Excerpt: ... part of paragraph 20 which states “and are forever barred and enjoined from prosecuting such released claims against the Released Parties.” The Judgment need also reflect that if all checks for the class members are cashed, $115,792.12 will be paid to class members, and that the parties are to report back on July 23, 2020 at 3:30 p.m. in this Department as to the amounts paid and the total amount of any uncashed checks for possible amendment...

Excerpt: .... To deny all requests in the motion to strike except the request to strike the prayer for punitive damages in the seventh cause of action, at Paragraph 52, which is granted without leave to amend absent plaintiff making a timely motion under Code of Civil Procedure section 425.13. The motion to strike is moot as to the second cause of action (elder financial abuse) due to the ruling on demurrer. Plaintiffs are granted 10 days' leave to file the ...

Excerpt: ...orcing a judgment for costs against a person who is not within the court's jurisdiction. The statute therefore acts to prevent out‐of‐ state residents from filing frivolous lawsuits against California residents.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428, citations and quotation marks omitted.) The statute “provides that upon a defendant's motion, the trial court is required to order an out‐of‐state plaintiff to file an un...

Excerpt: ...g: To sustain the demurrer of defendants Biltz and Guzman to each cause of action alleged against them for failure to state facts sufficient to constitute a cause of action. To deny leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) To grant Biltz and Guzman's motion to strike the allegations and prayer for punitive damages, without leave to amend. (Code Civ. Proc. §§ 435, 436.) To sustain the demurrer of St. Agnes in part, and overrule in...

Excerpt: ...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. Explanation: 1. Judicial Notice The court takes judicial notice of the recordation of the requested documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) 2. Demurrer The function of a demurrer is to test the sufficiency o...

Excerpt: ...d on April 3, 2018, on the ground that there was no claim therein against Wood and Access Medical providing for recovery of attorneys' fees other than Penal Code § 496(c), which Judge Snauffer found unrecoverable in this case. That ruling was reversed on appeal: “we reverse the trial court's denial of Switzer's motion for attorney fees premised on section 496(c), and the matter is remanded to the trial court for further proceedings to determin...

Excerpt: ..., are deemed admitted irrespective of the difficulty of proof at trial. [Citation.] The allegations are to be liberally construed with a view to substantial justice between the parties.” (Universal By‐Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 151.) Here, Cross‐Defendant City of Parlier (“City”) demurs to the second amended cross‐complaint (“SACC”) on the ground that the claims were late‐filed pursuant to the Go...

Excerpt: ...t any irrelevant, false, or improper matter inserted in any pleading; or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. §436; see also Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 104, fn. 35.) An “immaterial allegation in a pleading” includes an “allegation that is not essential to the statement of a claim”...

Excerpt: ...294, subd. (c)(1); see also College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [“absent an intent to injure the plaintiff, ‘malice' requires more than a willful and conscious disregard of the plaintiff's interests. The additional component of ‘despicable conduct' must be found”].) “'Despicable' conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and desp...

Excerpt: ...r summary judgment, or alternatively summary adjudication, of both his complaint and the cross‐complaint filed by Derek Kazanjian. This is a repetitive motions, seeking summary judgment of the same pleadings and causes of action, and raising the same issues, as that denied on May 17, 2019. A party may not move for summary judgment “based on issues asserted in a prior motion for summary adjudication” that has been denied by the court unless ...

Excerpt: ...ndant's demurrer, in its entirety. Explanation: In the case at bar, plaintiffs allege two causes of action: (1) violation of Government Code sections 820, subdivision (a) & 815.2, et. seq.; and (2) negligence. Only the first cause of action is directed at moving parties. Defendants demur to cause of action one, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) & (f). Defendants argue that: (1) the facts are insufficient to alle...

Excerpt: ...). Plaintiff sues to recover unpaid back commissions owed under the Independent Producer's Agreement (“IP Agreement”). Plaintiff also claims that HRBC president Enrique Romero made defamatory statements about plaintiff in connection with this dispute. The Complaint alleges the following causes of action: 1. Breach of Contract 2. Breach of Implied Covenant of Good Faith and Fair Dealing 3. Conversion 4. Unfair Competition and Violation of Busi...

Excerpt: ...onable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Facts appearing in exhibits attached to the complaint will also be accepted as...

Excerpt: ...o both of the following: (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts. Code of Civil Procedure section 2018.030 provides: (a) A writing that reflects an attorn...

Excerpt: ... of action: (1) retaliation in violation of FEHA, Gov. Code § 12940(h); (2) violation of Labor Code § 6310; and (3) violation of Labor Code § 6311. Summary judgment was previously granted as to the first cause of action, and it should not have been included in the SAC. Defendants now move for judgment on the pleadings as to the remaining causes of action on the ground that plaintiff did not comply with the Government Tort Claims Act. "[A] ...

Excerpt: ...mplaint (FAC) alleged against Defendants Laton Unified School District, Laton High School, and Jason Krikava for failing to file the claims within the applicable statute of limitations. Plaintiff shall have ten (10) court days in which to file the Second Amended Complaint (SAC). Any new or altered allegations shall be set forth in boldface typeset. Explanation: A general demurrer admits the truth of all material allegations and a Court will “gi...

Excerpt: ...erty released from levy. (Code Civ. Proc., § 485.240, subd. (a).) On a showing of “clear and convincing” reasons, courts have inherent power to vacate ex parte attachments without any notice (i.e., on defendant's application). (Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal.App.3d 1108, 1116‐1117.) At the hearing, the plaintiff bears the burden of proving that the attachment was proper. (Loeb & Loeb v. Beverly Glen Music...

Excerpt: ...ral, set one, directed to Defendant Duchscherer; and request for production of documents, set one, directed to Defendant Duchscherer. (Code Civ. Proc. §§ 2030.290(b), 2031.300(b).) Defendants Tobias and Duchscherer are ordered to serve complete verified responses to the discovery set forth above, without objection, within 15 days of the clerk's service of the minute order. To impose monetary sanctions in favor of Plaintiff, against Defendants T...

Excerpt: ... some issue therein, be referred for decision to a third party (referee). Such reference may be made pursuant to the parties' agreement or, in certain cases, without the parties' consent. Under Code of Civil Procedure § 638, the court may order a reference either: • “(U)pon the agreement of the parties filed with the clerk, or judge, or entered in the minutes ... ”; or • “(U)pon the motion of a party to a written contract or le...

Excerpt: ...roposed judgment consistent with this order. To take the motion to consolidate off calendar in light of the dismissal of the Morones action. Explanation: Defendants Del Monte Fresh Produce N.A., Inc. and Del Monte Fresh Porduce (West Coast), INc. (collectively, “Del Monte”) move to dismiss Morones v. Del Monte Fresno Produce N.A., Inc. et al., Case No. 14CECG02849. The action was filed on January 31, 2014. "An action shall be brought to t...

Excerpt: ...der a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc. §128.5(a); see Levy v. Blum (2001) 92 Cal.App.4th 625, 635 [§128.5 which “permits the award of attorney fees, not simply as appropriate compensation to the prevailing pa...

Excerpt: ...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 exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement.” (Code Civ. Proc. §1281.2(a), (b); see Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 104...

Excerpt: ... October 1, 2018, the parties filed a stipulation deeming the prematurely filed Memorandum of Costs timely filed. See ¶ 6 of the Stipulation. On November 13, 2018, notice of entry of judgment was filed. On November 26, 2018, Defendant filed a motion seeking to tax costs; specifically, the amount of $29,446.44 listed at line 13 as “interest pursuant to CC § 33289.” No opposition was filed. Merits In the case at bench, an appeal has been file...

Excerpt: ...om 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. (Civ. Proc. Code §437c, subd. (h).) A continuance (normally a matter within the court...

Excerpt: ...erned by CCP §§872.010 through 874.240. CCP § 872.210 states: (a) A partition action may be commenced and maintained by any of the following persons: (1) A coowner of personal property. (2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates. (b) Notwithstanding subdivision (a), an action between...

Excerpt: ...g parties shall submit proposed judgments consistent with the court's order within 10 days of the date of this order. Explanation: California State University's Motion: Plaintiff has alleged only one cause of action against CSU based on CSU's allegedly negligent hiring training, supervision, retention, and investigation of defendant Andres Perez‐Esteban. However, defendant has presented evidence that it never hired Esteban, and that Esteban was...

Excerpt: ... 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, 142.) Though it is a proceeding of a different nature than the ordinary civil acti...

Excerpt: ...ype. Explanation: The court finds the Complaint uncertain. The Complaint alleges that plaintiff leased an apartment at the apartment complex located at 3442 W. University Avenue, Fresno. The Complaint is vague as to what defective conditions existed at the unit in which plaintiff resided. Paragraph 11 alleges, “On August 24, 2017, inspection and observations of the conditions of the dwelling unit at 3442 W. University Avenue, Fresno, California...

Excerpt: ...1987.1 provides, in relevant part: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things … at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b) … may make an order … directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Ci...

Excerpt: ...use of action in light of the court's order on the demurrer. The prevailing party shall submit to this court, within 7 days of service of the minute order, an ex parte request dismissing the action as to the demurring defendant. Explanation: Demurrer to Fourth Cause of Action: Plaintiff, who is the Trustee of the Ninos' bankruptcy estate, has once again attempted to state a claim for negligence against Premier Valley Bank for failing to perform a...

Excerpt: ...ates, to ensure the information is consistent with what was stated in the Reply declarations. Explanation: It appears the memorandum of points and authorities plaintiff filed on July 20, 2018, was not the Reply brief but was the opening brief that plaintiff apparently intended to file with the other moving papers on June 15, 2018. It does not have the word “reply” in the caption, but instead the title simply indicates it is the memorandum in ...

Excerpt: ..., the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined …” The question is whether the pendency of appeal of an order denying a petition to arbitrate means “such application” is still “undetermined.” The only two courts to consider the issue come to different conclusions. Plaintiffs ...

Excerpt: ... of the settlement.” (Code Civ. Proc., § 664.6 emphasis added.) The purpose of Code of Civil Procedure section 664.6 is to permit a court, via a summary proceeding, to finally dispose of an action. (Wackeen v. Malis (2002) 97 Cal.App.4th 429.) Here, the parties settled in February 2014. At that time, this case was (and still is) pending. The agreement contains a provision making it enforceable under Code of Civil Procedure section 664.6. Howev...

Excerpt: ...from the date of this order in which to file a First Amended Complaint addressing the issues noted below. All new or changed allegations shall be set forth in boldface typeset. Explanation: Moving Parties Growers Farm Management, Inc. and George Garcia (“Moving Defendants”) demur to the First, Second, and Fourth Causes of action for Breach of Contract, Negligent Misrepresentation, and Fraud, respectively. The grounds for the demurrer, and the...

Excerpt: ...ruction, Inc. contracted to provide labor, services and materials in the rehabilitation of a construction project for defendants Ramos Ruiz Brothers, Inc. dba, Ramos Furniture, Jose Ramos, and Jose Ramos AG Land Ventures (hereinafter “Ramos”). Ramos amended the contract with Pickett to exclude insulation, flooring and painting, which work was performed by Peters Roofing, Inc., TCC Construction, Inc., and Spectrum Building Insulation Services....

Excerpt: ..., and to prohibit defendant from interfering with the receiver's discharge of his duties. Explanation: Under Code of Civil Procedure section 564, subdivision (a), “A receiver may be appointed, in the manner provided in this chapter, by the court in which an action or proceeding is pending in any case in which the court is empowered by law to appoint a receiver.” Also, “A receiver may be appointed by the court in which an action or proceedin...

Excerpt: ...877.6, “Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co‐ obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6, subd. (a)(1).) “A de...

Excerpt: ...sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whet...

Excerpt: ...n of proof to show that plaintiff cannot establish one or more elements of her causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and this must be shown via specific facts and not mere allegations. (Id.) “California courts ...

Excerpt: ...73, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citation.] ‘In the fur...

Excerpt: ...lexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.” (Dunk v. Ford Motor Company (1996) 48 Cal. App. 4th 1794, 1801, citation omitted.) In Kul...

Excerpt: ...8, 2017, plaintiffs served Form Interrogatories (Set One), Special Interrogatories (Set One), Requests for Production of Documents (Set One), and Requests for Admissions (Set One) on defendant via mail. (Devlin Decl., ¶ 7, Ex. 3.) On March 2, 2018, defendant responded to plaintiffs' written discovery. (See Devlin Decl. ¶ 8, Ex. 4.) Plaintiffs filed the instant Motions to Compel Further Responses and to Deem Admissions Admitted, within the stipu...

Excerpt: ...s without merit. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant meets that burden by showing that one or more elements of the cause of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. §437c, subds. (p)(2), (o)(2).) Thus, the elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession comm...

Excerpt: ...nt order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiffs cannot establish one or more elements of their causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and this must...

Excerpt: ...aint; or to unite with the defendant in resisting the plaintiff's claims; or to demand anything adverse to both parties. (Code Civ. Proc., § 387, subd. (a).) "If any provision of law confers an unconditional right to intervene ... the court shall, upon timely application, permit that person to intervene." (Code Civ. Proc., § 387, subd. (b).) The People, through the Attorney General, have an unconditional right to intervene in the cu...

Excerpt: ...se or defenses before the trial of any other issue in the case, and if the decision of the court, or the verdict of the jury, upon any special defense so tried … is in favor of the defendant pleading the same, judgment for the defendant shall thereupon be entered and no trial of other issues in the action shall be had[.]” (Code Civ. Proc. §597.) Thus, courts have long recognized that where the answer to a complaint raises a statute of limita...

Excerpt: ...ainst minors who voluntarily dismiss their case without prejudice, through their guardian ad litem. (See e.g. Jacquelyn Fries, a minor, etc. v. Rite Aid Corp. (2009) 173 Cal.App.4th 182; see also Fields v. Napa Mill Co. (1958) 164 Cal.App.2d 442.) In the alternative, Plaintiff moves to tax the following costs: (1) deposition costs for Anila Thampy, M.D. ($290); (2) exhibits used for depositions ($42.05); (3) subpoenas for health care providers ($...

Excerpt: ...conomy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order…that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case. …” (Code Civ. Proc. § 598.) Similarly, Code of Civil Procedure section 1048 specifies the court's discretion in regard to bifurcating issues for separate trial: “The court, in fur...

Excerpt: ...ejudice. The entire action is dismissed. Explanation: The Court has considered both the conduct being sanctioned and its effect on the party seeking discovery. There is evidence that plaintiff has engaged in misuse of the discovery process. The harm caused by the withheld discovery and the refusal to participate in discovery is a complete inability to prepare for trial. There is no evidence that any lesser sanction will result in plaintiff partic...

Excerpt: ...ugust 25, 2015, she “was at Selma Hospital waiting to get x‐rays done when the chair she was sitting on broke, causing her to fall to the ground. As a result, Mrs. Vargas was seriously injured.” Plaintiff alleges one cause of action for general negligence, and one for premises liability. Defendant Adventist Medical‐ Center‐Selma (“defendant” or “AMC‐S”) now moves for summary judgment, contending that the one‐ year statute of...

Excerpt: ...n indirect contempt proceeding, “an affidavit must be presented to the court stating the facts constituting the contempt, an order to show cause must be issued, and hearing on the facts must be held by the judge.” (Arthur v. Superior Court (1965) 62 Cal.2d 494, 407‐08.) The affidavit in support of the request for the OSC must cover each element of the commission of the contempt; it serves as the “complaint” in the indirect contempt proc...

Excerpt: ...is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his abili...

Excerpt: ...all cross‐defendants' demurrers to the third cause of action without leave to amend. To sustain all cross‐defendants' general demurrers to the second, fourth and seventh causes of action with leave to amend. To overrule the general demurrers to the fifth and six causes of action. To grant motion to strike as prayed for with leave to amend. An amended crosscomplaint shall be filed and served within 10 days of the clerk's service of this minute...

Excerpt: ...pose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §430.41, subd. (a).) A demurring party must file and serve with the demurrer a declaration stating the means by which it met and conferred with the party that filed the pleading subject to demurrer and that the parties did not reach an agreement resolving the objections raised in the demurrer or stating that t...