Excerpt: ...ant's residential care facility with a diagnosis of schizophrenia. A few months after admission, Plaintiff was allegedly physically attacked by Doe 1, another resident. On or about May 2017, Plaintiff alleges that he was physically attacked by yet another resident, Doe 2. Eventually, Plaintiff moved to another care facility. On March 23, 2018, Plaintiff filed his complaint alleging causes of action for elder abuse, negligent hiring and supervisio...

Excerpt: ... Plaintiff fails to adequately justify its request for increased attorney's fees; (4) Plaintiff improperly requests costs for a litigation guarantee; (5) Plaintiff fails to elect between remedies; and (6) Plaintiff provides no interest calculations. 1. Notice Due process considerations limit the amount of damages awardable on default: “In all default judgments, the demand sets a ceiling on recovery.” (Greenup v. Rodman (1986) 42 Cal.3d 822, 8...

Excerpt: ...8.4.) Explanation: An original or a photocopy of a doctor's report containing a diagnosis of and prognosis of the injuries, and a report of the minor‘s present condition, must be attached to the petition as Attachment 9. There is no Attachment 9. Attorney's fees are sought but there is no Attachment 14a to the petition setting out the rule 7.955 factors and no Attachment 18a, copy of the fee agreements attached to the petition. The attorney see...

Excerpt: ...idering a motion pursuant to section 877.6, the court balances the statute's twin goals of (1) encouragement of settlements, and (2) equitable sharing of costs among the parties at fault. (Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 494.) The standard is whether the amount of the settlement is within the “reasonable range” or “ballpark” of the settling tortfeasor's proportional share of comparative liability for the pla...

Excerpt: ...gment debtor shall be filed. Explanation: On December 21, 2016, a default judgment was entered in favor of plaintiff/judgment creditor M4 Associates, LLC and against defendant/judgment debtor Dr. Eric Lee in the total amount of $65,078.37, which consisted of principal in the amount of $60,108.87, attorneys' fees in the amount of $4,505.00, and costs in the amount of $464.50. (Doerksen Decl. ¶ 5, Exhibit “B.”) On June 5, 2018, M4 Associates f...

Excerpt: ... form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Code Civ. Proc., §§ 2030.290, subd. (b) and 2031.300, subd. (b).) Defendant Henry Macias to provide complete verified responses to all discovery set out above, without objection within 10 days after service of this order. To grant plaintiff Fred Garza, Jr.'s motion that the truth of the matters specified in the requests for admis...

Excerpt: ...rities that plaintiff is actually seeking to adjudicate the entire breach of contract claim. Plaintiff requests adjudication of the “issues” of each separate element of a breach of contract cause of action, including the existence of a contract, performance by plaintiff, breach by defendant, and damages to plaintiff caused by the breach. In essence, plaintiff seeks to adjudicate the entire cause of action, even though it seeks to parse each s...

Excerpt: ... the order by the clerk. Explanation: In response to this motion for judgment on the pleadings, plaintiff filed a First Amended Complaint, and did not address the merits of the motion as directed at the operative complaint. The Complaint was filed on September 20, 2016, and defendant filed its answer on December 7, 2016. Thereafter, plaintiff needed leave of court to amend the Complaint. (Code Civ. Proc. § 472.) Contrary to plaintiff's implied a...

Excerpt: ...rsuant to section 877.6, the court balances the statute's twin goals of (1) encouragement of settlements, and (2) equitable sharing of costs among the parties at fault. (Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 494.) The standard is whether the amount of the settlement is within the “reasonable range” or “ballpark” of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries. ...

Excerpt: ...rder. New allegations shall be in boldface type font. To grant the motion to file a cross‐complaint. The cross‐ complaint shall be filed and served within 10 days of the clerk's service of this minute order. Explanation: Motion for Leave to File Amended Complaint “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473; see also, Code Civ. Proc. § 576.) T...

Excerpt: ...t plaintiff Fred Garza, Jr.'s motion to compel defendant Margarita Garza, aka Margarita Macias, to provide initial verified responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Code Civ. Proc., §§ 2030.290, subd. (b) and 2031.300, subd. (b).) Defendant Margarita Garza, aka Margarita Macias, to provide complete verified responses to all discovery set out above, without o...

Excerpt: ...anation: California Rules of Court, rule 3.350(a)(1) requires that notice of a motion to consolidate be filed in each case sought to be consolidated. Here, the moving party failed to file notice of the instant motion in case no. 16CECG04000. Accordingly, the motion is denied without prejudice. Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure §1019.5(a), no further written order is necessary. The minute order adop...

Excerpt: ...rule the overbreadth objection for all other demands. For Demands Nos. 1, 3, 4, 9, 11, 17, and 21, to order that Zenith produce all documents not identified in a further verified response as subject to the attorney‐ client and/or work product privileges. The identification must be in a further response under oath which identifies each document withheld with its author, date of preparation, all recipients, and the specific privilege claimed. If ...

Excerpt: ...ence in support of the moving party establishes that there is no issue of fact to be tried.” (Buehler v. OregonWashington Plywood Corp. (1976) 17 Cal.3d 520, 526.) The affidavits of the moving party are strictly construed, while those of the opposing party are liberally construed. (Ibid.; Huynh v. Ingersoll‐ Rand (1993) 16 Cal.App.4th 825, 830.) A defendant moving for summary judgment bears the initial burden of making a prima facie showing o...

Excerpt: ...torney's fees and costs to defendant within 30 days of the date of this order. Explanation: Defendant seeks attorney fees after prevailing on a motion to strike plaintiff's strategic lawsuit against public participation (SLAPP) action. Under Code of Civil Procedure section 425.16, subdivision (c)(1), “in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney&#...

Excerpt: .... Rules of Court, Rule 9.40.) Explanation: The Court does not find that Mr. Ibarguen's representation of Defendants by virtue of his representation of Hearst Television, Inc. and Hearst Communications, Inc., constitutes the practice of law in California. Plaintiff offered no authority for this argument. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is n...

Excerpt: ...ued to August 28, 2018, at 3:30 p.m. in Dept. 503, to allow the moving party time to engage in additional discovery, as requested. Explanation: A settlement entered into by one or more of several joint tortfeasors may be determined by the court to be in “good faith.” (Code Civ. Proc. §877.6.) To encourage settlement, it is “quite proper for a settling defendant to pay less than [its] proportionate share of the anticipated damages. . . . Wh...

Excerpt: ... alleges that he was physically attacked by yet another resident, Doe 2. Eventually, Plaintiff moved to another care facility. On March 23, 2018, Plaintiff filed a complaint alleging causes of action for elder abuse, negligent hiring and supervision, and assault and battery. On April 19, 2018, Plaintiff filed a motion seeking trial preference. An opposition and a reply were filed. Trial Setting Preference Code of Civil Procedure section 36 states...

Excerpt: ...nt. Explanation: Defendants Strong Holdings, Inc. (erroneously sued as Keller Williams Westland Realty) and Mel Kilner (“Defendant Brokers”) demur to the cause of action for breach of contract contained in the First Amended Complaint based on the Purchase Agreement, attached as Exhibit A to the First Amended Complaint. Defendant Brokers also move to strike the claim for attorney's fees based on the Purchase Agreement. Defendant Brokers' princ...

Excerpt: ...est.” Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting. (Evid. Code, § 500.) The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact. (Evid. Code, § 550, subd. (b).) A claimant of surplus sale proceeds bears the burden of proving his ...

Excerpt: ...s of action for conversion and replevin, contending that plaintiff Allstate has not alleged sufficient facts to constitute a cause of action. “The elements of a conversion cause of action are (1) plaintiffs' ownership or right to possession of the property at the time of the conversion; (2) defendants' conversion by a wrongful act or disposition of plaintiffs' property rights; and (3) damages.” (Baldwin v. Marina City Properties, ...

Excerpt: ...ubd. (b).) Plaintiffs' counsel shall pay sanctions to defendants within 30 days of the date of service of this order. Plaintiffs shall also pay the costs of transferring the action. (Code Civ. Proc. § 399, subd. (a).) Explanation: Under Code of Civil Procedure section 395, subdivision (a), “[i]f the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where th...

Excerpt: ...ement and a brief description of the dispute is sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251; Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) Defendant Aimhigh Group LLC has made the required barebones showing. Pursuant to California Rules of Court, rule 3.1312, subd. (a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary. The minute order adopting t...

Excerpt: ...ke Plaintiff's first amended complaint on the ground that it is a strategic lawsuit against public participation (SLAPP) action. (Code Civ. Proc. §425.16.) To grant Jonathan Donnellan's application for admission to the bar of this Court pro hac vice. (Cal. Rules of Court, Rule 9.40.) Explanation: Application Pro Hac Vice The Court does not find that Mr. Donnellan's representation of Defendants, by virtue of his representation of Hearst Televisio...

Excerpt: ... 17CECG01691 as the lead case. All hearing dates currently scheduled in case number 17CECG02981 are ordered vacated. An Order to Show Cause re: Service is scheduled in Department 404 on July 12, 2018 at 8:30 a.m. Explanation: Rule 3.350 of the California Rules of Court governs the procedure to be used when filing a motion to consolidate. The motion must: (a) list all named parties in each case, the names of those who have appeared, and the names ...

Excerpt: ...strategic lawsuit against public participation (SLAPP) action. (Code Civ. Proc. §425.16.) Defendants' demurrer is ordered off calendar as moot. Plaintiff's attempted “discovery motion” is ordered off calendar, since Plaintiff did not obtain a hearing date for this motion. Defendants' evidentiary objections are overruled. Explanation: Anti‐SLAPP motion The anti‐SLAPP statute provides: “A cause of action against a person arising from any...

Excerpt: ...five‐ year trial date. Explanation: The court incorporates herein its ruling of May 9, 2017 for historical perspective. 1. CLASS CERTIFICATION a. Standards An agreement of the parties 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 (rev. denied); see also Newberg, Newbe...

Excerpt: ...e initial verified responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one, are moot. Responses have been provided. The motion that the truth of the matters specified in the requests for admission, set one, be deemed admitted as to defendant Paul Evert's RV Country, Inc. is moot. Defendant provided response to the requests for admission that are in substantial compliance with ...

Excerpt: ... payable within 30 days to defendants' counsel of record, McCormick, Barstow, Sheppard, Wayte & Carruth, LLP. Should plaintiff fail to appear at the newly noticed deposition, defendants may file a motion for terminating sanctions without first complying with Fresno County Superior Court Local Rule 2.1.17. Explanation: There was no need for defendants to comply with Local Rule 2.1.17 and request a pretrial discovery conference before filing this m...

Excerpt: ... the “Alternative Dispute Resolution Policy” (“ADR policy”), including the Spanish language versions of these documents, which shorten the timeframe to bring a claim to one year from the termination of employment, are deemed severed from those documents. To overrule all of plaintiff's evidentiary objections. Explanation: The moving party bears the burden of showing the arbitration agreement exists. (Code Civ. Proc. § 1281.2; Engalla v. P...

Excerpt: ...gations shall be in boldface. Explanation: Demurrer for Uncertainty: Defendant first demurs to the complaint for uncertainty on the ground that the causes of action in the caption of the complaint do not match the numbers of the claims in the body of the complaint, and the causes of action do not specify against which defendant they are alleged. However, courts look with disfavor on demurrers for uncertainty and will not sustain them unless the c...

Excerpt: ...tlements, and (2) equitable sharing of costs among the parties at fault. (Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 494.) The standard is whether the amount of the settlement is within the “reasonable range” or “ballpark” of the settling tortfeasor's proportionate share of comparative liability for the plaintiff's injuries. (Id. at. p. 499.) Where a motion for determination of good faith settlement is contested, the m...

Excerpt: ...r proceeding or by any other transfer of an interest. The action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." Here, the moving party presented evidence that it is the assignee of the claim. No opposition was filed to the motion. The moving party may be substituted in as the plaintiff in this action. The motion is...

Excerpt: ...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‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6(a)(1).) “The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affid...

Excerpt: ... which to cut off the right to file cross‐complaints bringing in new parties without permission of court.” (Loney v. Superior Court (1984) 160 Cal.App.3d 719, 723.) Where a party files a cross‐complaint after the first trial date has been set, the cross‐complaint is subject to a motion to strike. (Code Civ. Proc. §436(b); Loney, supra, 160 Cal.App.3d at p. 724.) Leave of court is required to file a cross‐complaint, or amended cross‐c...

Excerpt: ...r. On April 28, 2016, pursuant to an “Order to Show Cause” hearing, the Court dismissed the case without prejudice. Plaintiff now moves to set aside the dismissal on the ground it is void for lack of jurisdiction and notice. As of June 8, 2018, no opposition to the motion had been filed. The general rule is that the filing of a notice of appeal divests subject matter over any matter embraced in or affected by the appeal during the pendency of...

Excerpt: ....4th 826, 850.) Only then does the burden of production shift to the party opposing summary judgment, who is then subject to its own burden of production to make a prima facie showing that a triable issue of material fact exists. (Id.) If the moving party fails to meet this burden of production, the opposing party has no evidentiary burden to even oppose the motion. “[T]here is no obligation on the opposing party . . . to establish anything by ...

Excerpt: ...the moving party establishes that there is no issue of fact to be tried.” (Buehler v. OregonWashington Plywood Corp. (1976) 17 Cal.3d 520, 526.) The affidavits of the moving party are strictly construed, while those of the opposing party are liberally construed. (Ibid.; Huynh v. Ingersoll‐Rand (1993) 16 Cal.App.4th 825, 830.) A defendant moving for summary judgment bears the initial burden of making a prima facie showing of the nonexistence o...

Excerpt: ...ng parties, seek approval of a settlement as a Private Attorney General Action (“PAGA”), pursuant to California Labor Code section 2698 et seq. Plaintiffs appear to be correct in asserting that the legislature did not provide any guidance to the courts in terms of reviewing a PAGA settlement. (See Labor Code § 2699 et seq.) While PAGA claims are procedurally distinct from class action claims, there are similarities in the two in terms of a c...

Excerpt: ...e a separate document and will be signed at the hearing. Explanation: This motion is brought under Code of Civil Procedure section 664.6 (“Section 664.6"). In pertinent part, Section 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court . . . for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms of the sett...

Excerpt: ...� subject to the demurrer or motion. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) Both statutes clearly require the parties to “meet and confer in person or by telephone.” (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The moving party is required to file a declaration stating either of the following: (A) The means by which the [demurring or moving] party met and conferred with the party who filed the pleading . . . , and that the parties did not...

Excerpt: ...he court grants defendant twenty days within which to comply with the statutes. Defendant must meet and confer “in person or by telephone” with plaintiff regarding the issues raised by the demurrer and motion to strike, or attempt to do so and provide sufficient evidence of the attempt and plaintiff's failure to meet and confer in good faith. If the parties cannot agree on the purported deficiencies in the complaint, defendant may file a new ...

Excerpt: ...ication Although plaintiff's motion is entitled a motion for preliminary approval of the class action 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...