Excerpt: ...ued to August 28, 2018, at 3:30 p.m. in Dept. 503, to allow the moving party time to engage in additional discovery, as requested. Explanation: A settlement entered into by one or more of several joint tortfeasors may be determined by the court to be in “good faith.” (Code Civ. Proc. §877.6.) To encourage settlement, it is “quite proper for a settling defendant to pay less than [its] proportionate share of the anticipated damages. . . . Wh...

Excerpt: ...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 amend.' [Citation.] ‘In the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial.... Motions to amend are appropriatel...

Excerpt: ...nt. Explanation: Defendants Strong Holdings, Inc. (erroneously sued as Keller Williams Westland Realty) and Mel Kilner (“Defendant Brokers”) demur to the cause of action for breach of contract contained in the First Amended Complaint based on the Purchase Agreement, attached as Exhibit A to the First Amended Complaint. Defendant Brokers also move to strike the claim for attorney's fees based on the Purchase Agreement. Defendant Brokers' princ...

Excerpt: ...ssor in interest, or the vested owner at the time of the trustee's sale. (Civ. Code §2924k(a)(1)‐ (4).) A declaration signed under penalty of perjury outside of California must state on its face that it is made “under the laws of the State of California.” (Code Civ. Proc. §2015.5; see Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.) In the case at bench, a tr...

Excerpt: ...est.” Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting. (Evid. Code, § 500.) The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact. (Evid. Code, § 550, subd. (b).) A claimant of surplus sale proceeds bears the burden of proving his ...

Excerpt: ...ore, the matter will be taken off calendar. The Court notes that the papers on file in support of the application are probably insufficient to support the relief claimed. In order to be entitled to relief, a plaintiff must show that the claim as “probable validity,” which means “it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc. §481.190.) The evidence presented mus...

Excerpt: ... alleges that he was physically attacked by yet another resident, Doe 2. Eventually, Plaintiff moved to another care facility. On March 23, 2018, Plaintiff filed a complaint alleging causes of action for elder abuse, negligent hiring and supervision, and assault and battery. On April 19, 2018, Plaintiff filed a motion seeking trial preference. An opposition and a reply were filed. Trial Setting Preference Code of Civil Procedure section 36 states...

Excerpt: ...hese arguments, California and federal courts have consistently found that indigent plaintiffs in civil actions do not have a right to appointed counsel.” See Defendant's Memorandum of Points and Authorities in opposition at page 8 lines 12‐19 citing inter alia Turner v. Rogers (2011) 564 U.S. 431 and Storseth v. Spellman (9th Cir. 1981) 654 F.2d 1349, 1353. Plaintiff can only present policy arguments and innovative interpretations of federal...

Excerpt: ...s of action for conversion and replevin, contending that plaintiff Allstate has not alleged sufficient facts to constitute a cause of action. “The elements of a conversion cause of action are (1) plaintiffs' ownership or right to possession of the property at the time of the conversion; (2) defendants' conversion by a wrongful act or disposition of plaintiffs' property rights; and (3) damages.” (Baldwin v. Marina City Properties, ...

Excerpt: ... supervision and assault and battery. On March 1, 2018, Plaintiff filed a motion seeking trial preference. Opposition and a reply have been filed. Trial Setting Preference CCP § 36 states in relevant part: (a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole...

Excerpt: ...re of moving party to prove service of its Request for Pretrial Discovery Conference. Explanation: For sake of clarity, Northbrook Indemnity Company will be referred to as “Respondent” and Robert Knight will be referred to as “Claimant.” Pursuant to Insurance Code section 11580.2, subdivision (f)(1), the superior court has exclusive jurisdiction over discovery disputes for uninsured and underinsured motorist arbitration. (Miranda v. 21st ...

Excerpt: ...ed responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Code Civ. Proc., §§ 2030.290, subd. (b) and 2031.300, subd. (b).) Frank Cruz to provide complete verified responses to all discovery set out above, without objection within 10 days after service of this order. To deny defendant Mel Abdelaziz's motion that the truth of the matters specified in the requests for admis...

Excerpt: ...ement and a brief description of the dispute is sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251; Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) Defendant Aimhigh Group LLC has made the required barebones showing. Pursuant to California Rules of Court, rule 3.1312, subd. (a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary. The minute order adopting t...

Excerpt: ...service of summons on the grounds that the court lacks jurisdiction. This embodies any of the basic defects – no jurisdiction, no valid service. Plaintiff is a foreign corporation and the method of service utilized by the plaintiff did to comply with Code of Civil Procedure §413.10(c). Failure to comply with the Hague Convention renders service on foreign defendant void. See Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789....

Excerpt: ...ubd. (b).) Plaintiffs' counsel shall pay sanctions to defendants within 30 days of the date of service of this order. Plaintiffs shall also pay the costs of transferring the action. (Code Civ. Proc. § 399, subd. (a).) Explanation: Under Code of Civil Procedure section 395, subdivision (a), “[i]f the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where th...

Excerpt: ...e of this order. All new allegations shall be in boldface. Explanation: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake 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, aft...

Excerpt: ...to allow Plaintiff to allege some other basis for attorney's fees, if it can. Plaintiff shall have ten (10) court days in which to file a First Amended Complaint. 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 demurre...

Excerpt: ...ontribution, as Laticrete has also settled with plaintiff and obtained its own order determining the settlement to be in good faith. Thus, Benchmark's indemnity and contribution claims against Laticrete are barred. Explanation: Under Code of Civil Procedure section 877.6, “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing on the issue o...

Excerpt: ...es have been mailed to over 90% of the class members, although a small percentage could not be located, apparently because they have moved. No objections have been received, and no class members have chosen to opt out of the class. It does not appear that any other events have occurred which would cast doubt on the reasonableness of the settlement. Therefore, the court intends to grant the motion for final approval of the class action settlement,...

Excerpt: ...strategic lawsuit against public participation (SLAPP) action. (Code Civ. Proc. §425.16.) Defendants' demurrer is ordered off calendar as moot. Plaintiff's attempted “discovery motion” is ordered off calendar, since Plaintiff did not obtain a hearing date for this motion. Defendants' evidentiary objections are overruled. Explanation: Anti‐SLAPP motion The anti‐SLAPP statute provides: “A cause of action against a person arising from any...

Excerpt: ...s. The Motion is Authorized: Plaintiff contends the motion is unauthorized because Fresno County Superior Court Local Rule 2.1.17(A) provides: “. . . no motion under [C.C.P.] sections 2016.010 through 2036.050 . . . shall be heard . . . unless . . . [a] request for a Conference has either been denied and permission to file the motion is expressly granted via court order or the discovery dispute has not been resolved as a consequence of such a c...

Excerpt: ... 17CECG01691 as the lead case. All hearing dates currently scheduled in case number 17CECG02981 are ordered vacated. An Order to Show Cause re: Service is scheduled in Department 404 on July 12, 2018 at 8:30 a.m. Explanation: Rule 3.350 of the California Rules of Court governs the procedure to be used when filing a motion to consolidate. The motion must: (a) list all named parties in each case, the names of those who have appeared, and the names ...

Excerpt: ...ke Plaintiff's first amended complaint on the ground that it is a strategic lawsuit against public participation (SLAPP) action. (Code Civ. Proc. §425.16.) To grant Jonathan Donnellan's application for admission to the bar of this Court pro hac vice. (Cal. Rules of Court, Rule 9.40.) Explanation: Application Pro Hac Vice The Court does not find that Mr. Donnellan's representation of Defendants, by virtue of his representation of Hearst Televisio...

Excerpt: ...proceeds is not properly supported. The proceeds may be delivered to the petitioner/mother to be held in trust for the minor if the requirements of Probate Code §3401(c) have been satisfied. However, the requirements of Probate Code §3401(c) have not been satisfied. There is no evidence that the petitioner/parent has provided a written assurance, verified by oath that the total estate of the minor, including the money or other property to be pa...

Excerpt: ... mediation and therefore the extent to which any agreements reached during that meeting are subject to applicable mediation privileges. Any party to an arbitration in which an award has been made may petition the court to confirm the award. (Code Civ.Proc. §1286.) A petition must do at least the following: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate; (b) Set forth the names of the arbitrators; (c) Set for...

Excerpt: ... Currently the property is rented to non‐parties to this litigation. Plaintiff has served a demand on defendants to conduct a one‐hour inspection of the property. Defendants were unsuccessful in their attempts to obtain the current tenants' permission to inspect the property. Plaintiff moves to compel defendants to permit the inspection. The motion is brought under Code of Civil Procedure section 2031.320(a), which provides that if the party ...

Excerpt: ...order. Explanation: The party moving for summary judgment/adjudication bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co., supra, (2001) 25 Cal.4th 826, 850.) Only then does the burden of production shift to the party opposing summary judgment, who is then subject to its own burden of production to make a prima facie showing that a triable issu...

Excerpt: ...Cal.App.4th 1049, 1054, internal quotation marks and citations omitted; see Code Civ. Proc. §472(a).) Accordingly, the filing of an amended pleading renders a demurrer to the original pleading moot. (Ibid.; Morehead v. Turner (1940) 41 Cal.App.2d 414, 418.) In the instant action, Defendants Growers Farm and Garcia filed a first amended answer on June 13, 2018. Though the amended answer was late‐filed (see Code Civ. Proc. §1005(b)), the Court ...

Excerpt: ... for $143,551.00. This includes an unpaid principal of $110,000, interest of $27,126.00, attorney's fees of $5,850.00, and court costs of $575.00. None of these are accounted for on the CIV‐100 form. Furthermore, the declaration does not explain, or contain any documentation supporting, the claim for $110,000 other than a conclusion that that was the unpaid principle for the note. Therefore, unless plaintiff can produce the evidentiary proof fo...

Excerpt: ...e reasonable “ballpark” of the settling crossdefendants' liability. (Code Civ. Proc. § 877.6; Tech‐Bilt, Inc. v. Woodward‐ Clyde & Associates (1985) 38 Cal.3d 488, 499‐500.) Explanation: Under Code of Civil Procedure section 877.6, “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co‐ obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlem...

Excerpt: ...five‐ year trial date. Explanation: The court incorporates herein its ruling of May 9, 2017 for historical perspective. 1. CLASS CERTIFICATION a. Standards An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81 (rev. denied); see also Newberg, Newbe...

Excerpt: ...n good faith shall bar any other joint tortfeasor or co‐obligor from any further claims against the settling tortfeasor or co‐ obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc. §877.6(c).) In considering a motion pursuant to section 877.6, the court balances the statute's goals of (1) encouragement of settlements, and (2) equitable sh...

Excerpt: ...erk's service of this order. As an evidence sanction, if the cell phone is not produced within 20 days of the clerk's service of this order, the court hereby orders that the cell phone and videos filmed on that cell phone may not be referred to at trial or introduced in evidence in this proceeding. To order plaintiffs Manuel Cubias and Gustavo Gonzalez to appear for properly noticed depositions within 30 days of the date of the clerk's service of...

Excerpt: ... payable within 30 days to defendants' counsel of record, McCormick, Barstow, Sheppard, Wayte & Carruth, LLP. Should plaintiff fail to appear at the newly noticed deposition, defendants may file a motion for terminating sanctions without first complying with Fresno County Superior Court Local Rule 2.1.17. Explanation: There was no need for defendants to comply with Local Rule 2.1.17 and request a pretrial discovery conference before filing this m...

Excerpt: ...e initial verified responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one, are moot. Responses have been provided. The motion that the truth of the matters specified in the requests for admission, set one, be deemed admitted as to defendant Paul Evert's RV Country, Inc. is moot. Defendant provided response to the requests for admission that are in substantial compliance with ...

Excerpt: ...e Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The anti‐SLAPP statute may be invoked to challenge suits based on statements made in connection with an issue being considered by a judicial body. (Code Civ. Proc. §425.16(e)(2).) Pleadings, statements and writings “in connection with” civil litigation come within the parameters of the anti‐SLAPP statute. It need not be shown that the litigated matter is of public i...

Excerpt: ...he petitions setting out the rule 7.955 factors and no Attachment 18a copy of the fee agreements attached to the petitions. The declarations and fee agreement were presented in a separate document dated a week after the petitioner signed the petitions. The petitions are supposed to contain all the required attachments and state how many pages are attached. See Item 23 of the petitions. This is how the Court can ensure that the petitioner had prop...

Excerpt: ... the “Alternative Dispute Resolution Policy” (“ADR policy”), including the Spanish language versions of these documents, which shorten the timeframe to bring a claim to one year from the termination of employment, are deemed severed from those documents. To overrule all of plaintiff's evidentiary objections. Explanation: The moving party bears the burden of showing the arbitration agreement exists. (Code Civ. Proc. § 1281.2; Engalla v. P...

Excerpt: .... Sup.Ct. (1986) 179 Cal.App.3d 494, 498.) Here, the declaration of Doctor Douglas B. Malcolm, M.D. creates a triable issue of fact. Dr. Malcom opines that Saint Agnes – being a “busy California metropolitan emergency room facility” (Malcom Dec., filed: 5/23/18 ¶11), breached the standard of care in not having a radiologist available to interpret film twenty‐four hours per day. (Ibid.) According to Dr. Malcom, hospitals like Saint Agnes ...

Excerpt: ...2016, California Code of Civil Procedure section 430.41 went into effect. Subdivision (a) of that section states, in pertinent part: Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. S...

Excerpt: ...gations shall be in boldface. Explanation: Demurrer for Uncertainty: Defendant first demurs to the complaint for uncertainty on the ground that the causes of action in the caption of the complaint do not match the numbers of the claims in the body of the complaint, and the causes of action do not specify against which defendant they are alleged. However, courts look with disfavor on demurrers for uncertainty and will not sustain them unless the c...

Excerpt: ...tlements, and (2) equitable sharing of costs among the parties at fault. (Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 494.) The standard is whether the amount of the settlement is within the “reasonable range” or “ballpark” of the settling tortfeasor's proportionate share of comparative liability for the plaintiff's injuries. (Id. at. p. 499.) Where a motion for determination of good faith settlement is contested, the m...

Excerpt: ...r other device. The photos of the standard connection assembly and the one at issue in the fire show that a rubber ring was on the one used in the fire. All parties agree this caused a leak, which then led to the explosion. All agree such rubber ring is not part of the assembly as designed by moving defendant. So no design defect is at issue. Plaintiffs tries to argue that the ring may have been added at moving defendant's factory anyway, outside...

Excerpt: ...r Admission admitted “establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) Any matter admitted in response to a Request for Admission is conclusively established against the party making the admission. (Code Civ. Proc. § 2033.410, subd. (a); see Murillo v. Sup.Ct. (People) (2006) 143 Cal.App.4th 730...

Excerpt: ...oc. §§ 598, 1048.) As the decision to bifurcate is discretionary with the trial judge, and recognizing that this department may not be the ultimate trial department, the Court denies the motion to bifurcate at this time, without prejudice to it being renewed in limine. Judgment on the Pleadings The sole question presented by a defendant's motion for judgment on the pleadings is whether or not the facts stated in the complaint constitute a c...

Excerpt: ... 11, 2018. Service shall be by email. Explanation: Defendant Aerotek moves to compel plaintiff to arbitrate his claims against “all defendants.” The notice of motion was not directed to defendant O'Neill Beverage Company, LLC, and that defendant has neither joined in this motion, nor opposed it. A refusal to arbitrate is a prerequisite to a motion or petition to compel arbitration. Also, Aerotek only cites authority indicating that a third pa...

Excerpt: ...A special motion to strike pursuant to Code of Civil Procedure §425.16 (an “AntiSLAPP motion”) provides a means for quickly identifying and eliminating suits brought to chill the valid exercise of a party's constitutional right of petition or free speech. In order to invoke the protection of the anti‐ SLAPP statute, the defendant must show that the plaintiff's lawsuit arises from defendant's exercise of free speech or petition rights as de...

Excerpt: ...r proceeding or by any other transfer of an interest. The action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." Here, the moving party presented evidence that it is the assignee of the claim. No opposition was filed to the motion. The moving party may be substituted in as the plaintiff in this action. The motion is...

Excerpt: ...ubdivision (b). The motion is timely and is based on Plaintiff's attorney's affidavit of fault. Counsel states he failed to appear at the OSC due to a calendaring error. The only possible exception to the mandatory provision of Code of Civil Procedure section 473, subdivision (b), is where the dismissal is not the result of attorney fault. Here, there is no evidence on which to base such a finding. Accordingly, Plaintiff's motion to have the dism...

Excerpt: ...asors or co‐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(a)(1).) “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor o...