Excerpt: ...Explanation: Special Motion to Strike: Code of Civil Procedure section 425.16 provides, “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there ...

Excerpt: ...y adjudication as to all claims alleged against Signal Energy Constructors, LLC. To grant summary adjudication as to vicarious liability only, with regard to Signal Energy, LLC. To deny summary adjudication in all other respects. Explanation: A defendant moving for summary judgment or adjudication has the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co...

Excerpt: ... 437c.) To deny defendants' motion for summary judgment, and the alternative motion for summary adjudication. (Ibid.) Explanation: Plaintiff's Motion for Summary Judgment/Adjudication Initially, to the extent plaintiff has moved for summary judgment or adjudication of its sole cause of action for judicial foreclosure, the motion is problematic because, as plaintiff admits, the Modoc parcel that constitutes the security for the loan has already be...

Excerpt: ...ter Dal Pezzo, on all causes of action, based on lack of standing, with leave to amend; 3) to the extent plaintiffs can sufficiently plead delayed discovery and Mr. Dal Pezzo's standing, to deny the motion as to the two breach causes of action; 4) to grant the motion as to the Consumer Legal Remedies Act (CLRA) cause of action with regard to the LLC plaintiff, Scuderia Dal Pezzo, LLC, without leave to amend; and 5) to the extent plaintiffs can su...

Excerpt: ...ruled. (Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142, 149; Walter E. Heller Western, Inc. v. Tecrim Corp. (1987) 196 Cal.App.3d 149, 158.) The remaining objections to evidence are not material to disposition of the motion. (Code of Civ. Proc. § 437c, subd. (q).) Explanation: Summary Adjudication Summary adjudication is the proper mechanism for challenging a particular, “cause of action, an affirmative defense, a claim for punit...

Excerpt: ...ke, without leave to amend. Defendant Hudson Insurance Company 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: Plaintiff does not oppose the motion to strike the prayer and allegations regarding punitive damages, so it is granted. As for the demurrer for uncertainty, defendant fails to specify what is uncertain about the s...

Excerpt: ...the legal sufficiency of the complaint, raising issues of law regarding the form or content of the pleading. A general demurrer for failure to state a cause of action asks the court to consider whether all essential elements of each cause of action have been alleged. (Code Civ. Proc., §§ 422.10, 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In ruling on a demurrer, the court should construe the complaint liberally “wit...

Excerpt: ...equested documents on or before September 20, 2020. To impose monetary sanctions in the amount of $ 4,950 against defendant Fresno Community Hospital & Medical Center and its attorneys of record, King & Spalding LLP. (Code Civ. Proc., § 2025.450.) Sanctions must be paid to Carpenter Law within 30 days after service of this order. If oral argument is requested, the court will consider the additional costs incurred for plaintiff. Explanation: A pa...

Excerpt: ...1, 620.) California requires admissible proof sufficient to meet the substantial evidence test. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470; Lockhead Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106.) “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 substantial benefits to litigants and the c...

Excerpt: ...d. Should plaintiffs desire to file a Second Amended Complaint, that must be done in 20 days from the date of this order and any new allegations must be in bold print. Explanation: I. Demurrer General Standard of Ruling 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;...

Excerpt: ... be set in boldface type. Explanation: General Standard of Ruling 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 his complaint. (Highlander...

Excerpt: ...l essential elements of each cause of action have been alleged. (Code Civ. Proc., §§ 422.10 and 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In ruling on a demurrer, the court should construe the complaint liberally “with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; Stevens v. Sup.Ct. (API Auto Ins. Services) (1999) 75 Cal.App.4th 594, 601; Perez v. Golden Empire Transit Dist. (2012)...

Excerpt: ... CLASS CERTIFICATION “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 substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class represen...

Excerpt: ...cussed below. (Code Civ. Proc. § 438.) To grant leave to amend. Plaintiff shall file and serve his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. To grant defendants Bank of America and Countrywide Bank's motion for judgment on the pleadings as to the entire complaint. To grant leave to amend as to the first and tenth causes of action, but to deny leave to amend as to the ot...

Excerpt: ...adjudication be deemed to seek summary adjudication of the First Amended Complaint's (“FAC”) seventh cause of action. (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) Plaintiff shall file and serve the First Amended Complaint within 5 days of service of the order by the clerk. To grant SCCCD's motion to compel answers to deposition questions as to question numbers 30‐35 (as set forth in SCCCD's separate statement), and to deny the remainder ...

Excerpt: ...grant monetary sanctions against John Waterman in the amount of $1,460.00, payable within 30 days of the date of this order, with the time to run from the service of this minute order by the clerk. Defendants may re‐notice the deposition at a mutually convenient date and time, and Mr. Waterman shall appear and be deposed. Explanation: As an initial matter, the court notes that defendants Rite Aid Corporation and Thrifty PayLess, Inc. (collectiv...

Excerpt: ...of action five: Summary adjudication is denied as to cause of action five, as it applies to defendant Solorio. Summary adjudication is granted for sexual, gender, and national origin/racial discrimination only, as to Sarama and denied on all other bases. To the extent claims against Kalel, Inc. are derivative, they are granted and denied accordingly. Causes of action six and seven: Summary adjudication is denied. Explanation: Plaintiff alleges th...

Excerpt: ...d. (c); Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1036.) The court intends to find that $2.50 per page is a reasonable rate to charge for the transcript. The court also intends to find that plaintiffs are not required to pay for additional charges such as “litigation packages” and “condensed copies” if they have not requested them. Finally, the court intends to deny the request for attorney's fees and costs...

Excerpt: ... September 10, 2020, in Department 501. To the extent the court compels production of any personnel records to plaintiff, the court will issue a protective order limiting use of the records to the present litigation only, and requiring plaintiff's counsel to return the records to the Attorney General's office upon conclusion of the litigation. Explanation: Under Evidence Code section 1043, subdivision (a), “In any case in which discovery or dis...

Excerpt: ...As that is the only cause of action asserted against Eduardo, plaintiff is entitled to judgment against Eduardo in the sum of $8,697,330.08, plus 10 percent interest (UMF No. 10), accruing at the rate of $2,382.83 per day. (Code Civ. Proc., § 437c.) Plaintiff shall submit a proposed judgment consistent with the court's summary adjudication order within five (5) days of service of the order by the clerk. Explanation: I. Relevant Facts Plaintiff i...

Excerpt: ...�Beverly Act “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).) The statute “requires the trial court to make an initial determination of the...

Excerpt: ...0(a)(1), 3) testing is limited to the tests described in Amended Notice for the June 8, 2020 date, 4) the exam is limited to eight hours, and 5) that the exam be completed by October 31, 2020. To deny sanctions. Explanation: An independent mental examination “is the only procedure as to which a court order is still required before commencing discovery. Notice and hearing are deemed essential to protect against unreasonable examinations and to s...

Excerpt: ...ntiff Nevarez. 2. Defendant Is the Prevailing Party Case law makes clear that dismissal under the five‐year statute does not affect prevailing party status under the catalyst theory. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553; Maria P. v. Riles (1987) 43 Cal.3d 1281.) However, the catalyst theory does require a showing that the party advancing it made reasonable attempts to settle the litigation before filing suit. (Tipton–Whittin...

Excerpt: ...ayte & Carruth, LLP's (“McCormick Barstow”) Motion: To deny the motion to compel further responses to Request for Admissions (“RFA”). To grant the motion to compel further responses to Form Interrogatory no. 17.1 as to RFA nos. 35‐43, 45‐51, 53‐83, 86‐99, 100‐108; otherwise deny. To impose monetary sanctions against plaintiff Ted Switzer and in favor of the moving party in the sum of $1,485. Gordon M. Park, Dana B. Denno and Ire...

Excerpt: ...dant “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If defendant meets this burden, then the burden of production shifts to plaintiff “to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) Summary adjudication is the proper mechanism for challenging a par...