Excerpt: ...11-16.) The court disagrees. The court granted plaintiff an order shortening tme at the ex parte hearing, with the added proviso that "[nlew filings will flow from the new hearing date." However, this did not require plaintiff to refile his motion. Rather, the court's order effectively advanced plaintiff's hearing date from January 18, 2024, to October 17, 2023 (which was then continued again to October 19, 2023). The court's direction regarding ...

Excerpt: ...: Demurrer — General Principles A party may file a general demurrer on claims that "[t]he pleading does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., S 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [ "'A demurrer can be utilized where the complaint itself is incomplete . [Citations.]" l.) In essence, "to withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or co...

Excerpt: ...]he superior court shall review and approve any settlement of any civil 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, S 2699, subd. (i)(2).) representative action under PAGA is not a class action% and is instead a 'type of qui tam action', a standard requiring the trial court to determine inde#ndently whether a PAGA settlement is fair and ...

Excerpt: ... further responses to her requests for production of documents, set one, special interrogatories, set one, and form interrogatories — employment, set one. To deny plaintiff's request for monetary sanctions against defendant and its counsel. To grant monetary sanctions against plaintiff and her counsel, in the amount of $1,350. Plaintiff shall pay sanctions to defendant within 30 days of the date of service of this order. Explanation: Under Code...

Excerpt: ...trate." (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) "Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute." (Mendez v. Mid- Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) Defendant American Honda Motor Co., Inc. ("Honda") moves to compel arbitration of plaintiffs' action pursuant to an arbitration clause in the retail instal...

Excerpt: ...r v. Atlantic Richfield co. (2001) 25 cal.4th 826, 859, fn. 29; Ten Eyck v. Industrial Forklifts co. (1989) 216 Cal.App.3d 540, 545.) Once judgment is entered, it "may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment." (APRI Ins. Co. v. Superior Court, supra, 76 Cal.App.4th at p. 181.) Mandatory Relief Pursuant to Code of Civil Procedure section 473, subdivision (b) Th...

Excerpt: ...l interrogatories, as a result of plaintiff's counsel's failure to appear at the scheduled Pretrial Discovery Conference. Plaintiff's counsel filed opposition to defendant's request for a Pretrial Discovery Conference, and was aware of the date the court had initially set for said conference, and was also aware of the contnuance granted, which set the conference for August 4, 2023. Counsel states he failed to appear because even though his office...

Excerpt: ...ic situaton. In March 2020 the decedent, Anthony Choza, Jr., was a pedestrian on Hughes near Brown Avenue in Fresno when he was struck by a vehicle driven by defendant David Zarucchi. The plaintiffs allege the lack of lighting at the location created a dangerous condition to public property and was a substantial factor causing the decedent's death. The plaintiffs are the decedent's wife, individually and on behalf of the decedent's estate, and hi...

Excerpt: ... Procedure section 439 and 435.5; specifically, to meet and confer with plaintiff regarding the issues raised by the motion for judgment on the pleadings and motion to strike. If the parties cannot agree on the purported deficiencies in the complaint, defendant may calendar another hearing date for the motions and must comply with Code of Civil Procedure secton 439 and 435.5 in doing so. If the parties need more time to meet and confer, they may ...

Excerpt: ...ll dollar amounts filled in, within 5 days of the clerk's service of this order. To set a hearing at October 1, 2024, at 3:30 p.m. in Department 503 as a hearing date for an Amended Judgment pursuant to Code of Civil Procedure secton 384. A verified report of payouts of settlement funds and a proposed amended judgment shall be submitted no later than September 11, 2024. Explanation: "Before final approval, the court must conduct an inquiry into t...

Excerpt: ...o compel further responses to her requests for production of documents, set one, special interrogatories, set one, and form interrogatories — employment, set one. To deny plaintiff's request for monetary sanctions against defendant and its counsel. To grant monetary sanctions against plaintiff and her counsel, in the amount of $1,755. Plaintiff shall pay sanctions to defendant within 30 days of the date of service of this order. Explanation: Un...

Excerpt: ... evidence in the light most fawrable to plaintiffs'" and "'liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendant['s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs' favor.'" (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97, citations omitted.) The court does not weigh evidence or inferences (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th...

Excerpt: ...ffs") filed the instant action for seven causes of action: (1) battery; (2) negligence; (3) intentional infliction of emotional distress; (4) fraudulent concealment; (5) private nuisance; (6) public nuisance; and (7) breach of contract. The Complaint is brought against defendants Dogwood East Village, K&K Property Management, Vacasa LLC, Paul Casares and the Williams Family Trust. Plaintiffs alleged that between February 6, 2020 and February 10, ...

Excerpt: ...y 19, 2023 Tentative Ruling: To grant in part plaintiff's May 3, 2023 motons to compel further responses from Kevin Schwin and SchwinLaw, PC to form interrogatories and requests for production. Defendant Kevin Schwin shall provide further verified responses to Form Interrogatory Nos. 2.5, 16.1, 16.2, and 50.1-6. Defendant SchwinLaw, PC shall provide further verified responses to Form Interrogatory Nos. 16.1, 16.2, and 50.1-6. Defendants Kevin Sch...

Excerpt: ...within 5 days of the clerk's service of this order. To set a hearing at September 18, 2024, at 3:30 p.m. in Department 503 as a hearing date for an Amended Judgment pursuant to Code of Civil Procedure section 384. A verified report of payouts of settlement funds and a proposed amended judgment shall be submitted no later than September 4, 2024. Explanation: "Before final approva , the court must conduct an inquiry into the fairness of the propose...

Excerpt: ...e secton 430.41and 435.5; specifically, to meet and confer with plaintiff regarding the issues raised by the demurrer and motion to strike. If the parties cannot agree on the purported deficiencies in the first amended complaint, defendant may calendar another hearing date for the demurrer and must comply with Code of Civil Procedure section 430.41 and 435.5 in doing so. If the parties need more tme to meet and confer, they may submit a stipulati...

Excerpt: ...hat it has no duty to "police" or supervise the accounts of its customers to ensure that they are not the victims of fraud or financial elder abuse and thus it cannot be liable for negligently allowing plaintiff's granddaughter to steal cwer $90,000 from plaintiff's accounts, Wells Fargo has not established that it owes plaintiff no duty as a matter of law. The cases cited by Wells Fargo only stand for the proposition that a bank has no duty to m...

Excerpt: ... Tveritna argues that plaintiff's negligence claim against her is insufficiently alleged because he has not alleged any specific facts showing that her alleged failure to summon medical aid for him for two hours after he first told her about his symptoms caused him any additional harm beyond what he had already suffered as a result of receiving the Covid-19 vaccine. She contends that his new allegations in the first amended complaint are nothing ...

Excerpt: ...3:30 p.m. in Department 503. Explanation: On September 3, 2020, plaintiff Carlos Aguilar ("Plaintiff") filed the instant action for two causes of action: general negligence, and premises liability. Plaintiff alleged that on September 7, 2018, he slipped and fell at Jetro Restaurant Depot due to soap on the floor. Defendant RD America, LLC ("Defendant"), erroneously sued as Jetro Restaurant Depot, now seeks summary judgment of the Complaint. Defen...

Excerpt: ...rizes the court to make an order that the trial of any issue shall precede the trial of any other issue "when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing[.l" The objective of bifurcation "is avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability...

Excerpt: ...Code Civ. Proc., S 473, subd. (b), first sentence.) The court denies the request for relief from waiver of objections, but grants defendant relief from the court's October 25, 2022 order pursuant to Code of Civil Procedure section 473, subdivision (b), on the condition that defendant agrees to participate in a pretrial discovery conference regarding the at-issue discovery, and agrees to extend plaintiff's deadline for filing a motion to compel fu...

Excerpt: ...nfliction of emotional distress ("IIED"), cross-complainant Stacey Aprile filed the FACC. Doe purports to demur to both causes of action, including the second cause of action for harassment, but does not address the second cause of action at all. The court will only address the first cause of action. The elements of a cause of action for IIED are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disre...

Excerpt: ...re are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc„ 5437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) In determining a motion for summary judgment, "'we view the evidence in the light most favorable to plaintiffs'" and "'liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendant['sl own evidence, in order to resolve any evide...

Excerpt: ... 1240.010.) The State has adopted the required resolution of necessity. (Code Civ. Proc. S 1240.040.) The State has deposited with the State Treasury the probable amount of compensation. All defendants who have appeared and not disclaimed any interest in the property have been timely served with the motion for possession. (Code Civ. Proc. S 1255.410.) Since the motion is opposed, in orderto grant the motion, the court must also find: (C) There is...

Excerpt: ...ctively "Defendants") seek to dismiss the First Amended Complaint by Plaintiffs Lennice Muhammad and Julia Dudley (collectively "Plaintiffs") for failure to comply with the court's May 31, 2023 order granting Plaintiffs the relief they sought, for leave to file an amended pleading. Defendants filed the instant motion on July 7, 2023, more than 30 days after leave was granted. At the time of filing, no amended pleading had been filed. Accordingly,...

Excerpt: ...against Plaintiff Tentative Ruling: To grant defendant's motion to deem requests for admissions admitted. The truth of the matters specified in the Request for Admissions, Set One, are to be deemed admitted, unless plaintiff serves, before the hearing, a response that is in substantial compliance with Code of Civil Procedure section 2033.220. To grant defendant's motion to compel JK Wholesale to Comply with the Subpoena. Within 10 days of service...

Excerpt: ... of arbitration of plaintiff's first, second, third, fourth and seventh causes of acton. Explanation: Defendants move the court for an order compelling plaintiff to arbitrate the claims of her complaint pursuant to Code of Civil Procedure section 1281.2. Upon commencing her employment with McCormick Barstow, LLP, plaintiff signed an arbitration agreement wherein plaintiff agreed to submit to arbitration "any and all disputes, claims or controvers...

Excerpt: ...contnues the matter to Thursday, September 28, 2023, at 3:30 p.m. in Department 503, to allow moving party to file a supplemental declaration addressing the issues explained below. The supplemental declaration must be filed on or before 5:00 p.m. on September 20, 2023. Explanation: It is proper to set the dismissal aside, since that is the only way anyone can make a claim to the funds. However, it is not yet clear that moving party Phyllis E.F. J...

Excerpt: ...planation: Each request for judicial notce was The matters of which judicial notice was requested to be taken consist of public statutory law, regulations, legislative enactments, legislative history, and related official or records. Each is granted, accordingly. A motion for judgment on the pleadings has the same function as a general demurrer in that it is used to challenge pleadings that do not state facts sufficient to constitute a cause of a...

Excerpt: ...on, without leave to amend. To overrule Specialized Loan Servicing LLC's ("SLS") demurrer to the first cause of action. Within 10 days of service of the order by the clerk, SLS shall file its answer to the Complaint. Explanation: In the first cause of action for wrongful foreclosure, plaintiff alleges that the foreclosure sale was wrongful because defendant "SL" (presumably this refers to SLS) did not comply with Civil Code section 2924(f) becaus...

Excerpt: ...ng a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, shall be valid, irre'.nxable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. S 2.) [W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement...

Excerpt: ...abor Code under the Private Attorneys General Act ("PAGA"). "The superior court shall review and approve any settlement of any civil achon 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, S 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. Nor has the ...

Excerpt: ...ctively, "Defendants"). The defendants shall file and serve their answers to the first amended complaint within ten (10) days of the clerk's mailing of this minute order. To deny plaintiff's request for judicial notice. Explanation: Demurrer Defendants demur specially to the second cause of achon and generally to both the first and second causes of action of the first amended complaint ("FAC") on the ground that each fails to state sufficient fac...

Excerpt: ...from waiver of objections, but grants defendant relief from the court's October 25, 2022 order pursuant to Code of Civil Procedure section 473, subdivision (b), on the condition that defendant agrees that plaintiff's deadline for filing a motion to compel further responses is extended 35 days from service of this order, or whatever later date the parties may agree upon, and provided defendant participates in a pretrial discovery conference regard...

Excerpt: ...ed and the distribution of any cy pres funds can be ordered. The parties are ordered to file a declaration from the administrator as to the payout and amount of uncashed checks no later than August 1, 2024. As required by CRC 3.771(b), notce of the judgment is to be given to the class. Notice may be given by an insert with the settlement check that states judgment was entered with a link to the court's website and directions to enter the case num...

Excerpt: ...S 430.10, subd. (e), (f).) To deny RVJ's motion to strike alter-ego allegations. To grant the moton to strike the requests for attorneys' fees at FAC 8:21, 20:26 and 21:4, with leave to amend. (Code Civ. Proc., S 436, subd. To sustain Isidro Martinez and Martinez Accounting, Inc.' (collectively, "Martinez") demurrer to the eleventh, thirteenth, fourteenth and fifteenth causes of action, with plaintiff granted 10 days' leave to amend as to the ele...

Excerpt: ...ng a four-week trial, the jury rendered verdict favorable in part to plaintiffs Veronica Ordaz Gonzalez and Jose Ramos Santiago and entirely favorable to defendants with regard to plaintiffs Omar Perez and Roberto Perez. The parties have filed memorandums of costs having each prevailed at least in part. Plaintiff Gonzalez moves the court for an award of attorney's fees as the prevailing party in her cause of action for violations of the Bane Act ...

Excerpt: ...terest against both, may intervene in the action or proceeding." (Code Civ. Proc., S 387 (a).) "[Ilf the person seeking interventon claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede the person's ability to protect that interest, unless that person's interest is adequately represented by existing ...

Excerpt: ...senior care living facilities. After the defendants failed to pay Romero $33,500 for services rendered from May 1, 2016, to August 31, 2019, Romero filed a complaint for breach of contract and common counts against six named defendants: VR Enigma lnc„ VR Enigma Inc. dba Royal Gardens Senior Care, VR Enigma, Inc. dba Royal Gardens II Senior Care, VR Enigma, Inc. dba Royal Gardens III Senior Care, VR Enigma, Inc. dba Royal Gardens IV Senior Care,...

Excerpt: ...ghth and thirty- first causes of action and the alternative motion for procedural protections during the trial, without prejudice, as the motion is premature and should be brought as a motion in limine. Explanation: under Code of Civil Procedure section 1048, "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, inclu...

Excerpt: ...ing to or to submit to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., S 2023.010, subd. (d).) Once a motion to compel a party to comply with a discovery request is granted, continued failure to comply may support a request for more severe sanctions, since disobeying a court order to provide discovery is also a misuse of the discovery process. (ld., (g).) It appears that since at least mid-to-late 2021, p...

Excerpt: ... be collectively referred to herein as "Intervenors." The First Amended Complaint alleges that during the period of July 1, 2019, to September 30, 2020, plaintiff overpaid sales taxes in the amount of $10,797,689.31 on the sales of jet fuel to Southwest Airlines Co. The taxes at issue are pursuant to the Bradley8urns Uniform Local Sales and Use Tax Law, codified in Revenue and Taxaton Code section 7200, et seq. Plaintiff pays these taxes to the d...

Excerpt: ...ferent allegations in the second amended complaint are to be set in boldface type. Explanation: Mandatory Duty "A plaintiff seeking to hold a public entity liable under Government Code section 815.6 must specifically identify the statute or regulation alleged to create a mandatory duty." (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 689.) In essence, "[t]o construe a statute as imposing a mandatory duty on a public entiW, 'the mandatory na...

Excerpt: ... dba Focus Home Health. (Code Civ. Proc., S 438.) Explanation: Judgement on the Pleadings A motion for judgment on the pleadings has the same function as a demurrer, but is made after the time for demurrer has passed. (Code Civ. Proc., S 438; Prickett v. Bonnier Corporation (2020) 55 Cal.App.5th 891, 896.) he grounds for the moton must appear on the face of the challenged pleading or from facts judicially noticeable. (Prickett v. Bonnier, supra, ...

Excerpt: ... filed evidentiary objections to 1) new evidence in defendant's reply brief; 2) portions of the Dwight Nelson Declaration filed January 18, 2023; 3) paragraph 5 of the Dwight Nelson Declaration filed June 14, 2023; and 4) portions of the Liam Gaarder-Feingold Declaration filed June 14, 2023. The court is sustaining the objection as to new evidence in defendant's reply. The court has not considered new arguments presented for the first time in def...

Excerpt: ...ons in the proper format, as required by Rule of Court 3.1354. Written objections are (inter alia) to be filed separately from other papers, and quote the objectionable material and clearly state the grounds for the objections. The parties must do more than just note their objections on the Separate Statement and in the memorandums of points and authorities, as they have done here. Failure to object waives the right to challenge the court's rulin...

Excerpt: ... Lopez and Araceli Hernandez each with Requests for Admission, Request for Production of Documents, and Form Interrogatories — General (each set one). Defendants received multiple extensions of time to respond, ultimately to May 1, 2023. Another extension of time was requested on May 3, 2023, but the further extension was not granted, as the responses were already late and multiple extensions had already been given. Plaintiff has filed motions ...

Excerpt: ...y Judgment, or in the Alternative Summary Adjudication of its Breach of Contract Claim and Defendants' Affirmative Defenses in Case No. 20CECG01363 Defendant Wonderful Almonds Cooperative's Motion for Summary Judgment, in the Alternative Summary Adjudication of Plaintiffs' Thirty-First Cause of Action Tentative Ruling: To grant plaintiff Independent Financing Services' motion for summary adjudication of its breach of contract claim and defendant'...

Excerpt: ...: California law makes clear that Defendant[s] had a non-delegable duty of care to maintain the subject property, including the subject window, in a safe condition. Koepnick v. Kashiwa Fudosan America, Inc. (2009) 173 Cal.App.4th 32, 35. As a general matter, "[all' landowners, including landlords, must use reasonable care to protect people who come onto their property. [Citations. [Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App....

Excerpt: ... a minor. Plaintiff's father, Frank Sifuentes Jr. (decedent), reported to the emergency' department at Madera Community Hospital (MCH) on 4/15/20 in great pain and was diagnosed with a torn artery which required surgery. MCH transferred decedent to defendant Community Regional Medical Center (CRMC). CRMC discharged decedent on 4/22/20 without performing surgery. On 4/23/20 decedent was transferred to defendant Keck Hospital of USC, where died on ...

Excerpt: ... acquires personal jurisdiction of a defendant by service of process in accordance with statutory and due process requirements. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229; Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 612 [personal jurisdiction is conferred by service on defendant of the summons and complaintl.) Actual notice of the action alone is not a substitute for proper servi...

Excerpt: ...ories, set one, and requests for production of documents, set two, as verified responses have been provided. To deny the motion to compel responses to requests for admission, set one. Code of Civil Procedure section 2033.280(b) does not provide authority to compel responses but to deem matters admitted. To grant defendant's request for sanctions as to plaintiff for having unsuccessfully moved to compel responses to interrogatories and requests fo...

Excerpt: ...the proposed class meets the requirements for certification before it can grant preliminary approval of the proposed settlement. 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, Newberg on Class Actions (T.R. W...

Excerpt: ...ke a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer." (Code Civ. Proc., S 464, subd. (a).) "A 'supplemental' pleading is used to allege facts occurring after the original pleading was filed. In contrast, the additional allegations in an 'amended' pleading address matters that had occurred before the original pleading was filed." (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1032...

Excerpt: ...tiff Griselda Rodriguez's first and second causes of action for motor vehicle negligence, and to plaintiff Marcela Martinez's sole cause of action for loss of consortium, unless all other parties appear at the hearing and waive service of the moving papers. (Code Civ. Proc., SS 1005, subd. (b); 1014.) To deny plaintiffs Rodriguez and Martinez's request for monetary sanctions. (Code Civ. Proc., S 128.5.) Explanation: Notice Defects "[Alll moving a...

Excerpt: ...Rules of Court, rule 3.515(a) to stay the matter pending resolution by the California Supreme Court of Everardo Rodriguez v. FCA US, LLC, Case No. S274625. Code of Civil Procedure secton 404.5 and California Rules of Court, rule 3.515 contemplate stays pending consideration for coordination of multiple actions. Plaintiff provides no evidence that he seeks to have the matter coordinated. Accordingly, a stay under Code of Civil Procedure section 40...

Excerpt: ...posed settlement. 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, 93-95.) "Class certification requires proof (1) ofa sufficiently numerous, ascertainable class, (2) of a well-defined community of interest, and (3) that certification will prov...

Excerpt: ...h will run from service by the clerk of the minute order. New language must be set in boldface type. Explanation: Plaintiff, S.C., sued the County of Fresno (County), KTDA Group Home, Inc. (Facility), and Does 3 through 25, in a revival action under Code of Civil Procedure secton 340.1. (S.C. was under age 40 at the time he filed his complaint.) S.C. alleges he was sexually abused and assaulted in foster care when he was minor, while under the de...

Excerpt: ...ion under Code of Civil Procedure secton 1021 and Section XXV, subdivision (G) of the franchise agreements, dated December 3, 2010 and April 11, 2012, between the parties (the "Franchise Agreements"). "Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties, but parties to actions or proceedings are enti...

Excerpt: ...pleading shall be filed within 30 days of the clerk's service of this order. New or different allegations in the first amended complaint are to be set in boldface type. To deny plaintiff's motion for leave to file punitive damages pleadings. To deny plaintiff's application for sanctions. Explanation: Demurrer/strike "To withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law." (Logan v. Southern C...

Excerpt: ...lanation below), with the time to run from the clerk's service of the minute order adopting this Tentative Ruling. Explanation: In this partition action, an interlocutory judgment issued on December 22, 2020, which ordered the subject property to be sold by the appointed referee, with the proviso that $20,000 of the sale proceeds would be impounded to cover later costs of partition. A further order was entered on February 3, 2022, confirming the ...

Excerpt: ...ute order by the clerk. To deny the motion for relief from sanctions. Explanation: Defendants Springs SPE, LP (erroneously sued as The Springs), and Apartment Management Consultants, LLC (collectively "defendants") generally demur to the eighth cause of action, for public nuisance, for failure to state facts to support the cause of action. The present demurrer is the third challenge to the same cause of action, based on the same deficiencies alle...

Excerpt: ...iv. Proc., S 2023.010, subd. (g); 2030.290, subd. (c); 2031.300, subd. (c).) To strike the complaint and dismiss the action. To grant and to award monetary sanctions in the total amount of $735 against plaintiff David Herrera and his attorney of record, Justin B. Toobi, jointly and severally, payable within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. To grant and to award monetary sa...

Excerpt: ... by Rules of Professional Conduct, Rule 1.16, subdivision (e). Mr. Hoppe attests to having provided the contents of the file as requested by his client with the exception of a February 14, 2023 email from Jeff Williams, in-house counsel for Zenith, and emails sent after his representation of TJ & Sons ended on March 1, 2023. (Hoppe Decl. "1 9-10.) The author of the emails, Mr. Williams, asserted the work product privilege regarding the February 1...

Excerpt: ...ancement payment to plaintff Eric Garcia is $5,000. A revised proposed order shall be submitted to this department within 5 days of the clerk's service ofthis order. To set a hearing at June 13, 2024, at 3:30 p.m. in Department 503 as a hearing date for an Amended Judgment pursuant to Code of Civil Procedure section 384. A verified report of payouts of settlement funds and a proposed amended judgment shall be submitted no later than May 30, 2024....

Excerpt: ...intiffs attach an email from Mr. Rosado wherein he asks counsel to use a new address. However, as the court instructed counsel in the Tentative Ruling issued on April 18, 2023, when service to Mr. Rosado is made by mail, plaintiffs must include service at his address of record, even if they also wish to serve him at a different address. It is the duty of the litigant (including a self-representing litigant) to serve all parties with a written not...

Excerpt: ...the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible diffculty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against ...

Excerpt: ... notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass orto cause unnecessary delay or needless increase in the cost of litigation. (2) The claims, defenses, an...

Excerpt: ...e the second amended complaint. The time to file the second amended complaint will run from service by the clerk of the minute order. Explanation: Defendant Farmers Insurance demurs to the sole cause of action stemming from a motor vehicle accident, contending that the First Amended Complaint ("FAC") fails to state cause of action, there is a nonjoinder or misjoinder of parties, the FAC is vague and ambiguous, and the cause of action is time-barr...

Excerpt: ...noticed by Defendants County of Fresno and Fresno County Sheriff's Offce ("County Defendants") of plaintiff, Dale Blickenstaff, and/or other witnesses identified in those depositions. (Code Civ. Proc. S 2033.300, subd. (c).) To deny Defendants County of Fresno and Fresno County Sheriff's Office's motion for summary judgment. (Code. Civ. Proc. S 437c, subd. (p)(2).) Explanation: Plaintiff's Motion to Withdraw Admissions Deemed Admitted Plaintiff m...

Excerpt: ...ssue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., S 437c, subd. (c).) In moving for summary judgment, a "defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of achon „ cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc. S 437c, subd. If ...

Excerpt: ... which the complaint may be amended will run from service of the order by the clerk. In light of plaintiff's counsel's refusal to meet and confer prior to the filing of the demurrer, the court will require plaintiff to initiate and conduct a telephonic or in-person conference of the parties prior to amending the complaint. (See Cade Civ. Proc., S 430.41, subd. (c).) Plaintiffs counsel shall file with the amended complaint a declaration describing...

Excerpt: ...nse on or before June 20, 2023. The supplemental briefs shall not exceed five pages in length. Explanation: The County of Fresno demurs to the complaint on several grounds, including a contention that the complaint is uncertain as to plaintiffs identity. Plaintiff cites Starbucks Corp. v. Superior Court (21%8) 158 Cal.App.4th 1436 (Starbucks), wherein the court noted the " judicial use of I Doe plaintiffs' to protect legitimate privacy rights has...

Excerpt: ... motion for leave to amend. To deny the motion for interlocutory judgment of dismissal of the entirety of the first amended complaint. To deny the alternative relief sought for interlocutory judgment of dismissal of the seventh and eighth causes of action of the first amended complaint. Explanation: Plaintiffs Lennice Muhammad and Julia Dudley (collectively "plaintiffs") seek leave to file an amended complaint. Defendants Tylar Property Managemen...

Excerpt: ...hether the proposed class meets the requirements for certification before it can grant preliminary approval of the proposed settlement. An agreement of the parties is not suffcient 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, Newberg on Class Actions (...

Excerpt: ...First Amended Complaint. Explanation: Meet and Confer Code of Civil Procedure section 435.5 makes it clear that meet and confer must be conducted "in person or by telephone. (ld., subd. (a).) There are limited instances in which the meet and confer requirement does not apply: 1) for an unrepresented party who is incarcerated; 2) proceedings in forcible entry, forcible detainer, or unlawful detainer; 3) an ant-SLAPP motion; and 4) a motion less th...

Excerpt: ...e Company's Complaint. To deny summary judgment of Plaintiff Hallmark Specialty Insurance Company's Second Amended Complaint. 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. S437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The issue to be determined by the trial court in consideration of a motion...

Excerpt: ... subdivision (c) provides: No pretrial discovery by the plaintiff shall be permitted with respect to [defendant's financial condition] unless the court enters an order permitting such discovery pursuant to this subdivision. Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this...

Excerpt: ...e 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 exercised by members of the medical profession under similar circumstances. ' "The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice actio...

Excerpt: ...ification before it can grant preliminary approval of the proposed settlement. An agreement of the parties is not suffcient 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, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representati...

Excerpt: ...adings in compliance with Code of Civil Procedure, section 439. Rather, he argues that meeting and conferring is not required to bring his motion, and even if so, any efforts would have been futile. The parties must engage in good faith meet and confer, in person or by telephone, as set forth in the statute. (Code Civ. Proc., S 439, subd. The moving party is not excused from this requirement unless he shows that plaintiff and cross-defendant Deli...

Excerpt: ...y the clerk of the minute order. New allegations/language in the first amended complaint are to be set in boldface type. Explanation: In California, a complaint shall contain a statement of the facts constituting the cause of action, in ordinary and concise language; and a demand for judgment for the relief to which the pleader claims to be entitled. (Code Civ. Proc. 5425.10.) If the recovery of money or damages is demanded, the amount demanded s...

Excerpt: ... conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the united States." (Code Civ. Proc„ S 1048, subd. (b).) Also, under Code of Civil Procedure section 598, "The court may, when ...

Excerpt: ...gal covenant not to compete. Plaintiff points out that, under Business and Professions Code section "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." (Bus. & Prof. Code, S 16500.) "Section 16500 presently sets out the general rule in California—covenants not to compete are void. '[T]his provision [is] an expression of pu...

Excerpt: ...jections within 20 days of the service of this order. Monetary sanctons in the amount of $4,520 are ordered in favor of plaintiff and against defendant and its attorney, jointly and severally, payable no later than 30 court days from the date of this order, with the time to run from the service of this minute order by the clerk. Explanation: Plaintiff has moved to compel defendant Saint Agnes Medical Center to provide further responses to special...

Excerpt: ...r arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, shall be valid, irrewcable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. S 2.) "In recognition of Congress' principal purpose of ensuring that private arbitration agreements are enforced according to their terms, we have held that the FAA pre-empts state laws which 'require a...

Excerpt: ... (Code Civ. Proc. S 430.10, subd. (e).) Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. Explanation: First Cause of Action: Defendant Campus Pointe Commercial (CPC) demurs to the first cause of action for breach of contract on the ground that the plaintiffs have failed to state facts sufficient to constitute a valid cause of action. Defendant contends that plaintiffs have failed ...

Excerpt: ...To grant the moton to strike, in part, and deny, in part. The alter ego allegations, specifically the allegations at page two, paragraph four, lines 12-19, are striken without leave to amend. The motion to strike the allegations pertaining to the aiding and abet-tng of FEHA violations is denied. (Code Civ. Proc., S 436, subd. (a).) Explanation: Demurrer • Demurrer to the Entire Complaint Ms. Simpson demurs to the entirety of the complaint on th...

Excerpt: ... her to discrimination and retaliation on the basis of the medical conditions of plaintiff's mother, Betty Rush ("Rush"). Plaintiff has confirmed through written discovery that she does not have a disability which required accommodation. Therefore, her claims for failure to accommodate and failure to engage in the interactive process are also based on Rush's alleged medical conditions. Motion to Quash Subpoena of Medical Records Defendant seeks R...

Excerpt: ...rties have not agreed to arbitrate." (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) "Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute." (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) The party moving to compel arbitration bears the burden of proving by a preponderance of the evidence the existence of an arbit...

Excerpt: ...er $4.7 million. Plaintiff has shown that she suffered special medical damages of over but she only seeks about apparently based on the amount that her insurance company paid for her medical costs. Yet she also admits that her insurance company only has a lien of $3,166.14 for medical costs, so it is unclear why she seeks over $39mo for medical costs. Plaintiff also seeks lost earnings to date of $82,944, plus another $642,815 in future earnings....

Excerpt: ...e dispute is covered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g„ fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l securities corp. (1996) 14 cal.4th 394, 413-414; Hotels Nevada v. L.A. Pacific ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) This case is governed by the F...

Excerpt: ...e and serve opposition to plaintiff's Request for Pretrial Discovery Conference. Plaintiff had filed her request with the court on September 27, 2022, and served it on defendant by email that same day. Thus, per The Fresno Superior Court Local Rules, rule 2.1.17A.2, defendant had until Tuesday, October 4, 2022 (five court days) to file and serve its opposition. No opposition was filed, and on October 11, 2022, the court issued an order noting def...

Excerpt: ... order by the clerk, the DPSS shall produce all documents responsive to the subpoena served on August 29, 2022, with social security numbers and third party identities redacted. To deny the motion to compel plaintiff to sign an authorization for the release of records. To deny all requests for sanctions. Explanation: Motion to Compel DPSS to Comply with Subpoena Defendant issued a subpoena for plaintiff's employment and medical records from the A...

Excerpt: ...d, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: (1) An agreement that by its terms is not to be performed within a year from the making thereof." (Civ. Code, S 1524, subd. (a)(l).) Thus, "[aln oral agreement that by its terms is not to be performed within a year from the making thereof is invalid." (Gressley v. Williams (1961) 193 Cal.App.2d 636, 640, internal c...

Excerpt: ...he minute order by the clerk. Explanation: On December 16, 2021, this court sustained defendant's demurrer to plaintiff's original complaint, with leave to amend, except that leave to amend was not granted to state a petition for a writ of mandate. The court found that, among other things, the original complaint failed to state facts to support the purported causes of action for workplace discrimination and retaliation. On December 27, 2021, plai...

Excerpt: ...h 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, 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 appr...

Excerpt: ...d cause of action, with leave to amend, as directed in the explanation below. 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: Quiet Title Plaintiff concedes that there is no cause of action stated in the complaint for quiet title. Thus, all defendants are demurring to is surplusage in the compl...

Excerpt: ...), and Request for Production of Documents (Set One). Plaintiff Novalee Solis is ordered to serve verified responses, without objections, to defendant within 30 days of service of the minute order by the clerk. To grant defendant Walmart, Inc.'s request to deem Requests for Admissions admitted. The truth of the matters specified in the Requests for Admissions, Set One, are to be deemed admitted unless plaintiff Novalee Solis serves, before the he...

Excerpt: ...the court's signature within 10 days of the date of service of this order. Explanation: Plaintiff alleges two causes of action against the Clovis Rodeo Association based on general negligence and premises liability. Plaintiff alleges that she went onto the Clovis Rodeo grounds after midnight with a cowboy who was a participant in the rodeo in order to take a picture of a horse. She went into a trailer where the horse was being kept, and the horse...