Excerpt: ...s for summary adjudication, without prejudice, as it appears that plaintiff has not been properly served at her current address with the motions and she is not competent to represent herself in the action. (Code Civ. Proc. § 437c.) To order the Public Guardian's Office to appear at the hearing to discuss appointing a guardian or conservator and legal counsel to represent plaintiff's interests in the case. Also, the court intends to take the pend...

Excerpt: ...nd all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three‐prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and...

Excerpt: ... no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. As the party moving for summary judgment, the defendant has the burden to show it is entitled to judgment concerning all theories of liability asserted by plaintiff. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717.) The ultimate burden of persuasion on summary judgment/adjudication rests on the moving party. The initial burden of pro...

Excerpt: .... Proof of undertaking must be filed with the Court before the writ will be issued. Explanation: (Note‐ as of December 17, 2019, no opposition appears in the Court's files.) Plaintiff asks this Court to issue a writ of attachment against Kelly English, dba Maverick Academic Prep Program in the amount of $55,899.61. Attachment is a prejudgment remedy that allows a creditor to have a lien on the debtor's assets until final adjudication of the cla...

Excerpt: ... and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3. In addition, “The superior court shall review and appro...

Excerpt: ...ng sanctions and an order dismissing this case pursuant Code of Civil Procedure §2023.030(d)(3). To grant defendants' motion to compel the plaintiff Mariaelena Galindo's attendance at deposition. Mariaelena Galindo is ordered to attend deposition as rescheduled by defendants, who shall provide plaintiff a minimum of ten days' notice so that she may make arrangements to attend the deposition. To grant defendants' motion for monetary sanctions. CC...

Excerpt: ...cal conditions/injuries. The court also intends to issue a protective order as requested by County Counsel, limiting use of any records that may be disclosed after the court's in camera inspection to the defense team and plaintiffs' team. Any transcripts or copies of the records made by the court shall be placed under seal. The moving party shall contact the department to schedule the in camera review. Explanation: Preliminarily, Evidence Code §...

Excerpt: ... terms of the settlement. (Code Civ. Proc. § 664.6.) Explanation: Under Code of Civil Procedure section 664.6, “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 motion, may enter judgment pursuant to the terms of the settlement.” “If the court determines that the parties entered into an en...

Excerpt: ... the issue of summary judgment based on standing, in order to allow Plaintiff the opportunity to seek appointment in the Probate Court as Personal Representative of the Estate of Elvin Jones, as required, and then to file an Amendment to the Complaint once Letters have been obtained. If no such appointment and amendment is made, the court intends to grant summary judgment in defendant's favor based on plaintiff's lack of standing to bring the cla...

Excerpt: ...erk of the minute order. Explanation: The core issue here is whether the decision made by the Personnel Commission which is the subject of the Petition herein was both final and binding, and whether this can be discerned on demurrer. Both sides refer to this as an “arbitration,” so it appears no one quarrels with this designation. However, arbitration in the context of administrative decisions can be either binding or nonbinding, and unless t...

Excerpt: ...int. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the First Amended Complaint are to be set in boldface type. Explanation: First Cause of Action – Breach of Contract Generally, “[i]t is well established that a judgment in an action for breach of contract bars a subsequent action for additional relief based on the same breach.” (Mycogen Corp. v. Monsanto Co. (2002) ...

Excerpt: ...ll make installment payments for several years. Sealing mandates a “document by document analysis and the threshold inquires required by the First Amendment.” In re Marriage of Burkle (2006) 135 Cal. App. 4th 1045, 1050. Defendants have not attempted to demonstrate that each of the 8,125 pages of materials meet the tests required by law for sealing. They assert privacy and that they will somehow be harmed if disclosure occurs, but do not stat...

Excerpt: ...to Code of Civil Procedure section 425.16. City argues that plaintiff's entire case stems from administrative investigations into suspected misconduct of plaintiff and his coworker La‐Kebbia Wilson, and that such constitutes “official proceeding[s] authorized by law” within the meaning of the SLAPP statute. City then argues that plaintiff is not likely to prevail on the merits. The court finds City's arguments persuasive. Code of Civil Proc...

Excerpt: ...99, subd. (a).) Explanation: California Code of Civil Procedure section 399, subdivision (a) authorizes a court to dismiss a case without prejudice if the costs and fees relating to a transfer order are not timely paid. In pertinent part, it states: If the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, those costs and fees, including any expen...

Excerpt: ... code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3. In ...

Excerpt: ... the Court's files. Defendant City National Bank (“CNB”) moves for Summary Judgment, or, in the alternative, Summary Adjudication as to Plaintiff's Second Amended Complaint. Defendant's main argument is that the evidence does not support the claims plead by Plaintiff. To obtain summary judgment, “all a defendant needs to do is to show that the plaintiff cannot establish at least one element of the cause of action.” Aguilar v. Atlantic Ric...

Excerpt: ...t, or in the Alternative, Motion for Summary Adjudication (filed June 7, 2019) Tentative Ruling: To deny all three motions, in their entirety. Explanation: When defendant filed its first motion, on May 22, 2019, the accompanying declaration from defense counsel, August B. Hotchkin, stated that he “attempted to comply” with the requirements of subdivision (t) of California Code of Civil Procedure section 437c, which allows a party to move for ...

Excerpt: ... 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 causes of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. § 437c, subds. (p)(2), (o)(2).) Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action and...

Excerpt: ...s of action. To sustain the demurrer to the fifteenth and sixteenth causes of action for failure to state facts sufficient to constitute a cause of action, with leave to amend. (Ibid.) Plaintiff shall serve and file his third amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: In his fourth through eighth causes of action, plaintiff alleges claims for slander of title, negl...

Excerpt: ...e ordered to pay the costs and fees incurred by the requesting party in proving that matter. The court shall order the payment of such fees and costs unless it finds: (1) that an objection to the request was sustained or a response to the request was waived; (2) the admission sought was of no substantial importance; (3) the party failing to make the admission had reasonable ground to believe that the party would prevail on the matter; or (4) ther...

Excerpt: ...nforcement of any judgment or order. (b) If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed. (c) This section applies whether or not an appeal wi...

Excerpt: ...l be filed with the Court before the writ will be issued. Explanation: Attachment is a prejudgment remedy that allows a creditor to have a lien on 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 a...

Excerpt: ...rprises, Inc. dba Triangle Truck Center for Attorney's Fees; and (5) By Morris and Lucille Srabian for Attorney's Fees. Tentative Ruling: To continue Morris and Lucille Srabian's (“the Srabians'”) Motion to Strike and/or Tax Costs of Twin Falls Enterprises, Inc. dba Triangle Truck Center (Triangle Truck) to Wednesday, August 28, 2019, at 3:30 p.m. in Department 503. Triangle Truck may file a supplemental opposition no later than August 14, 20...

Excerpt: ...order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: The SAC alleges the following causes of action: (1) intentional tort against the State of California (for failure to provide health insurance as required by law); (2) intentional tort against SIEU Local 2015 (for failure to provide health insurance); (3) intentional tort against Department of Motor Vehicles (because driver of the vehicle that caused plai...

Excerpt: ...t to state a cause of action and uncertainty, without leave to amend. (Code Civ. Proc. § 430.10, subd.'s (e), (f).) Defendants shall serve and file a judgment dismissing the action as to them within 10 days. If oral argument is requested, it will be heard on August 7, 2019 at 3:30 p.m. in Department 501. Explanation: The plaintiff's second amended complaint appears to be premised on the theory that MERS had no standing to assign the note and dee...

Excerpt: ...laint show the cause of action is barred by the statute of limitations, a general demurrer lies. (It is not ground for special demurrer.) (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.) Various statutes of limitations apply here depending on the cause of action, including the new causes of action in the proposed amended complaint. Breach of any oral agreements (such as the "handshake" agreement alleged in Complaint ¶ ...

Excerpt: ...mpliance is not required. Any First Amended Complaint must be filed within ten (10) court days of this order and any new or changed allegations are to be set forth in boldface typeset. To deny the request for attorney's fees raised by the Defendants in their reply brief. 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 i...

Excerpt: ...Explanation: Demurrer: A demurrer under section 430.10, subdivision (c), is essentially a plea in abatement. “A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action. In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only whe...

Excerpt: ...ant. To tax costs in the amount of $10,240. To award Pacific Plastics costs in the amount of $5,316.78. Explanation: 1. Pacific Plastics' Motion to Strike Pacific Plastics argues that Western Ag is not entitled to costs. First, it argues that costs are inappropriate because Western Ag is not the “prevailing party.” However, Western Ag was a cross‐defendant in whose favor a dismissal of the cross‐complaint was entered, and as such, it is a...

Excerpt: ... the corporate designee need acquire all information available to the company, through company sources, not outside counsel, with a further four hours for deposition. To order that deposition be taken in Fresno or that defendant pay the fees of plaintiff's attorney for travel time to attend elsewhere, in addition to said counsel's travel costs, said deposition to be completed by August 1, 2019. To overrule all objections to the PMK Topics 1 throu...

Excerpt: ...und that plaintiffs' amendment to add him in place of a Doe defendant is ineffective and thus plaintiffs' claims against him are barred by the twoyear statute of limitations. (Code Civ. Proc. § 335.1.) He contends that plaintiffs have known his identity and role in the accident since the filing of the original complaint, and therefore their amendment to add him as a defendant does not “relate back” to the date of filing of the original compl...

Excerpt: ...the motion to set aside default of defendant Juan Miramontes, with said defendant granted 20 days' leave to file his responsive pleading to the complaint. The time in which said pleading can be filed will run from service by the clerk of the minute order. Explanation: Motion to Set Aside Default The motion was timely filed. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 901 [interpreting the six‐month time limit in section 473 to equal 182 days].)...

Excerpt: ...vice of process or in any other manner in compliance with CCP § 416.10. Explanation: On February 26, 2018, Plaintiffs, in pro per, filed a complaint alleging that Defendant West Coast Towing unlawfully towed their vehicle at the improper request of Defendant Avery Apartment. They further assert that property was missing from the vehicle upon its retrieval. On March 23, 2018, an Answer was filed by Avery Apartment. On March 28, 2018 and on August...

Excerpt: ...Celestino Perales's cross‐complaint. (Code Civ. Proc. §473c(c); Cal. Rules of Court, rule 3.1350(b).) Explanation: Summary adjudication As an initial matter, the Court will not summarily adjudicate any issues or causes of action, as the moving papers fail to comply with California Rules of Court, rule 3.1350(b). Notice of motion Defendants argue that service on counsel on April 19, 2019, made by handserving copies of the moving papers after th...

Excerpt: ...ourt's satisfaction that: (1) they have a “substantial interest in the action as a whole”; and (2) their health is “such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., § 36, subds. (a), (c)(2).) The court has discretion to determine the extent of moving party's interest and to find as a matter of fact the risk posed of that party's death or incapacity if tr...

Excerpt: ...al.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Cause of Action Under Civil Code §3342. Civil Code §3342 provides that the “owner of any dog is liable for the damages suffered by the dog while in a public place.” Defendant argues that the First Amended Compl...

Excerpt: ...n within 10 days of service of this minute order by the clerk. (Code Civ. Proc. §387(d).) Explanation: A suspended corporation may not sue or defend itself against a lawsuit. (Rev. & Tax Code §23301.) “The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: (A) A provision of law confers an unconditional right to intervene. (B) The person seeking ...

Excerpt: ...acts. (Code Civ. Proc. § 464; Flood v. Simpson (1975) 45 Cal.App.3d 644, 647.) Explanation: While leave to amend a pleading is generally liberally granted, here it appears that plaintiff is actually seeking to supplement his first amended complaint with new facts and new causes of action based on events that occurred after the filing of the prior complaints. Thus, plaintiff is actually seeking to file a supplemental complaint, not an amended com...

Excerpt: ...two years after the action is commenced if to do so appears to the court appropriate under the circumstances. (Code Civ. Proc., § 583.410, subd. (a) & Code Civ. Proc., § 583.420, subd. (a)(1).) The criteria which a court must use to determine whether to grant a motion to dismiss under Code of Civil Procedure sections 583.410, subdivision (a) and 583.420, subdivision (a)(1) are set forth in California Rules of Court, rule 3.1342, subdivision (e)...

Excerpt: ...(d) of Code of Civil Procedure section 473 permits the court to “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.” “Section 473 empowers a trial court to set aside any judgment or order that is void as a matter of law … or otherwise because the judgment or order violat...

Excerpt: ...�Prime Cross‐ Complaint”) 3) Sierra Vista's Motion to Strike Portions of the Answer to the Cross‐ Complaint (the “Sierra Vista Cross‐Complaint”) Tentative Ruling: To overrule the demurrer in its entirety. To grant the motion to strike FRI's answer to the Sierra Vista Cross‐Complaint, but to grant FRI 30 days' leave to obtain representation by an attorney, to file evidence that its corporate status has been restored to “active” a...

Excerpt: ...was 14 months ending on March 1, 2018. On January 3, 2018, Plaintiff notified the Defendant that he was in default in the amount of $76,250. On June 1, 2018, Plaintiff served another notice of default. At that time, the Defendant owed $103,250. Defendant remained in default. On June 19, 2018, the Plaintiff filed a complaint alleging causes of action for breach of contract, “intentional tort”, and “claim and delivery.” On January 10, 2019,...

Excerpt: ...onsistent with the equitable objectives of the statute.” (Tech‐Bilt, Inc. v. Woodward‐Clyde & Assocs. (1985) 38 Cal.3d 488, 499‐500) The application will be granted and the settlement between Mr. Hernandez and the Plaintiff will be determined to be in “good faith” pursuant to CCP § 877.6(a)(2). Explanation: Background On May 27, 2017, Plaintiff was driving a 2016 Polaris Crew XP Utility Task Vehicle (aka UTV). She was wearing a helme...

Excerpt: ...ry sanctions, monetary sanctions, and/or to re‐open discovery and continue trial, as well as the alternative motion to disqualify defense counsel. To deny defendants' request for monetary sanctions against plaintiffs and their counsel. Explanation: First of all, this is not a normal motion for terminating, issue, evidentiary or monetary sanctions based on the opposing party's abuse of the discovery process under the Discovery Act. There is no i...

Excerpt: ...section 1048(a) states: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Neither of these matters involves a certified class. Thus there are no class members in commo...

Excerpt: ... nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff. (Judicial Council of Cal. Civ. Jury Instns. (Sept. 2018 rev.) CACI No. 300; see also Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) Here, plaintiffs adequately allege breach of contract. First, plaintiffs allege that on December 8, 2017, the parties entered into an oral agreement wherein defendant promised that all r...

Excerpt: ...l be filed and served within 10 days of the clerk's service of this minute order. New allegations shall be in boldface type font. Explanation: Timeliness of Demurrer and Motion to Strike Plaintiff opposes the demurrer and motion to strike on the grounds that they were untimely served. Code of Civil Procedure section 1005, subdivision (b), provides that “all moving and supporting papers shall be served and filed at least 16 court days before the...

Excerpt: ...position to the motion appears in the Court's files.] Defaults are disfavored and any doubts existing as to setting aside a default should be resolved in favor of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 (superseded by statute on other grounds as ...

Excerpt: ...pending in the Supreme Court. Nor does it appear that there is any reason for the court to stay the action under its discretionary power. It appears that plaintiff is arguing that he cannot proceed with his case until he obtains certain documents that he sought through the subpoena duces tecum, but he fails to explain exactly which documents he needs to obtain or why he needs to stay the action until he can obtain relief from the Supreme Court. T...

Excerpt: ...der with language directing that the net settlement money be deposited into a blocked account for the benefit of the minor. Explanation: In general, the petitions appear to be in order. However, petitioner has requested that the court order the entire net settlement sum for Aaron to be paid directly to him rather than being deposited into a blocked account at a bank. The net settlement is only $900, and petitioner argues that this “nominal amou...

Excerpt: ...the Court would have signed one. That is the situation that arose here, with each side submitting its own proposed statement of decision, without the other party's having signed off on it. The Court signed Defendant's proposed statement of decision. Moving party fails to provide adequate authority to grant the relief requested under these circumstances. Accordingly, Plaintiff's motion to strike Defendant's statement of decision is denied. Pursuan...

Excerpt: ...suance of Writ of Mandate: Judicial review of an agency decision by administrative mandamus is available where the agency was required “by law” to conduct an evidentiary hearing. (Code Civ. Proc., § 1094.5, subd. (a).) An evidentiary hearing is required “by law” if it is required by a statute (other than the APA), a regulation, or constitutional due process. (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 279.) Respondent Bo...

Excerpt: ...emed to be true, as it is “not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. [Citation.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's cla...

Excerpt: ...ult to sift through the facts to determine which were actually material and disputed. The two important functions of a separate statement are (1) to notify the parties which material facts are at issue, and (2) to “permit trial courts to expeditiously review complex motions for ... summary judgment to determine quickly and efficiently whether material facts are disputed. (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 72, emphasis added.) Ho...

Excerpt: ...ction, in ordinary and concise language.” (Code Civ. Proc. § 425.10.) Plaintiff alleges that defendant "did me wrong," "is derelict in her duties," "is a public servant" who "refused to perform her service." Plaintiff further contends that defendant is his "servant" and that she "failed to provide a service as my servant." The factual basis for plaintiff's claim is entirely unclear and uncertain....

Excerpt: ...lement Agreement states that it will be served on the LWDA only after preliminary approval, but neither the parties nor the Court have the power to decline the Legislature's directive on this issue. The motion must be denied due to failure to timely serve the LWDA. 2. 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 cou...

Excerpt: ...itations.]” (Munoz v. Lopez (1969) 275 Cal.App.2d 178, 181.) The terms “extrinsic fraud” and “mistake” are “given a broad meaning and tend to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (In re Marriage of Park (1980) 27 Cal.3d 337, 342.) To set aside a default judgment “based on extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate...

Excerpt: ... independently. However, plaintiffs have alleged facts with respect to the allegedly inadequate design of the driver's seat structure of the subject automobile, and MMC's knowledge of internal and external test results and external investigations which revealed these inadequacies. The remoteness of time regarding some of these tests does not invalidate these allegations, since adoption of, and continued retention of, defective designs despite all...

Excerpt: ...he initial burden of demonstrating facts justifying the exercise of jurisdiction. The plaintiff must do more than merely allege jurisdictional facts; plaintiff must provide affidavits and other authenticated documents demonstrating competent evidence of jurisdictional facts. (BBA Aviation PLC v. Superior Court (2010) 190 Cal.App.4th 421, 428‐429.) If this is met, the defendant then has the burden of demonstrating that the exercise of jurisdicti...

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

Excerpt: ...e).) To overrule the demurrer to the fifth cause of action. (Code Civ. Proc. § 430.41(b).) To grant the motion to strike SACC ¶ 55 and page 17, lines 1‐2 of the prayer for relief, without leave to amend. (Code Civ. Proc. § 436.) Ross shall file their answer to the SACC within 10 days of service of the order by the clerk. Explanation: Demurrer Ross demurs only to the fourth and fifth causes of action, for intentional and negligent misrepresen...

Excerpt: ...s President of the Sikh Center; and (3) plaintiff is seeking damages for the alleged conspiracy, yet damages are not permitted under a conspiracy theory. Issue 1: Is civil conspiracy an actionable tort? The elements of a civil conspiracy are (1) formation and operation of the conspiracy, (2) damage resulting to plaintiff, and (3) from an act done in furtherance of the common design. (I‐CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Ca...

Excerpt: ... defendant is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with 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...

Excerpt: ...der dated January 23, 2019. Plaintiff failed to appear at the March 21, 2019 hearing. The Court has set a hearing on May 23, 2019 at 3:00 p.m. in Dept. 501 for the plaintiff to show cause why the case should not be dismissed. At that hearing the plaintiff can present the argument made in the declaration filed on March 29, 2019. If the Court determines there is good cause the Court will proceed with a trial setting conference. Plaintiff requests t...

Excerpt: ...t seq.) To lift the stay on the action and allow the litigation to proceed in Superior Court as to the remaining causes of action. Explanation: The court intends to deny the motion to compel the plaintiff to arbitrate the remaining six causes of action in the first amended complaint. The court has already ruled a year ago on the defendant's prior motion to compel arbitration that the first six causes of action are not arbitrable, as they raise PA...

Excerpt: ... request for punitive damages. Plaintiffs are granted ten days leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanation: I. Demurrer A. Intentional Infliction of Emotional Distress: “Outrageousness” “[W]hether conduct is outrageous is ‘usually a question of fact.'” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235.) And a judge may not reso...

Excerpt: ...ninth causes of action, and stay litigation thereof until after arbitration is completed. Explanation: When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine: (1) whether the agreement exists and, (2) if any defense to its enforcement is raised, whether it is enforceable. The petitioner (seeking to compel arbitration) bears the bur...

Excerpt: ...f the minute order. Explanation: Upon timely application, any person who has an interest in a matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. (Code Civ. Proc. § 387; Fireman's Fund Ins. Co. v. Gerlach (1976) 56 Cal.App.3d 299, 303‐ 305.) The intervention must not enlarge the issues in the case and the reasons for intervention must outweigh any opposit...

Excerpt: ...et and confer letter mentions that there are “more than 60” such questions, which makes it all the more important that plaintiff identify these in the Separate Statement, rather than (apparently) expecting the court to pore over the 63 transcript pages to parse out what was objectionable. Plaintiff's reply argument that no Separate Statement was necessary under California Rules of Court, Rule 3.1345, is not a correct statement. While that rul...

Excerpt: ...ought in an action pending in that court. (b) The motion for leave to conduct discovery pending appeal shall set forth all of the following: (1) The names and addresses of the natural persons or organizations from whom the discovery is being sought. (2) The particular discovery methods described in Section 2036.020 for which authorization is being sought. (3) The reasons for perpetuating testimony or preserving evidence.” “Admittedly, the Dis...

Excerpt: ...onally served subpoena is enforceable against a California resident and obligates that individual to produce business records specified in the subpoena. (Code Civ. Proc., § 2020.220, sub. (c).) The subpoena further obligates that individual to appear at a discovery motion proceeding that seeks to enforce the subpoena. (Id., subd. (c)(3); see also Code Civ. Proc., § 1987.1, subd. (a).) When the nonparty fails to comply with the issued subpoena, ...

Excerpt: ...plaint alleges dangerous condition of public property and negligence. On September 7, 2015, Plaintiff was riding his motorcycle on State Route 198 East, near Firestone Avenue, when defendant Rodriguez, who was driving a tractor‐trailer, owned by Defendant L.A. Hearn Co., allowed part of the tractor‐trailer to cross the center line, into plaintiff's path of travel. While Rodriguez states that it was plaintiff who crossed the center line, for p...

Excerpt: ... action for sex discrimination based on the fact that she, as a division manager, was paid less than other division managers. Just before trial, the court ruled that the comparison of plaintiff's salary with that of other managers was inappropriate evidence, as a similarity in job duties had not been shown. At the end of plaintiff's presentation of her case, she moved for leave to amend her complaint to proof offered that she was paid les...

Excerpt: ... is correct that the plaintiff's causes of action survive even after her death. “Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) Also, “A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc.,...

Excerpt: ...430.10(e).) Explanation: Though the pleadings are somewhat vague, it is clear that the trespass claim is premised on judicial orders issued by defendants Judge Pro Tem Amy Lopez and Judge David Kalemkarian in other cases involving plaintiff. "[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement." (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.) "Otherwise, hi...

Excerpt: ...he planned cohabitation did not occur. Plaintiff alleges that despite requests to the Defendant for the return of his property, the items remain in her possession. As a result, on October 29, 2018, he filed a Complaint entitled “Possession of Personal Property and for Damages.” On October 31, 2018, Defendant was personally served with the summons, complaint and other documents. She did not file a response. On December 3, 2018, default was ent...

Excerpt: ...Act is to enable a party to obtain evidence in the control of [her] adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits. Its purpose is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits.” (Caryl Richards, Inc. v. Superior Court In and For Los Angeles County (1961) 188 Cal.App.2d 300, 303, internal citations and quotation marks omitt...

Excerpt: ...on the pleadings. The arbitration agreement attached to the previous motion indicated it was between Plaintiff and an “employer,” but nothing in the submitted papers indicated that “employer” meant Defendant. Therefore, the Court denied the motion to compel arbitration by a minute order dated December 20, 2018. On February 13, 2019, Defendants filed a second motion to compel arbitration. The second motion does not mention the first motion...

Excerpt: ...oposed judgment consistent with the court's summary judgment order. Explanation: In this action plaintiff Amandeep Sandhu dba Akal Carriers, Inc. essentially alleges that defendant Benjamin Ama converted plaintiff's tractor and trailer that plaintiff provided him in connection with his employment. The complaint alleges causes of action for breach of contract, common counts, and conversion. Defendant HST, who was brought into this action through a...

Excerpt: ...petition. (Super. Ct. Fresno County, Local Rules, rule 2.8.4.) Explanation: The petition indicates that the minor has recovered. The only medical reports provided are from the day of the accident. These records clearly show that the minor had a right tibial plateau fracture and was to follow‐up with Dr. Wiemann in the ortho clinic. The billing attached to the MediCal lien clearly shows services provided in July and August of 2016 yet those reco...

Excerpt: ...rity for costs and attorney's fees; motion; hearing; undertaking states in full: (a) When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purpose...

Excerpt: ...plaint on the ground that plaintiff's exclusive remedy against them is through the payment of workers' compensation benefits, and therefore he cannot prevail on his sole cause of action for motor vehicle negligence. However, defendants have not met their burden of producing evidence showing that they are entitled to the protection of the workers' compensation exclusive remedy rule. First, to the extent that defendant De La Cruz argues that plaint...

Excerpt: ...ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three‐prong analysis: identifying the issu...

Excerpt: ...ber 26, 2018. The papers must, at the very least, demonstrate a valid excuse for failing to respond to the Pretrial Discovery Conference Order for purposes of the Code of Civil Procedure §473. Plaintiff may seek any other appropriate relief as well. The Court may be inclined to attach conditions to the relief sought, including the payment of court and/or attorney's fees incurred during this process. The stay on enforcement of the November 26, 20...

Excerpt: ...sident's [Greg Bray's] consent, instruction and/or durable power of attorney,” and she stated, “I hereby certify that I am authorized to act as Resident's agent in executing and delivering of this Arbitration Agreement.” Defendant argues that it relied on Sarah's statement of her authority to sign as Greg's agent. However, defendant bore the burden of establishing a valid agreement to arbitrate. (Pagarigan v. Libby Care Center, Inc. (2002) ...

Excerpt: ...hearing is required and plaintiff does not prevail, for plaintiff's bad faith opposition and his refusal to withdraw or modify his subpoena. (Code Civ. Proc. § 1987.2.) Plaintiff shall pay monetary sanctions to defendants within 30 days of the date of service of this order. Explanation: “If a subpoena requires … the production of books, documents, electronically stored information, or other things before a court, … the court, upon motion r...

Excerpt: ...o ensure that they can continue farming on the remainder of their property. Explanation: Under Code of Civil Procedure section 1255.410, subdivision (a), “At the time of filing the complaint or at any time after filing the complaint and prior to entry of judgment, the plaintiff may move the court for an order for possession under this article, demonstrating that the plaintiff is entitled to take the property by eminent domain and has deposited ...

Excerpt: ...tled to some relief.” (Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1152.) The complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc. § 425.10.) Plaintiff does not allege any facts in his Complaint, having failed to include any cause of action attachment to the Judicial Council form complaint. Since plaintiff pleads no facts, he fails to state a cause of ...

Excerpt: ...a bench trial. Given that the moving party has not met its burden, it is not necessary to examine the opposition or the reply. It is not necessary to rule upon evidentiary objections. See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. Explanation: Defective Separate Statement CCP § 437c(b)(1) states in relevant part: …The supporting papers shall include a separate statement setting forth plainly and concisely all material fa...

Excerpt: ...bjections. Explanation: Special Summary Judgment Rules in Employment Discrimination Cases Special rules govern allocation of the burden of proof on motions for summary judgment in employment discrimination cases, under both federal and state law, and state courts follow the approach taken by federal courts in these cases. The test uses a system of shifting burdens. (Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 354‐355.) It is intended ...

Excerpt: ...ce of this ruling by the clerk to file either their answers or other appropriate response. Explanation: Motion to Quash Defendant Mazda Motor Corporation (“MMC”) specially appears and moves to quash the service of summons on it pursuant to Code of Civil Procedure sections 418.10 and 581, subdivision (h), on the following grounds: 1) the service of process was not made in accordance with the Hague Convention on the Service Abroad of Judicial a...

Excerpt: ...type. Explanation: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) However, where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and includ...

Excerpt: ...tice to a party in time to defend the action and a default or a default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action." (Code Civ. Proc., § 473.5, subd. (a).) Section 473.5, subdivision (c) allows the court to set aside the default judgment if it finds the defendant's lack of actual notice in time ...

Excerpt: ...f all, to the extent that defendants move for summary adjudication of the separate causes of action alleged against them as well as the claim for punitive damages, their motion is defective because it fails to specify in the notice of motion or the separate statement which causes of action or damages they seek to adjudicate. California Rules of Court, Rule 3.1350, subdivision (b), requires a party seeking summary adjudication of a separate cause ...

Excerpt: ... proposed judgment consistent with the court's summary judgment order. Explanation: In this action plaintiff Amandeep Sandhu dba Akal Carriers, Inc. essentially alleges that defendant Benjamin Ama converted plaintiff's tractor and trailer that plaintiff provided him in connection with his employment. The complaint alleges causes of action for breach of contract, common counts, and conversion. Defendant HST, who was brought into this action throug...

Excerpt: ...for punitive damages. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . .” (Code Civ. Proc. § 473, subd. (a)(1); see also Code Civ. Proc. § 576.) Judicial policy favors resolution of cases on the merits, and thus the court's discretion as to allowing amendments will usually be exerci...

Excerpt: ...n. (Code Civ. Proc. § 437c(f).) Explanation: The Judicial Council form complaint alleges one Motor Vehicle cause of action against defendants Geoffrey Young and Preston Young. Though there is just one cause of action attachment, there are multiple theories of liability alleged in the Complaint. Plaintiff Trina Eastep alleges that on 3/26/17 defendants “did so carelessly, recklessly and negligently, own, operated, maintained and controlled a mo...

Excerpt: ...demurrer to cause of action three, for uncertainty. (Code Civ. Proc., § 430.10, subd. (f).) Plaintiffs are granted 10 days' leave to amend. The time in which the amended pleading may be filed will run from service by the clerk of the minute order. All new allegations are to be set in boldface type. Explanation: Cause of Action One: Breach of Contract When documents are incorporated by reference into the complaint, recitals in the document contra...

Excerpt: ...vil case as a limited civil case may be granted only if the court determines that plaintiff's claim necessarily involves less than $25,000; in other words, that a greater recovery “could not be obtained” or is “virtually unobtainable.” (See Walker v. Sup.Ct. (1991) 53 Cal.3d 257, 269‐270.) Requests for attorney's fees are not analyzed as part of the calculation to determine whether the complaint seeks a recovery more than $25,000. (...

Excerpt: ...spondeat superior, an employer is vicariously liable for torts committed by an employee within the scope of employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) This includes tortious conduct which can be characterized as an “outgrowth” of employment, “inherent in the working environment,” “typical of or broadly incidental to” the employer's business, or, in a general way, foreseeable from the employee's dut...