Excerpt: ... seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” ...

Excerpt: ...tion: “In civil litigation, discovery may be obtained from a nonparty only through a ‘deposition subpoena.' [Citation.]” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127; Code Civ. Proc., § 2020.010, subd. (b).) “Any person may serve the subpoena by personal delivery of a copy of it as follows: [¶] . . . [¶] (2) If the deponent is an organization, to any officer, director, custodian of records, or to any agent or employe...

Excerpt: ...intiff Ybarra (6) By defendant to compel independent medical examination of plaintiff Ybarra (7) By defendant to compel plaintiff Ybarra's responses to form interrogatories (set one) (8) By defendant to deem admitted requests for admission (set one) served on plaintiff Ybarra (9) By defendant to compel plaintiff Ybarra's responses to special interrogatories (set one (10) By defendant to compel plaintiff Ybarra's responses to request for productio...

Excerpt: ...h the court's summary judgment order. Explanation: The only issue raised by this motion is whether or not plaintiff filed a written claim under the Government Claims Act (“Act”) prior to commencing this lawsuit, as required for a suit for money or damages against a public entity such as defendant.1 (Gov. Code, §§ 912.4, 945.4; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) The District contends that plaintiff did not do so,...

Excerpt: ...outside of court. (Code Civ. Proc., §§ 2030.090, subd. (a), 2031.060, subd. (a), 2033.080, subd. (a).) The burden is on the party seeking the protective order to show “good cause” for whatever order is sought. (Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal.4th 245, 255; Stadish v. Sup.Ct. (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130; Code Civ. Proc., § 2033.080, subd. (b).) In addition, Fresno Superior Court Local Rule 2.1....

Excerpt: ...breach of the implied warranty of habitability, negligence, intentional infliction of emotional distress, and nuisance. On March 16, 2020, defendant filed a demurrer and motion to strike. The general demurrer was limited to the fourth cause of action for intentional infliction of emotional distress. The court sustained the demurrer and granted the motion to strike with leave to amend. On September 17, 2020, plaintiff filed her Sixth Amended Compl...

Excerpt: ...ing resolution of the arbitration. (Code Civ. Proc., § 1281.4.) Explanation: Under the Federal Arbitration Act (“FAA”), “[a] written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist ...

Excerpt: ...it after expiration of the time to amend. Explanation: Demurrer 1. First Cause of Action – Breach of Fiduciary Duty “The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty, (2) breach of the fiduciary duty, and 3) damage proximately caused by the breach.” (Tribeca Companies, LLC v. First American Title ins. Co. (2015) 239 Cal.App.4th 1088, 1114.) Here, it is the first element that is not suffic...

Excerpt: ...menez, M.D. (“Dr. Jimenez”) demurs to the ninth cause of action for defamation as stated in the First Amended Complaint filed by plaintiffs Kelli Askew and Sean Askew. This cause of action alleges that while Ms. Askew was at the emergency room at Clovis Community Medical Center (CCMC) on February 24, 2019, with complaints of acute abdominal and severe rectal pain, she was subjected to sexual abuse and battery by co‐defendant David Lawrence ...

Excerpt: ...Shackelford, Kristi Shafer individually and as the successor‐in‐interest to and on behalf of the Estate of Justin Vanmeter, and Sherry Guadarrama individually and as the successor‐in‐interest to and on behalf of the Estate of Serena Guadarrama. (Code Civ. Proc., § 436.) The grant of the motion to strike is without leave to amend. To sustain the demurrers to the first and second causes of action as to Veronica Lanuza and Natalie Crosbie, ...

Excerpt: ...uses of action stated against him, namely the first (sexual battery, Civ. Code, § 1708.5), second (common law battery), fifth (intentional infliction of emotional distress), sixth (negligent infliction of emotional distress), and seventh (dependent adult abuse) by plaintiffs Kelli Askew and Sean Askew (“plaintiffs”). Sexual Battery, Civil Code Section 1708.5 (First Cause of Action) Dr. Collins argues that the first cause of action of the Fir...

Excerpt: ...oined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or o...

Excerpt: ...he date of service of this order. Explanation: First, defendant Saint Agnes moves for summary adjudication as to the fourth cause of action for sexual harassment, which is based on a theory that Saint Agnes is vicariously liable for the alleged sexual battery committed by its employee, Victor Mendoza, during the course and scope of his employment. Under the holding of the California Supreme Court in Lisa M. v. Henry Mayo Newhall Memorial Hospital...

Excerpt: ...Procedure section 177.5 for failure to obey this Court's August 6, 2020, September 16, 2020, and November 18, 2020 orders. Evan Selik and Cassandra Cita, or other representative from Simpluris, Inc., are required to appear personally at the order to show cause hearing. The clerk shall serve a copy of this ruling on Simpluris, Inc., Attention: Cassandra Cita, 3194 Airport Loop Drive, Suite C, Costa Mesa, California 93626. Explanation: Judgment was...

Excerpt: ...ration 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. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) ...

Excerpt: ...ceed 10 pages in the length, filed by Friday, January 29, 2021. The motions are continued to Friday, February 28, 2021, at 1:30 p.m., in Department 503, as is the writ of mandate briefing schedule hearing. Explanation: Code of Civil Procedure, section 1094.5, subdivision (e), provides as follows: Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly...

Excerpt: ...eaning of the contractual language and the circumstances under which the agreement was made (Civ.Code, sections 1636, 1644, 1647).” (Rice v. Downs (2016) 248 Cal.App.4th 175, 186.) 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 plaintiff was employed and paid...

Excerpt: ...ainant Pollen Collection & Sales, Inc.'s (“PCS”) motion for summary judgment of plaintiff/cross‐defendant Miguel Duarte's (“Duarte”) complaint, as well as PCS's motion for summary judgment on its cross‐ complaint against Duarte. (Code Civ. Proc., § 437c.) PCS shall submit a proposed judgment consistent with this order within 10 days of service of the minute order. Explanation: PCS's Motion for Summary Judgment/Adjudication of Duarte'...

Excerpt: ...deemed to be true, as it is “not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim. (Perkins v. Superi...

Excerpt: ...of this order. Explanation: Under Code of Civil Procedure section 473.5, “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (Code Civ. Proc., § 473.5, subd. (a).) “The notice of ...

Excerpt: ...eement 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 . . . .” (Code of Civ. Proc., § 1281.2.) “Under this provision, a party to an agreement to arbitrate may not bring an action to compel specific performance of the arbitration provision until he or she can allege not only the existence of the a...

Excerpt: ...ke the Supplemental Declaration of Abigail R. Leaf, filed on October 30, 2020. Explanation: The problems with the signatures of Dr. Peter Leeson and defense attorney Abigail Leaf's declaration, both of which were corrected with later‐filed errata, were minor and have been treated as such in ruling on plaintiffs' objections. The missing signature page on Dr. Leeson's declaration was corrected three days after the moving papers were filed. As for...

Excerpt: ...under the Song–Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to make an initial dete...

Excerpt: ...es shall hold a telephonic or inperson conference pursuant to Code of Civil Procedure section 430.41, subdivision (c). With the amended complaint, plaintiff shall file a declaration detailing compliance with this requirement. Explanation: In this action, plaintiff asserts various claims arising from defendant Don Milligan's refusal to sell his tax and financial planning business to plaintiff pursuant to an oral and written agreement. Plaintiff al...

Excerpt: ...ntos Marquez, and for sanctions; Defendant's motions to compel production of documents, set one, from plaintiffs Angel Santos Cortes, Adaneidy Marquez Del Angel, and George Aldahir Santos Marquez, and for sanctions; and Defendant's motions to compel plaintiffs' appearance at deposition, directed at plaintiffs Angel Santos Cortes, Adaneidy Marquez Del Angel, and George Aldahir Santos Marquez, and for sanctions Tentative Ruling: To grant all motion...

Excerpt: ...iles, Sears & Eanni, within 30 days of the clerk's mailing of the minute order. Explanation: Anti‐SLAPP Attorney Fees and Costs “Any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) The fee award is directed to the party, not the attorney. (Moore v. Kaufman (2010) 189 Cal.App.4th 604, 614.) Although attorney fees may be mandatory, “a partiall...

Excerpt: ...punitive damages, and a prayer for such damages. All new allegations are to be set in boldface type. Any amended pleading shall be filed on or before January 12, 2021. Explanation: I. Punitive Damages The moving parties, defendants Ramon R. Romero and Ana Maria Romero,2 are alleged to be individuals who are also owners of the physical premises at issue, as well as members and managers of the limited liability company defendant. It is their relati...

Excerpt: ...f calendar as moot, as permission to file a second amended complaint is granted. Oral argument for this matter is set on December 17, 2020, at 3:30 p.m., in Department 503. Plaintiff is ordered to appear through CourtCall. Explanation: Welfare and Institutions Code section 6600.08, subdivision (a) states, in pertinent part: “Coalinga State Hospital shall be used whenever a person is committed to a secure facility for mental health treatment pur...

Excerpt: ... to show that plaintiff made statements in her deposition which contradicted the statements made in her declaration opposing this motion. This chiefly consisted of plaintiff's deposition responses to legal contention questions (e.g., “Were you ever subjected to any form of discrimination [or harassment, or retaliation] because of your gender?”). The court initially notes that new evidence is generally not considered on reply, especially where...

Excerpt: ...urth cause of action for sexual harassment, which is based on a theory that Saint Agnes is vicariously liable for the alleged sexual battery committed by its employee, Victor Mendoza, during the course and scope of his employment. Under the holding of the California Supreme Court in Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, a hospital cannot be held liable for the intentional torts of its employee unless there is a ca...

Excerpt: ...f Civ. Proc., §§ 435, 436.) Plaintiff is granted 10 days' leave to file the second amended complaint. The time in which the complaint can be amended will run from the date of service by the clerk of the minute order. New allegations in the second amended complaint are to be set in boldface type. Explanation: Demurrer The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (19...

Excerpt: ...nation: Motion to Quash Service of Summons A summons is issued by the clerk upon request by the plaintiff. (Code of Civ. Proc., § 412.10; Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1107.) Proper service of summons is required to establish personal jurisdiction over a party. (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547.) The plaintiff bears the burden to prove effective service where the defendant properly moves to quash service...

Excerpt: ...answer to the second amended complaint within ten (10) days of the date of service of this order. Explanation: Demurrer: Defendant demurs generally and specially to the twenty‐eighth cause of action in the second amended complaint, contending that there are no facts alleged to show that defendant engaged in any unlawful, fraudulent, or unfair conduct, and that the entire cause of action is uncertain because it fails to allege which statutes or ...

Excerpt: ...may order a separate trial of any cause of action . . . .” (Code Civ. Proc., § 1048, subd. (b).) Also, Code of Civil Procedure section 598 provides: The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial c...

Excerpt: ...ntiffs are granted 20 days' leave to file a second amended complaint. The time in which the complaint may be amended will run from service of the minute order by the clerk. All new allegations shall be in boldface type. Explanation: Demurrer “[T]he rule governing pleading in this state is that a plaintiff need only ‘set forth the ultimate facts constituting the cause of action, not the evidence by which [the] plaintiff proposes to prove those...

Excerpt: ...ke or tax costs. (See Cal. Rules of Court, rule 3.1700(b).) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Item 4 ...

Excerpt: ...s, ascertainable class, (2) of a well‐defined community of interest, and (3) that certification will provide substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who ...

Excerpt: ...tent with the ruling on this motion. Explanation: Judgment creditor (formerly plaintiff) Maricela Vazquez seeks to add three new names as judgment debtors on the judgment entered against Aimhigh Group, LLC (“Aimhigh”) on October 31, 2019: Manjit Singh, Sukhninder Singh, and R&S Diversified, Inc. (“R&S”). Although the opposition was very late‐filed, the court will consider it. The moving party objected to the lateness, but she nonetheles...

Excerpt: ...g arbitration. However, the court severs the confidentiality provision found in paragraph 6 of the Dispute Resolution Agreement, with the remaining provisions continuing in full force and effect. To overrule all of defendant's evidentiary objections. Explanation: When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine: (1) whether t...

Excerpt: ...otherwise, the specific issue of the duty in question, as required by California Rules of Court, rule 3.1350(b) (“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, . . . issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”). Therefore, the court only addresses defendant's motion for sum...

Excerpt: ...lanation: Motion to Quash Service of Summons A summons is issued by the clerk upon request by the plaintiff. (Code of Civ. Proc., § 412.10; Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1107.) Proper service of summons is required to establish personal jurisdiction over a party. (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547.) The plaintiff bears the burden to prove effective service where the defendant properly moves to quash servi...

Excerpt: ...Villalpando, in the amount of $735. (Code Civ. Proc. § 2025.480, subd. (j).) Explanation: If a nonparty disobeys a deposition subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (Code Civ. Proc., § 2025.480, subd. (b); see Unzipped Apparel, LLC v. Bader (2007) 156 CA4th 123, 127.) A nonparty opposing such motion without substantial j...

Excerpt: ...dwin, case number 18CECG01751, shall be the lead case. To deny defendant's motion for compulsory joinder of the minors. (Code Civ. Proc., § 389.) Explanation: Motion to Consolidate Cases Under Code of Civil Procedure section 1048, subdivision (a), "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: ...ng that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549; Lab. Code § 2699, subd. (l)(2) [“The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.”].) The court in O'Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F....

Excerpt: ... 437c.) To deny defendants' motion for summary judgment, and the alternative motion for summary adjudication. (Ibid.) Explanation: Plaintiff's Motion for Summary Judgment/Adjudication Initially, to the extent plaintiff has moved for summary judgment or adjudication of its sole cause of action for judicial foreclosure, the motion is problematic because, as plaintiff admits, the Modoc parcel that constitutes the security for the loan has already be...

Excerpt: ...As that is the only cause of action asserted against Eduardo, plaintiff is entitled to judgment against Eduardo in the sum of $8,697,330.08, plus 10 percent interest (UMF No. 10), accruing at the rate of $2,382.83 per day. (Code Civ. Proc., § 437c.) Plaintiff shall submit a proposed judgment consistent with the court's summary adjudication order within five (5) days of service of the order by the clerk. Explanation: I. Relevant Facts Plaintiff i...

Excerpt: ...ntiff Nevarez. 2. Defendant Is the Prevailing Party Case law makes clear that dismissal under the five‐year statute does not affect prevailing party status under the catalyst theory. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553; Maria P. v. Riles (1987) 43 Cal.3d 1281.) However, the catalyst theory does require a showing that the party advancing it made reasonable attempts to settle the litigation before filing suit. (Tipton–Whittin...

Excerpt: ...California requires admissible proof sufficient to meet the substantial evidence test. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470; Lockhead Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106.) Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well‐defined community of interest, and (3) that certification will provide substantial benefits to litigants and the courts, i.e.,...

Excerpt: ...law.'” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713, quoting § 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. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) To show that the plaintiff cannot establish his claims, the defendant may either (1) a...

Excerpt: ...espect to, in, over or upon property, . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross‐complaint in the superior court for a declaration of his or her rights and duties in the premises. . . . He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties...

Excerpt: ...endants shall be produced as a further response to Request for Production 6. To deny the motion with regard to Special Interrogatories 1, 2, 3, 8, 14, and 17 and Requests for Production 9 and 10. Explanation: There are essentially two major issues raised by this motion: (1) whether plaintiff's assertion of Code of Civil Procedure section 2030.20 (“section 2030.20 election”) in response to Special Interrogatories (SROGs) 5, 8, 11, 14, 17, 24, ...

Excerpt: ...s. This is not the basis for a special demurrer, but is a general demurrer for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) It will be treated as such, and will be dealt with first. The allegations concerning defendant Brix are sufficient to state a cause of action for medical negligence. Plaintiff has sufficiently alleged the duty element, in that an emergency room doctor making admi...

Excerpt: ...wer to the complaint within 10 days of the date of service of this order. Explanation: Defendant demurs to plaintiffs' single cause of action for declaratory relief on the ground that it fails to state facts sufficient to constitute a cause of action. Under Code of Civil Procedure section 1060, “[a]ny person interested under a written instrument, . . . or under a contract, . . . may, in cases of actual controversy relating to the legal rights a...

Excerpt: ...dicate that the instant matter was e‐filed on June 7, 2018. On June 11, 2018, plaintiff's counsel's office filed a second duplicate complaint, identical in every respect to the first case. The duplicate complaint was given case no. 18CECG02066, and the matter was assigned to Judge Hamilton and set for a case management conference on October 9, 2018. The second case was never served on defendant and defendant never appeared. Ultimately, the seco...

Excerpt: ...arily possessed and exercised by members of the medical profession under similar circumstances. [Citations.] ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of...

Excerpt: ...ut any invitation or permission from the court. While the court exercises its discretion to consider these materials for this hearing, the parties are reminded that they must seek leave of court to submit additional materials after a tentative is posted or in excess of the page limit permitted by the California Rules of court. 2. Is the Settlement Fair and Reasonable? “[A court must be] provided with basic information about the nature and magni...

Excerpt: ...service of this order to file and serve a first amended answer providing ultimate facts supporting the respective affirmative defenses. Explanation: As an initial matter, plaintiff has not filed a demurrer as a separate document. All that is on file is the notice and the memorandum of points and authorities. This is a sufficient ground to overrule the demurrer. (Cal. Rules of Court, rule 3.1320; Witkin, Cal. Procedure (5th ed. 2020) Pleading, § ...

Excerpt: ...ant plaintiffs' request for monetary sanctions against defendants, in the amount of $2,175. Explanation: Defendants have not stated the statutory authority for their motion to quash the subpoenas. However, it appears that they are moving under Code of Civil Procedure sections 1985.3 and 1987.1. Under section 1985.3, “[a]ny consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this s...

Excerpt: ...C (“Boardwalk”). The action is stayed as to North Point and Boardwalk pending arbitration. Explanation: In moving to compel 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.). ...

Excerpt: ...y proceeding.” The losing party may dispute any or all of the items in the prevailing party's costs memorandum by a motion to strike or tax costs. (See Cal. Rules of Court, rule 3.1700(b).) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the bur...

Excerpt: ...0.10, subd. (e).) To grant the motion to strike the prayer for punitive damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: With regard to the first cause of action for elder abuse and neglect, plaintiffs have not alleged sufficient facts to state a claim. I...

Excerpt: ...ve to amend will be granted as to the punitive damages allegations unless plaintiff's counsel requests oral argument and appears at the hearing with an offer as to how the complaint could effectively be amended. (Code Civ. Proc. § 436.) Defendant shall file its answer to the complaint within 10 days of service of the order by the clerk. Explanation: In this elder abuse action, the complaint alleges that, on January 11, 2019, decedent Martha Conn...

Excerpt: ... section 395, “[e]xcept as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” (Code Civ. Proc., § 395, subd. (a).) Also, “[i]f the action is for injury to person or personal property or for death from wrongf...

Excerpt: ...ntiff's action until the arbitration is resolved. (Code Civ. Proc. § 1281.4.) Explanation: “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].'” (Market Ins. Corp. v. Integ...

Excerpt: ... and she has no contacts with the state. (F. Hoffman‐La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 795; Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, 1258.) Therefore, she concludes that the court must quash service of the summons and complaint on her, as well as dismiss the action. “California's long‐arm statute permits a court to exercise personal jurisdiction over a nonresident defendant to the full exte...

Excerpt: ...granted plaintiffs' motion to approve the PAGA settlement in this case. The settlement agreement acknowledged that the treatment of wages as a penalty under PAGA was questionable. In fact, paragraph 4.3 of the settlement agreement states: “Defendants maintain providing wage payments to alleged aggrieved employees under PAGA is contrary to law but have agreed to this for settlement purposes only.” On September 12, 2019, the California Supreme ...

Excerpt: ...d to treat it as such for purposes of discovery. The Court orders that paragraph 3 of the proposed order be stricken, as California courts are barred from finding materials to be confidential based on a stipulation of the parties. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130; Cal. Rules of Court, rule 2.550 et seq.) Further, “[c]ourt records are open to the public unless they are specifically exempted from disclosure by statute or are ...

Excerpt: ...rrers to the tenth, twelfth, thirteenth, and fourteenth causes of action. Explanation: Breach of Fiduciary Duty (Third Cause of Action) A joint venture is an undertaking between two or more parties to carry out a joint business enterprise for profit. (James v. Herbert (1957) 149 Cal.App.2d 741, 748.) A joint venture exists when: (a) the parties have joint control over the enterprise, even though that control may be delegated; (b) the parties agre...

Excerpt: ...e clerk of the minute order. Explanation:  Second Cause of Action: Bane Act Violations (Civ. Code, § 52.1) Defendant argues this claim is barred because it was not included in plaintiffs' prefiling claim under the Tort Claims Act. There is no dispute that a claim under the Bane Act is not exempt from the claim filing requirements. (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 764.) The issue is the sufficiency of the claim to allow pl...

Excerpt: ...tiff's allegedly late‐filed opposition, the objection is overruled. Plaintiff's opposition was timely filed nine court days before the continued hearing date, so it does not appear that the opposition was filed late under Code of Civil Procedure section 1005, subdivision (b). Even assuming that the opposition was late based on the earlier hearing date, defendant has forfeited the objection by filing a reply that addresses the merits of the oppo...

Excerpt: ... does not support the requested amount. Explanation: As an initial matter, to the extent that plaintiff seeks an order determining that it is the prevailing party on the contract action, such an order is unnecessary as the Court of Appeal has already determined that plaintiff is entitled to its attorney's fees on appeal as the prevailing party in the appeal. “Appellants do not challenge the trial court's award of attorney fees. The credit appli...

Excerpt: ...eave to amend. Because plaintiff's counsel had a habit of not responding to defense counsel's meet and confer requests, pursuant to Code of Civil Procedure section 430.41(c), the court ordered plaintiff's counsel to hold a conference of attorneys prior to filing an amended complaint. Defendant then moved to dismiss the complaint pursuant to Code of Civil Procedure section 581(f)(2) because plaintiff's counsel had not communicated with defense cou...

Excerpt: ...n not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly 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. (Barbe...

Excerpt: ...dez and Hernandez Chiropractic Spinal Decompression, Inc. demur to the entire complaint on the ground that it is barred by the applicable statute of limitations, as they contend that plaintiff's claims accrued on September 26, 2016 when she was allegedly sexually assaulted by defendant Arthur Hernandez, and she did not file her complaint until October 23, 2018, more than two years after the assault. (See Code Civ. Proc. § 335.1 [establishing two...

Excerpt: ... wage statements in violation of Labor Code section 226(a), (2) failure to provide meal and rest periods or compensation in lieu thereof in violation of Labor Code sections 226.7 and 512, and (3) constructive discharge in violation of public policy. The second and third causes of action are individual causes of action for plaintiff only, and are not brought on behalf of other aggrieved employees. Because an aggrieved employee's action under the [...

Excerpt: ...drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, trial courts usually follow a three‐step analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movan...

Excerpt: ...d the requests for admission. To order monetary sanctions in the amount of $385, payable by plaintiff to defense counsel within 30 days of the date of service of this order. Explanation: Motion to Compel Responses to Interrogatories “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: [¶] (a) The party to whom the interrogatories are directed waives . . . any objection to the interrogato...

Excerpt: ...f this minute order. Explanation: A motion to strike can be used to cut out any “irrelevant, false or improper” matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166...

Excerpt: .... (e), (f).) To grant defendants' motion to strike portions of the complaint, in part, and deny, in part, as discussed below. (Code Civ. Proc. §§ 435, 436.) To grant leave to amend. Plaintiff shall serve and file his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: Plaintiff has failed to allege any facts showing that he complied with the Government Tor...

Excerpt: ....) To deny the application of John C. Richter for admission to the bar of this court pro hac vice, without prejudice. (Cal. Rule of Court, rule 9.40, subd. (c).) To overrule the demurrer of defendant Independent Financing Services (“IFS”). (Code Civ. Proc. § 430.10, subd. (e).) To order defendant IFS to file and serve its answer to the first amended complaint within 10 days of the date of service of this order. Explanation: Complex Case Moti...

Excerpt: ...ll have ten (10) court days from the date of service of the minute order in which to file a Third Amended Complaint. All new or additional allegations are to be set forth in boldface typeset. Explanation: Demurrer Defendant demurs to the second cause of action in the Second Amended Complaint for intentional infliction of emotional distress allegedly suffered by Plaintiff Brandon Griffith. The Court sustained a demurrer to the same cause of action...

Excerpt: ... prevailing buyer in an action under the Song‐Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the tria...

Excerpt: ...for Attorney Fees The allegations and prayers for attorney fees on the first four causes of action1 are clearly based only on the purchase agreement and thus only apply to defendant Owens, which plaintiff appears to acknowledge. Thus, the motion to strike as to these allegations/prayers is denied. On plaintiff's recent motion to amend, plaintiff moved to re‐add the prayer for attorney fees on the fifth and sixth causes of action, based on the �...

Excerpt: ...d. (c).) A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff's causes of action, or shows that one or more elements of each cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) A moving defendant 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 ...

Excerpt: ...hrust of Kerwin Jackson and KJ Worldwide Investments, Inc.'s (collectively, agent defendants) demurrer to the second amended complaint is that plaintiff's claims arise out of representations and warranties made in a sales transaction. They argue that they did not sign any of the disclosure documents. Their names do not appear on any of the contracts or disclosure documents, and they were not sellers of the property. They did not make any represen...

Excerpt: ... to what is intended regarding tolling on the form “Order on Request for Pretrial Discovery Conference” (Local Form TCV‐72 R10‐18). This form order was created in conjunction with Fresno County Superior Court Local Rule 2.1.17, which states: Filing a request for a Pretrial Discovery Conference tolls the time for filing a motion to compel discovery on the disputed issues for the number of days between the filing of the request and issuance...

Excerpt: ...sed judgment consistent with the court's order. Explanation: The court notes that all plaintiffs have dismissed the action against defendant David Hovannisian except plaintiff Juan Sagrero. The court therefore addresses the motion as it is directed to plaintiff Juan Sagrero only. Summary adjudication is the proper mechanism for challenging a particular, “cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty....

Excerpt: ... Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229.) Therefore, the statutory ground of this motion is that the court lacks jurisdiction over defendant. (Code Civ. Proc., § 418.10, subd. (a)(1).) Until proper service is made on a defendant, he is under no duty to respond in any way to a defectively served summons. This is so even if he has actual knowledge of the action. That knowledge does not dispense with statutory requirements for ...

Excerpt: ...mits an arbitration agreement, purportedly signed by plaintiff Carmon. The agreement is dated September 6, 2012, and is signed by plaintiff Carmon as decedent's “Legal Representative/Agent.” (Healy Dec., filed Nov. 18, 2019, at Ex. A.) Plaintiffs oppose on several bases. Notably, plaintiffs object to defendant's declaration in support of the petition. They argue that the arbitration agreement lacks foundation. Plaintiffs also argue that defen...

Excerpt: ...e of April 20, 2020, is vacated, and the parties shall appear at a Case Management Conference on June 16, 2020, at 3:30 p.m., in Department 403 to determine trial readiness. Explanation: This motion largely rests on the court's prior order deeming certain Requests for Admissions (RFAs) as being admitted. Any matter admitted in response to an RFA is “conclusively established” against the party making the admission unless the court has permitte...

Excerpt: ...for lack of evidence showing how the requested damages and interest were calculated. The matter was continued to allow plaintiff to submit additional evidence. Plaintiff has now submitted a supplemental declaration from its First Vice President, Paul Thaxter, regarding computation of the damages and interest. The declaration includes an attachment which shows the principal amounts, payments made, and interest on the debt. However, the attachment ...

Excerpt: ...to the first through fourth causes of action only. A First Amended Complaint consistent with this ruling shall be filed and served within 10 days from the clerk's service of this minute order. New allegations shall be in boldface type font. The trial date, mandatory settlement conference, and trial readiness conferences are vacated. A status conference is set for March 26, 2020, at 3:30 p.m. in Department 503. Explanation: Initial Procedural Matt...

Excerpt: ...otion for Leave to File Cross‐Complaint A defendant may cross‐complain against a third person not yet a party to the action where the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against [it] or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against [it].” (Code Civ. Proc. §428.1...

Excerpt: ...tration of issues pertinent to the resolution of a claim under PAGA, Labor Code section 2699 et seq., the contract violates the public policy of the State of California. (ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175; Iskanian v. CLS Trans. Los Angeles, LLC (2014) 59 Cal.4th 348.) Defendants recognize this legal principle in seeking arbitration of causes of action other than those brought as a PAGA claim. A stay of PAGA claims until an arbitrat...

Excerpt: ...iff shall file and serve a new amended complaint, to be titled “Fifth Amended Complaint” within 20 days of the clerk's service of this order. Explanation: Strike Fourth Amended Complaint Code of Civil Procedure section 436 provides, in relevant part, that “[u]pon motion, or at any time in its own discretion, a court may grant a motion to strike . . . all or any part of any pleading not drawn in conformity with the laws of this state, a cour...

Excerpt: ...a party has appeared through an attorney, service of papers must be made on the attorney rather than the party. (Code Civ. Proc., § 1015.) Moving papers can be served by personal delivery, mail, express mail, “or another method of delivery providing for overnight delivery.” (Code Civ. Proc., §§ 1013, 1013a.) Proof of service is made by a declaration stating, among other requirements, the method of service used, the person(s) served and the...

Excerpt: ...the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Except as otherwise provided by statute, “every action must be prosecuted in the name of the real party in interest . . . .” (Code Civ. Proc. § 367.) If “any person other than a real party in interest brings an action, it is subject to general demurrer. [Citations.]” (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 427.) “In gen...

Excerpt: ... subd. (f) [uncertainty] and (g) [uncertain contract claim]. To sustain the demurrer to the second cause of action, without leave to amend. To grant the motion to amend in part, and deny in part: plaintiffs' request to reinstate their three causes of action based on violations of the California Labor Code is denied; plaintiffs' request to add allegations regarding the 2001 Employee handbook in order to support their breach of contract claim is gr...

Excerpt: ... the request for costs, defendant is clearly entitled to an award of its costs as the prevailing party in the action. (Code Civ. Proc. § 1032, subd. (b) [“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”].) Here, defendant has filed its memorandum of costs in the amount of $4,300.69, and plaintiff has not objected to the memorandum or moved t...

Excerpt: ...tiff shows (1) the basis of his claim and that the plaintiff is entitled to possession of the property claimed; (2) that the property is wrongfully detained by the defendant, the manner in which the defendant came into possession of the property, and (on information and belief) the reason for detention; (3) a particular description of the property and a statement of its value; and (4) the location of the property. (Code Civ. Proc., § 512.010.) 1...