Excerpt: ...is 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 also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Second Cause...

Excerpt: ...ration 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 arbitrati...

Excerpt: ...lodge a proposed judgment by January 28, 2020. Explanation: Defendant moves to dismiss the action on the ground that plaintiffs failed to bring the matter to trial within five years of the date their complaint was filed and therefore dismissal is mandatory pursuant to Code of Civil Procedure sections 583.310 and 583.360. Code of Civil Procedure section 583.310 states, “An action shall be brought to trial within five years after the action is co...

Excerpt: ...cted Plaintiff's initial proof of service on Defendant on July 16, 2018. A second proof of service was filed on October 5, 2018, after entry of the default on September 27, 2018. Defaults are disfavored, and any doubts existing as to setting aside a default should be resolved in favor of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) Reversal is particularly appropriate where relieving the default will not seriously ...

Excerpt: ...ice of this minute order. Explanation: In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and all of the 'inferences' reasonably 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, courts usually follow a three‐prong anal...

Excerpt: ...r of 2012 that she asked Michael Automotive Center to replace the vehicle. The evidence does not support this fact. The support cited is Exhibit 7 to Ms. Bocchini's deposition, which is not authenticated. Ms. Bocchini admitted that she did call, but also testified that she did not seek such from Michael Automotive Center, and she testified affirmatively that she did not request replacement/repurchase from Volkswagen until 2017. (See Defendants' A...

Excerpt: ... action settlement, it must grant preliminary certification of the proposed class. (Cal. Rules of Court, rule 3.769(d).) Before a court may approve the settlement, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Prods., Inc. v. Windsor (1997) 521 US 591, 625‐27.) However, because a trial court is considering certification in a settlement context, the court's review of certification is lessened, particularl...

Excerpt: ...construe the failure to file a memorandum as an admission that the motion is not meritorious and there is cause for its denial. (Cal. Rules of Court, rule 3.113, subd. (a).) Nonetheless, it is assumed that Petitioner is seeking relief from dismissal under Code of Civil Procedure section 473, and the motion has been analyzed based on that assumption. The reason Petitioner gives to justify relief from dismissal is that he did not know about the Ord...

Excerpt: ...nated from their employment with defendant Kings View Corporation because of their age. In additional to discrimination and wrongful discharge causes of action, plaintiffs allege causes of action for intentional infliction of emotional distress and harassment. Defendant Leon Hoover, Kings View Corporation's CEO, demurs to the intentional infliction of emotional distress and harassment causes of action. Both causes of action are premised on the al...

Excerpt: ...Rules of Court, rule 3.350(b).) A copy of this order shall be filed in each case, and all subsequent documents shall be filed only in the lead case. (Cal. Rules of Court, rule 3.350(c).) Explanation: “A consolidation of actions does not affect the rights of the parties. The purpose of consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions....

Excerpt: ...th through eleventh causes of action. To sustain the demurrer as to the twelfth cause of action, for failure to allege whether the contract is written, oral, or implied by conduct. (Code Civ. Proc. § 430.10, subd. (g).) To grant leave to amend as to the twelfth cause of action. Plaintiffs shall serve and file their second amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explan...

Excerpt: ... are imposed against plaintiff and her attorney, Rodney C. Haron. Sanctions must be paid to the Law Offices of Lewis Brisbois Bisgaard & Smith within 30 days after service of this order. Explanation: “Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. . . .” (Code Civ. Proc., § 2025.010.) Code of Civil Procedure section 2025.450, subdivision (a) provides for a mo...

Excerpt: ...ed judgment consistent with the court's summary judgment order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiffs cannot establish one or more elements of their causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue ...

Excerpt: ...the medical profession under similar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, in “‘any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) ac...

Excerpt: ...sis for his 42 U.S.C. section 1983 claim, as well as other claims. Plaintiff shall have ten (10) court days in which to file and serve a first amended complaint. Any new or changed allegations must be set forth in boldface typeset. To deny the motion to compel without prejudice. Explanation: Demurrer Plaintiff's complaint is over 100 pages in length and recounts his disagreement with a course of treatment implemented by defendants from 2005 to 20...

Excerpt: ...v. Eden Township Hospital Dist. (1992) 4 Cal.App.4th 1488, 1497.) Explanation: No suit for money or damages may be maintained against a governmental entity unless a formal claim has first been presented to that entity, and has been rejected, or is deemed rejected by the passage of time. (Gov. Code, §§ 945.4, 912.4; see Munoz v. State of Calif. (1995) 33 Cal.App.4th 1767, 1776.) The pre‐lawsuit claim must be presented to the governmental entit...

Excerpt: ...nna Owens in Bernard v. Ashria Holdings, LLC, Case No. 17CECG04106. To deny the motion with respect to the representation of co‐defendants Mao Vang and Jose Yepez. Explanation: Defendant Ariyanna Owens (“Owens”) moves to disqualify William Braun (“Braun”) from further representation of Ashria Holdings, LLC (“Ashria”), Mao Vang, Jose Yepez and Owens. A trial court's authority to disqualify an attorney derives from the court's inheren...

Excerpt: ...d Fred Avalli. (Code Civ. Proc. § 437c.) Explanation: With regard to the first cause of action for breach of contract, plaintiff has met its burden of producing evidence showing that defendants breached their agreement with plaintiff, and that plaintiff was damaged as a result. The elements of a breach of contract claim are (1) the existence of a contract between the parties, (2) plaintiff's performance or excuse for nonperformance, (3) defendan...

Excerpt: ...efault judgment form in conjunction with its application. In addition, plaintiff has not submitted a proposed default judgment for the court's signature. Furthermore, plaintiff has not dismissed the Doe defendants against whom it is not seeking a default judgment. There is also some ambiguity about the requested default judgment. Plaintiff seeks a declaration that its first deed of trust has priority over other claims against the property, based ...

Excerpt: ...ducement), and fourth (intentional infliction of emotional distress) causes of action, and without leave to amend as to fifth (slander of title) and sixth (declaratory relief) causes of action. Plaintiffs are granted 30 days' leave to file the Fourth Amended Complaint, which will run from service by the clerk of the minute order. Explanation:  First Cause of Action: Standing In ruling on a demurrer, the trial court is obligated to look past th...

Excerpt: ...can attached to Debbie Raven's declaration, except that the submissions need also provide values for each item listed. If such evidence shows any party to this case taking a loss on their one‐third share of the assets, or obtaining a higher percentage than one‐third, briefs explaining why such loss or gain is justified need also be filed. Any such briefing shall be filed by October 10, 2019, and a further hearing will be held on October 24, 2...

Excerpt: ...t briefing on the issue of a stay. The parties were advised that the court would consider the following factors: the status of the foreign action; the convenience of the parties; the seriousness of the threat of multiple litigation; and the competing interests of the two forums. (Wong v. Tenneco, Inc. (1985) 39 Cal.3d 126; Leadford v. Leadford (1992) 6 Cal.App.4th 571, 575; see Minute Order, filed August 7, 2019, p. 2.) The parties submitted supp...

Excerpt: ...There are two categories of evidence plaintiff Jane Doe (“plaintiff”) claims she cannot obtain while the criminal case of defendant Francisco Peña (“Peña”) is pending: (1) answers to deposition questions to which Peña asserted his Fifth Amendment privilege during his November 2018 deposition, and (2) the contents of plaintiff's cell phone which has been in the custody of the Fresno County District Attorney since shortly after Peña was...

Excerpt: ... at 3:30 p.m. in Department 503, as the return time for a report on distribution and possible amendment of the judgment pursuant to Code of Civil Procedure section 384(b). Declarations need be filed by April 17, 2010. To grant attorney's fees in the amount of $250,000, to be distributed 75 percent to the Boucher firm, 17.5 percent to the Selik firm, and 7.5 percent to the Majarian firm. To grant costs in the amount of $8,000 and an incentive awar...

Excerpt: ... agreement of the parties provides for fee shifting. [Citation.] Labor Code section 218.5 requires the awarding of attorney's fees to the prevailing party ‘[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.' This provision awards fees to the prevailing party whether it is the employee or the employer; it is a two‐way fee‐shifting provision. However, Labor Code secti...

Excerpt: ...sion (f)(2). Explanation: Under Code of Civil Procedure section 437c, subdivision (f)(2), “[a] party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc., § 437c, ...

Excerpt: ...mmary judgment order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiff cannot establish one or more elements of his causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and ...

Excerpt: ...dants/petitioners are correct that Code of Civil Procedure section 1290.6 requires a party responding to a petition to compel arbitration to serve and file its response within 10 days after service, the Court will consider plaintiffs/respondents' opposition on its merits, as no prejudice to defendants/petitioners is apparent. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847; see also Hoover Community Hotel Development Corp. v....

Excerpt: ...Costs are taxed by $53,855.58. Costs awarded to Triangle Truck against the Srabians therefore total $7,278.83. Explanation: The parties to this case filed cross‐motions to strike and/or tax costs and for attorney's fees after a jury trial. By order dated July 31, 2019, the Court ruled on all the motions except for the Srabians' motion to strike and/or tax the costs of Triangle Truck. In its order, the Court noted that “[w]here co‐parties jo...

Excerpt: .... (1953) 38 Cal.2d 273. There, a couple was photographed by an employee in an affectionate pose at the LA Farmer's Market, and the photograph was published with an accompanying article in Ladies Home Journal, without their permission. [T]he caption under the picture describes it as “love at first sight” and the article says such love is based on 100 per cent sex. It is not unreasonable to believe such would be seriously humiliating and distur...

Excerpt: ...s motion and all other proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby. (Code Civ. Proc., § 916, subd. (a).) By operation of law, this Court lacks jurisdiction to hear the motion and therefore vacates the hearing. Once the appeal is no longer pending, the moving party may contact the law and motion clerk to reschedule the hearing on the motion. Explanation: On April...

Excerpt: ...), (f).) To grant the motion to strike the allegations and prayer regarding punitive damages from the cross‐complaint. (Code Civ. Proc. §§ 435, 436.) To grant the motion to strike the conspiracy claim against plaintiff's counsel and her law firm, for failure to comply with Civil Code section 1714.10 before filing the claim. To grant leave to amend. To deny both parties' requests for sanctions against each other. (Code Civ. Proc. §§ 128.5, 1...

Excerpt: ... court days of service of this order. A final proposed judgment is to be presented to the Court within ten (10) court days of service of this order. Explanation: Pursuant to the Stipulation and Order filed June 20, 2019, this case is set for several matters pending from previous hearings before this Court. For the reasons stated below, only the Order to Show Cause re: Dismissal for Failure to Join Indispensable Parties (and the Order to Show Caus...

Excerpt: ...which states, in the pertinent part: “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” The parties can stipulate to permit an amendment, but they still need a Court order before an amended pleading may be validly filed. Shoul...

Excerpt: ...rtions of the First Amended Complaint Tentative Ruling: To sustain the demurrer of the City of Coalinga (“City”) in its entirety, with leave to amend as to the second cause of action, only. To grant City's motion to strike, without leave to amend. To sustain the demurrer of defendants Marissa Trejo, Shannon Jensen, Vivian Sauceda, and Jasmin Bains (“individual defendants”) in its entirety, with leave to amend. To grant the individual defe...

Excerpt: ...scovery Act provides that a personal service of a deposition subpoena may command a third party deponent to produce business records on request. (Code Civ. Proc., § 2020.020, subd. (c).) Code of Civil Procedure section 1987.1 provides, in relevant part: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things . . . at the taking of a deposition, the court, upo...

Excerpt: ...ts in a string as to why the Fifth Cause of Action in the First Amended Complaint is improper. To the extent possible, the Court addresses the grounds listed in the notice, but notes that the manner of presentation creates confusion. 2. Statute of Limitations This is a basis for a general demurrer, as where the bar of the statute of limitations appears from the face of the pleading, it fails to state facts sufficient to allege a valid cause of ac...

Excerpt: ...ule is codified at Code of Civil Procedure section 1856. It is a rule of evidence, not of pleading, and requires evidence before it can apply—that there be proof that a writing was intended to be the final expression of an agreement. The Cross‐Complaint states that it was not and that there were oral and written parts of the “Joint Venture” agreement. (Cross‐Complaint, ¶ 13). There are also several exceptions or situations where the do...

Excerpt: ...s asserted against Nakidi in this lawsuit and that Plaintiff has not made a sufficient showing that Nakidi waived the right to arbitrate the agreement or that "there is a possibility of conflicting rulings on a common issue of law or fact" if the court orders arbitration of the claims against Nakidi but not the claims against Defendant Teamsoft Technologies, LLC ("Teamsoft") in this action. (See C.C.P. § 1281.2; 9 U.S.C. § 2.) A. Existence and ...

Excerpt: ... Explanation: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . . .” (Code Civ. Proc. § 473(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; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The motio...

Excerpt: ...to submit to this Court, within five (5) days of service of the minute order, a proposed judgment consistent with this Court's summary judgment ruling. Explanation: Summary Judgment 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(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the ini...

Excerpt: ...end. To sustain the general demurrer to the third cause of action with leave to amend. To overrule the demurrer to the fourth cause of action. To overrule the special demurrers. To grant the motion to strike enhanced remedies under the Elder Abuse Act with leave to amend. To grant the motion to strike treble damages with leave to amend. To deny the motions to strike in all other respects. A Third Amended Complaint shall be filed and served within...

Excerpt: ...urn to Department 503 on September 24, 2019, at 3:30 p.m., for the Court to assign an arbitrator. Explanation: 1. Limitations Period with Tolling Defense counsel is incorrect with respect to the statute of limitations and Code of Civil Procedure section 1281.12. Tolling adds to the time period to seek arbitration. It means that the statute of limitations does not run during the tolled period. The date on which plaintiff contends that he was termi...

Excerpt: ...earing is required, the court will consider increasing the sanctions awarded to include plaintiff's counsel's costs/fees for appearance. All evidentiary objections are overruled. Explanation: A party bringing a motion to commence discovery into a plaintiff's sexual history must proceed by noticed motion. The moving party must provide evidence of a good faith attempt to resolve the matter informally, and must establish both: (1) specific facts sho...

Excerpt: ...nforceable. The petitioner (seeking to compel arbitration) bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence. The party claiming a defense bears the same burden as to the defense. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413‐ 414.) The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement. (Engalla v. P...

Excerpt: ...nt public entity for collateral source payments paid or obligated to be paid for services or benefits that were provided prior to the commencement of trial.” (Gov. Code, § 985, subd. (b).) A “collateral source payment” is money “paid or obligated to be paid” by “private medical programs, health maintenance organizations, state disability, unemployment insurance, private disability insurance, or other sources of compensation similar t...

Excerpt: ...for bringing the motion. To grant plaintiffs' motion to amend the complaint. To treat defendant's motion for summary judgment/adjudication as a motion for judgment on the pleadings, and to grant it with leave to amend. Plaintiffs are given leave to amend the causes of action now predicated on alleged Labor Code violations to state causes of action for failure to pay overtime on other bases as may be provided by law. Plaintiffs are granted 15 days...

Excerpt: ... balance of the award to be deposited into a pooled special needs trust in order to preserve the minor's public benefits. However, petitioner must first file a petition under Probate Code section 3604 with the Probate Department, so it can confirm that the trust complies with California Rules of Court, rule 7.903, and provide for ongoing court supervision. Once that is accomplished, petitioner may refile his compromise petition with this court. I...

Excerpt: ...efendants demur to the first, second, and third causes of action in the complaint on the ground that there is another action pending between the same parties on the same cause of action. (Code Civ. Proc. § 430.10, subd. (c).) They claim that some of the plaintiffs in the present action have also brought the same construction defect claims in another action that was previously filed in Fresno Superior Court against the same defendants. (See Defen...

Excerpt: ...All other proceedings in the case will be stayed until the trustee has been added. Explanation: Defendant moves to dismiss the action on the ground that plaintiff has no standing to pursue his claims because his claims should have been listed as assets of his Chapter 7 bankruptcy estate. “Causes of action that exist prior to a bankruptcy filing become assets of the bankruptcy estate. See 11 U.S.C. § 541(a)(1); Sierra Switchboard Co. v. Westing...

Excerpt: ...hus, it is somewhat unclear exactly what the legal or factual basis for the motion is. Nevertheless, it appears that defendant is moving for relief from the default under Code of Civil Procedure section 473, subdivision (b), which provides for relief from defaults where the default was entered as a result of mistake, surprise, inadvertence, or excusable neglect. “Where the mistake is excusable and the party seeking relief has been diligent, cou...

Excerpt: ...as moot. Cross‐Defendant J. Stanley Teixeira is directed to submit to this court, within seven (7) days of service of the minute order, a proposed judgment dismissing the third‐party cross‐complaint of Oscar Luna. Explanation: The third‐party cross‐complaint filed by Cross‐Complainant Oscar Luna (“Luna”) raises causes of action: (1) abuse of process, (2) intentional infliction of emotional distress, (3) negligent infliction of emo...

Excerpt: ...ourt, within seven (7) days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Background On December 24, 2018, Plaintiff, representing himself, filed a form complaint, alleging a cause of action for motor vehicle negligence. As can best be determined, he was involved in a motor vehicle collision on December 24, 2015 with a vehicle driven by Cipriano Espinosa on eastbound Highway...

Excerpt: ...tiff has now submitted competent evidence proving up his actual damages of $70,000, which is substantially less than the amount he sought in prior applications, he has not shown that he is entitled to prejudgment interest at a rate of 10% per annum from the date of formation of the contract. Plaintiff's evidence shows that he invested $70,000 into the partnership, with $55,000 paid as an initial capital investment when the partnership agreement w...

Excerpt: ... (c), and 2023.030, subdivision(d)(3) for Plaintiff's failure to comply with a previous order to produce responses, issued on April 16, 2019. Section 2023.030 provides: To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging...

Excerpt: ...ement entered into between it and Plaintiffs. According to the applicable statute, in such circumstances, the moving party must serve the notice, application, and proposed order by certified mail, return receipt requested, or by personal service. (Code Civ. Pro., §877.6, subd.(a)(2).) The proof of service must then be filed with the Court. (Ibid.) According to the proof of service attached to the Notice of Motion, the papers were served via regu...

Excerpt: ...ining that its settlement with plaintiffs is in good faith. (Code Civ. Proc. § 877.6.) Explanation: Under Code of Civil Procedure section 877.6, “[a]ny party to an action in which it is alleged that two or more parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐...

Excerpt: ...ties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81; see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) § 7:3 [“The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether cert...

Excerpt: ...typeset. Explanation: Defendant Eskander Yousseff Eskander has moved to strike the requests for punitive damages from the complaint filed by Plaintiffs Brandon Griffith and Dareen Malaythong, a married couple. Plaintiffs have filed claims for negligence per se/general negligence and loss of consortium stemming from an alleged hit‐and‐run accident. Defendant contends that punitive damages are not available for a claim for negligence and that t...

Excerpt: ...o file a First Amended Complaint. The proposed First Amended Complaint contains some additions and deletions of general allegations, as well as a Fifth Cause of Action for Breach of Contract. The allegations of the proposed Fifth Cause of Action appear to concern allegations in Defendant's Cross‐Complaint. Plaintiff has filed a supporting declaration by counsel detailing that the facts supporting the Fifth Cause of Action were only revealed dur...

Excerpt: ...the record, and $2,457.85 for the transcript of the arbitration hearing. The appeals court decision awarded Castaneda his costs on the appeal. The right to recover costs on appeal is governed by Cal. Rules of Court, rule 8.278, which sets forth the recoverable costs on appeal, if reasonable: (1) A party may recover only the following costs, if reasonable: (A) Filing fees; (B) The amount the party paid for any portion of the record, whether an ori...

Excerpt: ...irm in the amount of $953.40. A proposed order and judgment reflecting the above is to be submitted forthwith. The proposed order lodged on June 3, 2019 is acceptable if paragraph 10 is removed and replaced by a new paragraph 10 which describes the class members (CRC 3.771(a)), changes the amount of costs, omits the first paragraph of the judgment, and modifies the last paragraph to state: Pursuant to California Code of Civil Procedure section 66...

Excerpt: ... “(a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;]” or “(b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., §§ 431.10, subd. (b); 436, subd. (a).) A court will “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their tru...

Excerpt: ...en of proving (1) that his claim is one upon which an attachment may be issued, and (2) the probable validity of such claim.'). ‘Generally, an order of attachment may be issued only in an action for a claim of money which is based upon an express or implied contract where the total amount of such claim is a fixed or “readily ascertainable” amount not less than $500.00.' [Citation.]” (VFS Financing, Inc. v. CHF Express, LLC (C.D. Cal. 2009...

Excerpt: ...ure section 685.040 provides: The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the ju...

Excerpt: ...d with a public entity has been rejected. If the public entity gives written notice of rejection of the claim in accordance with section 913, the statute of limitations is six months from the day such notice is personally delivered or deposited in the mail. If such notice is not given in compliance with section 913, the statute of limitations is two years from accrual of the cause of action.” (Dowell v. County of Contra Costa (1985) 173 Cal.App...

Excerpt: ...at the action is moot. Resolution of this motion requires determining whether this is a reverse validation action and, if so, can the court still afford the parties effective relief despite the project being long completed. An action under Code of Civil Procedure section 860, et seq., to either validate or challenge an ordinance or resolution, is recognized as a proceeding “in rem.” (Community Youth Athletic Center v. City of Nat. City (2009)...

Excerpt: ...and all of the 'inferences' reasonably 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, courts usually follow a three‐prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party...

Excerpt: ... the normal prerequisites for a class action. (Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 625‐ 627.) However, because a trial court is considering certification in a settlement context, the court's review of certification is lessened, particularly those related to management of the class. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93.) On the other hand, other certification issues, such as those designed to protect absentees ...

Excerpt: ...od in which it transacted business in California without having obtained a certificate of qualification from the Secretary of State. (Corp. Code §2203(c).) Explanation: “It has been uniformly held that reasonable amendments to pleadings should, in the interest of justice, be granted, and that section 473 . . . should be liberally construed to accomplish that purpose.” (Jorgensen v. Dahlstrom (1942) 53 Cal.App.2d 322, 331, citations omitted.)...

Excerpt: ...e ruling. Notice runs from the date that the Minute Order is mailed plus five (5) days for service via mail. (Code Civ. Proc., § 1013.) Explanation: Labor Code section 3853 provides: If either the employee or the employer brings an action against such third person, he shall forthwith give to the other a copy of the complaint by personal service or certified mail. Proof of such service shall be filed in such action. If the action is brought by ei...

Excerpt: ...omplaint Tentative Ruling: To deny the motion without prejudice. Explanation: Background On July 1, 2017, Plaintiff, then 10 years of age, fell into a smoldering pile of debris on the property of Defendants Stephen and Julie DeBenedetto. Plaintiff sustained severe injuries. It is alleged that Defendants Mountain Property Services, Raymond Slocum and Matthew Marvin had been hired by the couple to perform tree cutting services on the property. Thes...

Excerpt: ...orandum of $30,128.75. To grant the motion to tax plaintiff David Bray's costs, in part, and tax the sum of tax $6,130.00 from plaintiff Bray's Cost Memorandum of $16,502.45. To deny the motions in all other respects. Explanation: Items of allowable costs are set forth in Code of Civil Procedure section 1033.5, subdivision (a), and disallowed costs are set forth in subdivision (b). Items not expressly mentioned in the statute “upon application ...

Excerpt: ... general demurrers to the first cause of action. To sustain the general demurrer to the second cause of action with leave to amend. To sustain the special demurrer under Code of Civil Procedure section 430.10, subdivision (h), to the third cause of action, with leave to amend. To overrule the general demurrer to the third cause of action. Explanation: First Cause of Action – Breach of Contract Statute of Limitations “ ‘When a complaint show...

Excerpt: ...ion: In this action, plaintiff Maddie Wade (“plaintiff”) alleges that she was discriminated against, harassed, and constructively discharged after revealing to her manager, defendant Dustin Guthrie (“Guthrie”), that she was diagnosed with gender dysphoria and would be transitioning from male to female. The complaint alleges four causes of action: (1) wrongful constructive termination against plaintiff's employer, defendant Starbucks Corpo...

Excerpt: ...n & Bellardinelli and the Law Firm of Campagne and Campagne shall pay the sum of $15,000 to Whitney, Thompson & Jeffcoach LLP within 10 days of the clerk's service of this order. To deny the motion in part, as the court will not impose evidence or issue sanctions at this time. Explanation: Code of Civil Procedure section 2031.310, subdivision (i) provides, in relevant part: “[I]f a party fails to obey an order compelling further response, the c...

Excerpt: ...e period 6:00 a.m. to 7:00 p.m. on June 19, 2017. Explanation: Plaintiff seeks documents and information from AT&T c/o CT Corporation System concerning various cell phone records from June 19, 2017, the day of the accident which is the subject of this lawsuit, as well as from the time of a separate accident which occurred on June 1, 2016. Defendant Paulino was involved in both accidents. Plaintiff argues that these documents are relevant to show ...

Excerpt: ...rvice of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: Moving defendants are entitled to summary judgment because plaintiff cannot prove any actual, pecuniary, or economic damage, and plaintiff is not entitled to punitive damages. Plaintiff's only remaining claim, the third cause of action for common law misappropriation of trade name, is one for damages. The prayer for compensatory dam...

Excerpt: ...osemead (2009) 174 Cal.App.4th 1067.) One has to “opt‐in” to an FLSA action. (Millan v. Cascade Water Services, Inc. (E.D. Cal. 2015) 310 F.R.D. 593.) Courts within the Ninth Circuit have found that Rule 23 class actions are incompatible with FLSA collective actions, but the Ninth Circuit has thus far refused to reconcile the split of authority. (Pitts v. Terrible Herbst, Inc. (9th Cir. 2011) 653 F.3d 1081, 1093.) The “opt‐ins” have t...

Excerpt: ... applicable” and “all rights, remedies, obligations, liabilities and procedures set forth in Article 3 [of the Civil Discovery Act] shall be available to both the insured and the insurer . . . . [¶] [W]henever . . . provision is made for application to the court or obtaining leave of court or approval by the court, the court that shall have jurisdiction for the purposes of this section shall be the superior court of the State of California�...

Excerpt: ...es Bell is entitled to summary judgment because, even if it is assumed he was treasurer of the defendant corporation, he does not become personally liable based only that status: Directors or officers of a corporation do not incur personal liability for torts of the corporation merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done[.] They may be liable, under the rules of tort and...

Excerpt: ... defendant bears the initial burden of proof to show that the plaintiff cannot establish one or more elements of his/her causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists—and this must be shown via specific facts and not mere ...

Excerpt: ...o strike special damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) Plaintiff is granted 20 days, commencing from service of the minute order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: I. Demurrer In testing a pleading against a demurrer, the facts alleged are deemed to be true, as it is “not the ordinary function of a demurrer ...

Excerpt: ...intiff's causes of action which are closely related to the Fair Employment and Housing Act (“FEHA”) claims are likewise governed by the FEHA fee/cost provision. (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1059‐1060.) Here, the non‐FEHA claims were intertwined with the FEHA claims, as they were based on the same set of facts. The rule under Government Code section 12965, subdivision (b), is that an award of attorney's fees ...

Excerpt: ... either party.” (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 732.) Code of Civil Procedure section 1033.5(c)(2) states: “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Further, section 1033.5(c)(3) provides: “Allowable costs shall be reasonable in amount.” “In ruling upon a motion to tax costs, the trial court's first determination...

Excerpt: ...n which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be placed in boldface type. Prior to filing an amended complaint, the parties 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 the compliance with this requirement. Explanation: First Cause of Actio...

Excerpt: ...ned by the parties outside of the presence of the court . . . for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (Emphasis added.) In ruling on a Section 664.6 motion, the court may receive oral testimony, or may rule on the motion based on declarations alone. (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994.) Where the settlement agreement is ambiguous, the court ...

Excerpt: ...ion. Explanation: To obtain summary judgment, “all a defendant needs to do is to show that the plaintiff cannot establish at least one element of the cause of action.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) If a defendant makes this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (Code Civ. Proc. § 437(...

Excerpt: ... state or local building maintenance regulations and the violations are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered, the local enforcement agency may issue a notice and order requiring repair or abatement of the unlawful conditions. If the owner of the building thereafter fails to comply with the notice and order in a reasonable period of time, the enforcement agency can seek...

Excerpt: ...on to compel as to Special Interrogatory Nos. 2 and 10, but deny as to Special Interrogatory No. 15. To find the motion moot as to Special Interrogatory Nos. 5, 6, and 8, due to defendant's supplemental responses to these interrogatories after the motion was filed. To deny the request for monetary sanctions. Explanation: Special Interrogatory No. 2 Drafting and filing articles of incorporation, and other duties of an Incorporator (e.g., selecting...

Excerpt: ...ee. In addition to the claims pertaining to the internal affairs of the trust, the petition asserts a cause of action for financial elder abuse. The Probate Court has exclusive jurisdiction over proceedings concerning the internal affairs of trusts. (Prob. Code § 17000, subd. (a).) Under Probate Code section 7000, subdivision (b), the Probate Court has concurrent jurisdiction over: “(1) Actions and proceedings to determine the existence of tru...

Excerpt: ...construction project. The motion is opposed by plaintiff, as well as by George A Bics Plumbing, Inc. (“Bics”). Bics' opposition will not be considered due to the untimely service of the papers. (See Code Civ. Proc. §§ 437c(b)(2), 1005(c); Sande Dec. ¶ 2.) Regarding evidentiary objections, the court sustains plaintiff's objection no. 2, and overrules no. 1. Objections nos. 3‐12 are also overruled, as evidentiary objections can only be mad...

Excerpt: ...t 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(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 material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[A]ll a defendan...

Excerpt: ...l basis. These motions were Plaintiff's motions to strike Defendant's cross‐complaint and his verified answer (and portions thereof), and to set aside the Court's order of August 30, 2018. Section 128.7, subdivision (b) provides that by submitting any motion or similar paper to the Court, the submitting person is certifying that, after a reasonable inquiry: (1) It is not being presented primarily for an improper purpose, such as to harass or to...

Excerpt: ... filed no later than July 15, 2019. Explanation: 1. Failure of Service of Moving Papers The proof of service omits Mr. Delao, who substituted himself in pro per in August of 2018. As a named party to this action, he must be served as any other named party. 2. Final Approval of Settlement a. General Standards California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the propos...

Excerpt: ...ion, fees are to be awarded as a matter of right. There is no discretion to deny fees under such circumstances. (Rancho Mirage Country Club Homeowners Ass'n. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263.) The arguments made by Westcare California, Inc. (“Westcare”) against any fee award are unpersuasive. The fees request is made directly by Comprehensive Addiction Program, Inc. (“CAP”) on a cross‐complaint brought against CAP by Westcare...

Excerpt: ...stake, inadvertence, surprise, or excusable neglect, and therefore the court should set aside the default. Under the discretionary relief portion of section 473, subdivision (b), The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this...

Excerpt: ... motion for reclassification after the time for that party to amend that party's initial pleading or to respond to a complaint, crosscomplaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both of the following conditions are satisfied: (1) The case is incorrectly classified. (2) The moving party shows good cause for not seeking reclassification earlier. Also, “[i]f a case is re...

Excerpt: ...d of litigation costs under [Code of Civil Procedure] section 1032, subdivision (b), implements a clear legislative goal of encouraging potentially meritorious FEHA suits. (Williams [v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97], 112 . . . .) Although section 1032, subdivision (b), also serves an important purpose, relieving a party whose position was vindicated in court of the basic costs of litigation, when those costs have not b...

Excerpt: ...a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81; see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3 [“The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.”].) The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted with ...