Excerpt: ...�Beverly Act “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, § 1794, subd. (d).) The statute “requires the trial court to make an initial determination of the...

Excerpt: ...0(a)(1), 3) testing is limited to the tests described in Amended Notice for the June 8, 2020 date, 4) the exam is limited to eight hours, and 5) that the exam be completed by October 31, 2020. To deny sanctions. Explanation: An independent mental examination “is the only procedure as to which a court order is still required before commencing discovery. Notice and hearing are deemed essential to protect against unreasonable examinations and to s...

Excerpt: ...dant “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If defendant meets this burden, then the burden of production shifts to plaintiff “to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) Summary adjudication is the proper mechanism for challenging a par...

Excerpt: ...minute order. New allegations in the Fourth Amended Complaint are to be set in boldface type. Explanation: Where the complaint fails to plead ultimate facts, the complaint is subject to demurrer. (Code of Civil Procedure § 430.10(e); Berger v. California Ins. Guar. Ass'n (2005) 128 Cal.App.4th 989, 1006.) Essentially, “[a] complaint must allege the ultimate facts necessary to the statement of an actionable claim. It is both improper and insuff...

Excerpt: ...). They involve numerous pretrial motions that raise difficult legal issues which are time‐consuming to resolve, and involve significant documentary and other evidence. Motions seeking class certification in conjunction with settlement approval are exceptionally demanding, as the Court is the sole guardian of the rights of the absent class members who will be bound. “[S]ettlement class actions present unique due process concerns for absent cl...

Excerpt: ...a Salazar based on the allegations that Salazar drove his vehicle recklessly at a high rate of speed without looking in his rear view mirror while backing out of a driveway in a residential neighborhood. (Complaint, EX‐2.) He “accelerated the vehicle loudly causing the tires to screech as he backed out of the driveway at an extremely excessive speed.” (Ibid.) Defendant allegedly knew that decedent was directly behind him, standing next to a...

Excerpt: ...s Guardian Angel's Adult Day Health Care LLC and John Thao are stayed until the February 11, 2020 Order for Discovery is obeyed. The court awards an additional $820 in monetary sanctions payable by plaintiffs Guardian Angel's Adult Day Health Care LLC and John Thao, and attorney Douglas V. Thornton, jointly and severally, to Resnick & Louis, P.C. within 30 days of this clerk's service of this order. Explanation: Section 2023.010 defines “misuse...

Excerpt: ...f the class allegations. (Code Civ. Proc., § 436, subd. (a).) To sustain the demurrer to the second cause of action, with plaintiff Terri Drew granted 10 days' leave to file a second amended complaint. (Code Civ. Proc., § 430.10, subd. (e), (f).) The time in which the complaint can be amended will run from service by the clerk of the minute order. All new allegations shall be in boldface type. The time in Explanation: Plaintiffs brought this co...

Excerpt: ..., defendant Keith Ross (hereinafter “Ross”) shall provide further verified responses to Special Interrogatory nos. 1, 2, 4, 13‐16, 22‐24, 33, Requests for Production of Document nos. 1‐5, 7, 9, 17, 18, 20, 21, and Requests for Admission nos. 9, 19‐21, 29. The motions are otherwise denied. All documents responsive to the above production demands shall be produced within 20 days of service of the order. To impose $6,494 in monetary sanc...

Excerpt: ...ng whether to issue a preliminary injunction, the court should consider (1) the likelihood that the moving party will prevail on the merits at trial, and (2) the interim harm that the moving party is likely to sustain if the injunction were denied as compared to the harm that the opposing party is likely to suffer if the preliminary injunction were issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69‐70.) In considering these factors...

Excerpt: ...212; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198‐1201.) Further, “[a]n order denying a motion for reconsideration is interpreted as a determination that the application does not meet the requirements of section 1008. If the requirements have been met to the satisfaction of the court but the court is not persuaded the earlier ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the earlier...

Excerpt: ...Amalgam, and Nwaka, as well as the motion for reconsideration of plaintiff's cross‐motion for summary judgment. (Code Civ. Proc. § 1008, subd. (a); Penal Code § 2601, subd. (d).) Explanation: In Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, the Fifth District Court of Appeal held that the trial court erred when it failed to exercise its discretion in response to the indigent prisoner plaintiff's motion for appointment of counsel in his civil ac...

Excerpt: ...l, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. [Citations.] ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is wit...

Excerpt: ...t Amended Complaint brought by Plaintiff Fri Poutinerie (Plaintiff). The motion is directed at the First Cause of Action for Breach of Contract, the Second Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing, the Third Cause of Action for Intentional Misrepresentation and the Fourth Cause of Action for Negligent Misrepresentation. Plaintiff's claims arise from a commercial lease agreement to rent space for a restaurant from ...

Excerpt: ... tort claims filing requirement pursuant to Government Code section 946.6. They contend that their failure to file a timely claim with the County of Fresno was due to mistake, inadvertence, surprise or excusable neglect, and therefore the court should allow them to proceed with their civil action against the County. However, petitioners have failed to present any evidence showing that their failure to file a claim within six months of the acciden...

Excerpt: ...obile Club of Southern California (2008) 42 Cal.4th 1142, 1147.) The fundamental objective of the private attorney general doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565 (Graham).) Under section 1021.5, the court may award attorney fees to (1) a successful party in any action (2) that has re...

Excerpt: ... of Civil Procedure section 425.16, which states that, “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plainti...

Excerpt: ...ion shall be filed on or before 5:00 p.m. on Tuesday, July 21, 2020. Defendants' supplemental reply shall be filed on or before 5:00 p.m. on Thursday, July 30, 2020. Explanation: No Summary Adjudication of the Element of Damages Under Code of Civil Procedure section 437c, subdivision (f)(1), “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for da...

Excerpt: ...ss‐Complaint off calendar because (1) it is moot as to the first and second causes of action in light of the ruling on the good faith settlement motion, and (2) CMC has failed to comply with Code of Civil Procedure section 430.41. Explanation: Good Faith Settlement Motion Fresno Community Hospital and Medical Center, dba Community Regional Medical Center, dba Community Medical Centers (“CMC”) moves for determination that its settlement with...

Excerpt: ...planation: 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.) Second Cause of Action – Fra...

Excerpt: ...e time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the Second Amended Complaint are to be set in boldface type. Explanation: Judicial Notice The court may take judicial notice of court records. (Evid. Code § 452(d).) Also, the court may take judicial notice of settlement agreements and arbitration documents. (see Performance Plastering v. Richmond American Homes of California, ...

Excerpt: ... (“Central Valley”) is granted 10 days, running from service of the minute order by the clerk, to file and serve a second amended complaint, amending the fifth cause of action only to address the deficiency noted below. All new allegations in the amended complaint are to be set in boldface type. Explanation: First cause of action The first cause of action alleges that the net profits received by Golden State YMCA (“Golden State”) for its ...

Excerpt: ...rike the prayer for prejudgment interest, contending that Civil Code section 3288 only permits an award of prejudgment interest in actions not arising from contract, and that Civil Code section 3287, subdivision (a), only allows prejudgment interest where the damages are certain or capable of being made certain by calculation. In the present case, defendant contends that plaintiff's claims arise out of the contract between the parties for the des...

Excerpt: ... objection and that made on the basis that the demand does not reasonably particularize the category of item. To limit further response and production to 1) any complaint or other initial filing in a court case or third party resolution process involving Ford and the owner of a 2016 Ford Explorer wherein Ford repurchased the vehicle, and where the repair history for that vehicle contains a problem for which the plaintiffs in this case also sought...

Excerpt: ...int can be amended will run from service by the clerk of the minute order. All new allegations in the amended complaint are to be set in boldface type. To order the JOP off calendar. Explanation: A court may, in the furtherance of justice, allow a party to amend any pleading on any terms as may be proper. (See Code Civ. Proc., §§ 473, subd. (a), 576.) “This statutory provision giving the courts the power to permit amendments in furtherance of...