Excerpt: ...ons Code section 17200. To deny defendant's alternative motion to dismiss the twenty‐eighth cause of action. Explanation: Defendant has not cited to any statutory authority or case law that would support its highly unusual motion to enter a judgment against itself. Thus, the motion violates California Rules of Court, rule 3.1113(b), which requires a moving party to include a memorandum of points and authorities with a concise statement of the l...

Excerpt: ...orceable settlement with plaintiff Robert Endara (“Endara”) following mediation. Contending there was never a meeting of the minds and no enforceable agreement, Endara did not accept Shelby's performance and did not dismiss Shelby from the action. Instead of simply moving to enforce the settlement agreement, Shelby filed a separate action for specific performance and breach of contract (Shelby American, Inc. v. Endara, Case No. 20CECG00202), ...

Excerpt: ... agreement with defendant in this PAGA action. “The superior court shall review and approve any settlement of any civil action filed pursuant to this part.” (Lab. Code, § 2699, subd. (l)(2).) Courts have recognized that PAGA does not set forth the appropriate standard for approval of such settlements. (Flores v. Starwood Hotels & Resorts Worldwide, Inc. (C.D. Cal. 2017) 253 F.Supp.3d 1074, 1075; Patel v. Nike Retail Services, Inc. (N.D. Cal....

Excerpt: ...ty has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. . . . (c) Unless the court otherwise orders: (1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared. (2) At any time during the pendency of the...

Excerpt: ...ties moving for summary judgment carry the burden of production of evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A party who asks a court to act in his or her favor also bears the burden of persuasion. (Evid. Code, § 500). Thus, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as ...

Excerpt: ...Motion for Summary Judgment as to Plaintiffs' Entire Complaint (3) Defendant California Department of Transportation's Motion to Bifurcate Trial (Joined by the County of Fresno) Tentative Ruling: To deny both motions for summary judgment filed by defendants County of Fresno (“County”) and California Department of Transportation (“CalTrans”). (Code Civ. Proc., § 437c.) To grant the motion to bifurcate trial. (Code Civ. Proc., §§ 598, 10...

Excerpt: ...ndant moves to strike plaintiff's entire First Amended Complaint on the ground that plaintiff was not genuinely ignorant of defendant's identity at the time the original complaint was filed and the amended pleading therefore does not relate back to the commencement of the original action and is barred by the statute of limitations. Plaintiff claims that he was genuinely unaware of the true identity of defendant at the time the action was commence...

Excerpt: ...Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (20 U.S.T. 361), and service on ABIC through Akebono Brake Corporation (“ABC”), a Michigan corporation, is improper. Without valid service of summons, the court never acquires jurisdiction over a defendant. Thus, the statutory ground for the motion to quash is that the court lacks jurisdiction over the defendant. (Code Civ. Proc., § 418.10, subd. (a)(1).) “When ...

Excerpt: ...ment consistent with the court's summary judgment ruling. Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the initial burden of production to make a prima facie showing of the “nonexistence of any triable issue of...

Excerpt: ... adjudication as to one or more causes of action within an action . . . if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action . . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action.” Subdivision (p)(1) addresses summary adjudication when sought by the plaintiff: “A plaintiff . . . has met his or her burden of showing that...

Excerpt: ... (Code Civ. Proc., §§ 598, 1048, subd. (b); Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 503‐504; see also Cook v. Superior Court (1971) 19 Cal.App.3d 832, 834 [where evidence on one issue overlaps with evidence on another issue, it is appropriate to deny bifurcation].) The California Supreme Court has rejected the contention that “broad discovery in [Private Attorney General Act (“PAGA”)] actions should be limited unti...

Excerpt: ...ant Carney also remains liable for all previously imposed sanctions. Defendant Carney shall serve and file his answer to the first amended complaint within 10 days of the date of service of this order. Defendant Carney's attorney shall pay attorney's fees within 30 days of the date of service of this order. The court also admonishes defendant Carney that any further failure to comply with this court's orders may result in the court granting termi...

Excerpt: ...order shall be filed in each case sought to be consolidated. (Cal. Rules of Court, rule 3.350(c).) Explanation: Plaintiffs Krystalynn Sullivan and Dustin Culbert move to consolidate two actions for trial purposes, namely Sullivan, et al. v. Fire Insurance Exchange, et al., Superior Court Case No. 18CECG03812 (the “Sullivan Action”) and Funez v. Fire Insurance Exchange, et al., Superior Court Case No. 19CECG02755 (the “Funez Action”). “C...

Excerpt: ...e, moot. To grant the motion to compel responses to request for production of documents, set one. Plaintiff shall provide verified responses to the request for production of documents, set one, without objections, and shall make responsive documents available, within 20 days of service of this order. To impose monetary sanctions in favor of defendant Osborn, and against plaintiff and his attorney of record, jointly and severally, in the amount of...

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

Excerpt: ...: Under Code of Civil Procedure section 1710.40, a judgment debtor may move to vacate a sister‐state judgment against it that has been registered or domesticated in California. “A judgment entered pursuant to this chapter may be vacated on any ground which would be a defense to an action in this state on the sister state judgment. . . .” (Code Civ. Proc., § 1710.40, subd. (a).) “The judgment is subject to challenge on a variety of ground...

Excerpt: ...tent with this order within 10 days of service of this order. Explanation: Defendant first moves for summary judgment or adjudication of the wrongful death claim on the ground that it did not breach the standard of care or cause plaintiffs' decedent's death. “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and...

Excerpt: ...tent or results of any arbitration handled under this agreement without the prior written consent of all parties.” To stay the court action pending resolution of the arbitration. Explanation: The moving party must prove by a preponderance of the evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396‐397, 399‐400; Graphic Arts Int'l Union v. ...

Excerpt: ...ings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (c) Unless the court otherwise orders: (1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared. (2) At any time during the pend...

Excerpt: ... complaint or cross‐complaint may file a cross‐complaint setting forth either or both of the following: (a) Any cause of action he has against any of the parties who filed the complaint or cross‐complaint against him. . . . (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross‐complaint (1) arises out of the sa...

Excerpt: ...sue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐ obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc., § 877.6, subd. (a)(1).) Under Tech‐Bilt, Inc. v. Woodward‐Clyde & Assocs. (1985) 38 Cal.3d 488 (“Tech‐ Bilt”), whether the settlement falls within the parameters of the good faith “ball park” is ...

Excerpt: ...on: Defendant contends that its default was taken as a result of mistake, inadvertence, surprise, or excusable neglect. A court has discretion to relieve a party from entry of default or default judgment upon a proper showing of “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.) The defendant has the burden of proving one of th...

Excerpt: ...de Civ. Proc., § 473, subd. (a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) California Rules of Court, rule 3.1324 provides that a motion to amend must: (1) include a copy of the proposed amendment, (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, t...

Excerpt: ...il action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (l)(2).) 2. Notice to Labor and Workforce Development Agency Plaintiff's counsel states that notice of the settlement was given to the Labor and Workforce Development Agency (“LWDA”) on December 23, 2020, as required by Labor Code section 2699, subdivision (l)(2). (Favar...

Excerpt: ...djudication as to one or more causes of action within an action . . . if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action . . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action.” Subdivision (p)(1) addresses summary adjudication when sought by the plaintiff: “A plaintiff . . . has met his or her burden of showing that t...

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

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

Excerpt: ...bmitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement under PAGA. Nor has the legislature provided any structure or standards for making the assessment. Published California case law has not done so either. However, the common practice when ruling on PAGA settleme...

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

Excerpt: ...numerous, and it is impracticable to bring them all before the court.' ‘[W]e have articulated clear requirements for the certification of a class' under this statute. ‘The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a welldefined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.'” (Noel v....

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

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

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

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

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

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

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

Excerpt: ...4th 701, 706; Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 42, fn. 7, citing Code Civ. Proc., § 452.) Defendants contend that the allegations of the first amended complaint require that...

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

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

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

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

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

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

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

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

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

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

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

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