Excerpt: ...To grant plaintiff's motion for terminating sanctions against defendant Carney. (Code Civ. Proc., § 2023.030.) To strike defendant Carney's answer and enter default against him. Explanation: Defendant Castillo's Motion for Reconsideration: A party moving for reconsideration must show that there are “new or different facts, circumstances, or law” that justify reconsideration of the order. (Code Civ. Proc. § 1008, subd. (a).) “A party seeki...

Excerpt: .... 1 and plaintiff Westlands Water District Distribution District No. 2 (collectively, “Westlands”). (Code Civ. Proc., § 860 et seq.) Explanation: 1. General Principles of Validation Actions “A public agency may upon the existence of any matter which under any other law is authorized to be determined pursuant to this chapter, and for 60 days thereafter, bring an action in the superior court of the county in which the principal office of the...

Excerpt: ...f and failed to pay him wages owed. All defendants but NextStep Arthropedix, LLC were dismissed following grant of their motions to quash service of summons. They seek costs as prevailing parties pursuant to Code of Civil Procedure section 1032. “In the absence of a specific Labor Code provision, costs are awarded in employment dispute matters under Code of Civil Procedure section 1032.” (Ling v. P.F. Chang's China Bistro, Inc. (2016) 245 Cal...

Excerpt: ...006, plaintiffs were hired by the defendant Panoche Water District (“District”) as “canal men.” As such, they operated, maintained, produced, stored, transmitted and distributed water for irrigation, both domestic and industrial purposes. Plaintiffs allege that, prior to November 2016, the District violated wage and hour laws by not paying them overtime for work over 8 hours a day and/or work over 40 hours a week. On May 10, 2018, plainti...

Excerpt: ...e disputes are 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. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) Written Agreement to Arbitra...

Excerpt: ...ith and Raquel Morelos; and (3) Motion to Quash Service of Summons by Defendants Brandi Marie Smith and Raquel Morelos Tentative Ruling: To sustain the general demurrer for failure to state sufficient facts as to the first through seventh and ninth causes of action, with leave to amend. To sustain the special demurrer for uncertainty as to the entire pleading, with leave to amend. To grant the motion to strike as to the entire pleading pursuant t...

Excerpt: ... burden of demonstrating that (1) an alternative forum is available; (2) that said alternative forum is adequate; and (3) that the balance of private and public interest factors tilts heavily in favor of the alternative forum. (Stangvik v. Shiley (1991) 54 Cal.3d 744, 751.) With respect to the first requirement, an alternative forum is “suitable” only if (1) there is jurisdiction over the defendant in the alternate forum; and (2) there is no ...

Excerpt: .... All new allegations are to be set in bold. Explanation: A demurrer is only used to challenge defects that appear on the face of the pleading under attack, or from matters outside of the pleading that are judicially noticeable. (Code Civ. Proc., § 430.10; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Extrinsic evidence from the pleading otherwise cannot be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)1 Defendant general...

Excerpt: ...chment) causes of action. To grant leave to amend as to the third and fourth causes of action, but no leave to amend as to the sixth cause of action. Explanation: Breach of Bylaws (Second Cause of Action) “Whether a set of bylaws constitutes a contract ‘turns on whether the elements of a contract are present.'” (O'Byrne v. Santa Monica‐UCLA Medical Center (“O'Byrne”) (2001) 94 Cal.App.4th 797, 808, quoting Scott v. Lee (“Scott”) (...

Excerpt: ...ions to compel verified responses to form interrogatories ‐ general (set one), special interrogatories (set one), and demand for inspection of documents (set one) moot, as the requested responses appear to have been provided. To grant defendant's motion that the truth of the matters specified in the request for admissions (set one) be deemed admitted unless plaintiff serves, before the hearing, a proposed response to the requests for admission ...

Excerpt: ...ber 14, 2021. No reply to the response will be permitted. The Court continues the hearing to October 21, 2021, at 3:30 p.m., in Department 503. Explanation: Background On or about 2006, plaintiffs were hired by the defendant Panoche Water District (“District”) as “canal men.” As such, they operated, maintained, produced, stored, transmitted and distributed water for irrigation, both domestic and industrial purposes. Plaintiffs allege that...

Excerpt: ...ompel arbitration with JAMS. Explanation: With a motion to compel arbitration, the moving party 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...

Excerpt: ... litigation by eliminating needless trials. (Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558, 562.) Summary judgment is permissible in actions for declaratory relief. (Walker v. Munro (1960) 178 Cal.App.2d 67, 70‐71, overruled on other grounds by Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055.) Plaintiffs seek declaratory relief by judicial determination that the commercial general liability policy issued by defendant, for t...

Excerpt: ...rike, without leave to amend, as to request 1 (page 5, paragraph 22), request 2 (page 14, paragraph 81), and request 3 (page 16, paragraph 92). To grant defendant's motion to strike, with leave to amend, as to request 4 (page 16, paragraph 95). Plaintiffs are granted 20 days, running from service of the minute order by the clerk, to file and serve a third amended complaint. All new allegations in the amended complaint are to be set in boldface ty...

Excerpt: ...e).) To grant the motion to strike, with leave to amend. (Code Civ. Proc., § 436, subd. (a).) Plaintiff shall serve and file her third amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface type. Explanation: Demurrer Fourth Cause of Action for Constructive Fraud In ruling on a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that ma...

Excerpt: ...d Motor Company (“defendant” or “Ford”). As a part of that transaction, plaintiff signed a Retail Installment Sales Contract (“RISC”) which contained an arbitration clause. After problems with the vehicle ensued, this “lemon law” action was filed on February 19, 2021, against both Future Ford and Ford. However, plaintiff stated separate causes of action against each defendant. The causes of action stated against Ford are three cau...

Excerpt: ... bench, petitioners seek to have the court award fees in addition to those that were conferred in the arbitration award that was served July 8, 2020 and that petitioners sought to confirm on February 5, 2021. The petition to confirm the award did not request attorney fees pursuant to the parties' agreement. (Petition to Confirm, filed February 5, 2021, ¶ 10f.) The arbitration award was confirmed and entered as judgment on March 4, 2021. The time...

Excerpt: ...e Civ. Proc., § 437c.) To deem Aladdin's motion for summary adjudication of the eighth cause of action to be a motion for judgment on the pleadings, and to grant the motion without leave to amend for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438.) Explanation: Plaintiffs have sued Aladdin's Carpet for negligence and negligent infliction of emotional distress after their property was stolen from a sto...

Excerpt: ...summary judgment. (See Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1, 8.) To prevail on the motion, plaintiffs must show that the order granting the motion for summary judgment was against the law, there was insufficient evidence, the court committed an error of law, or there was an incorrect or erroneous legal basis for the order that was not consistent with and not supported by the facts. (Code Civ. Proc., §§ 657, 663.) Plainti...

Excerpt: ... the complaint may be amended will run from service of the order by the clerk. All new allegations shall be in boldface type. Explanation: “Standing is the threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer.” (Martin v. Bridgewater Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.) A minor may have standing for a wrongful death cause of action “if, at the time of the decedent's...

Excerpt: ...acate [the arbitrator's] award.” (Code Civ. Proc., § 1285.) “A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.” (Code Civ. Proc., § 1288.) “‘[I]f one wishes to have an award vacated or corrected he must act within onehundred days of service of the award or be precluded from attacking the award.'” (Coord...

Excerpt: ...court may ... in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading ....” (Code Civ. Proc., § 473, subd. (a)(1); see also Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777 [strong judicial policy favoring resolution of all disputed matters in one action].) “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as ...

Excerpt: ...ney C. Haron, a professional corporation, in the amount of $1,301.20. (Code Civ. Proc., § 2023.030, subd. (a).) Sanctions must be paid to the Vogl Meredith Burke LLP law firm within 30 days of the clerk's service of the minute order. Explanation: Motion to Compel Plaintiff's Deposition Code of Civil Procedure section 2025.450, subdivision (a) states that, “[i]f, after service of a deposition notice, a party to the action ... without having ser...

Excerpt: ...s to this defendant, a dismissal of the other common counts must be filed and a judgment submitted within 10 days of notice of the ruling. Notice runs from the date that the minute order is served by the court, plus five days for service via mail. (Code Civ. Proc., § 1013.) Explanation: On December 23, 2020, plaintiff filed a Judicial Council form complaint alleging common counts for “open book account,” “account stated in writing,” “m...

Excerpt: ...ses of action. Plaintiff shall serve and file his second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: First and Second Causes of Action – Breach of Written and Oral Contract: In its order sustaining the demurrer to the original complaint, the court noted that plaintiff had alleged that there was a written agreement, but did not attach it to the complaint. Plaintiff...

Excerpt: ...s otherwise denied. All requests for sanctions are denied. Explanation: Plaintiff moves to compel responses from defendant Rattaire to the first set of form interrogatories, special interrogatories, production demands, and requests for admission. However, defendant Rattaire served responses to the discovery requests, albeit late. Since the responses were late, any objections are waived. (See Code Civ. Proc., §§ 2030.290, subd. (a); 2031.300, su...

Excerpt: ...ys for service via mail. (Code Civ. Proc., § 1013.) Explanation: As a matter of law, where the cause of action constitutes a tort, a plaintiff may seek punitive damages for “oppression, fraud or malice” by the defendant. (Civ. Code, § 3294, subd. (a)) The statute contains its own definitions: • “Malice” means conduct intended by the defendant to cause injury to the plaintiff or despicable conduct that is carried on by the defendant wi...

Excerpt: ...tigation by eliminating needless trials. (Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558, 562.) Summary judgment is permissible in actions for declaratory relief. (Walker v. Munro (1960) 178 Cal.App.2d 67, 70‐71, overruled on other grounds by Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055.) Plaintiffs seek declaratory relief by judicial determination that the commercial general liability policy issued by defendant, for the ...

Excerpt: ...995) 11 Cal.4th 274, 278.) “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1032, subdivision (b), provides: “Except as otherwise express...

Excerpt: ...d. (Code Civ. Proc., §§ 435, 436.) Plaintiffs shall serve and file their first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer to Sixth Cause of Action: AMCO demurs to the sixth cause of action for breach of contract on the ground that it fails to state a cause of action because plaintiffs were not parties to the insurance policy, which was issued by AMCO to ...

Excerpt: ...cation A party may seek summary adjudication of affirmative defenses and duties owed to the plaintiff. (Code Civ. Proc., § 437c, subd. (f)(1).) Summary adjudication must only be granted if it completely disposes of an affirmative defense, or an issue of duty. (Ibid.) The rules applicable to summary judgments apply equally to motions for summary adjudication. (Blue Shield of Cal. Life & Health Ins. Co. v. Sup. Ct. (2011) 192 Cal.App.4th 727, 732....

Excerpt: ...subdivision (c), “summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.” (Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119, 123.) Summary judgment is warranted when the moving party shows by admissible evidence that the “action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c...

Excerpt: ...tion (SLAPP) Overview The anti‐SLAPP statute describes claims within its purview: “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 special motion to strike, unless the court determines that the plaintiff has established that there is a...

Excerpt: ...al fact and the moving party is entitled to judgment as a matter of law.” (Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119, 123.) Summary judgment is warranted when the moving party shows by admissible evidence that the “action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) To satisfy this burden, a moving defendant is not required to “conclusively ne...

Excerpt: ...nd Deandre Whitten; (2) failure to prevent sexual harassment against defendant California Health Benefit Exchange (“Covered California”); (3) hostile work environment against all defendants; (4) retaliation for exercise of California Family Rights Act (“CFRA”) rights against all defendants; and (5) retaliation for exercise of Family Medical Leave Act (“FMLA”) rights against all defendants. Following meet and confer, the parties stipul...

Excerpt: ...o augment in order to add William Spina, M.D. as plaintiff's retained standard of care expert. Explanation: Defendants' motion to strike pursuant to Code of Civil Procedure section 435 and/or section 436 is not the authorized method to exclude expert witnesses from testifying at trial. Those statutes concern striking matter asserted in a pleading. Expert witness disclosures – whether original, supplemental, augmented, or amended – are not ple...

Excerpt: ...nation: “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.) Judicial policy favors resolution of all disputed matters between the parties in the same law...

Excerpt: ... Deborah Ann Fondrliak, owned the other 50 percent interest in the property after the death of her husband. Deborah passed her 50 percent interest in the property to plaintiff by will upon her death. Therefore, plaintiff only has a 50 percent joint tenancy interest in the property at this time based on her receipt of Deborah's share of the property. Nevertheless, plaintiff contends that defendant has abandoned his rights in the property because h...

Excerpt: ...ating other employees' names and contact information to be maintained as “Attorneys' Eyes Only” and not shared with plaintiff; and (2) a Belaire‐West notice, the cost of which to be shared equally by the parties. To decline to award sanctions. Explanation: In the absence of contrary court order, a civil litigant's right to discovery is broad. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the s...

Excerpt: ...Coast Employment Lawyers, APLC, within 30 days of the clerk's service of the minute order. Explanation: The dismissal of the cross‐complaint at issue means the court does not rule on the motion. However, the court is not divested of its authority to determine attorney's fees, and the moving party has requested that the court make a ruling on the attorney's fees sought. (Law Offices of Andrew L. Ellis V. Yang (2009) 178 Cal.App.4th 869, 876.) In...

Excerpt: ...$264,000.00. To order that the parties lodge a proposed judgment (as revised according to footnote 1, below) by August 31, 2021, which lists the class certified, provides that the Court retains jurisdiction to enforce the settlement, and enters judgment on the settlement (with the settlement attached thereto). Notice of said judgment is to be given to class members by an insert with checks distributed, which refers the class to the Court's Odysse...

Excerpt: ...ntative Ruling: To grant. Explanation: A defendant moving for summary judgment bears the initial burden of making a prima facie showing of the nonexistence of any triable issue of material fact; if the defendant meets this burden, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is a triable issue of material fact where the ev...

Excerpt: ...gon‐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 moving party.” (Buehler, supra, 17 Cal.3d at p. 526.) A defendant moving for summary judgment bears the initia...

Excerpt: ...n”), the owner of the subject vehicle driven by Zachary but did not name Zachary as a defendant at the outset. Zachary contends that he was not named as a defendant until a year after the statute of limitations had run against him, and he disputes that plaintiff and his counsel were genuinely ignorant of Zachary's identity at the time the complaint was filed. In an effort to establish that plaintiff and his counsel were not genuinely ignorant o...

Excerpt: ...y. Explanation: A defendant moving for summary judgment bears the initial burden of making a prima facie showing of the nonexistence of any triable issue of material fact; if the defendant meets this burden, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is a triable issue of material fact where the evidence would allow a re...

Excerpt: ...amount of $4,991.07, and Hardeep Singh (“Hardeep”) awarded costs in the amount of $3,764.25. Explanation: These motions relate to separate complaints filed by Surinder and Hardeep concerning the same commercial real estate transaction (sale of a gas station and minimart). Surinder was the seller, and Hardeep was the buyer. The sale process was long and complicated, and there were several addendums to the contract, some of which referenced rel...

Excerpt: ...fendant Osborn and her attorney. (Ibid.) Defendant Osborn shall serve further responses within 10 days of the date of service of this order. Explanation: Plaintiff seeks to compel defendant Osborn to provide a further response to requests 13 and 14, which seek any and all documents, including but not limited to notes, Facebook messages, text messages, memos, emails, letters, or journals sent by Osborn to Castillo, or received by Osborn from Casti...

Excerpt: ...mmary judgment order. Explanation: A defendant moving for summary judgment bears the initial burden of making a prima facie showing of the nonexistence of any triable issue of material fact; if the defendant meets this burden, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is a triable issue of material fact where the eviden...

Excerpt: ...iled will run from service by the clerk of the minute order. To deny the motion to strike the First Amended Complaint. Explanation: Demurrer A demurrer is made under Code of Civil Procedure section 430.10, and is used to test the legal sufficiency of the complaint or other pleading. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The demurrer admits the truth of all facts properly pleaded by the plaintiffs, as well as those that...

Excerpt: ...uld plaintiff desire to file a second amended complaint, that complaint must be filed within 20 days from the date of service of this order and any new allegations must be in bold print. Defendant's request for judicial notice is denied. 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.” (Code Civ. Pro...

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: ...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: ...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: ...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: ...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: ...).) 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...

Excerpt: ...served by May 20, 2021. Defendants shall file and serve any supplemental opposition by June 10, 2021. Explanation: Under Civil Code section 1717, subdivision (a), “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on ...

Excerpt: ...s that he has no minimum contacts with the State of California and there is therefore no basis for exercising jurisdiction over him. He alleges that he is a resident of Ohio, he has never lived or worked in California, and he does not do business in the state. He has no real estate or other property in California. He has never filed a lawsuit in California, or consented to its jurisdiction over him. (See Theken Decl., ¶¶ 2‐8.) He did not empl...

Excerpt: ...bmitted 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 under PAGA. Nor has the legislature provided any structure or standards for making the assessment. Published California case law has not done so either. However, the common practice when ruling on PAGA settleme...

Excerpt: ..., Rory Coetzee, Andrew Westover, Kayleigh Walsh, Raechelle Velarde, and the Law Firm of J. Hector Moreno, Jr. & Associates (“defendants”) to declare plaintiff Madhu Sameer (“plaintiff”) to be a vexatious litigant. (Code Civ. Proc., § 391.) To order plaintiff to post security of $250,000, within 30 days of the date of service of this order, in order to continue litigating the present action. (Code Civ. Proc., § 391.1.) This action is sta...

Excerpt: ...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 welldefined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.'” (Noel v....

Excerpt: ...ate facts sufficient to constitute a cause of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Defendant/crosscomplainant Pasquale De Santis shall serve and file his first amended cross‐complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. To deny plaintiff/cross‐defendant's motion for appointment of a receiver and motion for preliminary injunction. (Code Civ. Proc....

Excerpt: ...nt RV Country, Inc.'s motion to reform the stipulation. To deny plaintiffs' motion for judgment on the pleadings. All objections are overruled. Explanation: Policy of Adjudicating Disputes on their Merits Adjudicating matters on their merits is preferable to seizing upon or taking advantage of an obvious error by an unsuspecting attorney. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 855 [“[T]he policy of the law is to have every litigated case trie...

Excerpt: ...rtinez, and Cathy Ariana Martinez. Explanation: The court previously indicated that it intended to deny the petitions without prejudice, as it was not clear why some minors were receiving substantially more money than others, even though their injuries were very similar. The court also noted that two of the minors, Carlos and Esmeralda, did require treatment from doctors, but Esmeralda was receiving less than Carlos, even though Esmeralda appeare...

Excerpt: ... [4AC] at paragraphs 35-43." The motion to strike these allegations in the general allegation section of the pleading is DENIED. The Court's demurrer order was directed to causes of action, not allegations. These eight paragraphs provide background in addition to describing the plaintiff's emotional state. Causes of action for negligent and intentional infliction of emotional distress have been removed from the pleading. (2) The District contends...

Excerpt: ... plaintiff did not know the location of the accident site and that her use of a scooter within the subject park was forbidden by park rules, and this motion is focused more narrowly on the contention that the crack in the roadway which plaintiff maintains caused the accident was a trivial defect, rather than a dangerous condition of public property. Therefore, this second motion does not fall under the prohibition of repetitive summary judgment m...

Excerpt: ...ning of the contractual language and the circumstances under which the agreement was made (Civ. Code, §§ 1636, 1644, 1647).” (Rice v. Downs (2016) 248 Cal.App.4th 175, 186, internal quotations omitted.) The evidence shows that an entity named Sebastian Enterprises, Inc. agreed with plaintiff to arbitrate any disputes between them. That entity is not a defendant, and no dispute between plaintiff and it is shown. The evidence shows that plainti...

Excerpt: ... for Breach of Contract – Specific Performance Defendant demurs to the first cause of action on the grounds that it fails to state a claim upon which relief can be granted. (Code Civ. Proc., § 430.10, subd. (e).) Specifically, defendant contends that a contract for the sale of real property must be in writing under Civil Code section 1624, subdivision (a)(3), and thus plaintiff's cause of action to enforce an oral contract for the sale of real...

Excerpt: ...4th 701, 706; Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747.) “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.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 42, fn. 7, citing Code Civ. Proc., § 452.) Defendants contend that the allegations of the first amended complaint require that...

Excerpt: ...unitive Damages Allegations from Donald R. Levitt's Cross‐Complaint Tentative Ruling: To sustain cross‐defendants' general demurrer to the third and eighth causes of action, with leave to amend. (Code Civ. Proc., §430.10, subd. (e).) To overrule crossdefendants' general demurrer to the sixth and seventh causes of action. Crosscomplainant is granted 20 days, running from service of the minute order by the clerk, to file and serve a first amen...

Excerpt: ...ve simultaneous briefs on April 7, 2021 which address each of the nine (9) issues identified by the court in bold typeface below. The briefs shall not exceed 15 total pages (exclusive of tables of contents and authorities). Electronic service is permitted. Any requests to exceed this page limit must be brought ex parte pursuant to Fresno County Superior Court, Local Rule 2.72, and California Rules of Court, rules 3.1200 through 3.1207. Explanatio...

Excerpt: ...arbitration under California Code of Civil Procedure section 1281.2 and the Federal Arbitration Act (“FAA”). “California courts traditionally have maintained a strong preference for arbitration as a speedy and inexpensive method of dispute resolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Marke...

Excerpt: ... answer to the first amended crosscomplaint within 10 days of the date of service of this order. Explanation: Plaintiff/cross‐ defendants AMP Trucking and Pannu have moved to strike portions of the cross‐complaint on the ground that the cross‐claims are partially or completely barred by the statutes of limitation that apply to each cross‐claim. However, a general demurrer is normally the correct procedure for challenging a cause of action...

Excerpt: ...e demurrer of defendant National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) to the third cause of action with leave to amend. To overrule National Union's demurrer to the first and second causes of action. To grant National Union's motion to strike in its entirety, with leave to amend. Plaintiff is granted 30 days' leave to file a second amended complaint. The time in which the complaint can be filed will run from the d...

Excerpt: ...ttorney's fees and costs. To grant the motion to strike the prayer for treble damages without leave to amend. Defendant Saint Agnes Medical Center shall file and serve an answer to the First Amended Complaint within 10 days of the clerk's service of this minute order. Explanation: Demurrer “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We al...

Excerpt: ...nce, as attached as “Appendix B” in the record presented by petitioner, was improperly excluded at the hearing before respondent, and to remand the case to be reconsidered in light of that evidence. To order the motion to strike off calendar as moot in light of the ruling on the motion to augment. Explanation: These motions both concern expense vouchers (called TECs) which were submitted to real party in interest California Department of Tran...

Excerpt: ...f no amended pleading is filed, defendant Miguel Torres, individually and doing business as ME Management Services (“defendant”) shall submit a proposed judgment consistent with this order. (Code Civ. Proc., § 438.) Explanation: In this case, defendant's motion for summary adjudication relies exclusively on the pleadings, rather than external affidavits or evidence. As such, it does not test the sufficiency of the evidence, but instead the s...

Excerpt: ... 19CECG01922 Tentative Ruling: To grant the motion to consolidate. Pietro De Santis v. Pasquale and Carmela De Santis, et al., Case No. 19CECG01922, is consolidated with Pasquale and Carmela De Santis as Trustees et al. v. Pietro De Santis, Case No. 19CECG04121, and Pietro De Santis v. Pat De Santis, Case No. 20CECG02264. A copy of this order shall be filed in each case. Pietro De Santis v. Pasquale and Carmela De Santis, et al., Case No. 19CECG0...

Excerpt: ...miss Action on the Ground of Inconvenient Forum Tentative Ruling: To grant the motion to quash service of the summons and complaint on defendants Theken Companies, LLC; Slice Mfg, LLC; e‐ Ceramics, LLC; and Theken Group, LLC. (Code Civ. Proc., § 418.10.) To deny the motion to quash service of the summons and complaint on defendant NextStep Arthropedix, LLC, and the alternative motion to stay or dismiss the action on the ground of inconvenient ...

Excerpt: ..., § 704.750.) Explanation: The court has already granted an order requiring defendants to pay plaintiff $10,711.50 for the receiver's work in carrying out the court's May 10, 2019 order, and ordering defendants to pay $33,065.97 for reasonable attorney's fees and costs incurred in the action. (See court's June 5, 2020 order.) The court also ordered plaintiff to record a lien against the subject property under Health and Safety Code section 17980...

Excerpt: ...hoe Regional Planning Agency v. King (1991) 233 Cal.App.3d 1365, 1375, fn 1.) Plaintiffs' Motion for Summary Judgment/Adjudication A plaintiff's motion for summary judgment asks the court to determine that there is no defense to the entire action. (Code Civ. Proc., § 437c, subd. (a).) In contrast, a motion for summary adjudication deals only with one cause of action within a complaint and is not granted unless it entirely disposes of the cause o...