Excerpt: ...e to amend as to the claim alleged under the Information Practices Act only. Any amended pleading must be filed within 30 days of the hearing. Plaintiff is allowed to appear through Court Call. Explanation: The Court incorporates its ruling of November 19, 2019. The demurrer on the ground of Code of Civil Procedure section 430.10, subdivision (d), is sustained for the same reasons it was sustained last time. Plaintiff's First Amended Complaint (F...

Excerpt: ...128.7, a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440, citation omitted; see Musaelian v. Adams (2009) 45 Cal.4th 512, 519 [purpose of §127.8 is to deter filing abuses].) “A claim is factually frivolous if it is not well grounded in fact and is legally f...

Excerpt: ...s sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To deny the motion to strike punitive damages; and to grant the motion to strike the prayer for attorney's fees. Explanation: Demurrer to First Cause of Action: “The elements of fraud are: (a) misrepresentation; (b) knowledge of falsity (scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. Fraud action...

Excerpt: ...tion: A motion to strike can be used to cut out any “irrelevant, false or improper” matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b); see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164 [A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint.].) With respect to ...

Excerpt: ...take the plaintiff's deposition. The court will decide the amount of attorney fees to be awarded upon defendant's noticed motion. Explanation: In determining a motion to withdraw an admission, the court considers: “(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276; Huh v. Wang (2007) 158 C...

Excerpt: ...urally defective in two respects. First, none of the exhibits supporting the motion are authenticated. Maria Lampasona in her declaration purports to authenticate around 18 exhibits attached to her declaration. But the declaration includes no exhibits or attachments. SCCCD separately filed a volume of evidence, but the declaration does not reference such a filing. None of the exhibits are actually authenticated. Second, and most significantly, th...

Excerpt: ... and the federal court denied the motion as to the state law claims. (See Defendants' Exhibit U, Order of United States District Court for the Eastern District of California dated August 30, 2017.) In its order, the District Court expressly found that there were triable issues of material fact with regard to the state law wrongful death cause of action, and thus denied summary adjudication of that claim. (Order, pp. 21:19 ‐ 22:23.) The District...

Excerpt: ... Foster Farms' motion for summary judgment. Defendant Foster Farms is directed to submit to this court, within 5 days of service of the minute order, a judgment consistent with the court's order. Explanation: In the case at bar, plaintiff alleges six causes of action: (1) discrimination on the basis of race/nationality and disability in violation of the FEHA; (2) failure to provide reasonable accommodations [FEHA]; (3) failure to engage in intera...

Excerpt: ...mended 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: 1. Judicial Notice The court takes judicial notice of the recordation of the requested documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) 2. Demurrer The function of a demurrer is to...

Excerpt: ...meet and confer requirements of Code of Civil Procedure sections 430.41 (demurrer) and 435.5 (strike). The court grants defendant twenty days within which to comply with the statutes. Defendant must meet and confer “in person or by telephone” with plaintiff, “at least five days before the date” the demurrer and/or motion to strike is due, regarding the issues raised by the demurrer and motion to strike, or attempt to do so and provide suf...

Excerpt: ... Practices Act only. Any amended pleading must be filed within 30 days of the hearing. Oral argument for this matter at 3:30 p.m. on May 7, 2020 in this Department. Plaintiff is ordered to appear through Court Call. Explanation: The Court incorporates its ruling of November 19, 2019. The demurrer on the ground of Code of Civil Procedure section 430.10(d) is sustained for the same reasons it was sustained last time. Plaintiff's FAC rests a claim u...

Excerpt: ...nsideration being paid for the release of those claims represents a reasonable compromise.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 133.) In Clark v. American Residential Services, LLC (2009) 175 Cal. App. 4th 785, the Court of Appeal stated that, “[the] court [must] receive and consider sufficient information on a core legal issue, affecting the strength of the case for plaintiffs on the merits, to make the requisit...

Excerpt: ...ich must state whether the inspection will be allowed, pose objections, or represent that responding party is unable to permit the inspection. Code of Civil Procedure section 2031.210 and 2031.220. That response has to be under oath. Code of Civil Procedure section 2031.250. The response is due in 30 days from service of the demand for inspection. Code of Civil Procedure section 2031.260. Failure to provide a timely response usually results in a ...

Excerpt: ... wage statements in violation of Labor Code section 226(a), (2) failure to provide meal and rest periods or compensation in lieu thereof in violation of Labor Code sections 226.7 and 512, and (3) constructive discharge in violation of public policy. The second and third causes of action are individual causes of action for plaintiff only, and are not brought on behalf of other aggrieved employees. Because an aggrieved employee's action under the [...

Excerpt: ...drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, trial courts usually follow a three‐step analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movan...

Excerpt: ...t itself states the following: By virtue of Resident's consent, instruction and/or durable power of attorney, I hereby certify that I am authorized to act as Resident's agent in executing and delivering of this arbitration agreement. I acknowledge that the Facility is relying on this representation. However, defendant bore the burden of establishing a valid agreement to arbitrate. (Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 3...

Excerpt: ...d the requests for admission. To order monetary sanctions in the amount of $385, payable by plaintiff to defense counsel within 30 days of the date of service of this order. Explanation: Motion to Compel Responses to Interrogatories “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: [¶] (a) The party to whom the interrogatories are directed waives . . . any objection to the interrogato...

Excerpt: ...the settlement.” (Code Civ. Proc., § 664.6.) When deciding whether to enter judgment pursuant to section 664.6, the court is empowered to conduct a mini trial on the enforceability of the settlement agreement. Courts may adjudicate disputed facts and “entertain challenges to the actual terms of the stipulation.” (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566 [statute's express authorization for trial courts to determine if a settlement oc...

Excerpt: ...entered by Plaintiff Arcarius, LLC, on two grounds: first, that because the foreign state judgment was based on a confession of judgment it violates Due Process; and, second, Plaintiff's use of the confession of judgment was “premature and wrongful,” because Defendants were not in default at the time of the entry of judgment. Defendants also appear to make an argument that they were not afforded “service of process, notice and a right to be...

Excerpt: ...f this minute order. Explanation: A motion to strike can be used to cut out any “irrelevant, false or improper” matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166...

Excerpt: ... proposed amended judgment consistent with the court's order. Explanation: Every case may only have one final judgment. Generally, in order to be considered “final,” a judgment must adjudicate the claims asserted in both a complaint and cross‐complaint. (Nicholson v. Henderson (1944) 25 Cal.2d 375, 381.) Here, Left Coast seeks dismissal of the cross‐complaint, so that it may have one final judgment. This court is inclined to grant Left Co...

Excerpt: ...s now dismissed those claims with prejudice. (Ibid.) To deny the CDCR's motion as to the fourth cause of action, as moot since that cause of action has been dismissed with prejudice. (Ibid.) To grant the CDCR's motion as to the first, second, third, and fifth causes of action, and McElroy's motion as to the fifth cause of action. (Ibid.) Defendants shall submit a proposed judgment consistent with this order for the court's signature within 10 day...

Excerpt: ...he alternative motion for summary adjudication. (Code Civ. Proc. § 437c.) To grant defendant Dycora's motion for summary judgment as to the entire complaint. (Ibid.) Dycora shall submit a proposed judgment consistent with the court's order within 10 days of the date of this order. Explanation: Beverly Healthcare's Motion: Beverly argues that plaintiff lacks the capacity to sue and has no attorney, conservator, or guardian ad litem, and therefore...

Excerpt: ...tiff's motion for summary judgment from June 2, 2020 to July 19, 2020 at 3:30 p.m. in Dept. 502. If defendant desires to move for summary adjudication, or summary judgment concerning the new eighth and ninth causes of action, it may do so in two ways. It may file a Supplemental Notice of Motion, Memorandum of Points and Authorities, Separate Statement, and any new evidence, relating to the eighth and ninth causes of action only, to be heard on Ju...

Excerpt: .... (e), (f).) To grant defendants' motion to strike portions of the complaint, in part, and deny, in part, as discussed below. (Code Civ. Proc. §§ 435, 436.) To grant leave to amend. Plaintiff shall serve and file his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: Plaintiff has failed to allege any facts showing that he complied with the Government Tor...