Excerpt: ...1) the likelihood that the moving party will prevail on the merits at trial, and (2) the interim harm that the moving party is likely to sustain if the injunction were denied as compared to the harm that the opposing party is likely to suffer if the preliminary injunction were issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69‐70.) In considering these factors, the court “balances the relative hardships.” (Ibid.) The second fac...

Excerpt: ... Clean Energy (“PACE”) program that allows financing for home improvement projects to be repaid by a special property tax assessment. Plaintiffs filed this action against The Solar Group, Inc. and Ygrene Energy Fund, Inc. seeking declaratory relief regarding the parties' rights and duties for repayment of the solar installation. The complaint also seeks injunctive relief from the demanded excessive assessments against the plaintiffs' property...

Excerpt: ...tends to review the documents responsive to requests 42 to 44 and 46 to 48 in camera to determine whether they are covered by the medical peer review privilege under Evidence Code section 1157. The court will only compel production of non‐privileged documents. Explanation: First, to the extent that defendants have requested that the court take judicial notice of other court actions involving plaintiff, the court intends to deny the request. Whi...

Excerpt: ... 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).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or standards for making the assessment. Published California case law has not done so either. However, the common p...

Excerpt: ...es from the complaint, as improperly alleged. (Code Civ. Proc. § 436.) To deny leave to amend as to the first, second, and fourth causes of action and the prayer for punitive damages. To grant leave to amend as to the third cause of action. Plaintiff shall file and serve his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer to First Cause of Action: Plaint...

Excerpt: ... a later date, if plaintiff needs more time. The Case Management Conference scheduled for May 3, 2022 is also continued to June 29, 2022. Explanation: Class Certification With regard to class certification, additional evidence is needed to support a finding that plaintiff possesses claims or defenses typical of the class. The class representative must be able to represent the class adequately. (Caro v. Procter & Gamble (1993) 18 Cal.App.4th 644, ...

Excerpt: ...on: The ultimate burden of persuasion on summary judgment/adjudication rests on the moving party. The initial burden of production is to show, by a preponderance of the evidence, that it is more likely than not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally...

Excerpt: ...the clerk of the minute order. Explanation: Demurrer to the Seventh Cause of Action—Professional Negligence: The elements of a claim for professional negligence are as follows: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession; (2) a breach of that duty; and (3) a proximate causal connection between the negligent conduct and the resulting injury. (Weimer v. Nationstar Mortgage, LLC (2...

Excerpt: ...the pleadings. (Code Civ. Proc. § 436.) To deny leave to amend at this time. However, plaintiffs may bring a properly noticed motion to amend the complaint to substitute the new defendants in place of fictitious defendants in compliance with Code of Civil Procedure sections 473 and 474. Explanation: When a court sustains a demurrer or grants a motion for judgment on the pleadings with leave to amend, the plaintiff is only permitted to amend the ...

Excerpt: ...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 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 ...

Excerpt: ...ary adjudication of the second and fifth causes of action, as the motion is moot as to those claims, which have now been dismissed with prejudice. Defendants are ordered to submit a proposed judgment consistent with the language of this order within 10 days of the date of service of this order. Explanation: First, the court intends to deny summary adjudication of the breach of fiduciary duty and negligent misrepresentation claims, as plaintiff ha...

Excerpt: ...aint and dismiss the action. The proposed order has errors, as noted below, so it must be corrected and resubmitted for signature. Defendant shall submit a corrected proposed order consistent with the court's order within 10 days. Explanation: Terminating Sanctions: Code of Civil Procedure section 2023.010, subdivision (g) construes “[d]isobeying a court order to provide discovery” to be a “misuse of the discovery process,” but sanctions ...

Excerpt: ...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].) The Legislature included a “safe harbor” provision in section 128.7 to ensure the statute is “remedial, not punitive.” (Peake, supra, 2...

Excerpt: ...endant at his residence. The worst and most disruptive of the parties took place during summer 2021, though large and disruptive parties continued through October 2021. The motion for preliminary injunction was filed early December 2021. Since then two more apparently large and disruptive parties have been thrown at defendant's residence – one by defendant's nephew while defendant was out of town, and another just last week in which police were...

Excerpt: ... the exclusive provisions of the Right to Repair Act, Civil Code section 896 et seq. They argue that the Right to Repair Act provides the sole and exclusive remedy for construction defect claims, so any cause of action that alleges construction defects is barred. Here, they point out that the plaintiffs' breach of contract claim simply repackages their construction defect claim as a breach of contract, and thus the second cause of action fails to...

Excerpt: ...d or distributed by defendant FCA US, LLC (“FCA”). As a part of that transaction, plaintiff signed a Retail Installment Sales Contract (“RISC”) which contained an arbitration clause. Problems with the vehicle ensued, and this “lemon law” action was filed on 2/23/21, against both Clovis Chrysler and FCA. The Complaint alleges the following causes of action: (1) Violation of Subdivision (d) of Civil Code section 1793.2; (2) Violation of...

Excerpt: ...is motion. (Code Civ. Proc., § 405.38.) Plaintiffs shall pay this amount to the Donna Standard, Esq. within 30 days from the date of this order. To grant defendants' motion to declare plaintiff, Johnny Gonzales, a vexatious litigant and to order plaintiff Johnny Gonzales to post security of $25,000, within 30 days of the date of service of this order, in order to continue litigating the present action. (Code Civ. Proc., § 391.1.) The 30 ‐ day...

Excerpt: ...cle ensued which form the basis of the instant complaint for damages. Plaintiffs originally brought six causes of action against defendant FCA US LLC (FCAUS), and Clovis Chrysler Dodge Jeep Ram. On February 16, 2022, defendant Clovis Chrysler Dodge Jeep Ram was dismissed, effectively dismissing the fifth cause of action which was brought solely against Clovis Chrysler. The remaining five causes of action comprise alleged breaches of Civil Code se...

Excerpt: ...ts and fees of transferring the action within 30 days after service of notice of the transfer order. Explanation: A change of venue must be based on declarations containing admissible evidence. But the court may also consider facts alleged in a verified complaint to the extent that it is not controverted by affidavits of the moving party. (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 929, fn. 7.) Actions concerning “injuries to...

Excerpt: ...anation: Manzo moves to strike the punitive damages allegations and prayer from Ahmed's First Amended Complaint filed on June 14, 2021. Initially the court notes that counsel did not meet and confer in person or by telephone as explicitly required by Code of Civil Procedure, section 435.5, subdivision (a). An exchange of letters does not comply with this requirement. Counsel do not get to pick and choose which clear statutory requirements they fo...

Excerpt: ...uction “The 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).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or standards...

Excerpt: ...tain defendant FPI's demurrer to the first, second, and third causes of action for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To deny leave to amend. To grant defendants' motion to strike the prayer for punitive damages from the FAC, without leave to amend. To grant defendant FPI's motion to strike the prayer for attorney's fees against it. To grant leave to amend to clarify that the...

Excerpt: ...representative) an incentive award in the amount of $5,000.00. To order that on or before March 30, 2021, the plaintiff shall lodge a revised “Order Granting Final Approval of Class Settlement” and a revised “Final Judgment,” each corrected as discussed in the explanation below. No amount under this final approval and judgment, including payment of the attorney fees and costs, administrator costs, or the plaintiff's incentive award, may b...

Excerpt: ... shall serve and file their amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiffs bring the instant action against defendant on nine causes of action based on wrongful termination and various Labor Code violations. Defendant demurs on the basis that the complaint fails to allege facts sufficient to state causes of action. Defendant challenges plaintiffs' thir...

Excerpt: ...oldface type. Explanation: Two causes of action are alleged in the First Amended Complaint: (1) general negligence; and (2) damages arising from the operation of a motor vehicle. Defendant now demurs to each cause of action, based upon Code of Civil Procedure sections 430.10, subdivisions (e) and (f). Government Code section 815.2 provides that a public entity is liable for the injury proximately caused by an act or omission of its employee withi...

Excerpt: ...f's claim to own title to the property could be decided, and she could be ejected from her own property. Given the summary nature of unlawful detainer proceedings, it is a rule of long standing that questions of title cannot be raised and litigated by cross‐complaint or affirmative defense in an unlawful detainer case. (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159; Martin‐Bragg v. Moore (“Martin‐Bragg”) (2013) 219 Cal.App.4th 367, 385 ...

Excerpt: ...itions of four of plaintiff's designated expert witnesses following their nonappearances on May 26, 2021. Defendant had unilaterally noticed the depositions after unsuccessfully attempting to obtain dates from plaintiff's counsel. Defense counsel failed to communicate or confer with plaintiff's counsel about the scheduling of the depositions after the nonappearances, and instead proceeded to file a motion to compel some eight months later. Code o...

Excerpt: ...de Civ. Proc., § 430.10, subds. (e) and (f).) To grant the motion to strike and deny, as moot, plaintiff's motion to permit discovery of defendants profits and financial information. (Code Civ. Proc., §§ 435 and 431.10, subd. (b); Civ. Code, § 3295, subd. (c).) To grant leave to amend. Should plaintiff desire to amend, the Second Amended Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in ...

Excerpt: ...cy; KNPZ Insurance Services; Morrison Insurance Associates; Sarkhosh Insurance Agency; and Seabury Copeland & Anderson Insurance Company. To grant and quash the subpoenas issued on July 23, 2021 to Cuttone & Maestro CPA and Nunes & Nunes CPA. Explanation: Plaintiff brings suit against defendants, alleging that defendants became its employees on January 1, 2014, with an agreement to not receive income from outside sources; that plaintiff later dis...

Excerpt: ...ured or distributed by defendant FCA US, LLC (“FCA”). As a part of that transaction, plaintiffs signed a Retail Installment Sales Contract (“RISC”) which contained an arbitration clause. Problems with the vehicle ensued, and this “lemon law” action was filed on 10/23/20, against both Fresno Chrysler and FCA. The operative pleading is the First Amended Complaint, alleging the following causes of action against FCA only: (1) Violation o...

Excerpt: ...dgment against defendant Dr. Janda. Dr. Janda filed an answer, but it was later stricken and his default was entered when he refused to answer discovery or participate in the litigation. Also, plaintiff has adequately proved up her damages, including her request for $120,000 in general damages and $9,600 in lost wages. While plaintiff has not submitted any evidence other than her own declaration regarding her general damages, it does appear that ...

Excerpt: ...dgment 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 case ... .' [Citation.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 4...

Excerpt: ...ants are solely responsible for arbitration fees. Explanation: Plaintiffs filed a complaint for damages for the wrongful death of decedent Sandra Troupe, for elder abuse pursuant to the Elder Adult and Dependent Adult Civil Protection Act, and for negligent hiring and supervision. In response, defendants filed a petition to compel arbitration, citing an arbitration agreement (“Agreement”) among the parties. In opposition, plaintiffs do not co...

Excerpt: ...ndants are solely responsible for arbitration fees. Explanation: Plaintiffs filed a complaint for damages for the wrongful death of decedent Donald Stegmeir, for elder abuse pursuant to the Elder Adult and Dependent Adult Civil Protection Act, and for negligent hiring and supervision. In response, defendants filed a petition to compel arbitration, citing an arbitration agreement (“Agreement”) among the parties. In opposition, plaintiffs do no...

Excerpt: ...c., §§ 598, 1048, subd. (b); Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 503‐504; see also Cook v. Superior Court (1971) 19 Cal.App.3d 832, 834.) The court also has the power to “provide for the orderly conduct of proceedings before it,” and to “amend and control its process and orders so as to make them conform to law and justice.” (Civ. Proc. Code § 128, subd. (a)(3), (8).) Here, defendant claims that it has reaso...

Excerpt: ..., §3540), the Education Employees Relations Act (“EERA”) permits public school employees to participate and form in representative organizations and prevents the employers from denying such rights. (Gov. Code., §§ 3543; 3543.5; Public Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 894 (Modesto).) The EERA authorizes “appropriate temporary relief or restraining order[s]” (Gov. Code, § 3541.3, subd. (j...

Excerpt: ...tive) an incentive award in the amount of $8,000. To award attorney fees in the amount of $157,500. To set a hearing at April 21, 2022, at 3:30 p.m. in Department 502 as a hearing date for an Amended Judgment pursuant to Code of Civil Procedure section 384. A verified report of payouts of settlement funds and a proposed amended judgment shall be submitted no later than April 11, 2022. Explanation: Final Approval of Settlement California Rules of ...

Excerpt: ...ent in both cases. Plaintiff is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment for each case consistent with the court's summary judgment orders. Explanation: A party moving for summary judgment or adjudication has the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A pl...

Excerpt: ...or a deposition within thirty (30) days of the hearing on this motion. (Code Civ. Proc., §§ 2025.450, subd. (a), 2025.280, subd. (a).) To impose monetary sanction in the amount of $1,295.00, payable to counsel for Defendant/Cross Defendant GSF Jackson Park Place Investors, L.P. within 30 days of the clerk's service of this minute order. Explanation: Motion to Compel Deposition Testimony Proper service of a notice of deposition compels any depon...

Excerpt: ...6, and requests for production of documents, set one, numbers 1 to 14. To grant monetary sanctions of $1,695 against Ultimate Solar and its counsel, Sofian Dawood, which shall be paid within 30 days of the date of service of this order. To deny the request for evidentiary sanctions without prejudice. However, if plaintiff fails to serve its verified further responses within 10 days of the date of service of this order, the court will entertain de...

Excerpt: ....250.) However, the court intends to deny the request to list additional persons on the notice. The notice must only list the people who were listed as mineral rights holders on the original 1964 deed. To order defendants to pay plaintiff's legal expenses incurred in the present litigation, in the amount of $8,345. (Ibid.) When defendants have paid plaintiff's litigation expenses, the case against them will be dismissed. The case against the Weld...

Excerpt: ... the parties to meet and confer as to the privileges asserted on demand for production, set eight. Explanation: Plaintiffs seek to compel further responses to requests for production of documents pertaining to communication between certain individuals and plaintiff Douglas Hecker (“Hecker”), and for the hard drives on which Hecker worked. On June 25, 2021, pursuant to Local Rule 2.1.17, plaintiffs filed a Request for Pretrial Discovery Confer...

Excerpt: ...e date of service of this order. To grant the request for monetary sanctions in the amount of $3,600, payable to plaintiffs' counsel within thirty (30) days from the date of this order. Explanation: Further Production of Documents Discovery requests are generally afforded liberal construction. (See Code of Civ. Proc., § 2017.010; Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) A motion seeking further responses in a request for further pr...

Excerpt: ...3, 2020, plaintiffs filed suit against defendants for breaching a contract to install insulation foam. Plaintiffs bring five causes of action: (1) breach of contract; (2) negligence; (3) violation of Business and Professions Code section 7031; (4) fraudulent misrepresentation (intentional and negligent); and (5) violation of Business and Professions Code section 7160. On September 4, 2020, defendants/cross‐complainants brought a cross‐complai...

Excerpt: ...25.16, subd. (c)(1).) Even where the plaintiff dismisses the moving defendant prior to the hearing, courts have uniformly held that the trial court retains jurisdiction to award attorney fees against plaintiff. (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869.) This is justified by reasoning that if a plaintiff is able to avoid fees by dismissing the moving defendant prior to the hearing, this would deprive the defendant of the ...

Excerpt: ...he class; and (2) additional evidence is needed to support a finding that certification will provide substantial benefits to litigants and the courts. The class representative must be able to represent the class adequately. (Caro v. Procter & Gamble (1993) 18 Cal.App.4th 644, 669.) “[I]t has never been the law in California that the class representative must have identical interests with the class members.” (Classen v. Weller (1983) 145 Cal.A...

Excerpt: ...he litigation would be promoted thereby ….” (Code Civ. Proc., § 598.) In addition, “the decision to bifurcate is discretionary with the trial court.” (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 833; Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 205 [“It is within the discretion of the court to bifurcate issues or order separate trials of actions ... and to determine the...

Excerpt: ...de of Civil Procedure, section 1255.010 [the probable amount of compensation to be awarded to defendants], plaintiff has failed to provide notice of its motion to all the requisite parties. Notice Requirement: A motion for prejudgment possession must be served on the “record owner of the property and on the occupants, if any.” (Code Civ. Proc. § 1255.410, subd. (b).) “'[R]ecord owner' means the owner of the legal or equitable title to the ...

Excerpt: ...North America, Inc.'s person most knowledgeable and custodian of records to attend his or her deposition, and to produce documents pursuant to the demand for production of documents served with the deposition notice. (Code Civ. Proc. § 2025.450.) To deny plaintiffs' request for sanctions against defendant. (Code Civ. Proc. § 2025.450(g)(1).) To deny plaintiff's motion to compel Lithia Nissan of Clovis's person most qualified and Timothy Bowden,...

Excerpt: ...out of tortious injury to her spouse, but arising out of injury to her spouse by way of violations of the Fair Employment and Housing Act and Labor Code; and alternatively that defendant is immune from common law claims.1 The standard of review in a motion for judgment on the pleadings is well settled; the motion is confined to the face of the pleading under attack, and all facts alleged in the complaint must be accepted as true. (Rangel v. Inter...

Excerpt: ... order, and did not pertain to this motion. The court now rules on the merits of the motion. Under Code of Civil Procedure section 877.6, a settlement entered by one or more of several joint tortfeasors may be determined by the court to be in “good faith.” The court determines whether a settlement is within the “good faith ballpark” by considering the following factors (evaluated as of the time of the settlement): 1) a rough approximation...

Excerpt: ...posture and similarity of contentions, the court intends to advance defendants' motion to bifurcate and deny it, without prejudice. (Code Civ. Proc., § 1048.) Explanation: Summary Adjudication Summary adjudication is the proper mechanism for challenging a particular, “cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 242.) Furt...

Excerpt: ... issues. (Wershba 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 conditio...

Excerpt: ...nce to a later date, if plaintiff needs more time. The Case Management conference is also continued to March 8, 2022. Explanation: Class Certification The settlement class is described as current and former non‐exempt truck drivers employed by defendant. The dates of employment of the settlement class vary greatly depending on what document the court is reading. The definition of the settlement class in the Settlement Agreement is from January ...

Excerpt: ...une 18, 2021 pretrial discovery conference. Responsive documents shall be provided within ten (10) days of the clerk's service of this minute order. To grant the request for monetary sanctions in the amount requested. Defendants Pacifica Real Estate Services, Inc., Pacifica Enterprises, Inc., Island Lake Investors, LP, River Park Villas, Bullhead City, LTD, L.P. shall pay the sum of $3,660 to counsel for plaintiff within 30 days of the clerk's se...

Excerpt: ...nd twenty. (Ibid.) Explanation: Third Affirmative Defense: With regard to affirmative defense number three, statute of limitations, plaintiff asked Hurley to admit that she had no facts to support the defense. (Plaintiff's Undisputed Material Fact Nos. 4, 5.) Hurley responded with an admission, and also conceded that she had no facts, witnesses, or documents to support the defense and that “[i]t does not appear that there is a statute of limita...

Excerpt: ...aint in interpleader as a standalone action against defendants Kenneth Matthew Green, Schicuan Green, and Janet Green, seeking to dispose of its obligation to defendants in relation to benefits paid out on the death of Robert Green. On June 3, 2021, plaintiff lodged $43,500 with the court. Plaintiff now seeks an order discharging it from: its liabilities as to the monies deposited; the present action with prejudice; and for costs and attorney's f...

Excerpt: ...perty during the pendency of the action, including property taxes, utilities, hazard insurance, pool and yard maintenance, pest control, and for any necessary repairs, and to keep Vantage Point Finance, LLC (“Vantage Point”), reasonably well informed as to the status of these payments so it is ensured there are no missed payments. The court will also order Mr. Arballo to open an escrow account and make monthly rental payments during the pende...

Excerpt: ...t motion. On May 9, 2018, plaintiff filed a complaint on behalf of herself and as a limited partner in Boise Telecasters, LP (BT).1 On July 24, 2018, plaintiff filed a first amended complaint (FAC). BT was created in 2004 between plaintiff and defendant Gary Cocola. (FAC, ¶ 21.) Plaintiff held a limited partner interest in BT in the amount of 49 percent, along with Cocola, who also held a limited partner interest in BT in the amount of 49 percen...

Excerpt: ...er by the clerk, a proposed judgment consistent with the written settlement agreement. Explanation: Code of Civil Procedure Section 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court . . . for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement.” It also provides that the parties may request ...

Excerpt: ... grant the motion for summary adjudication as to the claim for punitive damages. (Code Civ. Proc. § 437c.) Cross‐defendants' objections to Michael Carrigan's Declaration nos. 5, 6, 7, 8, 9, and 10 are overruled. All other objections were not material to the determination of the motions. (Code Civ. Proc., § 437c, subd. (q).) Explanation: Burden on Summary Judgment Summary judgment law turns on issue finding rather than issue determination. (Di...

Excerpt: ...ion: Defendant demurs to the fraudulent misrepresentation claims in the third and fourth causes of action, contending that plaintiff has not alleged sufficient facts to support his fraud claims. As defendant notes, fraud must be pled with specificity. The elements of fraud are (1) a misrepresentation (false representation, concealment or nondisclosure); knowledge of falsity (“scienter”); (2) intent to defraud, i.e., to induce reliance; (3) ju...

Excerpt: ...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 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...

Excerpt: ...: Under Government Code section 985, “after a verdict has been returned against a public entity that includes damages for which payment from a collateral source listed below has already been paid or is obligated to be paid for services or benefits that were provided prior to the commencement of trial, … the defendant public entity may, by a motion noticed within the time set in Section 659 of the Code of Civil Procedure, request a posttrial h...

Excerpt: .... (q).) Explanation: Burden on Summary Judgment In ruling on a motion for summary judgment or summary adjudication, the court must consider all of the evidence and all of the inferences reasonably drawn there from and must view such evidence and such inferences ‘in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three‐prong an...

Excerpt: ...omplaint is entrusted to the sound discretion of the trial court ....” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909.) “The court may ... in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading ....” (Code Civ. Proc., § 473, subd. (a)(1).) “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper,...

Excerpt: ...days of service of the order by the clerk. Explanation: Motion to Strike A defendant may move to strike allegations from a pleading in two situations: (a) the allegation is “irrelevant, false, or improper” or “superfluous” or “abusive” and (b) where the “pleading was not drawn in conformity with the laws of the state or a court rule.” (Code Civ. Proc., § 436, subd. (a), (b).) The motion to strike is denied for two reasons. First,...

Excerpt: ...Civ. Proc. § 386.6.) Explanation: “‘Interpleader is an equitable proceeding by which an obligor who is a mere stakeholder may compel conflicting claimants to money or property to interplead and litigate the claims among themselves instead of separately against the obligor.... After admitting liability and depositing the money or property with the court, the obligor is discharged from liability and freed from the necessity of participating in...

Excerpt: ...ction 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court . . . for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement.” It also provides that the parties may request that the court “retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the...

Excerpt: ... Nos. 3, 13, 16, 17, 18, 19, 20, 22, 23, and 24, and produce all documents responsive to the Requests for Production. The further responses shall specify which documents are responsive to which request and be in a format that is accessible. To grant monetary sanctions in the amount of $555 against Claimant, in favor of Respondent California Capital Insurance Company. Within thirty (30) days of service of the order by the clerk, Claimant shall pay...

Excerpt: ...sponses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Code Civ. Proc. §§ 2030.290(b), 2031.300(b).) Plaintiffs are ordered to serve complete verified responses to all discovery set forth above, without objection, on or before November 23, 2021. To impose monetary sanctions the total amount of $1,260 in favor of Defendant Ygrene Energy Fund, Inc., and against Plaintiffs and...

Excerpt: ...ligent entrustment and violation of Vehicle Code section 12202.7. To deny summary adjudication as to the issues of negligence, and violation of Health and Safety Code section 103900. Explanation: In ruling on a motion for summary judgment or summary adjudication, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom and must view these in the light most favorable to the opposing party. (Aguilar v. Atlant...

Excerpt: ...n: Under Code of Civil Procedure section 473, subdivision (a), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice...

Excerpt: ... or comparative indemnity, based on comparative negligence or comparative fault on the condition that defendant/crossdefendant is able to provide proof of service of the notice of motion on defendant/crossdefendant Rainworthy Roofing, Inc. (Code Civ. Proc., § 877.6.) Explanation: Pursuant to Code of Civil Procedure section 877.6, subdivision (a)(1), “Any party to an action in which it is alleged that two or more parties are joint tortfeasors o...

Excerpt: ...inute order. Explanation: Plaintiff states one cause of action for loss of consortium based on his wife's termination from employment with defendant, which he alleges was wrongful as it was based on her disability and in violation of her right to protected medical leave.1 A claim for loss of consortium has four elements: (1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury t...

Excerpt: ...to be set in boldface type. Explanation: In the case at bar, eight causes of action are alleged: (1) battery; (2) negligence; (3) intentional infliction of emotional distress; (4) breach of the implied warranty of habitability; (5) breach of the covenant of quiet enjoyment; (6) violation of Civil Code section 1942.4; (7) private nuisance; and (8) public nuisance. Defendant Granville Realty, Inc. now demurs to causes of action: one, six, and eight...

Excerpt: ...o amend. (Code Civ. Proc., § 430.10, subd. (e).) To grant the motion to strike, with leave to amend. (Code Civ. Proc., §§ 435 and 431.10, subd. (b).) Should plaintiff desire to amend, the first amended complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should plaintiff elect not to amend, defendant shall file a responsive pleading within thirty (30) days from the date of this o...

Excerpt: ... sets one and three, and request for monetary sanctions against defendant. (Code Civ. Proc. §§ 2030.300; 2031.310.) Explanation: Under Fresno Superior Court Local Rule 2.1.17, before a party may file a motion to compel further responses to discovery requests, they must first file a request for a pretrial discovery conference and obtain express leave of court to bring their motion. (Fresno Sup. Ct. Local Rules, Rule 2.1.17 A.) The moving party's...

Excerpt: ... be proper, allow a party to amend any pleading. (Code Civ. Proc. § 473(a)(1).) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) The policy favoring amendment is so strong that it is a rare case in ...

Excerpt: ... upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. § 473(b).) Relief can be based either on: ‐ An 'attorney affidavit of fault', in which event, relief is mandatory; or ‐ Declarations or other evidence showing 'mistake, inadvertence, surpr...

Excerpt: ....) Code of Civil Procedure, section 387, subdivision (d) provides that “[t]he court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied … [¶] (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impe...

Excerpt: ...ant monetary sanctions against defendant and its attorney, Larry Shapazian, in the amount of $960. Defendant and its attorney, jointly and severally, are ordered to pay monetary sanctions in the amount of $960 to the Khorshidi Law Firm, within 30 days of service of this order. Explanation: A court “shall” impose monetary sanctions under Code of Civil Procedure section 2030.300, subdivision (d) against any party, person, or attorney who unsucc...

Excerpt: ....) In addition, “[s]ome of the facts relevant to the development of a constitutionally adequate notice plan normally will not be immediately obvious from the class definition itself. Regardless of the size of the class or other relevant circumstances, a demand that the representative plaintiff show how individualized notice could be provided to class members in order to establish an ascertainable class could preempt a more careful, nuanced, and...

Excerpt: ...dopted) Tentative Ruling. When reviewing a PAGA settlement, courts look for it to provide relief that is “genuine and meaningful, consistent with the underlying purpose of the statute to benefit the public[.]” (O'Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1133.) Following O'Connor, one court stated that the showing the court should look for is that the settlement terms (1) meet the statutory requirements set forth ...

Excerpt: ...ing 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, subd. (a)(1).) “The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed ...

Excerpt: ...udice, or when separate trials will be conducive to expedition and economy, the court may order a separate trial of any cause of action or of any separate issue, or any number therefrom. (Code Civ. Proc. § 1048, subd. (b).) Such an order may be made on motion of a party, after notice and hearing. (Id. § 598.) Separate trials, in this context, may be referred to as a bifurcation. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 880, 887...

Excerpt: ... of Civil Procedure section 437c. If motions to compel are necessary, defendant is excused from complying with Rule 2.1.17 of The Superior Court of Fresno County, Local Rules. Given how far out hearing dates are being set at this time, defendant may apply ex parte for hearing dates (or a hearing date) for said motion(s). Even so, counsel should move expeditiously to obtain the sought‐after discovery, since the court is not inclined to grant an ...

Excerpt: ...ary 26, 2020. Without the disclosure of the amount demanded on the Statement of Damages, the court cannot determine whether the amount of judgment requested is proper. Relief granted on default cannot exceed amount demanded in the separate statement. (Code Civ. Proc. §580, subd. (a); Greenup v. Rodman (1986) 42 Cal.3d 822, 824 [demand sets ceiling on recovery].) Insufficient Prove‐up Documents The court notes also that the evidence plaintiff h...

Excerpt: ...d. (b).) Should plaintiff desire to amend, the second amended complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should plaintiff elect not to amend, defendant shall file a responsive pleading within thirty (30) days from the date of this order. Explanation: Demurrer According to the court record, on March 11, 2021 defendant's demurrer papers were rejected for failure to pay the r...

Excerpt: ...irst amended complaint on the grounds that all causes of action stated therein are barred by the applicable statute of limitations and fail to state facts sufficient to constitute a cause of action. Demurrer, in general A demurrer tests only the legal sufficiency of the pleading. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's cl...

Excerpt: ...own to the plaintiff, and all persons plaintiff “reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff” (i.e., this includes “persons unknown to be served by publication); 4) the estate as to which partition is sought and a prayer for partition of the interests therein; and 5) where the plaintiff seeks sale of the property, an allegation of the facts justifying...

Excerpt: ...n must be filed on or before September 17, 2021. Explanation: Plaintiff has corrected all the technical issues with the settlement agreement, the notice to class members, and the opt‐out form. However, the declaration of Javier Garcia is insufficient. Even where a motion for class certification is uncontested the court has a duty to determine whether certification is appropriate. (See Rubenstein, 3 Newberg on Class Actions § 7:3 (5th ed.); see...

Excerpt: ...”) to provide further responses to Request for Production of Documents, Set 5, Nos. 105 ‐109, 115‐120, 126 – 131, 137 – 142, 148, 157 – 162, with any withheld documents based on attorney‐client privilege other than that of Flournoy to be identified and described in a privilege log. The documents shall be produced within 20 days of service of the order by the clerk. (Code Civ. Proc., § Code Civ. Proc. § 2031.310, subd. (a).) To den...

Excerpt: ... dates shall run from the new hearing date. Explanation: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code of C...

Excerpt: ... initially brought to ask for a protective order in the form of a complete stay of discovery pending the ruling on defendant's demurrer to the original complaint. As plaintiff points out, defendant refused to take the motion off calendar once the court had ruled on that motion, sustaining demurrer with leave to amend, but instead defendant attempts to “repurpose” the motion to apply to its demurrer to the First Amended Complaint, which is not...

Excerpt: ...arry Shapazian, in the amount of $2,250. (Ibid.) Defendant and his counsel shall pay sanctions to plaintiffs' counsel within 30 days of the date of service of this order. Explanation: Under Code of Civil Procedure sections 2030.090, 2031.060, and 2033.080, a party served with written discovery requests may move for a protective order to protect them from unwarranted annoyance, embarrassment, oppression, or undue burden or expense. (Code Civ. Proc...

Excerpt: ...hese requests or provide a declaration by the Person Most Knowledgeable that such records do not exist within 10 days of the clerk's service of this minute order. The motion is denied as it relates to Request Nos. 46 and 47. To grant sanctions in the amount of $3,660. Defendant JT2, Inc. shall pay the sum of $3,660 to counsel for plaintiff within 30 days of the clerk's service of this minute order. Explanation: “If, after service of a depositio...

Excerpt: ...2034.300.) To deny plaintiffs' motion for leave to serve a tardy expert witness designation. (Code Civ. Proc. §§ 2034.710, 2034.720.) Explanation: Under Code of Civil Procedure section 2034.300, “[O]n objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the f...

Excerpt: ... described below, must be filed on or before Tuesday, August 24, 2021. The court will entertain a request for continuance to a later date, if plaintiff needs more time. Explanation: Technical Issues: First, insufficient notice of this motion was given: 22 days instead of the required 28 days. (Code Civ. Proc., § 1005, subd. (b); Cal. Rules of Court, Rule 3.764(c)(1).) Since no opposition was filed, this defect was not waived. On this basis alone...

Excerpt: ...on of any contract.” (Code Civ. Proc., § 1281.) Pursuant to 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 to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy e...