Excerpt: ...ons Code section 17200. To deny defendant's alternative motion to dismiss the twenty‐eighth cause of action. Explanation: Defendant has not cited to any statutory authority or case law that would support its highly unusual motion to enter a judgment against itself. Thus, the motion violates California Rules of Court, rule 3.1113(b), which requires a moving party to include a memorandum of points and authorities with a concise statement of the l...

Excerpt: ...orceable settlement with plaintiff Robert Endara (“Endara”) following mediation. Contending there was never a meeting of the minds and no enforceable agreement, Endara did not accept Shelby's performance and did not dismiss Shelby from the action. Instead of simply moving to enforce the settlement agreement, Shelby filed a separate action for specific performance and breach of contract (Shelby American, Inc. v. Endara, Case No. 20CECG00202), ...

Excerpt: ... agreement with defendant in this PAGA action. “The superior court shall review and approve any settlement of any civil action filed pursuant to this part.” (Lab. Code, § 2699, subd. (l)(2).) Courts have recognized that PAGA does not set forth the appropriate standard for approval of such settlements. (Flores v. Starwood Hotels & Resorts Worldwide, Inc. (C.D. Cal. 2017) 253 F.Supp.3d 1074, 1075; Patel v. Nike Retail Services, Inc. (N.D. Cal....

Excerpt: ...ty has a substantial interest in 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. . . . (c) Unless the court otherwise orders: (1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared. (2) At any time during the pendency of the...

Excerpt: ...ties moving for summary judgment carry the burden of production of evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A party who asks a court to act in his or her favor also bears the burden of persuasion. (Evid. Code, § 500). Thus, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as ...

Excerpt: ...Motion for Summary Judgment as to Plaintiffs' Entire Complaint (3) Defendant California Department of Transportation's Motion to Bifurcate Trial (Joined by the County of Fresno) Tentative Ruling: To deny both motions for summary judgment filed by defendants County of Fresno (“County”) and California Department of Transportation (“CalTrans”). (Code Civ. Proc., § 437c.) To grant the motion to bifurcate trial. (Code Civ. Proc., §§ 598, 10...

Excerpt: ...ndant moves to strike plaintiff's entire First Amended Complaint on the ground that plaintiff was not genuinely ignorant of defendant's identity at the time the original complaint was filed and the amended pleading therefore does not relate back to the commencement of the original action and is barred by the statute of limitations. Plaintiff claims that he was genuinely unaware of the true identity of defendant at the time the action was commence...

Excerpt: ...Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (20 U.S.T. 361), and service on ABIC through Akebono Brake Corporation (“ABC”), a Michigan corporation, is improper. Without valid service of summons, the court never acquires jurisdiction over a defendant. Thus, the statutory ground for the motion to quash is that the court lacks jurisdiction over the defendant. (Code Civ. Proc., § 418.10, subd. (a)(1).) “When ...

Excerpt: ...ment consistent with the court's summary judgment ruling. 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); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the initial burden of production to make a prima facie showing of the “nonexistence of any triable issue of...

Excerpt: ... adjudication as to one or more causes of action within an action . . . if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action . . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action.” Subdivision (p)(1) addresses summary adjudication when sought by the plaintiff: “A plaintiff . . . has met his or her burden of showing that...

Excerpt: ... (Code Civ. Proc., §§ 598, 1048, subd. (b); Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 503‐504; see also Cook v. Superior Court (1971) 19 Cal.App.3d 832, 834 [where evidence on one issue overlaps with evidence on another issue, it is appropriate to deny bifurcation].) The California Supreme Court has rejected the contention that “broad discovery in [Private Attorney General Act (“PAGA”)] actions should be limited unti...

Excerpt: ...ant Carney also remains liable for all previously imposed sanctions. Defendant Carney shall serve and file his answer to the first amended complaint within 10 days of the date of service of this order. Defendant Carney's attorney shall pay attorney's fees within 30 days of the date of service of this order. The court also admonishes defendant Carney that any further failure to comply with this court's orders may result in the court granting termi...

Excerpt: ...order shall be filed in each case sought to be consolidated. (Cal. Rules of Court, rule 3.350(c).) Explanation: Plaintiffs Krystalynn Sullivan and Dustin Culbert move to consolidate two actions for trial purposes, namely Sullivan, et al. v. Fire Insurance Exchange, et al., Superior Court Case No. 18CECG03812 (the “Sullivan Action”) and Funez v. Fire Insurance Exchange, et al., Superior Court Case No. 19CECG02755 (the “Funez Action”). “C...

Excerpt: ...e, moot. To grant the motion to compel responses to request for production of documents, set one. Plaintiff shall provide verified responses to the request for production of documents, set one, without objections, and shall make responsive documents available, within 20 days of service of this order. To impose monetary sanctions in favor of defendant Osborn, and against plaintiff and his attorney of record, jointly and severally, in the amount of...

Excerpt: ...).) Explanation: The summary judgment procedure “is drastic and should be used with caution.” (Buehler v. Oregon‐Washington Plywood Corp. (1976) 17 Cal.3d 520, 526.) Accordingly, the affidavits of the moving party are strictly construed, while those of the opposing party 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...

Excerpt: ...: Under Code of Civil Procedure section 1710.40, a judgment debtor may move to vacate a sister‐state judgment against it that has been registered or domesticated in California. “A judgment entered pursuant to this chapter may be vacated on any ground which would be a defense to an action in this state on the sister state judgment. . . .” (Code Civ. Proc., § 1710.40, subd. (a).) “The judgment is subject to challenge on a variety of ground...

Excerpt: ...tent with this order within 10 days of service of this order. Explanation: Defendant first moves for summary judgment or adjudication of the wrongful death claim on the ground that it did not breach the standard of care or cause plaintiffs' decedent's death. “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and...

Excerpt: ...tent or results of any arbitration handled under this agreement without the prior written consent of all parties.” To stay the court action pending resolution of the arbitration. Explanation: The moving party must prove by a preponderance of the evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396‐397, 399‐400; Graphic Arts Int'l Union v. ...

Excerpt: ...ings: (1) The party has a substantial interest in 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. (c) Unless the court otherwise orders: (1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared. (2) At any time during the pend...

Excerpt: ... complaint or cross‐complaint may file a cross‐complaint setting forth either or both of the following: (a) Any cause of action he has against any of the parties who filed the complaint or cross‐complaint against him. . . . (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross‐complaint (1) arises out of the sa...

Excerpt: ...sue 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).) Under Tech‐Bilt, Inc. v. Woodward‐Clyde & Assocs. (1985) 38 Cal.3d 488 (“Tech‐ Bilt”), whether the settlement falls within the parameters of the good faith “ball park” is ...

Excerpt: ...on: Defendant contends that its default was taken as a result of mistake, inadvertence, surprise, or excusable neglect. A court has discretion to relieve a party from entry of default or default judgment upon a proper showing of “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.) The defendant has the burden of proving one of th...

Excerpt: ...de Civ. Proc., § 473, subd. (a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) 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, t...

Excerpt: ...il action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (l)(2).) 2. Notice to Labor and Workforce Development Agency Plaintiff's counsel states that notice of the settlement was given to the Labor and Workforce Development Agency (“LWDA”) on December 23, 2020, as required by Labor Code section 2699, subdivision (l)(2). (Favar...

Excerpt: ...djudication as to one or more causes of action within an action . . . if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action . . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action.” Subdivision (p)(1) addresses summary adjudication when sought by the plaintiff: “A plaintiff . . . has met his or her burden of showing that t...