) When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purpose...

Excerpt: ...37c.) The County is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: Defendants Interstate and Meza have filed a cross‐complaint against the County based on the theory that the County is liable for plaintiffs' injuries due to the existence of an allegedly dangerous condition on the property where the accident occurred, which was t...

Excerpt: ...h the court's summary judgment order. Explanation: A defendant moving for summary judgment or adjudication has 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. (2001) 25 Cal.4th 826, 850.) A defendant meets that burden by showing that one or more elements of the cause(s) of action cannot be established, or that there is a complete defense there...

Excerpt: ...plaint on the ground that plaintiff's exclusive remedy against them is through the payment of workers' compensation benefits, and therefore he cannot prevail on his sole cause of action for motor vehicle negligence. However, defendants have not met their burden of producing evidence showing that they are entitled to the protection of the workers' compensation exclusive remedy rule. First, to the extent that defendant De La Cruz argues that plaint...

Excerpt: ...ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and all of 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 issu...

Excerpt: ...ber 26, 2018. The papers must, at the very least, demonstrate a valid excuse for failing to respond to the Pretrial Discovery Conference Order for purposes of the Code of Civil Procedure §473. Plaintiff may seek any other appropriate relief as well. The Court may be inclined to attach conditions to the relief sought, including the payment of court and/or attorney's fees incurred during this process. The stay on enforcement of the November 26, 20...

Excerpt: ...mend. (Code Civ. Proc. § 430.10(e).) Defendants are to submit to this court, within seven days of service of the minute order, a proposed judgment dismissing this action as to the demurring defendants. The motion to strike punitive damages allegations are moot in light of the ruling on the demurrer. Explanation: Initially the court notes that it does not appear that the Ciresi defendants have met and conferred in person or by telephone as requir...

Excerpt: ...e the facts appearing on the face of the complaint, it also accepts as true the facts appearing in the attached exhibits, and if the exhibits' facts are contrary to the pleading's allegations, the exhibits will be given precedence. (Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1146.) However, plaintiff's interpretation of the contract must be accepted as correct in testing the sufficiency of the complaint. On general demu...