Excerpt: ...emedies Act claim. (Civil Code § 1781, subd. (c).) Explanation: Motion for Summary Judgment/Adjudication: Defendant argues that plaintiffs' claims are all barred by the statute of limitations, as plaintiffs purchased the subject car in February of 2010, but they did not file suit until June 5, 2019. Defendant points out that plaintiffs' claims are all subject to statutes of limitations of between two and four years, yet plaintiffs did not file t...

Excerpt: ...ion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the statutory time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Appli...

Excerpt: ...es of action. To grant leave to amend as to the second, third, fifth, and sixth causes of action. To deny leave to amend as to the seventh and ninth causes of action. Plaintiff shall serve and file her second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Second Cause of Action: The second cause of action fails to state a valid claim for breach of the implied covenant ...

Excerpt: ...nc., a suspended corporation; Felix Tiscanero; Fruit Valley Harvest, Inc. dba Fruit Valley Harvesting; and Domingo Eustacio Cruz‐Lopez dba De Cruz FLC, to recover loaned monies made between August and September 2021, in the approximate amount of $500,000. Plaintiffs now seek to attach certain real property and farm products as a provisional remedy. No timely opposition was filed. (Code Civ. Proc. § 484.060, subd. (a).) Preliminary Facts Plaint...

Excerpt: ...reble damages, specifically page 8, lines 9‐11 and the prayer on page 9, line 3, with leave to amend. Plaintiff is granted 10 days' leave to file the Second Amended Complaint. The time in which the FAC can be amended will run from service by the clerk of the minute order. Explanation: Defendant moves to strike the language in the First Amended Complaint (“FAC”) seeking exemplary damages pursuant to California Civil Code, section 3294 and tr...

Excerpt: ...arry Wilmoth, Jr. for the benefit of the Harry Wilmoth Sr. and Doris Wilmoth Trust (“Senior Trust”)1 Plaintiff formed in 2006 between William Van Erickson dba Van Erickson Contractor, Junior, and Roxy Lewis. Van Erickson Contractor had previously been in operation since the 1960s. (Verified Complaint, ¶ 6, 10.) The verified complaint alleges that Junior was the trustee of the Senior Trust, and was acting in his capacity as trustee in securin...

Excerpt: ...n from service by the clerk of the minute order. Explanation: Actual Notice and Proof of Service: Where service of summons has not resulted in actual notice to a party in time to defend the action, the court is empowered to grant relief from a default. (Code Civ. Proc., § 473.5.) Pacific asserts that it had no knowledge of the proceeding until after default was entered against it in July 2021. Plaintiffs purported to serve defendant Pacific with...

Excerpt: ...).) Explanation: Summary Judgment/Adjudication A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The moving party bears the burden of showing the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima faci...

Excerpt: ...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.) “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for ...

Excerpt: ...ge (“FIE”) a Request for Admissions, Set Three (“RFAs”), containing 59 requests. (Declaration of Nicholas J. Peterson, ¶ 2.) On January 4, 2021, FIE served only objection responses to each of the 59 requests. (Id., ¶ 3, and Ex. A.) On February 16, 2021, plaintiff requested a pre‐trial discovery conference on, among other things, all of the 59 requests of the RFAs. On February 22, 2021, the court issued an order that plaintiff may proc...

Excerpt: ...t may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (Code Civ. Proc., §36, subd. (d), emphasis added.) In support of her motion, plain...

Excerpt: ...rguments: (1) under Code of Civil Procedure section 1281.2, subdivision (c), arbitration is no longer required; (2) decedent did not consent to the arbitration clause; (3) delay in arbitration requires that the order compelling arbitration be vacated; and (4) the arbitration agreement at issue is unconscionable. In opposition, defendant Covenant Care California, LLC, dba Pacific Gardens Nursing and Rehabilitation Center argues: (1) plaintiff fail...

Excerpt: ...ion of emotional distress; (4) violation of Business and Professions Code section 17200; and (5) wrongful death. Plaintiff is litigating cause of action three [NIED] and five [wrongful death] in her individual capacity. Petitioner, defendant Antonis Antoniou, M.D., now moves to compel arbitration. In opposition, plaintiff argues that the petition at issue should be denied because: (1) pursuant to Code of Civil Procedure section 1281.2, subdivisio...

Excerpt: ...�§ 436, 431.10, subd. (b).) To grant leave to amend. Should cross‐complainant Jing Yang desire to amend, the First Amended Cross Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should cross‐complainant elect not to amend, cross defendants shall file responsive pleadings within thirty (30) days from the date of this order. Explanation: “Any party, within the time allowed ...

Excerpt: ...nded Complaint Tentative Ruling: To sustain the demurrers to the Second Amended Complaint's ninth and tenth causes of action. (Code Civ. Proc., § 430.10, subds. (e) and (f).) To grant the motions to strike. (Code Civ. Proc., §§ 435 and 431.10, subd. (b).) To grant leave to amend. Should plaintiff desire to amend, the Third Amended Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold pri...

Excerpt: ...e class list and related information to the class administrator, for the class administrator to mail notice to the class members, and for class members to mail objections or requests for exclusion, shall be as set forth in that order. A hearing for final approval is set for May 17, 2022, at 3:30 p.m. in Department 403. Papers for this hearing must be filed on or before April 20, 2022. Explanation: Plaintiff has addressed the issues included in th...

Excerpt: ...owing that the notice of motion and supporting documents were served on all defendants prior to the hearing. (Code Civ. Proc. § 437c, subd. (a)(2).) Explanation: Plaintiff moves for summary adjudication of defendants' third, fourth, and seventeenth affirmative defenses, as well as their first, second, and fifth cross‐claims in their cross‐ complaint. Plaintiff alleges that it entered into a lease agreement with defendants for defendants to o...

Excerpt: ..., California. To grant petitioners' request for attorney's fees and costs from respondents. Explanation: Abatement and Receivership Under Health and Safety Code section 17980.6: If any building is maintained in a manner that violates any provisions of this part, the building standards published in the State Building Standards Code relating to the provisions of this part, any other rule or regulation adopted pursuant to the provisions of this part...

Excerpt: ...n costs. Defendant now seeks to tax those costs on two grounds: that plaintiff is not a prevailing party within the meaning of Code of Civil Procedure section 1032 and California Rules of Court Rule 3.1700; and that the costs claimed are disallowed. Though defendant argues that plaintiff is not the prevailing party within the meaning of Code of Civil Procedure section 1032, section 1032 does not control. (See Stratton v. Beck (2018) 30 Cal.App.5t...

Excerpt: ...de Civ. Proc. § 405.30; 405.32.) Plaintiff shall file and serve its sur‐reply by the close of business on January 19, 2022. Defendant Barnett shall file and serve her response by the close of business on January 26, 2022. Explanation: Under Code of Civil Procedure section 405.30, any party, or any nonparty with an interest in real property affected by a lis pendens, can move to expunge the lis pendens at any time after the notice of pendency o...

Excerpt: ...anation: The motion for consolidation must be denied because, as more fully discussed below, the balancing test for determining whether plaintiff's defenses can be presented in the unlawful detainer action is for the unlawful detainer court, upon noticed motion, to decide; it cannot be addressed by the court in a civil action via consolidation. Under Code of Civil Procedure section 1048, subdivision (a), "When actions involving a common question ...

Excerpt: ...ements. (Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 25; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97; see Code Civ. Proc. §1281.2.) “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is r...

Excerpt: ...ute order. It shall be served within 10 days of its filing. Explanation: A defendant whose negligence is alleged to have caused an accident may file a cross‐complaint for equitable indemnity against concurrent tortfeasors. (Santa Barbara Channelkeeper v. City of San Buenaventura (2018) 19 Cal.App.5th 1176, 1186.) However, where a party is entitled to pursue a claim for indemnity by way of either a crosscomplaint or a separate action, “purpose...

Excerpt: ... Ct. Fresno County, Local Rules, rule 2.8.4) In the event that oral argument is requested, both Petitioner and Christian Rea are excused from appearing. Explanation: Petitioner proposes to accept a compromise of disabled adult Christian Rea's claims arising from a two auto collisions for a gross settlement of $45,000, paying $5,000 of the proceeds to cover in excess of $3.2 million in medical expenses, $690 in costs and $15,000, or approximately ...

Excerpt: ...le 3.1324(b), attaching a copy of the proposed amendment or amended pleading as required by California Rules of Court, rule 3.1324(a), and attaching all the exhibits that were supposed to have been included with counsel's declaration but were inadvertently omitted. (Code Civ. Proc., § 473, subd. (a)(1).) Moving party shall file and serve the first amended cross‐complaint within ten (10) days of the clerk's service of the minute order. All new ...