Excerpt: ...xplanation: 1. Preliminary Certification of the Class Before the court can grant preliminary approval of the class action settlement, it must grant preliminary certification of the proposed class. (Cal. Rules of Court, rule 3.769(d).) Before a court may approve the settlement, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Prods., Inc. v. Windsor (1997) 521 US 591, 625‐27.) However, because a trial court ...

Excerpt: ...an (“the Srabians”) to issue acknowledgment of satisfaction of judgment, or, in the alternative, to have the clerk of the Court enter the same, on the ground that acknowledgments of full satisfaction of judgment have been entered, and the motion is therefore moot. To deny the request for attorney fees and costs pursuant to Code of Civil Procedure section 724.050. Explanation: On October 24, 2019, defendant and cross‐complainant Larry K. Bue...

Excerpt: ...compel further responses, without objection, to Form Interrogatory (“FI”) nos. 1.1, 15.1, 17.1. To deny as to FI no. 12.1. (Code Civ. Proc. § 2030.300(c).) To grant the motion to compel further responses, without objection, to Requests for Admission (“RFA”) nos. 17‐19, 21, 22. To deny as to RFA nos. 2, 20, 24, 27‐38. (Code Civ. Proc. § 2033.290(c).) To grant the motion to compel further responses, without objection, to Request for P...

Excerpt: ...in judgment in the action.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.) The defendant need only show that it is reasonably possible they will win. (Id. at 1432 [noting that burden is satisfied through demonstration of an arbitration award, the arbitrator's letter and police report]; see also Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914 [arbitration award sufficient demonstration of reasonable possib...

Excerpt: ... part of paragraph 20 which states “and are forever barred and enjoined from prosecuting such released claims against the Released Parties.” The Judgment need also reflect that if all checks for the class members are cashed, $115,792.12 will be paid to class members, and that the parties are to report back on July 23, 2020 at 3:30 p.m. in this Department as to the amounts paid and the total amount of any uncashed checks for possible amendment...

Excerpt: ...s that she can make the requisite evidentiary showing under Code of Civil Procedure section 425.13, then she may bring a motion to amend the complaint to add her prayer for punitive damages against defendant Clark. Explanation: Demurrer: Defendant contends that plaintiff has not stated a valid claim for assault or battery because she consented to the medical procedure that was performed on her. However, plaintiff has alleged that she withdrew her...

Excerpt: ...to Code of Civil Procedure section 425.16. City argues that plaintiff's entire case stems from administrative investigations into suspected misconduct of plaintiff and his coworker La‐Kebbia Wilson, and that such constitutes “official proceeding[s] authorized by law” within the meaning of the SLAPP statute. City then argues that plaintiff is not likely to prevail on the merits. The court finds City's arguments persuasive. Code of Civil Proc...

Excerpt: ...orcing a judgment for costs against a person who is not within the court's jurisdiction. The statute therefore acts to prevent out‐of‐ state residents from filing frivolous lawsuits against California residents.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428, citations and quotation marks omitted.) The statute “provides that upon a defendant's motion, the trial court is required to order an out‐of‐state plaintiff to file an un...

Excerpt: ...“SVP”) housed as a civil detainee at the Department of State Hospitals Coalinga facility (“DSH – Coalinga”) wants to tithe 10 percent of his income to the Hospital Protestant Chapel by mailing to the chapel items deemed to be contraband by DSH – Coalinga regulations. According to the amended complaint, plaintiff's various efforts to do so have been rebuffed. He is now suing under 42 U.S.C. section 1983 (“section 1983”). The one de...

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: .... To deny all requests in the motion to strike except the request to strike the prayer for punitive damages in the seventh cause of action, at Paragraph 52, which is granted without leave to amend absent plaintiff making a timely motion under Code of Civil Procedure section 425.13. The motion to strike is moot as to the second cause of action (elder financial abuse) due to the ruling on demurrer. Plaintiffs are granted 10 days' leave to file the ...

Excerpt: ...he amount of $6,000 individually for each class representative. To grant $60,000 in costs to the class administrator. The amount to be paid to class members is therefore $2,905,104.47. To set August 26, 2020 as the date for the parties to return to report on the payout of the settlement fund, and amendment of the judgment for any unpaid residue distribution, pursuant to Code of Civil Procedure section 384. Explanation: 1. Final Approval of Settle...

Excerpt: ...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: 1. Judicial Notice The court takes judicial notice of the recordation of the requested documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) 2. Demurrer The function of a demurrer is to test the sufficiency o...

Excerpt: ...ter Community College District's (“SCCCD”) motion for protective order regarding the deposition of Chancellor Parnell, and impose $1,050 in monetary sanctions against plaintiff and in favor of SCCCD, to be paid to SCCCD's counsel within 30 days of service of the order by the clerk. Explanation: Set for November 13 are three motions concerning depositions of “apex witnesses” for SCCCD: Fresno City College Campus President Carole Goldsmith,...

Excerpt: ... the Court's files. Defendant City National Bank (“CNB”) moves for Summary Judgment, or, in the alternative, Summary Adjudication as to Plaintiff's Second Amended Complaint. Defendant's main argument is that the evidence does not support the claims plead by Plaintiff. To obtain summary judgment, “all a defendant needs to do is to show that the plaintiff cannot establish at least one element of the cause of action.” Aguilar v. Atlantic Ric...

Excerpt: ... code that provides for a civil penalty to be assessed 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 ...

Excerpt: ...99, subd. (a).) Explanation: California Code of Civil Procedure section 399, subdivision (a) authorizes a court to dismiss a case without prejudice if the costs and fees relating to a transfer order are not timely paid. In pertinent part, it states: If the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, those costs and fees, including any expen...

Excerpt: ..., are deemed admitted irrespective of the difficulty of proof at trial. [Citation.] The allegations are to be liberally construed with a view to substantial justice between the parties.” (Universal By‐Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 151.) Here, Cross‐Defendant City of Parlier (“City”) demurs to the second amended cross‐complaint (“SACC”) on the ground that the claims were late‐filed pursuant to the Go...

Excerpt: ...orth 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 from matters outside the pleading that ar...

Excerpt: ...d on April 3, 2018, on the ground that there was no claim therein against Wood and Access Medical providing for recovery of attorneys' fees other than Penal Code § 496(c), which Judge Snauffer found unrecoverable in this case. That ruling was reversed on appeal: “we reverse the trial court's denial of Switzer's motion for attorney fees premised on section 496(c), and the matter is remanded to the trial court for further proceedings to determin...

Excerpt: ...r to discuss the defects in the motion; and they are numerous. On a motion for a protective order seeking to restrict the disclosure of trade secrets, the moving party has the burden to prove, by the preponderance of the evidence, that there is good cause for issuance of a protective order. That party must provide an affidavit or declaration which: 1) lists the declarant's qualifications to give an opinion; 2) identifies the alleged trade secret;...

Excerpt: ...cing evidence showing that he did not breach the standard of care when he treated decedent, and that he did not cause decedent's injuries or death. “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. [Citations.] ‘ “The standard o...

Excerpt: ...agreement, and that even if it is determined valid, defendants waived their right to arbitration when they persuaded plaintiffs to forgo the Labor Commissioner proceeding. The court finds plaintiffs' argument regarding waiver persuasive. On a procedural note, defendants argue that this court should not consider plaintiffs' opposition because plaintiffs were required to respond to their petition within 10 days, pursuant to Code of Civil Procedure ...

Excerpt: ...on of the separate causes of action. (Code Civ. Proc. § 437c.) Explanation: Plaintiffs Cook and TJC Partners move for summary judgment of the entire complaint, or in the alternative adjudication of their breach of contract claims, contending that defendant Holmes owes $334,240 to Cook and $375,000 to TJC which he has failed to repay, despite having executed a series of promissory notes and guarantees of repayment. Plaintiffs also point to the fa...

Excerpt: ...t any irrelevant, false, or improper matter inserted in any pleading; or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. §436; see also Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 104, fn. 35.) An “immaterial allegation in a pleading” includes an “allegation that is not essential to the statement of a claim”...

Excerpt: ... Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564; Congleton v. Natl. Union Fire Ins. Co. (1...

Excerpt: ...o run from service by the clerk of the minute order. Explanation:  Defect in the Motion Plaintiff is correct about the defect in defendant's motion: there is no “demurrer” included. Here, where the various components involved in the motion are combined into one, this means that a separately‐captioned portion which distinctly specifies the grounds of demurrer must be included. It was not. Instead, defendant's “notice” section simply i...

Excerpt: ...parties argue over whether or not the May 2019 agreement was rescinded. The implication is that if the May agreement was rescinded, the February 2019 agreement is revived and can now be enforced pursuant to section 664.6. However, the evidence shows that the May 2019 agreement functioned as a novation to the February 2019 agreement. (See Civ. Code § 1531, subd. (1) [a novation is made by the substitution of a new obligation between the same part...

Excerpt: ...294, subd. (c)(1); see also College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [“absent an intent to injure the plaintiff, ‘malice' requires more than a willful and conscious disregard of the plaintiff's interests. The additional component of ‘despicable conduct' must be found”].) “'Despicable' conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and desp...

Excerpt: ...on appears in the Court's files. The parties appear to concede that the documents at issue are subject to federal privacy protections. The question is whether the relevance identified by Defendants is sufficient to pierce that privacy. As noted by Defendants, the privacy right is balanced against the need for the evidence in question. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Defendants have identified two separate items of discover...

Excerpt: ...ix months of the accrual of the cause of action. (Gov't Code. §911.2.) The parties do not dispute that the claim was filed late. (See also Gov't Code § 945.3 (claim‐filing requirement is not tolled while criminal charges are pending).) An application to present a late claim must be sent within one year of the accrual of the cause of action. (Gov't Code §911.4.) Respondent does not dispute that the application for leave to file a late claim i...

Excerpt: ...d Complaint are to be set in boldface type. To overrule the demurrer. The answer shall be filed within 20 days of the date of this order unless a Second Amended Complaint is timely filed. Explanation: Motion to Strike Allegations of fraud are not improper in claims of breach of contract against a public entity. (see E.H. Morrill Co. v. State (1967) 65 Cal.2d 787, 794.) However, there are no supporting facts of the claims which are the subject of ...

Excerpt: ...ds published in the California Building Standards Code, the State Housing Law, and other rules and regulations adopted pursuant to the State Housing Law. (Health & Saf. Code, §§ 17980 to 17982.) When the violations or conditions of the property involve noncompliance with the requirements of the State Housing Law, or with the requirements of the published State Building Standards Code that implement the State Housing Law, or with local ordinance...

Excerpt: ...d amended complaint detailing the basis for the punitive damages. All new or amended allegations are to be set forth in boldface typeset. Explanation: A motion to strike can be used to: “(a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;]” or “(b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. ...

Excerpt: ... . a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address[.]” (Code Civ. Proc. §415.20(a).) “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person's ...

Excerpt: ...nd Sandy's Place LLC (for purposes of this motion, “owner defendants”) are owners and proprietors of a bar known as Sandy's Place. Plaintiff alleges on information and belief that owner defendants knew, or in the exercise of ordinary care should have known, that defendant George Gonzales “was a person of violent, vicious, and dangerous character and disposition while intoxicated, and a person whose presence in Defendants' bar while into...

Excerpt: ...ctual and legal predicate for his claims. 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 from matters outside the ...

Excerpt: ...tly, in the Complaint, Plaintiff seeks specific performance of a particular contract. But that contract is only between them and Defendant Church. Bell is not a party to that purchase agreement. The judgment seeks to require Bell to sign papers to transfer property to Plaintiff. Plaintiff has cited to no case authority that entitles a plaintiff to specific performance of a contract against a non‐signatory. It seems likely that Plaintiff is seek...

Excerpt: ...nforcement of any judgment or order. (b) If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed. (c) This section applies whether or not an appeal wi...

Excerpt: ...e ordered to pay the costs and fees incurred by the requesting party in proving that matter. The court shall order the payment of such fees and costs unless it finds: (1) that an objection to the request was sustained or a response to the request was waived; (2) the admission sought was of no substantial importance; (3) the party failing to make the admission had reasonable ground to believe that the party would prevail on the matter; or (4) ther...

Excerpt: ...d ten days leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanation: In the case at bar, plaintiff alleges four causes of action: (1) breach of contract; (2) wrongful termination – age discrimination; (3) wrongful termination – gender discrimination; and (4) disparate treatment. Defendant demurs to each cause of action based upon Code of Civil ...

Excerpt: ...ff also prays for compensatory, general and punitive damages. Defendant's Demurrer Defendant demurs to both causes of action. Defendant moves pursuant to Code of Civil Procedure section 430.10, subdivision (e)—failure to state a cause of action. Defendant also demurs to plaintiff's request for punitive damages.2 5. First Cause of Action: Assault The essential elements of a cause of action for assault are: (1) defendant acted with intent to caus...

Excerpt: ... clerk. To deny the request for terminating, issue, and evidence sanctions at this point. Explanation: Nowhere in Mr. Waterman's declaration or in the opposition argument is it acknowledged that Mr. Waterman received notice of the Request for Pretrial Discovery Conference (“PDC”) well before his planned time of “unavailability.” Thus, he had time to file an Opposition in order to signal his willingness to participate in the PDC process. T...

Excerpt: ...Civil Procedure section 1285, “Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” (Code Civ. Proc., § 1285.) “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as mad...

Excerpt: ...Cross‐Defendants The Woodmont Company and Greg Newman to Strike Portions of the Prime Cross‐Complaint Tentative Ruling: To sustain the general demurrers to the second and third causes of action of the Prime Cross‐Complaint, without leave to amend. The motion to strike is ordered off calendar as moot, given the ruling on demurrer. Cross‐Defendants The Woodmont Company and Greg Newman are directed to submit to this court, within 7 days of s...

Excerpt: ...o both of the following: (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts. Code of Civil Procedure section 2018.030 provides: (a) A writing that reflects an attorn...

Excerpt: ...ation: 1. Objections The Court sustains all objections made by defendants Gurvinder Kandola and Julie Su, referred to herein collectively as the “Labor Commissioner.” The Court also notes that the evidence supplied with the reply papers on the issue of commerce is devoid of any actual ads allegedly placed in out of state publications or invoices showing that was done. There are no receipts or order confirmation for purchases from out of state...

Excerpt: ...y judgment order. Explanation: As the moving party, a defendant bears the initial burden of proof to show that the plaintiff cannot establish one or more elements of the causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(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 th...

Excerpt: ...e causes of action, the motion to strike items 4 thru 6 stated in the Notice of Motion is denied. To deny the motion to strike as to items 3 and 7 (re punitive damages) stated in the Notice of Motion. To grant the motion to strike as to items 1 and 2 (re pain and suffering) stated in the Notice of Motion. The plaintiffs are granted 20 days leave to file a First Amended Complaint. The time in which the Complaint can be amended will run from the co...

Excerpt: ...onable 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 from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Facts appearing in exhibits attached to the complaint will also be accepted as...