Excerpt: .... Proc., § 425.16.) To take the demurrers to the Answers off calendar as moot in light of the striking of the Cross‐Complaint. Explanation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.)...

Excerpt: ...ate facts sufficient to constitute a cause of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Defendant/crosscomplainant Pasquale De Santis shall serve and file his first amended cross‐complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. To deny plaintiff/cross‐defendant's motion for appointment of a receiver and motion for preliminary injunction. (Code Civ. Proc....

Excerpt: ...nt RV Country, Inc.'s motion to reform the stipulation. To deny plaintiffs' motion for judgment on the pleadings. All objections are overruled. Explanation: Policy of Adjudicating Disputes on their Merits Adjudicating matters on their merits is preferable to seizing upon or taking advantage of an obvious error by an unsuspecting attorney. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 855 [“[T]he policy of the law is to have every litigated case trie...

Excerpt: ...int are to be set in boldface type. Explanation: Second Cause of Action – Negligent Infliction of Emotional Distress (NIED) Defendants demur to plaintiff Naomi Hendrix's cause of action for negligent infliction of emotional distress (NIED) on the grounds that the first amended complaint (FAC) fails to allege facts sufficient to state a cause of action. Specifically, defendants contend that the FAC fails to plead sufficient facts to demonstrate ...

Excerpt: ...dants, or plaintiffs may offset sums they owe by that amount. (Code Civ. Proc., § 643, subd. (c).) Explanation: On 12/15/2020 referee Robert Hillison submitted his Second Report, and on 12/17/2020 submitted a supplement to the report, clarifying one issue. A referee appointed pursuant to Section 639 shall file with the court a report that includes a recommendation on the merits of any disputed issue, a statement of the total hours spent and the ...

Excerpt: ... oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) In other words, a showing that the defendant's conduct was negligent, grossly negligent or even reckless is insufficien...

Excerpt: ...al date is required it should request oral argument on this motion pursuant to the applicable Local Rules and the court will reset the trial at that time. 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, subd. (a); see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v....

Excerpt: ...rtinez, and Cathy Ariana Martinez. Explanation: The court previously indicated that it intended to deny the petitions without prejudice, as it was not clear why some minors were receiving substantially more money than others, even though their injuries were very similar. The court also noted that two of the minors, Carlos and Esmeralda, did require treatment from doctors, but Esmeralda was receiving less than Carlos, even though Esmeralda appeare...

Excerpt: ... [4AC] at paragraphs 35-43." The motion to strike these allegations in the general allegation section of the pleading is DENIED. The Court's demurrer order was directed to causes of action, not allegations. These eight paragraphs provide background in addition to describing the plaintiff's emotional state. Causes of action for negligent and intentional infliction of emotional distress have been removed from the pleading. (2) The District contends...

Excerpt: ... plaintiff did not know the location of the accident site and that her use of a scooter within the subject park was forbidden by park rules, and this motion is focused more narrowly on the contention that the crack in the roadway which plaintiff maintains caused the accident was a trivial defect, rather than a dangerous condition of public property. Therefore, this second motion does not fall under the prohibition of repetitive summary judgment m...

Excerpt: ...e monetary sanctions against plaintiff Pavitarjit Sihota and his attorneys of record, Fishman Larsen & Callister, in the amount of $ 2,775. (Code Civ. Proc., §§ 2033.290, subd. (c), 2031.310, subd. (h), 2030.300, subd. (d).) Sanctions in the amount of $925 must be paid to the Law Office of Emerson ∙ Church within 30 days after service of this order. Sanctions in the amount of $1,850 must also be paid to the Whelan Law Group within 30 days aft...

Excerpt: ...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. However, the common practice when ruling on PAGA settlements is to follow existing law on class action settlemen...

Excerpt: ...y fees. The court finds the issue of temporal limitation could have been resolved without the need for the instant motion. Explanation: Defendant Doshier moves to quash the subpoena directed to Cintas dated October 23, 2020. He argues: (a) there is no “compelling interest” to justify disclosure of private records; (b) the subpoena is overbroad in time and scope; and (c) the subpoena seeks documents that are neither relevant nor reasonably cal...

Excerpt: ...ning of the contractual language and the circumstances under which the agreement was made (Civ. Code, §§ 1636, 1644, 1647).” (Rice v. Downs (2016) 248 Cal.App.4th 175, 186, internal quotations omitted.) The evidence shows that an entity named Sebastian Enterprises, Inc. agreed with plaintiff to arbitrate any disputes between them. That entity is not a defendant, and no dispute between plaintiff and it is shown. The evidence shows that plainti...

Excerpt: ...r more may sue or defend for the benefit of all.” “The party seeking certification as a class representative must establish the existence of an ascertainable class and a well‐defined community of interest among the class members. The community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives w...

Excerpt: ...os now move for summary judgment or adjudication. They argue: (1) Officer Santos did not owe a duty to plaintiffs; (2) Officer Santos did not breach any duty; (3) Officer Santos' actions were neither the cause‐ in‐fact nor the proximate of plaintiffs' injuries; (4) Officer Santos is immune from liability; and (5) the California Highway Patrol cannot be held liable pursuant to respondent superior. Each argument is examined below. 1. Duty There...

Excerpt: ...ablishing the moving party's right to the relief sought. (Regents of Univ. of Calif. v. Superior Court (1996) 41 Cal.App.4th 1040, 1044.) Plaintiff re‐filed the motion, albeit narrower in scope, and again neglected to include the policy in the volume of evidence, only submitting it with a notice of errata after the opposition had already been filed. The court would let that omission slide except that many of the other exhibits are not properly ...

Excerpt: ...ed Beverly's motion for summary judgment or adjudication on the merits in March of 2020, and Beverly has not shown that there are any newly discovered facts, circumstances or a change in the law that would justify renewal of the motion.1 Under Code of Civil Procedure section 437c, subdivision (f)(2), “A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless th...

Excerpt: ...rit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440, citation omitted; see Musaelian v. Adams (2009) 45 Cal.4th 512, 519 [purpose of §127.8 is to deter filing abuses].) The Legislature included a “safe harbor” provision in section 128.7 to ensure the statute is “remedial, not punitive.” (Peake, supra, 227 Cal.App.4th at p. 441; see Code Civ. Proc. §128.7(c)(1).) Where a party does not take advantage ...

Excerpt: ...he valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protecte...

Excerpt: ... and that the dispute is covered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for 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.) There is a stron...

Excerpt: ...cause plaintiff has no memory of the accident, and thus he cannot prove that a dangerous condition of the premises caused him to fall and hit his head. However, plaintiff has submitted evidence in opposition which raises a triable issue of material fact as to whether defendant's negligence in failing to maintain the premises caused his injuries. A plaintiff cannot prevail on a premises liability claim against a landowner without a showing that th...

Excerpt: ...nation: Summary Judgment The court's sole function on a motion for summary judgment is issue‐finding. The court must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c); see Zavala v. Arce (1997) 58 Cal.App.4th 915, 926; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) If there is a single such issue, the motion must be denied. (Versa Tec...

Excerpt: ...plained others to the court's satisfaction. The court finds that the class meets the requirements for class certification, that class counsel is adequate to the task of representation (but for the below), and that all proposed class representatives (but for Ms. Perkins) are appropriate to the appointment sought. Ms. Perkins' decision to retain her personal claims against what is represented to be a financially stressed defendant renders her an in...

Excerpt: ... for Breach of Contract – Specific Performance Defendant demurs to the first cause of action on the grounds that it fails to state a claim upon which relief can be granted. (Code Civ. Proc., § 430.10, subd. (e).) Specifically, defendant contends that a contract for the sale of real property must be in writing under Civil Code section 1624, subdivision (a)(3), and thus plaintiff's cause of action to enforce an oral contract for the sale of real...