Excerpt: ...e by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of 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; Vi...

Excerpt: ...thin ten days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiffs have failed to allege any facts showing that defendants Argentino, Marshall, or RMK Engineering acted with fraud, malice, or oppression as required under Civil Code section 3294. Civil Code section 3294 states that, “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincin...

Excerpt: ...made by defendant FCA US LLC & Finegan Dealer Group North to the Knight Law Group, the Wirtz Law Group and the O'Connor Law Group within 30 days of the clerk's service of this minute order. Explanation: Pursuant to Civil Code section 1794, plaintiff seeks attorney's fees in the amount of $ 274,332.00, plus a multiplier of 1.5, for an additional $137,166.00. Plaintiff also seeks costs of $ 43,708.51. In total, plaintiff seeks $455,206.51 in attorn...

Excerpt: ...ions to compel defendant Enrique Arriola‐Hernandez to respond to the special interrogatories, form interrogatories, and request for production of documents served on him on December 3, 2020. (Code Civ. Proc. §§ 2030.290; 2031.300.) Defendant shall serve his responses without any objections within 10 days of the date of service of this order. To grant plaintiffs' motion to deem defendant to have admitted the truth of the matters in the request...

Excerpt: ...t is used to challenge pleadings that do not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c).) A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057.) Cross ‐defendants1 Lucky Lee Gold (“Lucky”) ...

Excerpt: ...practicable to bring them all before the court, one or more may sue or defend for the benefit of all.” (Code Civ. Proc., § 382.) “The party seeking certification as a class representative must establish the existence of an ascertainable class and a well‐defined community of interest among the class members. The community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representativ...

Excerpt: ... deny the motion as to the fourth and ninth causes of action. To deny leave to amend as to the first, second, sixth, seventh, and thirteenth causes of action, and to grant leave to amend as to the third and fourteenth causes of action. Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Defendants argue that many of plaintiffs' c...

Excerpt: ...h California Rules of Court, rule 3.1350(b) and (d). Summary Judgment Summary judgment law turns on issue finding rather than issue determination. (Diep v California Fair Plan Ass'n (1993) 15 Cal.App.4th 1205, 1207.) The court does not decide the merits of the issues, but merely discovers, through the medium of affidavits or declarations, whether there are issues to be tried and whether the parties possess evidence that demands the analysis of a ...

Excerpt: ...r on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, wha...

Excerpt: ...rrections and Rehabilitation's (“CDCR”) request to take judicial notice of plaintiff's Department of Fair Employment & Housing Complaint. (Evid. Code., § 452, subd. (c).) To grant CDCR's motion for judgment on the pleadings, without leave to amend. (Code Civ. Proc., § 438.) Defendant CDCR is directed to submit to this court, within 7 days of service of the minute order, a proposed judgment dismissing the action as to it. To grant the motion...

Excerpt: ...ual fraudulent transfer and the 2nd for avoidance of constructive fraudulent transfer are time barred under the provisions of Civil Code §3439.09(c). That section provides: Notwithstanding any other provision of law, a cause of action under this chapter with respect to a transfer or obligation is extinguished if no action is brought or levy made within seven years after the transfer was made or the obligation was incurred. The grounds for the de...

Excerpt: ... service by the clerk of the minute order. All new allegations in the amended complaint are to be set in boldface type. Explanation: Amended Complaint “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading ….” (Code Civ. Proc. § 473, subd. (a); see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 13...

Excerpt: ...ant within 30 days of the date of mailing of this order. Explanation: Any party, or any nonparty with an interest in real property affected by a lis pendens, can move to expunge a 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 received in the form of oral testimony, and...

Excerpt: ...file the Second Amended Complaint if he wishes to amend the second cause of action. New allegations/language must be set in boldface type. If plaintiff chooses not to amend the second cause of action by that date, then defendant is granted until Friday, July 9, 2021, to file her answer to the First Amended Complaint. Explanation: Defendant demurs to each cause of action. The demurrer is technically deficient, in that it initially states it is bro...

Excerpt: ...ainst them. (Code Civ. Proc. § 437c.) Explanation: Eva Airways and Mercury Air Cargo's Motions: The court intends to grant summary judgment in favor of defendants Eva Airways and Mercury Air Cargo as to the plaintiff's entire complaint, as plaintiff executed a general release that released all of its claims as to everyone other than Panalpina, Inc. Therefore, plaintiff cannot prevail on its claims as to Eva and Mercury. In General Motors Corp. v...

Excerpt: ...ted with a proposed order granting the preliminary injunction within five (5) days of this order. (Cal. Rules of Court, rule 3.1150(f).) To take judicial notice of the existence of the documents contained in defendant's request for judicial notice. (Evid. Code, § 452, subd. (d).) Explanation: The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action.” (Continental Ba...

Excerpt: ...ire driveway and front yard of the subject property came off or out of its railing as it was being closed, causing it to fall into the yard where plaintiff was walking toward the house, injuring her. The subject property was initially purchased by Win Chan and Yu Chan in early 2009 and was transferred to their business entity, Chan's Property, LLC, in or around 2015, so it was the owner at the time of the accident. The property has been rented to...

Excerpt: ...int. All new allegations in the amended complaint are to be set in boldface type. Explanation: Defendant FCA US LLC (“FCA”) demurs to the sixth cause of action for fraudulent inducement – concealment on the grounds that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Statute of Limitations FCA contends that the cause of action is barred by the applicable statute of limitations. Th...

Excerpt: ... will be dismissed with prejudice as to defendant California Home For The Aged, Inc. dba California Armenian Home. Explanation: On November 6, 2019 defendant served on plaintiff Special Interrogatories, Form Interrogatories, Demand for Production of Documents, and Request for Admissions. Plaintiff served only boilerplate objections to each. Plaintiff did not meet and confer, and filed no response to defendant's Request for Pre‐Trial Discovery C...

Excerpt: ...f their dormant mineral rights, contending that plaintiff has failed to state facts sufficient to constitute a cause of action under Civil Code section 883.210, et seq. Pursuant to section 883.210, “The owner of real property subject to a mineral right may bring an action to terminate the mineral right pursuant to this article if the mineral right is dormant.” (Civ. Code, § 883.210.) Also, under section 883.220, For the purpose of this artic...

Excerpt: ...se of action (false light). The court also strikes paragraphs 9, 11, and 12 from the “Background Allegations” section. (First Amended Complaint (“FAC”), p. 4.)1  To deny as to the entire second cause of action (fraud).  To grant as to part of the third cause of action (negligence), striking paragraph 27. (FAC, p. 7). The motion is denied as to the remainder of this cause of action.  To grant as to part of the fourth cause of acti...

Excerpt: ...ion obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” Evidence Code section 1043 requires a noticed motion which identifies the records sought, and “affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litiga...

Excerpt: ...xplanation: 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. Plaintiff alleges this was a violation of the California Fair Employment and Housing Act (FEHA), as well as a wrongful termination in violation of public policy under Tameny v. Atlantic Richfi...

Excerpt: ...atories against Defendant Robert Graham and for Related Sanctions, by Plaintiff (5) Motion to Compel Initial Responses to a Request for Production against Defendant Robert Graham and for Related Sanctions, by Plaintiff Tentative Ruling: To deny the motion for stay, without prejudice. To deny the motion to compel deposition of defendant Ayde Adame Mendibles, without prejudice. To grant the motion to deem requests for admissions admitted. To grant ...

Excerpt: ... days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Unsigned Pleading The Court notes that plaintiff's second amended complaint (SAC) is neither signed nor dated. Every pleading, petition, written notice of motion, or other similar paper shall be signed by the attorney of record or by the party personally if not represented by counsel. (Code Civ. Proc., § 128.7, subd. (a).)...

Excerpt: ... Meadows Senior Living, LLC's Deposition Subpoenas issued on August 20, 2020, within 30 days of moving defendant's service of this order on the Custodian of Records. (Code Civ. Proc., § 1987.1.) Explanation: Defendant Sierra Meadows Senior Living, LLC's motion was timely filed. It seeks medical, radiology and billing records from Clovis Community Medical Center. While defendant received medical records directly from plaintiff, there was legitima...

Excerpt: .... (Code Civ. Proc. § 437c.) Explanation: Defendants DPM and CPN contend that they are entitled to summary judgment because they were not beneficiaries of the asset purchase agreement between FirstChoice and Vantage that is at the heart of plaintiff's claim. They contend that they were “innocent bystanders” to the FirstChoice‐Vantage asset transfer, and therefore they cannot be held liable under the Uniform Voidable Transfers Act (UVTA). In...

Excerpt: ... the motion to compel after defense counsel informed him that defendant would not be producing the witness for the deposition. Plaintiff's counsel served the deposition notice on December 18, 2020 for the deposition of the hospital's PMQ. (Collins decl., ¶ 11.) Defense counsel stated on December 20, 2020 that the hospital would not be producing the witness for deposition, at least on the date unilaterally selected by plaintiff's counsel. (Id. at...

Excerpt: ...nder penalty of perjury, to support facts stated in their opposition brief to defendants' anti‐SLAPP motion. No further briefing is authorized by this order, but only the supplemental declaration by Mr. Dawood in support of the anti‐SLAPP motion, and any evidentiary objections defendants wish to file regarding that declaration. The supplemental declaration shall be filed on or before May 13, 2021, and any evidentiary objections shall be filed...

Excerpt: ...e preservation of the status quo until a final determination of the merits of the action.” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) In considering whether to issue a preliminary injunction, the court should consider (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 oppo...

Excerpt: ...nary settlement approval must be remedied before the instant motion can be granted. Class Certification With regard to class certification, the following issues exist: (1) additional evidence is needed to support a finding that plaintiff possesses claims or defenses typical of the class; and (2) additional evidence is needed to support a finding that certification will provide substantial benefits to litigants and the courts. 1. Additional eviden...

Excerpt: ... of the date of this order, defendant shall provide the identifying information of those persons who were facility residents and their responsible persons during the time period of May 26, 2017, to April 27, 2021. This information shall be provided to third party administrator CPT Group, which shall mail out a notice letter to the residents and their responsible persons, giving them the opportunity to opt into disclosure of their information to p...

Excerpt: ...intiff in the amount of $555 to be paid to defendant's counsel within 30 days of service of the order. This is in addition to the monetary sanctions in the amount of $1,005 previously ordered that are still outstanding. Explanation: Code of Civil Procedure section 2023.030 authorizes the Court to impose sanctions against any party engaging in conduct that is a misuse of the discovery process, including a terminating sanction dismissing the action...

Excerpt: ...st for Admissions. Within 5 court days of the continued hearing date, moving party's counsel are directed to file a declaration informing the court whether or not plaintiff has served responses to the discovery. If plaintiff still fails to serve responses, the court will consider granting terminating sanctions. Explanation: On November 6, 2019 defendant served on plaintiff Special Interrogatories, Form Interrogatories, Demand for Production of Do...

Excerpt: ... Ashley v. Slatic, et al., Superior Court Case No. 19CECG04593 for purposes of discovery and trial only. A copy of this order shall be filed in each case. Slatic v. Ashley, Superior Court Case No. 19CECG04036 is designated as the lead case. Explanation: Consolidation “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it m...

Excerpt: ...roceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.” (Code Civ. Proc., § 387, subd. (d)(2).) Specifically, a court may, in its discretion, grant permissive intervention “if (1) the party has a direct and immediate interest in the action; (2) the intervention will not enlarge the issues in the litigation; and (3) the reasons for the intervention outweigh...

Excerpt: ... contest, as well as fees on appeal. Section 1021.5 provides that a court may award fees to a “successful party” if the underlying litigation has enforced an important right affecting the public interest, has conferred a significant benefit on the general public or a large class of persons, and has imposed a financial burden on the fee claimants out of proportion to their individual stake in the matter. (Baggett v. Gates (1982) 32 Cal.3d 128,...

Excerpt: ...um depression following the birth of her second child on August 8, 2018. The evidence presented shows that Vu was diagnosed with post‐partum depression on September 20, 2018. Decl. Dr. Dickinson, ¶6. Vu was disabled and unable to perform normal daily activities. Decl. Dr. Dickinson, ¶6. The disability continued until December 3, 2018. Decl. Dr. Dickinson, ¶8. Vu fails to explain what action she took regarding the court action before her defa...

Excerpt: ...al date is required it should request oral argument on this motion pursuant to the applicable Local Rules and the court will reset the trial at that time. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading ….” (Code Civ. Proc. § 473, subd. (a); see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v....

Excerpt: ...os now move for summary judgment or adjudication. They argue: (1) Officer Santos did not owe a duty to plaintiffs; (2) Officer Santos did not breach any duty; (3) Officer Santos' actions were neither the cause‐ in‐fact nor the proximate of plaintiffs' injuries; (4) Officer Santos is immune from liability; and (5) the California Highway Patrol cannot be held liable pursuant to respondent superior. Each argument is examined below. 1. Duty There...

Excerpt: ...cause plaintiff has no memory of the accident, and thus he cannot prove that a dangerous condition of the premises caused him to fall and hit his head. However, plaintiff has submitted evidence in opposition which raises a triable issue of material fact as to whether defendant's negligence in failing to maintain the premises caused his injuries. A plaintiff cannot prevail on a premises liability claim against a landowner without a showing that th...

Excerpt: ... speedy and inexpensive method of dispute resolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Market Ins. Corp. v. Integrity Ins. Co. (1987) 188 Cal. App. 3d 1095, 1098, internal citations omitted.) However, “[a]s our Supreme Court stressed several decades ago, the contractual terms themselves must b...

Excerpt: ...rovide a further response to the form interrogatories. To grant plaintiffs' motion to compel further responses to the requests for admission. To grant monetary sanctions against defendant and its attorney, Larry Shapazian, in the amount of $2,580. Defendant shall serve further responses without objections within 10 days of the date of service of this order. Defendant shall pay monetary sanctions within 30 days of the date of service of this order...

Excerpt: ... (Code Civ. Proc., § 128.5.) “The award of sanctions for a frivolous action [or tactic] under Code of Civil Procedure section 128.5 is within the sound discretion of the trial court. [Citation.] Once imposed, ‘[the] test on appeal is whether the trial court has abused the broad discretion to justify our interference with a sanction award.' [Citation.] In reviewing that exercise of discretion we are informed by ‘several policy guidelines: (...

Excerpt: ...ly 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 gave cross‐complainant John Foggy (“Foggy”) an opportunity to amend in the abundance of caution, in the event there was some way he could allege a relationship formed from the agreement at issue (promissory note) which created fiduciary duties. However, the court ...

Excerpt: ...Development Agency (“LWDA”) on how settlement of PAGA claims should be assessed, in O'Connor v. Uber Technologies, Inc. (N.D.Cal. 2016) 201 F. Supp. 3d 1110. “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 PAG...

Excerpt: ...ourt has held that there is no tort cause of action in California for intentional spoliation evidence, when both the injured party and the alleged “spoliator” were parties to the underlying litigation, and the injured party knew or reasonably should have known of the alleged loss or destruction of evidence before the trial or other decision on the merits of the underlying cause of action. (Cedars‐Sinai Medical Center v. Superior Court (1998...

Excerpt: ... including a cause of action asserted in a cross‐complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Code Civ. Proc., § 1048, subd. (b).) Albeit, section 1048 is based on Federal Rule of Civil Procedure 42, subdivision (b). (See Legislative Committee Comment to 1971 Amendment to Code of Civi...

Excerpt: ...position a second time on the basis that prior to the first deposition he withheld witness statements by plaintiff James Arena and non‐ party Paige Rafanan, and the black box information from the vehicle Primavera was driving during the accident. The court is less concerned with whether Primavera is to blame for not disclosing this information prior to his deposition (there appears to be little fault of Primavera) than the need for a second dep...

Excerpt: ...demnation, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Ibid.) To sustain the demurrer to the fifth cause of action for unjust enrichment, with leave to amend, for failure to state facts sufficient to constitute a cause of action. (Ibid.) To overrule the demurrer to the sixth cause of action for breach of implied warranty. (Ibid.) To deny defendant's motion to strike the specific allegations in t...

Excerpt: ...ules of Court, rule 3.769, subd.(a).) The approval of the settlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769, subd. (d).) “If the court grants preliminary approval, its order must include the time, date, and place of the final approval hearing; the notice to be given to the class; and any other matters deemed necessary for the proper conduct of a settlement hearing. (Cal. Rules of Court, R...

Excerpt: ...ype. Explanation: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial....

Excerpt: ...dered to pay $3,600 in sanctions to defendant's counsel's law firm within 30 days of service of this order. Explanation: Compelling Further Responses A court “may” – but is not required to – address the merits of discovery responses filed after a motion to compel. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409.) Accordingly, in light of plaintiff supplemental responses, defendant's m...

Excerpt: ...��Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” (Code Civ. Proc., § 1285.) “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this sta...

Excerpt: ...kar shall provide further answers as to all questions in the plaintiff's separate statement of disputed responses, except for questions 3, 5, 14, and 23 (Chandrasekar depo., pp. 28:8‐20; 29:5‐ 9; 71:22 ‐ 72:8; 169:19 ‐ 170:2), which seek improper expert testimony from this percipient witness. To grant plaintiff's motion to compel Dr. Pietz to provide further answers to all of the disputed deposition questions. To grant plaintiff's motion ...

Excerpt: ...3.010 defines “misuses of the discovery process” as including, “failing to respond or submit to an authorized method of discovery” and “disobeying a court order to provide discovery.” (Code Civ. Proc., § 2030.010, subds. (d) & (g).) Section 2023.030 states, in relevant part: To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected p...

Excerpt: ...ed complaint adding a new party defendant. (Code Civ. Proc., §473, subd. (a)(1).) Plaintiff shall file and serve the first amended complaint within 5 days of the clerk's service of this order. All new allegations shall be in boldface type. To grant Cross‐complainant's motion for leave to add a new party crossdefendant and file a first amended cross‐complaint. (Code Civ. Proc., §473, subd. (a)(1).) Cross‐complainant shall file and serve th...

Excerpt: ... further responses to document requests, set one, numbers 5, 37‐39, 41, 43, and 45‐63. To deny the motion to compel further responses to request numbers 28 and 29. (Code Civ. Proc. § 2031.310.) Defendant shall serve verified supplemental responses without objections within 20 days of the date of service of this order. Explanation: Meet and Confer: First, to the extent that defendant argues that the plaintiff's counsel did not meet and confer...

Excerpt: ...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 analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's cl...

Excerpt: ...ion whether proposed classes are sufficiently cohesive to warrant adjudication. The focus of the Rule 23(a) inquiry remains on inequity and potential inequity at the precertification stage. So when (as here) the district court certifies the class at the same time it approves a settlement, the requirements of Rule 23(a) demand undiluted, even heightened, attention. Amchem, 521 U.S. at 620." (In re Payment Card Interchange Fee and Merchant Discount...

Excerpt: ...All new allegations are to be set in boldface type. To grant the motion to strike the prayer for punitive damages without prejudice to plaintiff's ability to file a motion in compliance with Code of Civil Procedure section 425.13. The motion is moot as to the seventh cause of action in light of the ruling on the demurrer. Explanation: Demurrer Special demurrer Defendant demurs to each of the challenged causes of action on the ground that several ...

Excerpt: ...436 to strike specific references to an alleged assault which occurred on December 2, 2016 in the second and third causes of action, as barred by the statute of limitations. Plaintiff's original complaint alleged an assault occurring on December 10, 2016. Plaintiff's First Amended Complaint changed that date to December 2, 2016. Plaintiff claims that her amendment the complaint relates back to the original filing and is therefore timely. Traditio...

Excerpt: ...from the clerk's service of the minute order. New allegations in the amended complaint are to be set in boldface type. Explanation: On a demurrer, the facts alleged in the pleading 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 only the legal sufficiency of the pleading. [Citation....

Excerpt: ... Civ. Proc. §§ 1281.2; 1281.4; 9 U.S.C. § 1, et seq.) Explanation: Defendant Western Riverside Council of Governments (WRCOG) moves to compel arbitration of the dispute pursuant to the Federal Arbitration Act (9 U.S.C. section 1, et seq.), or alternatively, under the California Arbitration Act (Code of Civil Procedure section 1281.2, et seq.). Under the Federal Arbitration Act, A written provision in … a contract evidencing a transaction inv...

Excerpt: ...vice of this minute order. Explanation: “'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) First Cause of...

Excerpt: ...ied in their revised privilege log served on April 6, 2020, except those documents identified on pages 5, 14, 27, 34 and 74 of said log as being unrelated to this litigation, and those documents already produced with the privilege log on April 6, 2020. The documents shall be produced within 30 days of service of the order by the clerk. (Code Civ. Proc., § Code Civ. Proc. § 2031.310, subd. (a).) To deny all parties' requests for sanctions. (Code...

Excerpt: ...monetary sanctions. To deny plaintiff's renewed motion for right to attach order. (Code Civ. Proc. § 1008, subd. (b).) Explanation: Motion to Compel Deposition of PMQ: “Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of t...

Excerpt: ...e in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can onl...

Excerpt: ...le issue of material fact exist are to be resolved in favor of the party opposing summary judgment/adjudication. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562; see also See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900 [“Summary adjudication is a drastic remedy and any doubts about the propriety of summary adjudication must be resolved in favor of the party opposing the motion.”].) Accordingly, “[t]h...

Excerpt: ...osts in the amount of $6,041.77. Explanation: A party's right to recover costs is governed entirely by statute, and a prevailing party is entitled as a matter of right to recover his or her allowable costs. (Code Civ. Proc. §1032, subd. (b); Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 241.) “Allowable” costs awarded to a prevailing party must be (1) incurred by that party; (2) reasonably necessary to the conduct o...

Excerpt: ...ent was within the “good faith ballpark” is to be evaluated on the basis of information available at the time of settlement, including: 1) A rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; 2) The amount paid in settlement; 3) A recognition that a settlor should pay less in settlement than if found liable after a trial; 4) The allocation of the settlement proceeds among plaintiffs; 5) The settlor's ...

Excerpt: ...ted 10 days' leave to file the First Amended 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 First Amended Complaint are to be set in boldface type. If oral argument is requested, it will be set for December 22, 2020, at 1:30 p.m. in Dept. 502. Explanation: Demurrer General Standard of Ruling The function of a demurrer is to test the sufficiency of a plaintif...

Excerpt: ...in bold. The time in which an amendment may be filed will 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 suffi...

Excerpt: ...laint is operative. Eight causes of action are alleged therein: (1) negligence; (2) violation of title IX; (3) violation of 42 USC 1983; (4) violation of Cal. Ed. Code § 200 et. seq.; (5) violation of Cal. Const., Art. I, § 28; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; and (8) breach of mandatory duty pursuant to Cal. Gov't. Code § 815.6. Defendants Laton Unified School District and Jason...

Excerpt: ... breaks; (b) payment for all hours worked; (c) reimbursement all of the business expenses necessarily incurred by Plaintiffs and other aggrieved employees in performance of their duties; (d) payment of all overtime wages owed; (e) correctly itemized wage statements, and (f) payment of all wages due at termination of employment. Because an aggrieved employee's action under the [PAGA] functions as a substitute for an action brought by the governmen...

Excerpt: ...ing served. She claims that she suffered from, and was diagnosed with, post‐partum depression following the birth of her second child on August 8, 2018. Vu's parents, the plaintiffs, knew of Vu's struggle with post‐partum depression and nonetheless, filed the lawsuit when she was ill. Vu claims to have suffered post‐partum depression for a year and half after the birth: “Once I became healthy and employed, I contacted my attorney and aske...

Excerpt: ...q. A judgment or order directing the sale, conveyance or delivery of possession of real property is stayed on appeal only by posting bond or undertaking. (§ 917.4; First Federal Bank of California v. Fegen (2005) 131 Cal.App.4th 798, 800.) The amount of the undertaking of bond is fixed by the trial court on the appellant's motion. (§ 917.4.) The bond or undertaking is given on the condition that “the appellant or party ordered to sell, convey...

Excerpt: ...otion for summary adjudication of defendant City of Firebaugh's affirmative defense of design immunity. (Ibid.) To deny defendant City of Firebaugh's motion for sanctions against plaintiff for bringing a frivolous motion for summary adjudication. (Code Civ. Proc. § 128.7.) Explanation: Hiller Aircraft's Motion for Summary Judgment: Hiller has only moved for summary judgment as to the entire complaint, not summary adjudication of each separate ca...

Excerpt: ...le of Court 3.1382. Under Rule 3.1382, “The notice of motion or application for determination of good faith settlement must list each party and pleading or portion of pleading affected by the settlement and the date on which the affected pleading was filed.” (Italics added.) The language of the rule is mandatory, so failure to comply with its requirements can support denial of the motion to determine a good faith settlement. Here, Vasquez's n...

Excerpt: ...bor Standards Act (“FLSA”) in the settlement, and denied preliminary approval because such were not met. Those rulings are incorporated herein for reference. The problem language from the prior settlements was removed, and preliminary approval was given to the current proposed settlement. However, in reviewing the settlement for this final approval motion, the Court finds that four lines purporting to lay FLSA claims to rest are included. (Ex...

Excerpt: ...alleged rental use of the property. Explanation: Reconsideration of Service by Publication Order Inadequate service violates constitutional due process requirements of notice and a reasonable opportunity to be heard. (Brown & Weil, Civil Procedure Before Trial, section 4:4, citing Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314: “The means employed must be such as one desirous of actually informing the defendant might reaso...

Excerpt: ... 36, subdivision (a), A party to a civil action who is over 70 years of age may petition the court for a preference, 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...

Excerpt: ...ode section 17200, et seq. (the Unfair Competition Law, or “UCL” claim), without leave to amend. To sustain the special demurrer for uncertainty to the UCL claim, with leave to amend. To overrule the general demurrer to the UCL claim, but with defendants being given leave to demur generally to this claim should plaintiff file an amended complaint. To be clear to plaintiff: she is given leave only to file an amended complaint raising a UCL cla...

Excerpt: ... not sue or defend itself against a lawsuit. (Rev. & Tax Code, § 23301.) 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 pers...

Excerpt: ...5) 39 Cal.3d 290, 296 [courts “bound to apply” policy of great liberality in permitting amendments to complaint at any stage of proceedings, up to and including trial]; Desny v. Wilder (1956) 46 Cal.2d 715, 751 [“Great liberality is indulged in matters of amendment to the end that lawsuits may be determined upon their merits.”]; Dye v. Caterpillar, Inc. (2011) 195 Cal.App.4th 1366, 1380 [leave to amend to be liberally granted]; Landis v. ...

Excerpt: ...g dispossessed from the real property at issue, i.e., the cost of use for other offices and worship space, etc. by October 15, 2020. A brief not to exceed five pages may also be filed and served at that time. Defendants shall file and serve any response (including competent evidence) by October 30, 2020. Any responsive brief may not exceed five pages. Explanation: Code of Civil Procedure1 section 916 provides the general provision which stays all...

Excerpt: ...th Rules of Court, Rule 3.1350. Weil & Brown, Civil Procedure Before Trial (TRG, 2019) section 10:96 states: “The statement must be a separate document, not part of the notice of motion” and that it “should” have a separate caption. Furthermore, pursuant to California Rules of Court, rule 3.1350(g) “[i]f evidence in support of … a motion exceeds 25 pages, the evidence must be separately bound and must include a table of contents.” D...

Excerpt: ...action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820; see also CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) The facts of the complaint, are taken as true, as is plaintiff's interpretation of a contract, if reasonable. ...

Excerpt: ...t 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) 46 Cal. 4th ...

Excerpt: ...d the motion to deem the admissions admitted. To grant the motion to compel further responses to request for production of documents number 68; to deny as to the remaining requests. To grant the motion to compel further responses to Form Interrogatory 17.1/RFA nos. 51‐55; to deny the motion as to form interrogatory 17.1/RFA nos. 60, 68, 69 and 71. To deny the motion for sanctions. Verified responses to request for production of documents, numbe...

Excerpt: ...n to compel the deposition of defendant Vantage's person most knowledgeable was withdrawn the day before the hearing. To deny plaintiff's motion to compel further responses to requests for admissions, form interrogatory 17.1, request for production of documents, and special interrogatories. (Code Civ. Proc. §§ 2030.300; 2031.310; 2033.290.) To deny plaintiff's request for monetary sanctions against Vantage. (Ibid.) Explanation: Motion to Compel...

Excerpt: ...ceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” Relief under section 473, subdivision (b) can be based either on: an “attorney affidavit of fault,” in which event relief is mandatory; or declarations or other evidence showing “mistake, inadvertence, surprise or excusable neglect,” in which event relief is discretionary. Code of Civil Procedure section 473, subdivision (b) also p...

Excerpt: ...test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against the demurrer, we treat the demurrer as admitting all material facts properly pleaded, bearing in mind the appellate courts' ...

Excerpt: ...Explanation: Special Motion to Strike: Code of Civil Procedure section 425.16 provides, “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there ...

Excerpt: ...ruled. (Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142, 149; Walter E. Heller Western, Inc. v. Tecrim Corp. (1987) 196 Cal.App.3d 149, 158.) The remaining objections to evidence are not material to disposition of the motion. (Code of Civ. Proc. § 437c, subd. (q).) Explanation: Summary Adjudication Summary adjudication is the proper mechanism for challenging a particular, “cause of action, an affirmative defense, a claim for punit...

Excerpt: ...ke, without leave to amend. Defendant Hudson Insurance Company is granted 10 days' leave to file its answer to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Plaintiff does not oppose the motion to strike the prayer and allegations regarding punitive damages, so it is granted. As for the demurrer for uncertainty, defendant fails to specify what is uncertain about the s...

Excerpt: ... CLASS CERTIFICATION “Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well‐defined community of interest, 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 represen...

Excerpt: ...d. Should plaintiffs desire to file a Second Amended Complaint, that must be done in 20 days from the date of this order and any new allegations must be in bold print. Explanation: I. Demurrer General Standard of Ruling 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 test is whether plaintiff has succeeded in stating a cause of action;...

Excerpt: ...ayte & Carruth, LLP's (“McCormick Barstow”) Motion: To deny the motion to compel further responses to Request for Admissions (“RFA”). To grant the motion to compel further responses to Form Interrogatory no. 17.1 as to RFA nos. 35‐43, 45‐51, 53‐83, 86‐99, 100‐108; otherwise deny. To impose monetary sanctions against plaintiff Ted Switzer and in favor of the moving party in the sum of $1,485. Gordon M. Park, Dana B. Denno and Ire...

Excerpt: ...rtify the class does not match the proposed class as described in the third amended complaint, which can justify denial of certification. In the third amended complaint, plaintiffs defined the proposed class as: All individuals and entities in the Northeast Fresno, California area who own or lease real property receiving water from the City of Fresno's Northeast Surface Water Treatment Facility who have been harmed in their person or property, in...