Excerpt: ...urally defective in two respects. First, none of the exhibits supporting the motion are authenticated. Maria Lampasona in her declaration purports to authenticate around 18 exhibits attached to her declaration. But the declaration includes no exhibits or attachments. SCCCD separately filed a volume of evidence, but the declaration does not reference such a filing. None of the exhibits are actually authenticated. Second, and most significantly, th...

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: ... Practices Act only. Any amended pleading must be filed within 30 days of the hearing. Oral argument for this matter at 3:30 p.m. on May 7, 2020 in this Department. Plaintiff is ordered 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(d) is sustained for the same reasons it was sustained last time. Plaintiff's FAC rests a claim u...

Excerpt: ...s now dismissed those claims with prejudice. (Ibid.) To deny the CDCR's motion as to the fourth cause of action, as moot since that cause of action has been dismissed with prejudice. (Ibid.) To grant the CDCR's motion as to the first, second, third, and fifth causes of action, and McElroy's motion as to the fifth cause of action. (Ibid.) Defendants shall submit a proposed judgment consistent with this order for the court's signature within 10 day...

Excerpt: ...tiff's motion for summary judgment from June 2, 2020 to July 19, 2020 at 3:30 p.m. in Dept. 502. If defendant desires to move for summary adjudication, or summary judgment concerning the new eighth and ninth causes of action, it may do so in two ways. It may file a Supplemental Notice of Motion, Memorandum of Points and Authorities, Separate Statement, and any new evidence, relating to the eighth and ninth causes of action only, to be heard on Ju...

Excerpt: ...he entity operating as Jack's Resort) and its members, officers, employees and agents. One of those defendants is Susan Lanier, a registered unlawful detainer assistant, who received rent payments on behalf of S.S.M.A. as its agent and had a lead role in trying to unlawfully evict the plaintiffs. (Complaint ¶¶ 7, 24.) Lanier also prepared and served the notices of evictions that the plaintiffs received. (Complaint ¶ 87.) On the notices Lanier ...

Excerpt: ...'s December 12, 2019 Minute Order adopting the tentative ruling stated: “Plaintiff's prior motion for pre‐appeal fees is hereby set for Tuesday, February 4, 2020 at 3:30 p.m. in Department 502.” The order did not authorize additional briefing. Accordingly, the court disregards all documents on the issue of pre‐appeal attorney's fees filed by the parties after December 12, 2019 and awards no fees for the preparation of those filings. CPRA ...

Excerpt: ...ion, as well as based upon the economic loss rule and the statute of limitations. Defendant also moves to strike punitive damages. For the reasons provided below, the court does not find defendant's arguments compelling. I. Demurrer based upon Code of Civil Procedure section 430.10, subdivision (e) a. Cause of action four: fraudulent inducement – concealment To state a claim for concealment, plaintiff must allege: (1) defendant concealed or sup...

Excerpt: ...ee of Plaintiff Hanford Community Hospital and was employed to perform laboratory testing. According to the papers, during the course of a deposition in an unrelated matter, Defendant admitted to taking patient records home, as well as e‐mailing PDF copies of patient records between 2015 and the present. He saved this information to his home computer and other devices. He also acknowledged that he did not have Plaintiff's permission or authoriz...

Excerpt: ...his Court can exercise jurisdiction over defendant LG Chem, Ltd. The hearing will take place at 3:30 p.m. on Tuesday, May 5, 2020 in Department 502. Any supplemental briefing must be filed by Plaintiff no later than April 21, 2020. Any objections or reply must be filed no later than April 28, 2020. Explanation: Specially‐appearing defendant LG Chem, Ltd. (“LG Chem”) moves to quash the service of summons on it by Plaintiff Eric Fletcher, ind...

Excerpt: ...17.1 as to RFA nos. 10 and 12‐15, and Request for Production of Document nos. 36‐39, produce all responsive documents, and supplement the privilege log. (Code Civ. Proc. §§ 2030.300(c); 2031.310(c); Code Civ. Proc. § 2033.290(c).) Explanation: Initially, the court notes that all requests for judicial notice are granted, with the exception of Infinity's Exhibit 1 (insurance policy), due to lack of authentication. Requests for Admission Infi...

Excerpt: ...e summons, the government would have a valid defense, preventing that interested party from further challenging the government's proposed action.” San Diego v. San Diegans for Open Government (2016) 3 Cal. App. 5th 568, 579. “The validating statutes should be construed so as to uphold their purpose, i.e., ‘the acting agency's need to settle promptly all questions about the validity of its action.” McLeod v. Vista USD (2008) 158 Cal. App. ...

Excerpt: ...l run from service of the order by the clerk. To grant the motion to strike the prayer for punitive damages. (Code Civ. Proc. § 435, 431.10(b).) To deny the motion to strike the attachments to the Complaint. Explanation: On July 22, 2019 plaintiff filed his Complaint against defendant John Emerzian. The Judicial Council form complaint indicates that the action is for medical malpractice and defamation. There are no cause of action attachments. I...

Excerpt: ... Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.) Albeit, the running of the statute must appear “clearly and affirmatively” from the face of the complaint. It is not enough that the complaint might be time‐barred. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324‐325; Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.A...

Excerpt: ...eave to amend. Plaintiffs will have ten (10) court days from the date of service of this order to file a Second Amended Complaint setting forth a more thorough factual basis for the punitive damages, if they can. If Plaintiffs do not file a Second Amended Complaint, then Defendant will have twenty (20) court days from the service of this order to file a response to the First Amended Complaint. Any new or amended allegations are to be set forth in...

Excerpt: ... manager for the Fresno Police Department (FPD) – is relevant to establishing his qualification to give evidence. Objection 2 was Lt. Rowe's statement attesting that FPD provided training to its officers on its pursuit policy on at least an annual basis. The objection was essentially to the sufficiency of this evidence to prove the required fact, and not to the statement's admissibility. Objection 3 is to Lt. Rowe's statement on information and...

Excerpt: ...rder, a proposed judgment consistent with the court's summary judgment order. Explanation: “[S]ummary judgment law … may be reduced to, and justified by, a single proposition: If a party moving for summary judgment in any action … would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then [it] should prevail on summary judgment.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 8...

Excerpt: ...miss the complaint under Code of Civil Procedure section 581, subdivision (f)(2), which states, “The court may dismiss the complaint as to that defendant when: ... after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” (Code Civ. Proc., § 581, subd. (f)(2).) “The decision to dismiss an action under section 581, subdivisi...

Excerpt: ...nd file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.” (Cal. Rules of Court, rule 3.1113, subd. (a).) “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the sta...

Excerpt: ... the existence of an arbitrable controversy, rather than mere conclusions, and must allege not only the existence of the arbitration agreement but “also that the opposing party refuses to arbitrate the controversy.” (Strauch v. Eyring (1994) 30 Cal.App.4th 181, 186; see also Spear v. California State Auto Assn. (1992) 2 Cal.4th 1035, 1041].) Whether an Agreement Exists The party seeking to compel arbitration bears the burden of proving the ex...

Excerpt: ...es, with leave to amend. Explanation: Demurrer “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here...

Excerpt: ...ered to prepare a judgment within ten (10) court days of this order. Note‐ in the event that oral argument is requested, it will be heard at 3:30 p.m. on Thursday, March 19, 2020 in Department 502. Explanation: Petitioner filed his petition on June 2, 2014. Petitioner filed an amended Petition on April 26, 2019. The Amended Petition describes itself as an “Amended Petition for a Writ of Mandate to Discharge Civil Commitment Based on Lack of J...

Excerpt: ...failure to state facts sufficient to constitute a cause of action as to the individual plaintiffs. (Code Civ. Proc., § 430.10, subd. (e).) To sustain the demurrer to both the successor claim as well as the individual plaintiffs to the seventh cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To grant leave to amend. To deny the motion to strike and grant in part, as discussed below. (Code Civ. Proc., §§ 435, 436.) To grant leave to amen...

Excerpt: ...ns are overruled. Explanation: Plaintiff's Evidentiary Objections The job description is not irrelevant, and Jessica Sims' personal knowledge sufficient to authenticate this document can be readily inferred from the fact that she serves as Supervisor of the “Manager, Cash Applications” position. As for the remaining objections, defendant has offered the objected‐to statements as to what other employees said about plaintiff for the nonhearsa...

Excerpt: ... Private Attorney General Act (“PAGA”), pursuant to Code of Civil Procedure section 438(b)(2) and (b)(3)(B)(ii). A case management conference will occur at the same time. Explanation: 1. PAGA CLAIM AND SERVICE ISSUE “An employee plaintiff suing, as here, under [PAGA], does so as the proxy or agent of the state's labor law enforcement agencies.” Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal. App. 5th 667, 674. For that re...

Excerpt: ...Tentative Ruling: To overrule the demurrer to the Second and Fourth Causes of Action. To sustain the demurrer to the Third Cause of Action without leave to amend. Unless Plaintiffs ask for oral argument and offer a specific factual basis for their inability to specify who spoke the allegedly fraudulent statement, to sustain the demurrer to the Fifth Cause of Action without leave to amend. Defendants shall have ten (10) court days in which to file...

Excerpt: ...e; and Kaiser Permanente Hospital Fresno – films. To deny plaintiffs' motion to quash the subpoena directed at American Ambulance. To deny plaintiffs' request for a “first look.” To impose sanctions against defendants, in the amount of: $430. (Code Civ. Proc., §§ 2023.010, subds. (a) & (h), 2023.030, subd. (a).) Sanctions must be paid by defendants to the Law Office of Frank M. Nunes within 30 days after service of this order. Explanation...

Excerpt: ... cause of action. (Code Civ. Proc. §437c(c).) To grant Defendant/Cross‐Complainant JMA's motion for summary adjudication as follows: Cross‐Defendant Alamillo Rebar, Inc., has an immediate duty to defend JMA in the instant matter; Alamillo's duty to defend arose on the date of tender; and JMA is entitled to reimbursement of costs and fees paid from the date of tender to present; and to deny as to Alamillo's duty to indemnify JMA. (Code Civ. P...

Excerpt: ...23.010.) Explanation: Because plaintiff identified in her interrogatory response Barbara J. Morlan, M.D., as a health care physician who performed a consultation or examination of plaintiff related to “symptoms of sleeplessness,” SCCCD subpoenaed all of plaintiff's medical records from Dry Creek Medical Group, the practice group identified with the address provided for Dr. Morlan. Plaintiff moves to quash the subpoena. Prior to filing this mo...

Excerpt: ...dants' facility used an electronic call button in their rooms or apartments, and how long it took for defendants' staff to respond to such calls, for the period from January 1, 2016 to February 1, 2017. To deny defendants' motion for a protective order barring disclosure of the requested information outside the scope of the litigation. Explanation: Defendants move to quash the subpoena under Code of Civil Procedure section 1987.1, which states, I...

Excerpt: ...Explanation: The California Public Records Act (“CPRA”) is contained in Chapter 3.5 of Title 1 of the Government Code. (Gov. Code, § 6251.) The California Supreme Court observed that the CPRA “was enacted for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies.” (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425.) Specifically, section 6259, subdi...

Excerpt: ...oceeding taken against him or her as a result of mistake, inadvertence, surprise, or excusable neglect, where the application for relief is made within six months of entry of the judgment, order, or other proceeding. (Code Civ. Proc. §473(b).) Application for relief may be based on either (1) an attorney affidavit of fault, in which event relief is mandatory; or (2) declarations or other evidence showing mistake, inadvertence, surprise or excusa...

Excerpt: ...permits a motion to quash a subpoena. It does not fall under the statutes which require a pre‐trial discovery request. The entirety of Code of Civil Procedure sections 2020.410 – 2020.440 do not discuss motions to compel compliance or to quash. The word “motion” does not appear. Fresno Superior Court Local Rule 2.1.17 applies solely to motions made under the sections listed, thus no pre‐trial discovery conference is required. Likewise, ...

Excerpt: ...subdivision (d), aka Song‐Beverly, provides: “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 §...

Excerpt: ...did not met statutory requirements, and the Court exercises its discretion to consider both. Code of Civil Procedure section 403 states: “A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards ...

Excerpt: ...1942) 19 Cal.2d 570, 576‐578; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300; Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97.) For attorney misconduct to support equitable relief due to extrinsic mistake, there must have been “neglect of an extreme degree amounting to positive misconduct” by counsel, rather than mere inexcusable neglect, sufficient to obliterate the attorneyclient relationship and thereby preclude an...

Excerpt: ...uld be filed by March 31, 2020, with the final approval hearing set for 3:30 p.m. on April 21, 2020 in this Department. Explanation: 1. CLASS CERTIFICATION a. 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. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Ne...

Excerpt: ...in judgment in the action.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.) The defendant need only show that it is reasonably possible they will win. (Id. at 1432 [noting that burden is satisfied through demonstration of an arbitration award, the arbitrator's letter and police report]; see also Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914 [arbitration award sufficient demonstration of reasonable possib...

Excerpt: ...s that she can make the requisite evidentiary showing under Code of Civil Procedure section 425.13, then she may bring a motion to amend the complaint to add her prayer for punitive damages against defendant Clark. Explanation: Demurrer: Defendant contends that plaintiff has not stated a valid claim for assault or battery because she consented to the medical procedure that was performed on her. However, plaintiff has alleged that she withdrew her...

Excerpt: ...ter Community College District's (“SCCCD”) motion for protective order regarding the deposition of Chancellor Parnell, and impose $1,050 in monetary sanctions against plaintiff and in favor of SCCCD, to be paid to SCCCD's counsel within 30 days of service of the order by the clerk. Explanation: Set for November 13 are three motions concerning depositions of “apex witnesses” for SCCCD: Fresno City College Campus President Carole Goldsmith,...

Excerpt: ...son Most Knowledgeable and custodian of records. Plaintiffs' Notice of Deposition identifies 39 matters for examination and 42 categories of documents to be produced. Plaintiffs' Notice unilaterally set the deposition for 7/25/19. On 7/1/19 Plaintiffs requested alternative dates by 7/19/19 if GM and its counsel were not available on the unilaterally chosen date. (Morse Dec. Exh. B). There was some communication about when the deposition would tak...

Excerpt: ... cases for the proposition that declaratory review of an administrative decision is not allowed. The Legislature disagrees where the decision is to adopt a regulation. The rule for scope of judicial review of the validity of regulations is set forth at Government Code sections 11350‐11350.3. Section 11350(a) states: “Any interested person may obtain a judicial declaration as to the validity of any regulation or order of repeal by bringing an ...

Excerpt: ...he motion to strike specifications 2, 4 and 5, without leave to amend. To deny the motion to strike specifications 1, 3, and 6. Defendants shall file their answer to the First Amended Complaint within 10 days of the clerk's service of this minute order. Explanation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider ma...

Excerpt: ...parties argue over whether or not the May 2019 agreement was rescinded. The implication is that if the May agreement was rescinded, the February 2019 agreement is revived and can now be enforced pursuant to section 664.6. However, the evidence shows that the May 2019 agreement functioned as a novation to the February 2019 agreement. (See Civ. Code § 1531, subd. (1) [a novation is made by the substitution of a new obligation between the same part...

Excerpt: ...agreement, and that even if it is determined valid, defendants waived their right to arbitration when they persuaded plaintiffs to forgo the Labor Commissioner proceeding. The court finds plaintiffs' argument regarding waiver persuasive. On a procedural note, defendants argue that this court should not consider plaintiffs' opposition because plaintiffs were required to respond to their petition within 10 days, pursuant to Code of Civil Procedure ...

Excerpt: ... Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564; Congleton v. Natl. Union Fire Ins. Co. (1...

Excerpt: ...on appears in the Court's files. The parties appear to concede that the documents at issue are subject to federal privacy protections. The question is whether the relevance identified by Defendants is sufficient to pierce that privacy. As noted by Defendants, the privacy right is balanced against the need for the evidence in question. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Defendants have identified two separate items of discover...

Excerpt: ...ix months of the accrual of the cause of action. (Gov't Code. §911.2.) The parties do not dispute that the claim was filed late. (See also Gov't Code § 945.3 (claim‐filing requirement is not tolled while criminal charges are pending).) An application to present a late claim must be sent within one year of the accrual of the cause of action. (Gov't Code §911.4.) Respondent does not dispute that the application for leave to file a late claim i...

Excerpt: ...d Complaint are to be set in boldface type. To overrule the demurrer. The answer shall be filed within 20 days of the date of this order unless a Second Amended Complaint is timely filed. Explanation: Motion to Strike Allegations of fraud are not improper in claims of breach of contract against a public entity. (see E.H. Morrill Co. v. State (1967) 65 Cal.2d 787, 794.) However, there are no supporting facts of the claims which are the subject of ...

Excerpt: ...tion must be provided subject to the protective order on file. The further responses are to be served no later than November 7, 2019. To grant sanctions, but to reduce the amount to $885.00, payable by defendant and his counsel by November 7, 2019. Explanation: Interrogatories Nos. 6 and 8 seek the addresses of banks and other financial institutions where defendant Lisenko has had accounts in the past 13 years. Interrogatories Nos. 7 and 9 seek a...

Excerpt: ...ovided that both plaintiff and the dealership “agree that any claim, dispute, and/or controversy that either party may have against one another…arising from, related to, or having any relationship or connection whatsoever with [Plaintiff] seeking employment with, employment by, or other association with the [Dealership], whether based on tort, contract, statutory, or equitable law, or otherwise…shall be submitted to and determined exclusive...

Excerpt: ...endant may move to strike allegations from a pleading in two situations: (a) the allegation is “irrelevant, false, or improper” or “superfluous” or “abusive” and (b) where the “pleading was not drawn in conformity with the laws of the state or a court rule.” (Code Civ. Proc. § 436(a), (b).) Paragraphs 65.a), 65.i), 70, 75 and 78 These allegations are part of the fifth cause of action for bad faith against Infinity on behalf of Ca...

Excerpt: ...ers, mental health rehab specialist, PSCs, caseworkers, personal service coordinators, education and mental health specialists, direct service aids, mental health professionals – unlicensed (same as mental health therapist – licensed), and who were provided with cell‐phones or radio communication devices or cell phone stipends by Turning Point. To also grant certification to a subclass of all such persons who separated from employment at an...

Excerpt: ... Co. (2001) 25 Cal.4th 826, 853. If a defendant makes this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (CCP § 437(c), subdivision(p)(2).) In a summary judgment motion, the pleadings determine the scope of relevant issues. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) A defendant need onl...

Excerpt: ...ories, Request for Production of Documents, and Requests for Admissions, and for Monetary Sanctions Tentative Ruling: To grant plaintiff's motions to compel defendants Auto USA and Tidalwave Finance Corporation to serve verified responses without objections to plaintiff's form and special interrogatories and request for production of documents. (Code Civ. Proc. §§ 2030.290; 2031.300.) Defendants shall serve verified responses without objections...

Excerpt: ...nd Sandy's Place LLC (for purposes of this motion, “owner defendants”) are owners and proprietors of a bar known as Sandy's Place. Plaintiff alleges on information and belief that owner defendants knew, or in the exercise of ordinary care should have known, that defendant George Gonzales “was a person of violent, vicious, and dangerous character and disposition while intoxicated, and a person whose presence in Defendants' bar while into...

Excerpt: ...tly, in the Complaint, Plaintiff seeks specific performance of a particular contract. But that contract is only between them and Defendant Church. Bell is not a party to that purchase agreement. The judgment seeks to require Bell to sign papers to transfer property to Plaintiff. Plaintiff has cited to no case authority that entitles a plaintiff to specific performance of a contract against a non‐signatory. It seems likely that Plaintiff is seek...

Excerpt: ...d ten days leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanation: In the case at bar, plaintiff alleges four causes of action: (1) breach of contract; (2) wrongful termination – age discrimination; (3) wrongful termination – gender discrimination; and (4) disparate treatment. Defendant demurs to each cause of action based upon Code of Civil ...

Excerpt: ...ainst defendants Young, Clarke, and Podratz. (Ibid.) Defendants shall submit a proposed judgment consistent with this order within 10 days of the date of service of the order. Explanation: First, the individual defendants move for summary adjudication of the discrimination, retaliation, and failure to prevent discrimination and retaliation claims against them on the ground that individuals cannot be held liable for discrimination or retaliation u...

Excerpt: ...to Frazer, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To sustain the demurrer as to the eighth cause action, for failure to state facts sufficient to constitute a cause of action as to both Frazer and Matthews' estate. (Ibid.) To overrule the demurrer as to the ninth cause of action. To deny the motion to strike and grant in part, as discussed below. (Code Civ. Proc. §§ 435, 43...

Excerpt: ...ction is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted wi...

Excerpt: ...s 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 being made f...

Excerpt: ... damages and non‐economic, emotional distress damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) Plaintiff shall serve and file his first amended complaint within twenty days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: First, the entire complaint is uncertain in that plaintiff has not alleged clearly which defendants committed which wrongful acts against him, or how their ac...

Excerpt: ...e 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 th...

Excerpt: ...lly and Singh's motion to strike the request for attorney's fees, and to deny as to the remaining requests. (Code Civ. Proc. §436.) Explanation: Demurrer Special demurrer Special demurrers are disfavored, “and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; Merlino v. West Coast Macaroni Mfg. Co. (1949) ...

Excerpt: ...e granted if the manager class were limited to manager‐level employees who did not met the salary test set forth in Title 8, California Code of Regulations, section 11070, for exempt status. It could also be met for the hourly employees. All claims at issue could be certified as class claims but for the reimbursement claim, for which no policy is shown, and if that claim were limited to cell phone usage. The record does not support certificatio...

Excerpt: ...nd to comply with section 430.41 prior to the potential filing of any future demurrer. Because Defendant Self has been dismissed from the case, the demurrer on Defendant Self's behalf is overruled as moot. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior C...

Excerpt: ... Kaur Bains, BKSG Transportation, LLC, Karnvir Singh, AM2 Logistic, Inc., shall provide verified responses to plaintiff's Requests for Production, Set One without objection within 10 days of the clerk's service of this minute order. To order defendants Mawinder Kaur Bains, BKSG Transportation, LLC, Karnvir Singh, AM2 Logistic, Inc., jointly and severally, to pay to plaintiff Julie Su, Labor Commissioner for the State of California, Department of ...

Excerpt: ...te of service of this order. Explanation: Plaintiff has proved up the basic elements of his breach of contract claim, including the existence of a contract between the parties, his performance under the agreement, defendant's breach, and resulting damages. (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.) Plaintiff's evidence shows that he entered into a written contract with defendant in which plaintiff was to provide assistance in obtaining unpa...

Excerpt: ...n.” (Code Civ. Proc. § 1033.5, subd. (c)(4).) All allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and they must be reasonable in amount and actually incurred. (Code Civ. Proc. § 1033.5, subd. (c)(1), (2) and (3).) On motion to tax costs, the initial burden depends on the nature of the costs that are being challenged. [T]he mere filing of a motion to ...

Excerpt: ...court within 5 days of the clerk's service of this minute order. Explanation: In ruling on a motion for summary judgment or summary adjudication, the court must “consider 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 de...

Excerpt: ...fendant Richard Greene has moved to vacate and set aside the default entered in this case on February 15, 2019. Defaults are disfavored and any doubts existing as to setting aside a default should be resolved in favor of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. (Elston v. City of Turlock (1985) 38 C...

Excerpt: ... of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 (superseded by statute on other grounds as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64).) Defendants make their motion under Code of Civil Procedure §473, subdivision (b)...

Excerpt: ...nation: Respondent seeks leave to amend its answer to assert a fifth affirmative defense, that being a statute of limitations defense. Judicial policy favors resolution of cases on the merits, and thus the court's discretion as to allowing amendments will usually be exercised in favor of permitting amendments. This policy is so strong, that denial of a request to amend is rarely justified, particularly where “the motion to amend is timely made ...

Excerpt: ...ropriate procedure for determining the truth of disputed facts.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113–114, internal citations and quotation marks omitted.) It is error to sustain a demurrer where plaintiff “has stated a cause of action under any possible legal theory. In assessing the sufficiency of a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implicati...

Excerpt: ... order. Explanation: Standing Here, defendant JPMorgan Chase Bank argues that plaintiff lacks standing to challenge the foreclosure proceedings because he does not (and cannot) allege that he has a relationship with Chase. In support of this argument, defendant JPMorgan Chase Bank cites to the following cases: (1) Mega Life & Health Ins. Co. v. Super. Ct. (Mega Life) (2009) 172 Cal.App.4th 1522, 1528‐32; (2) Hatchwell v. Blue Shield of Cal. (Ha...

Excerpt: ... by law, court records are presumed to be open.” Subpart (d) requires very specific findings by the Court prior to allowing a record filed in connection with a non‐discovery dispute to be sealed. Same states: “The Court may order that a record be filed under seal only if it expressly find facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest support...

Excerpt: ...d. Defendant Taja Investments, LLC, is granted 10 days' leave to file its answer to the complaint, with the time to run from service by the clerk of the minute order. Explanation: Standing to Sue Defendant begins by arguing that plaintiff does not have legal capacity to sue, and refers to Code of Civil Procedure section 430.10, subdivision (b), but then it argues that plaintiff is not a real party in interest and therefore lacks standing, with ci...

Excerpt: ...order. Explanation: Defendant Certain Underwriters at Lloyd's London (hereinafter “Lloyd's”) has met its burden of presenting evidence showing that it is entitled to summary judgment of the two remaining causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing. Plaintiff has alleged that defendant breached the insurance contract it issued to plaintiff when it denied coverage for the accident th...

Excerpt: ...rcing a judgment. . . .” The court shall make an order allowing or disallowing the costs “to the extent justified under the circumstances.” (Code Civ. Proc., § 685.040, subd. (c).) Code of Civil Procedure section 685.070, subdivision (a), authorizes recovery of five categories of statutory costs for enforcing a judgment. Section 685.070, subdivision (b) provides, in relevant part: “Before the judgment is fully satisfied but not later tha...

Excerpt: ...judgment order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiff cannot establish one or more elements of his causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(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 mus...

Excerpt: ...th of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) He...

Excerpt: ... of the class. However, the court intends to reduce the amount of the class representative's incentive compensation to $6,500. The plaintiffs shall provide an order for final approval of the settlement and judgment within 10 days of the date of service of this order. If oral argument is requested, it will be heard on August 7, 2019 at 3:30 p.m. in Department 502. Explanation: Certification of the Class: The court has already granted provisional c...

Excerpt: ...esponding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible. If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propoundi...

Excerpt: ...rer to the seventh cause of action without leave to amend. To grant the motion to strike specifications 4‐11, with leave to amend. To strike the first cause of action. To deny the motion to strike the second cause of action and specifications 1‐3. Plaintiff shall file and serve a First Amended Complaint within 15 days of the clerk's service of this minute order. New allegations shall be in bold type font. Explanation: Demurrer: “ ‘We trea...

Excerpt: ...ays of the date of this order. All new allegations shall be in boldface. Explanation: Under Code of Civil Procedure section 430.10, “The party against whom a complaint or cross‐complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: .. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As...

Excerpt: ...Fief, who shall redact and produce the application to plaintiff's counsel as set forth below. In the event that oral argument is requested it will be held on Wednesday, July 31, 2019 at 3:30 p.m. in Dept. 502. Explanation: Plaintiff issued a subpoena to CalPERS seeking the following records: A copy of any and all applications for disability retirement submitted by Gary L. Fief with CaIPERS, and the decision of the Administrative Law Judge to Gary...

Excerpt: ...tion until after the twelfth, thirteenth and fourteenth causes of action have been fully resolved in this court. Explanation: Plaintiffs in this action filed a complaint alleging 15 causes of action arising out of two agreements executed with defendants executed on September 20, 2017. Under the Asset Purchase Agreement ("APA"), Defendants were to timely file applications required to assign Plaintiffs' DHCS certifications and were to u...

Excerpt: ...n boldface. If oral argument is requested, it will be heard on July 31, 2019 at 3:30 p.m. in Department 502. Explanation: “ ‘Code of Civil Procedure 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 presenti...

Excerpt: ...measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties . . ..” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are "allowable as costs under Section 1032" when they are "authorized by" either "Contract," "Statute," or "Law." Civil Code section 1717 provides, in ...

Excerpt: ...an action is subject to the anti‐ SLAPP statute: first, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, by demonstrating that the facts underlying the plaintiff's complaint fit one of the categories set forth in section 425.16, subdivision (e); if the court finds that such a showing has been made, it then determines whether the plaintiff has dem...

Excerpt: ...to September 3, 2019. Opposition to both motions must be filed and served no later than 14 calendar days before the new date of the hearing. Any reply must be filed and no later than 5 calendar days before the hearing. Explanation: There is a split of authority as to whether the court has discretion to deny a continuance based on the party's lack of diligence in discovering facts earlier. Some cases have held that, if the party seeking a cont...

Excerpt: ...made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … resulting … default entered by the clerk against his or her client, unless the court finds that the default … was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (CCP §473(b).) The court is a...

Excerpt: ...murrer are defective, as they fail to give adequate notice of the specific ground relied upon in the demurrer or the causes of action being challenged. Under California Rules of Court, Rule 3.1320, subdivision (a), “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross‐complaint, or answer, or to specified causes of action or defenses.” Statutory grounds for demurrer include...

Excerpt: ...ritten agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: …. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same tran...

Excerpt: ...Explanation: On May 1, 2019, Defendants SPOC and Dr. Taylor filed a motion for summary judgment. It was served via hand delivery on the other parties. A statement of nonopposition was filed by the Plaintiff on July 3, 2019. It has been held that the standard of care against which the acts of a physician and other health care providers are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpr...