Excerpt: ...braced in or affected by the appeal filed by defendant on June 17, 2019, and that the perfecting of the appeal stayed the motion. Thus, the court found, by operation of law, that it lacked jurisdiction to hear the motion, vacated the hearing, and directed the moving party to reschedule the hearing on the motion once the appeal was no longer pending. (See August 28, 2019 Minute Order). The judgment was affirmed on December 7, 2021, the remittitur ...

Excerpt: ...leave to file a Third Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Demurrer It is “the established rule that as against 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 ...

Excerpt: ...tain defendant FPI's demurrer to the first, second, and third causes of action for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To deny leave to amend. To grant defendants' motion to strike the prayer for punitive damages from the FAC, without leave to amend. To grant defendant FPI's motion to strike the prayer for attorney's fees against it. To grant leave to amend to clarify that the...

Excerpt: ...To grant and to award monetary sanctions in the total amount of $1,106.60 against plaintiffs Helen Lee and George Xury, jointly and severally1 , 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 matters specified in defendant Lowe's Home Center, LLC's Requests for Admission, Set One, are deemed admitted, unless plaintiffs serve, before the hearing, proposed responses to ...

Excerpt: ...plainant Joel Swanbom for a total of two (2) additional hours. Explanation: Plaintiff seeks relief from the statutory limitation on deposition examination, absent a court order, of seven hours of total testimony. Code of Civil Procedure section 2025.290 provides that, barring certain exceptions not present here, “a deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to seven hours of...

Excerpt: ...on any terms as may be proper, allow a party to amend any pleading ... ” (Code Civ. Proc., § 473, subd. (a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Cal. Rules of Court, Rule 3.1324 provides that a motion to amend must: (1) include a copy of the proposed amendment, (2) state what allegations in the previous pleading are proposed ...

Excerpt: ...representative) an incentive award in the amount of $5,000.00. To order that on or before March 30, 2021, the plaintiff shall lodge a revised “Order Granting Final Approval of Class Settlement” and a revised “Final Judgment,” each corrected as discussed in the explanation below. No amount under this final approval and judgment, including payment of the attorney fees and costs, administrator costs, or the plaintiff's incentive award, may b...

Excerpt: ... shall serve and file their amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiffs bring the instant action against defendant on nine causes of action based on wrongful termination and various Labor Code violations. Defendant demurs on the basis that the complaint fails to allege facts sufficient to state causes of action. Defendant challenges plaintiffs' thir...

Excerpt: ...Proc., § 685.040.) Explanation: Under Health and Safety Code section 17980.7, subdivision (c)(11), “[t]he prevailing party in an action [to abate a nuisance] pursuant to this section shall be entitled to reasonable attorney's fees and court costs as may be fixed by the court.” (Health & Saf. Code, § 17980.7, subd. (c)(11).) Also, under Code of Civil Procedure section 685.040, “[t]he judgment creditor is entitled to the reasonable and nece...

Excerpt: ...inute order, an ex parte request dismissing the action as to the moving defendants. Explanation: Plaintiffs allege the following causes of action against the moving parties: fifth cause of action against defendant Nutting Enterprises, Inc. dba CPR Carpet and Restoration (“CPR”) for negligence, and seventh cause of action against CPR's surety, defendant Suretec Indemnity Company (“Suretec”), against its license bond. The fifth cause of act...

Excerpt: ...oldface type. Explanation: Two causes of action are alleged in the First Amended Complaint: (1) general negligence; and (2) damages arising from the operation of a motor vehicle. Defendant now demurs to each cause of action, based upon Code of Civil Procedure sections 430.10, subdivisions (e) and (f). Government Code section 815.2 provides that a public entity is liable for the injury proximately caused by an act or omission of its employee withi...

Excerpt: .... To deny the motion compelling further responses to Request for Production of Documents, Nos. 1‐43 and 45‐57. To grant, in part, the motion compelling further responses to Request for Production of Documents No. 44. Within ten (10) days of service of the order by the clerk, defendant shall serve further verified responses to Request for Production No. 44 and produce all documents responsive to the Requests for Production on documents that pl...

Excerpt: ...f's claim to own title to the property could be decided, and she could be ejected from her own property. Given the summary nature of unlawful detainer proceedings, it is a rule of long standing that questions of title cannot be raised and litigated by cross‐complaint or affirmative defense in an unlawful detainer case. (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159; Martin‐Bragg v. Moore (“Martin‐Bragg”) (2013) 219 Cal.App.4th 367, 385 ...

Excerpt: ...y in evaluating the case, preparing for trial, or facilitating settlement ....' Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, internal citations omitted, em...

Excerpt: ...itions of four of plaintiff's designated expert witnesses following their nonappearances on May 26, 2021. Defendant had unilaterally noticed the depositions after unsuccessfully attempting to obtain dates from plaintiff's counsel. Defense counsel failed to communicate or confer with plaintiff's counsel about the scheduling of the depositions after the nonappearances, and instead proceeded to file a motion to compel some eight months later. Code o...

Excerpt: ...de Civ. Proc., § 430.10, subds. (e) and (f).) To grant the motion to strike and deny, as moot, plaintiff's motion to permit discovery of defendants profits and financial information. (Code Civ. Proc., §§ 435 and 431.10, subd. (b); Civ. Code, § 3295, subd. (c).) To grant leave to amend. Should plaintiff desire to amend, the Second Amended Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in ...

Excerpt: ...must contain “a statement of the facts constituting the cause of action, in ordinary and concise language;” i.e., to plead “ultimate facts.” (Code Civ. Proc. § 425.10, subd. (a)(1); Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) The modern approach is to find allegations sufficient if on the whole they apprise defendant of the factual basis of the claim, and to find that the particularity required “‘depends on the extent to ...

Excerpt: ...cy; KNPZ Insurance Services; Morrison Insurance Associates; Sarkhosh Insurance Agency; and Seabury Copeland & Anderson Insurance Company. To grant and quash the subpoenas issued on July 23, 2021 to Cuttone & Maestro CPA and Nunes & Nunes CPA. Explanation: Plaintiff brings suit against defendants, alleging that defendants became its employees on January 1, 2014, with an agreement to not receive income from outside sources; that plaintiff later dis...

Excerpt: ...ured or distributed by defendant FCA US, LLC (“FCA”). As a part of that transaction, plaintiffs signed a Retail Installment Sales Contract (“RISC”) which contained an arbitration clause. Problems with the vehicle ensued, and this “lemon law” action was filed on 10/23/20, against both Fresno Chrysler and FCA. The operative pleading is the First Amended Complaint, alleging the following causes of action against FCA only: (1) Violation o...

Excerpt: ...ll defendants' demurrers to the first cause of action for failure to state facts sufficient to constitute a cause of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) To sustain all defendants' demurrers to the second cause of action, without leave to amend. Plaintiff is granted 20 days' leave to file a second amended complaint. The time to file the second amended complaint will run from service by the clerk of the minute orde...

Excerpt: ...rant defendants' motion to strike punitive damages, with leave to amend. To deny defendants' motion to strike general damages. Plaintiffs are granted 20 days' leave to file an amended complaint. The time in which an amended pleading may be filed will run from service by the clerk of the minute order. All new allegations in the amended complaint are to be set in boldface type. Explanation: The second amended complaint alleges four causes of action...

Excerpt: ... sufficient to constitute a cause of action, as discussed in detail below. (Code Civ. Proc. § 430.10, subd. (e).) To grant the motion to strike the portion of paragraph 17 of the first amended complaint which states, “I am familiar with the owner of Pacific Grain & Foods, LLC, Lee Perkins, the petitioner in this case, as I have witnessed him engage in an unprofessional and aggressive manner toward his employees that was shocking and unforgetta...

Excerpt: ...ontacts with California to justify imposing personal jurisdiction over it. The hearing on Standard's motion will be continued to April 12, 2022 at 3:30 p.m. in Department 403. Explanation: “First, when jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts' exist between defendant and the forum state to justify imposition of personal jurisdiction. The plaintiff ha...

Excerpt: ...ice of the transfer order. Explanation: “It is a long established rule that a motion for change of venue must satisfy two requirements: (1) [i]t must be shown the action is proper in the county to which the movant seeks transfer; and (2) it must be shown the county in which the action was filed was improper under any applicable theory.” (Easton v. Superior Court (1970) 12 Cal.App.3d 243, 245‐246 [internal citations omitted, brackets added.]...

Excerpt: ... purchased wine grapes that were allegedly unusable because of “smoke taint” following the 2017 wildfires in Northern California. Plaintiff contends the smoke taint destroyed the marketability of much of plaintiff's wine and juice, resulting in $14.79 million in actual losses and anticipated future losses of $86.16 million. Four causes of action remain: (6) Negligence against defendant Dalena‐Benick; (7) Breach of Fiduciary Duty against def...