Excerpt: ...t, or in the alternative summary adjudication. (Ibid.) Defendant shall submit a proposed judgment consistent with this court's order within 10 days of the date of service of the order. Explanation: First, to the extent that plaintiffs have moved for summary adjudication of their first cause of action under an unjust enrichment theory, the motion has been improperly brought because the court has already ruled that plaintiffs cannot state a claim a...

Excerpt: ...btor is not the occupant, on the judgment debtor. Service shall be made personally or by mail. At the hearing on the motion the court shall determine the occupant's right to possession and shall make an order including terms and conditions that are appropriate under the circumstances of the case. (Code Civ. Proc., § 700.080(c) (emphasis added).) Where, as here, the personal property subject to the writ of possession is being used as a dwelling t...

Excerpt: ...it can 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 unc...

Excerpt: ...) no. 3. Plaintiffs shall provide a further response to Special Interrogatory (set two), no. 3 within twenty (20) days from the date of this order. The motions are denied in all other respects. To deny the request for imposition of monetary sanctions. Explanation: Associational Privacy (Special Interrogatory no. 2/Requests for Production of Documents nos. 3 and 4) Defendants contend that the requested discovery is justified because “[t]he plain...

Excerpt: ...ones Food Company, Fresno County Superior Court case no. 21CECG01408 and Sarmiento v. The Neil Jones Food Company, Fresno County Superior Court case no. 21CECG03825, have been resolved. Explanation: “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: … (c) There is another action pending between the...

Excerpt: ...e first and second causes of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) To grant Montgomery's motions to strike the prayer for punitive damages, and the allegation at paragraph 30 that “Defendant AIMEE MONTGOMERY, D.M.D.'s actions as described above, were malicious, willful, and made in conscious disregard for Plaintiffs health and well‐being.” (Code Civ. Proc., §§ 436, 425.13.) To overrule Smith's demurrer to t...

Excerpt: ... truth of all material factual allegations in the complaint” and the plaintiff's “ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court ….” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496; Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 190 [“We assume the truth of the properly pleaded factual allegations, facts that reasonably can be i...

Excerpt: ...e second cause of action for conversion on the ground that the Complaint fails to state a claim. Mr. Weyant contends that the subject property of the action is not amenable to conversion as a matter of law. To state a claim for conversion, a plaintiff must allege: “(1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. ...

Excerpt: ...duction, Set One; and (3) For Monetary Sanctions Tentative Ruling: To grant plaintiff's motion to compel the deposition of Dycora Transitional Health— Quail Lake LLC's (“Dycora—Quail Lake”) person most knowledgeable. Defendant Dycora—Quail Lake shall produce the person most qualified to testify regarding categories 1‐16. (Code Civ. Proc., § 2025.450, subd. (a).) To grant plaintiff's motion to compel document production regarding requ...

Excerpt: ...lment Sale Contract. Explanation: Plaintiff contracted to purchase the vehicle from Lithia Nissan of Clovis on credit. (Pacheco Decl., ¶5, Exh. A.)The dealership then assigned its interest in the contract to American Credit Acceptance, LLC (ACA). (Pacheco Decl. ¶¶ 6‐9, Exh. B; Henao Decl. ¶¶ 7, 11‐12.) The retail sales installment contract (RISC) contained an agreement to arbitrate disputes that arise between plaintiff purchaser and Lith...

Excerpt: ...companied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: [�...

Excerpt: ... of Clovis on credit. (Pacheco Decl., ¶5, Exh. A.)The dealership then assigned its interest in the contract to American Credit Acceptance, LLC (ACA). (Pacheco Decl. ¶¶ 6‐9, Exh. B; Henao Decl. ¶¶ 7, 11‐12.) The retail sales installment contract (RISC) contained an agreement to arbitrate disputes that arise between plaintiff purchaser and Lithia Nissan or its assigns, which arise out of or relate to the credit application, purchase or con...

Excerpt: ... (Code Civ. Proc. § 405.34.) 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.) “Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form o...

Excerpt: ... plaintiff's double minimum wage claim. Plaintiff is granted 20 days' leave to file the first amended complaint, if necessary. If plaintiff cannot amend the complaint accordingly, plaintiff shall file a declaration indicating as such. The time to file the first amended complaint will run from service by the clerk of the minute order. All new allegations in the first amended complaint are to be set in boldface type. DMM Packaging, Inc.'s (“DMM�...

Excerpt: ...ne whether the proposed class meets the requirements for certification before it can 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 Acti...

Excerpt: ...ary adjudication of each separate cause of action. (Code Civ. Proc. § 437c.) Explanation: First, defendant Saint Agnes has moved for summary adjudication of the medical negligence cause of action on the ground that plaintiffs cannot prevail on their claim for malpractice against the hospital because the treating doctor, Dr. Iberdemaj, is not an employee or agent of the hospital and therefore the hospital cannot be held vicariously liable for his...

Excerpt: ...clerk to set the final approval hearing. Explanation: 1. Class Certification A precertification settlement may stipulate that a defined 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...

Excerpt: ...ourth Causes of Action for Racial and Age Harassment: Defendants demur to the third and fourth causes of action on the grounds that the Second Amended Complaint (“SAC”) fails to allege sufficient facts to state a cause of action for harassment. Plaintiff's third and fourth causes of action alleges harassment in violation of the California Fair Employment and Housing Act (“FEHA”), Government Code, section 12940, subdivision (j), by defenda...

Excerpt: ...es to special interrogatories, set one, numbers 1, 2 and 3, and requests for production of documents, numbers 3, 5, 7 and 9. (Code Civ. Proc. §§ 2030.300; 2031.310.) Defendant shall serve responses to the interrogatories 2 and 3 and requests for production 3, 5, 7, and 9 without objections within 21 days of the date of service of this order. The parties shall meet and confer regarding a Belaire‐West notice to be sent to the putative class mem...

Excerpt: ...vide responses as specified in the 2/28/22 order within 20 days of service of this order by the clerk. Explanation: On 2/14/22 plaintiff filed a Pretrial Discovery Conference (“PDC”) Request concerning production demands and special interrogatories propounded on defendant on 10/29/21. On 2/28/22 the court ordered defendant to provide discovery responses without objection due to defendant's failure to file an opposition to the PDC Request. On ...

Excerpt: ...e the spreadsheet identified in its privilege log within 30 days of service of this order by the clerk. To impose a protective order limiting disclosure of the spreadsheet to only the attorneys for the parties, without further court order. To deny the request for monetary sanctions. Explanation: Compelled Disclosure of a Trade Secret “If he or his agent or employee claims the privilege, the owner of a trade secret has a privilege to refuse to d...

Excerpt: ...vehicle ensued, forming the basis of the instant complaint for damages. Plaintiff brought six causes of action against defendant FCA US, LLC (“defendant”) for express and implied violations of warranties afforded through the Song‐Beverly Act. Defendant moves to compel arbitration on an arbitration clause in a sales contract made between plaintiff and a dismissed party, Clovis Chrysler Dodge Jeep Ram.1 A trial court is required to grant a mo...

Excerpt: ...tions in the second amended complaint are to be set in boldface type. Explanation: Code of Civil Procedure section 473, subdivision (b), provides that the court may relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. It must be made within 6 months after the judgment, dismissal, order, or proceeding was taken. Relief may be based ...

Excerpt: ...urt 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 issue, and not to pass upon or determine the true...

Excerpt: ...are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concea...

Excerpt: ...ry 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, 93, fn. 12.) “Confronted with a request for settlement‐only class certification, a district court need not inquire whether the case, if tried, would pr...

Excerpt: ...t in boldface type. Explanation: The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but a...

Excerpt: ... to compel defendant Dycora Transitional Health – Quail Lake, LLC to provide further responses to form interrogatories, set one, special interrogatories, set one, requests for production of documents, set one, and requests for admissions, set one, and for monetary sanctions. (Code Civ. Proc. §§ 2030.300; 2031.310; 2033.290.) To grant monetary sanctions against defendant Dycora only in the amount of $1440. Defendant shall serve verified furthe...

Excerpt: ...mal claim has first been presented to that entity, and has been rejected, or is deemed rejected by the passage of time. (Gov. Code §§ 945.4, 912.4; see Munoz v. State of Calif. (1995) 33 Cal.App.4th 1767, 1776.) The pre‐lawsuit claim must be presented to the governmental entity within six months of accrual of the cause of action. (Gov. Code § 911.2.) The time limit runs from the date the claimant's right to sue arises; i.e., from the time th...

Excerpt: ... motion. (Ibid.) Explanation: Saint Agnes Medical Center and its employees, Shannon Soliz, RN, Natalie Woods, RN, and Marisol Salazar, RN, move for summary judgment on the theory that plaintiffs cannot prove their negligence and loss of consortium claims because they cannot prove that there was a causal link between the alleged overdose of Pitocin administered by defendants and plaintiff's subsequent intracranial bleeding and resulting damages. S...

Excerpt: ...m to respond further to discovery requests. (Code Civ. Proc. §§ 2023.010 (d), (g); 2023.030 (d)(4); 2030.290 (c) and 2030.300 (e).) The court strikes defendants' answer filed December 17, 2019 and enters default against defendants, Great American Investments, Inc., Liberty Financial Group, Inc., A.J. Rassamni, and Sharon Rassamni. The court vacates the trial date of April 24, 2023, trial readiness hearing on April 21, 2023 and Mandatory Settlem...

Excerpt: ...ney'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 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 bei...

Excerpt: ...its motion on multiple grounds, including res judicata and plaintiff's failure to exhaust administrative remedies, in addition to the argument that plaintiff cannot proffer evidence of pretext or that defendant's legitimate, nonretaliatory and non‐discriminatory reason for the August 1, 2019 Adverse Action was false. The ability to provide admissible evidence in support of his arguments for pretext is essential and where plaintiff ultimately fa...

Excerpt: ...ial counsel familiar with trial counsel's calendar, shall appear at the hearing in order to set trial date and to reschedule the hearing on Defendant's demurrer (telephonic appearances is acceptable). Explanation: Motion to File Evidence Under Seal The plaintiff requests that most of his voluminous medical records (totaling 262 pages) that Dr. Beron relied upon in forming his expert opinion be filed under seal. These records were included as Exhi...

Excerpt: ...embers, 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 July 7, 2023. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed set...

Excerpt: ...d only in the lead case, and shall include the caption and case number of the lead case, followed by the case number of the other consolidated case. Explanation: Code of Civil Procedure section 1048, subdivision (a), provides: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all of the matters in issue in the actions, it may order all the actions consolidated,...

Excerpt: ... it a proper case number for a probate action and shall enter it into Odyssey. Once the case has been transferred, this civil action will be considered closed. Plaintiff is given leave to amend his pleading by filing, within 30 calendar days of the file being transferred, a petition pursuant to Probate Code section 17200 in that action. The clerk of the Probate Department shall assign a hearing date for the petition, and plaintiff shall give prop...

Excerpt: ...ed judgment dismissing the action as to the demurring defendant. Explanation: Procedural Issues The deadline for filing and serving opposition papers is nine (9) court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).) Here, the opposition papers were filed and served late. The opposition was filed on July 15, 2022, nine (9) calendar days before the hearing. Plaintiffs' counsel filed a declaration regarding the untimely filing of t...

Excerpt: ...rgues that the plaintiff's counsel did not meet and confer in good faith before bringing the motions to compel, it appears that plaintiff's counsel engaged in adequate and good faith meet and confer efforts. Plaintiff's counsel exchanged multiple meet and confer letters with defense counsel about the disputed responses in March and April 2022 after receiving the defendant's responses to the discovery and objections. When defendant refused to prov...

Excerpt: ...fied responses to the form and special interrogatories, set one, and requests for production of documents, set one, served on her on November 4, 2021. (Code Civ. Proc. §§ 2030.290; 2031.300.) Barnett shall serve verified responses without objections within 10 days of the date of service of this order. To grant plaintiff's motion to deem defendant Barnett to have admitted the truth of the matters in the request for admissions, set one, as well a...

Excerpt: .... Instead, plaintiff must separately file the Second Amended Complaint within 10 days from the clerk's service of the minute order granting this motion. Explanation: Amended Complaint “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading ….” (Code Civ. Proc. § 473, subd. (a); see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the compl...

Excerpt: ... to waive notice as to both motions, then the court will continue the hearing to rule on the merits at that time. Alternatively, if Aerotek was, in fact, properly served, the court will consider continuing the motions if DMM Packaging, Inc. (“DMM”) files a corrected proof of service prior to or at the hearing. Explanation: Notice Defects: “[A]ll moving and supporting papers shall be served and filed at least 16 court days before the hearing...

Excerpt: ...ed 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, the court “balances the relative hardships.” (Ibid.) The second factor (interim harm) “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status ...

Excerpt: ...ts demurrers. To deny defendants' motions to strike. Defendants shall file responsive pleadings within ten (10) days from the date of this order. Explanation: Judicial Notice It is “well settled” that the court is authorized to consider matters which may be judicially noticed when determining whether a complaint is sufficient to survive a demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Code Civ. Proc., 430.30, subd. (a).) Furthermore,�...

Excerpt: ...ient minimum contacts with the State of California to exercise personal jurisdiction over him. He also argues that it would offend traditional notions of fair play and substantial justice to require him to appear in California to defend against the lawsuit given the lack of evidence that he did anything to cause the accident. Therefore, he concludes that the court should refuse to exercise jurisdiction over him. However, while Wheeler states that...

Excerpt: ... certain warranties. Problems with the vehicle ensued, forming the basis of the instant complaint for damages. Plaintiffs brought five causes of action against defendant for express and implied violations of warranties afforded through the Song‐Beverly Act. Defendant moves to compel arbitration on an arbitration clause in a sales contract made between plaintiffs and a non‐party, Lithia Ford Lincoln of Fresno. A trial court is required to gran...

Excerpt: ...d as to plaintiffs' products liability claim based on the breach of express warranty theory. (Code Civ. Proc., § 430.010, subd. (e).) Plaintiffs are granted 20 days' leave to file the second amended complaint. The time to file the second amended complaint will run from service by the clerk on the minute order. All new allegations in the second amended complaint are to be set in boldface type. Explanation: Demurrer as to the Second Cause of Actio...

Excerpt: ...hat he was ready to file the motion (having already obtained a hearing date), and left a message asking him to call if the date would not work for him, and/or to call in order to discuss the demurrer. This effort is insufficient. The legislative intent behind the meet and confer statutes for demurrers, motions to strike, and motions for judgment on the pleadings is to require the parties to have a good faith discussion about what the moving party...

Excerpt: ...vision (b), contending that the order was the result of his counsel's mistake or excusable neglect. His attorney claims that she submitted invoices to support the requested costs as soon as she learned of the mistake, and that the court granted permission to submit the invoices at the hearing. However, the court later refused to consider the invoices because counsel had not requested oral argument before the hearing. Bassi's counsel contends that...

Excerpt: ...in Dept. 403 Explanation: Discovery requests are generally afforded liberal construction. (see Code of Civ. Proc., § 2017.010; Williams v. Superior Court (2017) 3 Cal.5th 531, 541 [“In the absence of contrary court order, a civil litigant's right to discovery is broad.”].) “In civil litigation, discovery may be obtained from a nonparty only through a ‘deposition subpoena.' [Citation.]” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App...

Excerpt: ...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.) Furthermore, “[o]nly when the inferences are indisputable may the court decide the issues as a matter of law ... An issue of fact becomes one of law only when ‘the undisputed facts leave no room for a reasonable difference of opinion.'” (Manuel v. Pacific Gas & Electric C...

Excerpt: ...she was injured as a result of wet, slippery floor tiles at defendant Target's store. She claims that her expert has concluded that the floor tiles in the area where she fell did not comply with the ADA, as they were “high gloss” and did not have any non‐slip or slip‐resistant coating or treatment, and thus she is entitled to summary adjudication in her favor. However, plaintiff has not met her burden of showing that she is entitled to su...

Excerpt: ...justified, and, if so, what remedy is appropriate. (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 604.) “If PERB applies to the court for injunctive relief … the court must determine that there exists reasonable cause to believe an unfair labor practice has been committed and that the relief sought is just and proper.” (Public Employment Relations Bd. v. Modesto City Schools Dist. (1986) 136 Cal.App.3d 881...

Excerpt: ...East Olive Avenue, Fresno, APN 451‐ 265‐‐3 ("Parcel"), which encompasses the premises operated as a restaurant and brewery by J&A known as Sequoia Brewing Company (777 and 779 East Olive, hereinafter "Premises"). Church's sole cause of action is for specific performance of the “Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate” (“PSA”) between Church and Tower, entered into in September 2020. The PSA as a...

Excerpt: ...days […] before the hearing.” (Code Civ. Proc., § 1005, subd. (b).)” Here, as the moving party points out, plaintiff untimely filed her opposition on June 2, 2022, eight court days before the hearing, and did not serve her opposition until June 6, 2022, six court days before the hearing. The moving party does not waive proper service. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the cou...

Excerpt: ...h causes of action identified below. Any amendments shall be in bold print. Explanation: Judgment on the pleadings “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; see also Templo v. State of Calif. (2018) 24 Cal.App.5th 73...

Excerpt: ...settlement through prior hearings, each with its own filings. The settlement here generally meets the standards for fairness, and the class has approved it, with no objections, opt‐ outs or disputes. Only one of 197 notices were undeliverable. The court finds that the method of notice followed, which this court approved at the prior hearing, comports with due process and was “reasonably calculated to reach the absent class members: “Individ...

Excerpt: ..., after notice and hearing, make an order…that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case….” (Code Civ. Proc., § 598.) Similarly, Code of Civil Procedure section 1048 provides that “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action...

Excerpt: ...tration of the dispute pursuant to the Federal Arbitration Act (9 U.S.C. section 1, et seq.), or under the California Arbitration Act. (Code Civ. Proc., § 1281.2, et seq.) Under the Federal Arbitration Act, 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 any part thereof, … shal...

Excerpt: ...l be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or standards for making the assessment. Published California case law has not done so either. However, the common practice when ruling on PAGA settlements ...

Excerpt: ...st for monetary sanctions, as set forth below. Explanation: Merits Ordinarily, discovery proceedings are required to be completed before the 30th day before trial and a trial continuance does not automatically reopen discovery. (Code Civ. Proc., § 2024.020.) Nevertheless, urgency legislation related to the state of emergency proclaimed by the Governor on March 4, 2020 specified that a continuance or postponement of a trial “extends any deadlin...

Excerpt: ... pending the outcome of the appeal in case no. F080399. Explanation: Defendant John Wash moves for an order declaring him to have satisfied the orders for attorney's fees under Code of Civil Procedure section 724.050. Section 724.050 states, (a) If a money judgment has been satisfied, the judgment debtor, the owner of real or personal property subject to a judgment lien created under the judgment, or a person having a security interest in or a li...

Excerpt: ... 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 April 13, 2023. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed settlement.” Subsection (h...

Excerpt: ...tial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for ph...

Excerpt: ...pond to discovery. (Code Civ. Proc. §§ 2023.010, subd. (g); 2030.290, subd. (c); 2031.300, subd. (c).) To strike plaintiff's complaint and dismiss the action against defendant Teri Elizabeth McMichael. The court intends to sign the proposed judgment as to defendant Teri Elizabeth McMichael only. To deny defendant Uber Technologies, Inc., Rasier, LLC, and Rasier‐CA, LLC's joinder regarding terminating sanctions. To grant defendant Uber Technol...

Excerpt: ...in the action. Plaintiff asserts that the terms “Individually and as Executrix of the Estate of Kent L. Kilburn, deceased” were inadvertently omitted from the caption of the First Amended Complaint(“FAC”) as a result of a clerical error and that it is apparent by the face of the FAC that plaintiff intended to bring suit in her individual and representative capacity. Plaintiff has met the formalities required of a motion to amend the first...

Excerpt: ...of mandate filed pursuant to Section 1088.5 presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ.” This motion presents only issues of law. The inquiry in a writ of administrative mandate includes whether “the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial;...

Excerpt: ...vered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l Securities 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.) There is a strong public policy in favor of ...

Excerpt: ...nd 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 framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movant's favor; and determining whether the opposition d...

Excerpt: ...gence cause of action listed on the First Amended Complaint, Judicial Council Form Item 10, box (b). To deny defendant's motion to strike the legal malpractice cause of action listed on the First Amended Complaint, Judicial Council Form Item 10, box (f). To grant, with leave to amend, defendant's motion to strike the portions of the First Amended Complaint referencing to Exhibits A and B, on the document titled “AMENDED COMPLAINT #1, Causes of ...

Excerpt: ... Civil Procedure section 418.10, subdivision (a). In opposition, plaintiff notes that defendant merely challenges jurisdiction based on a lack of capacity to be sued. Plaintiff argues that a challenge based on capacity is not jurisdictional, and therefore the motion to quash must be denied. The purpose of Code of Civil Procedure section 418.10 is to provide a defendant upon whom service of summons has been made a means to serve and file a notice ...

Excerpt: ...n. Explanation: “Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) In addition, “judges shall have the responsibility to eliminate delay in the progress and ultimate resolution of litigation ….” (Gov. Code, § 68607.) Furthermore, “[e]very court shall have the power to do all of the fo...

Excerpt: ...planation: As stated in CCP Sec. 430.10(f), a pleading is “uncertain” if it is ambiguous and/or unintelligible. Ordinarily, a demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. [Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 6...

Excerpt: ...tial function “is not to try any factual issues, but to ascertain whether any triable issues of fact exist.” (Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 597.) Accordingly, the trial court does not make findings of fact in determining a motion for summary adjudication, and may not grant the motion on its evaluation of weight of evidence or witness credibility, nor may it grant the motion “based simply on its opin...

Excerpt: ...rshba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally certified fo...

Excerpt: ...ssary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Accordingly, “the pleadings delimit the scope of the issues, and the function of affidavits, declarations, or other supporting evidence is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1132.) In ruling on...

Excerpt: ... sustain, with leave to amend, defendants' demurrer to the second cause of action as to both plaintiffs, for failure to state sufficient facts to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subd. (e), (f).) To sustain, with leave to amend, defendant Linda Bowman's (“Bowman”) demurrer to the third and sixth causes of actions as to Caro, for failure to state sufficient facts to state a cause of action and uncertainty. ...

Excerpt: ...motor vehicle; general negligence; and tort of a public entity. Plaintiff alleges that on October 6, 2020, plaintiff was a passenger on a FAX bus, which is alleged to be owned, supervised, managed, maintained, equipped, repaired, controlled and/or operated by the City. That bus, the Route 9 Shaw bus driven by defendants' employee, was carelessly and negligently controlled and operated, leading the bus to be driven at an accelerated, high rate of ...

Excerpt: ...ract against defendants Mike Garcia and Silvia Garcia (the Garcias); and trespass against Jose Ventura Rivera Moreno. On July 11, 2018, Rivera Moreno filed a cross‐complaint for indemnification. Following a two‐day court trial, this court issued a proposed statement of decision. The proposed statement of decision found that plaintiffs' three claims against the Garcias failed, and that plaintiff's claim against Rivera Moreno failed. Because pl...

Excerpt: ...on motion, may enter judgment pursuant to the terms of the settlement.” It also provides that the parties may request that the court “retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc. § 664.6.) Due to the summary nature of the statute authorizing judgment to enforce a settlement agreement, strict compliance with its requirements is a prerequisite to in...

Excerpt: ...at justify reconsideration of the order. (Code Civ. Proc. § 1008, subd. (a).) “A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212, internal citations omitted.) “Case law after the 1992 amendments to section 1008 has relaxed the definition of ‘new or different facts,' but it is still ...

Excerpt: ...governmental immunity. 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 action under any legal theory. (Barquis v. Merchants Collection Assn. (1972)...

Excerpt: ...ED AT 3:00 PM. Explanation: Plaintiff has sued the State of California for negligence, negligent supervision, and negligence per se. However, since the State is a public entity, it is immune from liability unless there is a statute that imposes a duty of care on it. (Gov. Code § 815, subd. (a).) Thus, in order to state a claim against a public entity, plaintiff must allege that the there was a statute that imposed a duty on the entity to protect...

Excerpt: ...ther witnesses to the alleged property sale agreement. Once plaintiff has obtained discovery responses, the court will hear the merits of the motion to expunge. Explanation: In its order issued after the last hearing, the court was concerned that plaintiff had not had a chance to respond to Ms. Barnett's reply evidence, which raised serious concerns about the credibility of plaintiff's version of events and cast doubt on whether plaintiff was lik...

Excerpt: ...ving party, a defendant bears the initial burden of proof to show that plaintiff cannot establish one or more elements of their causes of action or to show that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and this must be shown via specific f...

Excerpt: ...ney's fees. (Civil Code § 1717.) To deny defendant John Wash's motion to strike the entirety of plaintiff's motion. However, the court intends to reduce the amount of fees to be awarded to plaintiff to $6,950. Defendant John Wash shall pay attorney's fees to plaintiff within 30 days of the date of service of this order. Explanation: Under Civil Code section 1717, subdivision (a), “In any action on a contract, where the contract specifically pr...

Excerpt: ...ions may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” (Ibid.) “[T]he court shall order the notice expunged if the court finds that the pleading on which the notice is b...

Excerpt: ...osian Raisin Packing Company, Inc. The causes of action are brought pursuant to the Private Attorneys General Act (PAGA) Labor Code section 2698, et seq. Plaintiff brings the action on behalf of herself and other aggrieved employees of defendant who were employed by defendant between March 17, 2020 and May 21, 2021 as packers, line workers or other similar positions. The complaint alleges six causes of action, all are Violations of PAGA, Labor Co...

Excerpt: ...on any terms as may be proper, allow a party to amend any pleading ... ” (Code Civ. Proc., § 473, subd. (a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Cal. Rules of Court, Rule 3.1324 provides that a motion to amend must: (1) include a copy of the proposed amendment, (2) state what allegations in the previous pleading are proposed ...

Excerpt: ... sufficient to constitute a cause of action, as discussed in detail below. (Code Civ. Proc. § 430.10, subd. (e).) To grant the motion to strike the portion of paragraph 17 of the first amended complaint which states, “I am familiar with the owner of Pacific Grain & Foods, LLC, Lee Perkins, the petitioner in this case, as I have witnessed him engage in an unprofessional and aggressive manner toward his employees that was shocking and unforgetta...

Excerpt: ...ontacts with California to justify imposing personal jurisdiction over it. The hearing on Standard's motion will be continued to April 12, 2022 at 3:30 p.m. in Department 403. Explanation: “First, when jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts' exist between defendant and the forum state to justify imposition of personal jurisdiction. The plaintiff ha...

Excerpt: ... purchased wine grapes that were allegedly unusable because of “smoke taint” following the 2017 wildfires in Northern California. Plaintiff contends the smoke taint destroyed the marketability of much of plaintiff's wine and juice, resulting in $14.79 million in actual losses and anticipated future losses of $86.16 million. Four causes of action remain: (6) Negligence against defendant Dalena‐Benick; (7) Breach of Fiduciary Duty against def...

Excerpt: .... To grant defendants' motion for summary adjudication of the third cause of action for defamation. (Ibid.) To grant plaintiff's motion for leave to amend the complaint. (Code Civ. Proc. § 473, subd. (a).) Plaintiff shall serve and file her first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Motion for Summary Judgment/Adjudication: First, defendants move for summary...

Excerpt: ...an Ambulance, et al.'s motion to strike plaintiffs' memo of costs. To grant the motion to tax certain items in the memo of costs, as set forth below. Explanation: 1. Plaintiffs' Motion to Strike or Tax CRNA Bassi's Memo of Costs: Under Code of Civil Procedure section 1032, subdivision (b), “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Cod...

Excerpt: ... party must draft and submit to the court a protective order limiting the disclosure of plaintiff's documents to defendants' counsel and experts, and requiring the destruction of the documents at the end of these proceedings. Plaintiff shall serve further responses in full compliance with Code of Civil Procedure, sections 2031.210 – 2031.230, without objections, and production of all responsive documents no later than 30 court days from the dat...

Excerpt: ...f the trial court, in its discretion, requires an undertaking and the undertaking is not given, in any of the following cases: (1) Appellant was found to possess money or other property belonging to respondent. (2) Appellant is required to perform an act for respondent's benefit pursuant to judgment or order under appeal. (3) The judgment against appellant is solely for costs awarded to the respondent …” (Code Civ. Proc., § 917.9, subd. (a)....

Excerpt: ...rican Investments to provide further responses to Form Interrogatories – Employment, as specified below. Defendants shall serve their responses no later than 20 court days from the date of this order, with the time to run from the service of this minute order by the clerk. To impose monetary sanctions in favor of Plaintiff Labor Commissioner, and against Sharon Rassamni in the sum of $333.00, Liberty Financial Group in the sum of $333.00, and G...

Excerpt: ...mber 22, 2020 approval of the petition to list the western Joshua tree1 as a candidate species under the California Endangered Species Act, (Fish & G. Code, § 2050, et seq. [“CESA”2 ].) For the reasons set forth below, this court intends to leave the Commission's threshold approval undisturbed and deny the petition for writ of mandate. (Code Civ. Proc., § 1094.5.) Statutory Background The California Endangered Species Act (“CESA”) conta...

Excerpt: ...s. (Code Civ. Proc. § 2033.280.) The discovery cutoff dates and discovery motion cutoff dates had already run before the discovery requests were served, so plaintiff's motion is untimely and must be denied. (Code Civ. Proc. § 2024.020.) Explanation: Under Code of Civil Procedure section 2033.280, If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests...

Excerpt: ... to the declaration of Robert Offerman, paragraphs 1, 2, 8, 9, and 15. All other objections are overruled pursuant to Code of Civil Procedure, section 437c, subdivision (q). To deny moving defendants' motion for summary judgment. (Code Civ. Proc., § 437c, subd. (c).) To grant moving defendants' motion for summary adjudication as it relates to the second and third causes of action. (Code Civ. Proc., § 437c, subd. (f).) The motion is denied as it...