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: ...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: ...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: ...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: ...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: ...: 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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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 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...