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

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...