Excerpt: ...the answer can be filed will run from service by the clerk of the minute order. Explanation: The demurrer to the First Amended Complaint clearly stated defendant was demurring only to the fourth cause of action for unjust enrichment, and defendant's opening argument did not mention a demurrer to the third cause of action for constructive trust. The opposition brief appeared to assume the demurrer was to both the third and fourth causes of action,...

Excerpt: ... Civil Procedure section 428.50, (a) A party shall file a cross‐complaint against any of the parties who filed the complaint or cross‐complaint against him or her before or at the same time as the answer to the complaint or cross‐ complaint. (b) Any other cross‐complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross‐complaint except one filed within the time...

Excerpt: ...spondent opposes nonetheless. Respondent argues that the controversy is not arbitrable. Specifically, respondent argues that petitioner is seeking an advisory opinion – e.g., what will damages be if it terminates early. According to respondent, such is not appropriate for arbitration. Respondent also opposes petitioner's request for attorney's fees. On a procedural note, respondent initially objected to service. The court notes that this issue ...

Excerpt: ...er 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 requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of ...

Excerpt: ...rd on August 20, 2020 at 3:30 p.m. in Department 502. Explanation: As the California Supreme Court has ruled, “conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551 [87 Cal.Rptr.2d 886, 981.) The court cannot accept the argument by cross‐defendant John Foggy (“Foggy”) that the promissory not...

Excerpt: ...iff has objected to the motion on the ground that it is procedurally defective because the separate statement does not set forth verbatim the same request for relief that is contained in the notice of motion, the court intends to find that any procedural defect in the separate statement is de minimis and does not require denial of the motion. Rule of Court 3.1350, subdivision (b) does state that “If summary adjudication is sought, … the speci...

Excerpt: ...n for leave to file a Second Amended Complaint is denied as the proposed pleading continues to contain a claim for penalties which can be collected only in a class action (see paragraph 24). Further, California Rules of Court, Rule 3.770(a) states, in part, that: “Requests for dismissal must be accompanied by a declaration setting forth the facts on which the party relies. The declaration must clearly state whether consideration, direct or indi...

Excerpt: ...ve relief. The court elects to treat the complaint as a writ of mandate. Explanation: The challenger of the validity of a regulation may bring a declaratory relief action against the state agency that adopted the regulation in accordance with the Code of Civil Procedure section 1060. (Gov't. Code, § 11350, subd. (a).) However, under the Code of Civil Procedure section 1060, a party seeking a declaration of rights and duties with respect to anoth...

Excerpt: ... or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” Unless the application is accompanied by an “attorney affidavit of fault”, relief is discretionary and must be based on a showing of “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); see Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) There are a couple...

Excerpt: ...ot set forth any particular standards for approval, but class settlement standards are commonly used, as plaintiffs point out. “It is important to note that where plaintiffs bring a PAGA representative claim, they take on a special responsibility to their fellow aggrieved workers who are effectively bound by any judgment . . . The duty imposed on the PAGA representative is especially significant given that PAGA does not require class action pro...

Excerpt: ....) With regard to item 9, plaintiff's counsel is ordered to provide evidence regarding the amount he spent to purchase copies of the transcripts ordered by the court so that the court can calculate the amount of recoverable costs for transcripts. Explanation: First, the court intends to deny the defendants' motions to strike the entire memo of costs, as plaintiff is the prevailing party on the action and is entitled to an award of costs. Under Co...

Excerpt: ...ion. Explanation: FirstChoice's Notice of Joinder to Motion: First of all, the court intends to disregard the “notice of joinder” to Vantage's summary judgment/adjudication motion that was filed by FirstChoice and the individual defendants, and deny their request to join in Vantage's motion. The notice of joinder is improper, as a defendant who seeks to move for summary judgment must still file its own notice of motion and separate statement,...

Excerpt: ...fendant's motion to strike the prayer for punitive damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) To deny defendant's motion to strike the allegations regarding other customers' complaints about defective transmissions. (Ibid.) To deny defendant's motion to strike the allegations set forth in paragraph 77. Plaintiffs shall serve and file their first amended complaint within 10 days of the date of service of this order. All new all...

Excerpt: ...lusak and Cydney Fang. Explanation: Electronic Service: Preliminarily, the court notes that Ms. Glusak and Ms. Fang served their motions by electronic mail. Plaintiff's counsel claims this is improper, yet plaintiff provides a full opposition on the merits of each motion. Any service defects are therefore waived. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 696–698.) Anti‐SLAPP Overview: Code of Civil Procedure section 425.16 provides, “A c...

Excerpt: ...ry judgment order. Explanation: Plaintiff alleges that on December 31, 2016, she was terminated from her employment with defendant Duncan Enterprises. She alleges that she was discriminated against by defendant based upon her gender and age. She also alleges that she was retaliated against and terminated by defendant, for complaining about said violations. The Complaint alleges the following causes of action: (1) violation of FEHA – gender hara...

Excerpt: ... Pursuant to the Uniform Electronic Transactions Act, found at Civil Code sections 1633.1 et seq., and Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, as well as the lack of evidence from plaintiff, the Court finds that an agreement to arbitrate exists. 2. Interpretation of Arbitration Agreements Interpretation of contracts is solely judicial function where there is no extrinsic evidence. (Powers v. Dickson, Carson & Campillo (199...

Excerpt: ...signature within 10 days. Explanation: The court intends to grant the motion for summary judgment in favor of defendants NP Brown, Dr. Jose Bautista, and Dr. Luis Bautista, as they have met their burden of presenting expert testimony showing that they did not breach the standard of care and that their acts or omissions did not cause plaintiffs' injuries. “The standard of care in a medical malpractice case requires that physicians exercise in di...

Excerpt: ..., and (3) that certification will provide substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (In re Tobacco II Cases (2009)...

Excerpt: ... 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 service...

Excerpt: ...the motion exists (e.g., fraud, unconscionability, etc.) (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) The alleged arbitration agreement in this case is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq. Section 2 of the FAA provides for enforcement ...

Excerpt: ...nded Complaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the Second Amended Complaint are to be set in boldface type. Explanation: 1. Judicial Notice The court takes judicial notice of the recordation of the requested documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) 2. Demurrer The function of a demurrer is to t...

Excerpt: ...d date of the hearing, the nature of the relief sought, and the grounds on which the motion will be based. “Unless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion; (2) The motion itself; and (3) A memorandum in support of the motion or demurrer.” (Cal. Rules of Court, Rule 3.1112, subd. (a), emphasis added.) “The papers fi...

Excerpt: ...ill run from service by the clerk of the minute order. Explanation: A demurrer is appropriate “[w]hen any ground for an objection to a complaint … appears on the face thereof, or from any matter of which the court is required to or may take judicial notice ....” (Code Civ. Proc., § 430.30, subd. (a).) A court should sustain a demurrer where a complaint fails to state “facts sufficient to constitute a cause of action.” (Id. at § 430.10...

Excerpt: ...tion: A motion to strike can be used to cut out any “irrelevant, false or improper” matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b); see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164 [A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint.].) With respect to ...

Excerpt: ...128.7, a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440, citation omitted; see Musaelian v. Adams (2009) 45 Cal.4th 512, 519 [purpose of §127.8 is to deter filing abuses].) “A claim is factually frivolous if it is not well grounded in fact and is legally f...