Excerpt: ...ipt of the hearing), as defense counsel states they did. Further, the trial minute order from September 10, 2018, indicates it was “not reported,” so it does not appear it could have been put “on the record.” Thus, the court can only consider the terms of the written settlement agreement to determine if it is enforceable pursuant to Code of Civil Procedure section 664.6 (“section 664.6”). The written agreement was signed only by Mrs. ...

Excerpt: ...ommencing with Section 701.510) of Chapter 3 of Division 2 of Title 9. The sale is not final until confirmed by the court.” (Code Civ. Proc., § 568.5.) The proposed sale of the property will be conducted according to law. California Rule of Court 3.1180 provides: A receiver must not employ an attorney without the approval of the court. The application for approval to employ an attorney must be in writing and must state: (1) The necessity for t...

Excerpt: ...ego will unduly prejudice defendants; and (4) bifurcation will result in jury confusion. Plaintiffs oppose, arguing judicial economy will not be promoted because there is significant overlap between the evidence related to alter ego liability and the evidence that will be relevant to the balance of the issues. Under Code of Civil Procedure section 1048(b) the court “in furtherance of convenience or to avoid prejudice, or when separate trials wi...

Excerpt: ...42,500, with the balance going to the nonappearing defendants. Any supplemental papers must be received by the Court no later than Friday, February 22, 2019. Explanation: The legislature requires the Court to approve any settlement of a complaint seeking civil penalties under the Labor Code Private Attorneys General Act of 2004 (“PAGA”). (See Labor Code §§2699, subd.(l); 2689, et seq.) However, neither the Legislature nor the California Lab...

Excerpt: ...g parties shall submit proposed judgments consistent with the court's order within 10 days of the date of this order. Explanation: California State University's Motion: Plaintiff has alleged only one cause of action against CSU based on CSU's allegedly negligent hiring training, supervision, retention, and investigation of defendant Andres Perez‐Esteban. However, defendant has presented evidence that it never hired Esteban, and that Esteban was...

Excerpt: ...ia Rule of Court 3.500(e). Moving party is also ordered to “take all appropriate action necessary to assure that the transfer takes place and that proceedings are initiated in” San Joaquin County Superior Court “to complete consolidation” with the case pending in that court, pursuant to California Rule of Court 3.500(f). The trial date of February 25, 2019, mandatory settlement conference date of January 30, 2019, and trial readiness hear...

Excerpt: ...on for sanctions without prejudice. Plaintiff has not successfully made a motion. Explanation: The evidence presented is insufficient to support the motion. All that need be shown in the moving papers is that the discovery was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (See Leach v. Sup.Ct. (1980) 111 CA3d 902, 905–906.) Plaintiff has failed to provide evidence ...

Excerpt: ...ake a prima facie showing that there are no triable 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 cause(s) of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. § 437c, subds. (p)(2), (o)(2).) Once the moving party has met its initial burden, the burden shifts to the opposing party to produ...

Excerpt: ...on settlement, plaintiff also seeks class certification for the purposes of approving the settlement. Therefore, the court must first determine whether the class should be certified before deciding whether the settlement should be preliminarily approved. “Code of Civil Procedure section 382 authorizes class actions ‘when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impractic...

Excerpt: ...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 terms as may be just, an amendment to any pleading or proceeding in other particulars...” (Code Civ. Proc., § 473, subd. (a).) “ ‘Code of Civil Procedure section 473, which gives the courts power to permit amendments in fur...

Excerpt: ...errule Defendants' demurrer to the remaining causes of action. To grant Defendants' motion to strike Plaintiff's claims for punitive, special, and exemplary damages, with leave to amend. Plaintiff is granted 20 days, commencing from service of the minute order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer In testing a pleading against a...

Excerpt: ...aint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Second Cause of Action: Failure to Engage in Good Faith Interactive Process It is a jurisdictional prerequisite to state a claim under the Fair Employment and Housing Act (FEHA) that the plaintiff exhausted his administrative remedies before commencing a lawsuit. (Gov. Code, §§ 12960, 12901, 12925, subd. (b); O...

Excerpt: ... a writ of possession concerning personal property identified as a “Vatech PAX‐I 3D Green 15X15, Mfg. #30P15X15, Master Serial Number 055‐0991” which is valued at $32,100. Plaintiff contends that the equipment was delivered to 5151 N. Palm Ave. Suite 320, in Fresno, CA, pursuant to an Equipment Finance Agreement and that the Defendants are in default of the Agreement by failing to make monthly payments. Whether a writ of possession is to ...

Excerpt: ...ree speech rights and/or right to petition. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658.) The defendant must establish that the “core injury‐producing conduct upon which the plaintiff's claim is premised” is protected speech. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 2364, 1272.) The meaning of “arising from” in Code of Civil Procedure, section 425.16, subdivision (b)(1...

Excerpt: ...ant to show, by a preponderance of the evidence, that it is more likely than not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exist...

Excerpt: ...within 10 days of service of the minute order plus 5 days for service via mail. (CCP § 1013) Explanation: Background On February 10, 2017, Plaintiff filed a judicial form Complaint alleging a cause of action for motor vehicle negligence and a cause of action for general negligence arising from a multi‐vehicle collision that took place on April 2, 2016 on Interstate 70 near Spiceland, Indiana. Plaintiff alleges that its truck was “rear‐ end...

Excerpt: ...r the Federal Employers Liability Act. He claims that on March 15, 2015, he suffered neck and lower back injuries when he was struck on the right side of the head by an object that entered through an open window while he was operating a locomotive owned by the Defendant Union Pacific. He alleges that the air conditioner was broken and the windows were open for cooling purposes. At the time, he was working as a locomotive engineer on UP644 at Defe...

Excerpt: ...esolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Market Ins. Corp. v. Integrity Ins. Co. (1987) 188 Cal. App. 3d 1095, 1098, internal citations omitted.) “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, th...

Excerpt: ...been issued, this is unnecessary. Jack filed this motion twice, once on June 14, 2018, in an attempt to have it heard ex parte, which the court ordered off calendar, and a second time on July 2, 2018, after the court instructed defendant that he must file a noticed motion.2 Since the supporting declarations filed with each motion are slightly different as to some crucial details, they are both considered in analyzing defendant's request to set as...

Excerpt: ...ring the 45‐ day leave to amend period. The time in which the answer can be amended will run from service by the clerk of the minute order. Explanation: Defendant Golden, a corporation, filed its Answer to the Complaint in pro per. The answer was signed by Golden's CFO. A corporation cannot represent itself in court either pro per or through an officer or agent who is not an attorney. (Caressa Camille, Inc. v. Alcohol Beverage Control Appeals B...

Excerpt: ...t One, and Request for Production of Documents, Set One, without objection, and shall produce all documents responsive to the requests for production. All objections are waived. To impose monetary sanctions in favor of plaintiffs in the amount of $767.00 against Voua Yang and Cindy Mai Xiong (Code Civ. Proc. §§ 2023.010(d), 2023.030(a)), to be paid within 30 days of service of the order by the clerk. To order plaintiffs to pay filing fees of $1...

Excerpt: ... order. Explanation: A prevailing buyer in an action under the Song–Beverly Consumer Warranty Act “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, § 1794, ...

Excerpt: ...irst amended complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To grant defendant First American's motion to strike the references to malice, fraud, and oppression, and the requests for punitive damages and attorney's fees against it in the first amended complaint, as improper and unsupported. (Code Civ. Proc. §§ 435, 436.) To deny leave to amend. To...

Excerpt: ....40, subds. (a), (d).) Here, Mr. McKey's application does not meet the requirements set forth in California Rules of Court, rule 9.40. The application does not include his place of residency, and no evidence is submitted to show that he does not regularly engage in substantial business, professional, or other activities in the State of California. Pursuant to California Rules of Court, rule 391(a) and Code of Civil Procedure section 1019.5, subd....

Excerpt: ...keting, Inc. (“Sandstone”). Explanation: California law includes special procedures for determining the claims of third persons (i.e., those other than the judgment debtor and creditor) in property under levy. These third party procedures are optional. They may be used by a third party who claims ownership to or possession of real or personal property, or a superior security interest in or lien on personal property. The third party claim proc...

Excerpt: ... strike “shall be entitled” to recover his or her attorney fees and costs. (Code Civ. Proc. §425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; see also Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 193 [“Our Supreme Court has construed section 425.16, subdivision (c) as mandatory.”].) The award of attorney fees to the prevailing defendant on an antistrategic lawsuit against public participation (SLAPP) motion includ...

Excerpt: ...ther responses to the document requests within 10 days of the date of service of this order. Defendant shall pay monetary sanctions within 30 days of the date of service of this order. Explanation: As an initial matter, to the extent that defendant objects to plaintiff's motion on the ground that the plaintiff's separate statement does not comply with Rule of Court 3.1345, the objection is not well‐taken. Plaintiff's separate statement contains...

Excerpt: ...ther equipment with a California Certificate of Title and eligibility to be licensed for travel on public roads in California) as part of the receivership estate. Although they have filed no opposition to this motion, Defendants apparently objected to the Receiver's sale of vehicles because Plaintiff has no security interest in them. The Order at paragraph 2 provides that the Receiver was to “take possession of all that certain Personal Propert...

Excerpt: ...r with trial counsel's schedule must attend as a new trial date will be assigned at the hearing. If no hearing is held on this motion, the court will set a new trial date at a Case Management hearing on Thursday, August 23, 2018 at 3:30 p.m. in Department 403. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473; see also, § 576.) There is ge...

Excerpt: ...fendant only needs the extra deposition time because counsel made an inefficient use of time previously. Plaintiffs did not comply with California Rules of Court, rule 3.1116 in attaching the entire unmarked transcripts, and it is not the court's burden to review over 300 pages of transcripts to independently identify the evidentiary basis for plaintiffs' arguments. Defendant has provided a sufficient basis to justify needing more time than the s...

Excerpt: ...planation: 1. Objections to Evidence The Court sustains that part of plaintiff's objection no. 1 on the basis of hearsay. All other objections made by plaintiff are overruled. The Court did not consider objections by defendant as defendant's moving papers failed to carry its burden on any issue except for the legal question of fiduciary duty. 2. Disputed Facts Facts Nos. 1, 9, 11, 12, 14, 16, 17, 18, 20, 21, 24, 26, 27, 28, and 32 are disputed. A...

Excerpt: ...fth causes of action both allege claims for harassment in violation of the Fair Employment and Housing Act (FEHA) based on plaintiff's medical condition and sexual orientation. Defendants' contend that the acts of harassment cited by plaintiff with regard to her sexual orientation or medical condition were not so severe or pervasive as to alter the conditions of her employment. “Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 ....

Excerpt: ...osing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust.” (Emphasis added.) (Code Civ. Proc., § 405.38.) Plaintiff argues that because his complaint contains a “real property claim,” he acted with substantial justification. However, the statute contemplates that in order to survive a motion to expunge, plaintiff mus...

Excerpt: ...on the ground that it fails to state facts sufficient to constitute a cause of action, as plaintiff has not clearly alleged which defendants were her employers, and that defendant Laura Fraser was not a licensed real estate broker and therefore could not have been an “employer” of plaintiff because only licensed real estate brokers can employ real estate agents. However, the complaint clearly alleges that, “The term ‘DEFENDANTS' shall ref...

Excerpt: ... deny the request for terminating sanctions. To impose monetary sanctions in the amount of $1,530. Sanctions must be paid by Defendant Jesus Hernandez to the Law Office of Robert C. Abrams within 30 days after service of this order. Explanation: Interrogatories: Code of Civil Procedure section 2030.290, subdivision (b) provides for a motion to compel where the opposing party fails to respond to written interrogatories. Further, when a party has n...

Excerpt: ... fees to a “successful party” if the underlying litigation has enforced an important right affecting the public interest, has conferred a significant benefit on the general public or a large class of persons, and has imposed a financial burden on the fee claimants out of proportion to their individual stake in the matter. (Baggett v. Gates (1982) 32 Cal.3d 128, 142.) Though it is a proceeding of a different nature than the ordinary civil acti...

Excerpt: ...ch type of discovery for which further responses are sought pursuant to California Rules of Court, rule 3.1112; and 3. Failure to submit a separate statement in support of each motion pursuant to California Rules of Court, rule 3.1345(c). Explanation: On or about August 8, 2016, Plaintiff was involved in a motor vehicle accident with a rented Ryder Truck driven by Alan John Walsh in the scope of his employment with Defendant Baggie Farms Express,...

Excerpt: ...‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6, subd. (a)(1).) “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or c...

Excerpt: ...ugust 30, 2018, at 3:30 p.m. in Department 503. Plaintiff may file a responsive brief on the issue no later than August 16, 2018. Explanation: A party may voluntarily withdraw a pleading filed by him or her. (See Code Civ. Proc., § 128.7, subd. (c).) The wisdom of such a maneuverer is not for the court to decide. The operative second amended complaint was filed May 27, 2015. It seeks termination of three trusts held by the late J.M. Irigoyen, in...

Excerpt: ...r acceptance of offer to allow judgment,” states in relevant part: (a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. (b) Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award...

Excerpt: ...gainst a public entity may only be brought where a written claim has been presented to, and rejected by, the entity. (Gov. Code §§905, 945.4; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454 [timely filing of claim is condition precedent to maintenance of civil action].) Such a claim must be presented within six months of its accrual. (Gov. Code §911.2.) Once a notice of rejection has been personally delivered to the claimant or de...

Excerpt: ...1987.1 provides, in relevant part: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things … at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b) … may make an order … directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Ci...

Excerpt: ...ates, to ensure the information is consistent with what was stated in the Reply declarations. Explanation: It appears the memorandum of points and authorities plaintiff filed on July 20, 2018, was not the Reply brief but was the opening brief that plaintiff apparently intended to file with the other moving papers on June 15, 2018. It does not have the word “reply” in the caption, but instead the title simply indicates it is the memorandum in ...

Excerpt: ...e 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 subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. If an amended pleading is filed, the responding party shall meet and...

Excerpt: ...nt can be amended will run from service by the clerk of the minute order. Explanation: In the complaint a plaintiff must “plead facts showing that he may be entitled to some relief.” (Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1152.) The complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc. § 425.10.) Plaintiff does not allege any facts in his First ...

Excerpt: ...use of action in light of the court's order on the demurrer. The prevailing party shall submit to this court, within 7 days of service of the minute order, an ex parte request dismissing the action as to the demurring defendant. Explanation: Demurrer to Fourth Cause of Action: Plaintiff, who is the Trustee of the Ninos' bankruptcy estate, has once again attempted to state a claim for negligence against Premier Valley Bank for failing to perform a...

Excerpt: ...ype. Explanation: The court finds the Complaint uncertain. The Complaint alleges that plaintiff leased an apartment at the apartment complex located at 3442 W. University Avenue, Fresno. The Complaint is vague as to what defective conditions existed at the unit in which plaintiff resided. Paragraph 11 alleges, “On August 24, 2017, inspection and observations of the conditions of the dwelling unit at 3442 W. University Avenue, Fresno, California...

Excerpt: ...entative of the client; and 3. proof of service on the defendants as required by Cal. Rules of Court, rule 3.1362(d). Failure to file the required declaration will result in the motion being taken off calendar. Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure section 1019.5(a), no further written order is necessary. The minute order adopting this ruling will serve as the order of the court, and service by the clerk o...

Excerpt: ...oyd sought to tax. (See Opp. brief, p. 3:14‐15—“The $435 filing fee amount for the first account was actually and reasonably incurred by Ms. Marsh and should be recoverable” (emphasis added).) Mr. Boyd provided no authority for his argument that because the accounting was filed as a result of a court order the filing fee is not a recoverable cost. As prevailing party, this is a cost that is recoverable by Ms. Marsh. The fact that Ms. Mars...

Excerpt: ...de of Civil Procedure section 473, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to am...