Excerpt: ...iled pursuant to this part. 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).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or standards for making the assessment. Published California case law has not done so either. Howev...

Excerpt: ...tories, Set 2, Interrogatory No. 45. Request for production No. 58 seeks “Any DOCUMENTS relating to the calculation and payment of Harry Overly's salary, including bonus and/or other incentive pay from 2018 through the present.” Interrogatory No. 45 asks, “Since 2018, has Harry Overly received any sort of compensation from YOU as an incentive based on profits of Sun Maid.” In opposition, Sun Maid argues that plaintiffs' requests should be...

Excerpt: ...e Civ. Proc., § 437c.) To deem Aladdin's motion for summary adjudication of the eighth cause of action to be a motion for judgment on the pleadings, and to grant the motion without leave to amend for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438.) Explanation: Plaintiffs have sued Aladdin's Carpet for negligence and negligent infliction of emotional distress after their property was stolen from a sto...

Excerpt: ... pending demurrer. To sustain the demurrer to the second amended complaint, in its entirety. No leave to amend is granted. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349‐350.) Defendant shall submit a judgment of dismissal within 5 days of the clerk's service of this minute order. Explanation: I. Motion to Strike On January 11, 2021, the court sustained Sun‐Maid's demurrer as to all nine counts of plaintiffs' First Amended Complaint. The c...

Excerpt: ...of the clerk's mailing of the minute order. To deny the motion to quash as moot. Explanation: The court has power to set aside a judgment that is void as a matter of law. (Code Civ. Proc., § 473, subd. (d).) A judgment may be void as a matter of law for many reasons, including lack of or improper service of summons and lack of personal jurisdiction. (See Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1120–1121; see also Ellard v. Conway (2001...

Excerpt: ... of Civil Procedure section 437c. If motions to compel are necessary, defendant is excused from complying with Rule 2.1.17 of The Superior Court of Fresno County, Local Rules. Given how far out hearing dates are being set at this time, defendant may apply ex parte for hearing dates (or a hearing date) for said motion(s). Even so, counsel should move expeditiously to obtain the sought‐after discovery, since the court is not inclined to grant an ...

Excerpt: ...summary judgment. (See Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1, 8.) To prevail on the motion, plaintiffs must show that the order granting the motion for summary judgment was against the law, there was insufficient evidence, the court committed an error of law, or there was an incorrect or erroneous legal basis for the order that was not consistent with and not supported by the facts. (Code Civ. Proc., §§ 657, 663.) Plainti...

Excerpt: ...rvices rendered on appeal as well. (Wilson v. Wilson (1960) 54 Cal.2d 264, 272.) However, where the appellate decision contemplates further proceedings in the trial court, the successful party on appeal is not yet entitled to Civil Code section 1717 fees on appeal. (Presley of S. Cal. v. Whelan (1983) 146 Cal.App.3d 959, 961.) In Presley, in an action for a breach of contract, an appellate court reversed a trial court's granting of the defendant'...

Excerpt: ... the complaint may be amended will run from service of the order by the clerk. All new allegations shall be in boldface type. Explanation: “Standing is the threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer.” (Martin v. Bridgewater Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.) A minor may have standing for a wrongful death cause of action “if, at the time of the decedent's...

Excerpt: ...mplaint Tentative Ruling: To overrule the demurrer, with defendants Robert G. Melenbacker (individually and as trustee of the Robert and Cynthia Melenbacker Trust Dated June 5, 2009), Marvin A. Farris (individually and as trustee of the Marvin and Cindy Farris Family Trust Dated May 31, 2006), Rodney O. Swenson (individually and as trustee of the Swenson Family Trust of 1998), and Ted Torosian granted 10 days' leave to file their Answer(s) to the...

Excerpt: ...ary 26, 2020. Without the disclosure of the amount demanded on the Statement of Damages, the court cannot determine whether the amount of judgment requested is proper. Relief granted on default cannot exceed amount demanded in the separate statement. (Code Civ. Proc. §580, subd. (a); Greenup v. Rodman (1986) 42 Cal.3d 822, 824 [demand sets ceiling on recovery].) Insufficient Prove‐up Documents The court notes also that the evidence plaintiff h...

Excerpt: ...court may ... in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading ....” (Code Civ. Proc., § 473, subd. (a)(1); see also Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777 [strong judicial policy favoring resolution of all disputed matters in one action].) “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as ...

Excerpt: ...l be considered on September 21, 2021, at 4:00 p.m. in Department 403. Explanation: Certification of Class for Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected, although there is less scrutiny of manageability 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...

Excerpt: ...ocuments, set one, nos. 10, 11, 13, 16, 24, 25, 27, and 34. The motion is denied as it relates to Nos. 1 and 20. Defendant Harmony Communities, LLC shall provide further responses to nos. 10, 11, 13, 16, 24, 25, 27, and 34 within twenty (20) days from the date of this order. Explanation: Discovery requests are generally afforded liberal construction. (see Code of Civ. Proc., § 2017.010; Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) A mo...

Excerpt: ...acate [the arbitrator's] award.” (Code Civ. Proc., § 1285.) “A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.” (Code Civ. Proc., § 1288.) “‘[I]f one wishes to have an award vacated or corrected he must act within onehundred days of service of the award or be precluded from attacking the award.'” (Coord...

Excerpt: ...ading. To deny the motion to set aside default as to defendants Donald Krouskup, Askem Farms LLC, and McCall Village Mobile Home Park LLC, without prejudice. Explanation: On May 12, 2019, plaintiff filed suit alleging five causes of action: breach of express warranty; revocation of acceptance; breach of contract; breach of implied warranty of merchantability; and fraud in the inducement. Proofs of service were subsequently filed. On March 29, 202...

Excerpt: ...ney C. Haron, a professional corporation, in the amount of $1,301.20. (Code Civ. Proc., § 2023.030, subd. (a).) Sanctions must be paid to the Vogl Meredith Burke LLP law firm within 30 days of the clerk's service of the minute order. Explanation: Motion to Compel Plaintiff's Deposition Code of Civil Procedure section 2025.450, subdivision (a) states that, “[i]f, after service of a deposition notice, a party to the action ... without having ser...

Excerpt: ...tled “Acknowledgment and Agreement to be Bound by the Alternative Dispute Resolution Policy” (“arbitration agreement”) and 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 is severed from those documents. Explanation: The moving party bears the burden of showing the arbi...

Excerpt: ...s to this defendant, a dismissal of the other common counts must be filed and a judgment submitted within 10 days of notice of the ruling. Notice runs from the date that the minute order is served by the court, plus five days for service via mail. (Code Civ. Proc., § 1013.) Explanation: On December 23, 2020, plaintiff filed a Judicial Council form complaint alleging common counts for “open book account,” “account stated in writing,” “m...

Excerpt: ...of cases filed by Enrique Reyes and Guadalupe Reyes (Plaintiffs) that, taken as a whole, constitute “deliberate and egregious misconduct” sufficient to support dismissal. (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 738, 762.) To monetary sanctions in favor of the Kutnerian Defendants and against Plaintiffs and James Michel, jointly and severally, in the amount of $17,852.31 pursuant to Code of Civil Procedure section 12...

Excerpt: ...ses of action. Plaintiff shall serve and file his second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: First and Second Causes of Action – Breach of Written and Oral Contract: In its order sustaining the demurrer to the original complaint, the court noted that plaintiff had alleged that there was a written agreement, but did not attach it to the complaint. Plaintiff...

Excerpt: ...s otherwise denied. All requests for sanctions are denied. Explanation: Plaintiff moves to compel responses from defendant Rattaire to the first set of form interrogatories, special interrogatories, production demands, and requests for admission. However, defendant Rattaire served responses to the discovery requests, albeit late. Since the responses were late, any objections are waived. (See Code Civ. Proc., §§ 2030.290, subd. (a); 2031.300, su...

Excerpt: ...d. (b).) 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 bold print. Should plaintiff elect not to amend, defendant shall file a responsive pleading within thirty (30) days from the date of this order. Explanation: Demurrer According to the court record, on March 11, 2021 defendant's demurrer papers were rejected for failure to pay the r...

Excerpt: ...ys for service via mail. (Code Civ. Proc., § 1013.) Explanation: As a matter of law, where the cause of action constitutes a tort, a plaintiff may seek punitive damages for “oppression, fraud or malice” by the defendant. (Civ. Code, § 3294, subd. (a)) The statute contains its own definitions: • “Malice” means conduct intended by the defendant to cause injury to the plaintiff or despicable conduct that is carried on by the defendant wi...

Excerpt: ...tigation by eliminating needless trials. (Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558, 562.) Summary judgment is permissible in actions for declaratory relief. (Walker v. Munro (1960) 178 Cal.App.2d 67, 70‐71, overruled on other grounds by Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055.) Plaintiffs seek declaratory relief by judicial determination that the commercial general liability policy issued by defendant, for the ...