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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...�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: ...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...