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: ...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: ... 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: ... 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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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...