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

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. (...