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...