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

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

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

Excerpt: ... has made may petition the court to confirm, correct or vacate the award." (Code Civ. Proc., S 1285.) "A response to a petition under this chapter may request the court to dismiss the petition or to confirm, correct or vacate the award." (Code Civ. Proc„ S 1285.2.) "If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordan...

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

Excerpt: ... of Civil Procedure section 877.6, “[a]ny party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co- obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877...

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

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

Excerpt: ...§ 437c, subd. (c).) In moving for summary judgment, a “defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action … cannot be established, or that there is a complete defense to the cause of action.” (§ 437c, subd. (p)(2).) If the defendant does not meet that burden, the motion must be denied, even if the plaintiff has not opposed it adequa...

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

Excerpt: ...) A Second Amended Complaint may be filed within 10 days of service of the order by the clerk. All new allegations shall be in boldface type. Explanation: Plaintiffs Larry and Johnathan Norton essentially allege that they were duped into investing in a Ponzi scheme run by defendant Richard Ramirez and JMJ Capital Group. They were encouraged to invest in the scheme by defendant Steve Hirata. The First Amended Complaint (the FAC) alleges the follow...

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

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

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

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

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

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

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

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

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

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

Excerpt: ... fifth, sixth, eighth and ninth causes of action of the Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To sustain the demurrer of defendant Jennings to the entire Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) In the event a timely request for oral arg...

Excerpt: ... file a Notice of Related Case in the Los Angeles Superior Court Case Number 20STCV33816 or submit proof that such has already been filed. Explanation: Misjoinder of Parties Code of Civil Procedure section 389 articulates when a nonparty must be joined to the action. A person is a necessary and indispensable party where 1) complete relief cannot be obtained in the nonparty's absence, 2) the nonparty claims an interest relating to the subject of t...

Excerpt: ...st Amended Complaint are to be set in boldface type. Explanation: Demurrer to the First Cause of Action for Breach of Contract Defendant demurs to the first cause of action for breach of contract on the grounds that the Complaint fails to state facts sufficient to constitute a cause of action. “A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorp...

Excerpt: ...isappropriated. (Code Civ. Proc. § 2019.210.) Plaintiff is ordered to file a notice of compliance no later than 20 days from the date of this order, with time to run from the service of this minute order by the clerk. To deny plaintiff's motion for an order compelling responses to request for production of documents. (Coder Civ. Proc. § 2031.300.) Explanation: Defendants' Motion for Protective Order Defendants seek a protective order directing ...

Excerpt: ...file an undertaking, in the amount of $50,000, under Code of Civil Procedure section 1030. Section 1030, subdivision (a), states, When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action o...

Excerpt: ...ed in time and to records for only the body parts/issues of which plaintiff complains. Plaintiff appears to have placed every conceivable form of economic recovery at issue in her Complaint. In her Complaint, page 3, at paragraph 11, every box is checked for damages and plaintiff adds: “ALL ECONOMIC AND NON‐ECONOMIC DAMAGES KNOWN AND UNKNOWN TO PLAINTIFF AT THIS TIME, BUT SUBJECT TO PROOF AT THE TIME OF TRIAL; PLUS STATUTORY INTEREST.” Both...

Excerpt: ...fendants Carolina Transportation, Inc., Carolina Logistic, Inc., and Dispatch & Services, Inc. (collectively “Carolina defendants”) move to quash service of summons for lack of personal jurisdiction over them. The Carolina defendants are each incorporated in the State of North Carolina and each has its principal place of business in North Carolina. (Hoover Decl., ¶ 3.) Additionally, the Carolina defendants have no offices or employees in Cal...

Excerpt: ...rvice by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Defendant demurs to plaintiff's Complaint, which alleges a single cause of action for medical malpractice. Defendant contends that the cause of action is barred by the applicable statute of limitations under Code of Civil Procedure section 340.5. The function of a demurrer is to test the sufficiency of a plaintiff's pleading by...

Excerpt: ...d, Inc., dba Re/Max Gold. (Code Civ. Proc., § 4301.10, subd. (e).) NorCal shall file its Answer to the FAC within 10 days of service of the minute order. Explanation: In this action, plaintiff sues all involved in a real estate transaction in which Ms. Lewis purchased the “Subject Property,” and intended to purchase the assisted living facility business (“Assisted Living Business”) operated on that property. It appears that Ms. Lewis suc...

Excerpt: ...omplaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code of Civil Procedure §430.10, subd. (e); Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 841–842.) In making this determination, the court may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact...

Excerpt: ...n boldface type. Explanation: The court's tentative ruling for defendant's demurrer to the third amended complaint was to sustain the demurrer without leave to amend. Upon plaintiff counsel's vehement representations at oral argument that curative facts could be plead, the court modified its tentative ruling and granted leave to amend as to the first cause of action (breach of contract) only. In particular, at oral argument, counsel argued that a...

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 c...

Excerpt: ...xtinguishment of the deed of trust because they have now paid off the loan in full, they have not presented any admissible evidence to support their asserted facts. The only evidence submitted in support of the application is the declaration of plaintiffs' counsel, who does not appear to have personal knowledge of the facts to which he testifies. (See declaration of Ian Brady filed on March 14, 2022.) Therefore, his statements regarding the owner...

Excerpt: ...alescent Hospital v. Sup. Ct. (Sims) (2006) 143 Cal.App.4th 1558, 1562‐63.) Defendant's motion for protective order prohibiting Ms. Hare's deposition or, in the alternative, limiting the scope of Ms. Hare's deposition is rendered moot. Explanation: Defendant seeks a protective order prohibiting the deposition of Ms. Hare or, in the alternative, limiting the scope of Ms. Hare's deposition to identifying the sources of information contained in he...

Excerpt: ... the clerk's service of this order. New or different allegations in the second amended complaint are to be set in boldface type. Explanation: General Demurrer A party may file a general demurrer on claims that “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [“‘A demurrer can be utilized where the complaint itself is inc...

Excerpt: ... the motion to strike the “but not limited to” language. Plaintiffs are to file a Second Amended Complaint consistent with this ruling. Such pleading shall be filed within 10 days from the date of service of the minute order. Caltrans shall file its Answer to the Second Amended Complaint no later than 10 days after service of the Second Amended Complaint on it. Explanation: There are differences in the named plaintiffs from the original Compl...

Excerpt: ...ing, grief, anxiety, humiliation and/or emotional distress. To exclude from the description of the subpoenas issued to each of Dignity Health Mercy Medical Center and Clovis Community Medical Center employment documents pertaining to manager/supervisor files, performance evaluations and reviews, and disciplinary actions related to plaintiff. Explanation: Plaintiff seeks to quash subpoenas seeking certain records from Kaiser Fresno Medical Center,...

Excerpt: ...g or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. 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 or proceeding in other particulars...” “‘Code of Civil Procedure section 473, whi...

Excerpt: ... 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. The parties are ordered to file a declaration from the administrator as to the payout and amount of uncashed checks no later than October 17, 2023. As required by California Rules of Court, rule 3.771(b), notice of the judgment is to be given to the class. Notice may be given by an insert with the se...

Excerpt: ...order. Explanation: Defendants Zisha Lipschutz and Esti Lipschutz demur generally and specially to the tenth through fifteenth causes of action1 , contending that there are no facts alleged to show these individual defendants are the alter egos of entity defendants Eminence Healthcare Services, LLC (EHS) and Centuri Health Ventures, LLC (Centuri) and that these causes of action are uncertain because they are pled against “all defendants” but ...

Excerpt: ...sponses to Special Interrogatories, Set One, as to Requests Nos. 14, 40‐45, and 53. To order GM to provide further responses to Request for Production of Documents, Set One, as to Requests Nos. 1, 6‐9, 15, 16, 24, 25, and 27. To deny the motion as to Request for Production of Documents, Set One, as to Requests Nos. 3, 17, 31 and 33. GM shall serve verified supplemental responses without objections within 20 days of the date of the service of ...

Excerpt: ...�[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, 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....

Excerpt: ...ctions 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 the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” The purpose for consolidation is to promote trial convenience and economy by avoiding duplication of procedure particularly in t...

Excerpt: ...t al. for Attorneys' Fees and Costs by Plaintiff Westlands to Tax Memorandum of Costs Filed by Defendant North Coast River Alliance Tentative Ruling: To grant the motion of defendants County of San Joaquin and County of Trinity for an award of attorneys' fees against plaintiff Westlands Water District (Westlands) in the amount of $197,163.75. To grant the motion of defendants California Water Impact Network (CWIN) et al. for an award of attorneys...

Excerpt: ...nd 20 of plaintiff's Request for Production of Documents, set one within twenty (20) days from the date of this order. To grant the request for monetary sanctions in the amount of $2,560, payable no later than twenty (20) court days from the date of this order, with the time to run from the service of this minute order by the clerk. Explanation: Discovery requests are generally afforded liberal construction. (See Code of Civ. Proc., § 2017.010; ...

Excerpt: ...f the accident, or on any other date. Therefore, she contends that plaintiff Felix Guevara, who was a passenger in the car and who was injured when Ibrahim allegedly drove the car in a negligent manner and caused it to roll over, cannot recover against her under a negligent entrustment theory or under the vehicle owner liability statute, Vehicle Code section 17150. Under Vehicle Code section 17150, “[e]very owner of a motor vehicle is liable an...

Excerpt: ...ossComplaint. The time to file such pleading will run from service by the clerk of this minute order. All new allegations in the Second Amended Cross‐Complaint are to be set in boldface type. Explanation: First American demurs to Cross‐Complainant's first and only cause of action for professional negligence, contending that she fails to allege facts sufficient to state a valid claim. In particular, First American contends that the First Amend...

Excerpt: ...tion against defendant alleging five causes of action: (1) right of possession of personal property; (2) fraud; (3) conversion; (4) declaratory relief; and (5) injunctive relief, regarding a 1926 Ford Phaeton convertible. Plaintiff now seeks summary judgment of his Complaint or, in the alternative, summary adjudication of the claims that “Defendant converted, and is in wrongful possession of Plaintiff's property, and Plaintiff is entitled to it...

Excerpt: ...laintiff and defendant Central California Faculty Medical Group, Inc. (“CCFMG”) on 3/22/22. Southwest shall bates stamp all documents responsive to the subpoena served on 2/8/22, and within 20 days of service of the order deliver the documents to CCFMG. CCFMG may then apply the “Attorneys' Eyes Only” designation to any documents it contends include trade secrets or other protected confidential information. CCFMG shall produce all document...