Excerpt: ...All dates currently on calendar in Case No. 17CECG01880, including the trial date, are vacated. All applicable deadlines will be calculated once the initial trial date is set in the consolidated case. Explanation: There has been no opposition filed to the instant motion. The declaration of counsel for Defendant identifies a stipulation for consolidation signed by nearly all the parties in each action (counsel for the plaintiff in Patron purported...

Excerpt: ... as a fact that Federated Insurance Company “stands in the shoes of” Kjar Rental Company. The supporting evidence cites to a mass of papers filed for a prior motion in this case, without any specification as to where the actual evidence might be located within those filings. The Court declines to hunt through the papers and guess what might support the fact claimed. (Artiglio v. GE (1998) 61 Cal.App.4th 830, 841‐842.) Other evidence cited i...

Excerpt: ...intiff is to pay transfer fees in accordance with Code of Civil Procedure section 399. Explanation: Defendant California Physicians' Service, dba Blue Shield of California (“Blue Shield”) has filed this motion for change of venue to transfer this action to San Francisco County on the ground that Plaintiff, a resident of Fresno County who sustained serious physical and mental injuries in a car accident, and who alleges Blue Shield denied cover...

Excerpt: ... LLC (“Ocwen”) from implementing the impending foreclosure sale of the premises located at 1093 East Menlo Avenue, Fresno California 93710. Plaintiff relied on several arguments in the ex parte application to secure the temporary restraining order. Namely, Plaintiff argued that he was likely to succeed on the merits because there was a break in the chain of title, because Defendants failed to comply with Civil Code section 1095, and because t...

Excerpt: ...planation: Burden on Summary Judgment “A plaintiff moving for summary judgment meets its burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling that party to judgment on that cause of action.” (Pasadena Metro Blue Line Const. Authority v. Pacific Bell Telephone Co. (2006) 140 Cal.App.4th 658, 663; see also Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Comp...

Excerpt: ...den of persuasion thereon (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 it is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Plaintiffs moving for summary judgment bear the burden of persuasion that each element of the cause of action in question...

Excerpt: ...nswered, and, moreover, has asserted affirmative defenses that, if proven, might prove a defense for the claims against Eastgate and Raman. (Cf. Adams Mfg. & Eng. Co. v. Coast Centerless Grinding Co. (1960) 194 Cal.App.2d 649, 655 (if it appears that the defaulting defendant's liability is dependent on the answering defendant being held liable, default judgment is not proper). Here, Volvo has pleaded defenses that the accident was entirely the fa...

Excerpt: ...nswered, and, moreover, has asserted affirmative defenses that, if proven, might prove a defense for the claims against Eastgate and Raman. (Cf. Adams Mfg. & Eng. Co. v. Coast Centerless Grinding Co. (1960) 194 Cal.App.2d 649, 655 (if it appears that the defaulting defendant's liability is dependent on the answering defendant being held liable, default judgment is not proper). Here, Volvo has pleaded defenses that the accident was entirely the fa...

Excerpt: ...y LLP's general and special demurrer to the entire “Bill in Equity” without leave to amend. (Code Civ. Proc. §430.10(e), (f).) To grant State Farm Mutual Automobile Insurance Company's motion for sanctions. (Code Civ. Proc. §128.7.) Claimant Andrew Arthur Wysotski is ordered to pay monetary sanctions in the amount of $2,000 to Sheppard, Mullin, Richter & Hampton, LLP within 30 days of notice of this order. Claimant has filed and then subseq...

Excerpt: ...mages. (Ibid.) Explanation: Motion for Summary Judgment 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 i...

Excerpt: ...complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer Breach of Fiduciary Duty To adequately allege breach of fiduciary duty, a plaintiff must allege a fiduciary relationship, its breach, and damage proximately caused by that breach. (Knox v. Dean (2012) 205 Cal.App.4th 417, 432.) Where a person was once a limited partner, but then sells his or her partnership interest, the “mere fact that...

Excerpt: ...entatives for such claim, and 3) show manageability for trial of all claims. Plaintiff must file that motion by April 17, 2019. Any opposition is due by May 1, 2019, and a reply may be filed on or before May 10, 2019. Explanation: There is no trial date in this action. The claim under Labor Code section 203 is derivative of and dependent on the success of the already‐pled certified claims. The fact that class members have separated from their e...

Excerpt: ...int within 10 days of the date of this order. Explanation: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to ...

Excerpt: ...ied on the merits on September 18, 2018. (See minute order adopting tentative ruling dated September 18, 2018.) A motion that seeks the same relief as a previously denied motion is “an application for the same order” within the meaning of Code of Civil Procedure section 1008, subdivision (b), regardless of “‘“the label attached to it. The law is not a mere game of words.”'” (California Correctional Peace Officers Assn. v. Virga (201...

Excerpt: ...996) 48 Cal.App.4th 1544, discussed the definition of prevailing party under Code of Civil Procedure 1032 and held that, where one meets that definition, fees are to be awarded as a matter of right. There is no discretion to deny fees under such circumstance. (Rancho Mirage Country Club Homeowners Ass'n. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263.) The arguments made by cross‐complainant Westcare California, Inc. (“WestCare”) against any f...

Excerpt: ...ace type. Explanation: A demurrer brought pursuant Code of Civil Procedure section 430.10, subdivision (e), contends that the pleading does not state facts sufficient to constitute a cause of action. In ruling on a demurrer, “the trial court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice[.]” (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 11...

Excerpt: ... mutually agreed upon between him and plaintiff's counsel, or (2) a date, time and place as directed in a Notice of Deposition which is properly served upon him. To order defense counsel, G. Andrew Slater, to refrain from advising Mr. Lee not to answer questions where the objection is not based on privilege. To award monetary sanctions against defense counsel, G. Andrew Slater, in the amount of $2,310, payable within 20 days. In the event a heari...

Excerpt: ...as a result, Defendant has not met his burden pursuant to Code of Civil Procedure section 437c(p)(2). Explanation: On December 7, 2018, Defendant Samuel Lucido filed a Notice of Motion seeking summary judgment. The date listed on the Notice for the hearing was February 21, 2019. On the same day, a Memorandum of Points and Authorities, a Request for Judicial Notice, a Separate Statement of Undisputed Facts, the Declaration of Walt Whelan and the D...

Excerpt: ...icient 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; see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) § 7:3 [“The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is app...

Excerpt: .... Proc. § 430.10, subd. (e).) Defendants shall submit a proposed judgment consistent with the court's order within 10 days of the date of this order. Explanation: As a preliminary matter, defendants' demurrers are procedurally defective, as they fail to set forth the causes of action to which defendants are demurring; nor do they state the statutory bases for each demurrer. Under California Rules of Court, rule 3.1320, subdivision (a), “[e]ach...

Excerpt: ...rial.” (Cal. Rules of Court, rule 3.1332, subd. (c)(7).) However, continuances of trials are disfavored. (Cal. Rules of Court, rule 3.1332, subd. (c).) Postponement should generally be granted only for such a definite period as reasonably necessary to accomplish the purpose for which it is requested. (In re Harrison's Estate (1951)103 Cal.App.2d 12; Hunt v. United Artists Studio (1947) 79 Cal.App.2d 619.) Here, defendants move to vacate the...

Excerpt: ...h the court's summary judgment order. Explanation: A defendant moving for summary judgment or adjudication has the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant meets that burden by showing that one or more elements of the cause(s) of action cannot be established, or that there is a complete defense there...

Excerpt: ..., upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. (Id., emphasis added.) Defendant argues that the “default is void” because the summons served on him named the person served as “Lawrence K. Logan.” Neither the comp...

Excerpt: ...each cause of action, and the special demurrer for uncertainty as to the second cause of action, with leave to amend. To grant the motion to strike, without leave to amend. Plaintiff is granted 10 days' leave to file the First Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Defendant combined a demurrer and a motion to strike, when these motions s...

Excerpt: ...rejudice to the filing of such motions after the joinder issues have been resolved. To grant the motions to file amended complaints in each case. Plaintiff shall have five (5) court days from the date of this order in which to file the amended complaint in each case. Plaintiff is to perfect service in accordance with the applicable provisions of the Code of Civil Procedure. On the Court's own motion, to set Orders to Show Cause (“OSC”) on the...