Excerpt: ...nd 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 issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and...

Excerpt: ...s for summary adjudication, without prejudice, as it appears that plaintiff has not been properly served at her current address with the motions and she is not competent to represent herself in the action. (Code Civ. Proc. § 437c.) To order the Public Guardian's Office to appear at the hearing to discuss appointing a guardian or conservator and legal counsel to represent plaintiff's interests in the case. Also, the court intends to take the pend...

Excerpt: ... and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3. In addition, “The superior court shall review and appro...

Excerpt: ...Explanation: The California Public Records Act (“CPRA”) is contained in Chapter 3.5 of Title 1 of the Government Code. (Gov. Code, § 6251.) The California Supreme Court observed that the CPRA “was enacted for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies.” (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425.) Specifically, section 6259, subdi...

Excerpt: .... Proof of undertaking must be filed with the Court before the writ will be issued. Explanation: (Note‐ as of December 17, 2019, no opposition appears in the Court's files.) Plaintiff asks this Court to issue a writ of attachment against Kelly English, dba Maverick Academic Prep Program in the amount of $55,899.61. Attachment is a prejudgment remedy that allows a creditor to have a lien on the debtor's assets until final adjudication of the cla...

Excerpt: ... no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. As the party moving for summary judgment, the defendant has the burden to show it is entitled to judgment concerning all theories of liability asserted by plaintiff. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717.) The ultimate burden of persuasion on summary judgment/adjudication rests on the moving party. The initial burden of pro...

Excerpt: ...oceeding taken against him or her as a result of mistake, inadvertence, surprise, or excusable neglect, where the application for relief is made within six months of entry of the judgment, order, or other proceeding. (Code Civ. Proc. §473(b).) Application for relief may be based on either (1) an attorney affidavit of fault, in which event relief is mandatory; or (2) declarations or other evidence showing mistake, inadvertence, surprise or excusa...

Excerpt: ... Semper, and Lauren Semper without prejudice to securing their depositions at a later date after relevant adult witnesses have been deposed and other discovery has been conducted. Any future depositions with minor children shall be subject to a protective order. Prior to noticing any further motions to compel the depositions of the minor children, the parties are ordered to meet and confer on a proposed protective order. To grant the motion to co...

Excerpt: ...permits a motion to quash a subpoena. It does not fall under the statutes which require a pre‐trial discovery request. The entirety of Code of Civil Procedure sections 2020.410 – 2020.440 do not discuss motions to compel compliance or to quash. The word “motion” does not appear. Fresno Superior Court Local Rule 2.1.17 applies solely to motions made under the sections listed, thus no pre‐trial discovery conference is required. Likewise, ...

Excerpt: ... as the parties may agree in writing. To deny the motion to compel production of documents at such deposition. Sanctions in the amount of $310 are awarded against Defendant William Alexander Carney, payable to Whelan Law Group within forty‐five (45) days of the date of service of this order. Explanation: Plaintiff moves to compel the deposition of Defendant William Alexander Carney pursuant to a notice of deposition, served on September 9, 2019...

Excerpt: ...subdivision (d), aka Song‐Beverly, provides: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code §...

Excerpt: ...tatements in violation of Labor Code section 226(a), (2) failure to provide meal and rest periods or compensation in lieu thereof in violation of Labor Code sections 226.7 and 512, and (3) constructive discharge in violation of public policy. The second and third causes of action are individual causes of action for plaintiff only, and are not brought on behalf of other aggrieved employees. Because an aggrieved employee's action under the [PAGA] f...

Excerpt: ...did not met statutory requirements, and the Court exercises its discretion to consider both. Code of Civil Procedure section 403 states: “A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards ...

Excerpt: ...post a bond on the ground that plaintiff is a vexatious litigant and “there is not a reasonable probability that he will prevail in the litigation against the moving defendant.” Plaintiff clearly was deemed a vexatious litigant. The question is whether plaintiff has a reasonable likelihood of prevailing. The court is not bound to assume the truthfulness of the vexatious litigant's complaint. It may weigh the evidence presented on a motion to ...

Excerpt: ...e of a Writ of Attachment as to Cross‐Defendant BCJ Sand and Rock, Inc. 3) Hearing on Defendant and Cross‐Complainant Sequoia Equipment Company, Inc.'s Application for Right to Attach Order and for Issuance of a Writ of Attachment as to Cross‐Defendant Darwin Christ Tentative Ruling: To deny all applications. Explanation: Plaintiff Macquarie Equipment Capital, Inc.'s Application The court finds that the operative question with the applicati...

Excerpt: ...1942) 19 Cal.2d 570, 576‐578; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300; Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97.) For attorney misconduct to support equitable relief due to extrinsic mistake, there must have been “neglect of an extreme degree amounting to positive misconduct” by counsel, rather than mere inexcusable neglect, sufficient to obliterate the attorneyclient relationship and thereby preclude an...

Excerpt: ...ent with the ruling on the motion. 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(c).) The moving party bears the initial burden of production to make a prima facie showing of the “nonexistence of any triable issue of material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850...

Excerpt: ...pe. Explanation: “Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. Fairness dictates that a complaint give the defendant sufficient notice of the cause of action stated to be able to prepare the case.” (Leek v. Coop...

Excerpt: ...g: To sustain the demurrer of defendants Biltz and Guzman to each cause of action alleged against them for failure to state facts sufficient to constitute a cause of action. To deny leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) To grant Biltz and Guzman's motion to strike the allegations and prayer for punitive damages, without leave to amend. (Code Civ. Proc. §§ 435, 436.) To sustain the demurrer of St. Agnes in part, and overrule in...

Excerpt: ...n 583.410 should not be entered if this paperwork is not submitted by the deadline of January 31, 2020. Explanation: There has been an inordinate amount of delay in this case. The only remaining defendant was defaulted in November 2017, and yet the initial application for entry of judgment was not even presented until April 2018. Then, the delay from the court's denial of the request for default judgment in May 2018,1 until entry of dismissal on ...

Excerpt: ...or, in the alternative, for issue, evidence, and/or monetary sanctions against Plaintiffs Yan Li and Yuqiang Yang as individuals and as successors in interest to Qinsong Yang Tentative Ruling: To grant the motion for an order deeming admitted the truth of facts in Defendants' Request for Admission, Set One, as to Plaintiff Yan Li and to award sanctions in the amount of $495 against Plaintiff Yan Li, payable within thirty (30) days of the date of ...

Excerpt: ...ng sanctions and an order dismissing this case pursuant Code of Civil Procedure §2023.030(d)(3). To grant defendants' motion to compel the plaintiff Mariaelena Galindo's attendance at deposition. Mariaelena Galindo is ordered to attend deposition as rescheduled by defendants, who shall provide plaintiff a minimum of ten days' notice so that she may make arrangements to attend the deposition. To grant defendants' motion for monetary sanctions. CC...

Excerpt: ...r 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 opposition by the existing parties. (Code Civ. Proc. § 387; Truck Ins. Exch. v. Sup.Ct. (1997) 60 Cal.App.4th 342, 346; Reliance...

Excerpt: ...roc. § 430.10.) To strike the second and third amended answers on the court's own motion, as they were improperly filed without leave of court. (Code Civ. Proc. § 472.) To grant leave to amend the answer. Defendant shall file and serve his second amended answer within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: First, the second and third amended answers were both improperly filed b...

Excerpt: ...orth in boldface typeset. Explanation: Defendants Lopez, Garza, Tienda, Molina, Vasquez and Robles (“Moving Defendants”) have filed the present demurrer to Plaintiff's complaint. A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A ...

Excerpt: ...uld be filed by March 31, 2020, with the final approval hearing set for 3:30 p.m. on April 21, 2020 in this Department. Explanation: 1. CLASS CERTIFICATION a. Standards An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Ne...

Excerpt: ...488, contains the list of factors for use in determining whether the settlement was made in good faith. These include the following: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs (4) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial; (5) the ...

Excerpt: ...cal conditions/injuries. The court also intends to issue a protective order as requested by County Counsel, limiting use of any records that may be disclosed after the court's in camera inspection to the defense team and plaintiffs' team. Any transcripts or copies of the records made by the court shall be placed under seal. The moving party shall contact the department to schedule the in camera review. Explanation: Preliminarily, Evidence Code §...

Excerpt: ... terms of the settlement. (Code Civ. Proc. § 664.6.) Explanation: Under Code of Civil Procedure section 664.6, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” “If the court determines that the parties entered into an en...

Excerpt: ...int. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the First Amended Complaint are to be set in boldface type. Explanation: First Cause of Action – Breach of Contract Generally, “[i]t is well established that a judgment in an action for breach of contract bars a subsequent action for additional relief based on the same breach.” (Mycogen Corp. v. Monsanto Co. (2002) ...

Excerpt: ...erk of the minute order. Explanation: The core issue here is whether the decision made by the Personnel Commission which is the subject of the Petition herein was both final and binding, and whether this can be discerned on demurrer. Both sides refer to this as an “arbitration,” so it appears no one quarrels with this designation. However, arbitration in the context of administrative decisions can be either binding or nonbinding, and unless t...

Excerpt: ...of the class, one concern is the adequacy of the class representative, who has executed a confidential side settlement agreement, for which he seeks a payment of $10,000. That is approximately 30 times the amount of his likely individual class settlement, as estimated by the Court based on the amount of time he worked for defendant (between 8 and 9 months) and the figures set forth in the points and authorities. The figure represents $180 an hour...

Excerpt: ... the issue of summary judgment based on standing, in order to allow Plaintiff the opportunity to seek appointment in the Probate Court as Personal Representative of the Estate of Elvin Jones, as required, and then to file an Amendment to the Complaint once Letters have been obtained. If no such appointment and amendment is made, the court intends to grant summary judgment in defendant's favor based on plaintiff's lack of standing to bring the cla...

Excerpt: ...ll make installment payments for several years. Sealing mandates a “document by document analysis and the threshold inquires required by the First Amendment.” In re Marriage of Burkle (2006) 135 Cal. App. 4th 1045, 1050. Defendants have not attempted to demonstrate that each of the 8,125 pages of materials meet the tests required by law for sealing. They assert privacy and that they will somehow be harmed if disclosure occurs, but do not stat...

Excerpt: ...r date, time, and place as the parties shall agree to in writing). Sanctions are awarded jointly and severally against Mr. Simpson and counsel for Plaintiff in the amount of $2,975.00, payable within thirty (30) days of this order. The independent medical examination is to occur within ten (15) court days of this order (or on such other date, time, and place as the parties shall agree to in writing). The scope of the examination is limited to an ...

Excerpt: ... order, limiting the scope of the subpoenas to the time period from January 1, 2008 to June 3, 2015. (Ibid.) To deny both parties' requests for monetary sanctions against the other. (Code Civ. Proc. § 1987.2.) Explanation: Code of Civil Procedure section 1987.1, subdivision (a) provides: If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or ...

Excerpt: ...t, or in the Alternative, Motion for Summary Adjudication (filed June 7, 2019) Tentative Ruling: To deny all three motions, in their entirety. Explanation: When defendant filed its first motion, on May 22, 2019, the accompanying declaration from defense counsel, August B. Hotchkin, stated that he “attempted to comply” with the requirements of subdivision (t) of California Code of Civil Procedure section 437c, which allows a party to move for ...

Excerpt: ... objections. Objections of Cardiovascular Consultants Heart Center (“CVC”): The objections do not comply with California Rules of Court, rule 3.1354(b). None of the objections are sequentially numbered, and some objections fail to quote or set forth the objectionable statement or material. (Cal. Rules of Court, rule 3.1354(b).) Having reviewed the objections and the material objected to, the objections would be overruled on the merits, as wel...

Excerpt: ...son Most Knowledgeable and custodian of records. Plaintiffs' Notice of Deposition identifies 39 matters for examination and 42 categories of documents to be produced. Plaintiffs' Notice unilaterally set the deposition for 7/25/19. On 7/1/19 Plaintiffs requested alternative dates by 7/19/19 if GM and its counsel were not available on the unilaterally chosen date. (Morse Dec. Exh. B). There was some communication about when the deposition would tak...

Excerpt: ...er's fees and costs. Explanation: The property has now been sold and remediated, so there is no longer any need for the receiver to manage the property. Therefore, the court grants the motion to discharge the receiver. (Sly v. Superior Court (1925) 71 Cal.App. 290, 294 [trial court has inherent power to discharge receiver as part of its power of appointment].) Also, the receiver has filed his final report and accounting, which appears to be reaso...

Excerpt: ...new or amended allegations shall be set forth in boldface typeset. Explanation: A general demurrer admits the truth of all material allegations and a court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or ...

Excerpt: ... cases for the proposition that declaratory review of an administrative decision is not allowed. The Legislature disagrees where the decision is to adopt a regulation. The rule for scope of judicial review of the validity of regulations is set forth at Government Code sections 11350‐11350.3. Section 11350(a) states: “Any interested person may obtain a judicial declaration as to the validity of any regulation or order of repeal by bringing an ...

Excerpt: ...87, “[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.” ...

Excerpt: ... 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 causes of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. § 437c, subds. (p)(2), (o)(2).) Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action and...

Excerpt: ...quests for production of documents, set one. To grant ADM's motion for additional monetary sanctions of $1,750 jointly and severally against RBT and its counsel, Georgeson & Bellardinelli and the Law Firm of Campagne and Campagne, for their continued willful and deliberate failure to comply with this court's prior orders of November 20, 2018 and June 21, 2019 compelling RBT to respond to the document requests. RBT and its counsel shall pay moneta...

Excerpt: ...he motion to strike specifications 2, 4 and 5, without leave to amend. To deny the motion to strike specifications 1, 3, and 6. Defendants shall file their answer to the First Amended Complaint within 10 days of the clerk's service of this minute order. Explanation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider ma...

Excerpt: ...fin, M.D. is granted 10 days' leave to file his answer to the complaint, notwithstanding the fact that plaintiffs are given leave to amend the complaint as to other causes of action not stated against defendant Griffin. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer to 42nd Cause of Action for Intentional Infliction of Emotional Distress by Plaintiff Linda J. Anderson The el...

Excerpt: ...s of action. To sustain the demurrer to the fifteenth and sixteenth causes of action for failure to state facts sufficient to constitute a cause of action, with leave to amend. (Ibid.) Plaintiff shall serve and file his third amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: In his fourth through eighth causes of action, plaintiff alleges claims for slander of title, negl...

Excerpt: ...or uncertainty to the second cause of action and the common count and rendered moot. An amended pleading in conformity with the ruling of the Court is to be served and filed within 20 days of notice of the ruling. Notice runs from the date that the Minute Order is served by the Clerk plus 5 days for service via U.S. Mail. (CCP § 1013). Explanation: Requests for Judicial Notice Defendants request judicial notice of the certified license history o...

Excerpt: ...on 473(a)(1) states: “The 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, or a 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 ter...