Excerpt: ...ontract, plaintiff has met its burden of producing evidence showing that defendant breached its lease with plaintiff, and that plaintiff was damaged as a result. The elements of a breach of contract claim are (1) the existence of a contract between the parties, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) resulting damage to plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Her...

Excerpt: ...de of Civil Procedure, section 1255.010 [the probable amount of compensation to be awarded to defendants], plaintiff has failed to provide notice of its motion to all the requisite parties. Notice Requirement: A motion for prejudgment possession must be served on the “record owner of the property and on the occupants, if any.” (Code Civ. Proc. § 1255.410, subd. (b).) “'[R]ecord owner' means the owner of the legal or equitable title to the ...

Excerpt: ...mend. (Code Civ. Proc. § 430.10, subd. (e).) Explanation: Cause of Action No. 1: Violation of California Civil Code Section 2923.6 Under Civil Code section 2923.6, If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not...

Excerpt: ...ion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the statutory time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Appli...

Excerpt: ...North America, Inc.'s person most knowledgeable and custodian of records to attend his or her deposition, and to produce documents pursuant to the demand for production of documents served with the deposition notice. (Code Civ. Proc. § 2025.450.) To deny plaintiffs' request for sanctions against defendant. (Code Civ. Proc. § 2025.450(g)(1).) To deny plaintiff's motion to compel Lithia Nissan of Clovis's person most qualified and Timothy Bowden,...

Excerpt: ...int seeks to recover civil penalties under the Private Attorneys General Act of 2004 (“PAGA,” Lab. Code, §§ 2698 et seq.) for labor violations that defendants allegedly committed against their non‐exempt employees. Defendants move for summary adjudication of the ninth cause of action, arguing that the PAGA notice1 was defective. Specifically, they argue the notice was defective because: (1) it did not adequately allege “facts and theori...

Excerpt: ...out of tortious injury to her spouse, but arising out of injury to her spouse by way of violations of the Fair Employment and Housing Act and Labor Code; and alternatively that defendant is immune from common law claims.1 The standard of review in a motion for judgment on the pleadings is well settled; the motion is confined to the face of the pleading under attack, and all facts alleged in the complaint must be accepted as true. (Rangel v. Inter...

Excerpt: ...f Court, rule 3.770.) Explanation: 1. Introduction “The superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) 2. Notice to Labor and Workforce Development Agency Plaintiff's counsel states that notice of the settlement was given to the Labor and Workfor...

Excerpt: ...f documents served with the deposition notice. (Code Civ. Proc. § 2025.450.) To deny plaintiffs' request for sanctions against defendant. (Code Civ. Proc. § 2025.450(g)(1).) Explanation: Plaintiff seeks to compel the deposition of Kia America, Inc.'s (“KA”) person most knowledgeable (PMK) and custodian of records, and to compel production of various categories of records. Plaintiff served KA with a deposition notice setting the deposition f...

Excerpt: ...es of action. To grant leave to amend as to the second, third, fifth, and sixth causes of action. To deny leave to amend as to the seventh and ninth causes of action. Plaintiff shall serve and file her second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Second Cause of Action: The second cause of action fails to state a valid claim for breach of the implied covenant ...

Excerpt: ... order, and did not pertain to this motion. The court now rules on the merits of the motion. Under Code of Civil Procedure section 877.6, a settlement entered by one or more of several joint tortfeasors may be determined by the court to be in “good faith.” The court determines whether a settlement is within the “good faith ballpark” by considering the following factors (evaluated as of the time of the settlement): 1) a rough approximation...

Excerpt: ... to amend under Code of Civil Procedure, section 473, subdivision (a), and Code of Civil Procedure, section 576, favoring resolution of all disputed matters between the parties in the same lawsuit. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Additionally, where “the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint…” (Code Civ. ...

Excerpt: ...burden to establish a prima facie case of discrimination… While the plaintiff's prima facie burden is ‘not onerous', he must at least show ‘“ ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion ....'”'” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354‐355, internal citations omitte...

Excerpt: ... issues. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditio...

Excerpt: ...posture and similarity of contentions, the court intends to advance defendants' motion to bifurcate and deny it, without prejudice. (Code Civ. Proc., § 1048.) Explanation: Summary Adjudication Summary adjudication is the proper mechanism for challenging a particular, “cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 242.) Furt...

Excerpt: ...nc., a suspended corporation; Felix Tiscanero; Fruit Valley Harvest, Inc. dba Fruit Valley Harvesting; and Domingo Eustacio Cruz‐Lopez dba De Cruz FLC, to recover loaned monies made between August and September 2021, in the approximate amount of $500,000. Plaintiffs now seek to attach certain real property and farm products as a provisional remedy. No timely opposition was filed. (Code Civ. Proc. § 484.060, subd. (a).) Preliminary Facts Plaint...

Excerpt: ...reble damages, specifically page 8, lines 9‐11 and the prayer on page 9, line 3, with leave to amend. Plaintiff is granted 10 days' leave to file the Second Amended Complaint. The time in which the FAC can be amended will run from service by the clerk of the minute order. Explanation: Defendant moves to strike the language in the First Amended Complaint (“FAC”) seeking exemplary damages pursuant to California Civil Code, section 3294 and tr...

Excerpt: ...nation: Attorney Affidavit of Fault: The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. § 473, subd. (b).) Where a motion seeking this relief is based on an “attorney affidavit of fault,” the relief is mandatory. Otherwise, relief is discretio...

Excerpt: ...nce to a later date, if plaintiff needs more time. The Case Management conference is also continued to March 8, 2022. Explanation: Class Certification The settlement class is described as current and former non‐exempt truck drivers employed by defendant. The dates of employment of the settlement class vary greatly depending on what document the court is reading. The definition of the settlement class in the Settlement Agreement is from January ...

Excerpt: ...Code, § 2699, subd. (l)(2).) PAGA itself does not set forth a clear applicable standard for approval of such settlements. (See Flores v. Starwood Hotels & Resorts Worldwide, Inc. (C.D. Cal. 2017) 253 F.Supp.3d 1074, 1075; Patel v. Nike Retail Services, Inc. (N.D. Cal., May 8, 2019) 2019 WL 2029061, at *2 [“PAGA does not establish a clear standard for evaluating PAGA settlements.”].)1 Accordingly, this court assesses settlement proposals unde...

Excerpt: ...clarations will not be considered in any way in connection with the motion for class certification or any other proceeding unless nonparties John Morquecho and Ruben Vela submit to deposition. To deny all requests for sanctions. (Code Civ. Proc., § 1987.2.) Explanation: Non‐parties John Morquecho and Ruben Vela failed to appear for their depositions despite issuance of subpoenas requiring their appearance. Defendant sought to depose these indi...

Excerpt: ...une 18, 2021 pretrial discovery conference. Responsive documents shall be provided within ten (10) days of the clerk's service of this minute order. To grant the request for monetary sanctions in the amount requested. Defendants Pacifica Real Estate Services, Inc., Pacifica Enterprises, Inc., Island Lake Investors, LP, River Park Villas, Bullhead City, LTD, L.P. shall pay the sum of $3,660 to counsel for plaintiff within 30 days of the clerk's se...

Excerpt: ...nd twenty. (Ibid.) Explanation: Third Affirmative Defense: With regard to affirmative defense number three, statute of limitations, plaintiff asked Hurley to admit that she had no facts to support the defense. (Plaintiff's Undisputed Material Fact Nos. 4, 5.) Hurley responded with an admission, and also conceded that she had no facts, witnesses, or documents to support the defense and that “[i]t does not appear that there is a statute of limita...

Excerpt: ...aint in interpleader as a standalone action against defendants Kenneth Matthew Green, Schicuan Green, and Janet Green, seeking to dispose of its obligation to defendants in relation to benefits paid out on the death of Robert Green. On June 3, 2021, plaintiff lodged $43,500 with the court. Plaintiff now seeks an order discharging it from: its liabilities as to the monies deposited; the present action with prejudice; and for costs and attorney's f...

Excerpt: ...perty during the pendency of the action, including property taxes, utilities, hazard insurance, pool and yard maintenance, pest control, and for any necessary repairs, and to keep Vantage Point Finance, LLC (“Vantage Point”), reasonably well informed as to the status of these payments so it is ensured there are no missed payments. The court will also order Mr. Arballo to open an escrow account and make monthly rental payments during the pende...