Excerpt: ...Amalgam, and Nwaka, as well as the motion for reconsideration of plaintiff's cross‐motion for summary judgment. (Code Civ. Proc. § 1008, subd. (a); Penal Code § 2601, subd. (d).) Explanation: In Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, the Fifth District Court of Appeal held that the trial court erred when it failed to exercise its discretion in response to the indigent prisoner plaintiff's motion for appointment of counsel in his civil ac...

Excerpt: ...lusak and Cydney Fang. Explanation: Electronic Service: Preliminarily, the court notes that Ms. Glusak and Ms. Fang served their motions by electronic mail. Plaintiff's counsel claims this is improper, yet plaintiff provides a full opposition on the merits of each motion. Any service defects are therefore waived. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 696–698.) Anti‐SLAPP Overview: Code of Civil Procedure section 425.16 provides, “A c...

Excerpt: ...ry judgment order. Explanation: Plaintiff alleges that on December 31, 2016, she was terminated from her employment with defendant Duncan Enterprises. She alleges that she was discriminated against by defendant based upon her gender and age. She also alleges that she was retaliated against and terminated by defendant, for complaining about said violations. The Complaint alleges the following causes of action: (1) violation of FEHA – gender hara...

Excerpt: ...fendant's motion to strike the prayer for punitive damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) To deny defendant's motion to strike the allegations regarding other customers' complaints about defective transmissions. (Ibid.) To deny defendant's motion to strike the allegations set forth in paragraph 77. Plaintiffs shall serve and file their first amended complaint within 10 days of the date of service of this order. All new all...

Excerpt: ... and she has no contacts with the state. (F. Hoffman‐La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 795; Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, 1258.) Therefore, she concludes that the court must quash service of the summons and complaint on her, as well as dismiss the action. “California's long‐arm statute permits a court to exercise personal jurisdiction over a nonresident defendant to the full exte...

Excerpt: ...granted plaintiffs' motion to approve the PAGA settlement in this case. The settlement agreement acknowledged that the treatment of wages as a penalty under PAGA was questionable. In fact, paragraph 4.3 of the settlement agreement states: “Defendants maintain providing wage payments to alleged aggrieved employees under PAGA is contrary to law but have agreed to this for settlement purposes only.” On September 12, 2019, the California Supreme ...

Excerpt: ...d to treat it as such for purposes of discovery. The Court orders that paragraph 3 of the proposed order be stricken, as California courts are barred from finding materials to be confidential based on a stipulation of the parties. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130; Cal. Rules of Court, rule 2.550 et seq.) Further, “[c]ourt records are open to the public unless they are specifically exempted from disclosure by statute or are ...

Excerpt: ...obile Club of Southern California (2008) 42 Cal.4th 1142, 1147.) The fundamental objective of the private attorney general doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565 (Graham).) Under section 1021.5, the court may award attorney fees to (1) a successful party in any action (2) that has re...

Excerpt: ...rrers to the tenth, twelfth, thirteenth, and fourteenth causes of action. Explanation: Breach of Fiduciary Duty (Third Cause of Action) A joint venture is an undertaking between two or more parties to carry out a joint business enterprise for profit. (James v. Herbert (1957) 149 Cal.App.2d 741, 748.) A joint venture exists when: (a) the parties have joint control over the enterprise, even though that control may be delegated; (b) the parties agre...

Excerpt: ...e clerk of the minute order. Explanation:  Second Cause of Action: Bane Act Violations (Civ. Code, § 52.1) Defendant argues this claim is barred because it was not included in plaintiffs' prefiling claim under the Tort Claims Act. There is no dispute that a claim under the Bane Act is not exempt from the claim filing requirements. (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 764.) The issue is the sufficiency of the claim to allow pl...

Excerpt: ...d amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Defendant Martinez demurs to the negligence claims, contending that plaintiffs have not alleged sufficient facts to state a valid claim because they have not alleged that she actually knew that her husband had a propensity to molest children. Defendant contends that, in order to allege the existence of a duty in negligen...

Excerpt: ...evelopment Agency. To grant plaintiff an incentive award of $2,250. To award attorney fees in the amount of $30,000. To order that the parties to lodge a proposed judgment by June 30, 2020, which lists the class certified, that the court retains jurisdiction to enforce the settlement, and enters judgment on the settlement (with the settlement attached thereto). Same need also state that the court determines the amount payable to all class members...

Excerpt: ...First, the appellate court must identify the issue framed by the pleadings. Second, we determine whether the moving party has met its statutory burden of proof. Once the defendant has made such a showing, the burden shifts to the plaintiff to produce evidence that a triable issue of fact exists as to an essential element of the cause of action. The third and final step is to determine whether the opposing party has demonstrated that a triable iss...

Excerpt: ...ove for judgment on the pleadings as to the defamation and intentional infliction of emotional distress causes of action, arguing that plaintiff has not and cannot state valid tort causes of action due to his failure to file a timely tort claim with the Board of Trustees for California State University Fresno. Under Government Code section 911.2, “A claim relating to a cause of action for death or for injury to person or to personal property or...

Excerpt: ...e: To deny terminating sanctions, but to issue evidence sanctions as specified below. (Code Civ. Proc., § 2023.030, subd. (c).) (2) Defendant's Motion for Summary Judgment, or Alternatively for Summary Adjudication: To deny summary judgment. (Code Civ. Proc., § 437c, subd. (c).) To grant summary adjudication of plaintiff's eighth and ninth causes of action of the First Amended Cross‐ Complaint (FACC), and to deny as to the remainder of plaint...

Excerpt: ...t the releases which are the subject of this motion are invalidated. To find that no curative notice is required at this time. Explanation: 1. Findings of Fact The court sustains the objections on the grounds of hearsay to plaintiff's counsel's declaration. The admissible evidence shows defendant's owner appointed an employee to give presentations about a settlement offer to three groups of employees on Christmas Eve 2019, about a month after the...

Excerpt: ... of Civil Procedure section 425.16, which states that, “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 is a probability that the plainti...

Excerpt: ...ion shall be filed on or before 5:00 p.m. on Tuesday, July 21, 2020. Defendants' supplemental reply shall be filed on or before 5:00 p.m. on Thursday, July 30, 2020. Explanation: No Summary Adjudication of the Element of Damages Under Code of Civil Procedure section 437c, subdivision (f)(1), “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for da...

Excerpt: ...ss‐Complaint off calendar because (1) it is moot as to the first and second causes of action in light of the ruling on the good faith settlement motion, and (2) CMC has failed to comply with Code of Civil Procedure section 430.41. Explanation: Good Faith Settlement Motion Fresno Community Hospital and Medical Center, dba Community Regional Medical Center, dba Community Medical Centers (“CMC”) moves for determination that its settlement with...

Excerpt: ...planation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Second Cause of Action – Fra...

Excerpt: ...e 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: Judicial Notice The court may take judicial notice of court records. (Evid. Code § 452(d).) Also, the court may take judicial notice of settlement agreements and arbitration documents. (see Performance Plastering v. Richmond American Homes of California, ...

Excerpt: ... (“Central Valley”) is granted 10 days, running from service of the minute order by the clerk, to file and serve a second amended complaint, amending the fifth cause of action only to address the deficiency noted below. All new allegations in the amended complaint are to be set in boldface type. Explanation: First cause of action The first cause of action alleges that the net profits received by Golden State YMCA (“Golden State”) for its ...

Excerpt: ... Pursuant to the Uniform Electronic Transactions Act, found at Civil Code sections 1633.1 et seq., and Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, as well as the lack of evidence from plaintiff, the Court finds that an agreement to arbitrate exists. 2. Interpretation of Arbitration Agreements Interpretation of contracts is solely judicial function where there is no extrinsic evidence. (Powers v. Dickson, Carson & Campillo (199...

Excerpt: ...signature within 10 days. Explanation: The court intends to grant the motion for summary judgment in favor of defendants NP Brown, Dr. Jose Bautista, and Dr. Luis Bautista, as they have met their burden of presenting expert testimony showing that they did not breach the standard of care and that their acts or omissions did not cause plaintiffs' injuries. “The standard of care in a medical malpractice case requires that physicians exercise in di...

Excerpt: ..., 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 representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (In re Tobacco II Cases (2009)...