Excerpt: ...t. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable...

Excerpt: ...n, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” [Citation.]'” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) “Whe...

Excerpt: ...e Company, the workers compensation carrier for Mendez's employer served a joint statutory offer to compromise. They sought $990,000 in full satisfaction of Mendez's claims and that of the insurer. The offer stated that the funds “shall be subsequently divided by Plaintiffs upon receipt. Defendants argue that the offer was not made in “good faith” because the workers compensation carrier was seeking only $65,489.37 for reimbursement of the ...

Excerpt: ...osition to this motion appears in the Court's files. Code of Civil Procedure section 387 allows a non‐party, “upon timely application” to intervene in an action where “(A) a provision of law confers an unconditional right to intervene” or “(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may...

Excerpt: ...time of the assignment and therefore had no right to recover. The case cited for that proposition is Doser v. Middlesex Mutual Ins. Co. (1980) 101 Cal. App. 3d 883, 890. In Doser, assignees of an estate's cause of action for bad faith of an insurance contract. The alleged bad faith arose out of the insurer's alleged failure to settle a wrongful death claim brought by the decedent's heirs. The estate administrator executed an assignment of the cla...

Excerpt: ...ays of the date of service of this order. All new allegations shall be in boldface. Explanation: Under Code of Civil Procedure section 430.10, “The party against whom a complaint or cross‐complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: .. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is un...

Excerpt: ...may be imposed: 1) an enactment must impose a mandatory duty, not a discretionary or permissive one; 2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting §815.6 as a basis for liability; and 3) breach of the mandatory duty must be a proximate cause of the injury suffered. (State of California v. Superior Court (1984) 150 Cal.App.3d 848, 854; County of Los Angeles v. Superior Court (2002) 102 ...

Excerpt: ...r can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In her fourth amended complaint, plaintiff pleads a single cause of action for breach of contract. Among other arguments, Defendant argues that the claims are barred by the statute of limitations. In the Fourth Amended Complaint, Plaintiff all...

Excerpt: ...12.1 The interrogatory seeks identification of witnesses or persons with knowledge of “the INCIDENT.” Plaintiff defined “INCIDENT” as follows: INCIDENT includes the circumstances and events: (1) alleged in PLAINTIFF's Complaint; (2) giving rise to this action or proceeding; and/or (3) surrounding the alleged: 1. DISCRIMINATION BASED ON DISABILITY IN VIOLATION OF GOVERNMENT CODE SECTION 12940 (a) 2. FAILURE TO PROVIDE REASONABLE ACCOMM...

Excerpt: ...er Brittany Goto's house (“the incident”). Defendant is Goto's father, and for almost a year prior to the incident, Merlin lived at defendant's while Goto lived elsewhere. Defendant's liability depends on whether he was either an owner of Merlin, or a keeper with knowledge of Merlin's viciousness. Civil Code section 3342 provides that an "owner of any dog is liable for the damages suffered by any person who is bitten by the dog ... regard...

Excerpt: ...burden of proof. Triable issues of material fact exists as to the type of shoe that the Plaintiff was wearing at the time of her fall and as to its cause. See infra for evidence in support of this finding. Explanation: Purpose of Summary Judgment Summary judgment law turns on issue finding rather than issue determination. (Diep v California Fair Plan Ass'n (1993) 15 Cal.App.4th 1205, 1207.) The court does not decide the merits of the issues, ...

Excerpt: ...are liberally construed. (Huynh v. Ingersoll‐Rand (1993) 16 Cal.App.4th 825, 830.) “[A]ny doubts as to whether summary judgment is proper should be resolved against the moving party.” (Buehler, supra, 17 Cal.3d at p. 526.) “When the meaning of the language of a contract is doubtful or uncertain and parol evidence is introduced in aid of its interpretation, the question of its meaning is one of fact. […] In such circumstances it is the p...

Excerpt: ...t need rule only on material objections.) To overrule all of defendants' evidentiary objections. Explanation: The court disregards defendants' “response” to plaintiff's additional facts, filed on May 10, 2019, as the summary judgment statute does not provide for this response. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 248.) Evidentiary Objections  Plaintiff's Objections Plaintiff is correct that a declaration supporting a...

Excerpt: ...ile and serve a Third Amended Complaint, addressing the issues noted by the Court below, if they can. All amended allegations are to be set forth in boldface typeset. Explanation: Defendant Dr. Kuldeep Gill has (“Defendant Dr. Gill”) filed a demurrer as to the Fifth Cause of Action for Fraud. Defendant Clovis Community Hospital (“Defendant Hospital,” or “Fresno Community”) has filed a demurrer to the First Cause of Action for Fraud, t...

Excerpt: ...posed order by certified mail, return receipt requested, or by personal service. (Civ.Proc. §877.6, subd.(a)(2).) Then the proof of service must be filed with the Court. (Id.) This motion was served by E‐ Service and not by the specific service requirements of section 877.6. Barring an express waiver of that requirement, the motion must be denied without prejudice for failure to comply with the service statute. Moreover, even on the merits, th...

Excerpt: ...cause of action as to which defendants seek summary adjudication, and therefore they are defective. (Cal. Rules of Court, Rule 3.1350.) However, while the notice of motion does not set forth each separate cause of action that defendants seek to adjudicate, it does state that defendants are seeking summary judgment as to the entire complaint and each separate cause of action. The separate statement also includes facts for each of the individual ca...

Excerpt: ...endens, as the lis pendens was never served on her as a party claiming an adverse interest in the property and the second amended complaint fails to allege any real property claims. (Code Civ. Proc. §§ 405.4; 405.23; 405.30.) To grant McKissen's request for reasonable attorney's fees and costs against plaintiff, in the amount of $2,434.90. (Code Civ. Proc. § 405.38.) Plaintiff shall pay sanctions to McKissen within 30 days of the date of servi...

Excerpt: ...he complaint “(3) [a]fter a motion to strike the whole of a complaint is granted without leave to amend and either party moves for dismissal.” (Code Civ. Proc., § 581, subd. (f)(3).) Here, on April 18, 2019, this court granted defendants' motion to strike plaintiffs' first amended complaint in its entirety, without granting leave to amend. Therefore, defendants' request that this court now dismiss this case is granted pursuant to Code Civil ...

Excerpt: ...laintiff, as only a defendant has standing to move for a change of venue based on the action being filed in the wrong court. (Code Civ. Proc. §§ 395, subd. (a); 396a, subd. (b).) Plaintiff shall pay all fees and costs for transfer of the action to Kern County within 30 days of the date of service of this order. (Code Civ. Proc. § 399, subd. (a).) Explanation: Plaintiff moves to transfer the action from Fresno County to Kern County, contending ...

Excerpt: ...laintiff, as only a defendant has standing to move for a change of venue based on the action being filed in the wrong court. (Code Civ. Proc. §§ 395, subd. (a); 396a, subd. (b).) Plaintiff shall pay all fees and costs for transfer of the action to Kern County within 30 days of the date of service of this order. (Code Civ. Proc. § 399, subd. (a).) Explanation: Plaintiff moves to transfer the action from Fresno County to Kern County, contending ...

Excerpt: ...50, subdivision (a), provides for a motion to compel a deponent's attendance and testimony where the responding party fails to appear for deposition. However, where the deponent fails to attend her deposition, a motion to compel attendance must be accompanied by a declaration stating that the attorney for the moving party has contacted the deponent to inquire about her nonappearance. (Code Civ. Proc. §2025.450(b)(2).) Implicit in this statute is...

Excerpt: ...to the fifth sixth, eleventh, and twelfth causes of action. To overrule the demurrer to the third, seventh, eighth, ninth, and thirteenth causes of action. A Second Amended complaint shall be filed and served within 10 days of the clerk's service of this minute order. All new allegations shall be in boldface type font. Explanation: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or co...

Excerpt: ... a writ of possession shall issue if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff's claim to possession of the property. (2) The undertaking requirements of Section 515.010 are satisfied.” Section 515.010 concerns the necessity of an undertaking and states: “(a) Except as provided in subdivision (b), the court shall not issue a temporary restraining order or a writ of possession...

Excerpt: ...c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and this must be shown via specific facts and not mere allegations. (Id.) “California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment...

Excerpt: ...s in the amount of $500. (Ibid.) Defense counsel shall pay the fees within 30 days of this order. Explanation: Defendant Dawn Bray moves for relief from the default and default judgment under the attorney affidavit of fault provision of Code of Civil Procedure section 473, subdivision (b). Under that provision, Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six mont...