Excerpt: ... Civil Procedure section 418.10, subdivision (a). In opposition, plaintiff notes that defendant merely challenges jurisdiction based on a lack of capacity to be sued. Plaintiff argues that a challenge based on capacity is not jurisdictional, and therefore the motion to quash must be denied. The purpose of Code of Civil Procedure section 418.10 is to provide a defendant upon whom service of summons has been made a means to serve and file a notice ...

Excerpt: ... 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 a fiduciary r...

Excerpt: ... (“RAA”) demur to the twelfth cause of action of the fourth amended complaint, filed on May 19, 2021. In this iteration of the complaint, plaintiffs added RAA to the Private Attorneys General Act (“PAGA”) cause of action for penalties under PAGA. Exhaustion of Administrative Remedies Defendants first contend that plaintiffs failed to exhaust administrative remedies as to RAA. Under PAGA, a plaintiff must comply with statutory prerequisite...

Excerpt: ...n Plaintiff's counsel attributes the untimely opposition to his “clerical error.” Defendants were able to file a reply and do not assert prejudice. Therefore, the opposition was considered in determining this motion. (See Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) Defendants' reply notes that the requested amount is now $9,077.55, and requests that it be taxed and reduced to $4,759.22. Allowable Costs Generally Ite...

Excerpt: ...rney of record, jointly and severally, payable within 30 days of the date of this order, with the time to run from the service of this minute order by the clerk. The request for an order compelling plaintiff's answers or productions to deposition questions in defendant's reply is not considered. If defendant seeks such relief, defendant must file a motion to compel pursuant to Code of Civil Procedure section 2025.480. In the event of a timely req...

Excerpt: ...e plaintiff's complaint and dismiss the action against defendant Ittai Hernandez Rodriguez. To order plaintiff to pay additional monetary sanctions of $435 to plaintiff's counsel, Miller & Ayala, LLP, within 30 days of the date of service of this order. (Code Civ. Proc., § 2023.010.) Defendant shall submit a proposed judgment consistent with the court's order within 10 days. Explanation: Code of Civil Procedure section 2023.010, subdivision (g) ...

Excerpt: ...has emphasized, “any SLAPP [(strategic lawsuit against public participation)] defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Attorney's Fees While plaintiff has not filled an opposition to challenge the amount of fees to be awarded, the court may only award a reasonable fee. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362.) Accordingly, the co...

Excerpt: ...oral argument, such argument will be entertained on May 12, 2022, at 3:30 p.m. in Department 501. Explanation: The court shall issue a writ of possession if it finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ have been satisfied. (Code Civ. Proc. §§ 512.040, subd. (b); 515.060, subd. (a)(1).) Among other things, the plaintiff's application must show the basis of the plaintiff's claim, that the p...

Excerpt: ...County Economic Opportunities Commission (collectively “defendants”) demur on the ground that the complaint fails to allege facts sufficient to state causes of action against them and based on the applicable for statutes of limitations. Defendants specifically challenge the fourth, sixth, seventh, and eighth causes of action, for, respectively, intentional infliction of emotional distress, defamation, intentional interference with prospective...

Excerpt: ...planation: As stated in CCP Sec. 430.10(f), a pleading is “uncertain” if it is ambiguous and/or unintelligible. Ordinarily, a demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. [Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 6...

Excerpt: ...liction of emotional distress for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) To grant leave to amend as to the fourth cause of action. To deny both defendants' motions to strike the prayers for punitive damages, predeath pain and suffering damages, and attorney's fees from the first amended complaint. To grant the motions to strike with regard to the prayer for treble damages under ...

Excerpt: ...troduction “The superior court shall review and approve any settlement of any civil action 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, § 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 legislature provided any structure or stand...

Excerpt: ... Clean Energy (“PACE”) program that allows financing for home improvement projects to be repaid by a special property tax assessment. Plaintiffs filed this action against The Solar Group, Inc. and Ygrene Energy Fund, Inc. seeking declaratory relief regarding the parties' rights and duties for repayment of the solar installation. The complaint also seeks injunctive relief from the demanded excessive assessments against the plaintiffs' property...

Excerpt: ...n. Explanation: “Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) In addition, “judges shall have the responsibility to eliminate delay in the progress and ultimate resolution of litigation ….” (Gov. Code, § 68607.) Furthermore, “[e]very court shall have the power to do all of the fo...

Excerpt: ...nt, such argument will be conducted on May 12, 2022, at 3:30 p.m. in Department 501. Explanation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in...

Excerpt: ...ve Ruling: To deny the motion to dismiss and the motion to strike. To overrule the general demurrer on the ground of failure to state compliance with the Government Claims Act as to plaintiff Marissa Mercado, as successor‐in‐interest to the Estate of Maria Cumplido, and sustain as to plaintiff Marissa Mercado, an individual, and plaintiff Vanessa Mercado, with leave to amend. To overrule the general demurrer to the ninth cause of action on th...

Excerpt: ...ant, but to require plaintiff to pay $240 for motion fees to the clerk (in addition to the $60 for the motion fees already paid) for the correct total motion fee of $300 (5 motions x $60 each). The additional filing fees must be paid on or before May 25, 2022. Defendant Hart Family Trust is ordered to serve verified responses, without objections, to plaintiff Terry L. Thelen's Form Interrogatories, Set One, Special Interrogatories, Set One, Reque...

Excerpt: ...tends to review the documents responsive to requests 42 to 44 and 46 to 48 in camera to determine whether they are covered by the medical peer review privilege under Evidence Code section 1157. The court will only compel production of non‐privileged documents. Explanation: First, to the extent that defendants have requested that the court take judicial notice of other court actions involving plaintiff, the court intends to deny the request. Whi...

Excerpt: ...tial function “is not to try any factual issues, but to ascertain whether any triable issues of fact exist.” (Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 597.) Accordingly, the trial court does not make findings of fact in determining a motion for summary adjudication, and may not grant the motion on its evaluation of weight of evidence or witness credibility, nor may it grant the motion “based simply on its opin...

Excerpt: ... to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 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 legislature provided any structure or standards for making the assessment. Published California case law has not done so either. However, the common p...

Excerpt: ...es from the complaint, as improperly alleged. (Code Civ. Proc. § 436.) To deny leave to amend as to the first, second, and fourth causes of action and the prayer for punitive damages. To grant leave to amend as to the third cause of action. Plaintiff shall file and serve his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer to First Cause of Action: Plaint...

Excerpt: ...in 10 days of service of the order by the clerk. To overrule the general demurrer to the second cause of action. (Code Civ. Proc., § 430.10, subd. (e).) To grant judicial notice of items nos. 1 and 2 of defendant's request, but to deny item nos. 3 and 4. Explanation: “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties....

Excerpt: ...tion: Meet and Confer The parties have not met and conferred as required by Code of Civil Procedure section 430.41, subdivision (a) and section 435.5, subdivision (a). Defense counsel's declaration filed April 26, 2022, and again on May 2, 2022, advises of two phone calls to plaintiffs' counsel's office on April 22, 2022, which were answered with a recording indicating no voicemail was set up and ending the call. There was no effort to contact pl...

Excerpt: ...and Community Regional Anesthesia Medical Group, Inc. (CRAMG). (Code Civ. Proc. § 1281.2.) To stay the civil action on the cross‐claims until the resolution of the arbitration. (Code Civ. Proc. § 1281.4.) If there is a timely request for oral argument, such argument will be conducted on May 4, 2022, at 3:30 p.m. Explanation: Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleg...

Excerpt: ...complexes, two limited liability companies and two limited partnerships. On August 2, 2021, plaintiffs filed their first motion to compel further production of financial documents. On October 13, 2021, the court denied the motion without prejudice due to a lack of showing of relevance. Plaintiffs now bring the present second motion to compel further production. Plaintiffs incorrectly conclude this court earlier denied plaintiffs' motion owing to ...