Excerpt: ...st 11, 2022. Explanation: Code of Civil Procedure section 664.6 provides, in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. (Code Civ. Proc., § 664.6, subd. (a).) Here, the parties have a writing and litigati...

Excerpt: ...uno Lometti because of the default entered against him on July 29, 2021. To deny without prejudice as to defendant American Payroll Outsourcing Inc. because of the dismissal of this party on July 14, 2021. By minute order dated July 8, 2022, the court found that William Reiland is no longer attorney of record for defendant Lometti. Mr. Reiland's suspension and disbarment terminated the attorney‐client relationship by operation of law. (See Civ....

Excerpt: ...of their corporation, Concord Development, Inc. (“Concord”), and are therefore personally liable for Concord's alleged misconduct. The seventh cause of action seeks disgorgement of all money paid to Concord for the project, under the theory that Concord's contractor's license was suspended by operation of law at the time it performed the contract because it failed to obtain workers' compensation insurance for its employees, therefore entitlin...

Excerpt: ...es. Problems with the vehicle ensued, forming the basis of the instant complaint for damages. Plaintiff brought three causes of action against defendant for express and implied violations of warranties afforded through the Song‐Beverly Act. Defendant moves to compel arbitration based on an arbitration clause in a sales contract made between plaintiff and a non‐party, Auto Resources Inc. A trial court is required to grant a motion to compel ar...

Excerpt: ...suant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that 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 r...

Excerpt: ...ley LLC (“Dycora”). The moving brief informs the court that plaintiffs and Dycora have resolved plaintiffs' claims made in the third cause of action, but both sides believe that a court order granting a judgment on the pleadings as to the first and second causes of action is needed to “fully resolve this matter for the Parties and the Court.” (Weintraub Decl., ¶ 10.) These causes of action do not ostensibly appear to be stated against Dy...

Excerpt: ...laint is filed. The requirements of the code relating to the time for service of summons are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute. (Code Civ. Proc., § 583.250, subd. (b).) If service is not made in an action within the time prescribed, the action may not be further prosecuted, no further proceedings may be held in the action, and the action must be dismissed by the court on its ...

Excerpt: ...e to show that Cambridge Spa Group had the authority to act on behalf of defendant CSG Holdings CA, LLC in signing the August 17, 2021 substitution of attorney. Defendant submitted a declaration confirming that the party who signed the August 17, 2021 substitution of attorney, Ian Cahn‐Fuller on behalf of Cambridge Spa Group, had the authority to sign the form on defendant's behalf. (See Cahn‐Fuller Decl., filed May 3, 2022, ¶¶ 3‐4.) The ...

Excerpt: ...n: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading ….” (Code Civ. Proc. § 473, subd. (a); see also Code Civ. Proc., § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) Accordingly, the California Supreme Court has held that...

Excerpt: ...er responses must to be filed “within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing ….” (Code Civ. Proc., § 2031.310, subd. (c), emphasis added.) The parties agreed to an extension of time up to January 3, 2022 for plaintiff to file her motions to compel further responses. (See Pannell Decl. ¶ ...

Excerpt: ...ation and training; signing off on SIERRA VISTA's policies and procedures and/or employee handbook; confirmation of employment dates, resumes, letters, recommendations, accommodations, or any disciplinary action; any record of discipline, retraining and/or termination related to this case and/or similar types of cases or events. PERSONNEL FILE shall NOT include employee's social security number; wage, salary, and tax information, and any other co...

Excerpt: ...ourt review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549, citing Labor Code section 2699(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 court is to “evaluate a...

Excerpt: ... to the fourth cause of action with leave to amend. To sustain the general demurrers to the sixth through eighth and tenth causes of action with leave to amend. A fourth amended complaint shall be filed and served within 10 days of the clerk's service of this order. 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...

Excerpt: ... . . .” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are “allowable as costs under Section 1032” when they are “authorized by” either “[c]ontract,” “[s]tatute,” or “[l]aw.” Here, both the Loan Agreement (the subject of the first cause of action) and the Guaranty (the subject of the Second Cause of Action) provide for attorney's fees. Debtor hereby agr...

Excerpt: ...s . . . .” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are “allowable as costs under Section 1032” when they are “authorized by” either “[c]ontract,” “[s]tatute,” or “[l]aw.” Here, the lease agreement between the parties, attached as Exhibit 1 to the complaint, provides for attorney's fees: 18.16 Attorney Fees. If either Landlord or Tenant institutes...

Excerpt: ...states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. ‘[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.'” (Quelimane ...

Excerpt: ...rsonal injury action arising out of an auto accident allegedly caused by defendant James Hinson, a defendant California Department of Transportation employee. The complaint alleges a single cause of action for motor vehicle negligence. The Judicial Council form complaint checks boxes indicating that plaintiff is required to comply with a claims statute and has complied. (Complaint ¶ 9(a).) Defendants move for summary judgment on the ground that ...

Excerpt: ... to this court, within five (5) days of service of the minute order, a proposed judgment 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 burden of showing ...

Excerpt: ...ended complaint within twenty (20) days of the date of service of this order. All new allegations shall be in boldface. To grant the motion to strike the prayer for exemplary damages. Explanation: Plaintiff filed the instant complaint against defendant on seven causes of action: (1) disparate treatment based on race, color, national origin and ancestry; (2) hostile work environment harassment directed at plaintiff based on race, color, national o...

Excerpt: ...quests are waived due to the failure to serve timely responses. Plaintiff and defendant Central California Ear Nose & Throat Medical Group shall meet and confer in a good faith effort to resolve the discovery disputes. If the discovery disputes are not resolved, plaintiff shall file a separate statement of items in dispute for each motion. A meet and confer declaration, the separate statement, supplemental opposition and reply papers shall be fil...

Excerpt: ...ly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exist are to be resolved in favor of the party opposing summary judgment/adjudication. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562; see also See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900 [“Summary adjudication is a drastic remedy and...

Excerpt: ... The time in which the answer can be filed will run from service by the clerk of the minute order. To grant, in part, and deny, in part, the motion to strike. Explanation: Demurrer Slander Per Se With slander per se under the “accusation of crime” category, courts generally find that the offense must be one involving moral turpitude which is indictable or punishable by death or imprisonment. (Cunningham v. Simpson (1969) 1 Cal.3d 301, 307 [ch...

Excerpt: ...anced remedies under Welfare and Institutions Code section 15657. (Code Civ. Proc., § 437c, subd. (h).) Explanation: In this case, plaintiff Linda Anderson (“plaintiff”) alleges a series of negligent actions by numerous healthcare providers, commencing with her having knee replacement surgery. From there, she suffered through various complications, many of which she alleges were either caused or worsened by the treatment she received from th...

Excerpt: ... 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 settlement ...

Excerpt: ...ensued, forming the basis of the instant complaint for damages. The complaint alleges six causes of action against defendant FCA US LLC (“FCA US”), and one cause of action against defendant Fresno Chrysler Jeep Inc. dba Clovis Chrysler Dodge Jeep Ram (“Clovis CDJR”) for negligent repair. All of the causes of action against FCA US comprise alleged breaches of Civil Code section 1790 et seq. regarding consumer warranties and fraud by omissi...

Excerpt: ...tion Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) “When presented with a petition to compel arbitration, the initial issue before the court is whether an agreement has been formed.” (Diaz v. Sohnen Enterprises (2019) 34 Cal.App.5th 126, 129.) In addition, arbitration is a “ ‘matter of consent, not coercion,' ” and “ ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' ...

Excerpt: ...., § 2023.010, subd. (g); 2030.290, subd. (c); 2031.300, subd. (c).) To dismiss the action against defendant Falcon Private Security, Inc. (“Falcon Security”) only. Falcon Security shall submit a proposed judgment consistent with this court's order within 10 days of the date of service of this order by the clerk. To award monetary sanctions in the amount of $765 against plaintiffs and their attorney of record, Justin B. Toobi, jointly and se...

Excerpt: ... the second amended complaint within 20 days of service of the order by the clerk. Explanation: “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. ‘[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the ...

Excerpt: ...”) argues that plaintiff failed to comply with Fresno County Superior Court Local Rule, rule 2.1.17, by failing to first obtain the court's permission to file his motion. At issue, is whether the court's June 2, 2021 Order After Pretrial Discovery Conference granted such permission to plaintiff to file the instant motion to compel further responses to defendant's supplemental responses to the request for production of documents, set one. The re...

Excerpt: ...ency, California Department of Corrections and Rehabilitation, Brown, Schwarzenegger, Kernan, Beard, Cate, Hubbard, Hysen, Rothschild, Frauenheim, Trimble, Yates, Allen, Bonilla, Briggs, Lewis, Lozano, Martinez, Van Leer, and Uranday (“State defendants”) is sustained, without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) The motion to strike is taken off calendar as moot in light of the ruling on the demurrer, and because the motio...

Excerpt: ... numerous healthcare providers, commencing with her having knee replacement surgery. From there, she suffered through various complications, many of which she alleges were either caused or worsened by the treatment she received from the various defendants. Plaintiff's husband, Lloyd Anderson, also sued for loss of consortium against each defendant, but he died on December 20, 2019. Dr. Griffin seeks summary judgment of Ms. Anderson's twenty‐six...

Excerpt: ...rder. Explanation: In her complaint, plaintiff alleges two causes of action (negligence and intentional tort) against defendant Kate Watts, an instructor employed by State Center Community College District (“SCCCD”). Paragraph 5 of the complaint is where plaintiff is to check boxes indicating whether she is required to comply with a claims statute, and either has complied or is excused from complying. Plaintiff checked no boxes, indicating sh...

Excerpt: ... (“RAA”) demur to the twelfth cause of action of the fourth amended complaint, filed on May 19, 2021. In this iteration of the complaint, plaintiffs added RAA to the Private Attorneys General Act (“PAGA”) cause of action for penalties under PAGA. Exhaustion of Administrative Remedies Defendants first contend that plaintiffs failed to exhaust administrative remedies as to RAA. Under PAGA, a plaintiff must comply with statutory prerequisite...

Excerpt: ...e plaintiff's complaint and dismiss the action against defendant Ittai Hernandez Rodriguez. To order plaintiff to pay additional monetary sanctions of $435 to plaintiff's counsel, Miller & Ayala, LLP, within 30 days of the date of service of this order. (Code Civ. Proc., § 2023.010.) Defendant shall submit a proposed judgment consistent with the court's order within 10 days. Explanation: Code of Civil Procedure section 2023.010, subdivision (g) ...

Excerpt: ...has emphasized, “any SLAPP [(strategic lawsuit against public participation)] defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Attorney's Fees While plaintiff has not filled an opposition to challenge the amount of fees to be awarded, the court may only award a reasonable fee. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362.) Accordingly, the co...

Excerpt: ...liction of emotional distress for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) To grant leave to amend as to the fourth cause of action. To deny both defendants' motions to strike the prayers for punitive damages, predeath pain and suffering damages, and attorney's fees from the first amended complaint. To grant the motions to strike with regard to the prayer for treble damages under ...

Excerpt: ...County Economic Opportunities Commission (collectively “defendants”) demur on the ground that the complaint fails to allege facts sufficient to state causes of action against them and based on the applicable for statutes of limitations. Defendants specifically challenge the fourth, sixth, seventh, and eighth causes of action, for, respectively, intentional infliction of emotional distress, defamation, intentional interference with prospective...

Excerpt: ...ve Ruling: To deny the motion to dismiss and the motion to strike. To overrule the general demurrer on the ground of failure to state compliance with the Government Claims Act as to plaintiff Marissa Mercado, as successor‐in‐interest to the Estate of Maria Cumplido, and sustain as to plaintiff Marissa Mercado, an individual, and plaintiff Vanessa Mercado, with leave to amend. To overrule the general demurrer to the ninth cause of action on th...

Excerpt: ...in 10 days of service of the order by the clerk. To overrule the general demurrer to the second cause of action. (Code Civ. Proc., § 430.10, subd. (e).) To grant judicial notice of items nos. 1 and 2 of defendant's request, but to deny item nos. 3 and 4. Explanation: “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties....

Excerpt: ...tion: Meet and Confer The parties have not met and conferred as required by Code of Civil Procedure section 430.41, subdivision (a) and section 435.5, subdivision (a). Defense counsel's declaration filed April 26, 2022, and again on May 2, 2022, advises of two phone calls to plaintiffs' counsel's office on April 22, 2022, which were answered with a recording indicating no voicemail was set up and ending the call. There was no effort to contact pl...

Excerpt: ...eviating [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 privilege against sel...

Excerpt: ... on or before May 19, 2022. Explanation: This is a personal injury action arising out of an automobile accident allegedly caused by James Hinson, a Department of Transportation employee. The complaint alleges a single cause of action for motor vehicle negligence. The Judicial Council form complaint checks boxes indicating that plaintiff is required to comply with a claims statute and has complied. (Complaint ¶ 9(a).) Defendants move for summary ...

Excerpt: ...the purposes of approving the settlement. Therefore, the court must first determine whether the class should be certified before deciding whether the settlement should be preliminarily approved. 1. Class Certification Where certification of a class is sought in conjunction with settlement, the motion is treated the same as if it were a motion solely for certification but for one factor – the proponent need not prove the case is manageable for t...

Excerpt: ...grant the motion to strike in its entirety, without leave to amend. (Code Civ. Proc., § 436.) Explanation: Demurrer to First Cause of Action: Defendants demur to the first cause of action for breach of written contract, contending that plaintiff has not alleged a valid claim because the written contract only provides that plaintiff has a right of first refusal if defendant Don Milligan either decides to transfer the business to a third party, di...

Excerpt: ...d Statewide General Election ballot that proposed to authorize the City of Fresno (“City”) to collect a 3/8 percent sales and use tax. The initiative received 52.17 percent affirmative votes and was declared failed on December 12, 2018 by the Fresno City Council, which believed that two‐thirds voter approval was required. Fresno Building Healthy Communities (“FBHC”) protested that decision, contending that only a simple majority was nee...

Excerpt: ...Cal. 2014) 63 F.Supp.3d 1171, cited for the first time by plaintiffs during oral argument on the motion and relied on by the court in its April 4, 2022 order denying the motion with respect to the trespass to chattels/conversion claims. The parties are to appear at the hearing on April 26, 2022, at 3:30 p.m. in Department 503, to discuss the briefing schedule and new trial date. To deny the request to stay the trial. Explanation: Motion for Recon...

Excerpt: ...issues set forth below. All briefing must be filed on or before May 14, 2022. To vacate the existing trial date, trial readiness date, and mandatory settlement conference and schedule a trial setting conference on May 26, 2022, at 3:30 p.m., in Department 503. Explanation: Reconsideration of Court's December 9, 2021 December 21, 2021 Orders Deeming Requests to Admit Truth of Facts against Plaintiffs, Granting Defendant's Motions to Compel Plainti...

Excerpt: ...��) (collectively, “crosscomplainants”) an immediate duty to defend against plaintiff Gene Miller's (“plaintiff”) claims pursuant to the contractual language. To grant, in part, summary adjudication of Issue 3: Parsons and FMC's November 18, 2019 tender letter triggered Securitas' duty to immediately defend and indemnify Parsons and FMC against plaintiff's complaint. To deny summary adjudication of Issue 2: Securitas must indemnify Parson...

Excerpt: ...ervice of summons did not result in actual notice; and (3) The judgment is void due to plaintiff and plaintiff's counsel's conspiracy to commit fraud and because the court lacks jurisdiction to enter a judgment on a defendant based on a frivolous complaint. Relief Pursuant to Code of Civil Procedure section 473, subdivision (b) The trial court has broad discretion to vacate a judgment and/or the clerk's entry of a default that preceded it. Howeve...

Excerpt: ...on plaintiff's complaint in favor of defendant James Britton (“Britton”). 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 issue to be determined by the trial court in consideration of a motion for summary judgment is whether or no...

Excerpt: ...e Ruling: To deny. (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c); 1010.) To grant defendants' request for sanctions and to award monetary sanctions in the total amount of $800 against plaintiffs' counsel, payable within 30 days of the date of the clerk's service of this order. (Code Civ. Proc., §§ 2030.300, subd. (d); 2031.300, subd. (c); 2023.010, subd. (h).) Explanation: Timeliness of Motions A notice of motion to compel fur...

Excerpt: ...xamination (“IME”). (Code Civ. Proc., §§ 2032.310, 2032.320.) To find defendants' motions to compel responses to defendants' requests for production of documents, sets two and three, moot in light of plaintiff's responses to those discovery requests, served on March 11, 2022. To impose monetary sanctions in the total amount of $720 in favor of defendants and against plaintiff, payable within 30 days of the date of this order, with the time ...

Excerpt: ...or April 21, 2022, at 3:30 p.m., in Department 503. The parties are directed to meet and confer on proposed trial dates, as previously ordered, in light of their prior stipulation to continue the trial date. (See September 15, 2021 Minute Order.) Explanation: Under Code of Civil Procedure section 473, subdivision (a), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding ...

Excerpt: ...uperior Court (2014) 227 Cal.App.4th 226, 242.) However, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, sub. (f)(1); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal adjudication prohibited].) California Rules of Court, rule 3.1350(b) provides in relevant part [emp...

Excerpt: ...edaction, and instructing that the statement “unrelated medical condition” to justify a redaction is insufficient. Plaintiff timely files the present motion for reconsideration to vacate the February 2, 2022 order.1 Reconsideration Motions for reconsideration fall under the purview of Code of Civil Procedure section 1008, which states in pertinent part: When an application for an order has been made to a judge, or to a court, and … granted,...

Excerpt: ...s Nos. 6, 28, 29, and 32, and Request for Production of Documents Nos. 12, 31, and 34. Defendant shall serve further verified responses without objections and produce all responsive documents within 30 days of service of the order by the clerk. Private patient information shall be redacted and be limited to the time period ten days prior to the decedent's admission. To deny the motions as they relate to Special Interrogatory No. 5 and Request for...

Excerpt: ...action. (Code Civ. Proc., § 437c.) Defendants' evidentiary objection was not ruled upon as it was not material to the determination of the motion. (Code Civ. Proc., § 437c, subd. (q).) Explanation: Burden on 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, but merely discovers, th...

Excerpt: ...ue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc., § 877.6, subd. (a)(1).) A determination that the settlement was made in good faith bars any other joint tortfeasor or co‐obligor from further claims against the settling tortfeasor or co‐obligor for equitabl...

Excerpt: ...n plaintiff Melissa Proudian's Request for Admissions, Set One, are deemed admitted by defendants Sandra Perez and Anna Alvarez, unless defendants serve, before the hearing, a proposed response to the request for admissions that is in substantial compliance with Code of Civil Procedure Section 2033.220. (Code Civ. Proc., § 2033.280, subd. (c).) To impose monetary sanctions in favor of plaintiff Melissa Proudian, and against defendant Sandra Pere...

Excerpt: ...for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them. . . . The owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground of liability is the proprietor's s...

Excerpt: ...��). (Lab. Code, § 2698 et seq.) Particularly, “PAGA settlements 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; see also Lab. Code, § 2699, subd. (l)(2). This court assesses settlement proposals under PAGA using the standards set for class actions as discussed in Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4t...

Excerpt: ...2 and 33 of the complaint, without leave to amend. (Code Civ. Proc., § 436, subd. (a).) To sustain Clovis Unified School District's (“CUSD”) demurrer to the fourth cause of action, with plaintiff granted 10 days' leave to amend the fourth cause of action only. (Code Civ. Proc., § 430.10, subd. (e).) The time in which the complaint may be amended will run from service of the order by the clerk. Explanation: Aprile's Demurrer Aprile demurs to...

Excerpt: ...s a series of negligent actions by numerous healthcare providers, commencing with plaintiff Linda Anderson having knee replacement surgery. From there, plaintiff suffered through various complications, many of which she alleges were either caused or worsened by the treatment she received from the various defendants. Plaintiff's husband, Lloyd Anderson, also sues for loss of consortium against each defendant. The court must always examine the plea...

Excerpt: ...declaration to inform the court whether this discovery was timely served, with said declaration to be filed on or before Tuesday, April 19, 2022. Provided the responses are timely served, the court intends to deny the request for terminating sanctions, but will order monetary sanctions, for this motion only. Explanation: Provided plaintiff serves verified responses to the at‐issue discovery (as this court has already ordered him to do), termina...

Excerpt: ...ion, plaintiffs signed a Retail Installment Sales Contract (“RISC”) which contained an arbitration clause. Problems with the vehicle ensued, and this “lemon law” action was filed on August 4, 2020, against MBUSA only. Plaintiffs did not sue the dealer. The complaint alleges the following causes of action: (1) Violation of the Song‐Beverly Act – Breach of Express Warranty; (2) Violation of the Song‐Beverly Act – Breach of Implied W...

Excerpt: ... to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Defendants shall serve and file their answers to the complaint within 10 days of the date of service of this order. Explanation: Second Cause of Action: Defendants demur to the second cause of action for violation of the Rosenthal Fair Debt Collection Practices Act (the “Rosenthal Act”) on the ground that plaintiff has not and cannot state a valid claim because she adm...

Excerpt: ...n five days of service of the minute order, a proposed judgment consistent with the summary judgment order. To find defendant's motions to compel plaintiff to provide further responses to form interrogatories, special interrogatories, and requests for production of documents moot in light of the court's ruling on defendant's summary judgment motion. Explanation: This is a slip and fall personal injury action. Plaintiff alleges that, on June 7, 20...

Excerpt: ...braced in or affected by the appeal filed by defendant on June 17, 2019, and that the perfecting of the appeal stayed the motion. Thus, the court found, by operation of law, that it lacked jurisdiction to hear the motion, vacated the hearing, and directed the moving party to reschedule the hearing on the motion once the appeal was no longer pending. (See August 28, 2019 Minute Order). The judgment was affirmed on December 7, 2021, the remittitur ...

Excerpt: ...plainant Joel Swanbom for a total of two (2) additional hours. Explanation: Plaintiff seeks relief from the statutory limitation on deposition examination, absent a court order, of seven hours of total testimony. Code of Civil Procedure section 2025.290 provides that, barring certain exceptions not present here, “a deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to seven hours of...

Excerpt: ...Proc., § 685.040.) Explanation: Under Health and Safety Code section 17980.7, subdivision (c)(11), “[t]he prevailing party in an action [to abate a nuisance] pursuant to this section shall be entitled to reasonable attorney's fees and court costs as may be fixed by the court.” (Health & Saf. Code, § 17980.7, subd. (c)(11).) Also, under Code of Civil Procedure section 685.040, “[t]he judgment creditor is entitled to the reasonable and nece...

Excerpt: ...inute order, an ex parte request dismissing the action as to the moving defendants. Explanation: Plaintiffs allege the following causes of action against the moving parties: fifth cause of action against defendant Nutting Enterprises, Inc. dba CPR Carpet and Restoration (“CPR”) for negligence, and seventh cause of action against CPR's surety, defendant Suretec Indemnity Company (“Suretec”), against its license bond. The fifth cause of act...

Excerpt: ...y in evaluating the case, preparing for trial, or facilitating settlement ....' Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, internal citations omitted, em...

Excerpt: ...ll 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 sustain all defendants' demurrers to the second cause of action, without leave to amend. Plaintiff is granted 20 days' leave to file a second amended complaint. The time to file the second amended complaint will run from service by the clerk of the minute orde...

Excerpt: ...rant defendants' motion to strike punitive damages, with leave to amend. To deny defendants' motion to strike general damages. Plaintiffs are granted 20 days' leave to file an amended complaint. The time in which an amended pleading may be filed will run from service by the clerk of the minute order. All new allegations in the amended complaint are to be set in boldface type. Explanation: The second amended complaint alleges four causes of action...

Excerpt: ...a issued for the business records of David W. Cardona, M.D., relating to the care, treatment and examination of plaintiff. (Mafud Decl., ¶ 4, and Ex. B.) On March 25, 2021, defendant issued said subpoena. (Ibid.) The subpoena set a production date of April 22, 2021. (Ibid.) On August 11, 2021, counsel for defendant sought to meet and confer with Cardona regarding the failure to produce any responsive records. (Id., ¶ 6, and Ex. C.) To date, Car...

Excerpt: ...ims and cross‐claims alleged against them in this consolidated action. (Code Civ. Proc. § 437c.) Explanation: Defendants have met their burden of presenting evidence showing that they were not negligent and did not cause or contribute to the injuries suffered during the subject accident. Hub Group has presented evidence that it was not the owner of the trailer towed by Jorge Torres at the time of the accident, and it had no involvement in the ...

Excerpt: ... it deems proper … [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).) Although the court may strike pleadings “not filed in conformity with its prior rulings” (Ricard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157, 162), motions for such relief are “addressed to...

Excerpt: ... settlement of any civil 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. (i)(2).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or standards for making the assessment. Published California case law...

Excerpt: ...nt of $1,425, payable by plaintiffs and by defendants John G. Hein and Specialty Fresh, jointly and severally, on or before February 15, 2022. Explanation: Subject Complaint The subject complaint was filed by plaintiffs Raul Santellan and RNS Farms, a California limited liability company, against defendant John G. Hein and his company Specialty Fresh, a California limited liability company; defendant Mike Watts, and his company Grow Pure Citrus, ...

Excerpt: ...l arbitration, defendants must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐414; Hotels Nevada v. L.A. Pacific Ctr., Inc. ...

Excerpt: ...es to the requests for production of documents, and to compel third party Cal Pure Produce, Inc. to produce documents in compliance with the business records subpoena. Defendants and Cal Pure shall serve further responses and produce documents within 30 days of the date of service of this order. Also, to the extent that defendants or Cal Pure withhold any documents under a claim of privilege, they shall provide a privilege log. (Code Civ. Proc., ...

Excerpt: ...ontract, plaintiff has met its burden of producing evidence showing that defendant breached its lease with plaintiff, and that plaintiff was damaged as a result. The elements of a breach of contract claim are (1) the existence of a contract between the parties, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) resulting damage to plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Her...

Excerpt: ...int seeks to recover civil penalties under the Private Attorneys General Act of 2004 (“PAGA,” Lab. Code, §§ 2698 et seq.) for labor violations that defendants allegedly committed against their non‐exempt employees. Defendants move for summary adjudication of the ninth cause of action, arguing that the PAGA notice1 was defective. Specifically, they argue the notice was defective because: (1) it did not adequately allege “facts and theori...

Excerpt: ...f Court, rule 3.770.) Explanation: 1. Introduction “The superior court shall review and approve any settlement of any civil 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. (i)(2).) 2. Notice to Labor and Workforce Development Agency Plaintiff's counsel states that notice of the settlement was given to the Labor and Workfor...

Excerpt: ...Code, § 2699, subd. (l)(2).) PAGA itself does not set forth a clear applicable standard for approval of such settlements. (See 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., May 8, 2019) 2019 WL 2029061, at *2 [“PAGA does not establish a clear standard for evaluating PAGA settlements.”].)1 Accordingly, this court assesses settlement proposals unde...

Excerpt: ...clarations will not be considered in any way in connection with the motion for class certification or any other proceeding unless nonparties John Morquecho and Ruben Vela submit to deposition. To deny all requests for sanctions. (Code Civ. Proc., § 1987.2.) Explanation: Non‐parties John Morquecho and Ruben Vela failed to appear for their depositions despite issuance of subpoenas requiring their appearance. Defendant sought to depose these indi...

Excerpt: ...nce charges totaling over $460,000. (Mayhew Decl. ¶ 2‐3.) Defendant Billan is a resident of Arizona, and defendant Melonco, LLC is also based in Arizona. The court's file does not reflect that defendant Billan has been served in this action. Notice of the hearing must be served on the defendant at least 16 court days before the hearing. (Code Civ. Proc., §§ 484.040, 1005, subds. (a)(1) & (b).) A proof of service must be filed with the court ...

Excerpt: ...within 30 days of the clerk's service of the minute order. Explanation: Background Plaintiff is a joint powers authority organized and existing under the Commission of the California Statewide Communities Development Authority. Defendant is the owner in fee simple of the residential property located at 2286 East Sierra Avenue, in Fresno, California. Plaintiff and defendant allegedly contracted for the loan of monies to secure improvements to defe...

Excerpt: ...inute order by the clerk, to file and serve a first amended complaint. Explanation: Complaint In a Judicial Council form complaint, plaintiff appears to allege two causes of action against defendant: (1) workplace discrimination/wrongful termination and (2) negligence.2 The allegations in support of the complaint are set forth in attachments to the complaint, specifically an undated letter from plaintiff to the court (which plaintiff refers to as...

Excerpt: ...gment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713, quoting Code Civ. Proc., § 437c, subd. (c).) To prevail on a motion for summary judgment, it is the defendant's burden to prove there is a complete defense or that the plaintiff cannot establish one or more elements of each of his causes of action. (B...

Excerpt: ...onses to Requests for Production of Documents, Set One Tentative Ruling: To deny. Explanation: Motions to compel further responses to interrogatories or requests for production must be accompanied by a declaration showing a “reasonable” and “good faith” attempt to resolve the issues outside of court. (Code Civ. Proc., §§ 2016.040, 2030.300, subd.(b), 2031.310, subd. (b)(2).) Various factors may be considered by the court in determining ...

Excerpt: ... plaintiff filed Case No. 21CECG00398 (“00398”) against defendants Henry Nunez and Henry Nunez Law Corporation for professional negligence and breach of fiduciary duty claims. Plaintiff now brings the present motion to consolidate the two cases. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the acti...

Excerpt: ...ents; and Request for Monetary Sanctions Tentative Ruling: To grant and to award monetary sanctions in the total amount of $730 against plaintiff David Herrera, and his attorney Justin B. Toobi, jointly and severally, payable within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. Plaintiff shall serve verified responses without objections, to defendant Falcon Private Security, Inc.'s For...

Excerpt: ...re the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Code Civ. Proc., §1048, subd. (a).) Consolidation promotes trial convenience by avoiding duplicative procedures, particularly in proving issues common to both actions. (See McClure v. Donovan ...

Excerpt: ...ee. Plaintiff alleges that defendants entered into a contract to purchase four trailers, and defendants breached the agreement by failing to make the required payments. A party moving for summary judgment bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Only when the initial burden of production is met, does the burden shift to the responding party to demonstrate the existence of ...

Excerpt: ...grant the motion to strike, in part, and strike paragraph 36, p. 10:8‐10; to deny as to the remainder of the items. (Code Civ. Proc., § 436.) Defendants shall file their answer to the SAC within 10 days of the date of service of the order by the clerk. Explanation: Demurrer Fifth Cause of Action The fifth cause of action is for intentional interference with prospective economic advantage. The cause of action vaguely alleges that plaintiffs and...

Excerpt: ... defamation, false light, and interference with prospective economic advantage against defendants. Each cause of action refers to or relies on two types of statements: statements made on a GoFundMe page, and statements made to or reported by various news publications. Defendants now bring a special motion to strike the entirety of plaintiffs' complaint, pursuant to Code of Civil Procedure section 425.16. Code of Civil Procedure section 425.16 (th...

Excerpt: ... issues the parties have not agreed to arbitrate.” (Garlach v. Sports Club Co. (2012) 209 Ca1.App.4th 1497, 1505.) “Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute.” (Mendez v. Mid‐Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) Defendant Hyundai Motor America (“HMA”) admits it is not a signatory to the arbitration agreement in...

Excerpt: ... against public participation (SLAPP) statute. (Code Civ. Proc., § 426.16, subd. (g).) To condition relief on limiting the scope of discovery. To deny plaintiff's motion in all other respects. To continue the hearing to December 16, 2021, at 3:30 p.m., in Department 503, to allow the parties to address the proposed scope of discovery as it relates to the legitimate business purpose argument and the discovery parameters allowed pursuant to the an...

Excerpt: ...f service of the minute order by the clerk. Explanation: Demurrer Defendants Orange Cove Amaya Associates ("Amaya") and AMG & Associates, LLC ("AMG") (collectively referred to as “defendants” for purposes of these motions) demur to each cause of action of the complaint, both generally for failure to state a cause of action, and specially, for uncertainty. (Code Civ. Poc., § 430.10, subd. (e), (f).) The court will quickly dispose of the speci...