Excerpt: ... the second amended complaint within 20 days of service of the order by the clerk. Explanation: “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. ‘[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the ...

Excerpt: ...”) argues that plaintiff failed to comply with Fresno County Superior Court Local Rule, rule 2.1.17, by failing to first obtain the court's permission to file his motion. At issue, is whether the court's June 2, 2021 Order After Pretrial Discovery Conference granted such permission to plaintiff to file the instant motion to compel further responses to defendant's supplemental responses to the request for production of documents, set one. The re...

Excerpt: ...tial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for ph...

Excerpt: .... The trial date set for June 27, 2022, is vacated, as is the Trial Readiness hearing set for June 24, 2022. To grant the request for attorney fees in the amount of $2,122.50. To deny the request that the court find plaintiff in contempt of court and order contempt sanctions, as the order dismissing the action is sufficient. Explanation: Once a motion to compel a party to comply with a discovery request is granted, continued failure to comply may...

Excerpt: ...ency, California Department of Corrections and Rehabilitation, Brown, Schwarzenegger, Kernan, Beard, Cate, Hubbard, Hysen, Rothschild, Frauenheim, Trimble, Yates, Allen, Bonilla, Briggs, Lewis, Lozano, Martinez, Van Leer, and Uranday (“State defendants”) is sustained, without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) The motion to strike is taken off calendar as moot in light of the ruling on the demurrer, and because the motio...

Excerpt: ...pare his or her action “while alleviating [defendant's] difficult choice between defending either the civil or criminal case.” (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.) Pursuant to both the United States and California constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding. (U.S. Const., 5th Amend.; Cal. Const., art. 1, § 15; see Evid. Code §94...

Excerpt: ...of mandate filed pursuant to Section 1088.5 presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ.” This motion presents only issues of law. The inquiry in a writ of administrative mandate includes whether “the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial;...

Excerpt: ...rder. Explanation: In her complaint, plaintiff alleges two causes of action (negligence and intentional tort) against defendant Kate Watts, an instructor employed by State Center Community College District (“SCCCD”). Paragraph 5 of the complaint is where plaintiff is to check boxes indicating whether she is required to comply with a claims statute, and either has complied or is excused from complying. Plaintiff checked no boxes, indicating sh...

Excerpt: ...rve and file her second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: First, to the extent that defendant argues that the opposition was not properly served and thus the court should disregard it, defense counsel has forfeited this argument by arguing the merits of the opposition in the reply. Nor has counsel shown that she was prejudiced by the allegedly improper ser...

Excerpt: ...in the action. Plaintiff asserts that the terms “Individually and as Executrix of the Estate of Kent L. Kilburn, deceased” were inadvertently omitted from the caption of the First Amended Complaint(“FAC”) as a result of a clerical error and that it is apparent by the face of the FAC that plaintiff intended to bring suit in her individual and representative capacity. Plaintiff has met the formalities required of a motion to amend the first...

Excerpt: ... numerous healthcare providers, commencing with her having knee replacement surgery. From there, she suffered through various complications, many of which she alleges were either caused or worsened by the treatment she received from the various defendants. Plaintiff's husband, Lloyd Anderson, also sued for loss of consortium against each defendant, but he died on December 20, 2019. Dr. Griffin seeks summary judgment of Ms. Anderson's twenty‐six...

Excerpt: ...e the September 12, 2022 trial date. 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., §437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the burden of showing the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima facie ...

Excerpt: ...pond to discovery. (Code Civ. Proc. §§ 2023.010, subd. (g); 2030.290, subd. (c); 2031.300, subd. (c).) To strike plaintiff's complaint and dismiss the action against defendant Teri Elizabeth McMichael. The court intends to sign the proposed judgment as to defendant Teri Elizabeth McMichael only. To deny defendant Uber Technologies, Inc., Rasier, LLC, and Rasier‐CA, LLC's joinder regarding terminating sanctions. To grant defendant Uber Technol...

Excerpt: ...y sanctions to plaintiff's counsel within 30 days of the date of service of this order. Explanation: “If a party desiring to take the deposition of an expert witness under this article deems that the hourly or daily fee of that expert for providing deposition testimony is unreasonable, that party may move for an order setting the compensation of that expert. Notice of this motion shall also be given to the expert.” (Code Civ. Proc., § 2034.4...

Excerpt: ...vered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) There is a strong public policy in favor of ...

Excerpt: ...., § 473c, subd. (c).) Where defendant is the moving party, summary judgment is proper where defendant demonstrates the absence of an essential element of the plaintiff's case. (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266.) “Because of the very drastic nature of the summary judgment statute, power given thereby should be used with caution, and hence when there is doubt as to the propriety of the motion, courts should, without...

Excerpt: ...nd 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 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 d...

Excerpt: ...gence cause of action listed on the First Amended Complaint, Judicial Council Form Item 10, box (b). To deny defendant's motion to strike the legal malpractice cause of action listed on the First Amended Complaint, Judicial Council Form Item 10, box (f). To grant, with leave to amend, defendant's motion to strike the portions of the First Amended Complaint referencing to Exhibits A and B, on the document titled “AMENDED COMPLAINT #1, Causes of ...

Excerpt: ...tion it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).) The availability of a suitable alternative forum for the action is critical. As noted by the United States Supreme Court: “In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the d...

Excerpt: ...propria persona. (Code Civ. Proc., § 391.7.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265.) The statutes were intended to “address the problem created by the persiste...

Excerpt: ...ons shall be in boldface type. Explanation: Demurrer to Complaint Initially, defendants demur to the entire Complaint on the ground that plaintiffs fail to state a cause of action against Maria Navarro because the alter‐ego allegations are insufficient. “To recover on an alter ego theory, a plaintiff need not use the words ‘alter ego,' but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the co...

Excerpt: ...gs suit for public disclosure of private facts, intrusion into private affairs, defamation, and false light. Plaintiff alleges, among other things, that he and defendant formerly dated from 2016 to 2018; that in June 2020, defendant began making statements about the parties' relationship; that those statements portrayed plaintiff's actions as unreasonable and unwelcome, and that the parties never dated; that defendant threatened to publish intima...

Excerpt: ... 2022 trial date. (Code Civ. Proc., § 473, subd. (a)(2).) The parties are directed to appear at the hearing to schedule a new trial date. Explanation: Plaintiff seeks leave to amend to substitute defendant's true name, Kristine Lynn Ballantyne, as trustee of the Kristine Lynn Ballantyne Revocable Trust dated August 17, 2018 (“Kristine as Trustee”), for Doe 1. Additionally, plaintiff seeks to add allegations, causes of actions and prayers per...

Excerpt: ...1) the likelihood that the moving party will prevail on the merits at trial, and (2) the interim harm that the moving party is likely to sustain if the injunction were denied 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 fac...

Excerpt: ...l based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) Also, the court must make certain express findings in order to seal records. Specifically, the court must find that the facts establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overridin...