Excerpt: ...cing evidence showing that he did not breach the standard of care when he treated decedent, and that he did not cause decedent's injuries or death. “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. [Citations.] ‘ “The standard o...

Excerpt: ...r to discuss the defects in the motion; and they are numerous. On a motion for a protective order seeking to restrict the disclosure of trade secrets, the moving party has the burden to prove, by the preponderance of the evidence, that there is good cause for issuance of a protective order. That party must provide an affidavit or declaration which: 1) lists the declarant's qualifications to give an opinion; 2) identifies the alleged trade secret;...

Excerpt: ...orth in boldface typeset. 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 its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.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 ar...

Excerpt: ...on of the separate causes of action. (Code Civ. Proc. § 437c.) Explanation: Plaintiffs Cook and TJC Partners move for summary judgment of the entire complaint, or in the alternative adjudication of their breach of contract claims, contending that defendant Holmes owes $334,240 to Cook and $375,000 to TJC which he has failed to repay, despite having executed a series of promissory notes and guarantees of repayment. Plaintiffs also point to the fa...

Excerpt: ...o run from service by the clerk of the minute order. Explanation:  Defect in the Motion Plaintiff is correct about the defect in defendant's motion: there is no “demurrer” included. Here, where the various components involved in the motion are combined into one, this means that a separately‐captioned portion which distinctly specifies the grounds of demurrer must be included. It was not. Instead, defendant's “notice” section simply i...

Excerpt: ...ds published in the California Building Standards Code, the State Housing Law, and other rules and regulations adopted pursuant to the State Housing Law. (Health & Saf. Code, §§ 17980 to 17982.) When the violations or conditions of the property involve noncompliance with the requirements of the State Housing Law, or with the requirements of the published State Building Standards Code that implement the State Housing Law, or with local ordinance...

Excerpt: ...nner connected with a judicial proceeding before it, in every matter pertaining thereto.' (Code Civ. Proc., § 128, subd. (a)(5); [citations].)” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee Oil).) Motions to disqualify generally arise in one of two contexts: (1) in cases of successive representation, where an attorney seeks to represent a client with interests that are potential...

Excerpt: ...) the motions were untimely as to the initial discovery responses, and (2) the court did not give permission to file the motions after the PTDC as required by Local Rule 2.1.17. In opposing the motions to compel, plaintiff requested $6,000 in monetary sanctions. The tentative ruling did not address the request for sanctions. Neither party requested oral argument, and so on August 8 the tentative ruling became the order of the court. Plaintiff the...

Excerpt: ...71) 5 Cal. 3d 584, 591. Defendant Logan is alleged to be the owner of the property, to have leased the property to the other defendants, and to have done so with the knowledge of their intention to use the property as a board and care facility. The amended pleading specifically alleges that Logan herself was negligent in hiring, supervising, and retaining employee caregivers. See paragraph 46. The new allegation that Logan herself was negligent i...

Excerpt: ...le their substantive opposition and expert declaration by October 15, 2019. Defendant's reply shall be due five calendar days before the continued hearing date. Explanation: Under Code of Civil Procedure section 437c, subdivision (h), “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be...

Excerpt: ...roduced as the result of litigation. (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1088; see also Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 464‐465 [public entity produced pivotal email, photographs and 146 email documents at a court ordered PMK deposition after “unequivocally claim[ing] it had produced every document”. . ..].) Additionally, a plaintiff who prevails in a CPRA action is entitled to an awar...

Excerpt: ...by a judgment in an action brought by the government. The act authorizes a representative action only for the purpose of seeking statutory penalties for Labor Code violations (Lab.Code, section 2699, subds. (a), (g)), and an action to recover civil penalties ‘is fundamentally a law enforcement action designed to protect the public and not to benefit private parties.” Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 381....

Excerpt: ...ation: Plaintiff has sued defendants Abolnik, Galamgam, and Nwaka for elder neglect based on their alleged failure to intervene to protect him from defendant Hodanu, who allegedly assaulted and battered plaintiff. He alleges that he is over the age of 65 and an inpatient at the Department of State Hospitals – Coalinga, and thus he is an elder or dependent adult. (Complaint, ¶ 1.) Hodanu allegedly attacked and battered plaintiff on November 12,...

Excerpt: ...leadings. Second, we determine whether the moving party has met its statutory burden of proof. Once the defendant has made such a showing, the burden shifts to the plaintiff to produce evidence that a triable issue of fact exists as to an essential element of the cause of action. The third and final step is to determine whether the opposing party has demonstrated that a triable issue of fact exists as to the cause of action. In determining whethe...

Excerpt: ...from service by the clerk of the minute order. New allegations in the Second Amended Complaint are to be set in boldface type. Explanation: Where the complaint fails to plead ultimate facts, the complaint is subject to demurrer. (Code of Civil Procedure § 430.10(e); Berger v. California Ins. Guar. Ass'n (2005) 128 Cal.App.4th 989, 1006.) Essentially, “[a] complaint must allege the ultimate facts necessary to the statement of an actionable clai...

Excerpt: ...ctual and legal predicate for his claims. 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 its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.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 ...

Excerpt: ...Civil Procedure section 1285, “Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” (Code Civ. Proc., § 1285.) “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as mad...

Excerpt: ...Cross‐Defendants The Woodmont Company and Greg Newman to Strike Portions of the Prime Cross‐Complaint Tentative Ruling: To sustain the general demurrers to the second and third causes of action of the Prime Cross‐Complaint, without leave to amend. The motion to strike is ordered off calendar as moot, given the ruling on demurrer. Cross‐Defendants The Woodmont Company and Greg Newman are directed to submit to this court, within 7 days of s...

Excerpt: ... clerk. To deny the request for terminating, issue, and evidence sanctions at this point. Explanation: Nowhere in Mr. Waterman's declaration or in the opposition argument is it acknowledged that Mr. Waterman received notice of the Request for Pretrial Discovery Conference (“PDC”) well before his planned time of “unavailability.” Thus, he had time to file an Opposition in order to signal his willingness to participate in the PDC process. T...

Excerpt: ...ation: 1. Objections The Court sustains all objections made by defendants Gurvinder Kandola and Julie Su, referred to herein collectively as the “Labor Commissioner.” The Court also notes that the evidence supplied with the reply papers on the issue of commerce is devoid of any actual ads allegedly placed in out of state publications or invoices showing that was done. There are no receipts or order confirmation for purchases from out of state...

Excerpt: ...defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (United States Liab. Ins. Co. v. Haidinger–Hayes, Inc. (1970) 1 Cal.3d 586, 594.) Likewise, in order to establish premises liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205. Defendants' motion is based solely on the theory that pr...

Excerpt: ...ommencing with Section 701.510) of Chapter 3 of Division 2 of Title 9. The sale is not final until confirmed by the court.” (Code Civ. Proc., § 568.5.) The proposed sale of the property will be conducted according to law. California Rule of Court 3.1180 provides: A receiver must not employ an attorney without the approval of the court. The application for approval to employ an attorney must be in writing and must state: (1) The necessity for t...

Excerpt: ...ake 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 by showing that one or more elements of the cause(s) of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. § 437c, subds. (p)(2), (o)(2).) Once the moving party has met its initial burden, the burden shifts to the opposing party to produ...

Excerpt: ...esolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Market Ins. Corp. v. Integrity Ins. Co. (1987) 188 Cal. App. 3d 1095, 1098, internal citations omitted.) “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, th...

Excerpt: ...been issued, this is unnecessary. Jack filed this motion twice, once on June 14, 2018, in an attempt to have it heard ex parte, which the court ordered off calendar, and a second time on July 2, 2018, after the court instructed defendant that he must file a noticed motion.2 Since the supporting declarations filed with each motion are slightly different as to some crucial details, they are both considered in analyzing defendant's request to set as...

Excerpt: ...within 10 days of service of the minute order plus 5 days for service via mail. (CCP § 1013) Explanation: Background On February 10, 2017, Plaintiff filed a judicial form Complaint alleging a cause of action for motor vehicle negligence and a cause of action for general negligence arising from a multi‐vehicle collision that took place on April 2, 2016 on Interstate 70 near Spiceland, Indiana. Plaintiff alleges that its truck was “rear‐ end...

Excerpt: ...ring the 45‐ day leave to amend period. The time in which the answer can be amended will run from service by the clerk of the minute order. Explanation: Defendant Golden, a corporation, filed its Answer to the Complaint in pro per. The answer was signed by Golden's CFO. A corporation cannot represent itself in court either pro per or through an officer or agent who is not an attorney. (Caressa Camille, Inc. v. Alcohol Beverage Control Appeals B...

Excerpt: ...irst amended complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To grant defendant First American's motion to strike the references to malice, fraud, and oppression, and the requests for punitive damages and attorney's fees against it in the first amended complaint, as improper and unsupported. (Code Civ. Proc. §§ 435, 436.) To deny leave to amend. To...

Excerpt: ....40, subds. (a), (d).) Here, Mr. McKey's application does not meet the requirements set forth in California Rules of Court, rule 9.40. The application does not include his place of residency, and no evidence is submitted to show that he does not regularly engage in substantial business, professional, or other activities in the State of California. Pursuant to California Rules of Court, rule 391(a) and Code of Civil Procedure section 1019.5, subd....

Excerpt: ...r with trial counsel's schedule must attend as a new trial date will be assigned at the hearing. If no hearing is held on this motion, the court will set a new trial date at a Case Management hearing on Thursday, August 23, 2018 at 3:30 p.m. in Department 403. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473; see also, § 576.) There is ge...

Excerpt: ...t. Fresno County, Local Rules, rule 2.8.4.) Explanation: Ordinarily, the reasonable attorney's fees in a petition to compromise the minor's claim are 25% of the net settlement without a clear explanation of why the higher fee would be justified per code. In the current petition the attorney seeks 33% of gross. There is nothing about this case that warrants this increased fee amount. The signature of the petitioner is not dated. The top portion of...

Excerpt: ...defense counsel before he filed his demurrer. (Code Civ. Proc., § 430.41, subd. (a)(3).) Therefore, he has failed to comply with the requirements of section 430.41. However, the failure to meet and confer is not enough, by itself, to justify overruling the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).) Also, since plaintiff is involuntarily confined at Coalinga State Hospital, he obviously cannot meet and confer in person with defense cou...

Excerpt: ...ction without leave to amend. To sustain the general demurrer to the second cause of action with leave to amend. To overrule the general demurrer to the third cause of action. An amended complaint in conformity with the ruling is to be filed within 10 days of notice of the ruling. The time in which the complaint can be amended will run from service by the clerk of the minute order. All new allegations in the first amended complaint are to be set ...

Excerpt: ...e clerk's mailing of this minute order. Explanation: Each element of the contempt must be proved beyond a reasonable doubt. (In re Coleman (1974) 12 Cal.3d 568, 572.) These include: (1) Defendant's knowledge of the order disobeyed; (2) Defendant's ability to comply; and (3) Defendant's willful disobedience of the order. (In re Jones (1975) 47 Cal.App.3d 879, 881; People v. Gonzalez (1996) 12 Cal.4th 804, 816.) Contract interpretation ...

Excerpt: ...ce six months have elapsed since the entry of a judgment, “a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) A judgment that is facially invalid may be set aside at any time, “with no limit on the time within which the motion must be made.' (Citation.)”].) (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 18...

Excerpt: ... Explanation: It is a misuse of the discovery process to fail to respond to an authorized method of discovery, or disobey a court order to provide discovery. (Code Civ. Proc. §2023.010(d), (f), (g).) Though the decision to order terminating sanctions is not to be made lightly, where a violation is “willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules,&#...

Excerpt: ...ard such sanctions. The parties are directed to meet and confer in the next thirty (30) days in order attempt a resolution of the issues regarding Plaintiff's health and her availability to pursue this case. The Court also sets a status conference for Thursday, August 30, 2018 in Department 501 at 3:30 p.m. Explanation: Defendant seeks issue, evidentiary, terminating, and or monetary sanctions pursuant to Code of Civil Procedure §§2023.010, 202...

Excerpt: ...rules 3.1112‐3.1113. Plaintiff has failed to provide the statutory grounds upon which she is moving to set aside the dismissal. See San Francisco Lathing v. Superior Court (1969) 271 C.A.2d 78, 82 and 8 Witkin, Cal. Proc. 5th Attack § 174 (2008). With such, the court cannot entertain this motion. Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary. T...

Excerpt: ...ropriate where violation was willful, preceded by history of abuse, or where is shown that less severe sanctions would not produce compliance with procedural rule].) It is an abuse of discretion to dismiss an action solely on the ground that a party has failed to pay monetary sanctions ordered by the court. (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 615; Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64‐65.) In the instant case, Defen...

Excerpt: ...plaint is not brought against Plaintiff. As it appears that Plaintiff has no standing to bring the instant demurrer, the demurrer is overruled. Motion to strike Papers filed in support of a motion must consist of at least a notice of hearing; the motion itself; and a memorandum in support of the motion. (Calif. Rules of Court, rule 3.1112(a).) The court may construe the absence of a memorandum as an admission that the motion is not meritorious an...

Excerpt: ...Cal. Rev. & Tax. Code § 23301. A corporation that has had its powers suspended “lacks legal capacity to prosecute or defend a civil action during its suspension.” (Sade Shoe Co. v. Oschin & Snyder (1990) 217 Cal.App.3d 1509, 1512.) On the other hand, a suspended corporation may be sued and a default judgment may be entered upon its failure to respond. (Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306.) Tabarrejo v. Superior Court...

Excerpt: ...oyd sought to tax. (See Opp. brief, p. 3:14‐15—“The $435 filing fee amount for the first account was actually and reasonably incurred by Ms. Marsh and should be recoverable” (emphasis added).) Mr. Boyd provided no authority for his argument that because the accounting was filed as a result of a court order the filing fee is not a recoverable cost. As prevailing party, this is a cost that is recoverable by Ms. Marsh. The fact that Ms. Mars...

Excerpt: ...ice of this minute order. All new allegations shall be in boldface typefont. Explanation: 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.) “[P]laintiff's ability to prove the allegations, or the possible difficulty in making such proof, does not concern the reviewing court.�...

Excerpt: ...ueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054.) The court finds that what plaintiff filed is the Second Amended Complaint despite plaintiff's attempt to style it as a “supplemental” pleading. It was filed in response to the demurrer, in lieu of opposition. Thus, it will be regarded as an amended pleading for purposes of counting the number of amendments plaintiff is allowed without leave of court pursuant to Code of Civil...

Excerpt: ...allegations of false arrest, planting evidence, fabrication of police reports, fabrication of probable cause, false testimony, perjury, making false arrests, and false or misleading internal reports including but not limited to false overtime or medical reports. Defendant has not shown that records related to complaints of excessive force are relevant to the issues and defenses raised in the present case, so the court will not require such record...

Excerpt: ...errogatories. Plaintiff is to provide verifications within ten (10) court days of this order. To grant the motion for deemed admissions unless Plaintiff requests a hearing on this tentative and can provide a verification for the responses, or proof that verification has been provided, at the hearing. To deny the request for sanctions. The Court orders Moving Party to pay additional filing fees of $120.00 to be due and payable to the court clerk w...

Excerpt: ...(1)(B).) Here, plaintiffs achieved their litigation objective in this action under the Song‐Beverly Act via the mediation settlement, wherein defendant agreed to pay them $200,000 in damages, including a full statutory “buy‐back” of their vehicle, incidental and consequential damages, and a maximum civil penalty. Thus, they are the prevailing party, and as such they are entitled to attorneys' fees. (Civ. Code § 1794, subd. (d).) The stat...

Excerpt: ... cause of action, with leave to amend. Any amended pleading must be filed and served within 10 days of the clerk's service of this minute order. New allegations must be in boldface typefont. Explanation: Demurrer: General Demurrer: Jurisdiction (Worker's Compensation) Colonial demurs to the first, second and fourth causes of action pursuant to Code of Civil Procedure section 430.10, subdivision (a) on the grounds this court lacks subject matter j...

Excerpt: ....300, 2031.300, 2031.310.) Plaintiff is ordered to serve complete verified responses to the discovery set forth above, without objection, within 15 days of the clerk's service of the minute order. To impose monetary sanctions in favor of Defendants E. and R. Lemus, and against Plaintiff. (Code Civ. Proc. §§ 2023.010(d), 2030.290(c), 2030.300(d), 2031.300(c).) Plaintiff is ordered to pay $1,065.00 in sanctions to the Hartsuyker, Stratman & Willi...

Excerpt: ...from the clerk's service of the minute order. New allegations in the amended complaint are to be set in boldface type. Explanation: A complaint must allege ultimate facts stating an actionable claim; simply pleading the evidence by which plaintiff intends to prove his or her case is insufficient. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390; see Code Civ. Proc. §425.10(a)(1).) “Because the insurer...

Excerpt: ...ising from a multi‐vehicle collision that took place on April 2, 2016 on I‐70 near Spiceland, Indiana. Plaintiff alleges that its truck was “rear‐ended” by a truck owned by the Defendant causing damages totaling $68,252.95. On September 27, 2017, the Plaintiff filed a motion seeking to serve the Defendant via service of summons upon the Secretary of State on the grounds that CHD Transport, Inc. is a suspended corporation and it had been...

Excerpt: ...ssor in interest, or the vested owner at the time of the trustee's sale. (Civ. Code §2924k(a)(1)‐ (4).) A declaration signed under penalty of perjury outside of California must state on its face that it is made “under the laws of the State of California.” (Code Civ. Proc. §2015.5; see Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.) In the case at bench, a tr...

Excerpt: ...service of summons on the grounds that the court lacks jurisdiction. This embodies any of the basic defects – no jurisdiction, no valid service. Plaintiff is a foreign corporation and the method of service utilized by the plaintiff did to comply with Code of Civil Procedure §413.10(c). Failure to comply with the Hague Convention renders service on foreign defendant void. See Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789....

Excerpt: ...re of moving party to prove service of its Request for Pretrial Discovery Conference. Explanation: For sake of clarity, Northbrook Indemnity Company will be referred to as “Respondent” and Robert Knight will be referred to as “Claimant.” Pursuant to Insurance Code section 11580.2, subdivision (f)(1), the superior court has exclusive jurisdiction over discovery disputes for uninsured and underinsured motorist arbitration. (Miranda v. 21st ...

Excerpt: ...hese arguments, California and federal courts have consistently found that indigent plaintiffs in civil actions do not have a right to appointed counsel.” See Defendant's Memorandum of Points and Authorities in opposition at page 8 lines 12‐19 citing inter alia Turner v. Rogers (2011) 564 U.S. 431 and Storseth v. Spellman (9th Cir. 1981) 654 F.2d 1349, 1353. Plaintiff can only present policy arguments and innovative interpretations of federal...

Excerpt: ... supervision and assault and battery. On March 1, 2018, Plaintiff filed a motion seeking trial preference. Opposition and a reply have been filed. Trial Setting Preference CCP § 36 states in relevant part: (a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole...

Excerpt: ... mediation and therefore the extent to which any agreements reached during that meeting are subject to applicable mediation privileges. Any party to an arbitration in which an award has been made may petition the court to confirm the award. (Code Civ.Proc. §1286.) A petition must do at least the following: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate; (b) Set forth the names of the arbitrators; (c) Set for...

Excerpt: ...proceeds is not properly supported. The proceeds may be delivered to the petitioner/mother to be held in trust for the minor if the requirements of Probate Code §3401(c) have been satisfied. However, the requirements of Probate Code §3401(c) have not been satisfied. There is no evidence that the petitioner/parent has provided a written assurance, verified by oath that the total estate of the minor, including the money or other property to be pa...

Excerpt: ...es have been mailed to over 90% of the class members, although a small percentage could not be located, apparently because they have moved. No objections have been received, and no class members have chosen to opt out of the class. It does not appear that any other events have occurred which would cast doubt on the reasonableness of the settlement. Therefore, the court intends to grant the motion for final approval of the class action settlement,...

Excerpt: ...ees are calculated Petitioner does not clearly explain how the attorney fees are calculated. The court can see by the one fee agreement attached to the petition, and by checking the calculations, that petitioner proposes a fee that is 40% of the settlement. But the petitions should have clearly stated this, preferably in the attorney declarations.  Fee calculated on gross award rather than net The petitions are calculating the fee on the gross...

Excerpt: ...e judgment. CCP §989 et seq. The plaintiff must present an affidavit of himself or herself, his or her agent, representative, or attorney attesting that the judgment is in whole or part unsatisfied, and specifying the amount due. CCP §991. The declaration filed on July 26, 2017 never specified the amount due. Further, Code Civ. Proc. §§ 989 et seq. applies only when the alleged joint debtor was named or joined as a party and a joint liability...