Excerpt: ...order determining faith settlement. To find that the settlement Plaintiffs and Cirks Construction, Inc. is in faith. To deny without prejudice, the motions for order determining good faith settlement of Lazy Dog Restaurants, LLC, LDR Holdings, LLC, Villagio Shopping Center, LLC, and Manco Abbott, Inc. Explanation: "Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall ...

Excerpt: ... replacement of the vehicle or reimbursement of the purchase price paid for the vehicle, specifically paragraph 34 and the prayer on page 10, paragraph A, are striken without leave to amend. The motion to strike the prayers for attorneys' fees and costs is denied. Explanation: Demurrer Toyota demurs to the second cause of achon for violation of the Magnuson-Moss Warranty Act ("MMWA") on the grounds that the First Amended Complaint ("FAC") fails t...

Excerpt: ...cton. There, she was placed on a gurney and was given an injection that she was told would make her drowsy. While still on the gurney, plaintiff was moved to a different hall way and was placed under the care of a male nurse, the moving defendant Freddie Rodriguez ("defendant"). Plaintiff alleges that defendant said he would take care of her and "help her with whatever she needed while addressing her in an overly friendly manner." (TAC, '1 5.) Pl...

Excerpt: ...before May 9, 2023, plaintiff must file supplemental declarations correcting the problems noted below. Explanation: There are numerous technical problems with this motion and supporting papers, which prevent the court from considering the merits. First, both the Settlement Agreement (Bolce Dec„ Exhibit A) and the "Notice of Class Action Settlement" (ld., Exhibit 8) are missing pages, and there are no signatures showing on the Settlement Agreeme...

Excerpt: ...uest for treble damages and attorney's fees pursuant to Penal Code section 495. (Cal. Rules of Court, Rules 3.1WJ, subd. (a)(l); Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 257, 288.) [Although no evidence relating to liability is necessary for a prove-up hearing, evidence establishing a prima facie case for damages is required.] By defaulting, cross-defendant admits liability for the debt or obligation on all well pled causes of actio...

Excerpt: ...ation providing for this on or before May 3, 2023, together with the declarations from each party required by this subdivision. Civ. Proc., S 437c, subd. (t)(1)(A)(i) and (ii).) he stipulation must specify that the issue to be adjudicated is: "Did the PAGA claim survive the plaintiff's death, or did it abate, and if it abated, have defendants waived the issue?" The stipulation must also provide that the parties expressly waive the requirements fo...

Excerpt: ...mply with The Superior Court of Fresno County, Local Rules, rule 2.1.5 ("rule 2.1.5"), which causes this court to lose personal jurisdiction over her. Defendant is mistaken. Rule 2.1.5 states: A plaintiff shall serve all named defendants with all pleadings and notices required by these rules or other law, including notice of a Case Management Conference, and shall file proof of service with the court, within sixty (60) days from the date the comp...

Excerpt: ...fendant Juan Zaragoza and Martinez, Dieterich & Zarcone Legal Group (formerly known as Chavez Legal Group), jointly and severally, payable within 20 days of the date of this order, with the tme to run from the service of this minute order by the clerk. The matters specified in plaintiff Valerie Valero's Requests for Admission, Set One, propounded on Mr. Zaragoza are deemed admitted, unless Mr. Zaragoza serves, before the hearing, proposed respons...

Excerpt: ...endment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citation.] 'In the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial.... Motions to amend are appropriately granted as late as the first day of trial or even during trial if the defendant is ...

Excerpt: ...an be filed will run from service by the clerk of the minute order. To overrule defendant's moton to strike as to punitive damages. To overrule defendant's moton to strike paragraphs 35 through 70. Explanation: Demurrer Generally The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a caus...

Excerpt: ...bitrate." (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) "Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute." (Mendez v. Mid Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) Defendant Nissan North American, Inc. ("Nissan") moves to com#l arbitration of plaintiff's action pursuant to an arbitration clause in a retail installmen...

Excerpt: ...e cause of action for declaratory relief against defendants California Department of Human Resources and Eraina Ortega as Director for the California Department of Human Resources (collectively "defendants"). Plaintiff seeks a judicial declaration of its rights as affected by defendants' interpretation of certain state law. Defendants filed the instant demurrer to the First Amended Complaint ("FAC") on several grounds: (1) the court lack jurisdic...

Excerpt: ...planation: Plaintiff is Entitled to an Award of Fees and Costs A prevailing plaintiff under the Consumer Legal Remedies Act (CLRA) is entitled to an award of his or her attorney's fees and costs. Under Civil Code section 1780, subdivision (e), "The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section." (Italics added.) Here, plaintiff is the prevailing party in the CLRA litigatio...

Excerpt: ...ns against defendant Himanchal Verma in the amount of $500 for failure to serve discovery responses in compliance with the court's July 19, 2022 order. (Code Civ. Proc. SS 2023.030, subd. (a); 2030.300, subd. (e).) Explanation: Court's Motion to Strike the Answer of AC Express, LLC Defendant AC Express, LLC filed an answer to the complaint on August 30, 2021 as a self-represented litigant and, to date, remains without attorney representation. Thi...

Excerpt: ...termine the appropriate public entity for petitioners' government claims; however, these efforts proved unsuccessful until. Representation on another matter for the driver, Mr. Steele, concluded and in the process of closing out that matter, this matter was inadvertently marked as resolved in the law firm's calendaring system. Counsel discovered this error in September of 2022, four months after the petitioners' claims should have been presented ...

Excerpt: ...dly to have been secured by real property (the "Property") sold by Plaintiff to Michael Cornell, deceased spouse defendant Margaret Cornell. Objections Initially, the court notes that it sustains objection number 6 to the Vic Pasnick email, as the document is not authenticated and constitutes hearsay. The remainder of the objections are overruled. Request for Continuance According to Plaintiff's counsel, Plaintiff has been out of the country sinc...

Excerpt: ...for denial of the moton exists (e.g., fraud, unconscionability, etc.) (Rosenthal v. Great Western Finll Securites Corp. (1996) 14 cal.4th 394, 413-414; Hotels Nevada v. L.A. Pacific ctr., Inc. (2006) 144 cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) Defendants contend that the alleged arbitration agreement in this case is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. SS 1, et seq. Section 2 of the F...

Excerpt: ...by plaintiffs Richard Gaestel and Cindee Gaestel Lopez (collectively "Trustee Plaintiffs"). In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of achon u...

Excerpt: ...ject to the moton to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading. (Code Civ. Proc., S 435.5, subd. (a), emphasis added.) In order to obtain an extension of time to file a respo...

Excerpt: ...'s motion to compel arbitration moot. Explanation: On June 29, 2022, plaintiffs filed the present achon regarding the purchase of a 2020 Chrysler Pacifica, which plaintiffs allege came with certain warranties. Problems with the vehicle ensued which form the basis of the instant complaint for damages. Plaintiffs brought five causes of achon against defendant FCA US, LLC ("FCA"), and one cause of action against defendant Fresno Chrysler Jeep Inc. d...

Excerpt: ...of his PAGA claim against defendant, and dismiss the representative portion of the PAGA claim. To stay the court action pending the outcome of arbitration. (Code Civ. Proc. S 1281.4) Explanation: under the Federal Arbitration Act ("FAA"), A written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or...

Excerpt: ...ent. 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, 93-95.) "Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well-defined community of interest, and (3) that certification will provide substant...

Excerpt: ...of the date of mailing of this order. Explanation: Plaintiff's first amended complaint fails to allege that she complied with the requirements of the Government Tort Claims Act, and therefore it fails to state any valid causes of action against defendants West Park Elementary School District and Kimberly Vivenzi. "[Government Codel Section 905 requires the presentation of 'all claims for money or damages against local public entities,' subject to...

Excerpt: ...r an Order Compelling Plaintiff's Further Responses to Requests for Admission Tentative Ruling: To grant in part defendant's motion to compel plaintiff to provide further responses to Form Interrogatories — General, and order plaintiff to provide further responses to Nos. 2.11(b), 8.5, 8.6, 8.7, 8.8. To deny the motion as to Nos. 2.3, 2.11(a), 8.4, 11.1, 11.2. To grant in part defendant's motion to compel plaintiff to provide further responses ...

Excerpt: ...ial fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 5437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) "A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code of Civ. Proc., S 437c subd. (f)(l); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal...

Excerpt: ...ent can be amended and the distribution of any cy pres funds can be ordered. as to the amount paid to class members must be filed on or before March 5, 2024. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. In addition, there do...

Excerpt: ...t Beau Pennington only. Plaintiff is granted 10 days' leave to file the Second Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Non-solicitation/Non-compete Agreements and Trade Secrets Business and Professions Code section 16600 states, "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful prof...

Excerpt: ...t for Production of Documents, Set One (1), which Defendant propounded on the Plaintiff June 24, 2022, within 10 days of service of this Order. To order Plaintiff to provide objectionless and verified responses to Form Interrogatories, Set One (1), which Defendant propounded on the Plaintiff on June 24, 2022, within 10 days of service of this Order. To order Plaintiff to provide objectonless and verified responses to Special Interrogatories, Set ...

Excerpt: ... to file the First Amended Cross-complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Cross-complaint Generally For a cross- complaint, claims against the plaintiff can be asserted regardless of the subject matter relationship; however, for claims against anyone else, the claims must relate to the subject matter or transaction alleged in the plaintiff's compla...

Excerpt: ...n of the cross-complaint. Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable ...

Excerpt: ... court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c subd....

Excerpt: ...cur within 21 days of the date of this Order. To impose $2,453.10 in monetary sanctions against Defendant Ralph's Grocery Company dba Food's Co., to be paid to counsel for Plaintiff within 30 days of service of the Order by the clerk. Explanation: Code of Civil Procedure section 2025.450 provides, in pertinent part, as follows: (a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee...

Excerpt: ...for recovery of a monetary judgment for $386,092.76 granted on July 28, 2011 from the United States Bankruptcy Court. (See Complaint, ¶ 5; Ex. A.) Defendant - who was the debtor in the bankruptcy proceeding - appealed the judgment, and the Ninth Circuit Court of Appeals published its final decision on July 28, 2014 (“2014 Decision”). (See In re Shawn Deitz (9th Cir. 2014) 760 F.3d 1038, 1039 [holding that the Bankruptcy Appellate Panel (“B...

Excerpt: ... to the “American rule” that each party bears its own attorney fees. (Olson v. Automobile 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, t...

Excerpt: ...truck as the representative of the PAGA action. Defendant moves under Wesson v. Staples the Office Superstore, LLC. ((2021) 68 Cal.App.5th 746, 763 [“Wesson”].) There, the Second District Court of Appeals noted that the question of whether trial courts have inherent authority to ensure that PAGA claims will be manageable at trial, and to strike such claims if they cannot be managed, was one of first impression. (Id. at p. 755.) The Second Dis...

Excerpt: ...ave to amend is granted only as to the portions of the operative complaint pertaining to plaintiff's representative status and the estate's survivor's claims to allow plaintiff to allege sufficient facts to show the parties' intent to include her in her representative capacity as a party to the Tolling Agreement. Leave to amend as to the allegations pertaining to the other heirs' wrongful death claims is denied. (Code Civ. Proc., §§ 435, 436.) ...

Excerpt: ...arbitration “if it determines that an agreement to arbitrate the controversy exists.” (Code Civ. Proc., § 1281.2.) However, there is “no public policy in favor of forcing arbitration of issues the parties have not agreed to arbitrate.” (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505.) Thus, when a motion to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controvers...

Excerpt: ...tual costs. The terms of the settlement allow up to $20,000 in costs. The settlement administrator, ILYM Group is charging a flat fee of $9,675.00. The remaining $317,860.24 is to be put toward the payment of PAGA penalties with 75% (238,395.18) to the LWDA and 25% ($79,465.06) to the aggrieved employees. Separately from the gross settlement amount, plaintiff is settling his individual claims against defendant for $7,500 in exchange for a general...

Excerpt: ...473 as well as the court's equitable authority. (See Notice of Motion, p. 1:25; Motion p. 6:4.) The motion was first filed over two years ago on July 13, 2021. Plaintiff has requested numerous continuances, thus delaying the hearing and merits ruling, as well as flagrantly violating the local rules. “A party seeking relief under [Code of Civil Procedure] section 473(b) must file the motion within a reasonable time but not longer than six months...

Excerpt: ...Defendants shall meet and confer in good faith effort to resolve the discovery disputes. If the disputes are not resolved, defendant shall file a separate statement of all items in dispute for each motion. A meet and confer declaration, the separate statement, supplemental opposition and reply, papers shall be filed per Code of Civil Procedure section 1005, subdivision (b), based on the continued hearing date. Monetary sanctions requested by defe...

Excerpt: ... 502 to inform the court of the total amount actually paid to the class members, pursuant to Code of Civil Procedure section 384, subdivision (b), so that the judgment can be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before January 31, 2024. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final appr...

Excerpt: ...ve award to the class representative. Explanation: 1. Class Certification In its order granting preliminary approval of the class settlement, the court has already determined that certification of the class for the purpose of settlement is proper here. Nothing has changed since the court made its order granting preliminary approval. Therefore, the court intends to grant certification of the class for the purpose of finally approving the settlemen...

Excerpt: ...1032, subd. (a).) Moreover, “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5...

Excerpt: ...2, subd. (a).) Moreover, “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or...

Excerpt: ...tion, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” Code of Civil Procedure section 598 provides in pertinent part as follows: “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling...

Excerpt: ...onsumer Warranty Act.” (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 929; Code Civ. Proc., § 473, subd. (a)(1) [“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend ….” Emphasis added.) The amended complaint shall be filed within ten (10) days from the date of this order. New or different allegations in the second amended complaint are to be set in boldface type. Explanation: Summar...

Excerpt: ...nd that plaintiff, who bought the vehicle at issue “used,” cannot pursue a breach of implied or express warranty claims under Song-Beverly against GM about a vehicle that it did not purchase as a “new motor vehicle.” GM's position is supported by the recent appeals court decision of Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 217, review granted, July 13, 2022, S274625. Rodriguez held that a used vehicle that is still covered by t...

Excerpt: ...d the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. In addition, there does not appear to be any reason for the court to reconsider its decision granting certification of the class. Therefore, once the uncertainties outlined below are cured, the court intends to certify the class for the purpos...

Excerpt: ...ation has been resolved. (Code Civ. Proc., § 1281.4.) To order defendant to pay plaintiffs' court costs in the amount of $514.16. (Code Civ. Proc., § 1293.2.) Defendant shall pay costs to plaintiffs within 30 days of the date of this order. Explanation: Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and tha...

Excerpt: ...duty.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 242.) Consequently, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c subd. (f)(1); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal adjudication prohibited.].) In addition, “[s]umma...

Excerpt: ...t requests for entry of default and for default judgment. To grant monetary sanctions in the amount of $510 as plaintiff's reasonable expenses pursuant to Code of Civil Procedure section 2023.030, subdivision (a), but to deny plaintiff's request for sanctions against defendant's counsel pursuant to Code of Civil Procedure section 128.5. To find the Request to have Requests Admitted and the Motion to Compel Attendance moot. Explanation: There is e...

Excerpt: ...l within 30 days of the date of service of this order. 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 of action has been recorded. (Code Civ. Proc. § 405.30.) There are four bases upon which a party may seek to expunge: (1) the lis pendens is void and invalid (id., § 405...

Excerpt: ...frontation, attacking CrossComplainant, surreptitiously recording it, and using the footage in an effort to have CrossComplainant unjustly fired, is so extreme as to be beyond all bounds of decency tolerated by society.” (Cross Complaint, ¶ 22.) A SLAPP suit (Strategic Litigation Against Public Participation) is a suit brought “primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for redress of gri...

Excerpt: ....” (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) “Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute.” (Mendez v. Mid‐Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) Defendant Nissan North American, Inc. (“Nissan”) moves to compel arbitration of plaintiffs' action on an arbitration clause in a retail installment s...

Excerpt: ...he ground that they did not owe a legal duty toward plaintiffs' decedents because the decedents were not listed as tenants on the lease, and the lease specifically prohibited anyone not listed as a tenant from residing on the premises. They also claim that they had no knowledge of the dangerous condition that caused the fire, which was allegedly caused by a candle left unattended in the bathroom by a tenant. In addition, they contend that they ha...

Excerpt: ...the original 5 UDMFs, four are undisputed between the parties and one remains in dispute, number 5. This pertains to whether the Standard of Care was met during Plaintiff's surgery. Moving Defendant's expert Dr. Tyner opined that the standard of care for Plaintiff's surgery was met by Dr. Yankey. (Statement of Evidence Exhibit 5.) Plaintiff disputes this and cites as supporting evidence the Declaration of Arthur Hill, M.D., para. 1‐13, stating ...

Excerpt: ...Plaintiff is directed to submit a new proposed Final Order. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the court to reconsider its decision granting certification of the class. Therefore, the court c...

Excerpt: ...amount actually paid to the class members, pursuant to Code of Civil Procedure section 384, subdivision (b), so that the judgment can be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before January 17, 2024. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquir...

Excerpt: ...mended Complaint filed August 26, 2022 for 1) Medical Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”); 2) Intentional Infliction of Emotional Distress; 3) Retaliation in Violation of FEHA; 4) Failure to Prevent Discrimination and Harassment; 5) Failure to Accommodate; 6) Failure to Engage in the Interactive Process of Accommodation; 7) Hostile Work Environment in Violation of FEHA; 8) Sex/Gender Discrimination in V...

Excerpt: ... for summary adjudication in its entirety. To deny the motion to bifurcate, without prejudice. Explanation: At issue in all three motions is a single inquiry by defendants Jose Olivarez and Fresno County Economic Opportunities Commission (collectively “defendants”) regarding Civil Code section 3333.4 to plaintiff Maria Benitez Perez's complaint seeking damages arising from a motor vehicle collision. Civil Code section 3333.4 provides, in pert...

Excerpt: ...ed class be conditionally certified for settlement purposes. The court may make an order approving or denying certification of a provisional settlement class after the preliminary settlement hearing. (Cal. Rules of Court, rule 3.769(d).) Before the court may approve the settlement, however, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Products, Inc. v. Windsor (1997) 521 US 591, 625‐ 627; see also Newbe...

Excerpt: ...5.16. On June 27, 2022, prior to the anti‐SLAPP motion being heard, plaintiff dismissed the suit with prejudice. Defendant now seeks attorney's fees. Where a defendant files a motion pursuant to Code of Civil Procedure section 425.16 and prevails, the defendant shall be entitled to recover attorney's fees and costs. (Code Civ. Proc. § 425.16, subd. (c)(1).) Where a plaintiff voluntarily dismisses a defendant, with or without prejudice, after f...

Excerpt: ...o submit to this court, within 7 days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendant. Explanation: Defendant North Cal Cleaning Company (NCCC) demurs to the Second Amended Complaint of plaintiff Joe Louis Pena Jr. (Pena) on the grounds that the breach of contract cause of action alleged against it in the Second Amended Complaint is barred by the exclusive remedy of workers' compensation. (C...

Excerpt: ...be filed within the time allowed to respond to said pleading. (See Code Civ. Proc., § 435, subd. (b)(1).) Here, defendant's motion is not timely because it was filed after the 30 day period set forth in Code of Civil Procedure section 435 and the extension agreed to between the parties. However, this is comparable to a late filed demurrer, and the court has discretion to hear an untimely demurrer. (See Jackson v. Doe (2011) 192 Cal.App.4th 742, ...

Excerpt: ...ion is strictly “a matter of consent”'” and ‘ “ ‘a party cannot be required to submit to an arbitration any dispute which he has not agreed so to submit”'” (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 252, internal citations omitted.) As a general principle, “ ‘questions about the “making of the agreement to arbitrate” are for the courts to decide unless the parties have clearly and unmistakably referred those...

Excerpt: ...rs to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Omega and Mr. Asay demur to the first and sole cause of action for failure to pay monies due, on the ground that the complaint fails to state a claim against them. The moving parties contend that the December 19, 2018 Order adopting the November 29, 2018 Proposed Decision and Order (the “Penalty Order”), attached...

Excerpt: ...days' leave to file a first amended complaint. The time in which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be placed in boldface type. Explanation: The complaint alleges two causes of action against the City of Fresno for premises liability and general negligence based on plaintiff's alleged trip on a raised section of concrete sidewalk at 9th Street and Grand Ave. in the city of Fresn...

Excerpt: ...mez, Stella Villagomez, and All Ag., Inc., for the time period from 2006 to 2022; and transactions involving Villagomez Farms, Inc., for the time period from 2006 to 2022. To deny both parties' requests for monetary sanctions against each other. Explanation: Under Code of Civil Procedure section 1987.1, If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things befo...

Excerpt: ... Wednesday, March 1, 2023 at 3:30 p.m. in Dept. 502. The deadline for plaintiff and defendant to file supplemental briefing is Friday, February 3, 2023. The briefs shall be no longer than ten pages in length. Explanation: “The 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. Pr...

Excerpt: ...on for failure to state facts sufficient to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subd. (e), (f).) To sustain, with leave to amend, De La Pena's demurrer to the second cause of action for failure to state facts sufficient to state a cause of action (Code Civ. Proc., § 430.10, subd. (f).) To overrule De La Pena's demurrer to the first, fourth, fifth, sixth and eighth causes of action. To overrule FAIHP's demurrer t...

Excerpt: ... at 3:30 p.m. in Dept. 502 Explanation: 1. Fair, Adequate, and Reasonable Settlement The court “bears the responsibility to ensure that the recovery represents a reasonable compromise, given the magnitude and apparent merit of the claims being released, discounted by the risks and expenses of attempting to establish and collect on those claims by pursuing litigation. The court has a fiduciary responsibility as guardians of the rights of the abs...

Excerpt: ..., 2023 at 3:30 p.m. in Dept. 502 Explanation: 1. Fair, Adequate, and Reasonable Settlement The court “bears the responsibility to ensure that the recovery represents a reasonable compromise, given the magnitude and apparent merit of the claims being released, discounted by the risks and expenses of attempting to establish and collect on those claims by pursuing litigation. The court has a fiduciary responsibility as guardians of the rights of t...

Excerpt: ...admitted and compelling defendant's responses to plaintiff's Form Interrogatories, Set One, and Request for Production of Documents, Set One. The requests for monetary sanctions made by both parties are denied. Explanation: Notice Defects: Proof of service by mail may be made by either an affidavit or certificate “setting forth the exact title of the document served and filed in the cause…” (Code Civ. Proc., §1013a, subds. (1)‐(4), empha...

Excerpt: ...t”) is a Little Caesars Pizza franchisee. Tenant assumed a lease entered into on August 18, 2003 for 1,265 square feet in Landlord's retail shopping center. The Lease includes the following provision at Section 26.09: … at any time during the term of this Lease, upon at least thirty (30) days prior written notice to Tenant (“Notice of Relocation”), Landlord may require Tenant to relocate to another leased space within the Shopping Center ...

Excerpt: ...The new amendments shall be in bold print. Should plaintiff elect not to amend, defendants shall file responsive pleadings within twenty (20) days from the date of this order. The demurrer is overruled in all other respects. Explanation: In deciding a demurrer, the test is whether the plaintiff has succeeded in stating a cause of action ‐ the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving...

Excerpt: ...bid.) Defendant shall pay sanctions to plaintiff's counsel within 30 days of the date of service of this order. Explanation: Under Code of Civil Procedure section 1281.97, subdivision (a), “In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, the drafting party to pay certain fees and costs before the arbitration can proceed, if the fees...

Excerpt: ...tion to vacate the judgment and/or the clerk's entry of default that preceded it. However, that discretion 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.) Here, defendant moves to set aside its default, entered on July 21, 2022, pursuant to the discretionary relief afforded under Code of C...

Excerpt: ..., U.S.A. is directed to submit to the court a proposed judgment consistent with the summary adjudication ruling within ten (10) days from the date of this order. To grant plaintiffs motion for leave to file a first amended complaint. The amended complaint “shall not include a cause of action under the Song–Beverly Consumer Warranty Act.” (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 929; Code Civ. Proc., § 473, subd. (a)(1) [“The...

Excerpt: ...tative Ruling: To grant the motion to compel responses. Within 20 days of service of the order by the clerk, plaintiff Kimberly Ramirez shall serve verified responses, without objections, to defendant's Form Interrogatories – General [Set One], Form Interrogatories – Employment [Set One], Special Interrogatories [Set One], and Requests for Production of Documents. As for the motion to establish admissions, this is denied in part, as moot, sin...

Excerpt: ...er judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc., § 664.6.) “Code of Civil Procedure section 664.6 provides a summary procedure to enforce a settlement agreement by entering judgment pursuant to the terms of the settlement… The court retains jurisdiction to...

Excerpt: ...ehicle ensued which form the basis of the Complaint for damages. Plaintiff brought two causes of action against each of defendant Lithia NF, Inc. (“Lithia”), and the moving defendant Nissan North America, Inc. (“Nissan”), for express and implied violations of the Song‐Beverly Act regarding warranties. Compel Arbitration Nissan moves to compel arbitration on an arbitration clause in a retail installment sales contract (“RISC”) made b...

Excerpt: ...ination in Violation of California's Fair Employment and Housing Act (“FEHA”); 2) Failure to Accommodate in Violation of FEHA; 3) Failure to Engage in a Good Faith Interactive Process in Violation of FEHA; 4) Retaliation in Violation of FEHA; 5) Associational DisabilityBased Discrimination in Violation of FEHA; 6) Discrimination and Retaliation in Violation of the California Family Rights Act; 7) Failure to Prevent Discrimination in Violation...

Excerpt: ...n: Notice of Hearing Following the progression of the asserted instruments, it appears that plaintiff has a basis for bringing this action. Assuming such evidence is admitted at the hearing, there appears a presumptive basis to grant the proposed judgment. Nevertheless, reflecting the general uniqueness conferred to real property, quiet title proceedings do not follow the typical path toward obtaining judgment. (Harbour Vista, LLC v. HSBC Mortgag...

Excerpt: ...d, resulting in a balance of $90) in favor of defendant and against plaintiff and its counsel, jointly and severally, payable within 30 days of service of this order. (Cal. Rules of Court, rule 3.1348(a).) Explanation: The instant motions were filed on June 15, 2022. The opposition and reply papers confirm that code‐ compliant responses to the discovery at issue were served on August 15, 2022. Therefore, the court denies the instant motions as ...

Excerpt: ...settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. (Code Civ. Proc., § 664.6, subd. (a).) Here, the parties entered into a written settlement agreement including a stipulation for entry of judgment in the event defendant failed to pay the amounts it agreed to pay under the settlement agreement, and then failed to cure its default. It does not appear to be disputed that alt...

Excerpt: ... grant preliminary approval of the proposed settlement. 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 Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontest...

Excerpt: ...ll, whenever an application for relief is 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 … dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.�...

Excerpt: ...lanation: Defendants have admitted to liability by allowing their default to be entered, so liability is not an issue. (Morehouse v. Wanzo (1968) 266 Cal.App.2d 846, 853 [by defaulting, defendants admit liability for the debt or obligation on all well pleaded causes of action].) However, default does not admit that the amount prayed for is the proper amount. (Brown v. Superior Court (1966) 242 Cal.App.2d 519, 526.) Damages must be proved up with ...

Excerpt: ...ss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged...

Excerpt: ...9. Code of Civil Procedure section 529, subdivision (a) provides, in relevant part: On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Damages wh...

Excerpt: ...der (1990) 217 Cal.App.3d 1509, 1512; see also Rev. & Tax. Code, § 23305.5, subd. (a)(2).) In addition, “a plea of lack of capacity of a corporation to maintain an action by reason of a suspension of corporate powers for nonpayment of its taxes ‘is a plea in abatement which is not favored in law, is to be strictly construed, and must be supported by facts warranting the abatement' at the time of the plea.” (Traub Co. v. Coffee Break Servic...

Excerpt: ...ubdivision (b).1 On application, the court may, on any terms as may be just, relieve a party from a default taken against it due to mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) In order to obtain relief under Code of Civil Procedure section 473, the party's application for relief, among other things, “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, othe...

Excerpt: ...applicable summary judgment framework is well explained in Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150: “In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibit...

Excerpt: ...plaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer Defendant‐attorney demurs to plaintiff's sole cause of action for legal malpractice on the grounds that the Third Amended Complaint (“TAC”) fails to state facts sufficient to constitute a cause of action and the pleading is uncertain. Objections that a complaint is ambiguous or uncertain, or that essential facts ap...

Excerpt: ...tial responses to Form Interrogatories, Set Two from plaintiff Ericka Lollis; and request for sanctions Tentative Ruling: To grant the motion seeking an order deeming the truth of matters specified in the Requests for Admission, Set Two established pursuant to Code of Civil Procedure section 2033.280, subdivision (b) against plaintiff Reginald Robinson unless responses in substantial conformity with Code of Civil Procedure section 2033.220 are se...

Excerpt: ...order consistent with the court's summary adjudication ruling. Explanation: Summary Judgment/Adjudication A motion for summary judgment is generally directed toward an entire action or pleading. (Code of Civ. Proc., §437c, subd. (a).) By comparison “[a] party may move for summary adjudication as to one or more causes of action within an action ….” (§ 437c, subd. (f)(1).) In addition, “[a] motion for summary adjudication shall be granted...

Excerpt: ...ion 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 determination, courts usually follow a three‐prong analysis: identifying the issues as fra...

Excerpt: ...stayed until plaintiff proffers proof that he has posted the security as ordered. (Code Civ. Proc. § 391.6.) If plaintiff fails to post security within 30 days as ordered, the court will dismiss the action upon an ex parte application by defendants. (Code Civ. Proc. § 391.4.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits ...

Excerpt: ... dismiss the representative portion of the PAGA claim. Explanation: Notice of Joinder Defendant Aerotek, Inc. (“Aerotek”) seeks an order compelling plaintiff to private arbitration of his wage and hour claims and his PAGA claim as an individual, and to dismiss the representative portion of the PAGA claim brought on behalf of all aggrieved employees. A notice of joinder to join in Aerotek's motion was filed by DMM Packaging, Inc. (“DMM”) o...

Excerpt: ...certified for settlement purposes. The court may make an order approving or denying certification of a provisional settlement class after the preliminary settlement hearing. (Cal. Rules of Court, rule 3.769(d).) Before the court may approve the settlement, however, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Products, Inc. v. Windsor (1997) 521 US 591, 625‐627; see also Newberg, Newberg and Rubenstein ...