Excerpt: ... minute order, a proposed judgment consistent with the court's summary judgment order. (Code Civ. Proc„ S 437c, subd. To deny Fresno Community Hospital & Medical Center dba Community Regional Medical Center's ("CRMC") motion for summary judgment. (Code Civ. Proc., S 437c, subd. (c).) If a timely request for oral argument is made, such argument will be entertained on September 20, 2023, at 3:30 p.m. Explanation: Plaintiff alleges that defendants...

Excerpt: ... Tveritna argues that plaintiff's negligence claim against her is insufficiently alleged because he has not alleged any specific facts showing that her alleged failure to summon medical aid for him for two hours after he first told her about his symptoms caused him any additional harm beyond what he had already suffered as a result of receiving the Covid-19 vaccine. She contends that his new allegations in the first amended complaint are nothing ...

Excerpt: ...old print. If a timely request for oral argument is made, such argument will be entertained on September 20, 2023, at 3:30 p.m. Explanation: A party may file a general demurrer on claims that "[tlhe pleading does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., S 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 demurrer can be utilized where the complaint itself is incomplete ....' [Citations.]" l.) ...

Excerpt: ...amirez (together "Plaintiffs") seek an order of preliminary injunction prohibiting defendants Gill Growers, Inc., Vindeep Gill, Lakhbir Gill, and Manjit K. Gill (collectively "Defendants") from: (1) Continuing to fail to maintain the sewer system at 11126 S. Orange Avenue, Fresno, California 93725 (the "Property"), consistent with Civil Ctxle section 1941.1 and Health and Safety Code sections 17920.3, subdivision (a)(14)-(15) and (c); (2) Continu...

Excerpt: ...hat it has no duty to "police" or supervise the accounts of its customers to ensure that they are not the victims of fraud or financial elder abuse and thus it cannot be liable for negligently allowing plaintiff's granddaughter to steal cwer $90,000 from plaintiff's accounts, Wells Fargo has not established that it owes plaintiff no duty as a matter of law. The cases cited by Wells Fargo only stand for the proposition that a bank has no duty to m...

Excerpt: ...e secton 430.41and 435.5; specifically, to meet and confer with plaintiff regarding the issues raised by the demurrer and motion to strike. If the parties cannot agree on the purported deficiencies in the first amended complaint, defendant may calendar another hearing date for the demurrer and must comply with Code of Civil Procedure section 430.41 and 435.5 in doing so. If the parties need more tme to meet and confer, they may submit a stipulati...

Excerpt: ...3:30 p.m. in Department 503. Explanation: On September 3, 2020, plaintiff Carlos Aguilar ("Plaintiff") filed the instant action for two causes of action: general negligence, and premises liability. Plaintiff alleged that on September 7, 2018, he slipped and fell at Jetro Restaurant Depot due to soap on the floor. Defendant RD America, LLC ("Defendant"), erroneously sued as Jetro Restaurant Depot, now seeks summary judgment of the Complaint. Defen...

Excerpt: ...ee-prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movant's favor; and determining whether the opposition demonstrates the existence of a triable issue of material fact. (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 485, 493.) The moving party bears the burden of showing the court that t...

Excerpt: ... However, "[al motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (CCP S 437c(f)(1); see also Catalano v. Superior Court (20CO 82 Cal.App.4th 91, 97 [piecemeal adjudication prohibitedl.) The ultimate burden of persuasion rests on defendant, as the moving party. The initial burden of production is on defendant to show by a preponde...

Excerpt: ...ded Cross-complaint, which will run from service by the clerk of the minute order. New allegations/language must set in boldface type. Explanation: Cross-Defendant SpotOn Transact, LLC ("SpotOn") demurs to the third and fourth causes of action in cross complainants' second amended cross-complaint (SACC) on the basis that each falls to state facts sufficient to state a cause of action. (Code Civ. Proc. 5430.10, subd. (e).) Additionally, SpotOn dem...

Excerpt: ...Kræker, M.D. ("Defendant") brings the present general demurrer as to the first cause of action, for medical battery, for failure to state facts sufficient to constitute an action. On a demurrer a court's function is limited to testing the legal suffciency of the complaint. A demurrer is simply not the appropriate procedure for determining the truth of disputed facts. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-...

Excerpt: ...herein on October 5, 2022. Plaintiff's complaint, against each of the other drivers, alleges a claim for negligence resulting in personal injury and property damage. On November 8, 2022, defendant Macias filed his general denial and asserted six (6) affirmative defenses. Subsequently, the parties entered into a stipulation whereby plaintiff was to file a first amended complaint. On March 30, 2023, defendant Mac:ias filed his answer to the first a...

Excerpt: ...or Production of Documents (set three) within twenty (20) days from the date of this order. Plaintiff Kathleen Slatic shall pay monetary sanctions of $807.50, payable to counsel for Daniel Ashley within twenty (20) days from the date of this order. To set a status conference on Tuesday, November 13, 2023 at 3:30 p.m. in Dept. 403 re compliance with this order and the imposition of issue/terminating sanctions. On or before November 1, 2023 Plainti...

Excerpt: ...Group, LLC's Answer to Complaint filed on January 20, 2022; (2) PEP Partners, LLC's and LJ88C Group, LLC's Crosscomplaint filed on January 20, 2022; and (3) PEP Partners, LLC's and UBBC Group, LLC's Answer, filed on May 17, 2022, to Cross-complaint of Green Capital Investments, LLC and Green Capital Management Services, Inc. The court also enters the defaults of PEP Partners, LLC and UBBC Group, LLCto the complaint of plaintiff West Elm, LLC, and...

Excerpt: ...st possess and exercise "that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances." (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, in any medical malpractice action, the plaintiff must establish: "(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a brea...

Excerpt: ...Code Civ. Proc., S 473, subd. (b), first sentence.) The court denies the request for relief from waiver of objections, but grants defendant relief from the court's October 25, 2022 order pursuant to Code of Civil Procedure section 473, subdivision (b), on the condition that defendant agrees to participate in a pretrial discovery conference regarding the at-issue discovery, and agrees to extend plaintiff's deadline for filing a motion to compel fu...

Excerpt: ...nfliction of emotional distress ("IIED"), cross-complainant Stacey Aprile filed the FACC. Doe purports to demur to both causes of action, including the second cause of action for harassment, but does not address the second cause of action at all. The court will only address the first cause of action. The elements of a cause of action for IIED are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disre...

Excerpt: ...t against plaintiff and cross-defendant Michael Menefee ("Cross-Defendant") regarding the use and enjoyment of 9714 South Leonard Avenue, Selma, California (the "Property"). Cross-complainants bring two causes of action of assumpsit, for unpaid rent, and for unjust enrichment. Cross-Defendant brings the instant demurrer to the Cross-complaint on several grounds: (1) the first cause of action fails to state the nature of the contract; (2) the firs...

Excerpt: ...rizes the court to make an order that the trial of any issue shall precede the trial of any other issue "when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing[.l" The objective of bifurcation "is avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability...

Excerpt: ...re are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc„ 5437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) In determining a motion for summary judgment, "'we view the evidence in the light most favorable to plaintiffs'" and "'liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendant['sl own evidence, in order to resolve any evide...

Excerpt: ... 1240.010.) The State has adopted the required resolution of necessity. (Code Civ. Proc. S 1240.040.) The State has deposited with the State Treasury the probable amount of compensation. All defendants who have appeared and not disclaimed any interest in the property have been timely served with the motion for possession. (Code Civ. Proc. S 1255.410.) Since the motion is opposed, in orderto grant the motion, the court must also find: (C) There is...

Excerpt: ...ctively "Defendants") seek to dismiss the First Amended Complaint by Plaintiffs Lennice Muhammad and Julia Dudley (collectively "Plaintiffs") for failure to comply with the court's May 31, 2023 order granting Plaintiffs the relief they sought, for leave to file an amended pleading. Defendants filed the instant motion on July 7, 2023, more than 30 days after leave was granted. At the time of filing, no amended pleading had been filed. Accordingly,...

Excerpt: ...t she saw smoke coming from what appeared to be the mobile home of defendant Laura Christine Gribben (Gribben). When she went to inform Gribben, she observed Gribben's son, defendant Joshua Dale Cross (Cross), burning items outside Gribben's home and moving the items around with a garden hoe. As plaintiff tried to leave, Cross hit her in the head with the hoe, causing severe injuries. Gribben demurred to the fourth, fifth and sixth causes against...

Excerpt: ...ted to submit to this court, within 7 days of service of the minute order, a Proposed Judgment dismissing the action. Explanation: In 2021, Astroturf was awarded contracts for the addition of turf to McLane High School and Sunnyside High School in Fresno Unified School District. Plaintiff Dominick aerarducci, a manager for Astroturf, alleges defamatory statements were published by defendant Fresno Unified School District (FUSD) within a September...

Excerpt: ...wners who assigned to plaintiff their claims arising from the alleged impro#r foreclosure of their homes. Wells Fargo has demurred to the First Amended Complaint ("FAC") and all causes of action. Plaintiff's Suspended Corporate Status Wells Fargo first contends that because plaintiff had been suspended, it lacks capacity to sue. However, with the Request for Judicial Notice, plaintiff submits evidence that its status has been reinstated. As of Ma...

Excerpt: ... of arbitration of plaintiff's first, second, third, fourth and seventh causes of acton. Explanation: Defendants move the court for an order compelling plaintiff to arbitrate the claims of her complaint pursuant to Code of Civil Procedure section 1281.2. Upon commencing her employment with McCormick Barstow, LLP, plaintiff signed an arbitration agreement wherein plaintiff agreed to submit to arbitration "any and all disputes, claims or controvers...

Excerpt: ...s of 10 and 13 years, from 6th to 8th grade. Monson-Sultana now moves for summary judgment or, alternatively, summary adjudication. Summary Adjudication Monson-Sultana does not move for summary adjudicaton of any particular causes of action, but that "No Administrative or Supervisory Employee of Monson- Sultana Joint Union Elementary School District Had Prior Knowledge, Nor Any Reason to Know, That David Blancas Had A Dangerous Propensity to Abus...

Excerpt: ...contnues the matter to Thursday, September 28, 2023, at 3:30 p.m. in Department 503, to allow moving party to file a supplemental declaration addressing the issues explained below. The supplemental declaration must be filed on or before 5:00 p.m. on September 20, 2023. Explanation: It is proper to set the dismissal aside, since that is the only way anyone can make a claim to the funds. However, it is not yet clear that moving party Phyllis E.F. J...

Excerpt: ...rbitration 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 respndent to arbitrate the controversy it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been wa-ved by the petitioner; or (b) Grounds exist for the revocation o...

Excerpt: ...against Plaintiff Tentative Ruling: To grant defendant's motion to deem requests for admissions admitted. The truth of the matters specified in the Request for Admissions, Set One, are to be deemed admitted, unless plaintiff serves, before the hearing, a response that is in substantial compliance with Code of Civil Procedure section 2033.220. To grant defendant's motion to compel JK Wholesale to Comply with the Subpoena. Within 10 days of service...

Excerpt: ...planation: Each request for judicial notce was The matters of which judicial notice was requested to be taken consist of public statutory law, regulations, legislative enactments, legislative history, and related official or records. Each is granted, accordingly. A motion for judgment on the pleadings has the same function as a general demurrer in that it is used to challenge pleadings that do not state facts sufficient to constitute a cause of a...

Excerpt: ...eement for sale of the subject property, plaintiff has not proven that it only needs to pay only $29,941.24 in order to pay off the remaining balance under the agreement and receive title to the property. Plaintiff's evidence shows that the parties agreed that plaintiff would purchase the property for $250,000, with a right of first refusall to buy the remaining properties owned by the Virginia Shubin Barnett Living Trust for $12,500. (Exhibit D ...

Excerpt: ...nt. To grant the request for judicial notice. To sustain the general and special demurrers with ten (10) days leave to amend, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Plaintiff filed a first amended complaint and notice of non-opposibon on August 22, 2023. Opposition was due nine (9) court days prior to hearing, per Code of Civil Procedure, Section 1005(b). T...

Excerpt: ...djudication, of the first amended complaint against it. The court intends to deny the motion entirely. Defendant has not met its burden in addressing every theory of liability pled against it in the first amended complaint. Even if defendant had met fts burden, plaintiff has demonstrated there is a genuine dispute of material fact, notwithstanding the "factually void" discovery responses relied upon by defendant served in response to discovery re...

Excerpt: ... Fresno ("County") concedes that the claims of both Petitioners Aksel Joseph Vega and the Estate of Alfonso A. Vega fall within separate statutory exemptions. (See Opp. at pp. 8:5 — 9:15 [citing Gov. Code, S 946.6, subds. (c)(2) and (c)(6).) Therefore, the petition is granted as to petitioners Aksel Joseph Vega and the Estate of Alfonso A. Vega, Jr. Petitoners Janice Palacios and Aksel Joseph Vega (parents of decedent) " '[Tlhe filing of a clai...

Excerpt: ...on, without leave to amend. To overrule Specialized Loan Servicing LLC's ("SLS") demurrer to the first cause of action. Within 10 days of service of the order by the clerk, SLS shall file its answer to the Complaint. Explanation: In the first cause of action for wrongful foreclosure, plaintiff alleges that the foreclosure sale was wrongful because defendant "SL" (presumably this refers to SLS) did not comply with Civil Code section 2924(f) becaus...

Excerpt: ...and (f).) Any amended pleading shall be filed within 20 days of the clerk's service of this order. New or different allegations in the first amended complaint are to be set in boldface type. Explanation: Demurrer A party may file a general demurrer on claims that "[t]he pleading does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., S 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [MA demurrer can b...

Excerpt: ...s 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 August 1, 2024. Explanation: 1. Final Class Approval The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous...

Excerpt: ...ctively, "Defendants"). The defendants shall file and serve their answers to the first amended complaint within ten (10) days of the clerk's mailing of this minute order. To deny plaintiff's request for judicial notice. Explanation: Demurrer Defendants demur specially to the second cause of achon and generally to both the first and second causes of action of the first amended complaint ("FAC") on the ground that each fails to state sufficient fac...

Excerpt: ...the demurrers without leave to amend. The prevailing parties are directed to submit to this court, within seven days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Plaintiff Abel Perez filed a first amended complaint (FAC) against defendants Watchtower Bible and Tract Society of New York, Inc., Watch Tower Bible and Tract Society of Pennsylvania, and Christian Congregation of...

Excerpt: ..., Inc. Explanation: Cross-defendant Induser Poniente has moved to dismiss or stay the action on the ground that California is an inconvenient forum, as the parties have already agreed to try the action in El Ejido, Spain. under Code of Civil Procedure secton 410.30, "When a court upon motion of a party or its own moton finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay o...

Excerpt: ...abor Code under the Private Attorneys General Act ("PAGA"). "The superior court shall review and approve any settlement of any civil achon filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court." (Lab. Code, S 2699, subd. (i)(2).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the ...

Excerpt: ...ng a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, shall be valid, irre'.nxable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. S 2.) [W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement...

Excerpt: ... a parallel criminal proceeding should be made in light of the particular circumstances and competing interests involved in the case. This means the decision maker should consider the extent to which the defendant's Fifth Amendment rights are implicated. In addition, the decision maker should generally consider the following factors: (1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it...

Excerpt: ...her upcoming hearings. Explanation: Quashing Service of Summons The proof of service purporting to serve moving defendant shows service by substituted service on December 10, 2020, but it was not filed until June 20, 2023. Defendant filed this motion as soon as it learned plaintiff intended to treat this service as valid, even though defense counsel had spoken with plaintiff and informed her that defendant believed it was invalid and that she nee...

Excerpt: ...his error on plaintiff's part. Healthcare providers must possess and exerc:ise "that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances." (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, in any medical malpractice action, the plaintiff must establish: "(1) the duty of the professional to use such skill, prudence, and diligence as other members of h...

Excerpt: ... for Production, Set Two Tentative Ruling: To grant defendant General Motors, LLC's motion for relief from waiver of objections asserted in its response to Request for Production of Documents, Set Two. To deny plaintiff Brooks' motion to compel further responses to requests for production, set one. To take off calendar plaintiff Brooks' motion to compel the deposition of defendant's person most knowledgeable for failure to file moving papers. To ...

Excerpt: ...rp.; and Planet 13 Holdings, Inc., to the second, fourth, fifth, sixth, eighth and ninth causes of action of the First Amended Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. S 430.10, subd. (e).) To sustain the demurrer of defendant Jennings to the entire First Amended Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action...

Excerpt: ...rp.; and Planet 13 Holdings, Inc., to the second, fourth, fifth, sixth, eighth and ninth causes of action of the First Amended Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. S 430.10, subd. (e).) To sustain the demurrer of defendant Jennings to the entire First Amended Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action...

Excerpt: ... for Production, Set Two Tentative Ruling: To grant defendant General Motors, LLC's motion for relief from waiver of objections asserted in its response to Request for Production of Documents, Set Two. To deny plaintiff Brooks' motion to compel further responses to requests for production, set one. To take off calendar plaintiff Brooks' motion to compel the deposition of defendant's person most knowledgeable for failure to file moving papers. To ...

Excerpt: ...his error on plaintiff's part. Healthcare providers must possess and exerc:ise "that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances." (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, in any medical malpractice action, the plaintiff must establish: "(1) the duty of the professional to use such skill, prudence, and diligence as other members of h...

Excerpt: ...her upcoming hearings. Explanation: Quashing Service of Summons The proof of service purporting to serve moving defendant shows service by substituted service on December 10, 2020, but it was not filed until June 20, 2023. Defendant filed this motion as soon as it learned plaintiff intended to treat this service as valid, even though defense counsel had spoken with plaintiff and informed her that defendant believed it was invalid and that she nee...

Excerpt: ...ubmitted on reply by the Supplemental Declaration of Donna Barrett. Plaintiff shall file and serve the supplemental briefing by 5:00 p.m. on October 27, 2023. Defendant shall serve and file its response to the supplemental briefing by 5:00 p.m. on November 2, 2023. Explanation: Defendant The General Council of the Assemblies of God ("Defendant") seeks summary judgment or, in the alternative, summary adjudication of the three causes of action of t...

Excerpt: ... order. Explanation: Meet and Confer Under Code of Civil Procedure section 430.41, "[blefore 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." (Code Civ. Proc., S 430.41, subd. (a).) "As par...

Excerpt: ...olve the issues, defense counsel shall file a declaration, no later than September 22, 2023, stating the efforts made. If no declaration is filed, the hearing will be taken off calendar. Explanation: Under Code of Civil Procedure section 430.41, "[b]efore 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 ...

Excerpt: ...rance Company's demurrer to the fifth cause of action. Plaintiff is granted 10 days' leave to file and serve a Fourth Amended Complaint. The time to file such pleading will run from service by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type, failure to do so (again) will result in the pleading being stricken. Explanation: On November 3, 2021, plaintiff filed suit against defendants Samuel Alexande...

Excerpt: ...s for lack of standing pursuant to the United States Supreme Court's decision in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, 1925 ("Viking River"). The court intends to grant the petition to compel the arbitration of plaintiff's individual PAGA claims, however, the representative PAGA claims are stayed. Plaintiff Ariel Reyes was employed by defendant Mad Duck Brewing, LLC from November 2021 through January 2022 as a cook. On July...

Excerpt: ... this minute order. Explanation: Plaintiff filed her original complaint which, stated eight (8) causes of action: religious discrimination (FEHA, Gov. Code S 12940(a)), harassment (FEHA, Gov. Code S retaliation (FEHA, Gov. Code S 12940(h)), hostile work environment (Gov. Code S 12940(k)), failure to engage in interactive process re accommodation (Gov. Code S failure to reasonably accommodate (Gov. Code S 12940(1)(1)), violation of labor code S 11...

Excerpt: ...ettlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors .„." (Code Civ. Proc., S 877.6, subd. under Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488 (Tech-Bilt), whether the settlement falls within the parameters of the good faith "ball park" is evaluated from the information available at the time of settlement, "including a rough approximation of plaintiffs' total recovery an...

Excerpt: ...from waiver of objections, but grants defendant relief from the court's October 25, 2022 order pursuant to Code of Civil Procedure section 473, subdivision (b), on the condition that defendant agrees that plaintiff's deadline for filing a motion to compel further responses is extended 35 days from service of this order, or whatever later date the parties may agree upon, and provided defendant participates in a pretrial discovery conference regard...

Excerpt: ...ed 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 August 1, 2024. As required by CRC 3.771(b), notce of the judgment is to be given to the class. Notice may be given by an insert with the settlement check that states judgment was entered with a link to the court's website and directions to enter the case num...

Excerpt: ...ghth and thirty- first causes of action and the alternative motion for procedural protections during the trial, without prejudice, as the motion is premature and should be brought as a motion in limine. Explanation: under Code of Civil Procedure section 1048, "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, inclu...

Excerpt: ...senior care living facilities. After the defendants failed to pay Romero $33,500 for services rendered from May 1, 2016, to August 31, 2019, Romero filed a complaint for breach of contract and common counts against six named defendants: VR Enigma lnc„ VR Enigma Inc. dba Royal Gardens Senior Care, VR Enigma, Inc. dba Royal Gardens II Senior Care, VR Enigma, Inc. dba Royal Gardens III Senior Care, VR Enigma, Inc. dba Royal Gardens IV Senior Care,...

Excerpt: ...ervice of the order by the clerk. Explanation: On April 18, 2023, defendant Labiak filed motions to compel further responses to requests for admission, requests for production of documents, and form interrogatories. Four motions were calendared, but it appears that Labiak twice filed the moton directed at the form interrogatories. Hence, there were really only three motions. Plaintiff Zupancic was unrepresented at the time she served the response...

Excerpt: ...terest against both, may intervene in the action or proceeding." (Code Civ. Proc., S 387 (a).) "[Ilf the person seeking interventon claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede the person's ability to protect that interest, unless that person's interest is adequately represented by existing ...

Excerpt: ... reason for the court to reconsider its decision granting certification of the class. Therefore, the court certifies the class for the purpose of final approval of the settlement. 2. Settlement a. Legal Standards "When, as here, a class settlement is negotiated prior to formal class certification, there is an increased risk that the named plaintiffs and class counsel will breach the fiduciary obligations they owe to the absent class members. As a...

Excerpt: ...ng a four-week trial, the jury rendered verdict favorable in part to plaintiffs Veronica Ordaz Gonzalez and Jose Ramos Santiago and entirely favorable to defendants with regard to plaintiffs Omar Perez and Roberto Perez. The parties have filed memorandums of costs having each prevailed at least in part. Plaintiff Gonzalez moves the court for an award of attorney's fees as the prevailing party in her cause of action for violations of the Bane Act ...

Excerpt: ...S 430.10, subd. (e), (f).) To deny RVJ's motion to strike alter-ego allegations. To grant the moton to strike the requests for attorneys' fees at FAC 8:21, 20:26 and 21:4, with leave to amend. (Code Civ. Proc., S 436, subd. To sustain Isidro Martinez and Martinez Accounting, Inc.' (collectively, "Martinez") demurrer to the eleventh, thirteenth, fourteenth and fifteenth causes of action, with plaintiff granted 10 days' leave to amend as to the ele...

Excerpt: ... be collectively referred to herein as "Intervenors." The First Amended Complaint alleges that during the period of July 1, 2019, to September 30, 2020, plaintiff overpaid sales taxes in the amount of $10,797,689.31 on the sales of jet fuel to Southwest Airlines Co. The taxes at issue are pursuant to the Bradley8urns Uniform Local Sales and Use Tax Law, codified in Revenue and Taxaton Code section 7200, et seq. Plaintiff pays these taxes to the d...

Excerpt: ... exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., 5425.16, subd. (a).) plaintiffs/crossdefendants prevailed on their ant-SLAPP motion as to the defendant/crosscomplainant's cross complaint. The prevailing defendant on a special motion to strike "shall be entitled" to recover his or her attorney fees and costs, and this fee award is mandatory. (Code Civ. Proc., S 425.15, subd. (c); Ketchum v. Moses (2W1...

Excerpt: ...an be amended and the distribution of any cy pres funds can be ordered. as to the amount paid to class members must be filed on or before August 1, 2024. 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. In addition, there does n...

Excerpt: ...e 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 settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notce in the manner provided in subdivision (b) of Section 1005." (Code Civ. Proc. S 877.6(a)(1).) "The issue of th...

Excerpt: ...the issues, but merely discovers, through the medium of affdavits or declarations, whether there are issues to be tried and whether the parties possess evidence that demands the analysis of a trial. (Melamed v City of Long Beach (1993) 15 Cal.App.4th 70, 76; Molko v Holy Spirit Ass'n (1988) 46 Cal.3d 1092, 1107; Schwoerer v Union Oil Co. (1993) 14 Cal.App.4th 103, 110.) In short, the motion is not a substitute for a bench trial. Summary adjudicat...

Excerpt: ... that transaction, plaintiff signed a Retail Installment Sales Contract ("RISC") which contained an arbitration clause. Problems with the vehicle ensued, and this "lemon law" action was filed on March 25, 2022, against Nissan and Naftoon, lnc„ a repair facility (but not the seller). The Complaint alleges the following causes of action: (1) Violation of the Song-Beverly Act — Breach of Express Warranty; (2) Fraudulent Inducement — Intentiona...

Excerpt: ...f's evidentiary objections to portions of the Alejandra Garcia Declaration, the court is not making a ruling as to paragraph 9 as the court is not considering the 2009 agreement. The court is sustaining the objections to paragraphs 10 and 13. The court is overruling the objection to paragraph 11, with the exception of the words, "...that had been enclosed with the Memo..." Explanation: Under the Federal Arbitration Act ("FAA"), A written provisio...

Excerpt: ... Joyce Henry cannot appear in court for her disabled adult daughter, Charmaigne Tyler. While Probate Code sec
Ÿon 3500 allows parents to Þle pe
Ÿ
Ÿons for compromise of a minor child's claim, there is no equivalent for disabled adults. Sec
Ÿon 372 of the Code of Civil Procedure provides that, when a person lacking legal capacity to make decisions or a person for whom a conservator has been appointed is a party, “that person shall appear ei...

Excerpt: ...ing to or to submit to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., S 2023.010, subd. (d).) Once a motion to compel a party to comply with a discovery request is granted, continued failure to comply may support a request for more severe sanctions, since disobeying a court order to provide discovery is also a misuse of the discovery process. (ld., (g).) It appears that since at least mid-to-late 2021, p...

Excerpt: ... judgment consistent with the summary judgment rulings within ten (10) days from the date of this order. Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., S437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) "A motion for summary adjudication shall be granted only if it completely disposes of ...

Excerpt: ... to address defects in pleadings otherwise not challengeable by a demurrer. (See Code Civ. Proc., S 435.) A motion to strike can be used to attack either a portion or the entirety of a pleading. (Ibid.) Waiver Cross-complainants rely on California Rules of Court, rule 8.54(c), for the position that cross-defendant's arguments are waived because he did not assert them in an opposition to the motion for leave to file a cross-complaint. The rule sta...

Excerpt: ...f the instrument shall be attached. (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention. (3) A particular description of the property and a statement of its value. (4) A statement, according to the best knowledge, information, and belief of t...

Excerpt: ...f's motion to set the trial date against the estate of Robert Bray by September 7, 2023. To deny the alternative moton to extend the five-year statute for bringing the case to trial. Explanation: Summary Judgment Motion To the extent plaintiff seeks summary judgment against defendant Adi McKissen, the court has already granted McKissen's motion for judgment on the pleadings as to all claims alleged against her without leave to amend. Therefore, p...

Excerpt: ...ary judgment, except it acts on specific causes of action, rather than on the entire complaint. (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 398.) A plaintiff moving for summary judgment or adjudication of a cause of action must "prove[l each element of the cause of action entitling the party to judgment on that cause of action." (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241; Code Civ. Proc„ S 4...

Excerpt: ...tions conditionally: If Plaintiff fails to comply with the court's December 15, 2022, order within 10 days of the clerk's service of this minute order, then the court grants the issue and evidence sanctions requested by the City of Fresno (the City), as set forth below. Explanation: Monetary Sanctions The failure to respond to a discovery request is a "misuse of the discovery process" under Code of Civil Procedure section 2023.010, subdivision (d...

Excerpt: ...ense to the complaint." (Code Civ. Proc., S 438, subd. (c)(1)(A).) Like a demurrer, a motion for judgment on the pleadings attacks defects disclosed on the face of the pleadings or by matters that may be judicially noticed. (Alameda County Waste Management Authority v. Waste Connections US, Inc. (2021) 67 Cal.App.5th 1162, 1173- 1174.) A motion for judgment on the pleadings is similarto a demurrer in most respects. (Ibid.) Except as provided in t...

Excerpt: ...ferent allegations in the second amended complaint are to be set in boldface type. Explanation: Mandatory Duty "A plaintiff seeking to hold a public entity liable under Government Code section 815.6 must specifically identify the statute or regulation alleged to create a mandatory duty." (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 689.) In essence, "[t]o construe a statute as imposing a mandatory duty on a public entiW, 'the mandatory na...

Excerpt: ...ice by the clerk of the minute order. All new allegations/language must be set in boldface type. To deny the motion to strike. Explanation: The express basis for the demurrer is that the Second Amended Cross-complaint fails to state facts constituting a cause of action, based upon Code of Civil Procedure section 431.10, subdivision (e). Plaintiffs also demurred for uncertainty to the second and third causes of action. The request for judicial not...

Excerpt: ...desire to amend, the Second Amended Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should plaintiff elect not to amend, demurring defendants shall file responsive pleadings within twenty (20) days from the date of this order. Explanation: First thru Third Causes of Action: Breach of Contract, Implied Covenant, and Common Counts Standing can appropriately be tested by a general...

Excerpt: ...t One) admitted. The truth of the matters specified in the Requests for Admissions are to be deemed admitted unless defendant Alan Stark serves, before the hearing, a proposed response to the Requests for Admission that is in substantial compliance with Code of Civil Procedure section 2033.220. To grant monetary sanctions against defendant Alan Stark in the total amount of $510. Monetary sanctions are ordered to be paid within 30 calendar days fr...

Excerpt: ... Plaintiff may file and serve a Second Amended Complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. To grant the moton to strike portions of the First Amended Complaint only as to the prayer for punt-ive damages, without leave to amend. To deny the motion to strike portions of the First Amended Complaint on all other grounds. Explanation: On June 30, 2022, plaintiff filed suit against defe...

Excerpt: ...ivision (a), "[t]he 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, ora 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...

Excerpt: ...ments are alleged to be confidential business records that contain proprietary information on defendant's operations. Defendant additionally notes that a prior court order for protection authorizes the filing of confidential information under seal. However, "[a] record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties." (Cal. Ru...

Excerpt: ...grant the motion for protective order. (Code Civ. Proc. SS 2030.090, subd. (b)(3) and 2031.060, subd. (b)(2).) Defendant shall serve responses to Form Interrogatories, Set One, Request for Production of Documents, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set Two, within 10 days of service of the minute order. To impose monetary sanctions in favor of defendant Foster Poultry Farms, LLC and against plainti...

Excerpt: ...uding any party to the action" (Code Civ. Proc., S 2025.010), "[e]ach of the statutes governing discovery contains a provision that requires that the parties, prior to invoking the assistance of the court, attempt to informally resolve their discovery disputes." (Townsend v. Superior Court (1998) 51 Cal.App.4th 1431, 1436-1437, emphasis added.) This requires an "an earnest attempt to resolve impasses in discovery." (ld. at p. 1438.) Trial in this...

Excerpt: ...moving 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. Civ. Proc. S 437c, subd. 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 does this...

Excerpt: ... and serve the corrected documents no later than Tuesday, August 15, 2023. Explanation: Notice of Motion A notice of motion must state in the first paragraph exactly what relief is sought and on what grounds the relief is sought. (Code Civ. Proc., S 1010; Cal. Rule of Court, rule 3.1110(a); see People v. American Sur. Ins. Co. (1999) 75 CA4th 719, 726.) The court cannot grant different relief, or relief on different grounds, than stated in the no...

Excerpt: ... dba Focus Home Health. (Code Civ. Proc., S 438.) Explanation: Judgement on the Pleadings A motion for judgment on the pleadings has the same function as a demurrer, but is made after the time for demurrer has passed. (Code Civ. Proc., S 438; Prickett v. Bonnier Corporation (2020) 55 Cal.App.5th 891, 896.) he grounds for the moton must appear on the face of the challenged pleading or from facts judicially noticeable. (Prickett v. Bonnier, supra, ...

Excerpt: ...ease agreement, or an assignee of the lease agreement. Thus, U.S. Bank National Association was not the real party in interest who had the right to sue on this claim. (Code Civ. Proc., S 367; Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 991 [noting that while the standing statute/requirement is "superficially concerned with procedural rules," application of the statute "really calls for a consideration of rights and obliga...

Excerpt: ... filed evidentiary objections to 1) new evidence in defendant's reply brief; 2) portions of the Dwight Nelson Declaration filed January 18, 2023; 3) paragraph 5 of the Dwight Nelson Declaration filed June 14, 2023; and 4) portions of the Liam Gaarder-Feingold Declaration filed June 14, 2023. The court is sustaining the objection as to new evidence in defendant's reply. The court has not considered new arguments presented for the first time in def...

Excerpt: ...ons in the proper format, as required by Rule of Court 3.1354. Written objections are (inter alia) to be filed separately from other papers, and quote the objectionable material and clearly state the grounds for the objections. The parties must do more than just note their objections on the Separate Statement and in the memorandums of points and authorities, as they have done here. Failure to object waives the right to challenge the court's rulin...

Excerpt: ...efendants bear the burden of proving that there is a complete defense to each challenged cause of action or that plaintiff cannot establish one or more elements of each of its challenged causes of action. (Barber v. Marina Sailing, Inc. (1995) 35 Cal.App.4th 558, 562.) If that burden is met, plaintiff can defeat the motion by demonstrating a triable issue of material fact. (Martinez v. Enterprise Rent-Acar Co. (2004) 119 Cal.App.4th 46, 52-53.) I...