Excerpt: ...ause of action. To deny the motion to strike allegations concerning punitive damages. To grant the motion to strike the prayer for attorney's fees. Explanation: Demurrer: First Cause of Action – Quiet Title A cause of action for quiet title must be verified and include the following: 1) a description of the real property that is the subject of the action, including both the legal description and street address; 2) the title or interest of the p...

Excerpt: ...sted in the deposition notice shall be provided no later than 30 days from the date of this order. To deny the moving party's request for monetary sanctions. To grant the motion for leave to file a First Amended Complaint. The plaintiff is granted 10 days leave to file the proposed First Amended Complaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. Explanation: Motion to Compel An order ...

Excerpt: .... To impose monetary sanctions against defendant General Motors LLC, in the amount of $810. Payment shall be made to the Knight Law Group within 30 days of the clerk's service of this minute order. Explanation: Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) Courts may impose a monetary sanctions for misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd....

Excerpt: ...g Materials Co. Tentative Ruling: To overrule all special demurrers. To overrule all general demurrers to the fourth through eighth causes of action. To sustain the general demurrers to the second and third causes of action with leave to amend. To grant the motions to strike allegations relating to punitive damages with leave to amend. To deny the balance of the motions to strike. The plaintiffs shall file and serve a Second Amended Complaint wit...

Excerpt: ...ivil Procedure § 664.6 provides, in pertinent part, as follows: If parties to pending litigation stipulate . . . 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 requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. Here, there is no ...

Excerpt: ...tive, summary adjudication on the Complaint filed by Plaintiff Felix Rocha. Mr. Rocha filed a complaint on January 16, 2018 alleging injuries from a motor vehicle accident and general negligence. The injuries were alleged to have occurred on January 18, 2016 and stemmed from the negligent operation of one of Defendant Mid Valley Disposal's fork lift trucks by co‐Defendant Toby Taylor. To obtain summary judgment, “all a defendant needs to do i...

Excerpt: ...the completion of arbitration. Explanation: The parties have agreed to submit plaintiff's claims to arbitration pursuant to a Dispute Resolution Agreement. The parties are in disagreement as to the interpretation of paragraph 5 of the Agreement, and have stipulated to have the court resolve the issue. Paragraph 5 provides: Arbitration will be conducted within the county in which the employee works for CMC or last worked for CMC unless all parties...

Excerpt: ...spect to causes of action: four (breach of oral contract), five (breach of implied‐infact), and six (promissory estoppel). To deny defendant's motion to strike plaintiff's prayer for costs. To deny defendant's motion to strike plaintiff's prayer for restitution. Plaintiff is 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. Explanati...

Excerpt: ...any generally applicable venue statutes, but relies, in principle part, on Welfare and Institutions Code §§6600, et seq. and, specifically, section 6601, subdivision (i) (effective January 1, 2019). A plaintiff's (or, in this case, a Petitioner's) choice of venue is presumptively valid, and a party moving to transfer venue bears the burden of demonstrating that the plaintiff's chosen venue is improper. (Battaglia Enterprises, Inc. v. Superior C...

Excerpt: ...�The court may, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading[.]” (Code Civ. Proc. §473(a)(1).) “[L]eave to amend a pleading should be liberally granted as long as there is no timeliness problem under a statute of limitations or prejudice to the opposing party. [Citations.]” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240; Glaser v. Meyers (1982) 137 Cal....

Excerpt: ... days of the date of service of this order. Explanation: Defendants argue that plaintiff expressly assumed the risk of being hit by a foul ball when he purchased his ticket for the game. The ticket contained an express release which stated, “Holder of this ticket assumes all risks incidental to the game of baseball, including specifically (but not exclusively) the danger of being injured by thrown or batted balls. Holder agrees that the Fresno ...

Excerpt: ...iff to call for oral argument. If defendant does not call for oral argument, this Tentative Ruling will be adopted without continuance. Explanation: Proof of Service Issue: One of the arguments plaintiff made was that the motion was not timely served. The original proof of service attached to the Notice of Motion attempts to indicate personal service of the papers on May 28, 2019 – which would be two days before the 75‐day deadline given in C...

Excerpt: ...ken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) In other words, to secure relief, the moving party must present a reasonable excuse as to why she was prevented from presenting her case to the court. (See Wilcox v. Ford (1988) 206 Cal.App.3d 1170, 1176; Guenter v. Lomas & Nettleton Co. (198...

Excerpt: ...Peel | Garcia within 30 days of the clerk's service of this minute order. Explanation: Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010.) And courts may impose a terminating sanction for misuse of the discovery process. (Code Civ. Proc., § 2023.030.) But before imposing a terminating sanction, courts should usually grant lesser sanctions: e.g., orders staying the action until defen...

Excerpt: ...sic fraud or mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576‐578; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300; Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97.) With regard to extrinsic mistake however, relief will be denied if the complaining party's negligence permitted the mistake to occur. Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473; Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47; see also Wils...

Excerpt: ...ourt days of this order. 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 are...

Excerpt: ...nce of justice, and on any terms as may be proper, allow a party to amend any pleading ... ” (Code Civ. Proc. § 473(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Plaintiffs have largely complied with Code of Civil pro...

Excerpt: ...t to the applicable Local Rules and the court will reset the trial at that time. 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 generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777.) Judicial policy favors resolution of all d...

Excerpt: ...to the plaintiff, determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used.” (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234, internal citations and quotation marks omitted; see also Swaner v. Santa Monica (1984) 150 Cal.App.3d 789, 799.) “In making the determination of whether ...

Excerpt: ...served on 10/3/18. This motion must be served within 45 days after service of a verified response (extended if served by mail, overnight delivery or fax or electronically; see Code Civ. Proc. § 1010.6(a)(4), 1013). Otherwise, the demanding party waives the right to compel any further response to the discovery. (Code Civ. Proc. §§ 2030.300(c), 2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.) The 45‐day time limi...

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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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 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: ...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: ...(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: ...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: ...�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: ...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: ... 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: ...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: ...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...