Excerpt: ...r's expert trial witnesses to the following extent: [¶] (a) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.” (Code Civ. Proc., § 2034.210, subd. (a).) “The exchange of expert witness information shall incl...

Excerpt: ... specified below. To impose monetary sanctions in favor of plaintiff Labor Commissioner, and against A.J. Rassamni in the sum of $333.00, Sharon Rassamni in the sum of $333.00, Liberty Financial Group in the sum of $333.00, and Great American Investments in the sum of $333.00. (Code Civ. Proc., § 2023.010, subd. (f), (h).) Defendants shall pay the sanctions to plaintiff's counsel within 30 days of the clerk's service of the minute order. Explana...

Excerpt: ...t leave to amend. (Code Civ. Proc., § 430.10, subd. (e). Explanation: The court notes that the complaint does not indicate which causes of action alleged are pertaining to each respective defendant. Thus, the court will only rule on this demurrer as to State Farm as to all causes of action. Plaintiff's Standing to Sue: Defendant State Farm demurs to each cause of action, contending that plaintiff has not alleged sufficient facts to state a valid...

Excerpt: ...nder Code of Civil Procedure section 397, subdivision (a) and Government Code section 12965, subdivision (b)(3). Under Code of Civil Procedure section 397, “The court may, on motion, change the place of trial in the following cases: [¶] (a) When the court designated in the complaint is not the proper court.” (Code Civ. Proc., § 397, subd. (a).) There is no express time limit for moving for a change of venue under section 397, and courts sho...

Excerpt: ... Documents, set one, nos. 1‐7 and 10‐12. The motion is denied as to demand nos. 8 and 9. Defendants shall each serve further verified responses without objections and produce all responsive documents to demand nos. 1‐ 7 and 10‐12 within 30 days of service of the order by the clerk. To impose monetary sanctions in favor of plaintiff Labor Commissioner, and against A.J. Rassamni in the sum of $333.00, Sharon Rassamni in the sum of $333.00, ...

Excerpt: ... Inc. (“Toyota”) shall serve verified supplemental responses without objections within 20 days of the date of service of this order. Explanation: On April 29, 2021, plaintiffs propounded its Request for Production of Documents, Set One (“RFPD, Set One”), containing 53 requests, to Toyota. On June 1, 2021, Toyota served its responses, including objections, to each of the 53 requests. On August 31, 2021, plaintiffs requested a Pre‐trial D...

Excerpt: ...and for Inspection of Documents, Set One, is rendered moot by plaintiff's response to the discovery request, served on November 16, 2021. To grant defendant's motion to compel further responses to defendant's Demand for Inspection of Documents, Set Two as to Request Nos. 12‐14 and 16‐24. Plaintiff shall serve further responses in full compliance with Code of Civil Procedure, sections 2031.210 – 2031.230, without objections, and produce all ...

Excerpt: ... days after the ten‐day deadline for filing an amended complaint set by the court's order after it granted the last motion to strike. Under Code of Civil Procedure section 436, subdivision (b), “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: … (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rul...

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

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

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

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

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

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

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

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

Excerpt: ...consider all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...osing party has relied on the list of expert witnesses. [¶] (b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits. [¶] (c) The court has determined either of the following: [¶] (1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony...

Excerpt: ...ing the completion of arbitration. Explanation: In moving to compel arbitration, defendants must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered 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...

Excerpt: ...ction 473, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in 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 ...

Excerpt: ... of Order was created to work in conjunction with Local Rule 2.1.17, which states: Filing a request for a Pretrial Discovery Conference tolls the time for filing a motion to compel discovery on the disputed issues for the number of days between the filing of the request and issuance by the Court of a subsequent order pertaining to the discovery dispute. (Fresno Superior Court Local Rules, Rule 2.1.17(A)(5).) Tolling functions merely to “stops t...

Excerpt: ...ections to the request on the grounds that plaintiff's lawsuit is not for personal injury or wrongful death. Renaissance now moves to compel a response pursuant to Code of Civil Procedure section 425.11, subdivision (b). Code of Civil Procedure section 425.11, subdivision (b) states: “When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth t...

Excerpt: ...led two motions referencing an October 6, 2021 hearing date: (1) motion to vacate the November 17, 2020 order, strike defendant's answer and cross‐complaint, and enter default (filed March 18, 2021), and (2) strike defendant's answer and cross‐complaint, and enter default (filed September 8, 2021). Plaintiff reserved a hearing date for only the second motion1 . Defendant, a corporation that cannot represent itself (Merco Constr. Engineers, In...

Excerpt: ...on a party's motion to vacate a judgment or decree and enter ‘another and different judgment” because either an “[i]ncorrect or erroneous legal basis for the decision, not consistent with or … supported by the facts' or ‘[a] judgment or decree not consistent with or … supported by the special verdict' entitles the moving party to a different judgment.” (In re Marriage of Furie (2017) 16 Cal.App.5th 816, 831.) Plaintiff contends her ...

Excerpt: ...default entered against them on December 28, 2020. To grant the motion of defendant Harpal Singh to set aside the default entered against him on January 4, 2021. (Code Civ. Proc., § 473, subd. (b).) Defendants shall file their answer within five (5) days of the clerk's service of this minute order. Explanation: Defendants contend that their defaults were taken as a result of mistake, inadvertence, surprise, or excusable neglect and that the serv...

Excerpt: ...g 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 facts in the case. (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 775.) The moving part...

Excerpt: ...ice by the clerk of the minute order. All new allegations are to be set in boldface type. To overrule defendant's evidentiary objections to Paragraphs 3, 4, 5 and Exhibit B of the Dobbins Declaration and to sustain the objection to Exhibit C. 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 o...

Excerpt: ...., § 437c, subd. (q).) Explanation: The ultimate burden of persuasion on summary judgment/adjudication rests on the moving party. The initial burden of production is to show, by a preponderance of the evidence, that it is more likely than not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly constru...

Excerpt: ...iled pursuant to this part. The proposed settlement shall 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. Howev...

Excerpt: ...tories, Set 2, Interrogatory No. 45. Request for production No. 58 seeks “Any DOCUMENTS relating to the calculation and payment of Harry Overly's salary, including bonus and/or other incentive pay from 2018 through the present.” Interrogatory No. 45 asks, “Since 2018, has Harry Overly received any sort of compensation from YOU as an incentive based on profits of Sun Maid.” In opposition, Sun Maid argues that plaintiffs' requests should be...

Excerpt: ... pending demurrer. To sustain the demurrer to the second amended complaint, in its entirety. No leave to amend is granted. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349‐350.) Defendant shall submit a judgment of dismissal within 5 days of the clerk's service of this minute order. Explanation: I. Motion to Strike On January 11, 2021, the court sustained Sun‐Maid's demurrer as to all nine counts of plaintiffs' First Amended Complaint. The c...

Excerpt: ...of the clerk's mailing of the minute order. To deny the motion to quash as moot. Explanation: The court has power to set aside a judgment that is void as a matter of law. (Code Civ. Proc., § 473, subd. (d).) A judgment may be void as a matter of law for many reasons, including lack of or improper service of summons and lack of personal jurisdiction. (See Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1120–1121; see also Ellard v. Conway (2001...

Excerpt: ...rvices rendered on appeal as well. (Wilson v. Wilson (1960) 54 Cal.2d 264, 272.) However, where the appellate decision contemplates further proceedings in the trial court, the successful party on appeal is not yet entitled to Civil Code section 1717 fees on appeal. (Presley of S. Cal. v. Whelan (1983) 146 Cal.App.3d 959, 961.) In Presley, in an action for a breach of contract, an appellate court reversed a trial court's granting of the defendant'...

Excerpt: ...ocuments, set one, nos. 10, 11, 13, 16, 24, 25, 27, and 34. The motion is denied as it relates to Nos. 1 and 20. Defendant Harmony Communities, LLC shall provide further responses to nos. 10, 11, 13, 16, 24, 25, 27, and 34 within twenty (20) days from the date of this order. 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.) A mo...

Excerpt: ...tled “Acknowledgment and Agreement to be Bound by the Alternative Dispute Resolution Policy” (“arbitration agreement”) and the “Alternative Dispute Resolution Policy” (“ADR Policy”), including the Spanish language versions of these documents, which shorten the timeframe to bring a claim to one year from the termination of employment is severed from those documents. Explanation: The moving party bears the burden of showing the arbi...

Excerpt: ...2030.300.) To limit the timeframe for the interrogatories to a period of three years before the plaintiffs made their claims. To grant sanctions against defendant for its unjustified refusal to respond to the interrogatories, in the amount of $1,375 per motion. (Ibid.) Defendant shall provide further responses within ten days of the date of service of this order. Defendant shall pay sanctions within 30 days of the date of service of this order. E...

Excerpt: .... Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1800–1801; CRC 3.769(a), 3.770(a); In re Microsoft I–V Cases (2006) 135 Cal.App.4th 706, 723. This applies both to settlements reached before or after a class has been certified. Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 236. Before the c...

Excerpt: ... without objections, to defendant Michelle Iarusso's Special Interrogatories, Set One, and Request for Production of Documents, Set One, no later than 15 court days from the date of this order, with the time to run from the service of this minute order by the clerk. The matters specified in defendant Michelle Iarusso's Requests for Admission, Set One, are deemed admitted, unless plaintiff Danae Schmitzer serves, before the hearing, a proposed res...

Excerpt: ...spects. To overrule all objections. Explanation: Burden on Summary Judgment 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, court...

Excerpt: ...Ct. Fresno County, Local Rules, rule 2.8.4) In the event that oral argument is requested, both Petitioner and Christian Rea are excused from appearing. Explanation: Petitioner proposes to accept a compromise of disabled adult Christian Rea's claims arising from a two auto collisions for a gross settlement of $45,000, paying $5,000 of the proceeds to cover in excess of $3.2 million in medical expenses, $690 in costs and $15,000, or approximately 3...

Excerpt: ... necessary. To deny, without prejudice, the Petition for Plaintiff Nelson Osvaldo Valladares Lopez. In the event that oral argument is requested, the Court finds good cause to excuse personal attendance by Petitioner and minor. To set a Status Conference for November 16, 2021, 8:30 a.m. in Department 403 for Petitioner to report from any investigations conducted regarding the issues raised as to the best arrangement for Plaintiff Nelson Osvaldo V...

Excerpt: ...ate to Amy Castro's renewed deposition and are non‐privileged. The renewed deposition of Amy Castro shall take place within 30 days of the clerk's service of this minute order. To grant sanctions in the amount of $2,652.50. Defendant Target Constructors, Inc. shall pay the sum of $2,652.50 to counsel for plaintiff within 30 days of the clerk's service of this minute order. If oral argument is timely requested, the matter will be heard on Thursd...

Excerpt: ...seventh (unjust enrichment), and eighth (interference with business relations) and tenth (conspiracy) causes of action. Leave to amend is granted as to the third, fourth, fifth, seventh, and eighth causes of action, but plaintiff must be able to allege claims either founded in contract and seeking contractual remedies, or founded in tort and based on “(1) facts showing that the plaintiff's property right in the information at issue stems from s...

Excerpt: ... A.J. Rassamni shall provide further responses, without objections to Form Interrogatories – Employment, set one, numbers 207.2, 208.1, 208.2, 211.2, 211.3. (Code Civ. Proc. § 2030.300.) The motion is denied as to interrogatory number 209.1. Defendant A.J. Rassamni shall serve his 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 sancti...

Excerpt: ...alse factual assertion; (3) the factual assertion is false; and (4) the defendant failed to take reasonable care to determine the truth or falsity of the assertion. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 470; Judicial Council of Cal. Civ. Jury Instns. (Feb. 2021 rev.) CACI No. 1704.) However, where the plaintiff is a private figure suing over a statement addressing an issue of public concern, plainti...

Excerpt: ...f covenant of quiet enjoyment, (4) negligence, (5) violation of Civil Code sections 1942.4, 1942.5, (6) unfair business practices. Plaintiffs move for summary judgment, or alternatively summary adjudication of each cause of action. Where plaintiffs seek summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling them to judgment. (Code Civ. Proc., § 437c, subd. (p)(1); see Hunter v. Pacific...

Excerpt: ...de Civ. Proc., § 2031.310.) The motion can be utilized to attack a response containing: an objection; an agreement to comply that is incomplete; or a statement of inability to comply that is incomplete or evasive. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must be served within 45 days after service of a verified response (extended if served by mail, overnight delivery, fax or electronically). (See Code Civ. Proc., §§ 1010.6, subd. ...

Excerpt: ...) Moving party is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. To grant Defendant Aaron J. Carter, M.D.'s Motion for Summary Judgment. (Code Civ. Proc. § 437c(c).) Moving party is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. To grant D...

Excerpt: ...the entire action until an arbitration is had in accordance with the order to arbitrate. (Code Civ. Proc., § 1281.4.) Explanation: Moving Party Burden: The moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396‐397, 399‐400; Graphic Arts Int'l Union v. Oakland Nat'l Engraving Co. (1986) 185 Cal.Ap...

Excerpt: ... order that a record be filed under seal if it expressly finds facts that establish: (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve...

Excerpt: ...4, 6, 7, 9, 10, and 11. All other objections are overruled as immaterial to the determination of the motion. (Code Civ. Proc., § 437c, subd. (q).) Explanation: Burden on Summary Judgment 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 opposi...

Excerpt: ...a)(1) which provides that, “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve or file a motion … [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” “On a challenge to personal jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the evidence, the factual...

Excerpt: ...d when the 2016 Polaris Ranger Crew XP (“Subject Vehicle”) she was driving rolled over. Plaintiff alleges that the Subject Vehicle was defective in design, and in order to demonstrate that alternative safer designs were feasible when Polaris constructed the Subject Vehicle, Plaintiff seeks to depose the American Honda Motor Company and compel it to produce extensive documentation regarding the safety netting installed on Honda's UTVs. The dis...

Excerpt: ...laims, plaintiffs must prove the same elements, namely that (1) defendant owed them a duty of care, (2) defendant breached that duty, and (3) plaintiff suffered damages as a proximate result of the breach. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) In order to prevail on a premises liability claim, plaintiffs must show that defendant owned, leased, occupied, or controlled the subject property. (Contreras v. Anderson (1997) 59 Ca...

Excerpt: ...996) 45 Cal.App.4th 705, 713, quoting § 437c, subd. (c).) To prevail on a motion for summary judgment, it is the moving party's burden to prove there is a complete defense or that plaintiff cannot establish one or more elements of each of his causes of action. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.).) To show that plaintiff cannot establish his claims, defendant may either (1) affirmatively negate one or more elements of...

Excerpt: ...'s request for judicial notice of Exhibits A through G pursuant to Evidence Code Secs. 452(a), 452(c) and 452(d)(1). To take judicial notice sua sponte pursuant Evidence Code Sec. 452(c) of the postings on the website of the California Secretary of State for the entity known as Valley Cardiac Surgery Medical Corporation. Explanation: Third Cause of Action—Retaliation and Wrongful Termination in violation of Labor Code Sec. 1102.5 Labor Code Sec...

Excerpt: ...t 502. Defendant Hurley's opposition shall be served and filed on or before Thursday, September 9, 2021. Plaintiff's reply shall be served and filed on or before September 17, 2021. Explanation: If the party opposing the motion for summary judgment or adjudication shows by declaration that essential evidence “may exist but cannot, for reasons stated, be presented,” the court shall deny the motion, or continue it for a reasonable period, or �...

Excerpt: ... the Settlement Administrator, by January 10, 2022. Explanation: Certification of Class for Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected, although there is less scrutiny of manageability issues. (Wershba 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, 19.a) The ...

Excerpt: ...r punitive damages only. Plaintiff is granted 20 days' leave to amend. The time in which an amended pleading may be filed will run from service by the clerk of the minute order. All new allegations in the amended complaint are to be set in boldface type. Explanation: This case was filed on December 9, 2019. Two causes of action are alleged: (1) negligence; and (2) legal malpractice. Defendant Stephen Labiak now demurs to both causes of action. Ea...

Excerpt: ...ndant Ford Motor Co.'s objections. None are material to the outcome of the instant motion. Explanation: Defendant Ford Motor Co. (“FMC”) now moves to compel arbitration. It brings the instant motion based on the broad language of the Arbitration Provision that plaintiff signed when she purchased the subject Vehicle. In relevant part, the Arbitration Provision states: Any claim or dispute, whether in contract, tort or statute… between you an...

Excerpt: ...esire to file a first amended complaint, that must be done within 20 days from the date of this order and any new allegations must be in bold print. Explanation: “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., 452.) Furthermore, “[t]his rule of liberal construction means that the reviewing co...

Excerpt: ...cedure, section 473c, subdivision (f)(2), “A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc., § 437c, subd. (f)(2).) If a party brings a renewed summary...

Excerpt: ...2.551(a).) “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551(b)(1).) “The party requesting that a record be filed under seal must lodge it with the court under (d) when the motion or application is made, ...

Excerpt: ...lse factual assertion; (3) the factual assertion is false; and (4) the defendant failed to take reasonable care to determine the truth or falsity of the assertion. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 470; Judicial Council of Cal. Civ. Jury Instns. (Feb. 2021 rev.) CACI No. 1704.) However, where the plaintiff is a private figure suing over a statement addressing an issue of public concern, plaintif...

Excerpt: ...cy limit settlement with plaintiff was in good faith pursuant to Code of Civil Procedure sections 877 and 877.6. Defendants Jorawar Singh Nagra and Amandeep Singh dba Handi Stop Mini Mart (“Handi Stop”) filed this motion opposing the settlement. Vasquez argues that the opposing parties fail to meet their burden to provide admissible evidence establishing lack of good faith. However, on a contested motion it is still the settling party's burde...

Excerpt: ... that arises out of the same incident that led to plaintiffs' decedent's death. He contends that it would constitute a violation of his Fifth Amendment rights to have to choose between testifying in the civil case to defend himself and potentially incriminating himself, or remaining silent in the civil case and potentially being subjected to civil sanctions in order to avoid incriminating himself. An application for a stay is addressed to the sou...

Excerpt: ...defendants Judge Harrell, Judge Alvarez and Judge Simpson's demurrer to plaintiff's first amended complaint without leave to amend. (Code Civ. Proc., § 430.10, subd. (a).) To find moot defendant Judge Gamoian's demurrer to plaintiff's first amended complaint. To deny plaintiff's motion. Explanation: Defendants Judge Harrell, Judge Alvarez and Judge Simpson's Demurrer to Plaintiff's First Amended Complaint Subject Matter Jurisdiction. No specific...

Excerpt: ...pple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) 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 for se...

Excerpt: ...g 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 the litigat...

Excerpt: ...e based on the party's health: In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. (Emphasis added.) Rather, th...

Excerpt: ...ust be done within 20 days from the date of this order and any new allegations must be in bold print. If plaintiff does not file a second amended complaint within the allotted time period, defendant shall file an answer to the first amended complaint within 30 days from this order. Explanation: Demurrer to Cause of Action Three: Fraudulent Inducement ‐ Concealment Defendant demurs on the grounds that the first amended complaint's cause of actio...

Excerpt: ...f'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 cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against the demurrer, we treat the dem...

Excerpt: ...n for Terminating Sanctions Code of Civil Procedure section 2023.010 defines “misuses of the discovery process” as including, “failing to respond or submit to an authorized method of discovery” and “disobeying a court order to provide discovery.” (Code Civ. Proc. § 2030.010, subds. (d) & (g).) Code of Civil Procedure section 2023.030 states, in relevant part: To the extent authorized by the chapter governing any particular discovery ...

Excerpt: ...omplaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Second Cause of Action – Negligent Infliction of Emotional Distress (NIED) Defendants demur to plaintiff Naomi Hendrix's cause of action for negligent infliction of emotional distress (NIED) on the grounds that the second amended complaint (SAC) fails to allege facts sufficient to state a cause of action. Specifically, defendants contend that the...

Excerpt: ...National Carriers, Inc., is modified as follows: “Application for employment, including but not limited to documents received from prior employers excluding any personal financial or medical information of Michael Alexander Gomez, incident reports, driver training records, driver evaluations excluding Department of Transportation drug and alcohol test information, driver history, license history, and all documents regarding termination of emplo...

Excerpt: ...o cause of action three. To deny cross‐complainant Usman Javed's Motion for Summary Adjudication to the Cross‐Complaint. Explanation: A defendant moving for summary judgment meets its burden of showing that a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established. (Code Civ. Proc., § 437c; see also Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 286.) Here, de...

Excerpt: ...uant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure.” In addition, under Government Code section 53511, subdivision (a), “A local agency may bring an action to determine the validity of its bonds, warrants, contracts, obligations or evidences of indebtedness pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure.” Pursuant to Code of Civil Pro...

Excerpt: ...equests for Admission, Set 17, Admitted. Tentative Ruling: (1) To grant and award monetary sanctions in the amount of $1,290 against plaintiff Noe Luna and his attorney, L. Dean Smith, Jr., jointly and severally, payable within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. Plaintiff is ordered to serve further responses without objections to PLH Group, Inc.'s Special Interrogatories, S...

Excerpt: ...s. None are material to the outcome of the instant motion. (Code Civ. Proc., § 437c, sub. (q).) Explanation: A defendant moving for summary judgment meets its burden of showing that a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established. (Code Civ. Proc., § 437c; see also Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 286.) However, if a single triable issue o...

Excerpt: ...against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. Code of Civil Procedure section 473.5 states: (a...

Excerpt: ... “irrelevant, false or improper” matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166‐167.) Defendants claim that there are insufficient facts to support a claim ...

Excerpt: ...ollowing: [¶] (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross‐complaint [¶] (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him ….” (Code Civ. Proc., § 428.10, subd. (b); see also Newhall Land and Farming Co. v. McCarthy Const. (20...

Excerpt: ... any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: … When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc., § 639, subd. (a)(5).) �...

Excerpt: ...medy to dismiss 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 t...