Excerpt: ... 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 1223, 1230.) In this case, plaintiff Lori Calwile signed an arbitration agreement on behalf of decedent Marilyn Leach. Plaintiffs dispute that the arbitration agr...

Excerpt: ...der all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to 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 o...

Excerpt: ...s argument that he did not take part in the fight in which plaintiff alleges he was injured, but rather he simply observed the fight as he was leaving the bar at closing time, and then he continued walking home. Each cause of action is premised on the same facts: that defendants, including defendant Young, “physically attacked and struck Plaintiff in the face with their fist, feet and/or objects. The actions by Defendants, and each of them, cau...

Excerpt: ...tories, set two, within 20 days after service of this Order. Explanation: Each answer in response to a request for admission shall, “[¶] (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. [¶] (2) Deny so much of the matter involved in the request as is untrue. [¶] (3) Specify so much of the matter involved in the request...

Excerpt: ...ative pleading is the Second Amended Cross‐Complaint (the SACC), which alleges four causes of action against V&N: (1) Indemnity; (2) Apportionment; (3) Declaratory Relief; and (4) Contractual Indemnity. A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd....

Excerpt: ...tiff Anthony Moffit alleges defendant Western Oilfields Supply Company dba Rain 4 Rent rented a portable water tank to plaintiff's employer. The tank had a fixed individual rung ladder to access the roof. The ladder was mangled, bent, distorted, defective and unfit for use. When plaintiff was using the ladder in a reasonably foreseeable manner he fell and was severely injured. The operative pleading is the First Amended Complaint, which alleges o...

Excerpt: ...ts tentative ruling indicating that it was going to deny the motion for preliminary approval of the class settlement without prejudice, as the parties had not resolved all of the court's concerns with the prior motions. Specifically, the court found that the class met the requirements for class certification, the class counsel was adequate, and most of the class representatives were appropriate. However, the court also found that one of the class...

Excerpt: ...le 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 certified for sett...

Excerpt: ...ond cause of action in plaintiff's Complaint on grounds of misjoinder. (Code Civ. Proc., § 430.10, subd. (d).) Defendants contend that plaintiff's Complaint alleges two separate occurrences resulting in bodily injury: a trip and fall (first cause of action) and a motor vehicle accident (second cause of action), that the two events are separated by 427 days, that there are no allegations suggesting the events are related or resulted in overlappin...

Excerpt: ...ndemnity fail to state causes of action. On that ground, the court sets its own motion for judgment on the pleadings as to the third and fourth causes of action. (Code Civ. Proc., § 438, subd. (b)(2); Camacho v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394, 1396.) Hearing on the court's motion is set for Tuesday, May 25, 2021, at 3:30 p.m. in Department 501. Plaintiff's opposing brief, not to exceed ten pages, must be filed...

Excerpt: ...d Ambrocio Hernandez Demurrer to defendant Department of State Hospitals' Answer, by Plaintiff Tentative Ruling: To take all hearings off calendar for failure to comply with Code of Civil Procedure sections 430.41 & 435.5. The parties are ordered to meet and confer as set forth in the statutes and, if needed, schedule new hearing dates for the demurrers and motion to strike. Explanation: Before filing a demurrer, the demurring party “shall meet...

Excerpt: ...orth any issues for adjudication in either motion. No summary adjudication can be granted unless there was specific notice of the exact issue(s) presented in the notice of motion. (Cal. Rules of Court, rule 3.1350(b); Maryland Casualty Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974, fn. 4 ‐ 75 days' notice of such issue is required; McMahon v. Superior Court (2003) 106 Cal. App. 4th 112.) The result is that if summary judgment is not warranted,...

Excerpt: .... Proc., § 425.16.) To take the demurrers to the Answers off calendar as moot in light of the striking of the Cross‐Complaint. Explanation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious 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.)...

Excerpt: ...dants, or plaintiffs may offset sums they owe by that amount. (Code Civ. Proc., § 643, subd. (c).) Explanation: On 12/15/2020 referee Robert Hillison submitted his Second Report, and on 12/17/2020 submitted a supplement to the report, clarifying one issue. A referee appointed pursuant to Section 639 shall file with the court a report that includes a recommendation on the merits of any disputed issue, a statement of the total hours spent and the ...

Excerpt: ...rit, 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].) The Legislature included a “safe harbor” provision in section 128.7 to ensure the statute is “remedial, not punitive.” (Peake, supra, 227 Cal.App.4th at p. 441; see Code Civ. Proc. §128.7(c)(1).) Where a party does not take advantage ...

Excerpt: ...r more may sue or defend for the benefit of all.” “The party seeking certification as a class representative must establish the existence of an ascertainable class and a well‐defined community of interest among the class members. 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 w...

Excerpt: ...he 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.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protecte...

Excerpt: ...nation: Summary Judgment The court's sole function on a motion for summary judgment is issue‐finding. The court must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c); see Zavala v. Arce (1997) 58 Cal.App.4th 915, 926; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) If there is a single such issue, the motion must be denied. (Versa Tec...

Excerpt: ...plained others to the court's satisfaction. The court finds that the class meets the requirements for class certification, that class counsel is adequate to the task of representation (but for the below), and that all proposed class representatives (but for Ms. Perkins) are appropriate to the appointment sought. Ms. Perkins' decision to retain her personal claims against what is represented to be a financially stressed defendant renders her an in...

Excerpt: ... (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, by demonstrating that the facts underlying plaintiff's complaint fit one...

Excerpt: ...ntegral part of plaintiff's cause of action. (Williams v. Horvath (1976) 16 Cal.3d 834, 842.) The government claim presentation deadline is not a statute of limitations. (City of Pasadena v. Superior Court (2017) 12 Cal.App.5th 1340, 1352.) The claim presentation must be made to the public entity separate from subsequently seeking redress in the courts. (DiCampli‐Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991, fn. 8.) Plaintiff premi...

Excerpt: ... consistent with the court's summary judgment order. Explanation: Objections The court rules as follows on defendants' objections:  Plescia Declaration: Sustain objection nos. 3‐8, 10, 11, 13, 15, 16, 19‐23, 30, 32, 33, 35, 38 and 39. Overrule objection nos. 1, 2, 9, 10, 12, 17, 18, 24‐29, 31, 34, 36, 37 and 38.  Smith Declaration: Sustain all 20 objections. Attorney Smith is testifying to matters for which he does not have personal k...

Excerpt: ...s controls over any language fixing the settlement amount at $390,000. The Final Settlement Approval hearing is set at 3:30 p.m. on July 8, 2021. Papers shall be filed no later than June 23, 2021. Explanation: 1. Class Certification Standards An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luck...

Excerpt: ...es 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 sealing the record. The motion or application must be accompanied by a memorandum and a dec...

Excerpt: ...rties' Agreement “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code of Civ. Proc., § 1021.) The franchise agreement here addresses attorney fees and court costs incurred to secure a temporary or...

Excerpt: ... may be filed will run from service by the clerk of the minute order. Explanation: Defendant demurs to cause of action two, an alleged violation of the Consumer Legal Remedies Act § 1750 et. seq. Defendant argues: (1) pursuant to Civil Code section 1782, subdivision (a), proper notice was not provided; and (2) plaintiff has failed to allege an inadequate legal remedy before seeking equitable relief. Each argument is addressed below. 1. Was notic...

Excerpt: ...dum of Costs and signed the Opposition to the Motion to Tax Costs) to appear telephonically through CourtCall or personally at the Sisk Courthouse. The court orders counsel for Fresno Community Hospital, attorney Karen J. Ray (who verified the Memorandum of Costs and signed the Response to the Motion to Tax Costs) to appear telephonically through CourtCall or personally at the Sisk Courthouse. Masks are required at the Sisk courthouse and entranc...

Excerpt: ...edure sections 430.41 and 435.5. Moving party and cross‐complainant are ordered to meet and confer pursuant to these statutes and, if necessary, to calendar a new hearing date for new motions. Any new hearing date must be obtained pursuant to Fresno County Superior Court Local Rules, rule 2.2.1. If moving party wishes to file a demurrer and motion to strike, they shall be filed as two separate motions. Explanation: California Farm Management, I...

Excerpt: ...ared for this same date are covered under separate Tentative Rulings.) Tentative Ruling: To grant the motion to seal. To sustain the demurrer to the third cause of action, without leave to amend. To order the motion to strike off calendar as moot, given the ruling on demurrer. Cross‐defendant Intercare is directed to submit to this court, within 7 days of service of the minute order, a proposed judgment dismissing the cross‐complaint as to it...

Excerpt: ... compel further responses to Request for Production of Documents, Set One: To grant the motion as to Request for Production (“RFP”) Nos. 10 and 42, and to deny as to the remainder. (Code Civ. Proc., § 2031.310, subd. (c).) To the extent the motions are granted, defendant shall provide further verified responses, produce a privilege log as necessary, and produce all relevant documents, within 20 days of service of the order by the clerk. Expl...

Excerpt: ...ral demurrer and, except as provided by Code of Civil Procedure section 438, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227; Templo v. State of Calif. (2018) 24 Cal.App.5th 730, 735.) Thus, a defendant will not be able to raise any issues in a motion for judgment on the pleadings that could have been, but were n...

Excerpt: ...� 437c.) To grant Bank of Stockton's motion for summary adjudication of its sole cause of action for declaratory relief. (Ibid.) Explanation: Plaintiffs' Motion: Plaintiffs John and Janie Garcia seek adjudication of their breach of contract and declaratory relief causes of action. They contend that defendant Bank of Stockton (the Bank) breached the defense and indemnity clause in a settlement agreement when it refused to provide a full defense an...

Excerpt: ...nts shall submit a proposed order dismissing the Complaint against them within ten days of the date of service of this Order. Explanation: First, although plaintiff Liberi has now dismissed all of her claims without prejudice, the court still intends to rule on the merits of the demurrer because the matter is not entirely moot. Plaintiff Ostella has not dismissed any of her claims, so the matter remains at issue with regard to her claims. Also, w...

Excerpt: ... complainants' claims. Explanation: When a motion to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court must determine: (1) whether the agreement exists and, (2) if any defense to its enforcement is raised, whether it is enforceable. The party seeking to compel arbitration bears the burden of proving the existence of an arbitration agreement by a preponderance of the ...

Excerpt: ...t (“TAC”) arguing that (1) generally, a materials supplier cannot sue a property owner; and (2) Alcal's new equitable causes of action are not adequately pled. Because it is axiomatic that something “generally” true is not “always” true and the new causes of action are adequately pled, the court will overrule the demurrer. 1. Argument that, generally, a materials supplier cannot sue a property owner Modern argues that, generally, subc...

Excerpt: ...ion. (Code Civ. Proc. § 430.10, subd. (e).) To deny the motion to strike and motion to post a bond, as moot in light of the ruling on the demurrer. Defendants shall submit a proposed order dismissing plaintiffs' claims against them within 10 days of the date of service of this order. Explanation: Demurrer: While the Complaint is filled with many irrelevant and confusing allegations and facts, the gravamen of the action against the Gittler defend...

Excerpt: ...boldface type. Explanation: Defendant North Cal Cleaning Company (NCCC) demurs to the Complaint on the grounds that the sole cause of action against NCCC for breach of an implied contract fails to state facts sufficient to constitute a cause of action against NCCC because it is barred by the exclusive remedy of workers' compensation and that the Workers' Compensation Appeals Board has exclusive jurisdiction over the matter. (Code Civ. Proc., §43...

Excerpt: ...ficers that adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits complying with subdivisions (c) and (d) is immune from liability for civil damages for personal injury to or death of any person or damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he or she is being...

Excerpt: ...wing the nonexistence of a triable issue of material fact. (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1165; Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714.) Plaintiff filed a Judicial Council Form Complaint on form PLD‐PI‐100 and used attachment PLD‐PI‐100(4) to allege a single “cause of action” for premises liability, in three “counts,” each stating a different legal theory: negligence, willful failure to warn [Civil ...

Excerpt: ...fter “Defendant”) shall provide further verified responses to Demand for Production of Documents nos. 1‐ 27, Form Interrogatory nos. 1.1, 2.2, 2.5‐2.13, 3.1, 3.5‐3.7, 4.1, 4.2, 12.1‐ 12.7, 13.1, 13.2, 14.1, 14.2, 15.1, 16.1, 16.2, 16.7, 16.8, 17.1 and 50.1‐50.6, Special Interrogatory nos. 1‐21, and Requests for Admissions nos. 1‐22. The motion is denied as to Form Interrogatory no. 1.1. All documents responsive to the Demand for...

Excerpt: ...ing: To deny the motion, without prejudice. Explanation: Effect of Prior Settlement in Meza v. Verizon California, Inc. Plaintiffs' present motion does not discuss whether the prior settlement in Meza v. Verizon California, Inc. affects the settlement of the other related actions that plaintiffs are now seeking to settle. The court has already granted final approval of the class settlement in the Meza action on August 1, 2019, in the amount of $8...

Excerpt: ...t matter as is involved in a state court action in California, the state court has the discretion but not the obligation to stay the state court action.(Benitez v. Williams (2013) 219 Cal.App.4th 270; Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800; Gregg v. Superior Court (1987) 194 Cal.App.3d 134.) In exercising its discretion, this court should consider the importance of discouraging multiple litigation designed ...

Excerpt: ...In a suit for tax refund, the burden of proof is on the taxpayer (Flying Tiger Line v. State Bd. of Equal. (1958) 157 Cal.App.2d 85, 99 [320 P.2d 552]), not only to demonstrate the Board's determination is incorrect, but also to produce evidence from which a proper tax determination can be made. (People v. Schwartz (1947) 31 Cal.2d 59, 64 [187 P.2d 12].) The taxpayer must affirmatively establish the right to a refund of the taxes by a preponderan...

Excerpt: ...de of Civ. Proc., § 430.10, subd. (e).) 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.) Accordingly, “[b]ecause the function of a demurrer is not to test the truth or accuracy of the facts alleged in the complaint, we assume the truth of all properly pleaded factual allegations.” (Los Altos Golf & Country Club v. County of Santa Clar...

Excerpt: ...itney McDougall. To deny a protective order and sanctions. Explanation: On or about September 17, 2020, and September 21, 2020, defendants caused to be issued a number of subpoena duces tecum. The subpoenas dated September 17, 2020, are as follows: (1) Stanislaus County Welfare Office as to Vanessa McDougall, order number 346458‐012; (2) Modesto DMV as to Vanessa McDougall, order number 346458‐013; (3) Stanislaus County Superior Court as to V...

Excerpt: ... (Code Civ. Proc. § 430.10, subd. (e).) Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. To deny the motion to strike, in its entirety. (Code Civ. Proc. §§ 435; 436.) Explanation: Demurrer: With regard to the sixth cause of action for violation of Labor Code section 226, failure to provide accurate wage statements, defendants argue that...

Excerpt: ... of the fourth cause of action. (Code of Civ. Proc. § 430.10, subd. (e).) To grant the motion to strike. Leave to amend granted. Plaintiff is granted 10 days' leave to file a First Amended 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 First Amended Complaint are to be set in boldface type. Explanation: Special Demurrer (Code of Civ. Proc. § 430.10, subd. ...

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

Excerpt: ... subd. (e).) Plaintiff is granted 10 days' leave to file the Second Amended 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: Demurrer, in General 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...

Excerpt: ...rst cause of action for disability or medical condition discrimination, arguing that plaintiff cannot meet her prima facie burden of showing that she was terminated because of her medical condition or disability. FEHA provides, in relevant part, that it shall be an unlawful employment practice for an employer, because of the physical disability or medical condition of any person, to refuse to hire or employ the person or to bar or to discharge th...

Excerpt: ... is the same for each cause of action, since they are based on the same underlying facts. A SLAPP suit (Strategic Litigation Against Public Participation) is a suit brought “primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) The provisions of the anti‐SLAPP statute are to be construed broadly in order to safeguard the constitut...

Excerpt: ...f Rights, which is granted without leave to amend. Defendant is granted 10 days' leave to file its answer to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer The Complaint alleges sufficient facts for a cause of action for Elder Abuse and Neglect if the plaintiff shows: (1) Defendant had a responsibility for meeting the basic needs of Plaintiff; (2) Defendant kn...

Excerpt: ...urth Amended Complaint. (Code Civ. Proc. § 437c.) Explanation: First of all, plaintiff Peter Farrington's claims against CCMC are time‐barred. Under Code of Civil Procedure section 340.5, In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or throu...

Excerpt: ...436.) To grant leave to amend. Plaintiffs would be granted 10 days' leave to file a Second Amended Complaint. The time in which such pleading 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: Demurrer Demurrer, in General The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plum...

Excerpt: ... owes on his accounts. With regard to the breach of contract cause of action, the elements of a contract claim are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) resulting damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Here, plaintiff's evidence shows that the parties entered into a series of contracts starting in 1991 and ending with a revised...

Excerpt: ...s legally entitled to judgment on the basis of the facts presented. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416; Kulesa v. Castleberry (1996) 47 Cal.App.4th 103.) Moving party must demonstrate that the opposing party does not have and cannot reasonably obtain evidence to raise factual or legal issues with regard to matters raised in the pleadings. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 854.) Evidence is ...

Excerpt: ... breach of oral or implied contract, and the third cause of action for breach of the implied covenant of good faith and fair dealing on the ground that plaintiff's employment was at‐will, and therefore they had the right to fire him at any time with or without cause. However, there are triable issues of material fact as to whether plaintiff was an at‐will employee, or whether he had a partly written and partly oral agreement to work for defen...

Excerpt: ...llate attorney fees unless the statute specifically provides otherwise.” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.) Accordingly, “[s]ince [Code of Civil Procedure] section 425.16, subdivision (c) provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees by a prevailing defendant‐respondent, those fees are recoverable.” (Dove A...

Excerpt: ... “If the buyer prevails in an action under this section, the buyer 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).) Here, it is clear that pla...

Excerpt: ...nation: Code of Civil Procedure sections 435.5 and 430.41 require in‐person or telephonic meet and confer prior to filing a motion to strike or demurrer. Slack's counsel sent a meet and confer letter but did not make any effort to meet and confer in person or by telephone. Ordinarily the court would take the motions off calendar pending compliance with this statutory requirement. In this instance the court will not do so due to the delays in he...

Excerpt: ... (c), “No pretrial discovery by the plaintiff shall be permitted with respect to the evidence [of defendant's financial condition] unless the court enters an order permitting such discovery pursuant to this subdivision.” (Civ. Code, § 3295, subd. (c).) “Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the d...

Excerpt: ...t, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” (Civ. Code, § 1717, subd. (a).) Also, under Code of Civil Procedure section 1033.5, attorney's fees are allowable as an item of costs when authorized b...

Excerpt: ...ggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: … Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts …” A Section 663 motion must be directed at a final judgment. (Remington v. Davis (1951) 108 Cal.Ap...

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

Excerpt: ...settled. The motion is confined to the face of the pleading under attack, and all facts alleged in the complaint must be accepted as true. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 815; Rangel v. Interinsurance Exchange (1992) 4 Cal.4th 1, 7.) The applicable standards oblige the court to indulge all inferences in favor of the party against whom the motion was made and bars the court from inferring a fact that might defeat the cl...

Excerpt: ...nd, Third, Fourth, and Sixth Causes of Action Under FEHA: Defendant contends that the undisputed facts show that plaintiff was unable to perform the essential functions of his job, with or without accommodation, and therefore plaintiff cannot prevail on his FEHA claims. “FEHA prohibits employment discrimination based on a physical disability. (Gov. Code, § 12940, subd. (a).) The Legislature has made it clear that FEHA's statutory provisions ar...

Excerpt: ...adjudication be deemed to seek summary adjudication of the First Amended Complaint's (“FAC”) seventh cause of action. (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) Plaintiff shall file and serve the First Amended Complaint within 5 days of service of the order by the clerk. To grant SCCCD's motion to compel answers to deposition questions as to question numbers 30‐35 (as set forth in SCCCD's separate statement), and to deny the remainder ...

Excerpt: ...l essential elements of each cause of action have been alleged. (Code Civ. Proc., §§ 422.10 and 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In ruling on a demurrer, the court should construe the complaint liberally “with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; Stevens v. Sup.Ct. (API Auto Ins. Services) (1999) 75 Cal.App.4th 594, 601; Perez v. Golden Empire Transit Dist. (2012)...

Excerpt: ...d. (c); Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1036.) 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 plaintiffs are not required to pay for additional charges such as “litigation packages” and “condensed copies” if they have not requested them. Finally, the court intends to deny the request for attorney's fees and costs...

Excerpt: ... September 10, 2020, in Department 501. To the extent the court compels production of any personnel records to plaintiff, the court will issue a protective order limiting use of the records to the present litigation only, and requiring plaintiff's counsel to return the records to the Attorney General's office upon conclusion of the litigation. Explanation: Under Evidence Code section 1043, subdivision (a), “In any case in which discovery or dis...

Excerpt: ...in which such pleading can be amended will run from service by the clerk of the minute order. New allegations in a Second Amended Complaint are to be set in boldface type. In the event plaintiff elects to not file a Second Amended Complaint, defendant shall file an Answer to the First Amended Complaint within 30 days from the date of this order. Explanation: As a preliminary matter, defendant's reply contends that plaintiff's admission that the l...

Excerpt: ...at date plaintiff's former attorney (Benjamin Hakimfar of Kabateck Brown Kellner, LLP) filed a request for dismissal of the action with prejudice. The dismissal was the result of a settlement agreement between the parties, which was negotiated between Mr. Hakimfar and defendant's attorney. The dismissal was signed on behalf of plaintiff by Mr. Hakimfar and the dismissal was entered. No executed release by plaintiff acknowledging the permanent los...

Excerpt: ...ss members (as defined in Plaintiff's First Amended Complaint) are hereby invalidated and deemed unenforceable. To further order defendants to send a curative notice to the putative class members who signed an Employee Arbitration Agreement informing them that the “Class Action Waiver(s)” provision contained in the Employee Arbitration Agreement in question have been invalidated and rendered unenforceable by the court, and that they are still...

Excerpt: ... for Production of Documents, Statement of Damages, and for Monetary Sanctions Tentative Rulings: To grant defendant Fresno Community Hospital's motion for joinder of omitted heir. (Code Civ. Proc. §§ 382 and 389.) To grant Dr. Gill's motion for summary adjudication of the medical battery cause of action alleged against him. (Code Civ. Proc. § 437c.) To grant Dr. Rohlen's motion for summary adjudication of the fraud and medical battery/wrongfu...

Excerpt: ...ttorney'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 the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge...

Excerpt: ... submitted in support of defendant's opposition. To grant plaintiffs' motion for attorney's fees in the amount of $ 41,385.00. To also award costs and expenses of $ 2,509.98. Payment shall be made by defendant General Motors, LLC, to the Knight Law Group within 30 days of the clerk's service of this minute order. Explanation: In the case at bar, plaintiffs move pursuant to Civil Code section 1794. Plaintiffs seek attorney's fees in the amount of ...

Excerpt: ...remises serving as a hazard, and further allowed said dangerous condition to remain in disrepair, notwithstanding the fact that Defendants knew and/or should have known of the dangerous condition but failed to warn and/or repair, remedy the dangerous condition, that “there had been numerous prior Incidents.” Defendant has the burden of proving that there is a complete defense or that plaintiff cannot establish one or more elements of each of ...

Excerpt: ...e to file answer. Explanation: Motion to File Answer‐in‐Intervention: Under Code of Civil Procedure section 387, subdivision (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: … 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 situat...

Excerpt: ... order. Explanation: Plaintiffs' motion to set aside the dismissal has been brought more than six months after they originally entered the dismissal of Delta Cleaners, so they cannot seek relief under Code of Civil Procedure section 473, subdivision (b), which requires that such motions be brought within six months of the default, default judgment, or dismissal. (Code Civ. Proc. § 473, subd. (b).) Instead, they seek to set aside the dismissal un...

Excerpt: ...he court. At the continued hearing, the court will take limited, competent evidence from plaintiff and any witness she offers to support her general damages. Plaintiff and any other witnesses may appear via CourtCall. To deny the motion for sanctions. Explanation: Defendant's Reclassification Motion Civil cases formerly within the jurisdiction of municipal courts are classified as “limited” civil cases, while matters formerly within the juris...

Excerpt: ...stice require such action. (People v. Coleman (1975) 13 Cal.3d 867, 885; Avant! Corp. v. Superior Court (2000) 79 Cal.App.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 ...

Excerpt: ...he clerk, defendant General Motors, LLC, (GM) shall serve further verified responses to Request for Production of Documents, Set One, Nos. 10‐ 12, 16, 17, 20, 23‐26, 28, 29, 37, 38 and 40‐75, without objection, and produce all responsive documents. Plaintiff and defendant shall also meet and confer and agree on a protective order pursuant to which the records will be produced. To grant the motion to compel further responses to Special Inter...

Excerpt: ...and confer with regard to dates and locations for the second deposition and IME. Explanation: “Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.” (Code Civ. Proc., § 2025.610, subd. (a).) “Thus, a natural person may ...

Excerpt: ...tions and prayers regarding emotional distress and punitive damages, without leave to amend. (Code Civ. Proc. §§ 435 and 436.) To deny Price's motion to strike the cause of action for declaratory relief. (Ibid.) Explanation: Demurrer – Compliance with Government Tort Claims Act: Price demurs to the second through seventh causes of action based on plaintiff's failure to show that he filed a government tort claim naming him as a potential defen...

Excerpt: ...d amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Defendant Martinez demurs to the negligence claims, contending that plaintiffs have not alleged sufficient facts to state a valid claim because they have not alleged that she actually knew that her husband had a propensity to molest children. Defendant contends that, in order to allege the existence of a duty in negligen...

Excerpt: ...evelopment Agency. To grant plaintiff an incentive award of $2,250. To award attorney fees in the amount of $30,000. To order that the parties to lodge a proposed judgment by June 30, 2020, which lists the class certified, that the court retains jurisdiction to enforce the settlement, and enters judgment on the settlement (with the settlement attached thereto). Same need also state that the court determines the amount payable to all class members...

Excerpt: ...ove for judgment on the pleadings as to the defamation and intentional infliction of emotional distress causes of action, arguing that plaintiff has not and cannot state valid tort causes of action due to his failure to file a timely tort claim with the Board of Trustees for California State University Fresno. Under Government Code section 911.2, “A claim relating to a cause of action for death or for injury to person or to personal property or...

Excerpt: ...First, the appellate court must identify the issue framed by the pleadings. Second, we determine whether the moving party has met its statutory burden of proof. Once the defendant has made such a showing, the burden shifts to the plaintiff to produce evidence that a triable issue of fact exists as to an essential element of the cause of action. The third and final step is to determine whether the opposing party has demonstrated that a triable iss...

Excerpt: ...e: To deny terminating sanctions, but to issue evidence sanctions as specified below. (Code Civ. Proc., § 2023.030, subd. (c).) (2) Defendant's Motion for Summary Judgment, or Alternatively for Summary Adjudication: To deny summary judgment. (Code Civ. Proc., § 437c, subd. (c).) To grant summary adjudication of plaintiff's eighth and ninth causes of action of the First Amended Cross‐ Complaint (FACC), and to deny as to the remainder of plaint...

Excerpt: ...t the releases which are the subject of this motion are invalidated. To find that no curative notice is required at this time. Explanation: 1. Findings of Fact The court sustains the objections on the grounds of hearsay to plaintiff's counsel's declaration. The admissible evidence shows defendant's owner appointed an employee to give presentations about a settlement offer to three groups of employees on Christmas Eve 2019, about a month after the...

Excerpt: ...eir truth. (See, e.g., Evid. Code §§ 451‐452.) Even so, the declaration can be considered as evidence in support of this motion, since affidavits and declarations are a routine form of evidence in motions to compel arbitration. It does not stop being evidence simply because it was filed in connection with a different motion. It was Ms. Boujikian's declaration then, and it is her declaration now. Also, the fact that the documents attached to t...

Excerpt: ...y adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal adjudication prohibited].) The ultimate burden of persuasion rests on defendant, as the moving party. The initial burden of production is on defendant to show by a preponderance of the evidence that i...

Excerpt: ...ke class allegations, as improperly filed, redundant, and moot. (Ibid.) Explanation: Under Code of Civil Procedure section 382, “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” (Code Civ. Proc., § 382.) “The party seeking certification as a class representative must ...

Excerpt: ...minutes and 13 seconds.3 However, according to defendant's own legal authorities, the issue of whether a hazard existed long enough to give the defendant constructive notice of the dangerous condition is generally an issue of fact that should be resolved by the trier of fact, not an issue that is amenable to resolution as a matter of law. In Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, the California Supreme Court stated that, “[b]ecause the o...

Excerpt: ...rocedure section 473, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citati...

Excerpt: ... a judgment in conformity with this order. Explanation: Defendant Kingspan Insulated Panels, Inc. (“Kingspan”) moves for judgment on the pleadings as to the First Amended Cross‐Complaint (“FACC”) brought by Style‐Line Construction, Inc. (“Style‐Line”). A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired, and so the rules governing demurrers apply....

Excerpt: ...and the federal court denied the motion as to the state law claims. (See Defendants' Exhibit U, Order of United States District Court for the Eastern District of California dated August 30, 2017.) In its order, the District Court expressly found that there were triable issues of material fact with regard to the state law wrongful death cause of action, and thus denied summary adjudication of that claim. (Order, pp. 21:19 ‐ 22:23.) The District ...

Excerpt: ...40,000. Explanation: 1. Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed settlement.” Subsection (h) states: “If the court approves the settlement agreement after the final approval hearing, the court must make and enter judgment. The judgment must include a provision for the retention of the court's jurisdiction over the...

Excerpt: ...e to amend as to the claim alleged under the Information Practices Act only. Any amended pleading must be filed within 30 days of the hearing. Plaintiff is allowed to appear through Court Call. Explanation: The Court incorporates its ruling of November 19, 2019. The demurrer on the ground of Code of Civil Procedure section 430.10, subdivision (d), is sustained for the same reasons it was sustained last time. Plaintiff's First Amended Complaint (F...

Excerpt: ...pects. In sum, the costs are reduced from $30,065.77 to $28,650.06, a total reduction of $1,414.94. Explanation: A motion to strike or tax costs must be directed to particular items in the Memorandum of Costs and state why each is objectionable. Additionally, the challenged items must be referred to in the same order in which they appear in the Memorandum of Costs. (Cal. R.Court 3.1700, subd.(b)(2).) Where the reasonableness of a particular item ...