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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...ust be an independent assessment by a neutral court of evidence showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Am...

Excerpt: ...rt's files. The granting or denial of a motion to consolidate rests in the sound discretion of the court and will not be reversed except upon a clear showing of abuse of discretion. (Fellner v. Steinbaum (1955) 1332 Cal.App.2d 509, 511.) Consolidation is proper when it would avoid unnecessary costs and delays and when the proposed consolidated action contain common questions of law or fact. (CCP §1048, subdivision (a).) California Rule of Court ...

Excerpt: ...t SEIU Local 2015 plaintiff alleges causes of action for negligence and intentional tort. Plaintiff alleges that he was an employee of the State of California In Home Supportive Services. As an employee plaintiff was represented by defendant SEIU Local 2015, who informed plaintiff that he would have insurance within a few months. On May 4, 2017, plaintiff was in an auto accident caused by an uninsured motorist. Though plaintiff was employed by th...

Excerpt: ... accordance with the rules applicable to motions generally. (Knight, Fannin, Chernick & Haldeman, California Practice Guide: Alternative Dispute Resolution (Rutter Group 2017) “Contractual Arbitration” §§ 5:301, 5:304; Code Civ. Proc. §1290.2.) The motion/petition must allege specific facts demonstrating the existence of an arbitrable controversy, rather than mere conclusions, and must allege not only the existence of the arbitration agree...

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: ...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: ...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: ... 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: ...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...

Excerpt: ...ee. In addition to the claims pertaining to the internal affairs of the trust, the petition asserts a cause of action for financial elder abuse. The Probate Court has exclusive jurisdiction over proceedings concerning the internal affairs of trusts. (Prob. Code § 17000, subd. (a).) Under Probate Code section 7000, subdivision (b), the Probate Court has concurrent jurisdiction over: “(1) Actions and proceedings to determine the existence of tru...

Excerpt: ...ee. In addition to the claims pertaining to the internal affairs of the trust, the petition asserts a cause of action for financial elder abuse. The Probate Court has exclusive jurisdiction over proceedings concerning the internal affairs of trusts. (Prob. Code § 17000, subd. (a).) Under Probate Code section 7000, subdivision (b), the Probate Court has concurrent jurisdiction over: “(1) Actions and proceedings to determine the existence of tru...

Excerpt: ...proceeding. Explanation: A motion to quash or modify a subpoena may be made on the grounds that the matters sought to be discovered are privileged, protected, or otherwise beyond the scope of discovery. (Code Civ. Proc. §2017.010.) A motion may also be brought on the grounds that the discovery sought is unreasonable, or oppressive or is an unreasonable violation of a right to privacy. (Code Civ.Proc. §1987.1, subd.(a).) Defendants seek to quash...

Excerpt: ...h sides have already paid the complex case fees. The Court finds that this matter meets the definition of “complex” under California Rules of Court, Rule 3.400(b)(1). 2. Class Certification a. Standards An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. ...

Excerpt: ...s within 5 days of the clerk's service of the minute order. Explanation: A defendant may cross‐complain against a co‐defendant or third person not yet a party to the action where the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against [it] or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause ...

Excerpt: ...oyment and Housing Act (FEHA)].” (§ 12930, subd. (f)(1).) Upon receiving a complaint of discrimination, the DFEH is directed to promptly investigate the complaint. (§ 12963.) In pursuit of its investigation, the DFEH has the power, among other things, to issue subpoenas for the production of documents and to issue written interrogatories. (§ 12930, subd. (g)(1) & (3).) As a part of its investigation of Chandler's complaint pursuant to Sectio...

Excerpt: ...w Office of John Cadwalader within 30 days after service of this order. Explanation: Motion to Strike Code of Civil Procedure section 436 provides, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted into any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the ...

Excerpt: ...based upon Code of Civil Procedure section 430.10, subdivisions (e). Defendants argue that: (1) plaintiff has failed to comply with the Government Claims Act; (2) defendants are immune; and (3) plaintiff fails to state a cause of action. Each of these arguments is addressed below. Government Claims Act If a complaint against a public entity does not allege facts showing that a claim was timely made under the Government Claims Act, or that complia...

Excerpt: ...of the minute order. New allegations/language must be set in boldface type. Explanation: First Cause of Action – Dangerous Condition of Public Property To state a cause of action under this statute, plaintiff must allege: 1) a dangerous condition existed on the public property at the time of the injury; 2) the dangerous condition proximately caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of inju...

Excerpt: ...6. Explanation: Attorney Fees: Attorneys' fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc. § 1033.5, subd. (a)(1)(B).) Here, plaintiffs achieved their litigation objective in this action under the Song‐Beverly Act by way of accepting defendant's offer pursuant to Code of Civil Procedure section 998 (“998 Offer”), wherein defendant agreed to pay plaintiff $37,387.95. Plaintiff says this amount was inc...

Excerpt: ...e provided this information sooner, it is a valid excuse for nonattendance, if substantiated. The minor's father (GAL and co‐plaintiff) was deposed, and it is reasonable to assume he could have, or may have, testified to his son's condition or that he came to the deposition with other proof of it. And yet defendant did not provide any evidence on this subject, such as evidence that Mr. Melendez failed to corroborate Mr. Quigg's contention that ...

Excerpt: ...stake, inadvertence, surprise, or excusable neglect, and therefore the court should set aside the default. Under the discretionary relief portion of section 473, subdivision (b), The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this...

Excerpt: ...irs of the decedent.” (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 76.) As there is only a “single action for wrongful death, an heir bringing the action should join all known heirs. If an heir refuses to join as a plaintiff, he or she may be named as a defendant, so all heirs are before the court in the same action.” (Adams, supra, 196 Cal.App.4th at p. 77; see Romero v. Pacific Gas & Electric Co. (2007) 156 Cal.App.4th 211, 216 [�...

Excerpt: ....3d 159, 164.) With respect to punitive damage allegations, mere legal conclusions of oppression, fraud or malice are insufficient and therefore may be stricken. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6; see also Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.) In this context, “fraud” means intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with th...

Excerpt: ...efendant Kuldip Singh Preet Marok, as defendant was not properly named in the complaint at the time he was served, and thus was not a party to the action. “A person or entity may become a party defendant only in two ways: by being named as a defendant, or by being properly named and served as a fictitiously named defendant pursuant to [Code of Civil Procedure] section 474.” (Kerr‐Mcgee Chemical Corp. v. Superior Court (1984) 160 Cal.App.3d ...

Excerpt: ... to Plaintiff and Cross‐Defendants' ability to raise the challenge to the alleged failure to abide by the pre‐filing requirements of Civil Code section 1714.10 through a more appropriate procedural vehicle. The Court declines to award sanctions. Explanation: Plaintiff and Cross‐Defendants move for sanctions pursuant to Code of Civil Procedure sections 128.5 and 128.7. Code of Civil Procedure section 128.5, subdivision (a), states: A trial c...

Excerpt: ...f evidence showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620...

Excerpt: ...n as to the Sixth Affirmative Defense. Defendant is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with this order. Explanation: The court disregards defendant's “Objections” to plaintiff's amended Separate Statement filed on March 19, 2019, which amounts to a “reply separate statement,” which the summary judgment statute does not provide for or allow. (Nazir v. United Airlin...

Excerpt: ...ettlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769, subd.(d).) Fairness of the Settlement Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The Court has a fiduciary responsibility as guardian of absent class members' rights to ensur...

Excerpt: ...tion: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) However, where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial. (A...

Excerpt: ...ld that witness statements obtained as a result of interviews conducted by an attorney, or by an attorney's agent at the attorney's behest, constitute work product protected by section 2018.030. (Caito v. Superior Court, supra, 54 Cal.4th at p. 494.) However, the Court also held that the identities of the witnesses are discoverable, absent a showing that privilege applies. (Id. at p. 502.) Here, plaintiff seeks production of documents and...

Excerpt: ...�Jurisdiction of all interested parties may be had by publication of summons pursuant to Section 6063 of the Government Code in a newspaper of general circulation designated by the court, published in the county where the action is pending and whenever possible within the boundaries of the public agency, and in such other counties as may be ordered by the court, and if there be no such newspaper in any such county or counties then in some adjoini...

Excerpt: ...lly and dba GSS Truck Parking Terminal. Each court has the power to “control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ. Proc. § 128(a)(5).) This power permits courts to disqualify an attorney based upon a conflict of interest on the motion of another party. (In re Complex Asbestos Lit...

Excerpt: ...fifth and sixth causes of action, with leave to amend. Plaintiff is granted 10 days' leave to file an amended pleading. The time in which the complaint may be amended will run from the clerk's service of the minute order. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer Special demurrer to first through fourth causes of action “Following an order sustaining a demurrer … with leave to amend, th...

Excerpt: ...ts 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. (Blank v. Kirwan (1985) 39 Cal.3d 311...

Excerpt: ...pation (“SLAPP”) provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc. §425.16(a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant...

Excerpt: ...y defendant LiDestri Foods, Inc., he fell from an unguarded and elevated height while dumping waste into a lower level recycling dumpster due to lack of proper or adequate guardrail or other safeguards to prevent falls. The cause of action alleges counts of negligence and willful failure to warn. The moving papers show that plaintiff was in fact an employee of employment agency Select Staffing, assigned to work at LiDestri Foods providing sanitat...

Excerpt: ...y defendant LiDestri Foods, Inc., he fell from an unguarded and elevated height while dumping waste into a lower level recycling dumpster due to lack of proper or adequate guardrail or other safeguards to prevent falls. The cause of action alleges counts of negligence and willful failure to warn. The moving papers show that plaintiff was in fact an employee of employment agency Select Staffing, assigned to work at LiDestri Foods providing sanitat...

Excerpt: ...n a manner that violates any provisions of this part, the building standards published in the State Building Standards Code relating to the provisions of this part, any other rule or regulation adopted pursuant to the provisions of this part, or any provision in a local ordinance that is similar to a provision in this part, and the violations are so extensive and of such a nature that the health and safety of residents or the public is substantia...

Excerpt: ... to form interrogatories, set one, and request for production of documents, set one, deem request for admissions, set one, admitted and for monetary sanctions Bradley Oberg's motions to compel the defendants Jamie Cerda and Linda Cerda's attendance at deposition Tentative Ruling: The court notes that the City scheduled 2 motions and filed 2 sets of moving papers. In actuality each set of moving papers consisted of 3 motions combined into one set ...

Excerpt: ...the Uniform Fraudulent Transfers Act (UFTA). Under Civil Code section 3439.07, (a) In an action for relief against a transfer or obligation under this chapter, a creditor, subject to the limitations in Section 3439.08, may obtain: (1) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor's claim. (2) An attachment or other provisional remedy against the asset transferred or other property of the transferee in...

Excerpt: ...provisions of the Code of Civil Procedure. 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...

Excerpt: ...phs 74, 80, 87, and 92 and the reference to “defendants' in paragraph 108, to deny the opposed motion to strike as to the remainder. Plaintiff shall file and serve a Second Amended Complaint within 10 days of the clerk's service of this minute order. New allegations shall be in boldface type font. Explanation: Demurrer: Defendants generally demur to the first and sixth causes of action. First Cause of Action – FEHA Retaliation Plaintiff's fir...

Excerpt: ...e overruled. Explanation: To obtain summary judgment, “all a defendant needs to do is to show that the plaintiff cannot establish at least one element of the cause of action.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. If a defendant makes this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (CCP § 437(c), su...

Excerpt: ...t B at 67:9‐21. UMF No. 9 cites to Exhibit C at 13:3‐15 when it should cite to Exhibit B at 67:22‐25. The Court has been unable to locate evidence supporting UMF Nos. 8 and 11. This is grounds for denying the motion. (Code Civ. Proc., § 437c, subd. (b)(1) [“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material fac...

Excerpt: ... amend as to the Fifth Cause of Action for Fraud as to Defendant Gill. To overrule the demurrers in all other respects. Plaintiffs shall have ten (10) court days in which to file and serve a Second Amended Complaint, addressing the issues noted by the Court below, if they can. All amended allegations are to be set forth in boldface typeset. Although there is a motion to strike put on calendar for Defendant Gill, it appears that no papers were fil...

Excerpt: ... To grant Breckenridge's motion for judgment on the pleadings as to the first through eleventh and thirteenth causes of action with leave to amend; to grant Breckenridge's motion as to the twelfth cause of action without leave to amend. Plaintiff shall file and serve an amended complaint in conformity herewith, within 10 days of the clerk's service of this minute order. All new allegations shall be in boldface print. Explanation: Demurrer by Free...

Excerpt: ... petitions, without prejudice. However, the court does intend to set a status conference on March 28, 2019 at 3:30 p.m. in Department 502 and require petitioners' counsel to update the court on the status of the administrative records in each case, as well as whether the cases have been set for hearings on the merits. If petitioners fail to lodge an administrative record in each case and set the cases for hearings on the merits within a reasonabl...

Excerpt: ...submitted within 5 days of notice of the ruling. Explanation: Standard of Care The appropriate standard of care required of a medical professional is not a matter of common lay knowledge. Therefore, except in cases of “egregious” medical negligence, expert medical testimony is required in medical malpractice actions to establish the standard of care required of a physician (or other health care provider) under the circumstances. See Flowers v...

Excerpt: ...deny all motions. Explanation: The motions before the court seek leave to file cross‐complaints and to amend defendants' answers. All of the proposed new and amended pleadings are premised on factual allegations postulating alleged concealment and misrepresentations by plaintiff before the moving defendants became members as to whether plaintiff was running a deficit, was mismanaged, etc. Insofar as the proposed amendments seek to assert a cros...

Excerpt: ...n for class certification and preliminary approval of settlement is proof that the matter truly is litigated as a class action, more such complex motions requiring substantial time to resolve are expected. The matter is therefore deemed complex pursuant to Rule 3.400(b)(1); the complex fees must be paid on or before February 22, 2019. 2. Class Certification a. Standards An agreement of the parties is not sufficient to establish a class for settle...

Excerpt: ...t v. County of Los Angeles (1994) 27 Cal.App.4th 125, 145.)  To sustain defendant's demurrers based upon: (1) Gurpreet's lack of capacity; (2) Jasbir's claims of negligent infliction of emotional distress which are based upon: 31‐315.2; 31‐320.5; 31‐335.1 and 31‐405 (for both mandatory duty and vicarious liability); (3) social worker liability; (4) negligent hiring; (5) acts of independent contractors; and (6) plaintiffs' allegation of...

Excerpt: ... proofs of service for the opposition indicate that it was served, by regular mail, on January 11, 2019 as required. Motion to Vacate. When an application for enforcement of a sister‐state judgment is filed, a judgment debtor has thirty days from service in which to challenge the sister‐state judgment. (Code Civ.Proc. § 1710.40 subd.(b).) Challenges to the judgment on the grounds that there was no subject matter or personal jurisdiction in t...

Excerpt: ...ego will unduly prejudice defendants; and (4) bifurcation will result in jury confusion. Plaintiffs oppose, arguing judicial economy will not be promoted because there is significant overlap between the evidence related to alter ego liability and the evidence that will be relevant to the balance of the issues. Under Code of Civil Procedure section 1048(b) the court “in furtherance of convenience or to avoid prejudice, or when separate trials wi...

Excerpt: ...in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars...” (Code Civ. Proc., § 473, subd. (a).) “ ‘Code of Civil Procedure section 473, which gives the courts power to permit amendments in fur...

Excerpt: ...on for sanctions without prejudice. Plaintiff has not successfully made a motion. Explanation: The evidence presented is insufficient to support the motion. All that need be shown in the moving papers is that the discovery was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (See Leach v. Sup.Ct. (1980) 111 CA3d 902, 905–906.) Plaintiff has failed to provide evidence ...

Excerpt: ... a writ of possession concerning personal property identified as a “Vatech PAX‐I 3D Green 15X15, Mfg. #30P15X15, Master Serial Number 055‐0991” which is valued at $32,100. Plaintiff contends that the equipment was delivered to 5151 N. Palm Ave. Suite 320, in Fresno, CA, pursuant to an Equipment Finance Agreement and that the Defendants are in default of the Agreement by failing to make monthly payments. Whether a writ of possession is to ...

Excerpt: ... order. Explanation: A prevailing buyer in an action under the Song–Beverly Consumer Warranty 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, ...

Excerpt: ...planation: 1. Objections to Evidence The Court sustains that part of plaintiff's objection no. 1 on the basis of hearsay. All other objections made by plaintiff are overruled. The Court did not consider objections by defendant as defendant's moving papers failed to carry its burden on any issue except for the legal question of fiduciary duty. 2. Disputed Facts Facts Nos. 1, 9, 11, 12, 14, 16, 17, 18, 20, 21, 24, 26, 27, 28, and 32 are disputed. A...

Excerpt: ...osing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust.” (Emphasis added.) (Code Civ. Proc., § 405.38.) Plaintiff argues that because his complaint contains a “real property claim,” he acted with substantial justification. However, the statute contemplates that in order to survive a motion to expunge, plaintiff mus...

Excerpt: ...on the ground that it fails to state facts sufficient to constitute a cause of action, as plaintiff has not clearly alleged which defendants were her employers, and that defendant Laura Fraser was not a licensed real estate broker and therefore could not have been an “employer” of plaintiff because only licensed real estate brokers can employ real estate agents. However, the complaint clearly alleges that, “The term ‘DEFENDANTS' shall ref...

Excerpt: ...‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6, subd. (a)(1).) “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or c...

Excerpt: ... deny the request for terminating sanctions. To impose monetary sanctions in the amount of $1,530. Sanctions must be paid by Defendant Jesus Hernandez to the Law Office of Robert C. Abrams within 30 days after service of this order. Explanation: Interrogatories: Code of Civil Procedure section 2030.290, subdivision (b) provides for a motion to compel where the opposing party fails to respond to written interrogatories. Further, when a party has n...

Excerpt: ...nt can be amended will run from service by the clerk of the minute order. Explanation: In the complaint a plaintiff must “plead facts showing that he may be entitled to some relief.” (Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1152.) The complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc. § 425.10.) Plaintiff does not allege any facts in his First ...

Excerpt: ... Dispute Resolution (Rutter Group 2017) “Contractual Arbitration” §§ 5:301, 5:304; Code Civ. Proc. §1290.2.) The motion/petition must allege specific facts demonstrating the existence of an arbitrable controversy, rather than mere conclusions, and must allege not only the existence of the arbitration agreement but “also that the opposing party refuses to arbitrate the controversy.” (Id. at 5:307 [citing Strauch v. Eyring (1994) 30 Cal....

Excerpt: ...(2000) 79 Cal.App.4th 876, 885‐886 citing Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322.) And when faced with parallel criminal proceedings, an analysis should be undertaken "in light of the particular circumstances and competing interests involved in the case.” (Avant!, supra, 79 Cal.App.4th at 885, citing Keating, supra, 45 F.3d at 324‐325.) In general, Courts should consider the following factors (“the Keating...

Excerpt: ...rt judgment.” But, this is a minor error. However, Plaintiffs' attorney neglected to sign the Sec. 7 regarding the correctness of the amount of costs submitted. On the one hand, Plaintiffs are not requesting any costs. But, on the other hand, the section indicating a waiver of costs and disbursements was not checked. More importantly, the Declaration of nonmilitary status was not signed on any of the requests for entry of court judgment. Federa...

Excerpt: ...g).) Plaintiff is ordered to pay $1,372.10 in sanctions to the Yarra Law Group, within 30 days of the clerk's service of the minute order. Explanation: Proper service of a notice of deposition compels the opposing party to appear, to testify, and to produce documents if requested. (Code Civ. Proc. §2025.280(a); see Code Civ. Proc. §2025.410 [party served with deposition notice may serve objections on party that noticed the deposition].) Where a...

Excerpt: ...etition to confirm. See CCP § 1285. If a petition or response requesting confirmation is duly filed and served, the court must confirm the award as made, unless it corrects or vacates the award or dismisses the proceeding. [CCP § 1286 and see Valsan Partners Ltd. Partnership v. Calcor Space Facility (1994) 25 Cal.App.4th 809, 819 and Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075, 1084.] A party may seek confirmation by fili...

Excerpt: ... the 'inferences' reasonably 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, courts usually follow a three‐prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's cla...

Excerpt: ...person or by telephone with the party who filed the pleading that is subject to demurrer[.]” (Code Civ. Proc. §430.41(a), bold added; see Judicial Counsel form CIV‐140.) Where the parties are unable to sufficiently meet and confer five or more days prior to the date the responsive pleading is due, a 30‐day extension is automatically granted upon the filing by the demurring party of a declaration stating that a good faith effort was made to...

Excerpt: ...every rental agreement is a covenant of “quiet enjoyment.” The landlord impliedly promises to allow the tenant possession and “quiet enjoyment” of the premises during the contract term and not to, through act or omission, disturb the tenant's possession and beneficial enjoyment of the premises for the purposes contemplated by the rental agreement. (Civ. Code § 1927; see also e.g. Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.A...

Excerpt: ...at a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists . . .” “In any event, if proof of a demand and refusal to arbitrate under the agreement is a necessary prerequisite to a petition to compel arbitration under section 1281.2, the failure to prove such demand and refusal is a failure ...

Excerpt: ...ecial interrogatories, set one and request for production of documents, set one. (Code of Civil Procedure sections 2030.290(b), 2031.300(b).) The evidence before this court is insufficient to determine if initial responses are due. To deny Jasvir Kaur Jhutti dba A Plus Taxi Cab Co.'s motion for sanctions. (Code of Civil Procedure sections 2030.290(c), 2031.300(c).) Explanation: Defendant has failed to file points and authorities to support any of...

Excerpt: ...rst cause of action in the complaint. Defendant is ordered to prepare and file a proposed judgment consistent with this ruling within five (5) court days of service of this order. Explanation: In response to this motion for summary judgment, Plaintiff sought, and obtained, a continuance in order to conduct discovery pursuant to Code of Civil Procedure section 437c, subdivision (h). On July 3, 2018, Plaintiff filed a notice of non‐opposition, in...

Excerpt: ...of action. To sustain the general demurrers to the second and fourth causes of action, with leave to amend. Explanation: The court will only rule on the one motion that was properly calendared (by YCA), and will not rule on the District's motions unless and until they are properly calendared pursuant to the Superior Court of Fresno County Local Rules, Rule 2.2.1.  YCA's Demurrer for Uncertainty The memorandum does not make any arguments as to ...

Excerpt: ...he time frame specified under rule 3.1700(a)(1) of the California Rules of Court and should not be considered. California Rules of Court, rule 3.1700(a)(1) provides in pertinent part, “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of services of written noti...

Excerpt: ... If the person to whom a copy of the summons and of the complaint are mailed pursuant to this section fails to complete and return the acknowledgment form set forth in subdivision (b) within 20 days from the date of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses thereafter incurred in serving or attempting to serve the party by another method permitted by this chapter, and, except for good cause sho...

Excerpt: ...hearing or a memorandum of points and authorities, as required by California Rules of Court, Rule 3.1112, subdivision (a) (1) and (3). At best, it bears the title of “motion” and the second page includes some elements required for the motion itself: it identifies who is bringing the motion (plaintiff), the relief requested (to be allowed to file a Second Amended Complaint) and the basis for the relief sought (“due to more information found ...

Excerpt: ... (5) court days in which to file their pleading. Service is to be perfected in accordance with the applicable provisions of the Code of Civil Procedure. Explanation: (Note‐ as of July 9, no opposition appears in the Court's files.) This is a complex action filed on August 2, 2016. Plaintiffs allege that they were a lender for a purchase of real estate in Contra Costa County on which they foreclosed. The site is allegedly contaminated with vario...

Excerpt: ...mplaint. The time in which the complaint may be amended will run from the clerk's service of the minute order. New allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer In California, a complaint must contain a statement of the facts constituting the cause of action, in ordinary and concise language; and a demand for judgment for the relief to which the pleader claims to be entitled. (Code Civ. Proc. §425.10....