Excerpt: ...if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440, citation omitted; see Musaelian v. Adams (2009) 45 Cal.4th 512, 519 [purpose of §127.8 is to deter filing abuses].) The Legislature included a “safe harbor” provision in section 128.7 to ensure the statute is “remedial, not punitive.” (Peake, supra, 2...

Excerpt: ...of this order. Explanation: “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents t...

Excerpt: ...rder by the clerk. Explanation: Contending that the Complaint alleges insufficient facts to state a claim for punitive damages, defendants move to strike the following from the Complaint: Item 1: Page 3, section 14, paragraph (2), which states: "Plaintiff prays for judgment for costs of suit for such relief as is fair, just and equitable; and for punitive damages." Item 2: Page 5, section Prem.L.‐3., which states: "Count Two – Willful Failure...

Excerpt: ...ervice of summons did not result in actual notice; and (3) The judgment is void due to plaintiff and plaintiff's counsel's conspiracy to commit fraud and because the court lacks jurisdiction to enter a judgment on a defendant based on a frivolous complaint. Relief Pursuant to Code of Civil Procedure section 473, subdivision (b) The trial court has broad discretion to vacate a judgment and/or the clerk's entry of a default that preceded it. Howeve...

Excerpt: ...ries, Set One, as to Request Nos. 2.12, 2.13, 4.1, 6.3, 6.4, 6.5, 10.1, 10.3 and 12.1. As to Request No. 17.1, defendant's request to compel plaintiff's supplemental response is denied. To grant defendant's motion to compel plaintiff's supplemental responses to defendant's Request for Admission, Set One, Requests Nos. 1, 2, 12 and 15. Plaintiff shall serve verified supplemental responses in full compliance with Code of Civil Procedure, sections 2...

Excerpt: ...on plaintiff's complaint in favor of defendant James Britton (“Britton”). 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 issue to be determined by the trial court in consideration of a motion for summary judgment is whether or no...

Excerpt: ...at justify reconsideration of the order. (Code Civ. Proc. § 1008, subd. (a).) “A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212, internal citations omitted.) “Case law after the 1992 amendments to section 1008 has relaxed the definition of ‘new or different facts,' but it is still ...

Excerpt: ...gainst a general demurrer a complaint will be liberally construed[…]; that any mere ground of special demurrer for uncertainty will be resolved in support of the complaint and the demurrer overruled, when the necessary facts are shown to exist, although inaccurately or ambiguously stated, or appearing only by necessary implication.” (Hunter v. Freeman (1951) 105 Cal.App.2d 129, 133; see Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App....

Excerpt: ...e Ruling: To deny. (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c); 1010.) To grant defendants' request for sanctions and to award monetary sanctions in the total amount of $800 against plaintiffs' counsel, payable within 30 days of the date of the clerk's service of this order. (Code Civ. Proc., §§ 2030.300, subd. (d); 2031.300, subd. (c); 2023.010, subd. (h).) Explanation: Timeliness of Motions A notice of motion to compel fur...

Excerpt: ...ees in the amount of $1,283,333. To grant the named plaintiff (class representative) an incentive award in the amount of $15,000. To order the parties to return on March 21, 2023, at 3:30 p.m. in Department 501 to inform the court of the total amount actually paid to the class 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. Doc...

Excerpt: ...or April 21, 2022, at 3:30 p.m., in Department 503. The parties are directed to meet and confer on proposed trial dates, as previously ordered, in light of their prior stipulation to continue the trial date. (See September 15, 2021 Minute Order.) Explanation: Under Code of Civil Procedure section 473, subdivision (a), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding ...

Excerpt: ...ion of punitive damages. (Cal. Rules of Court, rule 3.1350(b).) Explanation: Fourth Cause of Action: The elements of a fraudulent concealment cause of action are “ ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the pl...

Excerpt: ...xamination (“IME”). (Code Civ. Proc., §§ 2032.310, 2032.320.) To find defendants' motions to compel responses to defendants' requests for production of documents, sets two and three, moot in light of plaintiff's responses to those discovery requests, served on March 11, 2022. To impose monetary sanctions in the total amount of $720 in favor of defendants and against plaintiff, payable within 30 days of the date of this order, with the time ...

Excerpt: ...duct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ. Proc., § 128, subd. (a)(5).) Substantial Relationship of Representation: Cases disqualifying attorneys for receiving confidential information in the absence of an attorney‐client relationship, as is this case, are generally limited to situations where the information is relev...

Excerpt: ... 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.' (Code Civ. Proc., § 187 (section 187).) Buried in this opaque language is the power of a t...

Excerpt: ...governmental immunity. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. (Barquis v. Merchants Collection Assn. (1972)...

Excerpt: ...uperior Court (2014) 227 Cal.App.4th 226, 242.) However, “[a] 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.” (Code Civ. Proc., § 437c, sub. (f)(1); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal adjudication prohibited].) California Rules of Court, rule 3.1350(b) provides in relevant part [emp...

Excerpt: ... complaint and the demurrer overruled, when the necessary facts are shown to exist, although inaccurately or ambiguously stated, or appearing only by necessary implication.” (Hunter v. Freeman (1951) 105 Cal.App.2d 129, 133; see Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 [pursuant to rule of liberal construction, court draws inferences favorable to plaintiff, not defendant].) In testing a pleading against a demurrer,...

Excerpt: ...ED AT 3:00 PM. Explanation: Plaintiff has sued the State of California for negligence, negligent supervision, and negligence per se. However, since the State is a public entity, it is immune from liability unless there is a statute that imposes a duty of care on it. (Gov. Code § 815, subd. (a).) Thus, in order to state a claim against a public entity, plaintiff must allege that the there was a statute that imposed a duty on the entity to protect...

Excerpt: ...ther witnesses to the alleged property sale agreement. Once plaintiff has obtained discovery responses, the court will hear the merits of the motion to expunge. Explanation: In its order issued after the last hearing, the court was concerned that plaintiff had not had a chance to respond to Ms. Barnett's reply evidence, which raised serious concerns about the credibility of plaintiff's version of events and cast doubt on whether plaintiff was lik...

Excerpt: ...ving party, a defendant bears the initial burden of proof to show that plaintiff cannot establish one or more elements of their causes of action or to show that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and this must be shown via specific f...

Excerpt: ...edaction, and instructing that the statement “unrelated medical condition” to justify a redaction is insufficient. Plaintiff timely files the present motion for reconsideration to vacate the February 2, 2022 order.1 Reconsideration Motions for reconsideration fall under the purview of Code of Civil Procedure section 1008, which states in pertinent part: When an application for an order has been made to a judge, or to a court, and … granted,...

Excerpt: ...endant at his residence. The worst and most disruptive of the parties took place during summer 2021, though large and disruptive parties continued through October 2021. The motion for preliminary injunction was filed early December 2021. Since then two more apparently large and disruptive parties have been thrown at defendant's residence – one by defendant's nephew while defendant was out of town, and another just last week in which police were...

Excerpt: ... the exclusive provisions of the Right to Repair Act, Civil Code section 896 et seq. They argue that the Right to Repair Act provides the sole and exclusive remedy for construction defect claims, so any cause of action that alleges construction defects is barred. Here, they point out that the plaintiffs' breach of contract claim simply repackages their construction defect claim as a breach of contract, and thus the second cause of action fails to...

Excerpt: ...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 April 13, 2022. Defendant Lola M. Hart is ordered to serve verified responses, without objections, to plaintiff Terry L. Thelen's Form Interrogatories, Set One, Special Interrogatories, Set One, Requests for Product...