Excerpt: ...ion of punitive damages. (Cal. Rules of Court, rule 3.1350(b).) Explanation: Fourth Cause of Action: The elements of a fraudulent concealment cause of action are “ ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the pl...

Excerpt: ...ees in the amount of $1,283,333. To grant the named plaintiff (class representative) an incentive award in the amount of $15,000. To order the parties to return on March 21, 2023, at 3:30 p.m. in Department 501 to inform the court of the total amount actually paid to the class members, pursuant to Code of Civil Procedure section 384, subdivision (b), so that the judgment can be amended and the distribution of any cy pres funds can be ordered. Doc...

Excerpt: ... conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.' (Code Civ. Proc., § 187 (section 187).) Buried in this opaque language is the power of a t...

Excerpt: ... complaint and the demurrer overruled, when the necessary facts are shown to exist, although inaccurately or ambiguously stated, or appearing only by necessary implication.” (Hunter v. Freeman (1951) 105 Cal.App.2d 129, 133; see Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 [pursuant to rule of liberal construction, court draws inferences favorable to plaintiff, not defendant].) In testing a pleading against a demurrer,...

Excerpt: ...require plaintiff to pay $240 for motion fees to the clerk (in addition to the $60 for the motion fees already paid) for the correct total motion fee of $300 (5 motions x $60 each). The additional filing fees must be paid on or before April 13, 2022. Defendant Lola M. Hart is ordered to serve verified responses, without objections, to plaintiff Terry L. Thelen's Form Interrogatories, Set One, Special Interrogatories, Set One, Requests for Product...

Excerpt: ...rrogatories must be “given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing…” (Code Civ. Proc., § 2030.300, subd. (c).) “Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the pa...

Excerpt: ...iff, individually and as successor‐in‐interest to decedent Jessica Cortez, brought a single cause of action against defendants Kevin Ciresi, M.D. and Athenix Body Sculpting Institute for wrongful death based on medical malpractice. The complaint alleges that on September 24, 2019, defendants care and treatment of decedent breached the standard of care, causing decedent's death. On January 18, 2022, plaintiff amended his complaint, only to add...

Excerpt: ...er within ten days of the date of service of this order. The amended answer must be verified, it must contain the contact information of the filing party or attorney as required under Rule of Court 2.111, and defendant Awesome Charters and Tours must appear through an attorney licensed in the State of California. To grant plaintiff's application for a writ of possession for the collateral, namely the 2013 MCI J4500 Motorcoach, VIN 2MG3JMBA0DW0664...

Excerpt: ...can be filed will run from service by the clerk of the minute order. New allegations in a Second Amended Complaint must be set in boldface type. Explanation: Meet and Confer Defendant's attorney filed a declaration stating that he sent a detailed ten page meet and confer letter and left a voicemail with plaintiff's counsel, but the call was not returned. Considering that this matter seeks division of only partially identified property, it appears...

Excerpt: ...een the parties on the same causes of action. (Code Civ. Proc. § 430.10, subd. (c).) To stay the first, second and fifth causes of action pending resolution of Loveman v. Leavitt, case no. 18STCV05817, pending the Los Angeles County Superior Court. To sustain the demurrer of Leavitt to the third cause of action on the ground that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. §430.10, subd. (e).) To deny le...

Excerpt: ...leave to file a Third Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Demurrer It is “the established rule that as against a general demurrer a complaint will be liberally construed[…]; that any mere ground of special demurrer for uncertainty will be resolved in support of the complaint and the demurrer overruled, when the necessary facts are ...

Excerpt: ...To grant and to award monetary sanctions in the total amount of $1,106.60 against plaintiffs Helen Lee and George Xury, jointly and severally1 , payable within 30 days of the date of this order, with the time to run from the service of this minute order by the clerk. The matters specified in defendant Lowe's Home Center, LLC's Requests for Admission, Set One, are deemed admitted, unless plaintiffs serve, before the hearing, proposed responses to ...

Excerpt: .... To deny the motion compelling further responses to Request for Production of Documents, Nos. 1‐43 and 45‐57. To grant, in part, the motion compelling further responses to Request for Production of Documents No. 44. Within ten (10) days of service of the order by the clerk, defendant shall serve further verified responses to Request for Production No. 44 and produce all documents responsive to the Requests for Production on documents that pl...

Excerpt: ...must contain “a statement of the facts constituting the cause of action, in ordinary and concise language;” i.e., to plead “ultimate facts.” (Code Civ. Proc. § 425.10, subd. (a)(1); Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) The modern approach is to find allegations sufficient if on the whole they apprise defendant of the factual basis of the claim, and to find that the particularity required “‘depends on the extent to ...

Excerpt: ...ice of the transfer order. Explanation: “It is a long established rule that a motion for change of venue must satisfy two requirements: (1) [i]t must be shown the action is proper in the county to which the movant seeks transfer; and (2) it must be shown the county in which the action was filed was improper under any applicable theory.” (Easton v. Superior Court (1970) 12 Cal.App.3d 243, 245‐246 [internal citations omitted, brackets added.]...

Excerpt: ...ules of Court; and (2) no evidence was submitted in support of the motion. (1) California Rules of Court Pursuant to California Rules of Court, rule 3.1112, 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. The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments...

Excerpt: ...m alleging breach of contract, breach of warranty, and concealment. Plaintiff alleges that on September 16, 2018, she leased a 2019 Jeep Cherokee from Fresno Chrysler, manufactured by FCA, which came with various warranties. During the warranty period, defects were contained or developed in the vehicle, which could not be repaired. On December 8, 2021, defendants filed a motion to compel arbitration and stay the action, set for hearing on June 29...

Excerpt: ...nd Workforce Development Agency. The proposed Order and Judgment will be signed. No appearances are necessary. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the court to reconsider its decision granting...

Excerpt: .... Proc., § 430.10, subd. (e).) To grant the motion to strike. (Code Civ. Proc., §§ 435 and 431.10, subd. (b).) To grant leave to amend. Should plaintiff desire to amend, a Second Amended Complaint shall be filed within ten (10) days from the date of this order. Any new language in the amended pleading shall be in bold print. Explanation: Demurrer A general demurrer, “admits the truth of all material factual allegations in the complaint” an...

Excerpt: ...(20) days from service by the clerk of the minute order. Explanation: A general demurrer, “admits the truth of all material factual allegations in the complaint” and the plaintiff's “ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court ….” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496; Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, ...

Excerpt: ...s Castro's (“Cross‐Complainant”) cross‐complaint, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Cross‐Complainant is granted 20 days' leave to file a First Amended Cross‐Complaint. The time to file such 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: Meet and Confer: The on...

Excerpt: ...umbers 35 and 38. For a partially successful motion, monetary sanctions in the amount of $1,200 (at a rate of $400 per hour) will be imposed against defendant Fresno Pacific University (FPU) and in favor of plaintiffs. (Code Civ. Proc. § 2030.300, subd. (d).) Sanctions must be paid no later than 30 after service of this Order. Explanation: Background Plaintiffs were members of the swim team at FPU. At a swim team practice on January 9, 2018, pla...

Excerpt: ....210), or by a mental examination, the party shall obtain leave of court.” (Code Civ. Proc. § 2032.310, subd. (a).) “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Code Civ. Proc. § 2032.320, subd. (d).) “In contrast to more pedestrian discovery ...

Excerpt: ...mend. (Code Civ. Proc. § 430.10, subd. (e).) Explanation: Cause of Action No. 1: Violation of California Civil Code Section 2923.6 Under Civil Code section 2923.6, If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not...

Excerpt: ...f documents served with the deposition notice. (Code Civ. Proc. § 2025.450.) To deny plaintiffs' request for sanctions against defendant. (Code Civ. Proc. § 2025.450(g)(1).) Explanation: Plaintiff seeks to compel the deposition of Kia America, Inc.'s (“KA”) person most knowledgeable (PMK) and custodian of records, and to compel production of various categories of records. Plaintiff served KA with a deposition notice setting the deposition f...

Excerpt: ...burden to establish a prima facie case of discrimination… While the plaintiff's prima facie burden is ‘not onerous', he must at least show ‘“ ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion ....'”'” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354‐355, internal citations omitte...

Excerpt: ... to amend under Code of Civil Procedure, section 473, subdivision (a), and Code of Civil Procedure, section 576, favoring resolution of all disputed matters between the parties in the same lawsuit. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Additionally, where “the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint…” (Code Civ. ...

Excerpt: ...nation: Attorney Affidavit of Fault: The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. § 473, subd. (b).) Where a motion seeking this relief is based on an “attorney affidavit of fault,” the relief is mandatory. Otherwise, relief is discretio...

Excerpt: ...ent Creditor Assignee Forster‐Gill, Inc., seeks to add Canales Group LLC as a judgment debtor on the Judgment entered against Canales‐Selma LLC and Michael Canales, individually and doing business as Michael Canales Construction on July 24, 2012. After a judgment creditor obtains a judgment against a corporation and it then discovers that the corporation has few or no assets and is controlled by a nonparty alter ego, the judgment creditor may...

Excerpt: ... restaurant. She slipped and fell on a slippery substance on the floor as she walked back to her table after using the restroom. She felt sudden and severe pain in her right knee. The Complaint alleges a single cause of action for premises liability. Initially the court will address plaintiff's evidentiary objections. The first three objections are expressly directed at portions of defendant's separate statement. These objections should be overru...

Excerpt: ...for Judgment on the Pleadings: Defendants move for judgment on the pleadings as to the entire Complaint on the ground that the case has become moot due to the Governor's decision to rescind the Blueprint for a Safer Economy. A motion for judgment on the pleadings will lie where the issues of the case have become moot. (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746.) “Courts do not decide abstract questions of law. An indispensable ...

Excerpt: ...t aside. Defendants are excused from including a copy of their proposed pleading as a precondition for the set aside and are granted 30 days' leave to file their responsive pleadings to the First Amended Complaint, with the time to run from service by the clerk of the minute order. If this response is a demurrer, as defendants have indicated, then the parties must comply with the meet and confer requirements outlined in Code of Civil Procedure se...

Excerpt: ...nfidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).) “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) “A party requesting that a record be filed under seal must file a motion or an application for an order sealin...

Excerpt: ...he Underlying Case In underlying Case No. 13CECG03811 entitled Cal LeDuc; Tori Abby; Miley Abby, a minor by and through her Guardian ad litem, Tori Abby, Mandy Jobe, Lukus LeDuc, Jay LeDuc and Cal LeDuc as successor in interest to the estate of Marsha Kay LeDuc v. Mario Alberto Guerro; Daniel M. Canchola and Guerra Produce, the defendants filed for bankruptcy protection on April 24, 2017, shortly before the initial trial date. The Plaintiffs peti...

Excerpt: ...e 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; Villacreses v. Molinari (2005) 132 Cal.App.4th 1...

Excerpt: ...ccessor‐in‐ Interest to Jessica Cortez, brought suit against, among others, defendant and moving party, Kevin Ciresi, M.D. The complaint alleges one cause of action for medical malpractice resulting in wrongful death. Plaintiff is alleged to be the husband of Cortez, who passed away on September 25, 2019, and as such is the “wrongful death heir.” Ciresi brings this motion to compel joinder of Alyza and Isaiah Boriphanvichitr, as omitted a...

Excerpt: ... unable resolve disputes regarding plaintiff's counsel's stated objections and instructions to his client. Motion to Compel Plaintiff's Further Deposition To the extent the motion requests a further response to a particular deposition question or document request a Separate Statement is necessary under California Rules of Court, rule 3.1345. While that rule does provide an exception where “no response has been provided to the request for discov...

Excerpt: ...planation: Exclusivity of the Workers' Compensation Remedy Defendant North Cal Cleaning Company (NCCC) demurs to the First Amended Complaint on the grounds that the breach of contract cause of action alleged against it in the First Amended Complaint is barred by the exclusive remedy of workers' compensation. (Code Civ. Proc., § 430.10, subd. (e).) Labor Code section 3600, subdivision (a), provides that liability for the compensation provided by ...

Excerpt: ... and $262.10 in costs. (Code Civ. Proc., § 425.16, subd. (c).) Explanation: A special motion to strike (an “anti‐ SLAPP” motion) provides a procedural remedy to dismiss non‐meritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) A prevailing defendant on an a...

Excerpt: ...murrer to the second cause of action in the Second Amended Cross‐Complaint, with leave to amend. Bazan is granted 10 days' leave to file a Third Amended Cross‐Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To sustain CFM's demurrers to the fourth and fifth causes of action in the Second Amended Cross‐Complaint, without leave to amend. CFM is directed to submit ...

Excerpt: ... will be entertained at 2:30 p.m. Explanation: Before filing a demurrer, the moving party “shall file and serve with the demurrer a declaration stating… (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a)(3)(A) [emphasis added].) Here, thou...

Excerpt: ...ees already paid) for the correct total motion fee of $360 (6 motions x $60 each). The additional filing fees must be paid no later than November 30, 2021. Plaintiffs Brandon A. Escalante and Samantha Quintero are ordered to serve separate, verified responses, without objections, to defendants' Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One (a separate set of which was served on e...

Excerpt: ...ver, petitioners have not yet filed a civil action against Dr. Foxley or anyone else to the court's knowledge, and it is not clear if they intend to do so in the future. Nevertheless, they seek to preserve the complaint and to compel its production, citing to Code of Civil Procedure sections 2035.010 to 2035.060. Under section 2035.010, “One who expects to be a party or expects a successor in interest to be a party to an action that may be cogn...

Excerpt: ...�40%) on amounts withheld from tenants' security deposits. The First Amended Complaint (“FAC”) filed on July 28, 2016, alleges causes of action for (1) Unfair Competition (Bus. & Prof. Code § 17200); (2) Preliminary and Permanent Injunction; (3) Declaratory Relief; and (4) Violation of Civ. Code § 1950.5. All causes of action are premised on violation of section 1950.5. The FAC simply alleges that “[t]he 40% administration fees deducted f...

Excerpt: .....” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909.) “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading ... by adding ... any party.” (Code Civ. Proc., § 473, subd. (a)(1).) “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading ... in other particulars ....” (Code Civ. Proc., § ...

Excerpt: ...ned below. Explanation: Agreement to Arbitrate. “Under both federal and California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98; see Federal Arbitration Act (FAA)(9 U.S.C. § 1 et seq.).) Title 9 United States Code section 2 states that, “A written...

Excerpt: ... action. (Code Civ. Proc., § 391.1.) The 30‐day time limit will run from the service of the minute order by the clerk. (Code Civ. Proc., § 1013, subd. (a) [20‐calendar‐day extension for service to address outside the United States].) This action is stayed pending proof that such security has been furnished, and if no security is posted within the time allowed, the case shall be dismissed by the court upon ex parte application therefor by ...

Excerpt: ...nses related to the subject property during the pendency of the action, including property taxes, utilities, insurance, and the annual payment related to the property's solar panels, and to keep Ms. Rogers reasonably well informed as to the status of these payments so she is ensured there are no missed payments Explanation: Since the parties are each “plaintiff” and “defendant” (in reversed roles) between the two cases, they will be refer...

Excerpt: ...e conducted on October 27, 2021, at 1:30 p.m., in Department 501. Explanation: Plaintiff has brought its renewed motion under Code of Civil Procedure section 1008, subdivision (b), (hereafter “Section 1008(b)”) which provides: A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circums...

Excerpt: ...nt; and (4) by Plaintiff seeking an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted as to each Defendant Tentative Ruling: To grant the motions to compel responses to Form Interrogatories Set One, Special Interrogatories Set One and “Requests for Production of Documents” aka Inspection Demands Set One pursuant to Code of Civil Procedure sections 2030.290, subdivisions (b), ...

Excerpt: ...aintiff of evidence of the profits or financial condition of a defendant is prohibited, unless the court enters an order permitting it. (2 Witkin, Cal. Evid. (5th ed. 2021) Discovery, § 18.) “No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) [i.e., defendant's profits gained by virtue of the wrongful course of conduct of the nature and type shown by t...

Excerpt: ...oks, documents, or other things … at the taking of a deposition, the court, upon motion … may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of th...

Excerpt: ... subd. (c).) Where defendant is the moving party, summary judgment is proper where defendant demonstrates the absence of an essential element of the plaintiff's case. (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266.) “Because of the very drastic nature of the summary judgment statute, power given thereby should be used with caution, and hence when there is doubt as to the propriety of the motion, courts should, without hesitancy,...

Excerpt: ...is operative. Three causes of action are alleged therein: (1) general negligence; (2) violation of the Consumer Legal Remedies Act (‘CLRA') § 1750 et. seq.; and (3) negligent misrepresentation. Plaintiff alleges in the second cause of action: “[P]rior to the filing of this Third Amended Complaint, [plaintiff] mailed to Defendant, via certified and regular mail, a Consumer Legal Remedies Act notification and demand letter, notifying Defendant...

Excerpt: ...Nelson Blvd., Selma, CA 93662. According to the allegations of the Complaint, defendant was a corporation doing business in California but headquartered in Japan. Defendant acquired the property via Grant Deed on July 25, 1990. Plaintiff's husband (Frank Matsuoka) was an employee of defendant and in charge of its business in the United States. He was also designated as its agent for service of process. Defendant ceased doing business in Californi...

Excerpt: ... Civil Procedure section 2016.010, et seq. (Compare, e.g., Civil Code § 3295.) Specifically, plaintiffs appear to move to compel a further response to Request for Production of Documents, Set Two, Number 22, which seeks from all defendants, “yearly financial statements for 2015‐2019, including profit and loss statements, that reflect the components of the total overhead expenses incurred by each of YOUR apartment complexes.” (Declaration o...

Excerpt: ...��[I]n any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Hanson v. Grode (1999) 76 Cal.App.4th 6...

Excerpt: ...t of papers. In the future the moving party must reserve the proper number of motions. Moving party shall pay an additional filing fee of $120.00 to be due and payable to the court clerk within 30 days of service of the minute order by the clerk. (Gov. Code § 70617, subd. (a).) To grant the moving party's motion to compel responses to the Form Interrogatories‐general (set one), Special Interrogatories (set one), and Request for Production of D...

Excerpt: ...ndants to Strike Tentative Ruling: To grant defendants' motion to strike the first, second, third and fifth causes of action of the Second Amended Complaint (“SAC”). To deny the motion to strike punitive damage allegations. (Code Civ. Proc., § 436, subd. (a), (b).) To sustain the demurrer to the SAC's fourth cause of action, without leave to amend, only as to defendants Sherri Jones, Brandon Price, Emi Komaki, Sara Arad, David Mwangi, Virgin...

Excerpt: ... To strike, sua sponte, the Second Amended Complaint filed on February 9, 2021. (Code Civ. Proc., § 436, subd. (b).) Explanation: Meet and Confer. Before filing a demurrer, the demurring party “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer[.]” (Code Civ. Proc., § 430.41, subd. (a), emphasis added; see also Judicial Council form CIV‐140.) Where the parties are unable to su...

Excerpt: ...bsence of contrary court order, a civil litigant's right to discovery is broad.”].) “In civil litigation, discovery may be obtained from a nonparty only through a ‘deposition subpoena.' [Citation.]” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127; Code Civ. Proc. § 2020.010, subd. (b).) However, “Discovery procedures are generally less onerous for strangers to the litigation. That is because they are less likely to be r...

Excerpt: ...rofessional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” [Citation.]'” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) However, the standard of care against which physicians acts are mea...

Excerpt: ...(Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally cer...

Excerpt: ...l be considered on September 21, 2021, at 4:00 p.m. in Department 403. Explanation: Certification of Class for Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected, although there is less scrutiny of manageability issues. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803...

Excerpt: ...mplaint Tentative Ruling: To overrule the demurrer, with defendants Robert G. Melenbacker (individually and as trustee of the Robert and Cynthia Melenbacker Trust Dated June 5, 2009), Marvin A. Farris (individually and as trustee of the Marvin and Cindy Farris Family Trust Dated May 31, 2006), Rodney O. Swenson (individually and as trustee of the Swenson Family Trust of 1998), and Ted Torosian granted 10 days' leave to file their Answer(s) to the...

Excerpt: ...ading. To deny the motion to set aside default as to defendants Donald Krouskup, Askem Farms LLC, and McCall Village Mobile Home Park LLC, without prejudice. Explanation: On May 12, 2019, plaintiff filed suit alleging five causes of action: breach of express warranty; revocation of acceptance; breach of contract; breach of implied warranty of merchantability; and fraud in the inducement. Proofs of service were subsequently filed. On March 29, 202...

Excerpt: ...of cases filed by Enrique Reyes and Guadalupe Reyes (Plaintiffs) that, taken as a whole, constitute “deliberate and egregious misconduct” sufficient to support dismissal. (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 738, 762.) To monetary sanctions in favor of the Kutnerian Defendants and against Plaintiffs and James Michel, jointly and severally, in the amount of $17,852.31 pursuant to Code of Civil Procedure section 12...

Excerpt: ...ount shall file and serve its First Amended Cross‐Complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. If oral argument is timely requested, such argument will be conducted at 2:30 p.m. on September 9, 2021, in Department 501. Explanation: Catamount has cross‐ complained against Dusten Perry (“Perry”) for equitable indemnity, contribution and declaratory relief on the assertion that Perr...

Excerpt: ... 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; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) Defendant contends that the alleged arbitration agreement in this case is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq. Section 2 o...

Excerpt: ...roposed judgment consistent with the court's summary judgment ruling. Explanation: “‘[I]n any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage re...

Excerpt: ...pp.4th 876, 885‐886 citing Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322.) When a litigant seeks a stay based upon parallel criminal proceedings, an analysis should be undertaken "in light of the particular circumstances and competing interests involved in the case.” (Avant! v. Superior Court, supra, 79 Cal.App.4th at p. 885.) Courts should consider the following factors (“the Keating factors”): (1) the interest of t...

Excerpt: ...n a request for continuance to a later date, if plaintiff needs more time. Explanation: The court will allow the additional pages of the memorandum, as requested in the brief itself. However, in the future counsel should request this relief ex parte, prior to filing the brief. As for conditional class certification, plaintiff bears the burden of establishing the propriety of class treatment with admissible evidence. (Richmond v. Dart Industries, ...

Excerpt: ...s sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the court to reconsider its decision granting certification of the class. 2. Settlement Previously, the court found that the settlement was fair and reasonable based on the evidence that plaintiff submitted in support of the motion for preliminary approval. It does not appear that there is any reason for the court...

Excerpt: ... of the first cause of action. Explanation: The Underlying Case In the underlying Case No. 13CECG03811 entitled Cal LeDuc; Tori Abby; Miley Abby, a minor by and through her Guardian ad litem, Tori Abby, Mandy Jobe, Lukus LeDuc, Jay LeDuc and Cal LeDuc as successor in interest to the estate of Marsha Kay LeDuc v. Mario Alberto Guerro; Daniel M. Canchola and Guerra Produce, defendants filed for bankruptcy protection on April 24, 2017, shortly befor...

Excerpt: ...itially asserting three cases of action: deceit, fraud and negligent misrepresentation. Between February and October 2016, multiple demurrers were sustained so that plaintiffs' only remaining cause of action is malicious prosecution. On May 3, 2017, CCS filed the instant motion for summary judgment, based on: (1) collateral estoppel/res judicata; (2) failure to prove the elements of malicious prosecution; and (3) statute of limitations. This cour...

Excerpt: ...n: “‘Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713, quoting Code Civ. Proc. § 437c(c).) Summary judgment is properly directed toward the entire complaint and not portions thereof. (see Barnick v. Longs Drug Stores, Inc. (1988) 203 Cal.App.3d 377, 384; Khan v. Shiley, Inc. (1990) 217...

Excerpt: ...rior Court Case No. 15CECG00659; In Re: Reyes U.S. Bankruptcy Court (E.D. Cal.) Case No. 18‐11357‐B‐13 and Reyes v. Bernel Fresno Superior Court Case No. 18CECG00202 as Exhibits 1‐8 attached to Defendants' Request for Judicial Notice. However, the court will not take judicial notice of Defendants' analysis of these cases. (See Fremont Indem. Co. v. Fremont Gen. Corp., supra, 148 Cal.App.4th at 113; Tenet Healthsystem Desert, Inc. v. Blue ...

Excerpt: ...of Defendant Virginia Valenzuela and against Plaintiff. (Code Civ. Proc. §§ 2023.010, subd. (g), and 2025.450, subd. (h).) Plaintiff is ordered to pay $846.75 in sanctions to the Carbone, Smith & Koyoma law firm, within 30 days of the clerk's service of the minute order. If a timely request for oral argument is made, such argument will be conducted on August 18, 2021, at 3:30 p.m., in Department 501. Explanation: Code of Civil Procedure section...

Excerpt: ...on August 18, 2021, at 3:30 p.m., in Department 501. Explanation: Defendants WISH, Sierra Imaging Associates Medical Group, Wishon Radiological Medical Group, and Dr. Alson move for summary judgment based on the declarations of their two medical experts, who have opined that Dr. Alson's care and treatment of plaintiff did not fall below the standard of care, and that nothing he did or failed to do caused plaintiff any injury. “The standard of c...

Excerpt: ...a motion when it has already brought a prior motion for the same relief, but the prior motion was denied, or only granted conditionally or on terms. The party moving for renewal must also specify what application was made, to what judge, when it was made, and what order or decision was made. (Code Civ. Proc. § 1008, subd. (b).) The renewal motion must also state what new or different facts, circumstances, or law exist that justify renewing the p...

Excerpt: ...gument is made, the argument will be conducted on August 26, 2021, at 3:30 p.m. Explanation: The court has identified certain deficiencies with respect to the instant petitions and proposed orders which are as follows: 1. The petitions fail to comply with California Rules of Court, rule 7.950. “A petition for court approval of a compromise of, or a covenant not to sue or enforce judgment on, a minor's disputed claim; a compromise or settlement ...

Excerpt: ...partment 501. Explanation: Proper service of notice of deposition compels the opposing party to appear, to testify, and to produce documents if requested. (Code Civ. Proc. § 2025.280, subd. (a).) The party noticing the deposition may move for an order compelling discovery from a party deponent who fails to appear or answer questions or to produce materials requested in the deposition notice, and who has not served a valid objection under section...

Excerpt: ...d, such argument will be conducted on August 26, 2021, at 3:30 p.m. in Department 501. Explanation: “The standard of care 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. [Citations.] ‘ “The standard of care against which the acts of a physician are...

Excerpt: ...e pursuant to Evidence Code section 452, subdivision (h). To grant the petition. The Complaint must be filed within 30 days of notice of the ruling plus 5 days for service via mail. [Gov.C. Sec. 946.6(f) and CCP Sec. 1013.] Explanation: Background On or about December 11, 2019, petitioner was driving his car in the vicinity of E. Belmont Avenue and N. Millbrook in Fresno, CA. He was “rear‐ended” by a car allegedly driven by Xiong Vang. Vang...

Excerpt: ...l., Superior Court Case No. 20CECG01317 for purposes of discovery and trial only. A copy of this order shall be filed in each case. Huynh, et al. v. Coleman, Superior Court Case No. 18CECG03177 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 may order all th...

Excerpt: ...nctions Tentative Ruling: To grant defendant Western Dental's motions respecting the interrogatories. To grant defendant Western Dental's motion to compel further responses to request for production of documents set one, except as to response no. 1. To impose monetary sanctions in the amount of $1,507. (Code Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h).) Sanctions must be paid by plaintiff, Guled Fadumo Abdillah, to the Law Office of...

Excerpt: ...identiary objections. Explanation: Procedural Issues: There was an error at Paragraph 4 of the Notice of Motion in identifying the number of the cause of action: it referred to the “Second Cause of Action for Age Discrimination,” when the age discrimination claim is actually the first cause of action. This error was repeated on the Separate Statement, at Issue 4. However, despite this labeling error both sides were able to address this cause ...

Excerpt: ...te a cause of action. (Code Civ. Proc., §430.10, subd. (e).) The prevailing party is directed to submit to this court, within 7 days of service of the minute order, an Order consistent with this ruling. Explanation: Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing State Farm Mutual Automobile Company (“State Farm”) demurs to the Breach of Contract and Breach of Implied Covenant of Good Faith causes of action b...

Excerpt: ...n: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.) As the moving party, defendant bears the initial burden of proof to show that plaintiff cannot establish one or more elements of her cause of action or to show that there is a complete defense...

Excerpt: ...ery separate type of propounded discovery which is the subject of this motion. See the explanation below for further detail as to what each declaration should include (separate declarations are required only as an aid to the court in analyzing the motion). No additional filings are permitted, by either side, without prior leave of court. On or before July 26, 2021, defendant shall pay to the clerk of the court an additional $60 motion fee, beyond...

Excerpt: ...f Insurance Code section 11580, subdivision (b)(2). A determination of this issue is necessary for purposes of ruling on the motion for summary adjudication as to the first cause of action for violation of Insurance Code section 11580, subdivision (b)(2). The parties must file and serve supplemental briefs on or before July 21, 2021. No reply briefs will be permitted. The hearing will be continued to August 4, 2021. To deny the motion for summary...

Excerpt: ...ldface type. Explanation: Special Demurrer “[O]bjections that a complaint is ambiguous or uncertain, or that essential facts appear only inferentially, or as conclusions of law, or by way of recitals, must be raised by special demurrer, and cannot be reached on general demurrer.” (Johnson v. Mead (1987) 191 Cal.App.3d 156, 160.) Plaintiff appears to allege that defendant breached the parties' agreement beginning in 2013 because he “refuses,...

Excerpt: ...ose monetary sanctions in favor of defendant Virginia Valenzuela and against plaintiff. (Code Civ. Proc. §§ 2023.010, subd. (d), 2025.450, subd. (g).) Plaintiff is ordered to pay $778.25 in sanctions to the Carbone, Smith & Koyoma law firm, within 30 days of the clerk's service of the minute order. Explanation: Proper service of a notice of deposition compels the opposing party to appear, to testify, and to produce documents if requested. (Code...

Excerpt: ...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 claims and justifying judgment in the movant's favor; and determining whether the opposition demonstrates the existence of a triable issue of ma...

Excerpt: ...t; David Lincoln and Cheryl Lincoln, Trustees of the David and Cheryl Lincoln Living Trust; Brent A. Davis, Davis & Davis Distributors; Davis Equipment, Inc. erroneously sued herein as Davis Road Oil & Equipment, Inc.; and Davis & Davis Distributors No. 2, Inc. Plaintiff is granted 10 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....

Excerpt: ...end granted. Should plaintiff desire to file a Second Amended Complaint, that must be done within 20 days from the date of this order and any new allegations must be in bold print. If plaintiff does not file a Second Amended Complaint within the allotted time period, defendant shall file an Answer to the First Amended Complaint within 30 days from this order. Explanation: Demurrer General Standard of Ruling “In the construction of a pleading, f...

Excerpt: ... clerk of the minute order tied to this ruling. New allegations in a Third Amended Complaint are to be set in boldface type. Explanation: Demurrer, in General A demurrer tests only the legal sufficiency of the pleading. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) ...

Excerpt: ...rrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014.) The court intends to find that $2.50 per page is a reasonable rate to charge for the transcript. The court also intends to find that plaintiff is not required to pay for additional services and materials such as “production and archival,” “condensed transcript,” “delivery of hard copy of original or certified copy,” and “deposition technology package” if he h...

Excerpt: ... is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, internal citations omitted.) The subject deposition subpoena contains twelve categories mostly pertaining to J.D. Heiskell ...

Excerpt: ...l Response to Request for Production of Documents, Set Four, against Plaintiff Pedro Alonso‐Ifil and for Related Sanctions, by Defendant Greyhound Lines, Inc. (4) Motion to Deem Admissions, Set One, Admitted against Plaintiff Pedro Alonso‐Ifil and for Related Sanctions, by Defendant Greyhound Lines, Inc. Tentative Ruling: To grant all four motions. To impose monetary sanctions against plaintiff Pedro Alonso‐Ifil, in the amount of $ 1,430. (...