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

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

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

Excerpt: ...er Code of Civil Procedure section 664.6, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ... has the initial burden of showing the essential facts of jurisdiction, that is the facts requisite to an effective service. (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; Dill v. Berquist Const. (1994) 24 Cal.App.4th 1426, 1439‐ 40.) This may be done through presentation of declarations, with opposing declarations received in response. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.) Furthermore, filing a proof of service...

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

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

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

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

Excerpt: ...s sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To deny the motion to strike punitive damages; and to grant the motion to strike the prayer for attorney's fees. Explanation: Demurrer to First Cause of Action: “The elements of fraud are: (a) misrepresentation; (b) knowledge of falsity (scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. Fraud action...

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

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

Excerpt: ...take the plaintiff's deposition. The court will decide the amount of attorney fees to be awarded upon defendant's noticed motion. Explanation: In determining a motion to withdraw an admission, the court considers: “(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276; Huh v. Wang (2007) 158 C...

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

Excerpt: ...meet and confer requirements of Code of Civil Procedure sections 430.41 (demurrer) and 435.5 (strike). The court grants defendant twenty days within which to comply with the statutes. Defendant must meet and confer “in person or by telephone” with plaintiff, “at least five days before the date” the demurrer and/or motion to strike is due, regarding the issues raised by the demurrer and motion to strike, or attempt to do so and provide suf...

Excerpt: ...ree 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 is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) As used in the statutory scheme, “… act in furtherance of a person's right of petition or free speech...

Excerpt: ...sed judgment consistent with this Court's ruling on the motion for summary judgment. Explanation: Seal The court has “broad authority to protect confidential commercial information[.]” (Fireman's Fund Ins. Co. v. Superior Court (1991) 233 Cal.App.3d 1138, 1141.) However, the court may order that a record be filed under seal only if it expressly finds facts that establish: (1) an overriding interest that overcomes the right of public access to...

Excerpt: ...al notice.” (Code Civ. Proc., § 430.30, subd. (a); see Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “ ‘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...

Excerpt: ...of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff Lisa Kauls, who is the mother of decedent Nicholas Kauls, has alleged a single cause of action for medical negligence based on “contacts and communications” by defendant Fresno Community Hospital's employees with plaintiff, which caused her emotional distress and suffering. (Attachment to Complaint MM‐1, ¶ 4.) She also alleges that defend...

Excerpt: ... (e).) To deny the motion to strike. (Code Civ. Proc. §§ 435, 436.) To grant leave to amend as to the portions of the cross‐ complaint to which the demurrer has been sustained. Defendants/crosscomplainants shall serve and file their second amended cross‐complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer ‐ Second Cause of Action: “This covenant [of good faith and...

Excerpt: ... vacate the award if the court determines any of the following: (1) The award was procured by corruption, fraud or other undue means. (2) There was corruption in any of the arbitrators. (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. (5) The rights...

Excerpt: ...ation: I. Motion to Confirm Any party to an arbitration in which an award has been made may petition the court to confirm the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other person bound by the arbitration award. (Code Civ. Proc., §1285.) A petition shall: (a) set forth the substance or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence ...

Excerpt: ...nded Complaint to correct the Vehicle Identification Number (VIN) for the automobile that is subject to the claims under the Song‐Beverly Act. Defendant filed a late opposition, noting in the supporting declaration that it did not receive the moving papers. The Court would be inclined to continue the hearing to allow Plaintiff to file a reply brief should Plaintiff request oral argument and seek such a continuance at the hearing. The court's di...

Excerpt: ...f law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) “The [summary judgment] procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods of determination of issues of fact. Affidavits of the moving party must be strictly construed and those of [the] opponent liberally construed. The opposing affidavit must be accepted as true, and need not be composed wh...

Excerpt: ...ute order. New allegations/language must be set in boldface type. Explanation: Fourth Cause of Action: Unjust Enrichment “The elements of an unjust enrichment claim are the “receipt of a benefit and [the] unjust retention of the benefit at the expense of another.” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.) “However, the mere fact that a person benefits another is not of itself sufficient to require the other to ma...

Excerpt: ...or the equitable estoppel claim as set forth below, if she can. Plaintiff shall have ten (10) court days from the date of notice of this order in which to file a Third Amended Complaint. Any new or additional allegations are to be set forth in boldface typeset. Explanation: Defendants demur to the complaint, as well as to the First, Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action. In ruling on the demurrer to the First Amended Complain...

Excerpt: ...lish at least one element of the cause of action.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. If a defendant makes this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) In a summary judgment motion, the pleadings determine the scope of relevant issues. (Nieto v. Blue Shiel...

Excerpt: ...vil Procedure section 387, subdivision (d)(1), which states, (d)(1) The 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 impede that pers...

Excerpt: .... To grant fees in the amount of $37,500.00 (25% of the fund), costs in the amount of $18,861.12, an incentive award to the named plaintiff in the amount of $5,000.00, and costs to the administrator in the amount of $12,000.00. To approve the amount of the PAGA payment. The amount to be paid to class members is therefore $73,638.88. To set October 20, 2020 at 3:30 p.m. in this department as the date and time for the parties to return to report on...

Excerpt: ...party from a judgment, order, or other proceeding taken against him or her as a result of mistake, inadvertence, surprise, or excusable neglect, where the application for relief is made within six months of entry of the judgment, order, or other proceeding. (Code Civ. Proc. §473(b).) Application for relief may be based on either (1) an attorney affidavit of fault, in which event relief is mandatory; or (2) declarations or other evidence showing ...

Excerpt: ...gainst defendant Union Pacific Railroad Company. The claim is brought pursuant to the Federal Employers Liability Act (“FELA”) 45 U.S.C. §51, et seq. Plaintiff is the widow of John R. Jane (“Decedent”) who was an employee of defendant from 1968 to 2010. Plaintiff alleges that Decedent was exposed to various toxic substances and carcinogens and that these exposures gave decedent various forms of cancer. In a single cause of action for neg...

Excerpt: ...ears an overall burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Woodridge Escondido Property Owners Ass'n. v. Nielsen (2005) 130 Cal.App.4th 559, 578.) A plaintiff moving for summary judgment has met its burden of showing that there is no defense to a cause of action if it has proved each element of the cause...

Excerpt: ...ng the present action, the court intends to abate it until the appeal in the first action has been finally resolved. (Karp v. Dunn (1964) 229 Cal.App.2d 192, 195.) Explanation: Respondents have demurred to the entire petition on the ground of failure to state facts sufficient to constitute a cause of action, contending that the present action is barred under the doctrine of res judicata, as well as being barred by statutory immunity for mental in...

Excerpt: ...ing the court to “issue a TRO…and set the matter for hearing on Motion for Preliminary Injunction.” These are at odds with each other, and both are wrong, process‐wise. As for the Notice of Motion, a TRO and the preliminary injunction are never issued simultaneously; a TRO is simply the injunction issued prior to a hearing on an Order to Show Cause (OSC) re preliminary injunction. As for the Memorandum, it separates issuance of the TRO an...

Excerpt: ...dment to any pleading[.]” (Code Civ. Proc. §473(a)(1).) “[I]t is a rare case in which a court will be justified in refusing a party leave to amend [its] pleadings so that he may properly present [its] case.” (Morgan v. Superior Court of Cal. In and For Los AngelesCounty (1959) 172 Cal.App.2d 527, 530, citation and quotation marks omitted.) Accordingly, leave to amend should be “liberally granted as long as there is no timeliness problem ...

Excerpt: ...ses are to be given under oath, without objections and without the limit to “information presently available to and specifically known to this responding party.” The responses are to include all information sought for persons who are not current employees, omitting only address and telephone information for those who are current employees. Interrogatories Nos. 118 and 119: to overrule the burdensome and relevancy objections, but to sustain th...