Excerpt: ...4th 701, 706; Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 42, fn. 7, citing Code Civ. Proc., § 452.) Defendants contend that the allegations of the first amended complaint require that...

Excerpt: ... speedy and inexpensive method of dispute resolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Market Ins. Corp. v. Integrity Ins. Co. (1987) 188 Cal. App. 3d 1095, 1098, internal citations omitted.) However, “[a]s our Supreme Court stressed several decades ago, the contractual terms themselves must b...

Excerpt: ...1, 2021, and that any claim file for which consent is received be produced by May 17, 2021. A further response, under oath, need also be served on May 17, 2021 which states that production was allowed in full, with the exception of documents identified in that further response as falling within the attorney/client privilege or work product doctrine. Such identification shall list the document's “author, date of preparation, all recipients, and ...

Excerpt: ... post an undertaking to continue prosecuting the case. (Code Civ. Proc. §§ 437c; 1030.) Explanation: Motion for Summary Judgment: Defendant Caltrans moves for summary judgment as to the entire complaint, arguing that plaintiffs cannot prevail on their claim that the section of Highway 180 where their son died constitutes a dangerous condition of public property because the claim is barred by the design immunity defense. “A public entity may b...

Excerpt: ...rovide a further response to the form interrogatories. To grant plaintiffs' motion to compel further responses to the requests for admission. To grant monetary sanctions against defendant and its attorney, Larry Shapazian, in the amount of $2,580. Defendant shall serve further responses without objections within 10 days of the date of service of this order. Defendant shall pay monetary sanctions within 30 days of the date of service of this order...

Excerpt: ... (Code Civ. Proc., § 128.5.) “The award of sanctions for a frivolous action [or tactic] under Code of Civil Procedure section 128.5 is within the sound discretion of the trial court. [Citation.] Once imposed, ‘[the] test on appeal is whether the trial court has abused the broad discretion to justify our interference with a sanction award.' [Citation.] In reviewing that exercise of discretion we are informed by ‘several policy guidelines: (...

Excerpt: ...unitive Damages Allegations from Donald R. Levitt's Cross‐Complaint Tentative Ruling: To sustain cross‐defendants' general demurrer to the third and eighth causes of action, with leave to amend. (Code Civ. Proc., §430.10, subd. (e).) To overrule crossdefendants' general demurrer to the sixth and seventh causes of action. Crosscomplainant is granted 20 days, running from service of the minute order by the clerk, to file and serve a first amen...

Excerpt: ...ly when it also violates a duty independent of the contract arising from principles of tort law. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551 [87 Cal.Rptr.2d 886, 981.) The court gave cross‐complainant John Foggy (“Foggy”) an opportunity to amend in the abundance of caution, in the event there was some way he could allege a relationship formed from the agreement at issue (promissory note) which created fiduciary duties. However, the court ...

Excerpt: ... (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 protected activity, by demonstrating that the facts underlying plaintiff's complaint fit one...

Excerpt: ...ve simultaneous briefs on April 7, 2021 which address each of the nine (9) issues identified by the court in bold typeface below. The briefs shall not exceed 15 total pages (exclusive of tables of contents and authorities). Electronic service is permitted. Any requests to exceed this page limit must be brought ex parte pursuant to Fresno County Superior Court, Local Rule 2.72, and California Rules of Court, rules 3.1200 through 3.1207. Explanatio...

Excerpt: ...ntegral part of plaintiff's cause of action. (Williams v. Horvath (1976) 16 Cal.3d 834, 842.) The government claim presentation deadline is not a statute of limitations. (City of Pasadena v. Superior Court (2017) 12 Cal.App.5th 1340, 1352.) The claim presentation must be made to the public entity separate from subsequently seeking redress in the courts. (DiCampli‐Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991, fn. 8.) Plaintiff premi...

Excerpt: ...Development Agency (“LWDA”) on how settlement of PAGA claims should be assessed, in O'Connor v. Uber Technologies, Inc. (N.D.Cal. 2016) 201 F. Supp. 3d 1110. “It is important to note that where plaintiffs bring a PAGA representative claim, they take on a special responsibility to their fellow aggrieved workers who are effectively bound by any judgment . . . The duty imposed on the PAGA representative is especially significant given that PAG...

Excerpt: ...s controls over any language fixing the settlement amount at $390,000. The Final Settlement Approval hearing is set at 3:30 p.m. on July 8, 2021. Papers shall be filed no later than June 23, 2021. Explanation: 1. Class Certification 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. (Luck...

Excerpt: ...arbitration under California Code of Civil Procedure section 1281.2 and the Federal Arbitration Act (“FAA”). “California courts traditionally have maintained a strong preference for arbitration as a speedy and inexpensive method of dispute resolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Marke...

Excerpt: ... consistent with the court's summary judgment order. Explanation: Objections The court rules as follows on defendants' objections:  Plescia Declaration: Sustain objection nos. 3‐8, 10, 11, 13, 15, 16, 19‐23, 30, 32, 33, 35, 38 and 39. Overrule objection nos. 1, 2, 9, 10, 12, 17, 18, 24‐29, 31, 34, 36, 37 and 38.  Smith Declaration: Sustain all 20 objections. Attorney Smith is testifying to matters for which he does not have personal k...

Excerpt: ... answer to the first amended crosscomplaint within 10 days of the date of service of this order. Explanation: Plaintiff/cross‐ defendants AMP Trucking and Pannu have moved to strike portions of the cross‐complaint on the ground that the cross‐claims are partially or completely barred by the statutes of limitation that apply to each cross‐claim. However, a general demurrer is normally the correct procedure for challenging a cause of action...

Excerpt: ...es of Court, rule 2.550(c).) “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a dec...

Excerpt: ...ourt has held that there is no tort cause of action in California for intentional spoliation evidence, when both the injured party and the alleged “spoliator” were parties to the underlying litigation, and the injured party knew or reasonably should have known of the alleged loss or destruction of evidence before the trial or other decision on the merits of the underlying cause of action. (Cedars‐Sinai Medical Center v. Superior Court (1998...

Excerpt: ...rties' Agreement “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 of Civ. Proc., § 1021.) The franchise agreement here addresses attorney fees and court costs incurred to secure a temporary or...

Excerpt: ...e demurrer of defendant National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) to the third cause of action with leave to amend. To overrule National Union's demurrer to the first and second causes of action. To grant National Union's motion to strike in its entirety, with leave to amend. Plaintiff is granted 30 days' leave to file a second amended complaint. The time in which the complaint can be filed will run from the d...

Excerpt: ...ttorney's fees and costs. To grant the motion to strike the prayer for treble damages without leave to amend. Defendant Saint Agnes Medical Center shall file and serve an answer to the First Amended Complaint within 10 days of the clerk's service of this minute order. Explanation: Demurrer “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We al...

Excerpt: ...nce, as attached as “Appendix B” in the record presented by petitioner, was improperly excluded at the hearing before respondent, and to remand the case to be reconsidered in light of that evidence. To order the motion to strike off calendar as moot in light of the ruling on the motion to augment. Explanation: These motions both concern expense vouchers (called TECs) which were submitted to real party in interest California Department of Tran...

Excerpt: ...dum of Costs and signed the Opposition to the Motion to Tax Costs) to appear telephonically through CourtCall or personally at the Sisk Courthouse. The court orders counsel for Fresno Community Hospital, attorney Karen J. Ray (who verified the Memorandum of Costs and signed the Response to the Motion to Tax Costs) to appear telephonically through CourtCall or personally at the Sisk Courthouse. Masks are required at the Sisk courthouse and entranc...

Excerpt: ... including a cause of action asserted in a cross‐complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Code Civ. Proc., § 1048, subd. (b).) Albeit, section 1048 is based on Federal Rule of Civil Procedure 42, subdivision (b). (See Legislative Committee Comment to 1971 Amendment to Code of Civi...

Excerpt: ...emphasis added).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Colonial has largely complied with Cal. Rules of Court, Rule 3.1324. Colonial seeks to add a workers' compensation exclusivity affirmative defense. The court agrees wit...