Excerpt: ...o file its answer to the complaint, with the time to from service of the minute order by the clerk. If oral argument is timely requested, such argument will be entertained May 3, 2023, at 3:30 p.m. in Department 403. Explanation: On three separate days in July 2021, plaintiff, a customer of defendant bank's predecessor- in-interest, presented a Euro Check for deposit into his personal checking account: 1) Deposit 1 on July 13, 2021, for €7,000....

Excerpt: ...er $4.7 million. Plaintiff has shown that she suffered special medical damages of over but she only seeks about apparently based on the amount that her insurance company paid for her medical costs. Yet she also admits that her insurance company only has a lien of $3,166.14 for medical costs, so it is unclear why she seeks over $39mo for medical costs. Plaintiff also seeks lost earnings to date of $82,944, plus another $642,815 in future earnings....

Excerpt: ...erified responses without objections within 20 days of the date of service of this order. Explanation: Plaintiffs have moved to compel defendant Foster Poultry Farms to provide further responses to form interrogatories, special interrogatories, and requests for of documents that seek information about all employees of defendant who were employed during the class period as defined by plaintiffs' complaint. Defendant has objected on various grounds...

Excerpt: ...pretrial settlement. (Legis. counsel's Dig., Assem. Bill No. 237 (2000—2001 Reg. sess.) 5 stats. 2001, summary Dig., pp. 181-182; cal. Law Revision Com. com., 19 West's Ann. Code Civ. Proc. (2007 ed.) fall. S 1260.040, p. 523.) Secton 1260.040 authorizes a party to an eminent domain action to file a motion requesting a ruling on "an evidentiary or other legal issue affecting the determination of compensation" and provides that the trial court m...

Excerpt: ...e 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.) This case is governed by the F...

Excerpt: ...e and serve opposition to plaintiff's Request for Pretrial Discovery Conference. Plaintiff had filed her request with the court on September 27, 2022, and served it on defendant by email that same day. Thus, per The Fresno Superior Court Local Rules, rule 2.1.17A.2, defendant had until Tuesday, October 4, 2022 (five court days) to file and serve its opposition. No opposition was filed, and on October 11, 2022, the court issued an order noting def...

Excerpt: ...ng party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, is not only error but an abuse of discretion." (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) California Rules of Court, Rule 3.1324 provides that a motion to amend must: (1) include a copy of the proposed amendment, (2) state what allegations in...

Excerpt: ... will run from service of the order by the clerk. All new allegations shall be in boldface type. Explanation: First Cause of Action — Disability Discrimination Defendants attack this cause of action on the ground that that plaintiff does not allege that she suffered from a qualifying disability — the hand injury does not constitute a qualifying disability. Specifically, plaintiff alleges that she suffered a "hand injury" while on the job, and...

Excerpt: ...iscovery moot in light of striking defendant's answer. To deny the requests for monetary sanctions. Explanation: Corporations may not represent themselves before the court in propria persona, nor can corporations represent themselves through their officers, directors, or any other employee who is not an attorney. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) Corporations must be represented by an appropriately l...

Excerpt: ...stigation reports created by the defendant or its risk management department with the dominant purpose of preparing for anticipated litigation are subject to the attorney-client privilege. "Where, as here, a corporate employer requires that employees make a report, the privilege of that report is determined by the employer's purpose in requiring the report. When the corporate employer has more than one purpose in requiring the report, the dominan...

Excerpt: ...ial Notice All evidentiary objections to the Declaration of Leigh Ann Ruijters are sustained based on lack of foundation to support personal knowledge of the declarant. Code of Civil Procedure section 2009 generally authorizes the use of affidavits and declarations in motion proceedings, creating an exception to the hearsay rule and rendering them potentially admissible as evidence. However, declarations must still be based on personal knowledge ...

Excerpt: ...order determining faith settlement. To find that the settlement Plaintiffs and Cirks Construction, Inc. is in faith. To deny without prejudice, the motions for order determining good faith settlement of Lazy Dog Restaurants, LLC, LDR Holdings, LLC, Villagio Shopping Center, LLC, and Manco Abbott, Inc. Explanation: "Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall ...

Excerpt: ...d, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: (1) An agreement that by its terms is not to be performed within a year from the making thereof." (Civ. Code, S 1524, subd. (a)(l).) Thus, "[aln oral agreement that by its terms is not to be performed within a year from the making thereof is invalid." (Gressley v. Williams (1961) 193 Cal.App.2d 636, 640, internal c...

Excerpt: ...sel of record are reminded that "[al person permitted to appear as counsel pro hac vice under [California Rules of Court, rule 9.40] is subject to the jurisdiction of the courts of this state with respect to the law of this state governing the conduct of attorneys to the same extent as a licensee of the State Bar of California. The counsel pro hac vice must familiarize himself or herself and comply with the standards of professional conduct requi...

Excerpt: ...he minute order by the clerk. Explanation: On December 16, 2021, this court sustained defendant's demurrer to plaintiff's original complaint, with leave to amend, except that leave to amend was not granted to state a petition for a writ of mandate. The court found that, among other things, the original complaint failed to state facts to support the purported causes of action for workplace discrimination and retaliation. On December 27, 2021, plai...

Excerpt: ...of express and implied warrantes concerning this vehicle underthe Song-Beverly Consumer Warranty Act (Civ. Code, SS 1790, et seq.). Nissan moves to compel plaintiff to arbitrate these claims based on the Retail Installment Sales Contract ("RISC") she signed when she purchased the subject vehicle. Evidentary Objections Plaintiff's evidentiary objections are overruled. As defendant correctly argues on reply, the party moving to compel arbitration d...

Excerpt: ...nitive damages allegations against defendants pursuant to Code of Civil Procedure section 425.13. Code of Civil Procedure section 425.13, subdivision (a), prov-des, In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to ...

Excerpt: ...proval of the proposed settlement. 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 pro#r. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T. R. Westlaw, 2017) Section 7:3: "The parties' representation of an uncontested motion for class cer...

Excerpt: ... order by the clerk, the DPSS shall produce all documents responsive to the subpoena served on August 29, 2022, with social security numbers and third party identities redacted. To deny the motion to compel plaintiff to sign an authorization for the release of records. To deny all requests for sanctions. Explanation: Motion to Compel DPSS to Comply with Subpoena Defendant issued a subpoena for plaintiff's employment and medical records from the A...

Excerpt: ...d from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1045 of the Evidence Code." Evidence Code secton 1043 requires a noticed motion which identifies the records sought, and "affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating...

Excerpt: ...h a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appr...

Excerpt: ... replacement of the vehicle or reimbursement of the purchase price paid for the vehicle, specifically paragraph 34 and the prayer on page 10, paragraph A, are striken without leave to amend. The motion to strike the prayers for attorneys' fees and costs is denied. Explanation: Demurrer Toyota demurs to the second cause of achon for violation of the Magnuson-Moss Warranty Act ("MMWA") on the grounds that the First Amended Complaint ("FAC") fails t...

Excerpt: ...d cause of action, with leave to amend, as directed in the explanation below. Plaintiff is granted 10 days' leave to file the First Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Quiet Title Plaintiff concedes that there is no cause of action stated in the complaint for quiet title. Thus, all defendants are demurring to is surplusage in the compl...

Excerpt: ...uest for treble damages and attorney's fees pursuant to Penal Code section 495. (Cal. Rules of Court, Rules 3.1WJ, subd. (a)(l); Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 257, 288.) [Although no evidence relating to liability is necessary for a prove-up hearing, evidence establishing a prima facie case for damages is required.] By defaulting, cross-defendant admits liability for the debt or obligation on all well pled causes of actio...

Excerpt: ..., sixth and eighth causes of action. To overrule the demurrer for uncertainty. (Code Civ. Proc. S 430.10, (f).) To deny the motion to strike the allegations for punitive damages in paragraphs 79 and 96. The moton to strike paragraph 85 from the second cause of action is moot in light of the ruling sustaining the demurrer to the second cause of action. Plaintiff may file and serve a Second Amended Complaint. Such must be done within 10 days of the...

Excerpt: ...before May 9, 2023, plaintiff must file supplemental declarations correcting the problems noted below. Explanation: There are numerous technical problems with this motion and supporting papers, which prevent the court from considering the merits. First, both the Settlement Agreement (Bolce Dec„ Exhibit A) and the "Notice of Class Action Settlement" (ld., Exhibit 8) are missing pages, and there are no signatures showing on the Settlement Agreeme...

Excerpt: ...ased risk that the named plaintiffs and class counsel will breach the fiduciary obligations they owe to the absent class As a result, such agreements must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court's approval as fair." (Koby v. ARS National Services, Inc. (9th Cir. 2017) 846 F. 3d 1071, 1079.) "[l]n the final analysis it...

Excerpt: ...cton. There, she was placed on a gurney and was given an injection that she was told would make her drowsy. While still on the gurney, plaintiff was moved to a different hall way and was placed under the care of a male nurse, the moving defendant Freddie Rodriguez ("defendant"). Plaintiff alleges that defendant said he would take care of her and "help her with whatever she needed while addressing her in an overly friendly manner." (TAC, '1 5.) Pl...

Excerpt: ...l Prmædure section 473, subdivision (b), prov-des for discretionary relief from a default or default judgment that has been entered due to mistake, surprise, inadvertence, or excusable neglect. Civ. Proc. S 473, subd. The party seeking relief must bring his or her moton 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...

Excerpt: ...), and Request for Production of Documents (Set One). Plaintiff Novalee Solis is ordered to serve verified responses, without objections, to defendant within 30 days of service of the minute order by the clerk. To grant defendant Walmart, Inc.'s request to deem Requests for Admissions admitted. The truth of the matters specified in the Requests for Admissions, Set One, are to be deemed admitted unless plaintiff Novalee Solis serves, before the he...

Excerpt: ...f's moton to compel further responses to request number 30. Defendant Kings Canpn Unified School District ("the District") shall provide further responses and produce all relevant documents in substantial compliance with Code of Civil Procedure sections 2031.210, 2031.220 and 2031.240, within 30 days of service of the order by the clerk. Explanation: Under Code of Civil Procedure, section 2025.450, subdivision (a), If, after service of a depositi...

Excerpt: ...issue or any part thereof shall precede the trial of any other issue or any part thereof in the case...." (Code Civ. Proc„ S 598.) Similarly, Code of Civil Procedure section 1048 provides that "[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expediton and economy, may order a separate trial of any cause of acton...or of any separate issue or of any number of causes of action or issu...

Excerpt: ...ation providing for this on or before May 3, 2023, together with the declarations from each party required by this subdivision. Civ. Proc., S 437c, subd. (t)(1)(A)(i) and (ii).) he stipulation must specify that the issue to be adjudicated is: "Did the PAGA claim survive the plaintiff's death, or did it abate, and if it abated, have defendants waived the issue?" The stipulation must also provide that the parties expressly waive the requirements fo...

Excerpt: ...sciences Institute, Inc. ("UNI"), and Joyce Fields-Keene (collectively, "CCFMG Defendants"). (Code Civ. Proc„ S 430.10, subd. (e).) To deny Scott Wells' motion for judgment on the pleadings as to the fourth cause of action. To grant his motion for judgment on the pleadings as to the third cause of action, with plaintiff granted 10 days' leave to file a Second Amended Complaint. The time in which such amended pleading may be filed will run from ...

Excerpt: ...te an auto repair business, with the oral agreement being that even though title would be taken the Morenos' names, plaintiff would make the payments on the property (mortgage, insurance, taxes, and maintenance), and the Morenos would just "hold title" in their name for plaintiff's convenience. This alleged agreement (the "Moreno Agreement") has spawned two legal action and years of litigation, with this achon commenced in 2016. At one point the ...

Excerpt: ... (APEC). Plaintiff is granted 10 days leave to file a First Amended Cross-complaint, which will run from service by the clerk of the minute order. New language must be set in boldface type. Explanation: Background This action is about a dispute between a general contractor (APEC) and its subcontractor (SLM) over money. After plaintiff SLM filed a Complaint against defendants APEC and American Contractors Indemnity Company over a contractual dispu...

Excerpt: ...an be filed will run from service by the clerk of the minute order. To overrule defendant's moton to strike as to punitive damages. To overrule defendant's moton to strike paragraphs 35 through 70. Explanation: Demurrer Generally 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 caus...

Excerpt: ...endment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citation.] 'In the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial.... Motions to amend are appropriately granted as late as the first day of trial or even during trial if the defendant is ...

Excerpt: ... no later than 20 days from the date of this order, with time to run from the service of this minute order by the clerk. Monetary sanctions in the amount of $510 are ordered in favor of judgment creditor and against judgment debtor. Monetary sanctions are to be paid to Campagne & Campagne, A Professional Corporation, no later than 30 days from the date of service of the minute order by the clerk. Explanation: On February 4, 2022, default judgment...

Excerpt: ...the court's signature within 10 days of the date of service of this order. Explanation: Plaintiff alleges two causes of action against the Clovis Rodeo Association based on general negligence and premises liability. Plaintiff alleges that she went onto the Clovis Rodeo grounds after midnight with a cowboy who was a participant in the rodeo in order to take a picture of a horse. She went into a trailer where the horse was being kept, and the horse...

Excerpt: ...fendant Juan Zaragoza and Martinez, Dieterich & Zarcone Legal Group (formerly known as Chavez Legal Group), jointly and severally, payable within 20 days of the date of this order, with the tme to run from the service of this minute order by the clerk. The matters specified in plaintiff Valerie Valero's Requests for Admission, Set One, propounded on Mr. Zaragoza are deemed admitted, unless Mr. Zaragoza serves, before the hearing, proposed respons...

Excerpt: ...Restoration International DRI, Inc. to Respond to Form Interrogatories, Set One, and Imposing Monetary Sanctions 3) Moton by Plaintiff CVE Contracting Group, Inc. for Order Compelling Defendant Disaster Restoration International — DRI, Inc. to Respond to Request for Production of Set One, and Imposing Monetary Sanctions Tentative Ruling: To grant plaintiff's motion to deem requests for admission admitted. The truth of the matters specified in t...

Excerpt: ...mply with The Superior Court of Fresno County, Local Rules, rule 2.1.5 ("rule 2.1.5"), which causes this court to lose personal jurisdiction over her. Defendant is mistaken. Rule 2.1.5 states: A plaintiff shall serve all named defendants with all pleadings and notices required by these rules or other law, including notice of a Case Management Conference, and shall file proof of service with the court, within sixty (60) days from the date the comp...

Excerpt: ...amend, the plaintiff may amend his or her complaint only as authorized by the court's order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend." (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023, citations omitted.) "It is the rule that when a trial court sustains a demurrer wi...

Excerpt: ...the property, when in fact she has a 4% interest. Also, Charmla has now passed away, so the judgment needs to be corrected to substitute her testate and intestate successors as the property owners in her place. The court does have the power to correct clerical errors in its judgment. (In re Goldberg's Estate (1938) 10 Cal.2d 709, 713- 714.) The court also retained jurisdiction to make further orders as needed to enforce the judgment. (Stipulated ...

Excerpt: ...bitrate." (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) "Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute." (Mendez v. Mid Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) Defendant Nissan North American, Inc. ("Nissan") moves to com#l arbitration of plaintiff's action pursuant to an arbitration clause in a retail installmen...

Excerpt: ...e cause of action for declaratory relief against defendants California Department of Human Resources and Eraina Ortega as Director for the California Department of Human Resources (collectively "defendants"). Plaintiff seeks a judicial declaration of its rights as affected by defendants' interpretation of certain state law. Defendants filed the instant demurrer to the First Amended Complaint ("FAC") on several grounds: (1) the court lack jurisdic...

Excerpt: ...ch pleading will run from service by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Plaintiff is a California non-profit public benefit corporation. To further plaintiff's mission, it provided Santé Health Foundation ("SHF")I with grant funding to stabilize and enhance the delivery of primary care and specialty physician care in the San Joaquin Valley. Plaintiff alleges that the gr...

Excerpt: ...y the pending court proceed-ngs until the arbitration is resolved. (Code Civ. Proc. S 1281.4.) To stay plaintiff's representative PAGA claims pending resolution of the arbitration. Explanation: Under Code of Civil Procedure section 1008, subdivision (a), a party moving for reconsideration of a court order must show that there are "new or different facts, circumstances, or law" that justify reconsideration of the order. (Code Civ. Proc. S 1008, su...

Excerpt: ...asis of the Complaint for damages. Plaintiff brought four causes of action against defendant Nissan North America, Inc., for negligent repair and failure to replace the vehicle. All of the causes of action against defendant comprise alleged breaches of Civil Code, section 1790 et seq. regarding consumer warranties, and fraud by omission that defendant was aware of the various defects to the vehicle but concealed the defects from plaintiff, who wo...

Excerpt: ...rther Responses from Defendants to Requests for Admission, Set One Tentative Ruling: To deny the motion regarding Requests for Admission. To continue the remaining motions to Thursday, May 11, 2023, at 3:30 p.m. in Department 501, to allow plaintiffs counsel to file a supplemental declaration attaching defendants' responses served December 2, 2022, which must be filed no later than May 1, 2023. Explanation: Responses Must Be Attached to Supportin...

Excerpt: ... Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been ...

Excerpt: ...ns against defendant Himanchal Verma in the amount of $500 for failure to serve discovery responses in compliance with the court's July 19, 2022 order. (Code Civ. Proc. SS 2023.030, subd. (a); 2030.300, subd. (e).) Explanation: Court's Motion to Strike the Answer of AC Express, LLC Defendant AC Express, LLC filed an answer to the complaint on August 30, 2021 as a self-represented litigant and, to date, remains without attorney representation. Thi...

Excerpt: ...dly to have been secured by real property (the "Property") sold by Plaintiff to Michael Cornell, deceased spouse defendant Margaret Cornell. Objections Initially, the court notes that it sustains objection number 6 to the Vic Pasnick email, as the document is not authenticated and constitutes hearsay. The remainder of the objections are overruled. Request for Continuance According to Plaintiff's counsel, Plaintiff has been out of the country sinc...

Excerpt: ...termine the appropriate public entity for petitioners' government claims; however, these efforts proved unsuccessful until. Representation on another matter for the driver, Mr. Steele, concluded and in the process of closing out that matter, this matter was inadvertently marked as resolved in the law firm's calendaring system. Counsel discovered this error in September of 2022, four months after the petitioners' claims should have been presented ...

Excerpt: ...planation: Plaintiff is Entitled to an Award of Fees and Costs A prevailing plaintiff under the Consumer Legal Remedies Act (CLRA) is entitled to an award of his or her attorney's fees and costs. Under Civil Code section 1780, subdivision (e), "The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section." (Italics added.) Here, plaintiff is the prevailing party in the CLRA litigatio...

Excerpt: ...ttlement shall be submitted to the agency at the same time that it is submitted to the court." (Lab. Code, S 2699, subd. (i)(2).) The statute does not explain what exactly the trial court should consider when reviewing a proposed PAGA settlement. However, recently the Court of Appeal in Moniz v. Adecco USA, Inc., (2021) 72 Cal.App.5th 56, did provide some guidance. The court explained that "many federal district courts have applied the 'fair, rea...

Excerpt: ...for denial of the moton exists (e.g., fraud, unconscionability, etc.) (Rosenthal v. Great Western Finll Securites 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.) Defendants contend that the alleged arbitration agreement in this case is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. SS 1, et seq. Section 2 of the F...

Excerpt: ...else has to be proven, with admissible evidence, in order for due process concerns to be met. The Due Clause requires that the named plaintiff at all times adequately represent the interests of the absent class (Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 812.) The certification pruess ensures that is the case. This is a basic constitutional requirement which applies to all class actions, federal and state. "Confronted with a request fo...

Excerpt: ...by plaintiffs Richard Gaestel and Cindee Gaestel Lopez (collectively "Trustee Plaintiffs"). In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of achon u...

Excerpt: ..., either through adverse possession, or easement by prescription. The action further seeks declaratory relief regarding the rights and duties of the parties as to the Property. The defaults of each ofthe defendants were previously entered except: (1) the County of Fresno, who has consented to judgment subject to certain reservations; and (2) the DOE defendants remain. The court initially notes that plaintiff's application and proposed judgment fa...

Excerpt: ...'s motion to compel arbitration moot. Explanation: On June 29, 2022, plaintiffs filed the present achon regarding the purchase of a 2020 Chrysler Pacifica, which plaintiffs allege came with certain warranties. Problems with the vehicle ensued which form the basis of the instant complaint for damages. Plaintiffs brought five causes of achon against defendant FCA US, LLC ("FCA"), and one cause of action against defendant Fresno Chrysler Jeep Inc. d...

Excerpt: ...udgment pursuant to the terms of the settlement." It also provides that the parties may request that the court "retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement." (Code Civ. Proc. S 664.6.) Due to the summary nature of the statute authorizing judgment to enforce a settlement agreement, strict compliance with its requirements is prerequisite to invoking the power of the court t...

Excerpt: ...minute order. Given this order, plaintiff's default prove-up, with evidentiary hearing is ordered off calendar as moot. Explanation: Timeliness of Motion to Set Aside Default The court fails to understand plaintiff's argument that the set aside motion was not timely filed (Opposition, p. 5:11). The only basis offered for this, as far as the court can see, is that defendants "unreasonably" waited until after the defaults were entered to seek relie...

Excerpt: ...ject to the moton to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading. (Code Civ. Proc., S 435.5, subd. (a), emphasis added.) In order to obtain an extension of time to file a respo...

Excerpt: ...planation: "An action shall be brought to trial within five years after the action is commenced against the defendant." (Code Civ. Proc., S 583.310.) "An action shall be dismissed by the court on its own motion or on moton of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article." Civ. Proc„ S 583.350, subd. (a).) "The requirements of this article are mandatory and are not s...

Excerpt: ...tal amount of $210 against defendant Maria Mauricio and Martinez, Dieterich & Zarcone Legal Group, jointly and severally, payable within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. To grant and to award monetary sanctions in the total amount of $630 against defendant Jose Luis Garcia Alcala and Martinez, Dieterich & Zarcone Legal Group, jointly and severally, payable within 20 days o...

Excerpt: ...nt 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. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certifi...

Excerpt: ...es of action, for negligence and for declaratory relief. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of university of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. (Barquis v....

Excerpt: ... a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, ...

Excerpt: ...o request 24 without objections within 20 days of the date of service of this order. Any responsive documents shall be unredacted. To deny defendant's motion for sanctions against plaintiff and her counsel. (Code Civ. Proc. S 128.7.) Explanation: Plaintiff's Motion to Compel Further Response: First, to the extent that defendant argues that the court lacks jurisdiction to hear plaintiff's motion because plaintiff's counsel did not timely serve the...

Excerpt: ... "shall not include a cause of action under the Song—Beverly Consumer Warranty Act." (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 929; Code Civ. Proc„ S 473, subd. (a)(l) ["The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend . " Emphasis added.]) The First Amended Complaint shall be filed within ten (10) days from the date of this order. New or different allegations in the First Amended...

Excerpt: ... of the total amount actually paid to the class members, pursuant to Code of Civil Procedure section 384, subdivision (b), so that the judgment can be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before March 12, 2024. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g) states: "Before final approval, the court must conduct...

Excerpt: ...t whom a cause of achon is brought. The Sixth Amended Complaint may be filed within 10 days of service of the order by the clerk. All new allegations shall be in boldface type. Explanation: Judicial Notice It is "well settled" that the court is authorized to consider matters which may be judicially noticed when determining whether a complaint is suffcient to survive a demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Code Civ. Proc. S 430.30,...

Excerpt: ...of his PAGA claim against defendant, and dismiss the representative portion of the PAGA claim. To stay the court action pending the outcome of arbitration. (Code Civ. Proc. S 1281.4) Explanation: under the Federal Arbitration Act ("FAA"), A written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or...

Excerpt: ...will run from service by the clerk of the minute order. Explanation: Demurrer Generally 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 cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of hi...

Excerpt: ...tement of Damages Tentative Ruling: To grant defendant's moton to deem requests for admissions admitted, and to award sanctions in the amount of $430 against plaintiff, payable within 20 days of the date of this order, with the tme to run from the service of this minute order by the clerk. The truth of the matters specified in the Request for Admission, Set One, are to be deemed admitted, unless plaintiff serves, before the hearing, a proposed re...

Excerpt: ...ys of the date of service of this order. All new allegations shall be in boldface. Explanation: First Cause of Action: Plaintiff has not alleged any facts showing how defendants are liable for violating the FDCPA. Plaintiff has not alleged any facts at all with regard to defendants West Coast Capital Group, Inc. or California TD Specialists, or made any attempt to show how they violated the FDCPA. Thus, he has not stated a claim against West Coas...

Excerpt: ...infliction of emotional distressl causes of action. Explanation: Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., S 437c, subd. In moving for summary judgment, a "defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action cannot b...

Excerpt: ...and request for production of documents, set one. (Code Civ. Proc. SS 2030.290; 2031.300.) Plaintiff is deemed to have waived all objections to the discovery requests. (Ibid.) Plaintiff shall serve her verified responses to the discovery requests without objections within 15 days of the date of this order. To grant the defendant's motion for sanctions against plaintiff and her attorney, in the amount of $720. Plaintiff shall pay sanctions within ...

Excerpt: ...deny the motion to consolidate without prejudice. Explanation: Court's Motion to Strike Code of Civil Procedure section 436 provides, in relevant part, "... at any time in its own discretion, a court may granta motion to strike all or any part of any pleading not drawn in conformity with the laws of this state, a court rule, or an order of the court." Code of Civil Procedure section 472 allows that, "[al party may amend its pleading once without ...

Excerpt: ...st Ms. Lo in the first through fifth causes of action are solely based on the allegation that Ms. Lo aided or abetted Dr. Vang in sexually assaulting her. (Complaint, "1 31, 37, 43, 50 and 58.) There is no allegation that Ms. Lo personally participated in the sexual assault, which was allegedly committed by Dr. Vang while he was alone with plaintiff in an examination room. (ld. at 7-19.) The only allegations of the Complaint that identify Lo spec...

Excerpt: ...ent. 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. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93-95.) "Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well-defined community of interest, and (3) that certification will provide substant...

Excerpt: ...wer. The Third Amended Answer shall be filed within thirty (30) days from the date of this order. (Code Civ. Proc., S 437, subd. The new amendments shall be in bold print. Explanation: "[A1 motion for judgment on the pleadings is the functional equivalent of a general demurrer[,]" - particularly when time calculations are involved. (See People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 582, 591-692.) As with the standards applicable to demurr...

Excerpt: ...on: On July 11, 2022, plaintiffs La Daga Investments, LLC and Chure, LLC filed a complaint against defendant Noe Martnez. Rene Esquivel is not a party in the complaint, but he is described as the managing member of both plaintiff entities and the brother-inlaw and friend of defendant. At no point has the acton been amended to include Mr. Esquivel as a party. Code of Civil Procedure section 664.6 provides, in relevant part: If parties to pending l...

Excerpt: ...lass counsel will breach the fiduciary obligations they owe to the absent class members. As a result, such agreements must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court's approval as fair." (Koby v. ARS National Services, nc. (9th Cir. 2017) 846 F. 3d 1071, 1079.) "[lln the final analysis it is the Court that bears the resp...

Excerpt: ...urth causes of action, with leave to amend. To sustain the demurrer to the fifth cause of action, without leave to amend. Plaintiff shall serve and file a First Amended Complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: On June 30, 2022, plaintiff filed suit against defendants California Department of State Hospitals ("CDSH"), Robert Withrow and Brandon Price for five causes...

Excerpt: ...of the date of mailing of this order. Explanation: Plaintiff's first amended complaint fails to allege that she complied with the requirements of the Government Tort Claims Act, and therefore it fails to state any valid causes of action against defendants West Park Elementary School District and Kimberly Vivenzi. "[Government Codel Section 905 requires the presentation of 'all claims for money or damages against local public entities,' subject to...

Excerpt: ...oval, the court must conduct an inquiry into the fairness of the proposed settlement." Subsection (h) states: "If the court approves the settlement agreement after the final approval hearing, the court must make and enter judgment. The judgment must include a provision for the retention of the court's jurisdiction over the parties to enforce the terms of the judgment. The court may not enter an order dismissing the action at the same time as, or ...

Excerpt: ...laint within 20 days of service of the order by the clerk. To deny the moton to strike except as it relates to plaintiffs' claim for relief under Code of Civil Procedure section 1021.4, as to Community Hospital of Central California only. Explanation: In deciding a demurrer, the test is whether the plaintiff has succeeded in stating a cause of action - the court does not concern itself with the issue of plaintiff's possible difficulty or inabilit...

Excerpt: ... Bourn Family LLC's motions to compel for Form Interrogatories—Economic Litigation (Set One), Form Interrogatories—General (Set One), Special Interrogatories (Set One), and Request for Production (Set One). To grant defendant Bourn Family LLC's request to deem Requests for Admissions (Set One) admitted. The truth of the matters specified in the Requests for Admissions are to be deemed admitted unless plaintiff Valerie Gonzales serves, before ...

Excerpt: ...ial fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 5437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) "A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code of Civ. Proc., S 437c subd. (f)(l); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal...

Excerpt: ...r an Order Compelling Plaintiff's Further Responses to Requests for Admission Tentative Ruling: To grant in part defendant's motion to compel plaintiff to provide further responses to Form Interrogatories — General, and order plaintiff to provide further responses to Nos. 2.11(b), 8.5, 8.6, 8.7, 8.8. To deny the motion as to Nos. 2.3, 2.11(a), 8.4, 11.1, 11.2. To grant in part defendant's motion to compel plaintiff to provide further responses ...

Excerpt: ...e at bench on April 9, 2021. "After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable." (Rappleyea v. Campbell, supra, 8 Cal.4th 975, 981 (Rappleyea).) Equitable grounds include extrinsic fraud and mistake. (Ibid.; Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 736 (Aldrich).) Although "the terms 'fraud' and 'mistake' have been given a broa...

Excerpt: ...d settlement. 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. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93-95.) "Class certification requires proof (1) ofa sufficiently numerous, ascertainable class, (2) of a well-defined community of interest, and (3) that certification will provide ...

Excerpt: ...iminary approval of the proposed settlement. 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. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representation of an uncontested motion for...

Excerpt: ...ent can be amended and the distribution of any cy pres funds can be ordered. as to the amount paid to class members must be filed on or before March 5, 2024. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. In addition, there do...

Excerpt: ...me with certain warranties. Problems with the vehicle ensued which form the basis of the instant complaint for damages. Plaintiffs brought seven causes of acton against defendant Nissan North America, Inc. for negligent repair and failure to replace the vehicle. All of the causes of action against defendant comprise alleged breaches of Civil Code, section 1790 et seq. regarding consumer warranties, and fraud by omission that defendant was aware o...

Excerpt: ...od moves for summary judgment, contending that it owed no duty to plaintiff and thus it cannot held liable for negligence. "To establish a cause of action for negligence, the plaintiff must show that the 'defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.' Recovery for negligence depends as a threshold matter on the existence of a legal duty of care." (Br...

Excerpt: ...y of the events leading up to this continuation is as follows: On June 30, 2022, defendant filed a demurrer to plaintiff's original Complaint on the grounds that it failed to state facts sufficient to constitute a cause of action. On August 24, 2022, plaintiff filed the instant motion for summary adjudication and the hearing was originally set for January 25, 2023. On January 18, 2023, the court issued its adopted tentative ruling sustaining the ...