Excerpt: ... subd. (e).) Plaintiff is granted 10 days' leave to file the Second 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 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...

Excerpt: ...f Civ. Proc., §§ 435, 436.) Plaintiff is granted 10 days' leave to file the second amended complaint. The time in which the complaint can be amended will run from the date of service by the clerk of the minute order. New allegations in the second amended complaint are to be set in boldface type. Explanation: Demurrer The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (19...

Excerpt: ...ed judgment dismissing the claims against her within 10 days of the date of this order. Explanation: In its ruling on a prior demurrer, the court held that plaintiffs had failed to state sufficient facts to support their negligence claims against Martinez, as they had not alleged any facts showing that Martinez actually knew that her husband had a propensity to molest children. Instead, plaintiffs only alleged that defendant “knew or should hav...

Excerpt: ...o comply with Code of Civil Procedure section 1008, which governs motions for reconsideration. Section 1008 states that, When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstanc...

Excerpt: ...rst cause of action for disability or medical condition discrimination, arguing that plaintiff cannot meet her prima facie burden of showing that she was terminated because of her medical condition or disability. FEHA provides, in relevant part, that it shall be an unlawful employment practice for an employer, because of the physical disability or medical condition of any person, to refuse to hire or employ the person or to bar or to discharge th...

Excerpt: ... is the same for each cause of action, since they are based on the same underlying facts. A SLAPP suit (Strategic Litigation Against Public Participation) is a suit brought “primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) The provisions of the anti‐SLAPP statute are to be construed broadly in order to safeguard the constitut...

Excerpt: ...f Rights, which is granted without leave to amend. Defendant is granted 10 days' leave to file its answer to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer The Complaint alleges sufficient facts for a cause of action for Elder Abuse and Neglect if the plaintiff shows: (1) Defendant had a responsibility for meeting the basic needs of Plaintiff; (2) Defendant kn...

Excerpt: ...f Rights, which is granted without leave to amend. Defendant is granted 10 days' leave to file its answer to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer The Complaint alleges sufficient facts for a cause of action for Elder Abuse and Neglect if the plaintiff shows: (1) Defendant had a responsibility for meeting the basic needs of Plaintiff; (2) Defendant kn...

Excerpt: ...nation: Motion to Quash Service of Summons A summons is issued by the clerk upon request by the plaintiff. (Code of Civ. Proc., § 412.10; Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1107.) Proper service of summons is required to establish personal jurisdiction over a party. (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547.) The plaintiff bears the burden to prove effective service where the defendant properly moves to quash service...

Excerpt: ...the motion on the plaintiff. The proof of service indicates that the notice of motion and supporting documents were served on plaintiff by mail at 9720 Zelzah Avenue, Apartment 207 in Northridge California. However, plaintiff's address of record with the court is 17730 Lassen Street, Apartment 123 in Northridge. Since the address on the motion proof of service does not match the address of record with the court, it does not appear that plaintiff ...

Excerpt: ...answer to the second amended complaint within ten (10) days of the date of service of this order. Explanation: Demurrer: Defendant demurs generally and specially to the twenty‐eighth cause of action in the second amended complaint, contending that there are no facts alleged to show that defendant engaged in any unlawful, fraudulent, or unfair conduct, and that the entire cause of action is uncertain because it fails to allege which statutes or ...

Excerpt: ...tion to strike is granted, in part. (Code of Civ. Proc., § 436, subd. (b).) Plaintiff is granted leave to amend to include future plaintiffs who become eligible for relief. Explanation: Demurrer 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' ...

Excerpt: ...436.) To grant leave to amend. Plaintiffs would be granted 10 days' leave to file a Second Amended Complaint. The time in which such pleading can be amended will run from service by the clerk of the minute order. New allegations in the Second 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. (Plum...

Excerpt: ...le of Court 3.1382. Under Rule 3.1382, “The notice of motion or application for determination of good faith settlement must list each party and pleading or portion of pleading affected by the settlement and the date on which the affected pleading was filed.” (Italics added.) The language of the rule is mandatory, so failure to comply with its requirements can support denial of the motion to determine a good faith settlement. Here, Vasquez's n...

Excerpt: ...des evidence at the hearing that the LWDA has been served with the settlement agreement and motion for approval, then the court intends to approve the settlement. Explanation: 1. Introduction Under Labor Code section 2699, subdivision (a), the Private Attorneys General Act of 2004 (“PAGA”), “Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and ...

Excerpt: ...urth Amended Complaint. (Code Civ. Proc. § 437c.) Explanation: First of all, plaintiff Peter Farrington's claims against CCMC are time‐barred. Under Code of Civil Procedure section 340.5, In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or throu...

Excerpt: ... owes on his accounts. With regard to the breach of contract cause of action, the elements of a contract claim are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) resulting damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Here, plaintiff's evidence shows that the parties entered into a series of contracts starting in 1991 and ending with a revised...

Excerpt: ...bor Standards Act (“FLSA”) in the settlement, and denied preliminary approval because such were not met. Those rulings are incorporated herein for reference. The problem language from the prior settlements was removed, and preliminary approval was given to the current proposed settlement. However, in reviewing the settlement for this final approval motion, the Court finds that four lines purporting to lay FLSA claims to rest are included. (Ex...

Excerpt: ...s legally entitled to judgment on the basis of the facts presented. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416; Kulesa v. Castleberry (1996) 47 Cal.App.4th 103.) Moving party must demonstrate that the opposing party does not have and cannot reasonably obtain evidence to raise factual or legal issues with regard to matters raised in the pleadings. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 854.) Evidence is ...

Excerpt: ... breach of oral or implied contract, and the third cause of action for breach of the implied covenant of good faith and fair dealing on the ground that plaintiff's employment was at‐will, and therefore they had the right to fire him at any time with or without cause. However, there are triable issues of material fact as to whether plaintiff was an at‐will employee, or whether he had a partly written and partly oral agreement to work for defen...

Excerpt: ...mount of $1,060. (Code Civ. Proc. § 2017.020, subd. (b).) Plaintiff shall pay monetary sanctions to defendant within 30 days of the date of this order. Explanation: Under Code of Civil Procedure section 2017.020, “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence...

Excerpt: ...alleged rental use of the property. Explanation: Reconsideration of Service by Publication Order Inadequate service violates constitutional due process requirements of notice and a reasonable opportunity to be heard. (Brown & Weil, Civil Procedure Before Trial, section 4:4, citing Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314: “The means employed must be such as one desirous of actually informing the defendant might reaso...

Excerpt: ...llate attorney fees unless the statute specifically provides otherwise.” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.) Accordingly, “[s]ince [Code of Civil Procedure] section 425.16, subdivision (c) provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees by a prevailing defendant‐respondent, those fees are recoverable.” (Dove A...

Excerpt: ...n must establish three things: (1) the existence of an ascertainable and sufficiently numerous class; (2) a welldefined community of interest; and (3) substantial benefits from certification that render proceeding as a class superior to the alternatives. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) Whether the Class is Sufficiently Numerous and Ascertainable. A class is required to be ascertainable in order to give p...

Excerpt: ... “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) Here, it is clear that pla...