Excerpt: ...t matter as is involved in a state court action in California, the state court has the discretion but not the obligation to stay the state court action.(Benitez v. Williams (2013) 219 Cal.App.4th 270; Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800; Gregg v. Superior Court (1987) 194 Cal.App.3d 134.) In exercising its discretion, this court should consider the importance of discouraging multiple litigation designed ...

Excerpt: ...In a suit for tax refund, the burden of proof is on the taxpayer (Flying Tiger Line v. State Bd. of Equal. (1958) 157 Cal.App.2d 85, 99 [320 P.2d 552]), not only to demonstrate the Board's determination is incorrect, but also to produce evidence from which a proper tax determination can be made. (People v. Schwartz (1947) 31 Cal.2d 59, 64 [187 P.2d 12].) The taxpayer must affirmatively establish the right to a refund of the taxes by a preponderan...

Excerpt: ...de of Civ. Proc., § 430.10, subd. (e).) The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545.) Accordingly, “[b]ecause the function of a demurrer is not to test the truth or accuracy of the facts alleged in the complaint, we assume the truth of all properly pleaded factual allegations.” (Los Altos Golf & Country Club v. County of Santa Clar...

Excerpt: ...Second Amended Complaint are to be set in boldface type. Explanation: Demurrer, in General The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether the plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of the plaintiff's possible difficulty or inability in proving the allegat...

Excerpt: ...f calendar as moot, as permission to file a second amended complaint is granted. Oral argument for this matter is set on December 17, 2020, at 3:30 p.m., in Department 503. Plaintiff is ordered to appear through CourtCall. Explanation: Welfare and Institutions Code section 6600.08, subdivision (a) states, in pertinent part: “Coalinga State Hospital shall be used whenever a person is committed to a secure facility for mental health treatment pur...

Excerpt: ...itney McDougall. To deny a protective order and sanctions. Explanation: On or about September 17, 2020, and September 21, 2020, defendants caused to be issued a number of subpoena duces tecum. The subpoenas dated September 17, 2020, are as follows: (1) Stanislaus County Welfare Office as to Vanessa McDougall, order number 346458‐012; (2) Modesto DMV as to Vanessa McDougall, order number 346458‐013; (3) Stanislaus County Superior Court as to V...

Excerpt: ... to show that plaintiff made statements in her deposition which contradicted the statements made in her declaration opposing this motion. This chiefly consisted of plaintiff's deposition responses to legal contention questions (e.g., “Were you ever subjected to any form of discrimination [or harassment, or retaliation] because of your gender?”). The court initially notes that new evidence is generally not considered on reply, especially where...

Excerpt: ...ce liability on undertaking without prejudice. Explanation: Motion for Attorneys' Fees Plaintiff J.H. Boyd Enterprises, Inc. (“JHBE”) moves for an award of attorneys' fees in the sum of $607,244.50 plus additional fees incurred in connection with this motion. The motion is brought pursuant to Civil Code section 1717, which provides in relevant part: “(a) In any action on a contract, where the contract specifically provides that attorney's f...

Excerpt: ...omplaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the First Amended Complaint are to be set in boldface type Explanation: Demurrer Demurrer, in General The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a c...

Excerpt: ...e set in boldface type. Explanation: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to a...

Excerpt: ...ts against defendant S&A, in the amount of $3,288. Defendant shall pay attorney's fees and costs within 30 days of the date of this order. Explanation: Under Code of Civil Procedure section 664.6, If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of...

Excerpt: ...demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the...

Excerpt: ...ry relief claims seeking interpretation of written contracts is proper. (Shaw v. Regents of Univ. of California (1997) 58 Cal.App.4th 44, 52.) However, interpretation of a written document is a question of law for the trial court to determine, only where extrinsic evidence is unnecessary. (Temple v. Velcro USA, Inc. (1983) 148 Cal.App.3d 1090, 1095.) In other words, interpretation is appropriate where the language is clear, understandable and com...

Excerpt: ...b), provides for discretionary relief from a default or default judgment that has been entered due to mistake, surprise, inadvertence, or excusable neglect. (Code Civ. Proc. § 473, subd. (b).) The party seeking relief must bring his or her motion within a reasonable time, not to exceed six months from the date of entry of the default or default judgment. (Ibid.) “Where the mistake is excusable and the party seeking relief has been diligent, co...

Excerpt: ...urth cause of action for sexual harassment, which is based on a theory that Saint Agnes is vicariously liable for the alleged sexual battery committed by its employee, Victor Mendoza, during the course and scope of his employment. Under the holding of the California Supreme Court in Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, a hospital cannot be held liable for the intentional torts of its employee unless there is a ca...

Excerpt: ...ing served. She claims that she suffered from, and was diagnosed with, post‐partum depression following the birth of her second child on August 8, 2018. Vu's parents, the plaintiffs, knew of Vu's struggle with post‐partum depression and nonetheless, filed the lawsuit when she was ill. Vu claims to have suffered post‐partum depression for a year and half after the birth: “Once I became healthy and employed, I contacted my attorney and aske...

Excerpt: ... breaks; (b) payment for all hours worked; (c) reimbursement all of the business expenses necessarily incurred by Plaintiffs and other aggrieved employees in performance of their duties; (d) payment of all overtime wages owed; (e) correctly itemized wage statements, and (f) payment of all wages due at termination of employment. Because an aggrieved employee's action under the [PAGA] functions as a substitute for an action brought by the governmen...

Excerpt: ... (Code Civ. Proc. § 430.10, subd. (e).) Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. To deny the motion to strike, in its entirety. (Code Civ. Proc. §§ 435; 436.) Explanation: Demurrer: With regard to the sixth cause of action for violation of Labor Code section 226, failure to provide accurate wage statements, defendants argue that...

Excerpt: ... of the fourth cause of action. (Code of Civ. Proc. § 430.10, subd. (e).) To grant the motion to strike. Leave to amend granted. Plaintiff is granted 10 days' leave to file a First Amended Complaint. The time in which the Complaint can be amended will run from service by the clerk of the minute order. New allegations in the First Amended Complaint are to be set in boldface type. Explanation: Special Demurrer (Code of Civ. Proc. § 430.10, subd. ...

Excerpt: ...laint is operative. Eight causes of action are alleged therein: (1) negligence; (2) violation of title IX; (3) violation of 42 USC 1983; (4) violation of Cal. Ed. Code § 200 et. seq.; (5) violation of Cal. Const., Art. I, § 28; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; and (8) breach of mandatory duty pursuant to Cal. Gov't. Code § 815.6. Defendants Laton Unified School District and Jason...

Excerpt: ...q. A judgment or order directing the sale, conveyance or delivery of possession of real property is stayed on appeal only by posting bond or undertaking. (§ 917.4; First Federal Bank of California v. Fegen (2005) 131 Cal.App.4th 798, 800.) The amount of the undertaking of bond is fixed by the trial court on the appellant's motion. (§ 917.4.) The bond or undertaking is given on the condition that “the appellant or party ordered to sell, convey...

Excerpt: ...ablish one or more elements of her causes of action or to show that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and this must be shown via specific facts and not mere allegations. (Id.) “California courts have incorporated the expert eviden...

Excerpt: ...otion for summary adjudication of defendant City of Firebaugh's affirmative defense of design immunity. (Ibid.) To deny defendant City of Firebaugh's motion for sanctions against plaintiff for bringing a frivolous motion for summary adjudication. (Code Civ. Proc. § 128.7.) Explanation: Hiller Aircraft's Motion for Summary Judgment: Hiller has only moved for summary judgment as to the entire complaint, not summary adjudication of each separate ca...

Excerpt: ...ard on Friday, November 13, 2020, at 8.30 a.m., in Dept. 54. Explanation: Demurrer ‐ General Standard of Ruling “The rule governing pleading in this state is that a plaintiff need only ‘set forth the ultimate facts constituting the cause of action, not the evidence by which [the] plaintiff proposes to prove those facts' [Citation].” (Knox v. Dean (2012) 205 Cal.App.4th 417, 431.) Further, “[w]e treat the demurrer as admitting all materi...

Excerpt: ...s informed that the bankruptcy petition had been dismissed; trial therefore was set for July 30, 2020. On July 30, 2020, the court received a copy of a bankruptcy court order dated July 24, 2020 dismissing defendant's bankruptcy petition for failure to timely file documents. At the time scheduled for trial, defendant asserted that a bankruptcy petition had been filed by the second defendant in this action, again staying the action. Although defen...