Excerpt: ... as the parties may agree in writing. To deny the motion to compel production of documents at such deposition. Sanctions in the amount of $310 are awarded against Defendant William Alexander Carney, payable to Whelan Law Group within forty‐five (45) days of the date of service of this order. Explanation: Plaintiff moves to compel the deposition of Defendant William Alexander Carney pursuant to a notice of deposition, served on September 9, 2019...

Excerpt: ... Semper, and Lauren Semper without prejudice to securing their depositions at a later date after relevant adult witnesses have been deposed and other discovery has been conducted. Any future depositions with minor children shall be subject to a protective order. Prior to noticing any further motions to compel the depositions of the minor children, the parties are ordered to meet and confer on a proposed protective order. To grant the motion to co...

Excerpt: ...tatements 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 [PAGA] f...

Excerpt: ...e of a Writ of Attachment as to Cross‐Defendant BCJ Sand and Rock, Inc. 3) Hearing on Defendant and Cross‐Complainant Sequoia Equipment Company, Inc.'s Application for Right to Attach Order and for Issuance of a Writ of Attachment as to Cross‐Defendant Darwin Christ Tentative Ruling: To deny all applications. Explanation: Plaintiff Macquarie Equipment Capital, Inc.'s Application The court finds that the operative question with the applicati...

Excerpt: ...ent with the ruling on the motion. Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c).) 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...

Excerpt: ...n 583.410 should not be entered if this paperwork is not submitted by the deadline of January 31, 2020. Explanation: There has been an inordinate amount of delay in this case. The only remaining defendant was defaulted in November 2017, and yet the initial application for entry of judgment was not even presented until April 2018. Then, the delay from the court's denial of the request for default judgment in May 2018,1 until entry of dismissal on ...

Excerpt: ...or, in the alternative, for issue, evidence, and/or monetary sanctions against Plaintiffs Yan Li and Yuqiang Yang as individuals and as successors in interest to Qinsong Yang Tentative Ruling: To grant the motion for an order deeming admitted the truth of facts in Defendants' Request for Admission, Set One, as to Plaintiff Yan Li and to award sanctions in the amount of $495 against Plaintiff Yan Li, payable within thirty (30) days of the date of ...

Excerpt: ...roc. § 430.10.) To strike the second and third amended answers on the court's own motion, as they were improperly filed without leave of court. (Code Civ. Proc. § 472.) To grant leave to amend the answer. Defendant shall file and serve his second amended answer within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: First, the second and third amended answers were both improperly filed b...

Excerpt: ... order, limiting the scope of the subpoenas to the time period from January 1, 2008 to June 3, 2015. (Ibid.) To deny both parties' requests for monetary sanctions against the other. (Code Civ. Proc. § 1987.2.) Explanation: Code of Civil Procedure section 1987.1, subdivision (a) provides: If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or ...

Excerpt: ...xplanation: 1. Preliminary Certification of the Class Before the court can grant preliminary approval of the class 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 ...

Excerpt: ...an (“the Srabians”) to issue acknowledgment of satisfaction of judgment, or, in the alternative, to have the clerk of the Court enter the same, on the ground that acknowledgments of full satisfaction of judgment have been entered, and the motion is therefore moot. To deny the request for attorney fees and costs pursuant to Code of Civil Procedure section 724.050. Explanation: On October 24, 2019, defendant and cross‐complainant Larry K. Bue...

Excerpt: ...compel further responses, without objection, to Form Interrogatory (“FI”) nos. 1.1, 15.1, 17.1. To deny as to FI no. 12.1. (Code Civ. Proc. § 2030.300(c).) To grant the motion to compel further responses, without objection, to Requests for Admission (“RFA”) nos. 17‐19, 21, 22. To deny as to RFA nos. 2, 20, 24, 27‐38. (Code Civ. Proc. § 2033.290(c).) To grant the motion to compel further responses, without objection, to Request for P...

Excerpt: ...“SVP”) housed as a civil detainee at the Department of State Hospitals Coalinga facility (“DSH – Coalinga”) wants to tithe 10 percent of his income to the Hospital Protestant Chapel by mailing to the chapel items deemed to be contraband by DSH – Coalinga regulations. According to the amended complaint, plaintiff's various efforts to do so have been rebuffed. He is now suing under 42 U.S.C. section 1983 (“section 1983”). The one de...

Excerpt: ...he amount of $6,000 individually for each class representative. To grant $60,000 in costs to the class administrator. The amount to be paid to class members is therefore $2,905,104.47. To set August 26, 2020 as the date for the parties to return to report on the payout of the settlement fund, and amendment of the judgment for any unpaid residue distribution, pursuant to Code of Civil Procedure section 384. Explanation: 1. Final Approval of Settle...

Excerpt: ... objections. Objections of Cardiovascular Consultants Heart Center (“CVC”): The objections do not comply with California Rules of Court, rule 3.1354(b). None of the objections are sequentially numbered, and some objections fail to quote or set forth the objectionable statement or material. (Cal. Rules of Court, rule 3.1354(b).) Having reviewed the objections and the material objected to, the objections would be overruled on the merits, as wel...

Excerpt: ...er's fees and costs. Explanation: The property has now been sold and remediated, so there is no longer any need for the receiver to manage the property. Therefore, the court grants the motion to discharge the receiver. (Sly v. Superior Court (1925) 71 Cal.App. 290, 294 [trial court has inherent power to discharge receiver as part of its power of appointment].) Also, the receiver has filed his final report and accounting, which appears to be reaso...

Excerpt: ...new or amended allegations shall be set forth in boldface typeset. Explanation: A general demurrer admits the truth of all material allegations and a court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or ...

Excerpt: ...fin, M.D. is granted 10 days' leave to file his answer to the complaint, notwithstanding the fact that plaintiffs are given leave to amend the complaint as to other causes of action not stated against defendant Griffin. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer to 42nd Cause of Action for Intentional Infliction of Emotional Distress by Plaintiff Linda J. Anderson The el...

Excerpt: ...quests for production of documents, set one. To grant ADM's motion for additional monetary sanctions of $1,750 jointly and severally against RBT and its counsel, Georgeson & Bellardinelli and the Law Firm of Campagne and Campagne, for their continued willful and deliberate failure to comply with this court's prior orders of November 20, 2018 and June 21, 2019 compelling RBT to respond to the document requests. RBT and its counsel shall pay moneta...

Excerpt: ...87, “[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.” ...

Excerpt: ... . a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address[.]” (Code Civ. Proc. §415.20(a).) “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person's ...

Excerpt: ...d amended complaint detailing the basis for the punitive damages. All new or amended allegations are to be set forth in boldface typeset. Explanation: A motion to strike can be used to: “(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. ...

Excerpt: ... an undertaking in order to obtain the writ. (Code Civ. Proc. § 515.010, subd. (b).) Explanation: Under Code of Civil Procedure section 512.010, (a) Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought. (b) The application shall be executed under oath and shall include all of ...

Excerpt: ...'s motion to decertify and to grant plaintiffs' motion to certify with directions. To set February 19, 2020, at 3:30 p.m., as a case management and trialsetting conference in Department 503. Explanation: DECERTIFICATION MOTION 1. Introduction The Court of Appeal decision in this matter specifically called on this Court to address the manageability issue as the case progressed: It does not appear a manageability analysis was explicitly conducted i...

Excerpt: ...nd Code of Civil Procedure section 575.2, which allow for sanctions for non‐compliance with the California Rules of Court and local rules. In this case, Plaintiff alleges that Defendant and her counsel are in violation of California Rules of Court, rule 3.894 and Fresno Superior Court Local Rule 2.4.1 and Civil Standing Order No. 07‐0628. Together, these rules require that all parties and attorneys of record must attend all mediation sessions...

Excerpt: ...s order by the clerk. New allegations/language must be set in boldface type. Explanation: Plaintiff seeks leave to amend in order to substitute Kerwin Jackson (“Jackson”) and KJ Worldwide Investments, Inc. (“KJ Worldwide”) as Does 1 and 2, respectively, and to allege that, at all relevant times, they were agents or employees of defendants David Maclachlan and Nuestra Casa Real Estate (“Nuestra Casa”), and that either they or Maclachla...

Excerpt: ...hnicon”) as to the entire complaint. (Code Civ. Proc. § 437c.) Technicon shall submit a proposed judgment consistent with this court's order within ten (10) days of the date of service of this order. Explanation: Technicon moves for summary judgment on the ground that all of the claims of plaintiff Hydroelectric Penetrations, L.P. (“HP”) against it are all barred by the settlement agreement and release executed between Technicon and Ernie ...

Excerpt: ... that she is entitled to have the default set aside because she was not properly served with the complaint and summons or that the default was entered less than 30 days after she was served, she has failed to meet her burden of showing that the complaint and summons were not properly served, or that she was served after the date indicated on the proof of service. “‘[C]ompliance with the statutory procedures for service of process is essential...

Excerpt: ...Plaintiff shall have ten (10) court days from the clerk's service of this order in which to file a second amended complaint. All new or amended allegations are to be set forth in boldface typeset. Explanation: Demurrer A general demurrer admits the truth of all material allegations and a court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior C...

Excerpt: ...ff also prays for compensatory, general and punitive damages. Defendant's Demurrer Defendant demurs to both causes of action. Defendant moves pursuant to Code of Civil Procedure section 430.10, subdivision (e)—failure to state a cause of action. Defendant also demurs to plaintiff's request for punitive damages.2 5. First Cause of Action: Assault The essential elements of a cause of action for assault are: (1) defendant acted with intent to caus...

Excerpt: ...y judgment order. Explanation: As the moving party, a defendant bears the initial burden of proof to show that the plaintiff cannot establish one or more elements of the 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 th...

Excerpt: ...e 30‐day period permitted by law. (Code Civ. Proc. § 430.40, subd. (a).) However, “[a] motion for judgment on the pleadings is equivalent of a general demurrer but is made after the time for demurrer has expired. The rules governing demurrers apply.” (Evans v. California Trailer Court (1994) 28 Cal.App.4th 540, 548.) Code of Civil Procedure section 438, subdivision (c)(1)(B)(ii) permits a motion for judgment on the pleadings by a defendant...

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

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

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

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

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

Excerpt: ...den of persuasion thereon (Evid. Code § 500). Thus, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Plaintiffs moving for summary judgment bear the burden of persuasion that each element of the cause of action in question...

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

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

Excerpt: ...mages. (Ibid.) Explanation: Motion for Summary Judgment The summary judgment procedure “is drastic and should be used with caution.” (Buehler v. Oregon‐Washington Plywood Corp. (1976) 17 Cal.3d 520, 526.) Accordingly, the affidavits of the moving party are strictly construed, while those of the opposing party are liberally construed. (Huynh v. Ingersoll‐Rand (1993) 16 Cal.App.4th 825, 830.) “[A]ny doubts as to whether summary judgment i...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ... on the ground that it was improperly filed without first seeking leave of court under Code of Civil Procedure section 473, subdivision (a)(1), this contention is not a proper ground for a demurrer. Failure to obtain leave of court for an amended pleading is not one of the listed statutory grounds for a demurrer. (See Code Civ. Proc. § 430.10, subd. (a)‐(i).) Instead, if a party objects to an improperly filed amended pleading, the correct reme...

Excerpt: ...s after the completion of the record. (Code of Civ. Pro., § 2025.480(b).) Here, 75 days elapsed, and the motion must therefore be denied. (See infra.) If the instant motion is treated as a motion to compel further responses to inspection demands, to deny on the ground that the motion was filed more than 45 days after the response containing the objection was served. As a result, Plaintiff has waived the right to compel pursuant to Code of Civil ...

Excerpt: ...alidly allege facts to support the punitive damages claims. Explanation: Defendant has filed a purported demurrer to the Third Amended Complaint. Although the documents contain a memorandum of points and authorities and a notice, it does not appear that Defendant has filed a separate demurrer. The notice states that the “demurrer” is made on the ground that the Third Amended Complaint “is uncertain, fails to state sufficient facts to suppor...

Excerpt: ... by affidavit stated facts establishing every element . . . necessary to sustain a judgment in his favor.” (See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 (emphasis in original, internal quotations omitted).) Given that the moving party has not met her burden, it is not necessary to examine the opposition or the reply. It is also not necessary to rule upon evidentiary objections. Explanation: Requirements for Summary Adjud...

Excerpt: ... whether or not this matter and Amaro v. Gerawan Farming, Inc., United States District Court Case No. 1:14‐cv‐00147‐DAD are related pursuant to California Rules of Court, rule 3.300, and the impact of the certified class in that matter on the instant case. To order those papers to be filed on or before March 12, 2019. Explanation: 1. Class Certification a. Standards An agreement of the parties is not sufficient to establish a class for sett...

Excerpt: ...omplainant Norcal Mutual Insurance Company (“NORCAL”) to the evidence submitted by Plaintiff and Cross‐ Defendant Cardiovascular Consultants Heart Center (“CVC”): Jamison Declaration: Sustain objection nos. 4 and 8; overrule the remainder. Morrow Declaration: Sustain objection nos. 3, 6, 7, 9, 10, 11; overrule objection nos. 1, 2, 4, 5, 8. Boran Declaration: Sustain objection no. 6; overrule objection nos. 1‐5, 7, 8. Additionally, CVC...

Excerpt: ...hing the reason each cost claimed was incurred, so that it can be determined which costs arose from Plaintiff's non‐ FEHA causes of action. The Court will continue the hearing on the instant motion to Wednesday, March 20, 2019, to allow Defendant time to file its evidence regarding its costs incurred in defending against Plaintiff's non‐FEHA claims. Explanation: “California courts have followed federal law, and hold that, in exercising its ...

Excerpt: ...y the clerk. Explanation: On April 19, 2018, Shaver Springs successfully moved to strike certain punitive damages allegations from the Complaint. Any amended complaint was to be filed and served within 10 days of service of the order by the clerk. (See April 19, 2018 Order.) Six months later, on October 17, 2018, plaintiff filed a First Amended Complaint. (Actually, plaintiff filed three versions of the First Amended Complaint on October 17, 2018...

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

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

Excerpt: ...eave to amend is granted as to plaintiff's claims under the Fair Employment and Housing Act (FEHA), as stated under the first cause of action, her claim for intentional infliction of emotional distress as stated under the third cause of action, and her wage and hour claims as stated under the fourth cause of action. Plaintiff is granted 10 days' leave to file the First Amended Complaint, which will run from service by the clerk of the minute orde...

Excerpt: ...lic Participation (SLAPP) Overview: The anti‐SLAPP statute describes claims within its purview: “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has establish...

Excerpt: ...nt Shalaka Ritesh Gadewar based on the allegation that she was the driver and owner of the van that was involved in the accident with them. However, according to the undisputed facts presented by defendant, she was neither the owner nor the driver of the van. (Defendant's UMF Nos. 1‐4.) The van was driven by her husband, Ritesh Ashokrao Gadewar, and it was owned by EAN Holdings, LLC, aka Enterprise Rent‐A‐Car. (UMF Nos. 2, 4.) Plaintiffs ha...

Excerpt: ...laint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777.) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court's discretion will usually be exercised liberally to allow amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) A motion for leave to amend must comply with California Rule of Court 3.1324. Under...

Excerpt: ...cal Rules, rule 2.1.17.) Explanation: Motion to Set Aside Default The court may relieve a party from a judgment, order or other proceeding taken against him or her as a result of mistake, inadvertence, surprise or excusable neglect, where the application for relief is made within six months of entry of the judgment, etc. (Code Civ. Proc. §473(b).) Application for relief may be based on either (1) an attorney affidavit of fault, in which event re...

Excerpt: ...nsufficient to show a good faith attempt to confer with defendant regarding the motion. (Code Civ. Proc. § 439, subd. (a).) Plaintiff's counsel shall file a supplemental declaration regarding her meet and confer efforts by March 15, 2019. Explanation: “Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subj...

Excerpt: ...ipt of the hearing), as defense counsel states they did. Further, the trial minute order from September 10, 2018, indicates it was “not reported,” so it does not appear it could have been put “on the record.” Thus, the court can only consider the terms of the written settlement agreement to determine if it is enforceable pursuant to Code of Civil Procedure section 664.6 (“section 664.6”). The written agreement was signed only by Mrs. ...

Excerpt: ...42,500, with the balance going to the nonappearing defendants. Any supplemental papers must be received by the Court no later than Friday, February 22, 2019. Explanation: The legislature requires the Court to approve any settlement of a complaint seeking civil penalties under the Labor Code Private Attorneys General Act of 2004 (“PAGA”). (See Labor Code §§2699, subd.(l); 2689, et seq.) However, neither the Legislature nor the California Lab...

Excerpt: ...ia Rule of Court 3.500(e). Moving party is also ordered to “take all appropriate action necessary to assure that the transfer takes place and that proceedings are initiated in” San Joaquin County Superior Court “to complete consolidation” with the case pending in that court, pursuant to California Rule of Court 3.500(f). The trial date of February 25, 2019, mandatory settlement conference date of January 30, 2019, and trial readiness hear...

Excerpt: ...on settlement, plaintiff also seeks class certification for the purposes of approving the settlement. Therefore, the court must first determine whether the class should be certified before deciding whether the settlement should be preliminarily approved. “Code of Civil Procedure section 382 authorizes class actions ‘when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impractic...

Excerpt: ...errule Defendants' demurrer to the remaining causes of action. To grant Defendants' motion to strike Plaintiff's claims for punitive, special, and exemplary damages, with leave to amend. 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: Demurrer In testing a pleading against a...

Excerpt: ...aint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Second Cause of Action: Failure to Engage in Good Faith Interactive Process It is a jurisdictional prerequisite to state a claim under the Fair Employment and Housing Act (FEHA) that the plaintiff exhausted his administrative remedies before commencing a lawsuit. (Gov. Code, §§ 12960, 12901, 12925, subd. (b); O...

Excerpt: ...r the Federal Employers Liability Act. He claims that on March 15, 2015, he suffered neck and lower back injuries when he was struck on the right side of the head by an object that entered through an open window while he was operating a locomotive owned by the Defendant Union Pacific. He alleges that the air conditioner was broken and the windows were open for cooling purposes. At the time, he was working as a locomotive engineer on UP644 at Defe...

Excerpt: ...ant to show, by a preponderance of the evidence, that it is more likely than 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...

Excerpt: ...ree speech rights and/or right to petition. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658.) The defendant must establish that the “core injury‐producing conduct upon which the plaintiff's claim is premised” is protected speech. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 2364, 1272.) The meaning of “arising from” in Code of Civil Procedure, section 425.16, subdivision (b)(1...

Excerpt: ...t One, and Request for Production of Documents, Set One, without objection, and shall produce all documents responsive to the requests for production. All objections are waived. To impose monetary sanctions in favor of plaintiffs in the amount of $767.00 against Voua Yang and Cindy Mai Xiong (Code Civ. Proc. §§ 2023.010(d), 2023.030(a)), to be paid within 30 days of service of the order by the clerk. To order plaintiffs to pay filing fees of $1...

Excerpt: ...ther equipment with a California Certificate of Title and eligibility to be licensed for travel on public roads in California) as part of the receivership estate. Although they have filed no opposition to this motion, Defendants apparently objected to the Receiver's sale of vehicles because Plaintiff has no security interest in them. The Order at paragraph 2 provides that the Receiver was to “take possession of all that certain Personal Propert...

Excerpt: ...ther responses to the document requests within 10 days of the date of service of this order. Defendant shall pay monetary sanctions within 30 days of the date of service of this order. Explanation: As an initial matter, to the extent that defendant objects to plaintiff's motion on the ground that the plaintiff's separate statement does not comply with Rule of Court 3.1345, the objection is not well‐taken. Plaintiff's separate statement contains...

Excerpt: ...keting, Inc. (“Sandstone”). Explanation: California law includes special procedures for determining the claims of third persons (i.e., those other than the judgment debtor and creditor) in property under levy. These third party procedures are optional. They may be used by a third party who claims ownership to or possession of real or personal property, or a superior security interest in or lien on personal property. The third party claim proc...

Excerpt: ... strike “shall be entitled” to recover his or her attorney fees and costs. (Code Civ. Proc. §425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; see also Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 193 [“Our Supreme Court has construed section 425.16, subdivision (c) as mandatory.”].) The award of attorney fees to the prevailing defendant on an antistrategic lawsuit against public participation (SLAPP) motion includ...

Excerpt: ...fendant only needs the extra deposition time because counsel made an inefficient use of time previously. Plaintiffs did not comply with California Rules of Court, rule 3.1116 in attaching the entire unmarked transcripts, and it is not the court's burden to review over 300 pages of transcripts to independently identify the evidentiary basis for plaintiffs' arguments. Defendant has provided a sufficient basis to justify needing more time than the s...

Excerpt: ...fth causes of action both allege claims for harassment in violation of the Fair Employment and Housing Act (FEHA) based on plaintiff's medical condition and sexual orientation. Defendants' contend that the acts of harassment cited by plaintiff with regard to her sexual orientation or medical condition were not so severe or pervasive as to alter the conditions of her employment. “Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 ....

Excerpt: ...r acceptance of offer to allow judgment,” states in relevant part: (a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. (b) Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award...

Excerpt: ...ugust 30, 2018, at 3:30 p.m. in Department 503. Plaintiff may file a responsive brief on the issue no later than August 16, 2018. Explanation: A party may voluntarily withdraw a pleading filed by him or her. (See Code Civ. Proc., § 128.7, subd. (c).) The wisdom of such a maneuverer is not for the court to decide. The operative second amended complaint was filed May 27, 2015. It seeks termination of three trusts held by the late J.M. Irigoyen, in...

Excerpt: ...ch type of discovery for which further responses are sought pursuant to California Rules of Court, rule 3.1112; and 3. Failure to submit a separate statement in support of each motion pursuant to California Rules of Court, rule 3.1345(c). Explanation: On or about August 8, 2016, Plaintiff was involved in a motor vehicle accident with a rented Ryder Truck driven by Alan John Walsh in the scope of his employment with Defendant Baggie Farms Express,...

Excerpt: ...gainst a public entity may only be brought where a written claim has been presented to, and rejected by, the entity. (Gov. Code §§905, 945.4; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454 [timely filing of claim is condition precedent to maintenance of civil action].) Such a claim must be presented within six months of its accrual. (Gov. Code §911.2.) Once a notice of rejection has been personally delivered to the claimant or de...

Excerpt: ...e filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. If an amended pleading is filed, the responding party shall meet and...

Excerpt: ... summary judgment order. Explanation: Civil Code section 55.3, subdivision (b)(1), provides that an attorney “shall provide” the specified written advisory form “with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction‐related accessibility claim . . . .” (Emphasis added.) Civil Code section 55.54, subdivision (a)(1), provides that “an attorney who causes a summons and comp...

Excerpt: ...e a receiver appointed for the purpose of transferring the judgment debtor's interest in the license. (Code Civ. Proc. § 708.630.) A necessary part of a motion for appointment of a receiver is to identify the person the moving party wishes to have serve as the receiver, showing that he or she has the necessary qualifications. The moving party here did not do this, but instead proposes that the receiver will be selected after the motion is grante...

Excerpt: ...00 is not contingent on FCA scheduling surrender of the vehicle. (Code Civ. Proc. § 664.6.) To deny the motion for sanctions. (Code Civ. Proc. § 128.5.) Explanation: Motion to Enforce Settlement Code of Civil Procedure section 664.6 provides: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon mot...

Excerpt: ...e Osiride Inis Towt Trust, uta dated 2‐1‐91. Plaintiff is the son of Ms. Towt. Contrary to the pleadings, which allege that Plaintiff loaned money to Defendants, Plaintiff states in his declaration in support of his default judgment request that his mother loaned $250,000 to Defendants “as evidenced by a Borrower's Closing Statement” attached as Exhibit A. (Kliegl Decl. at ¶ 3.) There is no Exhibit A attached to Plaintiff's declaration. ...

Excerpt: ...the debtor's assets until final adjudication of the claim sued upon. (Code Civ. Proc., §481.010 et seq.) A creditor must follow statutory guidelines in applying for the attachment and establish a prima facie claim. (Lorber Industries of Calif. v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) An attachment may be issued only if the claim sued upon meets the following requirements: (1) it is a claim for money based on a contract, express or im...

Excerpt: ...n of the defendant if to do so appears to the court appropriate under the circumstances of the case.” Code of Civil Procedure section 583.420 authorizes the court to exercise its discretion to dismiss a matter in three circumstances: if service is not made within two years after the action is commenced against a defendant; if the matter is not brought to trial or conditionally settled within three years, and if the action is not tried within tw...

Excerpt: ...e complete verified responses to the discovery set out above, without objection, within 10 days after service of this order. To grant defendant Donald Inman's motion for sanctions. Plaintiff Eduardo Calderon and his attorney of record, jointly and severally, are ordered to pay monetary sanctions to Ericksen Arbuthnot in amount of $315.00 within 30 days after service of this order. (Code Civ. Pro., § 2031.300(c).) Pursuant to California Rules of ...

Excerpt: ...entative of the client; and 3. proof of service on the defendants as required by Cal. Rules of Court, rule 3.1362(d). Failure to file the required declaration will result in the motion being taken off calendar. Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure section 1019.5(a), no further written order is necessary. The minute order adopting this ruling will serve as the order of the court, and service by the clerk o...