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

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: ...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...