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

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

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

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

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

Excerpt: ... terms of the settlement. (Code Civ. Proc. § 664.6.) Explanation: Under Code of Civil Procedure section 664.6, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” “If the court determines that the parties entered into an en...

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

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

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

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

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

Excerpt: ... issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant meets that burden by showing that one or more elements of the causes of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. § 437c, subds. (p)(2), (o)(2).) Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action and...

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

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

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

Excerpt: ...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: ...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: ...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: ...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: ...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.�...