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: ...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 ...

Excerpt: ...0, naming all defaulted defendants, and dismissing the Doe defendants by March 2, 2023, at 10:00 a.m. Explanation: The quiet title statutes require a hearing to be held before a default judgment is entered: The court shall examine into and determine the plaintiff's title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff's title and hear such evidence as may...

Excerpt: ...§ 437c, subd. (c).) 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 be established, or that there is a complete defense to the cause of action.” (§ 437c, subd. (p)(2).) If the defendant does not meet that burden, the motion must be denied, even if the plaintiff has not opposed it adequa...

Excerpt: ...endants”) jointly move for summary judgment of plaintiff Elidia Salinas' (“plaintiff”) Complaint, which states three causes of action: (1) medical negligence; (2) lack of informed consent; and (3) battery. Following plaintiff's opposition papers, defendants withdrew their contest of the first cause of action for medical negligence for both breach of duty and causation. Because at least the first cause of action for medical negligence remain...

Excerpt: ...) A Second 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: Plaintiffs Larry and Johnathan Norton essentially allege that they were duped into investing in a Ponzi scheme run by defendant Richard Ramirez and JMJ Capital Group. They were encouraged to invest in the scheme by defendant Steve Hirata. The First Amended Complaint (the FAC) alleges the follow...

Excerpt: ...represents a reasonable compromise, given the magnitude and apparent merit of the claims being released, discounted by the risks and expenses of attempting to establish and collect on those claims by pursuing litigation. The court has a fiduciary responsibility as guardians of the rights of the absentee class members when deciding whether to approve a settlement agreement . . . The courts are supposed to be the guardians of the class.” (Kullar ...

Excerpt: ...f the minute order. All new allegations in the Second Amended Complaint are to be set in boldface type. Explanation: In relevant part, Code of Civil Procedure section 436 empowers the court to (a) strike out any irrelevant, false, or improper matter inserted in any pleading, and (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state. Civil Code section 3294 allows for the recovery of punitive d...

Excerpt: ... the order by the clerk. Explanation: Notwithstanding defendant's protestation, it appears that plaintiffs' counsel engaged in adequate and good faith meet and confer efforts prior to bring this motion. Plaintiffs' counsel exchanged multiple meet and confer letters with defense counsel about the disputed responses in May 2022 after receiving defendant's responses and objections to the subject discovery. Plaintiffs' counsel made several attempts t...

Excerpt: ...is a suspended corporation and thus has no right to appear in the action or move to set aside the default. (Corp. Code § 2205; Palm Valley Homeowners Assn. v. Design MTC (2000) 85 Cal.App.4th 553, 560; Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th 1361, 1365‐1366.) The court intends to take judicial notice of the California Secretary of State's website, which shows that Midline is a suspended corporation. The court intends to deny the ...

Excerpt: ...nation: A prevailing buyer in an action under the Song–Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires...

Excerpt: ... submit to an authorized method of discovery and disobeying court orders to provide discovery. The action will be dismissed as to defendants Zaid Altahan and K&K Home, LLC. (Code Civ. Proc. § 2023.030, subd. (d)(3).) Explanation: Requests for Production of Documents, as well as Form and Special Interrogatories, were served by defendants Zaid Altahan and K&K Home, LLC, on plaintiffs in September 2021. Because plaintiffs never served responses, mo...

Excerpt: ...n. To 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 grant a 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, “[a] party may amend its plead...

Excerpt: ...efendants' Motion to Dismiss: David Bray, Jr., and Dawn Bray move to dismiss the action against them as well as the claims against David Bray, Sr., and Robert Bray, under both the five‐year mandatory dismissal statute, Code of Civil Procedure section 583.310, and the discretionary statute for failure to prosecute the action diligently, Code of Civil Procedure sections 583.410 and 583.420. Under section 583.310, “[a]n action shall be brought t...

Excerpt: ...) the request that petitioner be allowed to deposit the money in a custodial account under the California Uniform Transfers to Minors Act (“CUTMA”) and 2) the request for $5,000 of the settlement to go to petitioner. While CUTMA accounts are often used by private parties as a means of giving gifts to minors, it is extremely uncommon for the court to order this in a minor's compromise situation. Petitioner has provided no basis for the court t...

Excerpt: ...ompelling arbitration under both the Federal Arbitration Act and the California Arbitration Act, Code of Civil Procedure section 1281, et seq. Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent ...