Excerpt: ...dant and cross -co mplainant Mighty Mart, Inc. (“Mighty Mart”) (collectively, “defendants”), for a total fee award of $188,188.00 against plaintiff and cross -defendant Morteza Javaherie (“plaintiff”). To deny an award of costs, without prejudice. Explanation: Defendants joi ntly seek an award of attorney fees pursuant to Civil Code section 1717 following a court trial on plaintiff's first amended complaint and defendants' cross -com...

Excerpt: ...mplaint to allege that defendant Mostafa Heidari ("defendant Heidari"), his attorney Henry Nunez, and "others" misrepresented to plaintiff that he could not qualify to become an ARCO dealer because he did not have two years' experience, and, as a result, defendant Heidari needed to remain on title to both the staton and the land and plaintiff would have to work at the staton for two years to gain the requisite experience. Plaintiff seeks to alleg...

Excerpt: ...ode of Civil Procedure section 425.16, on the ground it is a strategic lawsuit against public participation (SLAPP) action. To grant defendant's request for attorney's fees and costs, in the amount of $1,800 in fees and $503 in costs. (Code Civ. Proc. § 425.16, subd. (c)(1).) Plaintiff shall pay fees and costs to defendant within 30 days of the date of service of this order. To overrule defendant's demurrer as moot in light of the ruling on the ...

Excerpt: ...tween the parties. (Code Civ. Proc., § 452.) The allegations in the complaint are considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) As an initial matter, the court notes that, notwithstanding the breadth of the request stated in the Notice of Motion, defendant's memorandum of points and authorities only actually makes arguments regarding the request to strike the prayer for punitive dama...

Excerpt: ...n to quash a subpoena requiring production of documents. If a subpoena requires … the production of books, documents, or other things … at the taking of a deposition, the court, upon motion … may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriat...

Excerpt: ... has succeeded in stating a cause of action – the court does not concern itself with the issue of the plaintiff's possible difficulty or inability in proving the allegations of their complaint. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572; Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) The complaint is liberally construed, which “means that the reviewing court draws inferences favorable to the plaintiff, not the defendant...

Excerpt: ...h respect to the second cause of action, this motion addresses the sufficiency of the first cause of action for intentional infliction of emotional distress. The elements of a cause of action for intentional infliction of emotional distress (“IIED”) are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering sever...

Excerpt: ... and $285 against defendant Surinder Kaur Sandhu, payable within 30 days of the date of service of this order. The matters specified in plaintiff's Requests to Admit (Set Two) propounded on defendant Devinder Sihota and defendant Surinder Kaur Sandhu, are deemed admitted, unless defendants serve, before the hearing, proposed responses to the requests that are in substantial compliance with Code of Civil Procedure section 2033.220. Explanation: Fa...

Excerpt: ...the date of service of this order. All new allegations shall be in boldface. Explanation: “ ‘Code of Civil Procedure section 473, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, whe...

Excerpt: ...uit against public participation (SLAPP) action, and dismiss the complaint with prejudice. (Code Civ. Proc., § 425.16.) Explanation: Under Code of Civil Procedure section 425.16, “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a specia...

Excerpt: ...are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549, citing Lab. Code, § 2699, subd. (l)(2) [“The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.”].) The trial ...

Excerpt: ...the court's order within 10 days of the date of service of this order. Explanation: CVSH moves for summary judgment or adjudication of plaintiff's medical malpractice/wrongful death claim on the ground that it did not breach the standard of care. CVSH has presented the declaration of its expert, Dr. Errol Omaar Ozdalga, M.D., who opines that CVSH's care and treatment of decedent did not fall below the standard of care. Since CVSH did not breach t...

Excerpt: ... of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … resulting … dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) Relief pursuant to Code of Civil Procedure...

Excerpt: ...date of this order. Explanation: Plaintiff has alleged that defendants are liable because they failed to take reasonable steps to prevent her son, decedent Matthew Gonzalez, from committing suicide while he was in custody at the Fresno County Jail. She alleges that defendants should have realized that decedent was depressed and suicidal because he asked for a spiritual advisor to absolve him of his sins before he died, that he made statements in ...

Excerpt: ... judgment. To deny summary adjudication of issues one, three and four. To grant summary adjudication of issue five. To grant summary adjudication of issue two, which results in the summary adjudication of the second cause of action in favor of cross‐defendants. (Code of Civ. Proc., § 437c, subd. (f).) Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to j...

Excerpt: ...ntal declaration by his attorney to challenge certain procedural aspects of the motion, arguing as follows: (1) the motion was untimely served under Code of Civil Procedure section 1005, subdivision (b); (2) the motion was untimely filed pursuant to California Rules of Court, rule 3.1702(b)(1); (3) the motion should not be heard as the parties are involved in an arbitration that was set to commence on December 5, 2022; (4) the moving papers are d...

Excerpt: ...Brandi Marie Smith to Request for Admissions, Set One, and Request for Sanctions By Plaintiffs for an Order Compelling Initial Responses from Defendant Raquel Morelos to Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production of Documents, Set One; and Request for Sanctions By Plaintiffs for an Order Deeming Admissions of Defendant Raquel Morelos to Request for Admissions, Set One, and Request for Sanctions Ten...

Excerpt: ... Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) As in demurrers, grounds for the motion must appear on the face of the challenged pleading or on facts which the court may judicially notice. (Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.) When reviewing a pleading, a demurrer or motion for judgment on the pleadings admits the truth of all material allegations and a court will “give the complaint a reasonable interpreta...

Excerpt: ...the motion as to Request Nos. 3, 5, and 6‐9. Defendant shall provide further verified responses, and produce all relevant documents and a privilege log if necessary, within 30 days of the date of service of the order by the clerk. Explanation: Plaintiffs move to compel further responses to their Request for Production of Documents, Set Two, which are broadly divisible into the following three categories: (1) all documents relating to the subjec...

Excerpt: ...dure authorizes a class action when ‘the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.' ‘[W]e have articulated clear requirements for the certification of a class' under this statute. ‘The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well‐defined communi...

Excerpt: ...within 10 days of the date of service of this order. Explanation: This action stems from a fire that occurred at plaintiffs' home on July 4, 2018. Plaintiffs' original complaint, filed August 13, 2019, alleged the following causes of action against the moving parties: fifth cause action against defendant Nutting Enterprises, Inc. dba CPR Carpet and Restoration (“CPR”) for negligence; and seventh cause of action against CPR's surety, defendant...

Excerpt: ...ts the requirements for certification before it can grant preliminary approval of the proposed settlement. 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.App.4th 81, 93‐95.) “Confronted with a request for settlement‐only class certification, a dist...

Excerpt: ...ggregate 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, subd. (d).) The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amou...

Excerpt: ...ch the answer can be filed will run from service by the clerk of the minute order. To grant defendants' motion to strike the prayer for punitive damages and the allegations at paragraph 29 and 36 as to defendant Anderson only, that his conduct was “malicious and oppressive and warrants the imposition of punitive damages.” (Code Civ. Proc., §§ 436, 425.13.) The striking of the punitive damages allegations is without prejudice to plaintiffs f...

Excerpt: ...on to Strike Portions of the Second Amended Complaint Tentative Ruling: To sustain all defendants' demurrers to the first cause of action for failure to state facts sufficient to constitute a cause of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) To grant the motion to strike, in part, and deny, in part. The allegations pertaining to a physician or surgeon's statutory duty to report a patient diagnosed with a condition cha...

Excerpt: ... Civ. Proc., § 2025.480, subd. (j).) Explanation: Plaintiff in this action asserts various causes of action alleging sex abuse as a minor committed by teacher and defendant Stacey Aprile, employed by defendant Clovis Unified School District. Based on plaintiff's allegations of sexual assault, California Commission on Teacher Credentialing (“CCTC”) conducted an investigation into plaintiff's allegations against Aprile. On March 1, 2022 plaint...

Excerpt: ...360 (6 motions x $60 each). The additional filing fees must be paid on or before December 15, 2022. To order plaintiffs Candice Burciaga, Cady Wade, and Serenah Pickens, by and through her guardian ad litem, to serve separate, verified responses, without objections, to defendants' Form Interrogatories, Set One, Special Interrogatories, Set One, and Demand for Production, Set One (a separate set of which was served on each plaintiff), no later tha...

Excerpt: ...itrator in this matter; that defendants pay all of the costs of arbitration; and that the California Rules of Civil Procedure be the rules by which the arbitration is conducted. Explanation: Plaintiff refiled a survival action on behalf of decedent Sandra Troupe for negligence, to comply with Code of Civil Procedure section 377.34, subdivision (b). Defendants filed a motion to compel arbitration, citing an arbitration agreement (“the Agreement�...

Excerpt: ...Plaintiff brings a single cause of action under PAGA on behalf of himself and all aggrieved employees under Labor Code section 2698 et seq. Defendant now seeks an order compelling plaintiff to private arbitration of his PAGA claim as an individual, and to dismiss the representative portion of the PAGA claim brought on behalf of all aggrieved employees. Motion to Compel Arbitration A trial court is required to grant a motion to compel arbitration ...

Excerpt: ...he entire complaint. (Code Civ. Proc., § 437c.) CRMC shall submit a proposed judgment consistent with the court's order within 10 days of the date of service of this order. Explanation: CRMC moves for summary judgment or adjudication of plaintiff's medical malpractice/wrongful death claim on the ground that it did not breach the standard of care. CRMC has presented the declaration of its expert, Dr. Gary W. Steinke, M.D., who opines that CRMC's ...

Excerpt: ...ancing while dancing and drinking in violation of Newsom's orders”) and the allegations in the first sentence in paragraph 23, on page 6, lines 7‐9 (“El Bukanas was operating in violation of the Blueprint for a Safer Economy, in that the business was allowing indoor and outdoor seating, failing to enforce social distancing and allowing patrons to order alcohol without ordering food”) are stricken. The motion to strike the remaining allega...

Excerpt: ...expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) “‘Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against tha...

Excerpt: ...ntractors Indemnity Company (“ACIC”). The entirety of ACIC's $47,000 settlement is credited to defendant Bank of Stockton (“Bank”). (2) To grant plaintiff's motion for prejudgment interest in the sum of $16,013.28. (3) To grant plaintiff's motion for attorney fees in the sum of $157,382.50. (4) To grant the Bank's motion to tax costs claimed by plaintiff in the sum of $5,125.71, reducing the recoverable costs to $4,571.67. Explanation: Th...

Excerpt: ...nc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9.) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally certified for settlement purposes. Th...

Excerpt: ...erk's service of this order. New or different allegations in the first amended complaint are to be set in boldface type. Explanation: General Demurrer As a threshold matter, “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.) In addition, a party may file a general ...

Excerpt: ...nts are directed to submit to this court, within five days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: In this action, plaintiff Los Arboles Family Apartments, LP (“Los Arboles”) seeks to invalidate and enjoin defendants from utilizing an easement created in 2007 burdening Los Arboles and benefitting the neighboring property. The easement, referred to as the Access Agree...

Excerpt: ...action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e), (f).) To overrule the demurrer to the fifth cause of action. To sustain the demurrer of defendant City of Fresno (“City”) to plaintiff's third, fourth, and sixth causes of action for failure to state facts sufficient to constitute a cause of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff shall serve and file its first amended complaint within...

Excerpt: ...en (7) days of the date of service by the clerk of this order, a proposed judgment dismissing this action as to them. The court denies defendants' additional request for monetary sanctions. Explanation: Code of Civil Procedure section 2023.010, subdivision (g) construes “[d]isobeying a court order to provide discovery” to be a “misuse of the discovery process,” but sanctions are only authorized to the extent permitted by each discovery pr...

Excerpt: ...judgment. To deny summary adjudication of issues one, two, three and four. To grant summary adjudication of issue five. (Code of Civ. Proc., § 437c, subd. (f).) Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c).) Summary adjudication is the proper mechanism for challenging a particular “c...

Excerpt: ...p. (1998) 67 Cal.App.4th 995, 999; see also Templo v. State of Calif. (2018) 24 Cal.App.5th 730, 735 [“‘motion for judgment on the pleadings is equivalent to a demurrer'”].) Accordingly, a defendant is entitled to a judgment on the pleadings where the plaintiff's complaint shows, on its face, that its causes of action are barred by an applicable statute of limitations. (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440; see also Commi...

Excerpt: ...laintiff brings a single cause of action under PAGA on behalf of himself and all aggrieved employees under Labor Code section 2698 et seq. Defendant now seeks an order compelling plaintiff to private arbitration of his PAGA claim as an individual, and to dismiss the representative portion of the PAGA claim brought on behalf of all aggrieved employees. Motion to Compel Arbitration A trial court is required to grant a motion to compel arbitration �...

Excerpt: ...y department at defendant Madera Community Hospital (MCH) on April 15, 2020 in great pain and was diagnosed with a torn artery which required surgery. Decedent was subsequently transferred to a couple other medical facilities, but passed away on April 24, 2020. Plaintiff alleges that MCH negligently failed to exercise the proper degree of knowledge and skill in examining, diagnosing, treating, and caring for decedent. As the moving party, a defen...

Excerpt: ...g: To overrule defendant Clovis Unified School District's (“CUSD”) demurrer to the fourth cause of action of the First Amended Complaint (“FAC”). (Code Civ. Proc., § 430.10, subds. (b), (d).) CUSD shall file its answer to the FAC within 10 days of service of the order by the clerk. To quash the subpoena served on Saint Mary's Medical Center (“St. Mary's”), without prejudice to CUSD serving a more narrowly tailored subpoena. (Code Civ...

Excerpt: ...r arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. § 2.) “In recognition of Congress' principal purpose of ensuring that private arbitration agreements are enforced according to their terms, we have held that the FAA pre‐empts state laws which ...

Excerpt: ...f contract. (Code Civ. Proc., § 437c.) Explanation: Plaintiffs have met their burden of showing that defendants' second cross‐ claim for breach of contract is barred by the statute of frauds. Under Civil Code section 1624, “The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: [¶] (1) An agreement that by its terms is not to be ...

Excerpt: ...n, (6) fraudulent concealment, (7) constructive fraud, (8) breach of contract, (9) breach of written contract, (10) unjust enrichment, and (11) unfair competition. Defendant Lometti initially did not respond to the complaint. Plaintiff entered defendant Lometti's default on May 22, 2018, but it was set aside on February 1, 2019 when the court determined that defendant Lometti did not have actual notice of the complaint and summons. Defendant Lome...

Excerpt: ...confer regarding the protective order. To grant defendant's motion to compel further responses to Request for Production No. 18 and direct plaintiff to serve a written verification. To grant plaintiff's motion to compel further responses to Requests for Production Nos. 26, 28 and 31, subject to a protective order. To direct the parties to meet and confer regarding the protective order. To grant plaintiff's motion to compel further responses to Re...

Excerpt: ...mended complaint and dismiss the action against defendant. (Code Civ. Proc., §§ 2023.010, subd. (g); 2030.030, subd. (d).) Defendant shall submit a proposed judgment consistent with the court's order within 10 days of service of the minute order. Explanation: Code of Civil Procedure section 2023.010, subdivision (g) makes “[d]isobeying a court order to provide discovery” a “misuse of the discovery process,” but sanctions are only author...

Excerpt: ...le their second amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. To deny the motion for terminating sanctions, but to grant the motion for monetary sanctions and impose monetary sanctions against plaintiffs and their attorney of record, Ilan N. Rosen Janfaza, jointly and severally, in the amount of $3,458.14, payable no later than thirty (30) days from the date of service of th...

Excerpt: ...visions continuing in full force and effect. (See Defendant's Evidence, Ex. A [Dispute Resolution Agreement].) To grant defendant's motion to stay the pending court action until the arbitration has been resolved. (Code Civ. Proc., § 1281.4.) In light of the court's order granting the motion to compel arbitration, the demurrer set for October 27, 2022 is taken off calendar as moot. Explanation: Pursuant to California Code of Civil Procedure secti...

Excerpt: ...n “while alleviating [the defendant's] difficult choice between defending either the civil or criminal case.” (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.) Pursuant to both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding. (U.S. Const., 5th Amend.; Cal. Const., art. 1, § 15; see Evid. Code, § 940.) The privile...

Excerpt: ....2 states, in relevant part: On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that 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, unless it determines that: (a) The right to compel arbitration has been waiv...

Excerpt: ...court to select five nominees from the lists of arbitrators submitted by the parties, then have the parties jointly choose an arbitrator. (Code Civ. Proc., § 1281.6.) The court selects the following nominees: • Hon. Donald S. Black (ret.) • Hon. Joseph R. Brisco (ret.) • Hon. Craig S. Kamansky (ret.) • Hon. Alan Simpson (ret.) • Russell D. Cook, Esq. The parties may either choose an arbitrator from the list above, or jointly select an ...

Excerpt: ...laintiffs shall serve and file their first amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface type. To grant the motion to strike and strike the phrase “without limitation” from the complaint at pages: 3:7, 4:24, 5:1, 5:9, 5:11, 5:14, 5:20, 5:28, 6:11, 6:21, 6:24, 6:25‐ 7:1, 7:3, 7:10, 7:11, 7:13‐14, 7:16, 7:22, 7:26, 8:1, 8:7, 8:10, 8:11, 11:9, 12:20 ‐21, 12:25, 13:3, 1...

Excerpt: ...set in boldface type. Oral argument for this matter is set on November 2, 2022, at 3:30 p.m. in Department 503. Plaintiff may appear through CourtCall. Explanation: “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, r...

Excerpt: ...ns, pre‐ employment physical records, questionnaires, job descriptions, job duties, job applications, termination notices, exit interview records, disability payments, disability claims, disciplinary notices, leave of absence records, attendance records, hours worked, time cards, supervisor review notes, work related injury records, workers compensation claims, insurance benefits, and all other records for all dates pertaining to: DR. TIRATH GI...

Excerpt: ...1, 2022. Explanation: Plaintiff in this action asserts various causes of action alleging sex abuse as a minor committed by teacher and defendant Stacey Aprile, employed by defendant Clovis Unified School District. Based on plaintiff's allegations of sexual assault, CCTC conducted an investigation into plaintiff's allegations against Aprile. On March 1, 2022, plaintiff served CCTC with a subpoena seeking production of documents generated in or rel...

Excerpt: ..., with leave to amend. Plaintiff shall serve and file an amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface type. Explanation: A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired, and so the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) As in demurrers,...

Excerpt: ...219 Cal.App.4th 367.) Explanation: Plaintiff Maria Angel (“plaintiff”) requests that the unlawful detainer action, Case No. 22CECL03151, be consolidated with the unlimited civil action, Case No. 22CECG02212, since the unlawful detainer action would otherwise proceed to trial more quickly, before plaintiff's claim to own title to the property could be decided, and she could be evicted from her own property. Under Code of Civil Procedure, secti...

Excerpt: ...Defendant contends that claims under Labor Code section 1102.5 are governed by a one‐year statute of limitations, since they are claims under a statute that provides for a civil penalty. (Code Civ. Proc., § 340, subd. (a).) Defendant notes that Labor Code section 1102.5, subdivision (f), provides for a mandatory civil penalty of no more than $10,000 for each violation. Thus, defendant concludes that, since plaintiff did not file his action wit...

Excerpt: ...ommercial real estate for plaintiff to operate an auto repair business, with the oral agreement being that, even though title would be taken in the Morenos' name, plaintiff would make the payments on the property (mortgage, insurance, taxes, and maintenance), and the Morenos would just “hold title” in their name. This alleged agreement has spawned two legal actions and years of litigation, with this action commenced in 2016. At one point, the...

Excerpt: ...the complaint within 10 days of service of this order. Explanation: These motions arise out of a complaint filed November 10, 2021 for (1) breach of written contract; (2) breach of the implied covenant of good faith and fair dealing; (3) unjust enrichment; (4) violation of Business and Profession Code section 17200 et seq.; (5) declaratory relief, with request for temporary, preliminary, and permanent injunctive relief; and (6) money had and rece...

Excerpt: ...court … for settlement of the case … , the court, upon motion, may enter judgment pursuant to the terms of the settlement.” Here, the parties entered into a written settlement agreement, including a stipulation for entry of judgment in the event defendant failed to pay the amounts he agreed to pay under the settlement agreement, and then failed to cure his default. It does not appear to be disputed that, although defendant made several paym...

Excerpt: ...ed person(s) who have not timely served an objection pursuant to Code of Civil Procedure section 2025.410 or otherwise obtained the consent of all interested parties agreeing to the non‐appearance of the party or person(s) at the deposition as noticed or subpoenaed, and motions to compel initial responses to interrogatories, requests for production and requests for admissions, no motion under sections 2016.010 through 2036.050, inclusive, of th...

Excerpt: ...and dismiss the action against defendants. (Code Civ. Proc., §§ 2023.010, subd. (g); 2030.030, subd. (d).) Defendants shall submit a proposed judgment consistent with the court's order within 10 days of service of the minute order. Explanation: Code of Civil Procedure section 2023.010, subdivision (g) makes “[d]isobeying a court order to provide discovery” a “misuse of the discovery process,” but sanctions are only authorized to the ext...

Excerpt: ...il Procedure section 1255.010 [the probable amount of compensation to be awarded to defendants], plaintiff has failed to provide notice of its motion to all the requisite parties. Notice Requirement A motion for prejudgment possession must be served on the “record owner of the property and on the occupants, if any.” (Code Civ. Proc., § 1255.410, subd. (b).) “‘[R]ecord owner' means the owner of the legal or equitable title to the fee or a...

Excerpt: ...t 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.” (Code Civ. Proc., § 1281.2, subd. (c), emphasis added.) Petitioner brings this motion to enforce the arbitration provision of the subcontractor agreement between itself and respondent JT2, Inc. The agreement states in pertinent part...

Excerpt: ...grant preliminary approval of the proposed settlement. 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.App.4th 81, 93‐95.) “Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well‐defined community of in...

Excerpt: ...e to amend. Plaintiff is granted 20 days, running from the date of service of the minute order by the clerk, to file and serve a second amended complaint. Explanation: On December 16, 2021, this court sustained defendant's demurrer to plaintiff's original complaint, with leave to amend, except that leave to amend was not granted to state a petition for a writ of mandate. The court found that, among other things, the original complaint failed to s...

Excerpt: ...s, but merely discovers, through the medium of affidavits or declarations, whether there are issues to be tried and whether the parties possess evidence that demands the analysis of a trial. (Melamed v City of Long Beach (1993) 15 Cal.App.4th 70, 76; Molko v Holy Spirit Ass'n (1988) 46 Cal.3d 1092, 1107; Schwoerer v Union Oil Co. (1993) 14 Cal.App.4th 103, 110.) In short, the motion is not a substitute for a bench trial. A summary judgment motion...

Excerpt: ...Set One Tentative Ruling: To grant defendant Central California Ear Nose & Throat Medical Group's (“CCENT”) motion for relief from waiver of objections. (Code Civ. Proc., §§ 2030.290, subd. (a)(1); 2031.300, subd. (a)(1).) To take plaintiff's motions to compel off calendar due to failure to comply with Local Rule 2.1.17 or the meet and confer requirements of Code of Civil Procedure sections 2016.040, 2030.300, subdivision (b)(1), and 2031.3...

Excerpt: ...st plaintiff and his counsel in the amount of $1,035. (Code Civ. Proc., § 1987.2.) Plaintiff shall pay sanctions to defendant within 30 days of the date of service of this order. Explanation: Under Code of Civil Procedure section 1987.1, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the ta...

Excerpt: ...n the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disabili...

Excerpt: ...est for Production of Documents, Set Two, 15 days late. As a result, all objections were waived. (Code Civ. Proc., § 2031.300, subd. (a).) Relief from waiver of objections may be granted where both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (2) The party's failure to serve a timely response was th...

Excerpt: ...complaint under Code of Civil Procedure section 425.16, contending that the complaint is a strategic lawsuit against public participation (“SLAPP”), and thus subject to being stricken unless plaintiff can show by admissible evidence that he has a probability of prevailing on the merits of his claims. Under Code of Civil Procedure section 425.16, “[a] cause of action against a person arising from any act of that person in furtherance of the ...

Excerpt: ...n. The court will reconsider the sanctions request if necessary in connection with the motion for class certification. To deny the motion to compel compliance with the order regarding request for production of documents and to impose $6,027 in monetary sanctions against plaintiff's counsel, the Parris Law Firm and the Downey Law Firm. Explanation: Motion to Compel Depositions Plaintiff moves to compel depositions of defendant Sun‐Maid employees...

Excerpt: ... court's order. Explanation: A special motion to strike 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, subd. (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...

Excerpt: ...y seeks relief from entry of default on March 9, 2021. Code of Civil Procedure section 473, subdivision (b) provides, in pertinent part: 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 relief shall be accompanied by a copy of ...

Excerpt: ...may be proper, allow a party to amend any pleading. (Code Civ. Proc., § 473, subd. (a)(1).) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) The policy favoring amendment is so strong that it is a r...

Excerpt: ...re considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Civil Code section 3294, subdivision (a) provides: In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example a...

Excerpt: ...f service of this order. Explanation: First, to the extent that plaintiffs contend that defendants' motion is procedurally defective because defendants did not file a separate statement or meet and confer on all of the document requests before bringing their motion, the objection is without merit. A motion to compel compliance with a promise to produce documents does not require prior meet and confer efforts, nor does the moving party have to fil...

Excerpt: ...ecl., filed July 27, 2022, Ex. 1, and Cervantes Decl., filed June 30, 2022, Ex. 4.) If defendant fails to timely sign the Quitclaim Deed, the court clerk is directed to sign the Quitclaim Deed as elisor. The Quitclaim Deed shall be attached to the revised proposed order as described below. Defendant is to pay $4,432.50 in attorney fees to Webb Law Group, APC within 30 days of the date of service of this order. Plaintiffs are to submit, within 10 ...

Excerpt: ...rreparable injury to another party; (3) The defendant's acts would render final judgment ineffectual; (4) Money damages would not afford adequate relief; or (5) The amount of money damages needed to afford adequate relief is extremely difficult to determine. (See Code Civ. Proc., § 526, subd. (a)(1)‐(5).) The trial court evaluates two interrelated factors when deciding whether to issue a preliminary injunction. The first is the likelihood that...

Excerpt: ...v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) California Rules of Court, rule 3.1324 provides that a motion to amend must: (1) include a copy of the proposed amendment; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located;...

Excerpt: ...nced in the declarations. The errata and death certificate shall be filed no later than August 25, 2022. Explanation: “Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) Also, “[a] pending action or proceeding does not abate by the death of a party if the cause of a...

Excerpt: ...f the minute order. New allegations/language must be set in boldface type. Explanation: The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of acti...

Excerpt: ...not filed. California Rules of Court, rule 3.1300(c) requires that the proof of service to be filed no later than five (5) court days before the hearing. In addition, the proof of service also shows untimely service. Service of the motion must be made at least 16 court days before the hearing, plus additional calendar days, depending on the type of service made. (Code Civ. Proc., § 1005, subd. (b).) Here, since service was made by mail to a Cali...

Excerpt: ..., whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause u...

Excerpt: ...o statutory grounds: Code of Civil Procedure section 473, subdivision (b) and Code of Civil Procedure section 473.5. Code of Civil Procedure section 473, subdivision (b) On application, the court may, on any terms as may be just, relieve a party from a default taken against it due to mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) Setting aside the default is within the sound discretion of the trial co...

Excerpt: ...ng that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d...

Excerpt: ...lso been defaulted after his answer was stricken due to his repeated refusal to comply with court orders requiring him to appear for his deposition. Therefore, both defendants are now deemed to have admitted the allegations of the complaint, including the allegations that they made false and defamatory statements to third parties accusing plaintiff of being a child molester. As a result, they are subject to having a default judgment entered again...

Excerpt: ...nt with the court's order within 10 days of the date of service of this order. Explanation: Defendant moves for summary judgment or adjudication of plaintiffs' negligence/wrongful death claim on the ground that its employee Dr. James Kuo did not breach the standard of care. Defendant has presented the declaration of its expert, Dr. Gary Steinke, who opines that Dr. Kuo's care and treatment of plaintiffs' decedent did not fall below the standard o...

Excerpt: ...al responses render the motion moot as to these requests. To grant the motion to compel defendant Titlemax of California, Inc. (“defendant”) to provide further responses to requests for production numbers 24 and 25. Defendant shall provide verified further responses within 10 days of the date of service of this order. (Code Civ. Proc., § 2031.310.) To deny the motion to compel defendant to provide unredacted copies of the documents regarding...

Excerpt: ...�Cross‐Complainant”) Tentative Ruling: To continue the hearing on this motion to September 15, 2022, at 3:30 p.m. in Department 503, for supplemental briefing as set forth below. Briefing schedule is as follows: Cross‐ Defendants' initial brief shall be filed on or before August 12, 2022. CrossComplainant's opposition shall be filed on or before August 22, 2022. Reply, if any, shall be filed on or before August 29, 2022. Explanation: Cross�...

Excerpt: ... action: (1) retaliation in violation of Labor Code section 1102.5; (2) retaliation in violation of Government Code section 12940, subdivision (h); (3) wrongful termination in violation of public policy; and (4) defamation. All four cases of action are alleged against Stoneledge. The only claim alleged against Jorgensen is the fourth cause of action for defamation. Defendants jointly move for summary judgment or, in the alternative, summary adjud...

Excerpt: ...test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether the plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of the plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) For the purpose of testing the sufficien...

Excerpt: ...wer and cross‐complaint within 10 days of the clerk's services of the minute order. Explanation: The trial court has broad discretion to vacate the judgment and/or the clerk's entry of default that preceded it. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the statutory time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Here...

Excerpt: ... Tentative Ruling: To overrule the demurrers and deny the motions to strike. (Code Civ. Proc., §§ 430.10, subds. (e), (f), 435, 436.) Defendants FTF Enterprises, Inc. and Remarc, Inc. dba Fox Property Management shall file their answers to the Third Amended Complaint within ten (10) days from the date of service of this order. Explanation: General Demurrer Both demurring defendants challenge the sufficiency of the fourth and sixth causes of act...

Excerpt: ...a v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9.) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally certified for s...

Excerpt: ...ns on defendants John Mahoney and Laura Mahoney. Explanation: The court has personal jurisdiction over a party “from the time summons is served on him provided by Chapter 4 ….” (Code Civ. Proc., § 410.50, subd. (a).) The court may set aside a default in the event that service of a summons has not resulted in actual notice to a party in time to defend the action. (Code Civ. Proc., § 473.5, subd. (a).) This section is designed to provide re...