Excerpt: ...laintiff has the initial burden of showing the essential facts of jurisdiction, that is the facts requisite to an effective service. (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; Dill v. Berquist Const. (1994) 24 Cal.App.4th 1426, 1439‐ 40.) This may be done through presentation of declarations, with opposing declarations received in response. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.) Furthermore, filing a proof of...

Excerpt: ...ught before the same judge that made the order; (2) made within 10 days after ser vice upon the party of notice of the entry of the order; (3) based on new or di
¯erent facts, circumstances, or law; and (4) made and decided before entry of judgment. Code of Civil Procedure section1008 is jurisdictional. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) A party requesting the court reconsider its prior orders must provide new evidence and...

Excerpt: ...f Civil Procedure section 418.10, subdivision (a)(1), “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” When a defendant moves to quash on the ground that service of summons did ...

Excerpt: ...ersy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. § 2.) “In recognition of Congress' principal purpose of ensuring that private arbitration agreements are enforced according to their terms, we have held that the FAA pre‐ empts st...

Excerpt: ...ncellation pursuant to Civil Code sections 1689.5 through 1689.14; breach of contract; unfair business practices; injunctive relief; and declaratory relief. Plaintiffs allege, among other things, that defendants subjected plaintiffs to high‐pressure and fraudulent sales practices that resulted in financial loss, damage to credit, emotional distress, and other related injuries. Plaintiffs allege that defendants caused plaintiffs to be enrolled i...

Excerpt: ...s such, Loya requests the court grant it permission to intervene to protect its interests in this matter. Intervention is the procedure by which a non‐ party to an action may become a party. (See Code Civ. Proc., § 387.) Intervention may be as of right or permissive. (Ibid.) Here, Loya seeks permissive intervention pursuant to Code of Civil Procedure section 387, subdivision (d)(2), which provides that “[t]he court may, upon timely applicati...

Excerpt: ... 20CECG01868 for purposes of trial only. A copy of this order shall be filed in each case. Lemons v. Ballantyne, Superior Court Case No. 19CECG00924 is designated as the lead case. To vacate the trial date of June 26, 2023. Trial, and all related dates, shall commence on April 15, 2024. To overrule plaintiff's objections. Explanation: “When actions involving a common question of law or fact are pending before the court, it may order a joint hea...

Excerpt: ...ponses, without objections, to Form Interrogatories, Set One; Special Interrogatories, Set One; and Request for Production of Documents, Set One, and produce all documents responsive to the Requests for Production of Documents. To grant the motion seeking an order deeming the truth of matters specified in the Requests for Admission, Set One, established pursuant to Code of Civil Procedure section 2033.280, subdivision (b) against defendant Johnny...

Excerpt: ...laintiffs are entitled to judgment on the pleadings with regard to their contract and specific performance claims, although not their fraud claim, as defendant had been deemed to have admitted the truth of plaintiffs' claims when he failed to respond to plaintiffs' requests for admissions. (Court's Order of July 20, 2022, pp. 6‐8.) However, the court also found that plaintiffs needed to prove up their damages before obtaining a final judgment o...

Excerpt: ...or more parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐ obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6(a)(1).) “A determination by the court that the settlement was made in good faith shall...

Excerpt: ...r consistent with the court's summary adjudication ruling. Explanation: Summary Judgment/Adjudication A motion for summary judgment is generally directed toward an entire action or pleading. (Code of Civ. Proc., §437c, subd. (a).) By comparison “[a] party may move for summary adjudication as to one or more causes of action within an action ….” (§ 437c, subd. (f)(1).) Plaintiff's notice of motion confirms that the motion is directed to the...

Excerpt: ...eement. Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The...

Excerpt: ...ure §473(d). Effectuating service on “Brandon – Person apparently in charge” at the purported “business office or usual place of business” was improper. A defunct business organization has no office or usual place of business. The Proof of Service indicates service at a “business address.” However, the unrefuted evidence establishes that 10 Seasons Court is a residential address. No one by the name of “Brandon” lives or works a...

Excerpt: ...rrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The truth of the facts alleged in the complaint are assumed true as well as the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 2 Cal.4th 876, 883; see also Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1168 [actual relianc...

Excerpt: ... than 20 court days from the date of this order, with the time to run from the service of this minute order by the clerk. Explanation: Code of Civil Procedure section 2023.010(g) makes “[d]isobeying a court order to provide discovery” a “misuse of the discovery process,” but sanctions are only authorized to the extent permitted by each discovery procedure. Once a motion to compel answers is granted, continued failure to respond or inadequ...

Excerpt: ... condition, and in any event defendants had no actual or constructive notice of the unsafe condition to create a duty that defendants thereon breached.1 A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The issue to be determined by the trial court in considerat...

Excerpt: ...rt may make an order approving or denying certification of a provisional settlement class after the preliminary settlement hearing. (Cal. Rules of Court, rule 3.769(d).) Before the court may approve the settlement, however, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Products, Inc. v. Windsor (1997) 521 US 591, 625‐627; see also Newberg, Newberg and Rubenstein on Class Actions (Westlaw, 2017) Section 7...

Excerpt: ... order…that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case….” (Code Civ. Proc., § 598.) Similarly, Code of Civil Procedure section 1048 provides that “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action…or of any separate issue or of a...

Excerpt: ...the clerk's entry of default that preceded it. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the statutory time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his...

Excerpt: ...request for costs, without prejudice. Explanation: Plaintiffs Antonio Mercado (“Mercado”) and Miriam Olivares (“Olivares”) bring a Complaint with eight causes of action related to the purchase of a 2015 Dodge Charger. Plaintiffs allege a cause of action for fraud and deceit; four causes of action for negligence under various theories; a cause of action for violation of the Consumer Legal Remedies Act; a cause of action for violation of Bu...

Excerpt: ...hasis added).) 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.) Cal. Rules of Court, Rule 3.1324 provides that a motion to amend must: (1) include a copy of the proposed amendment, (2) state what allegations in the previous pleading ar...

Excerpt: ...ules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed settlement.” Subsection (h) states: “If the court approves the settlement agreement after the final approval hearing, the court must make and enter judgment. The judgment must include a provision for the retention of the court's jurisdiction over the parties to enforce the terms of the judgment. The court may not ...

Excerpt: ...tional Facts” filed on September 8, 2022, is disregarded, as the summary judgment statute does not provide for this. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 248.) Evidentiary Objections No proper evidentiary objections have been made, by either side. Objections are made to the evidence and not to the fact stated on the Separate Statement. Written objections are (inter alia) to be filed separately from other papers, and quote...

Excerpt: ...a v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally certified ...

Excerpt: ...il Procedure, section 1290 authorizes a party to seek to compel arbitration by filing a petition in court, and states the petition allegations “are deemed to be admitted … unless a response is duly served and filed.” (Code Civ. Proc., § 1290.) “A response shall be served and filed within 10 days after service of the petition… The time provided in this section for serving and filing a response may be extended by an agreement in writing ...

Excerpt: ...covery subpoena utilizing the California Judicial Council form SUBP‐030. Metropolitan AME contends that the deponent has not complied with the subpoena and thus petitions, in part, for relief under the provisions of Code of Civil Procedure section 2029.060. That section provides that “[i]f a dispute arises relating to discovery under this article, any request for a protective order or to enforce, quash, or modify a subpoena, or for other reli...

Excerpt: ...ation: Unless otherwise provided for, no suit for money or damages may be brought against a government entity (or against a government employee acting in the scope of employment) unless and until a timely claim has been presented pursuant to the Government Claims Act and either acted upon or deemed rejected by the passage of time. (Govt. Code, §§ 945.4, 950.2, 912.4.) “A claim relating to a cause of action for death or injury to person… sha...

Excerpt: ...he time the complaint is filed. The requirements of the code relating to the time for service of summons are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute. (Code Civ. Proc., § 583.250, subd. (b).) If service is not made in an action within the time prescribed, the action may not be further prosecuted and no further proceedings may be held in the action, and the action must be dismissed b...

Excerpt: ...to amend as to all defenses, except for the thirteenth defense. Defendants shall serve and file their first amended answer within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff demurs to each of the 13 affirmative defenses raised in the Answer. A party can object to an answer by demurrer on any one or more of three grounds: (a) The answer does not state facts sufficient to constitute...

Excerpt: ...will run from service by the clerk of the minute order. New allegations/language in the first amended complaint are to be set in boldface type. Explanation: The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The truth of the facts alleged in the complaint are assumed true as well as the reasonable inferences that may be drawn from those facts...

Excerpt: ...ence, 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. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that dat...

Excerpt: ...e or any part thereof, … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. § 2.) “In recognition of Congress' principal purpose of ensuring that private arbitration agreements are enforced according to their terms, we have held that the FAA pre‐ empts state laws which ‘require a judicial forum for the resolution of claims which the contracting p...

Excerpt: ...vely. Robert and Sharleen Robson have both since passed away, and defendant Steven A. Smith is the sole Trustee of The Sharleen G. Robson Survivor's Trust, established under the terms of the Robson Family Living Trust dated March 27, 2001 as amended and restated July 31, 2015. Plaintiffs assert that they attempted to exercise their option to purchase the interest Sharleen Robson had as to both the orchard and the ranch, pursuant to the terms of b...

Excerpt: ...he trial should be set on a shortened time basis to mitigate any prejudice to defendants from plaintiffs' continued occupancy of the premises. To grant defendants' motion to order plaintiffs to pay damages into an escrow account in order to remain in possession of the premises until the case is resolved. (Code Civ. Proc. § 1170.5, subd. (c).) Plaintiffs shall pay $3,185 per month into the escrow account. Explanation: First, to the extent that de...

Excerpt: ...'s summary judgment ruling. To sustain defendant's objections nos. 1 thru 3. All other objections are overruled pursuant to Code of Civil Procedure, section 437c, subdivision (q). Explanation: Summary Judgment A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610,...

Excerpt: ... overrule plaintiffs' objection number 6. All other objections are overruled pursuant to Code of Civil Procedure, section 437c, subdivision (q). To vacate the April 17, 2023 trial date. Explanation: Summary Judgment/Adjudication A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c); Schacter v. Citigroup (20...

Excerpt: ...mpetent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies...

Excerpt: ... an action in which it is alleged that two or more parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6(a)(1).) “The issue of the good faith of a se...

Excerpt: ...28 Cal.App.4th 81 (rev. denied).) “Confronted with a request for settlement‐only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems for the proposal is that there will be no trial. But other specifications of the rule ‐‐ those designed to protect absentees by blocking unwarranted or overbroad class definitions ‐‐ demand undiluted, even heightened, attention ...

Excerpt: ...planation: “[U]nder a long‐standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145...

Excerpt: ...the Award of Attorney's Fees Plaintiff may not collect postjudgment interest on the award of attorney's fees. “In order to be an enforceable judgment for attorney fees under the Song‐Beverly Act, to which postjudgment interest begins to run, the judgment or order must finally dispose of the rights of the parties in the action.” (Hyundai Motor America v. Superior Court (2015) 235 Cal.App.4th 418, 426.) The award of attorney's fees to plainti...

Excerpt: ...rney's fees against plaintiff, in the amount of $5,000. (Code Civ. Proc. § 425.16, subd. (c).) Plaintiff shall pay attorney's fees to Lyft within 30 days of the date of service of this order. To overrule Lyft's demurrer as moot in light of the court's ruling on the motion to strike. To grant defendant Vaughn's request to join in Lyft's special motion to strike. To grant the motion to strike the entire complaint against Vaughn, without leave to a...

Excerpt: ...grounds. Explanation: Plaintiff brings the present action for four causes of action: (1) breach of contract; (2) declaratory judgment; (3) unfair competition; and (4) unjust enrichment. Defendants Advanced BioEnergy LP (“ABLP”), California Energy Investment Center, LLC (“CEIC”), and Aemetis, Inc. bring the present demurrer to plaintiff Worldway International Investment Holdings Limited's First Amended Complaint (“FAC”) on the followin...

Excerpt: ....) Defendants' demurrer and motion to strike are taken off calendar. Explanation: Plaintiffs move to set aside the June 22, 2022 Order, on the ground that defendants failed to properly serve plaintiffs with notice of their motion. Although defendants' motion included a proof of service indicating that defendants electronically served the motion, plaintiffs contend that they did not consent to electronic service and the proof of service was defect...

Excerpt: ... a first amended complaint alleging a violation of Labor Code section 1102.5 (retaliation). Plaintiff is the former chief of police for the City of Parlier and alleges he was wrongfully terminated in retaliation for an investigation he conducted into embezzlement of public funds. Defendant City of Parlier argues that plaintiff failed to exhaust his administrative remedies prior to filing this action. Plaintiff argues that he is excused from exhau...

Excerpt: ...laintiff Marco Robles' responses have now been served and to award monetary sanctions in favor of defendant Shady Acres Dairy, LP against plaintiff in the amount $1,800 if a hearing is not required, or $2,000 if a hearing is required. Sanctions shall be payable within 30 days of service of this order by the clerk. Defendant is required to pay $180 for motion fees to the clerk (in addition to the $60 for motion fees already paid) for the correct t...

Excerpt: ...n 30 days of the date of service of this order. Explanation: Under Code of Civil Procedure section 405.30, any party, or any nonparty with an interest in real property affected by a lis pendens, can move to expunge the lis pendens at any time after the notice of pendency of action has been recorded. (Code Civ. Proc. § 405.30.) “Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be rece...

Excerpt: ...e Federal Arbitration Act (“FAA”), A written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. § 2.) “In recognition of C...

Excerpt: ...t on all parties. Intervenor is to file its Answer in Intervention within 10 days of the clerk's services of the minute order. To the extent intervenor is requesting that default not be entered against the nonanswering defendant, there is no such request currently before the court. The granting of this motion effectively prevents such a default. (See Western Heritage Ins. Co. v. Superior Court (2011) 199 Cal.App.4th 1196, 1211.) Explanation: Inte...

Excerpt: ...eny the motion to bifurcate, without prejudice. Explanation: Motion to Strike Defendants seek to strike from the first amended complaint (“FAC”), a prayer for punitive damages. Defendants contend that the FAC fails to state sufficient facts to support the prayer for punitive damages as to each of them. Pleadings are to be construed liberally with a view to substantial justice between the parties. (Code Civ. Proc. § 452.) The allegations in t...

Excerpt: ...e, a proposed judgment which is consistent with the terms as agreed upon in the December 21, 2021 agreement. Explanation: Code of Civil Procedure, section 664.6 provides in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside of 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 s...

Excerpt: ...to amend. (Code Civ. Proc., § 430.10, subd. (e).) Prevailing defendants shall submit to this court, within seven days of service of the minute order, an ex parte request dismissing the action as to the demurring defendants. To grant the motions to strike the prayers for punitive damages (Complaint p. 52, line 6) and attorneys' fees (Complaint ¶¶ 136, 141, p. 52, lines 10‐11), without leave to amend. (Code Civ. Proc., § 436.) Explanation: De...

Excerpt: ...scretion of the trial court. (Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 746.) An order staying discovery until expiration of the criminal statute of limitations allows plaintiff to prepare his or her action “while alleviating [defendant's] difficult choice between defending either the civil or criminal case.” (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.) Pursuant to both the United States and California constitu...

Excerpt: ...FAA”), A written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. § 2.) “In recognition of Congress' principal purpose of ...

Excerpt: ...of a legal duty owed to him by defendant. In essence, then, defendant's motion is more akin to a demurrer or motion for judgment on the pleadings than a summary judgment motion. “‘A defendant's motion for summary judgment necessarily includes a test of the sufficiency of the complaint. When a motion for summary judgment is used to test whether the complaint states a cause of action, the court will apply the rule applicable to demurrers and ac...

Excerpt: ...ndants for the sale of farm equipment. Defendant Goodland Global Farm Inc. was served with the application for writ of possession at the same time as it was served with the summons and complaint. This defendant has answered and defendant's attorney has filed a motion to be relieved as counsel, to be heard September 20, 2022. Counsel for Goodland Global has not filed an opposition or made a request to continue this hearing to a date after counsel'...

Excerpt: ...eightliner Dealership (FFD) moves for summary adjudication of plaintiff's claims for fraud and breach of contract on the ground that plaintiff cannot prevail on his claims because he agreed that he was purchasing the truck “as is” without any express or implied warranties, and with no representation that the truck was merchantable or fit for a particular purpose. Defendant also points out that plaintiff had a chance to inspect the truck befor...

Excerpt: ...trial. Plaintiff now moves under Code of Civil Procedure section 2033.420 for costs of proof. Timeliness Defendant Diaz Amaya opposes the motion as untimely because on December 20, 2021, plaintiff filed an Acknowledgement of Satisfaction of Judgment. The Acknowledgement indicated that the judgment was satisfied in full. On reply, plaintiff does not address this point. Rather, plaintiff argues that defendant Diaz Amaya cites no authority regarding...

Excerpt: ...itioner and respondent made a valid agreement to arbitrate wage claims. (Declaration of Allison Medica, ¶¶ 4‐5, and Ex. A.) The only contested issue is whether petitioner waived its right to compel arbitration. On petition of a party to an arbitration agreement, the court shall order the petitioner and respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that, amo...

Excerpt: ...eading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits t...

Excerpt: ...th in Code of Civil Procedure section 1033.5, subdivision (a), and disallowed costs are set forth in subdivision (b). Items not expressly mentioned in the statute “upon application may be allowed or denied in the court's discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) All allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and they must be reaso...

Excerpt: ...evidence that Hernandez left the scene of the accident in violation of Vehicle Code section 20001. "[L]eave to amend should not be granted where, in all probability, amendment would be futile.'' (Vaillette v. Fireman's Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.) “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, ...

Excerpt: ...ctive Notice Not Grounds for Denial California Rules of Court, Rule 3.1350 Subdivision (b) requires that on motions for summary adjudication, “the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the Separate Statement of undisputed material facts.” Here, the notice is a narrative summary of defendant's contentions and does no...

Excerpt: ...d. (Code Civ. Proc., § 436.) (2) To sustain the demurrer to the Complaint as to defendants Rodney Horton and Ana Manzula, without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Explanation: All Star Plumbing and Bewarder Motion to Strike A motion to strike pursuant to Code of Civil Procedure section 436 may be used to remove a claim for punitive damages that is not adequately supported by the facts alleged in the complaint. (Cryolife, ...

Excerpt: ... judgment on the pleadings as to their complaint and defendant's answer. (Code Civ. Proc. § 438.) Explanation: Defendant's Motion for Reconsideration: Under Code of Civil Procedure section 1008, subdivision (a), a party moving for reconsideration of a court order must show that there are “new or different facts, circumstances, or law” that justify reconsideration of the order. (Code Civ. Proc. § 1008, subd. (a).) “A party seeking reconsid...

Excerpt: ...ories, set one, and requests for production of documents, set one, unless defendants serve verified responses before the hearing. (Code Civ. Proc. § 2030.290; 2031.300.) Defendants are deemed to have waived all objections. (Ibid.) The court also intends to impose monetary sanctions of $460 per motion against defendants for their unjustified failure to respond to the requests. (Ibid.) Defendants' shall serve verified responses without objections ...

Excerpt: ...raud; 4. Constructive Fraud; 5. Monetary Conversion; 6. Accounting; 7. Constructive Trust; 8. Restitution (Unjust Enrichment); and 9. Violation of California Penal Code section 496, subdivision (a). Each cause of action is stated against all defendants: Ramiro Flores Martinez, and moving defendant Tabitha Loraine Lopez. The matter involves a transaction between the parties regarding the sale of certain vehicles. On June 14, 2022, this court found...

Excerpt: ...ant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to com...

Excerpt: ...ullar, owner of Varsity Liquors, moves for summary judgment, or alternatively for summary adjudication. Initially the court notes that if defendant does not show that summary judgment should be granted, the court should not grant summary adjudication of any particular cause of action or count. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative de...

Excerpt: ...blish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification...

Excerpt: ...al burden of production is met, does the burden shift to the responding party to demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850‐51; see also Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.) A plaintiff moving for summary judgment or adjudication of a cause of action must “prove[] each element of the cause of action entitling the party to judgment on t...

Excerpt: ...in intervention within 10 days of the clerk's service of the minute order. To continue Titlemax of California, Inc.'s petition to compel arbitration to July 28, 2022, which will be treated as the original hearing date for purposes of filing deadlines. Explanation: Intervention Proposed intervenor Division of Labor Standards Enforcement Labor Commissioner (“DLSE”) seeks to intervene on the present petition under Code of Civil Procedure section...

Excerpt: ...ation: The court previously sustained demurrers to the first cause of action for battery and sixth cause of action for violation of Civil Code section 1942.4. Plaintiffs filed an amended complaint, adding allegations that defendants willfully ignored plaintiffs' multiple complaints about bedbugs and willfully refused to remedy plaintiffs' complaints to management. Defendant Granville Realty, Inc. again demurs to the first and sixth causes of acti...

Excerpt: ...or a motion to strike, the parties must sufficiently comply with the meet and confer requirements pursuant to Code of Civil Procedure, sections 430.41 and 435.5. Explanation: The trial court has broad discretion to vacate the judgment and/or the clerk's entry of default that preceded it. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the statutory time...

Excerpt: ...t]he superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) The statute does not explain what exactly the trial court should consider when reviewing a proposed PAGA settlement. However, recently the Court of Appeal in Moniz v. Adecco USA, Inc. (2021) 72 Ca...

Excerpt: ....4th 610, 618.) The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable issue, and not to pass upon or determine the true facts in the case. (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 775.) The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of ...

Excerpt: ...utral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.”) “Confronted with a request for settlement‐only class certific...

Excerpt: ...djudication as to the issue of the fraudulent transfer exception to the general rule of successor nonliability in favor of defendant Lummus Corporation. To deny summary adjudication on all other grounds. Explanation: On October 21, 2019, plaintiff filed the instant action for products liability. Plaintiff is an insurance company who paid out benefits on a worker's compensation policy regarding an injury to an insured's employee, Gabino Orrostieta...

Excerpt: ...'s stipulated order regarding disclosure of expert materials. (Code Civ. Proc. § 2023.030.) Plaintiff shall pay monetary sanctions to defendant Vantage within 30 days of the date of service of this order. Additionally, plaintiff will be responsible for the cost of the second deposition of its expert which includes expert fees, court reporter fees and reasonable attorney's fees. Explanation: “The Civil Discovery Act imbues trial courts with ‘...

Excerpt: ... ..” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are "allowable as costs under Section 1032" when they are "authorized by" either "Contract," "Statute," or "Law." Here, the lease agreement between the parties, attached as Exhibit 1 to the Complaint provides for attorney's fees: 18.16 Attorney Fees. If either Landlord or Tenant institutes any action or proceeding against...

Excerpt: ... ..” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are "allowable as costs under Section 1032" when they are "authorized by" either "Contract," "Statute," or "Law." Here, the lease agreement between the parties, attached as Exhibit 1 to the Complaint provides for attorney's fees: 18.16 Attorney Fees. If either Landlord or Tenant institutes any action or proceeding against...

Excerpt: ...in order to continue litigating the present action. (Code Civ. Proc., § 391.1.) The 30‐day time limit will run from the service of the minute order by the clerk. (Code Civ. Proc., § 1013, subd. (a).) This action is stayed pending proof that such security has been furnished, and if no security is posted within the time allowed, the case shall be dismissed by the court upon ex parte application therefor by defendants. (Code Civ. Proc., § 391.4...

Excerpt: ...ge Point Finance, LLC's demurrer to the second, seventh and eighth causes of action, with leave to amend. To overrule on all other grounds. Plaintiff shall serve and file his amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff filed the operative verified First Amended Complaint (“FAC”) against defendant Karen Aminian for eight causes of action: (1) brea...

Excerpt: ... violation of FEHA, as well as the claim for failure to prevent discrimination and retaliation, on the ground that plaintiff cannot prove an essential element of his claims, namely that he was competently performing his job at the time of the termination. In addition, the County claims that it had a legitimate, nondiscriminatory reason for terminating plaintiff, and plaintiff cannot show that the stated reason for his termination was merely a pre...

Excerpt: ...o the “American rule” that each party bears its own attorney fees. (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147.) The fundamental objective of the private attorney general doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565 (Graham).) Under section 1021.5, the...

Excerpt: ... does not appear that plaintiff has a viable plan to bring the case to trial before the deadline expires. (Duran v. U.S. Bank Nat. Assoc. (2014) 59 Cal. 4th 1, 32.) Plaintiff is incorrect that the statutory deadline to bring the case to trial is tolled by CCP section 1775.7(b). As defendant points out, that portion of the CCP only applies to the Los Angeles County Superior Court, and other courts that expressly opt into the pilot program for cour...

Excerpt: ...l.App.4th 367.) To deny the motion to set aside the September 20, 2019 power of attorney. (Prob. Code, § 811, subd. (a)‐ (d).) Explanation: Since the Luis G. Cobarruvias (“Luis”) is the defendant in the unlimited civil action, but also the plaintiff in the unlawful detainer action, all parties will be referred to by their names, to avoid confusion. Motion to Consolidate: Under Code of Civil Procedure, section 1048, subdivision (a), "[w]hen...

Excerpt: ...very. To grant the request for terminating sanctions in favor of defendant Marco Martinez and against plaintiffs Jose Luis Madrigal and Marisela Mendez‐Hernandez. Defendant is directed to submit to this court, within 7 days of service of the minute order, a proposed judgment dismissing this action. To grant monetary sanctions in the amount of $1,840.00, payable by plaintiffs within 20 calendar days of the date of this order, with the time to ru...

Excerpt: ...f sought only a claim on a statutory bond. On October 15, 2020, Hudson filed a verified cross‐complaint in the present action seeking, among other things, an interpleader to deposit the sum amount held in surety under applicable statutory bond, and to disclaim any interest in such amount. On October 21, 2020, the court received a deposit of interpleader from Hudson in the amount of $50,000. On November 9, 2021, the court granted the discharge o...

Excerpt: ...pare his or her action “while alleviating [defendant's] difficult choice between defending either the civil or criminal case.” (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.) Pursuant to both the United States and California constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding. (U.S. Const., 5th Amend.; Cal. Const., art. 1, § 15; see Evid. Code §94...

Excerpt: .... The trial date set for June 27, 2022, is vacated, as is the Trial Readiness hearing set for June 24, 2022. To grant the request for attorney fees in the amount of $2,122.50. To deny the request that the court find plaintiff in contempt of court and order contempt sanctions, as the order dismissing the action is sufficient. Explanation: Once a motion to compel a party to comply with a discovery request is granted, continued failure to comply may...

Excerpt: ...e the September 12, 2022 trial date. Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the burden of showing the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima facie ...

Excerpt: ...rve and file her second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: First, to the extent that defendant argues that the opposition was not properly served and thus the court should disregard it, defense counsel has forfeited this argument by arguing the merits of the opposition in the reply. Nor has counsel shown that she was prejudiced by the allegedly improper ser...

Excerpt: ...y sanctions to plaintiff's counsel within 30 days of the date of service of this order. Explanation: “If a party desiring to take the deposition of an expert witness under this article deems that the hourly or daily fee of that expert for providing deposition testimony is unreasonable, that party may move for an order setting the compensation of that expert. Notice of this motion shall also be given to the expert.” (Code Civ. Proc., § 2034.4...

Excerpt: ...., § 473c, subd. (c).) Where defendant is the moving party, summary judgment is proper where defendant demonstrates the absence of an essential element of the plaintiff's case. (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266.) “Because of the very drastic nature of the summary judgment statute, power given thereby should be used with caution, and hence when there is doubt as to the propriety of the motion, courts should, without...

Excerpt: ...tion it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).) The availability of a suitable alternative forum for the action is critical. As noted by the United States Supreme Court: “In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the d...

Excerpt: ...propria persona. (Code Civ. Proc., § 391.7.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265.) The statutes were intended to “address the problem created by the persiste...

Excerpt: ...ons shall be in boldface type. Explanation: Demurrer to Complaint Initially, defendants demur to the entire Complaint on the ground that plaintiffs fail to state a cause of action against Maria Navarro because the alter‐ego allegations are insufficient. “To recover on an alter ego theory, a plaintiff need not use the words ‘alter ego,' but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the co...

Excerpt: ...gs suit for public disclosure of private facts, intrusion into private affairs, defamation, and false light. Plaintiff alleges, among other things, that he and defendant formerly dated from 2016 to 2018; that in June 2020, defendant began making statements about the parties' relationship; that those statements portrayed plaintiff's actions as unreasonable and unwelcome, and that the parties never dated; that defendant threatened to publish intima...

Excerpt: ... 2022 trial date. (Code Civ. Proc., § 473, subd. (a)(2).) The parties are directed to appear at the hearing to schedule a new trial date. Explanation: Plaintiff seeks leave to amend to substitute defendant's true name, Kristine Lynn Ballantyne, as trustee of the Kristine Lynn Ballantyne Revocable Trust dated August 17, 2018 (“Kristine as Trustee”), for Doe 1. Additionally, plaintiff seeks to add allegations, causes of actions and prayers per...