Excerpt: ...rder. Explanation: This is a legal malpractice action. Plaintiff alleges that he retained defendants Nicholas Wagner and Wagner, Jones, Kopfman & Artenian to represent him in a wrongful discharge matter filed in federal court against his employer. SK Foods filed for bankruptcy, and defendants negligently represented him in that they (1) failed to properly prosecute the case in bankruptcy court by failing to have the bankruptcy stay lifted to proc...

Excerpt: ...ation: Service of an examination order on the judgment debtor generally creates a one‐year lien on all of the debtor's nonexempt personal property whether or not it is in the debtor's possession and control. (Code Civ. Proc., § 708.110, subd. (d); In re Burns (9th Cir. BAP 2003) 291 BR 846, 851.) There is a split of authority as to whether the debtors' filing for bankruptcy stays the one year lien created by an order of examination. (S...

Excerpt: ... the ground of inconvenient forum. (Code Civ. Proc. § 418.10(a)(2).) It is not disputed that all of plaintiff's claims against Jeffrey Hacker arise from and are based on the stipulated Judgment for Dissolution of Marriage entered in case no. 16CEFL00096. The Judgment for Dissolution specifically reserved jurisdiction in the Family Court action for any enforcement of the Judgment and to resolve any matter subject to the jurisdiction of the court....

Excerpt: ...no moving papers were filed. Plaintiff is granted ten days leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanation: Defendant Syngenta Seeds, LLC demurs to the following causes of action: (1) negligence (production and delivery of defective seed); (2) negligence (sale of old seed); (3) negligent misrepresentation; and (4) intentional misrepresenta...

Excerpt: ...and place in the next 30 days. Explanation: In this action plaintiffs allege that the Fresno County Public Defender's Office suffers from structural deficiencies that prevent it from providing indigent defendants with meaningful and effective assistance of counsel in violation of the federal and California constitutional guarantees of due process and right to counsel, and the constitutional and statutory rights to a speedy trial. Plaintiffs alleg...

Excerpt: ...y set for May 9, 2019, are off calendar as moot in light of this ruling. Explanation: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading ... ” (Code Civ. Proc. § 473(a)(1).) 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...

Excerpt: ...he motion to strike without leave to amend. Defendants are to submit a proposed order dismissing the Plaintiff's first amended complaint as to them with prejudice within ten (10) days of the date of service of this order. Explanation: Defendants James Davis, M.D. and the Regents of the University of California (“Moving Defendants”) have filed a demurrer and a motion to strike the first amended complaint filed by Plaintiff Verrees. The argumen...

Excerpt: ...cy favoring arbitration is so strong that "any doubt on the issue must be resolved in favor of arbitration." (Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406; See also AT & T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 650 [any doubt as to whether a particular dispute falls within ambit of arbitration clause resolved in favor of arbitration]; See also, United Transp. Union, AF...

Excerpt: ...d preliminary approval lists the Turley and Mara Firm. The settlement attached to the most recent Mara declaration lists the Turley and Mara firm as class counsel. But the Notice to Class lists the Mara Firm. The most recent declarations are filed with the Mara Law Firm listed as counsel, at a new address. The Court takes judicial notice on its own motion of the February 6, 2019 filing by the Turley Firm on Trade Street in San Diego listing Willi...

Excerpt: ...iv. Proc., § 473, subd. (b).) Here, defendant Hanna Design Group, Inc., seeks to set‐aside its default which was entered on January 7, 2019. In support thereof, it makes three arguments: (1) plaintiffs' complaint is improperly drafted; (2) plaintiffs failed to notify defendant of their intent to seek default before doing so; and (3) attorney fault. The first two arguments are unpersuasive. First, defendant argues that default must be set aside...

Excerpt: ... fees by May 1, 2019. Explanation: 1. Substitution of Attorney Required for New Firm Until a substitution of attorney is filed, signed by the client, counsel of record and the firm of record remain the same. Code of Civil Procedure sections 284 and 285, People ex rel. Department of Public Works (1967) 248 Cal. App. 2d 618, 623. 2. Merits of Motion The interrogatories formally state they may not contain all information, and that a diligent search ...

Excerpt: ...omplaint of plaintiff Douglas Jackson alleges that on 3/17/15 at Nashville's Bar and Grill (owned and operated by defendant Nashville Investment Group, LLC), defendants Raustyn Hurst, Sharonja Curry, Elizabeth Ferreira, Luke Coghlan, John Hurst, III, and Doreen Duinkerken aka Doreen Hurst (referred to herein as “Doreen”) assaulted and battered plaintiff by striking his face and body. Against the individual defendants plaintiff alleges causes ...

Excerpt: ...., there is house on the property and as a result, the property cannot be physically divided. But, there are no facts pleaded regarding attempts to obtain an agreement to sell. More importantly, CCP § 872.510 states: The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partitio...

Excerpt: ... the demurring defendants. Explanation: The court will address these two actions together. Aside from the addresses and dates, the relevant facts, causes of action, allegations and arguments are the same in each action. Trustee's Privilege Defendants contend that all claims against them are barred by the Trustee's privilege. As in the demurrers to the original complaints, plaintiffs do not respond to this argument. Civil Code § 2924(d) states th...

Excerpt: ...he Summons and Complaint. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414 [“[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.”].) On the other hand, it is also true that if the evidence supports a finding that defendants were properly served, then their a...

Excerpt: ...nation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc. §425.16, subd.(a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court deci...

Excerpt: ...e the facts appearing on the face of the complaint, it also accepts as true the facts appearing in the attached exhibits, and if the exhibits' facts are contrary to the pleading's allegations, the exhibits will be given precedence. (Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1146.) However, plaintiff's interpretation of the contract must be accepted as correct in testing the sufficiency of the complaint. On general demu...

Excerpt: ...s of Possession: Plaintiff has met all of the requirements for issuance of the writs of possession under Code of Civil Procedure section 512.010. Plaintiff's claim is based on two written loan agreements and the associated guaranties executed by defendants. The claim appears to be probably valid, as plaintiff loaned defendants money pursuant to the written contracts, defendants promised to repay the loans, and defendants have allegedly failed to ...

Excerpt: ...37c.) The County is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: Defendants Interstate and Meza have filed a cross‐complaint against the County based on the theory that the County is liable for plaintiffs' injuries due to the existence of an allegedly dangerous condition on the property where the accident occurred, which was t...

Excerpt: ...mend. (Code Civ. Proc. § 430.10(e).) Defendants are to submit to this court, within seven days of service of the minute order, a proposed judgment dismissing this action as to the demurring defendants. The motion to strike punitive damages allegations are moot in light of the ruling on the demurrer. Explanation: Initially the court notes that it does not appear that the Ciresi defendants have met and conferred in person or by telephone as requir...

Excerpt: ... a single cause of action for retaliation in violation of Government Code section 12940, subdivision (h). As a condition of plaintiff being granted leave to file a Second Amended Complaint alleging two new causes of action, this motion is being treated as one for summary adjudication of the retaliation cause of action. Plaintiff objects to the motion on the ground that the moving papers were not timely served. The proof of service of the motion s...

Excerpt: ...tion 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.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted wit...

Excerpt: ...order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer In testing a pleading against a demurrer, the facts alleged are deemed to be true, as it is “not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests onl...

Excerpt: ... court … determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc. § 639, subd. (a)(5).) On the other hand, Rule of Court 3.920, subdivision (c) provides that a discovery referee may not be appointed under Code of Civil Procedure section 639, subdivision (a)(...

Excerpt: ... Civ. Proc. §2025.450(g)(1).) Plaintiffs to pay sanctions to the Betts & Rubin law firm, within 30 days of the clerk's mailing of the minute order. Explanation: “The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that actio...