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