Excerpt: ...rshba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally certified fo...

Excerpt: ....10, subd. (e).) To grant, with leave to amend, defendants' motion to strike the prayer for attorney's fees under the tort of another doctrine, on page 11, lines 2‐4. To deny defendants' motion to strike the prayer for attorney's fees qua attorney's fees, on page 10, line 27. To deny defendants' motion to strike the portions of the First Amended Complaint as it pertains to punitive damages, specifically paragraphs 31 and 36, and the prayer on p...

Excerpt: ...n May 4, 2022, at 3:30 p.m. 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., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [“‘A demurrer can be utilized where the complaint itself is incomplete ….' [Citations.]”].) Although in ruling on a demurrer the complaint is liberally construed, “[t...

Excerpt: ... a later date, if plaintiff needs more time. The Case Management Conference scheduled for May 3, 2022 is also continued to June 29, 2022. Explanation: Class Certification With regard to class certification, additional evidence is needed to support a finding that plaintiff possesses claims or defenses typical of the class. The class representative must be able to represent the class adequately. (Caro v. Procter & Gamble (1993) 18 Cal.App.4th 644, ...

Excerpt: ...on: The ultimate burden of persuasion on summary judgment/adjudication rests on the moving party. The initial burden of production is to show, by a preponderance of the evidence, that it is more likely than not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally...

Excerpt: ...ssary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Accordingly, “the pleadings delimit the scope of the issues, and the function of affidavits, declarations, or other supporting evidence is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1132.) In ruling on...

Excerpt: ...the clerk of the minute order. Explanation: Demurrer to the Seventh Cause of Action—Professional Negligence: The elements of a claim for professional negligence are as follows: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession; (2) a breach of that duty; and (3) a proximate causal connection between the negligent conduct and the resulting injury. (Weimer v. Nationstar Mortgage, LLC (2...

Excerpt: ...party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable issue, and not to pass upon or determine the true facts in the case. (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 775.) The moving party ...

Excerpt: ...the purposes of approving the settlement. Therefore, the court must first determine whether the class should be certified before deciding whether the settlement should be preliminarily approved. 1. Class Certification Where certification of a class is sought in conjunction with settlement, the motion is treated the same as if it were a motion solely for certification but for one factor – the proponent need not prove the case is manageable for t...

Excerpt: ...grant the motion to strike in its entirety, without leave to amend. (Code Civ. Proc., § 436.) Explanation: Demurrer to First Cause of Action: Defendants demur to the first cause of action for breach of written contract, contending that plaintiff has not alleged a valid claim because the written contract only provides that plaintiff has a right of first refusal if defendant Don Milligan either decides to transfer the business to a third party, di...

Excerpt: ... on or before May 19, 2022. Explanation: This is a personal injury action arising out of an automobile accident allegedly caused by James Hinson, a Department of Transportation employee. The complaint alleges a single cause of action for motor vehicle negligence. The Judicial Council form complaint checks boxes indicating that plaintiff is required to comply with a claims statute and has complied. (Complaint ¶ 9(a).) Defendants move for summary ...

Excerpt: ...eviating [the 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, § 940.) The privilege against sel...

Excerpt: ...the pleadings. (Code Civ. Proc. § 436.) To deny leave to amend at this time. However, plaintiffs may bring a properly noticed motion to amend the complaint to substitute the new defendants in place of fictitious defendants in compliance with Code of Civil Procedure sections 473 and 474. Explanation: When a court sustains a demurrer or grants a motion for judgment on the pleadings with leave to amend, the plaintiff is only permitted to amend the ...

Excerpt: ...d Statewide General Election ballot that proposed to authorize the City of Fresno (“City”) to collect a 3/8 percent sales and use tax. The initiative received 52.17 percent affirmative votes and was declared failed on December 12, 2018 by the Fresno City Council, which believed that two‐thirds voter approval was required. Fresno Building Healthy Communities (“FBHC”) protested that decision, contending that only a simple majority was nee...

Excerpt: ...ary adjudication of the second and fifth causes of action, as the motion is moot as to those claims, which have now been dismissed with prejudice. Defendants are ordered to submit a proposed judgment consistent with the language of this order within 10 days of the date of service of this order. Explanation: First, the court intends to deny summary adjudication of the breach of fiduciary duty and negligent misrepresentation claims, as plaintiff ha...

Excerpt: ...Cal. 2014) 63 F.Supp.3d 1171, cited for the first time by plaintiffs during oral argument on the motion and relied on by the court in its April 4, 2022 order denying the motion with respect to the trespass to chattels/conversion claims. The parties are to appear at the hearing on April 26, 2022, at 3:30 p.m. in Department 503, to discuss the briefing schedule and new trial date. To deny the request to stay the trial. Explanation: Motion for Recon...

Excerpt: ... sustain, with leave to amend, defendants' demurrer to the second cause of action as to both plaintiffs, for failure to state sufficient facts to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subd. (e), (f).) To sustain, with leave to amend, defendant Linda Bowman's (“Bowman”) demurrer to the third and sixth causes of actions as to Caro, for failure to state sufficient facts to state a cause of action and uncertainty. ...

Excerpt: ...motor vehicle; general negligence; and tort of a public entity. Plaintiff alleges that on October 6, 2020, plaintiff was a passenger on a FAX bus, which is alleged to be owned, supervised, managed, maintained, equipped, repaired, controlled and/or operated by the City. That bus, the Route 9 Shaw bus driven by defendants' employee, was carelessly and negligently controlled and operated, leading the bus to be driven at an accelerated, high rate of ...

Excerpt: ...ract against defendants Mike Garcia and Silvia Garcia (the Garcias); and trespass against Jose Ventura Rivera Moreno. On July 11, 2018, Rivera Moreno filed a cross‐complaint for indemnification. Following a two‐day court trial, this court issued a proposed statement of decision. The proposed statement of decision found that plaintiffs' three claims against the Garcias failed, and that plaintiff's claim against Rivera Moreno failed. Because pl...

Excerpt: ...on motion, may enter judgment pursuant to the terms of the settlement.” It also provides that the parties may request that the court “retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc. § 664.6.) Due to the summary nature of the statute authorizing judgment to enforce a settlement agreement, strict compliance with its requirements is a prerequisite to in...

Excerpt: ...rth America, Inc.'s person most knowledgeable and custodian of records to attend his or her deposition, and to produce documents pursuant to the demand for production of documents served with the deposition notice. (Code Civ. Proc. § 2025.450.) To deny plaintiffs' request for sanctions against defendant. (Code Civ. Proc. § 2025.450(g)(1).) To deny plaintiff's motion to compel Lithia Nissan of Clovis's person most qualified and Timothy Bowden, T...

Excerpt: ...rcement of valid arbitration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) “When presented with a petition to compel arbitration, the initial issue before the court is whether an agreement has been formed.” (Diaz v. Sohnen Enterprises (2019) 34 Cal.App.5th 126, 129.) In addition, arbitration is a “ ‘matter of consent, not coercion,'” and “ ‘a party cannot be required to submit to...

Excerpt: ...aint and dismiss the action. The proposed order has errors, as noted below, so it must be corrected and resubmitted for signature. Defendant shall submit a corrected proposed order consistent with the court's order within 10 days. Explanation: Terminating Sanctions: Code of Civil Procedure section 2023.010, subdivision (g) construes “[d]isobeying a court order to provide discovery” to be a “misuse of the discovery process,” but sanctions ...

Excerpt: ...issues set forth below. All briefing must be filed on or before May 14, 2022. To vacate the existing trial date, trial readiness date, and mandatory settlement conference and schedule a trial setting conference on May 26, 2022, at 3:30 p.m., in Department 503. Explanation: Reconsideration of Court's December 9, 2021 December 21, 2021 Orders Deeming Requests to Admit Truth of Facts against Plaintiffs, Granting Defendant's Motions to Compel Plainti...

Excerpt: ...��) (collectively, “crosscomplainants”) an immediate duty to defend against plaintiff Gene Miller's (“plaintiff”) claims pursuant to the contractual language. To grant, in part, summary adjudication of Issue 3: Parsons and FMC's November 18, 2019 tender letter triggered Securitas' duty to immediately defend and indemnify Parsons and FMC against plaintiff's complaint. To deny summary adjudication of Issue 2: Securitas must indemnify Parson...