Excerpt: ...995) 11 Cal.4th 274, 278.) “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1032, subdivision (b), provides: “Except as otherwise express...

Excerpt: ...irst amended complaint on the grounds that all causes of action stated therein are barred by the applicable statute of limitations and fail to state facts sufficient to constitute a cause of action. Demurrer, in general A demurrer tests only the legal sufficiency of the pleading. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's cl...

Excerpt: ...ount shall file and serve its First Amended Cross‐Complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. If oral argument is timely requested, such argument will be conducted at 2:30 p.m. on September 9, 2021, in Department 501. Explanation: Catamount has cross‐ complained against Dusten Perry (“Perry”) for equitable indemnity, contribution and declaratory relief on the assertion that Perr...

Excerpt: ... denial of the motion exists (e.g., fraud, unconscionability, etc.) (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) Defendant contends that the alleged arbitration agreement in this case is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq. Section 2 o...

Excerpt: ...own to the plaintiff, and all persons plaintiff “reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff” (i.e., this includes “persons unknown to be served by publication); 4) the estate as to which partition is sought and a prayer for partition of the interests therein; and 5) where the plaintiff seeks sale of the property, an allegation of the facts justifying...

Excerpt: ...d. (Code Civ. Proc., §§ 435, 436.) Plaintiffs shall serve and file their first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer to Sixth Cause of Action: AMCO demurs to the sixth cause of action for breach of contract on the ground that it fails to state a cause of action because plaintiffs were not parties to the insurance policy, which was issued by AMCO to ...

Excerpt: ...roposed judgment consistent with the court's summary judgment ruling. Explanation: “‘[I]n any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage re...

Excerpt: ...cation A party may seek summary adjudication of affirmative defenses and duties owed to the plaintiff. (Code Civ. Proc., § 437c, subd. (f)(1).) Summary adjudication must only be granted if it completely disposes of an affirmative defense, or an issue of duty. (Ibid.) The rules applicable to summary judgments apply equally to motions for summary adjudication. (Blue Shield of Cal. Life & Health Ins. Co. v. Sup. Ct. (2011) 192 Cal.App.4th 727, 732....

Excerpt: ...2030.300.) To limit the timeframe for the interrogatories to a period of three years before the plaintiffs made their claims. To grant sanctions against defendant for its unjustified refusal to respond to the interrogatories, in the amount of $1,375 per motion. (Ibid.) Defendant shall provide further responses within ten days of the date of service of this order. Defendant shall pay sanctions within 30 days of the date of service of this order. E...

Excerpt: ...pp.4th 876, 885‐886 citing Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322.) When a litigant seeks a stay based upon parallel criminal proceedings, an analysis should be undertaken "in light of the particular circumstances and competing interests involved in the case.” (Avant! v. Superior Court, supra, 79 Cal.App.4th at p. 885.) Courts should consider the following factors (“the Keating factors”): (1) the interest of t...

Excerpt: .... Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1800–1801; CRC 3.769(a), 3.770(a); In re Microsoft I–V Cases (2006) 135 Cal.App.4th 706, 723. This applies both to settlements reached before or after a class has been certified. Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 236. Before the c...

Excerpt: ...n must be filed on or before September 17, 2021. Explanation: Plaintiff has corrected all the technical issues with the settlement agreement, the notice to class members, and the opt‐out form. However, the declaration of Javier Garcia is insufficient. Even where a motion for class certification is uncontested the court has a duty to determine whether certification is appropriate. (See Rubenstein, 3 Newberg on Class Actions § 7:3 (5th ed.); see...

Excerpt: ...n a request for continuance to a later date, if plaintiff needs more time. Explanation: The court will allow the additional pages of the memorandum, as requested in the brief itself. However, in the future counsel should request this relief ex parte, prior to filing the brief. As for conditional class certification, plaintiff bears the burden of establishing the propriety of class treatment with admissible evidence. (Richmond v. Dart Industries, ...

Excerpt: ...s sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the court to reconsider its decision granting certification of the class. 2. Settlement Previously, the court found that the settlement was fair and reasonable based on the evidence that plaintiff submitted in support of the motion for preliminary approval. It does not appear that there is any reason for the court...

Excerpt: ... without objections, to defendant Michelle Iarusso's Special Interrogatories, Set One, and Request for Production of Documents, Set One, no later than 15 court days from the date of this order, with the time to run from the service of this minute order by the clerk. The matters specified in defendant Michelle Iarusso's Requests for Admission, Set One, are deemed admitted, unless plaintiff Danae Schmitzer serves, before the hearing, a proposed res...

Excerpt: ...subdivision (c), “summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.” (Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119, 123.) Summary judgment is warranted when the moving party shows by admissible evidence that the “action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c...

Excerpt: ...spects. To overrule all objections. Explanation: Burden on Summary Judgment In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, court...

Excerpt: ...”) to provide further responses to Request for Production of Documents, Set 5, Nos. 105 ‐109, 115‐120, 126 – 131, 137 – 142, 148, 157 – 162, with any withheld documents based on attorney‐client privilege other than that of Flournoy to be identified and described in a privilege log. The documents shall be produced within 20 days of service of the order by the clerk. (Code Civ. Proc., § Code Civ. Proc. § 2031.310, subd. (a).) To den...

Excerpt: ... of the first cause of action. Explanation: The Underlying Case In the underlying Case No. 13CECG03811 entitled Cal LeDuc; Tori Abby; Miley Abby, a minor by and through her Guardian ad litem, Tori Abby, Mandy Jobe, Lukus LeDuc, Jay LeDuc and Cal LeDuc as successor in interest to the estate of Marsha Kay LeDuc v. Mario Alberto Guerro; Daniel M. Canchola and Guerra Produce, defendants filed for bankruptcy protection on April 24, 2017, shortly befor...

Excerpt: ...Ct. Fresno County, Local Rules, rule 2.8.4) In the event that oral argument is requested, both Petitioner and Christian Rea are excused from appearing. Explanation: Petitioner proposes to accept a compromise of disabled adult Christian Rea's claims arising from a two auto collisions for a gross settlement of $45,000, paying $5,000 of the proceeds to cover in excess of $3.2 million in medical expenses, $690 in costs and $15,000, or approximately 3...

Excerpt: ...itially asserting three cases of action: deceit, fraud and negligent misrepresentation. Between February and October 2016, multiple demurrers were sustained so that plaintiffs' only remaining cause of action is malicious prosecution. On May 3, 2017, CCS filed the instant motion for summary judgment, based on: (1) collateral estoppel/res judicata; (2) failure to prove the elements of malicious prosecution; and (3) statute of limitations. This cour...

Excerpt: ... dates shall run from the new hearing date. Explanation: “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 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.” (Code of C...

Excerpt: ...tion (SLAPP) Overview The anti‐SLAPP statute describes claims within its purview: “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a...

Excerpt: ...al fact and the moving party is entitled to judgment as a matter of law.” (Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119, 123.) Summary judgment is warranted when the moving party shows by admissible evidence that the “action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) To satisfy this burden, a moving defendant is not required to “conclusively ne...

Excerpt: ...n: “‘Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713, quoting Code Civ. Proc. § 437c(c).) Summary judgment is properly directed toward the entire complaint and not portions thereof. (see Barnick v. Longs Drug Stores, Inc. (1988) 203 Cal.App.3d 377, 384; Khan v. Shiley, Inc. (1990) 217...