Excerpt: ...nner connected with a judicial proceeding before it, in every matter pertaining thereto.' (Code Civ. Proc., § 128, subd. (a)(5); [citations].)” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee Oil).) Motions to disqualify generally arise in one of two contexts: (1) in cases of successive representation, where an attorney seeks to represent a client with interests that are potential...

Excerpt: ...ovided that both plaintiff and the dealership “agree that any claim, dispute, and/or controversy that either party may have against one another…arising from, related to, or having any relationship or connection whatsoever with [Plaintiff] seeking employment with, employment by, or other association with the [Dealership], whether based on tort, contract, statutory, or equitable law, or otherwise…shall be submitted to and determined exclusive...

Excerpt: ...tion must be provided subject to the protective order on file. The further responses are to be served no later than November 7, 2019. To grant sanctions, but to reduce the amount to $885.00, payable by defendant and his counsel by November 7, 2019. Explanation: Interrogatories Nos. 6 and 8 seek the addresses of banks and other financial institutions where defendant Lisenko has had accounts in the past 13 years. Interrogatories Nos. 7 and 9 seek a...

Excerpt: ...) the motions were untimely as to the initial discovery responses, and (2) the court did not give permission to file the motions after the PTDC as required by Local Rule 2.1.17. In opposing the motions to compel, plaintiff requested $6,000 in monetary sanctions. The tentative ruling did not address the request for sanctions. Neither party requested oral argument, and so on August 8 the tentative ruling became the order of the court. Plaintiff the...

Excerpt: ...71) 5 Cal. 3d 584, 591. Defendant Logan is alleged to be the owner of the property, to have leased the property to the other defendants, and to have done so with the knowledge of their intention to use the property as a board and care facility. The amended pleading specifically alleges that Logan herself was negligent in hiring, supervising, and retaining employee caregivers. See paragraph 46. The new allegation that Logan herself was negligent i...

Excerpt: ... an undertaking in order to obtain the writ. (Code Civ. Proc. § 515.010, subd. (b).) Explanation: Under Code of Civil Procedure section 512.010, (a) Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought. (b) The application shall be executed under oath and shall include all of ...

Excerpt: ...nd Code of Civil Procedure section 575.2, which allow for sanctions for non‐compliance with the California Rules of Court and local rules. In this case, Plaintiff alleges that Defendant and her counsel are in violation of California Rules of Court, rule 3.894 and Fresno Superior Court Local Rule 2.4.1 and Civil Standing Order No. 07‐0628. Together, these rules require that all parties and attorneys of record must attend all mediation sessions...

Excerpt: ...roduced as the result of litigation. (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1088; see also Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 464‐465 [public entity produced pivotal email, photographs and 146 email documents at a court ordered PMK deposition after “unequivocally claim[ing] it had produced every document”. . ..].) Additionally, a plaintiff who prevails in a CPRA action is entitled to an awar...

Excerpt: ...s order by the clerk. New allegations/language must be set in boldface type. Explanation: Plaintiff seeks leave to amend in order to substitute Kerwin Jackson (“Jackson”) and KJ Worldwide Investments, Inc. (“KJ Worldwide”) as Does 1 and 2, respectively, and to allege that, at all relevant times, they were agents or employees of defendants David Maclachlan and Nuestra Casa Real Estate (“Nuestra Casa”), and that either they or Maclachla...

Excerpt: ...le their substantive opposition and expert declaration by October 15, 2019. Defendant's reply shall be due five calendar days before the continued hearing date. Explanation: Under Code of Civil Procedure section 437c, subdivision (h), “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be...

Excerpt: ...endant may move to strike allegations from a pleading in two situations: (a) the allegation is “irrelevant, false, or improper” or “superfluous” or “abusive” and (b) where the “pleading was not drawn in conformity with the laws of the state or a court rule.” (Code Civ. Proc. § 436(a), (b).) Paragraphs 65.a), 65.i), 70, 75 and 78 These allegations are part of the fifth cause of action for bad faith against Infinity on behalf of Ca...

Excerpt: ...'s motion to decertify and to grant plaintiffs' motion to certify with directions. To set February 19, 2020, at 3:30 p.m., as a case management and trialsetting conference in Department 503. Explanation: DECERTIFICATION MOTION 1. Introduction The Court of Appeal decision in this matter specifically called on this Court to address the manageability issue as the case progressed: It does not appear a manageability analysis was explicitly conducted i...

Excerpt: ...r summary judgment, or alternatively summary adjudication, of both his complaint and the cross‐complaint filed by Derek Kazanjian. This is a repetitive motions, seeking summary judgment of the same pleadings and causes of action, and raising the same issues, as that denied on May 17, 2019. A party may not move for summary judgment “based on issues asserted in a prior motion for summary adjudication” that has been denied by the court unless ...

Excerpt: ...hnicon”) as to the entire complaint. (Code Civ. Proc. § 437c.) Technicon shall submit a proposed judgment consistent with this court's order within ten (10) days of the date of service of this order. Explanation: Technicon moves for summary judgment on the ground that all of the claims of plaintiff Hydroelectric Penetrations, L.P. (“HP”) against it are all barred by the settlement agreement and release executed between Technicon and Ernie ...

Excerpt: ...ation: Plaintiff has sued defendants Abolnik, Galamgam, and Nwaka for elder neglect based on their alleged failure to intervene to protect him from defendant Hodanu, who allegedly assaulted and battered plaintiff. He alleges that he is over the age of 65 and an inpatient at the Department of State Hospitals – Coalinga, and thus he is an elder or dependent adult. (Complaint, ¶ 1.) Hodanu allegedly attacked and battered plaintiff on November 12,...

Excerpt: ...by a judgment in an action brought by the government. The act authorizes a representative action only for the purpose of seeking statutory penalties for Labor Code violations (Lab.Code, section 2699, subds. (a), (g)), and an action to recover civil penalties ‘is fundamentally a law enforcement action designed to protect the public and not to benefit private parties.” Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 381....

Excerpt: ...ndant's demurrer, in its entirety. Explanation: In the case at bar, plaintiffs allege two causes of action: (1) violation of Government Code sections 820, subdivision (a) & 815.2, et. seq.; and (2) negligence. Only the first cause of action is directed at moving parties. Defendants demur to cause of action one, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) & (f). Defendants argue that: (1) the facts are insufficient to alle...

Excerpt: ... Co. (2001) 25 Cal.4th 826, 853. If a defendant makes this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (CCP § 437(c), subdivision(p)(2).) In a summary judgment motion, the pleadings determine the scope of relevant issues. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) A defendant need onl...

Excerpt: ...from service by the clerk of the minute order. New allegations in the Second Amended Complaint are to be set in boldface type. Explanation: Where the complaint fails to plead ultimate facts, the complaint is subject to demurrer. (Code of Civil Procedure § 430.10(e); Berger v. California Ins. Guar. Ass'n (2005) 128 Cal.App.4th 989, 1006.) Essentially, “[a] complaint must allege the ultimate facts necessary to the statement of an actionable clai...

Excerpt: ...Plaintiff shall have ten (10) court days from the clerk's service of this order in which to file a second amended complaint. All new or amended allegations are to be set forth in boldface typeset. Explanation: Demurrer 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 C...

Excerpt: ...leadings. Second, we determine whether the moving party has met its statutory burden of proof. Once the defendant has made such a showing, the burden shifts to the plaintiff to produce evidence that a triable issue of fact exists as to an essential element of the cause of action. The third and final step is to determine whether the opposing party has demonstrated that a triable issue of fact exists as to the cause of action. In determining whethe...

Excerpt: ...ers, mental health rehab specialist, PSCs, caseworkers, personal service coordinators, education and mental health specialists, direct service aids, mental health professionals – unlicensed (same as mental health therapist – licensed), and who were provided with cell‐phones or radio communication devices or cell phone stipends by Turning Point. To also grant certification to a subclass of all such persons who separated from employment at an...

Excerpt: ...). Plaintiff sues to recover unpaid back commissions owed under the Independent Producer's Agreement (“IP Agreement”). Plaintiff also claims that HRBC president Enrique Romero made defamatory statements about plaintiff in connection with this dispute. The Complaint alleges the following causes of action: 1. Breach of Contract 2. Breach of Implied Covenant of Good Faith and Fair Dealing 3. Conversion 4. Unfair Competition and Violation of Busi...

Excerpt: ... that she is entitled to have the default set aside because she was not properly served with the complaint and summons or that the default was entered less than 30 days after she was served, she has failed to meet her burden of showing that the complaint and summons were not properly served, or that she was served after the date indicated on the proof of service. “‘[C]ompliance with the statutory procedures for service of process is essential...

Excerpt: ...ories, Request for Production of Documents, and Requests for Admissions, and for Monetary Sanctions Tentative Ruling: To grant plaintiff's motions to compel defendants Auto USA and Tidalwave Finance Corporation to serve verified responses without objections to plaintiff's form and special interrogatories and request for production of documents. (Code Civ. Proc. §§ 2030.290; 2031.300.) Defendants shall serve verified responses without objections...

Excerpt: ...e 30‐day period permitted by law. (Code Civ. Proc. § 430.40, subd. (a).) However, “[a] motion for judgment on the pleadings is equivalent of a general demurrer but is made after the time for demurrer has expired. The rules governing demurrers apply.” (Evans v. California Trailer Court (1994) 28 Cal.App.4th 540, 548.) Code of Civil Procedure section 438, subdivision (c)(1)(B)(ii) permits a motion for judgment on the pleadings by a defendant...

Excerpt: ...to Frazer, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To sustain the demurrer as to the eighth cause action, for failure to state facts sufficient to constitute a cause of action as to both Frazer and Matthews' estate. (Ibid.) To overrule the demurrer as to the ninth cause of action. To deny the motion to strike and grant in part, as discussed below. (Code Civ. Proc. §§ 435, 43...

Excerpt: ... of action: (1) retaliation in violation of FEHA, Gov. Code § 12940(h); (2) violation of Labor Code § 6310; and (3) violation of Labor Code § 6311. Summary judgment was previously granted as to the first cause of action, and it should not have been included in the SAC. Defendants now move for judgment on the pleadings as to the remaining causes of action on the ground that plaintiff did not comply with the Government Tort Claims Act. "[A] ...

Excerpt: ...ainst defendants Young, Clarke, and Podratz. (Ibid.) Defendants shall submit a proposed judgment consistent with this order within 10 days of the date of service of the order. Explanation: First, the individual defendants move for summary adjudication of the discrimination, retaliation, and failure to prevent discrimination and retaliation claims against them on the ground that individuals cannot be held liable for discrimination or retaliation u...

Excerpt: ...ction is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted wi...

Excerpt: ...s 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, § 1794, subd. (d).) The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made f...

Excerpt: ...mplaint (FAC) alleged against Defendants Laton Unified School District, Laton High School, and Jason Krikava for failing to file the claims within the applicable statute of limitations. Plaintiff shall have ten (10) court days in which to file the Second Amended Complaint (SAC). Any new or altered allegations shall be set forth in boldface typeset. Explanation: A general demurrer admits the truth of all material allegations and a Court will “gi...

Excerpt: ...ral, set one, directed to Defendant Duchscherer; and request for production of documents, set one, directed to Defendant Duchscherer. (Code Civ. Proc. §§ 2030.290(b), 2031.300(b).) Defendants Tobias and Duchscherer are ordered to serve complete verified responses to the discovery set forth above, without objection, within 15 days of the clerk's service of the minute order. To impose monetary sanctions in favor of Plaintiff, against Defendants T...

Excerpt: ...submitted within 5 days of notice of the ruling. Explanation: Standard of Care The appropriate standard of care required of a medical professional is not a matter of common lay knowledge. Therefore, except in cases of “egregious” medical negligence, expert medical testimony is required in medical malpractice actions to establish the standard of care required of a physician (or other health care provider) under the circumstances. See Flowers v...

Excerpt: ... some issue therein, be referred for decision to a third party (referee). Such reference may be made pursuant to the parties' agreement or, in certain cases, without the parties' consent. Under Code of Civil Procedure § 638, the court may order a reference either: • “(U)pon the agreement of the parties filed with the clerk, or judge, or entered in the minutes ... ”; or • “(U)pon the motion of a party to a written contract or le...

Excerpt: ...erty released from levy. (Code Civ. Proc., § 485.240, subd. (a).) On a showing of “clear and convincing” reasons, courts have inherent power to vacate ex parte attachments without any notice (i.e., on defendant's application). (Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal.App.3d 1108, 1116‐1117.) At the hearing, the plaintiff bears the burden of proving that the attachment was proper. (Loeb & Loeb v. Beverly Glen Music...

Excerpt: ... petitions, without prejudice. However, the court does intend to set a status conference on March 28, 2019 at 3:30 p.m. in Department 502 and require petitioners' counsel to update the court on the status of the administrative records in each case, as well as whether the cases have been set for hearings on the merits. If petitioners fail to lodge an administrative record in each case and set the cases for hearings on the merits within a reasonabl...

Excerpt: ...cal Rules, rule 2.1.17.) Explanation: Motion to Set Aside Default The court may relieve a party from a judgment, order or other proceeding 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, etc. (Code Civ. Proc. §473(b).) Application for relief may be based on either (1) an attorney affidavit of fault, in which event re...

Excerpt: ...roposed judgment consistent with this order. To take the motion to consolidate off calendar in light of the dismissal of the Morones action. Explanation: Defendants Del Monte Fresh Produce N.A., Inc. and Del Monte Fresh Porduce (West Coast), INc. (collectively, “Del Monte”) move to dismiss Morones v. Del Monte Fresno Produce N.A., Inc. et al., Case No. 14CECG02849. The action was filed on January 31, 2014. "An action shall be brought to t...

Excerpt: ...deny all motions. Explanation: The motions before the court seek leave to file cross‐complaints and to amend defendants' answers. All of the proposed new and amended pleadings are premised on factual allegations postulating alleged concealment and misrepresentations by plaintiff before the moving defendants became members as to whether plaintiff was running a deficit, was mismanaged, etc. Insofar as the proposed amendments seek to assert a cros...

Excerpt: ...der a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc. §128.5(a); see Levy v. Blum (2001) 92 Cal.App.4th 625, 635 [§128.5 which “permits the award of attorney fees, not simply as appropriate compensation to the prevailing pa...

Excerpt: ...n for class certification and preliminary approval of settlement is proof that the matter truly is litigated as a class action, more such complex motions requiring substantial time to resolve are expected. The matter is therefore deemed complex pursuant to Rule 3.400(b)(1); the complex fees must be paid on or before February 22, 2019. 2. Class Certification a. Standards An agreement of the parties is not sufficient to establish a class for settle...

Excerpt: ...that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement.” (Code Civ. Proc. §1281.2(a), (b); see Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 104...

Excerpt: ... October 1, 2018, the parties filed a stipulation deeming the prematurely filed Memorandum of Costs timely filed. See ¶ 6 of the Stipulation. On November 13, 2018, notice of entry of judgment was filed. On November 26, 2018, Defendant filed a motion seeking to tax costs; specifically, the amount of $29,446.44 listed at line 13 as “interest pursuant to CC § 33289.” No opposition was filed. Merits In the case at bench, an appeal has been file...

Excerpt: ...defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (United States Liab. Ins. Co. v. Haidinger–Hayes, Inc. (1970) 1 Cal.3d 586, 594.) Likewise, in order to establish premises liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205. Defendants' motion is based solely on the theory that pr...

Excerpt: ...nsufficient to show a good faith attempt to confer with defendant regarding the motion. (Code Civ. Proc. § 439, subd. (a).) Plaintiff's counsel shall file a supplemental declaration regarding her meet and confer efforts by March 15, 2019. Explanation: “Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subj...

Excerpt: ...t v. County of Los Angeles (1994) 27 Cal.App.4th 125, 145.)  To sustain defendant's demurrers based upon: (1) Gurpreet's lack of capacity; (2) Jasbir's claims of negligent infliction of emotional distress which are based upon: 31‐315.2; 31‐320.5; 31‐335.1 and 31‐405 (for both mandatory duty and vicarious liability); (3) social worker liability; (4) negligent hiring; (5) acts of independent contractors; and (6) plaintiffs' allegation of...

Excerpt: ...om the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. (Civ. Proc. Code §437c, subd. (h).) A continuance (normally a matter within the court...

Excerpt: ...erned by CCP §§872.010 through 874.240. CCP § 872.210 states: (a) A partition action may be commenced and maintained by any of the following persons: (1) A coowner of personal property. (2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates. (b) Notwithstanding subdivision (a), an action between...

Excerpt: ... proofs of service for the opposition indicate that it was served, by regular mail, on January 11, 2019 as required. Motion to Vacate. When an application for enforcement of a sister‐state judgment is filed, a judgment debtor has thirty days from service in which to challenge the sister‐state judgment. (Code Civ.Proc. § 1710.40 subd.(b).) Challenges to the judgment on the grounds that there was no subject matter or personal jurisdiction in t...