Excerpt: ... (APEC). Plaintiff is granted 10 days leave to file a First Amended Cross-complaint, which will run from service by the clerk of the minute order. New language must be set in boldface type. Explanation: Background This action is about a dispute between a general contractor (APEC) and its subcontractor (SLM) over money. After plaintiff SLM filed a Complaint against defendants APEC and American Contractors Indemnity Company over a contractual dispu...

Excerpt: ...ch pleading will run from service by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Plaintiff is a California non-profit public benefit corporation. To further plaintiff's mission, it provided Santé Health Foundation ("SHF")I with grant funding to stabilize and enhance the delivery of primary care and specialty physician care in the San Joaquin Valley. Plaintiff alleges that the gr...

Excerpt: ...amend, the plaintiff may amend his or her complaint only as authorized by the court's order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend." (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023, citations omitted.) "It is the rule that when a trial court sustains a demurrer wi...

Excerpt: ...rther Responses from Defendants to Requests for Admission, Set One Tentative Ruling: To deny the motion regarding Requests for Admission. To continue the remaining motions to Thursday, May 11, 2023, at 3:30 p.m. in Department 501, to allow plaintiffs counsel to file a supplemental declaration attaching defendants' responses served December 2, 2022, which must be filed no later than May 1, 2023. Explanation: Responses Must Be Attached to Supportin...

Excerpt: ...asis of the Complaint for damages. Plaintiff brought four causes of action against defendant Nissan North America, Inc., for negligent repair and failure to replace the vehicle. All of the causes of action against defendant comprise alleged breaches of Civil Code, section 1790 et seq. regarding consumer warranties, and fraud by omission that defendant was aware of the various defects to the vehicle but concealed the defects from plaintiff, who wo...

Excerpt: ...y the pending court proceed-ngs until the arbitration is resolved. (Code Civ. Proc. S 1281.4.) To stay plaintiff's representative PAGA claims pending resolution of the arbitration. Explanation: Under Code of Civil Procedure section 1008, subdivision (a), a party moving for reconsideration of a court order must show that there are "new or different facts, circumstances, or law" that justify reconsideration of the order. (Code Civ. Proc. S 1008, su...

Excerpt: ...planation: "An action shall be brought to trial within five years after the action is commenced against the defendant." (Code Civ. Proc., S 583.310.) "An action shall be dismissed by the court on its own motion or on moton of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article." Civ. Proc„ S 583.350, subd. (a).) "The requirements of this article are mandatory and are not s...

Excerpt: ..., either through adverse possession, or easement by prescription. The action further seeks declaratory relief regarding the rights and duties of the parties as to the Property. The defaults of each ofthe defendants were previously entered except: (1) the County of Fresno, who has consented to judgment subject to certain reservations; and (2) the DOE defendants remain. The court initially notes that plaintiff's application and proposed judgment fa...

Excerpt: ... "shall not include a cause of action under the Song—Beverly Consumer Warranty Act." (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 929; Code Civ. Proc„ S 473, subd. (a)(l) ["The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend . " Emphasis added.]) The First Amended Complaint shall be filed within ten (10) days from the date of this order. New or different allegations in the First Amended...

Excerpt: ...t whom a cause of achon is brought. The Sixth Amended Complaint may be filed within 10 days of service of the order by the clerk. All new allegations shall be in boldface type. Explanation: Judicial Notice It is "well settled" that the court is authorized to consider matters which may be judicially noticed when determining whether a complaint is suffcient to survive a demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Code Civ. Proc. S 430.30,...

Excerpt: ...infliction of emotional distressl causes of action. Explanation: Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., S 437c, subd. In moving for summary judgment, a "defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action cannot b...

Excerpt: ...will run from service by the clerk of the minute order. Explanation: Demurrer Generally 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; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of hi...

Excerpt: ...wer. The Third Amended Answer shall be filed within thirty (30) days from the date of this order. (Code Civ. Proc., S 437, subd. The new amendments shall be in bold print. Explanation: "[A1 motion for judgment on the pleadings is the functional equivalent of a general demurrer[,]" - particularly when time calculations are involved. (See People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 582, 591-692.) As with the standards applicable to demurr...

Excerpt: ...deny the motion to consolidate without prejudice. Explanation: Court's Motion to Strike Code of Civil Procedure section 436 provides, in relevant part, "... at any time in its own discretion, a court may granta motion to strike all or any part of any pleading not drawn in conformity with the laws of this state, a court rule, or an order of the court." Code of Civil Procedure section 472 allows that, "[al party may amend its pleading once without ...

Excerpt: ...st Ms. Lo in the first through fifth causes of action are solely based on the allegation that Ms. Lo aided or abetted Dr. Vang in sexually assaulting her. (Complaint, "1 31, 37, 43, 50 and 58.) There is no allegation that Ms. Lo personally participated in the sexual assault, which was allegedly committed by Dr. Vang while he was alone with plaintiff in an examination room. (ld. at 7-19.) The only allegations of the Complaint that identify Lo spec...

Excerpt: ...on: On July 11, 2022, plaintiffs La Daga Investments, LLC and Chure, LLC filed a complaint against defendant Noe Martnez. Rene Esquivel is not a party in the complaint, but he is described as the managing member of both plaintiff entities and the brother-inlaw and friend of defendant. At no point has the acton been amended to include Mr. Esquivel as a party. Code of Civil Procedure section 664.6 provides, in relevant part: If parties to pending l...

Excerpt: ...lass counsel will breach the fiduciary obligations they owe to the absent class members. As a result, such agreements must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court's approval as fair." (Koby v. ARS National Services, nc. (9th Cir. 2017) 846 F. 3d 1071, 1079.) "[lln the final analysis it is the Court that bears the resp...

Excerpt: ...urth causes of action, with leave to amend. To sustain the demurrer to the fifth cause of action, without leave to amend. Plaintiff shall serve and file a First Amended Complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: On June 30, 2022, plaintiff filed suit against defendants California Department of State Hospitals ("CDSH"), Robert Withrow and Brandon Price for five causes...

Excerpt: ...laint within 20 days of service of the order by the clerk. To deny the moton to strike except as it relates to plaintiffs' claim for relief under Code of Civil Procedure section 1021.4, as to Community Hospital of Central California only. Explanation: In deciding a demurrer, the test is whether the plaintiff has succeeded in stating a cause of action - the court does not concern itself with the issue of plaintiff's possible difficulty or inabilit...

Excerpt: ...od moves for summary judgment, contending that it owed no duty to plaintiff and thus it cannot held liable for negligence. "To establish a cause of action for negligence, the plaintiff must show that the 'defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.' Recovery for negligence depends as a threshold matter on the existence of a legal duty of care." (Br...

Excerpt: ...y of the events leading up to this continuation is as follows: On June 30, 2022, defendant filed a demurrer to plaintiff's original Complaint on the grounds that it failed to state facts sufficient to constitute a cause of action. On August 24, 2022, plaintiff filed the instant motion for summary adjudication and the hearing was originally set for January 25, 2023. On January 18, 2023, the court issued its adopted tentative ruling sustaining the ...

Excerpt: ... has made may petition the court to confirm, correct or vacate the award." (Code Civ. Proc., S 1285.) "A response to a petition under this chapter may request the court to dismiss the petition or to confirm, correct or vacate the award." (Code Civ. Proc„ S 1285.2.) "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 state or another state, unless in accordan...

Excerpt: ...ansaction, plaintiff signed a Retail Installment Sales Contract (“RISC”) which contained an arbitration clause. Problems with the vehicle ensued, and this “lemon law” action was filed on February 4, 2022, against Nissan only. The Complaint alleges the following causes of action: (1) Violation of the Song-Beverly Act – Breach of Express Warranty; (2) Violation of the Song-Beverly Act – Breach of Implied Warranty; (3) Violation of the S...

Excerpt: ... of Civil Procedure section 877.6, “[a]ny 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...

Excerpt: ...rth, fifth and sixth causes of action with leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) Plaintiff is granted 20 days' leave to file a Second Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To find moot defendant Fresno Unified School district's demurrer to the eighth cause of action. Explanation: Motion to Strike “It is the rule that when a trial ...