Excerpt: ...y brief on this motion. If a hearing on this motion is necessary, the court will award an additional $350 in attorney fees. Costs on appeal are fixed in the total amount of $1,165.65, in accordance with the unopposed Memorandum of Costs on Appeal in the amount of $1,100.40 plus the filing fee of $65.25 associated with this motion. Explanation: An award of costs on appeal, as the appellate court awarded here, does not include an award of appellate...

Excerpt: ...endants' demurrer to the entire complaint, without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Defendants shall submit a judgment of dismissal within five days of the clerk's service of this minute order. Explanation: General Standard of Ruling 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...

Excerpt: ...irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98; see Federal Arbitration Act (FAA)(9 U.S.C. § 1 et seq.).) Title 9 United States Code section 2 states that, “A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter a...

Excerpt: ...boldface. Explanation: Under Civil Code section 3294, in order to obtain punitive damages, plaintiff must allege ultimate facts showing that defendant acted with malice, fraud, or oppression. (Civil Code § 3294; Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316–317.) “Malice is defined as ‘conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and c...

Excerpt: ..., if necessary. (Code Civ. Proc. § 598, 1048, subd. (b).) Also, the punitive damage claim will be tried after the jury trial of the legal claims. (Civil Code § 3295, subd. (d).) Explanation: “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial ...

Excerpt: ...int 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 first amended complaint (FAC) fails to allege facts sufficient to state a cause of action. Specifically, defendants contend that the FAC fails to plead sufficient facts to demonstrate ...

Excerpt: ... oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) In other words, a showing that the defendant's conduct was negligent, grossly negligent or even reckless is insufficien...

Excerpt: ...e monetary sanctions against plaintiff Pavitarjit Sihota and his attorneys of record, Fishman Larsen & Callister, in the amount of $ 2,775. (Code Civ. Proc., §§ 2033.290, subd. (c), 2031.310, subd. (h), 2030.300, subd. (d).) Sanctions in the amount of $925 must be paid to the Law Office of Emerson ∙ Church within 30 days after service of this order. Sanctions in the amount of $1,850 must also be paid to the Whelan Law Group within 30 days aft...

Excerpt: ...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 is to follow existing law on class action settlemen...

Excerpt: ...y fees. The court finds the issue of temporal limitation could have been resolved without the need for the instant motion. Explanation: Defendant Doshier moves to quash the subpoena directed to Cintas dated October 23, 2020. He argues: (a) there is no “compelling interest” to justify disclosure of private records; (b) the subpoena is overbroad in time and scope; and (c) the subpoena seeks documents that are neither relevant nor reasonably cal...

Excerpt: ...ed Beverly's motion for summary judgment or adjudication on the merits in March of 2020, and Beverly has not shown that there are any newly discovered facts, circumstances or a change in the law that would justify renewal of the motion.1 Under Code of Civil Procedure section 437c, 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 th...

Excerpt: ...ablishing the moving party's right to the relief sought. (Regents of Univ. of Calif. v. Superior Court (1996) 41 Cal.App.4th 1040, 1044.) Plaintiff re‐filed the motion, albeit narrower in scope, and again neglected to include the policy in the volume of evidence, only submitting it with a notice of errata after the opposition had already been filed. The court would let that omission slide except that many of the other exhibits are not properly ...

Excerpt: ... 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 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 stron...

Excerpt: ...1, 2021, and that any claim file for which consent is received be produced by May 17, 2021. A further response, under oath, need also be served on May 17, 2021 which states that production was allowed in full, with the exception of documents identified in that further response as falling within the attorney/client privilege or work product doctrine. Such identification shall list the document's “author, date of preparation, all recipients, and ...

Excerpt: ... post an undertaking to continue prosecuting the case. (Code Civ. Proc. §§ 437c; 1030.) Explanation: Motion for Summary Judgment: Defendant Caltrans moves for summary judgment as to the entire complaint, arguing that plaintiffs cannot prevail on their claim that the section of Highway 180 where their son died constitutes a dangerous condition of public property because the claim is barred by the design immunity defense. “A public entity may b...

Excerpt: ...emphasis added).) 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; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Colonial has largely complied with Cal. Rules of Court, Rule 3.1324. Colonial seeks to add a workers' compensation exclusivity affirmative defense. The court agrees wit...

Excerpt: ...Fact and Law “California courts consider ‘pattern and practice evidence, statistical evidence, sampling evidence, expert testimony, and other indicators of a defendant's centralized practices in order to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate.” (Jaimez v. DAIOHS USA (2010) 181 Cal.App.4th 1286, 1298.) In the prior order the court expressed that no such evidence had been p...

Excerpt: ..., order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) The motion “shall be made within a reasonable time, in no case exceeding six months, after the … proceeding was taken.” (Ibid.) “The law favors judgments based on the merits, not procedural missteps.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134; see also Riskin v. T...

Excerpt: ...nd cause of action with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff is granted 20 days, running from service of the minute order by the clerk, to file and serve a second amended complaint. All new allegations in the amended complaint are to be set in boldface type. To deny defendant's motion to strike as moot in light of the court's February 17, 2021 order. Explanation: Demurrer A demurrer tests only the legal sufficiency o...

Excerpt: ...service of the minute order, a proposed judgment dismissing the action. Oral argument on this matter is continued to March 18, 2021, at 3:30 in Dept. 403 so that the petitioner may be present for oral argument via Court Call. Explanation: Petitioner is a civil detainee committed under the Sexually Violent Predator (SVP) Act, and is detained at the Department of State Hospitals, Coalinga (DSH‐Coalinga). The petition concerns DSH's statewide proh...

Excerpt: ...n for violation of Labor Code section 226(a) on the ground that the cause of action is barred by the one‐ year statute of limitations under Code of Civil Procedure section 340. “[T]he one‐year statute of limitations set forth in Cal. Code Civ. Proc. section 340 applies to Plaintiff's claims under this section [Labor Code § 226] because she is seeking ‘penalties.'” (Elliot v. Spherion Pacific Work, LLC (C.D. Cal. 2008) 572 F.Supp.2d 116...

Excerpt: ...burden of showing that the plaintiff agreed to arbitrate the dispute. Under California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate th...

Excerpt: ...cordingly, the words “Exemplary Damages” shall be stricken from the First Amended Complaint at paragraph 10(f). The check mark at box (2) paragraph 14(a) of the First Amended Complaint shall be stricken. Finally, page 9 of the First Amended Complaint (Form PLD‐PI‐001(6)) shall be stricken. Explanation: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be ...

Excerpt: ...in 10 days of the date of service of this order. Explanation: Nationwide Agribusiness Insurance Company moves to intervene under Code of Civil Procedure section 387, subdivision (d)(1), which states, (d)(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: … (B) The person seeking intervention claims an interest relating to the property or tra...

Excerpt: ...y is unable to pay its share, the moving party can elect either to pay that portion of the arbitration cost or to waive its right to arbitrate that party's claim. (Roldan v. Callahan & Blaine (Roldan) (2013) 219 Cal.App.4th 87, 96.) When a party arbitrates in good faith but the cost of the arbitration becomes too much for the party, the party may petition the court for relief. If the court “concludes the party's financial status is not a result...

Excerpt: ...bd. (c).) Sanctions are due and payable to defendants' counsel within 30 days of service of this court's order. Explanation: Plaintiff does not dispute that her responses to the Requests for Admissions propounded by defendants were not timely. Plaintiff contends the response deadline was 9/9/20, and the responses were mail served on 9/10/20. Even if plaintiff is correct about the response deadline, the responses are untimely. As the responses wer...

Excerpt: ...nation: Under Code of Civil Procedure section 394, “Whenever an action or proceeding is brought against a county, city and county, city, or local agency, in any county, or city and county, other than the defendant, if the defendant is a county, or city and county, or, if the defendant is a city, or local agency, other than that in which the defendant is situated, the action or proceeding must be, on motion of that defendant, transferred for tri...

Excerpt: ...ith the court's summary judgment order. Explanation: Initially the court notes that the supplemental opposition papers filed by plaintiff on January 25, 2021 are untimely and will not be considered. (See Code Civ. Proc., § 437c, subd. (b)(2).) If plaintiff needed this evidence for the opposition, she should have requested a continuance of the motion pursuant to subdivision (h). Objections In her responsive separate statement plaintiff apparently...

Excerpt: ...ion and uncertainty, without leave to amend. (Code Civ. Proc. § 430.10, subd. (e), (f).) Defendant shall submit a proposed order dismissing the action as to it within 10 days of the date of service of this order. Explanation: First, the entire complaint is vague, ambiguous and confusing, and thus the court intends to sustain the demurrer for uncertainty. (Code Civ. Proc. § 430.10, subd. (f).) “As used in this subdivision, ‘uncertain' includ...

Excerpt: ...iation, and failure to investigate and prevent or remedy discrimination and retaliation. (Code Civ. Proc., § 430.10(e).) Plaintiff is granted 3 0 days, commencing from service of the minute order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: In testing a pleading against a demurrer, the facts alleged are deemed to be true, as it is “not the o...

Excerpt: ...The court notes that the tenth cause of action contains a typo in the referenced code section, the correct section is Government Code section 12955, subdivision (f). Demurring defendant shall file and serve their answer to the second amended complaint within thirty (30) days from the date of this order. Explanation: A general demurrer admits “‘all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.'...

Excerpt: ... is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). The evidence on a motion for class certification for settlement must meet the same standards as if there were not settlement, except that there is no need to show the case can be managed for trial. Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620. California law requires admissible evidence to permit class certification. In re Tobacco II Cases (2009) 46 Cal. 4t...

Excerpt: ...tion to strike the prayer for punitive damages, as moot in light of the ruling on the demurrer. (Code Civ. Proc. §§ 435, 436.) Defendants shall submit a proposed judgment consistent with this ruling within 20 days of the date of service of this order. Explanation: Demurrer: Defendants have demurred to plaintiff's entire first amended complaint on the ground that it fails to state any valid causes of action against them under various theories. W...

Excerpt: ...Ibid.) Explanation: Defendant City of Huron has demurred to the first, second, and fourth causes of action for unjust enrichment, economic duress, and conversion on the ground that they fail to state causes of action, as they attempt to state common law tort causes of action against a government entity. As defendant correctly notes, Government Code section 815 bars common law tort claims brought against public entities like the City. “Except as...

Excerpt: .... RRNS Enterprises (1992) 4 Cal.App.4th 238, 241.) “Allowable” costs awarded to a prevailing party must be (1) incurred by that party; (2) reasonably necessary to the conduct of the litigation; and (3) reasonable in amount. (Code Civ. Proc. §1033.5, subd. (c)(1)‐(3); El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 616.) Although the prevailing party is typically entitled to reimbursement of costs, in ...

Excerpt: ... further responses. Plaintiff shall provide further responses to defendants' Requests for Admissions, Set No. One, Nos. 5, 10, 11, 16, 21, 22, 27, 32 and 33, and to Form Interrogatory, Set No. 1, Interrogatory No. 326.1, related to the Requests for Admission. These further responses shall be served within 20 calendar days of this order, with the time to run from the date of service of this minute order by the clerk, To grant monetary sanctions ag...

Excerpt: ...sotti, A Professional Law Corporation within 30 days of the clerk's service of this minute order. Explanation: In a FEHA action “a prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless special circumstances would render such an award unjust.” (Gov. Code, § 12965, subd. (b); Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115 [in].) “In enacting the FEHA, the Legislature sought to saf...

Excerpt: ...“serious questions” as to whether plaintiffs' expert's declaration was factually incorrect, at least as to the defendant who was not involved with the procedures addressed in the declaration. (Id. at p. 1540.) Particularly, the court noted, “it is possible that upon deposition of [the plaintiffs' expert], confronted with proof that he may have been mistaken in his belief that [the defendant] was involved in the procedure, he may concede his...

Excerpt: ...rt may separately try one or more issues before trial of the other issues if resolution of the bifurcated issue is likely to simplify the determination of the other issues." (Cal. R. Ct., R. 5.390(b).) "The 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, including a cause of action asserted in a cross- complaint, or ...

Excerpt: ...erent order may be entered, if the motion is based on “new or different facts, circumstances, or law.” (Id., subd. (a).) First, plaintiff's counsel's declaration filed with the opening brief indicated that the court's original ruling had been “contrary to applicable law.” However, a claim that the court misinterpreted the law in its initial ruling is not a “new” or “different” matter under section 1008. (Gilberd v. AC Transit (199...

Excerpt: ... this court, within seven days of service of the minute order, an ex parte request (without hearing) dismissing the action as to the demurring defendants. Explanation: “Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought....

Excerpt: ...ation: In this action plaintiff California Statewide Communities Development Authority seeks judicial foreclosure of an assessment lien. Plaintiff alleges that defendants took out a loan against their property to pay for solar panels. The loan was tied to the property taxes. Defendants then failed to make the property tax payments. The undisputed facts show on January 27, 2010, plaintiff adopted a resolution pursuant to the Improvement Bond Act o...

Excerpt: ...‐13:27) without leave to amend. To deny the remainder of the motion. (Code Civ. Proc., § 436.) Defendant Golden State shall file its answer to the Second Amended Complaint (“SAC”) within 10 days of service of the order by the clerk. Explanation: Demurrer Golden State's demurrer to the First Amended Complaint's (“FAC”) second cause of action was overruled. It's demurrer to the FAC's fifth cause of action was sustained solely on statute ...

Excerpt: ... to a purported forum selection clause in a Solar Representative Agreement. Defendant argues that because plaintiff failed to assert his claims in an action between the parties in Utah, he is now barred raising them here. The court does not find defendant's arguments compelling. Code of Civil Procedure section 426.30, subdivision (a), provides: Except as otherwise provided by statute, if a party against whom a complaint has been filed and served ...

Excerpt: ...Second Amended Complaint are to be set in boldface type. Explanation: Demurrer, in General The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether the plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of the plaintiff's possible difficulty or inability in proving the allegat...

Excerpt: ...ce liability on undertaking without prejudice. Explanation: Motion for Attorneys' Fees Plaintiff J.H. Boyd Enterprises, Inc. (“JHBE”) moves for an award of attorneys' fees in the sum of $607,244.50 plus additional fees incurred in connection with this motion. The motion is brought pursuant to Civil Code section 1717, which provides in relevant part: “(a) In any action on a contract, where the contract specifically provides that attorney's f...

Excerpt: ...omplaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the First Amended Complaint are to be set in boldface type Explanation: Demurrer Demurrer, in General The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a c...

Excerpt: ...e set in boldface type. Explanation: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to a...

Excerpt: ...ts against defendant S&A, in the amount of $3,288. Defendant shall pay attorney's fees and costs within 30 days of the date of this order. Explanation: Under Code of Civil Procedure section 664.6, If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of...

Excerpt: ...demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The test is whether plaintiff has succeeded in stating a 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...

Excerpt: ...b), provides for discretionary relief from a default or default judgment that has been entered due to mistake, surprise, inadvertence, or excusable neglect. (Code Civ. Proc. § 473, subd. (b).) The party seeking relief must bring his or her motion within a reasonable time, not to exceed six months from the date of entry of the default or default judgment. (Ibid.) “Where the mistake is excusable and the party seeking relief has been diligent, co...

Excerpt: ...ry relief claims seeking interpretation of written contracts is proper. (Shaw v. Regents of Univ. of California (1997) 58 Cal.App.4th 44, 52.) However, interpretation of a written document is a question of law for the trial court to determine, only where extrinsic evidence is unnecessary. (Temple v. Velcro USA, Inc. (1983) 148 Cal.App.3d 1090, 1095.) In other words, interpretation is appropriate where the language is clear, understandable and com...

Excerpt: ...s informed that the bankruptcy petition had been dismissed; trial therefore was set for July 30, 2020. On July 30, 2020, the court received a copy of a bankruptcy court order dated July 24, 2020 dismissing defendant's bankruptcy petition for failure to timely file documents. At the time scheduled for trial, defendant asserted that a bankruptcy petition had been filed by the second defendant in this action, again staying the action. Although defen...

Excerpt: ...o comply with Code of Civil Procedure section 1008, which governs motions for reconsideration. Section 1008 states that, When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstanc...

Excerpt: ...ed judgment dismissing the claims against her within 10 days of the date of this order. Explanation: In its ruling on a prior demurrer, the court held that plaintiffs had failed to state sufficient facts to support their negligence claims against Martinez, as they had not alleged any facts showing that Martinez actually knew that her husband had a propensity to molest children. Instead, plaintiffs only alleged that defendant “knew or should hav...

Excerpt: ...f Rights, which is granted without leave to amend. Defendant is granted 10 days' leave to file its answer to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer The Complaint alleges sufficient facts for a cause of action for Elder Abuse and Neglect if the plaintiff shows: (1) Defendant had a responsibility for meeting the basic needs of Plaintiff; (2) Defendant kn...

Excerpt: ...the motion on the plaintiff. The proof of service indicates that the notice of motion and supporting documents were served on plaintiff by mail at 9720 Zelzah Avenue, Apartment 207 in Northridge California. However, plaintiff's address of record with the court is 17730 Lassen Street, Apartment 123 in Northridge. Since the address on the motion proof of service does not match the address of record with the court, it does not appear that plaintiff ...

Excerpt: ...des evidence at the hearing that the LWDA has been served with the settlement agreement and motion for approval, then the court intends to approve the settlement. Explanation: 1. Introduction Under Labor Code section 2699, subdivision (a), the Private Attorneys General Act of 2004 (“PAGA”), “Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and ...

Excerpt: ...tion to strike is granted, in part. (Code of Civ. Proc., § 436, subd. (b).) Plaintiff is granted leave to amend to include future plaintiffs who become eligible for relief. Explanation: Demurrer Demurrer ‐ General Standard of Ruling “The rule governing pleading in this state is that a plaintiff need only ‘set forth the ultimate facts constituting the cause of action, not the evidence by which [the] plaintiff proposes to prove those facts' ...

Excerpt: ...mount of $1,060. (Code Civ. Proc. § 2017.020, subd. (b).) Plaintiff shall pay monetary sanctions to defendant within 30 days of the date of this order. Explanation: Under Code of Civil Procedure section 2017.020, “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence...

Excerpt: ...n must establish three things: (1) the existence of an ascertainable and sufficiently numerous class; (2) a welldefined community of interest; and (3) substantial benefits from certification that render proceeding as a class superior to the alternatives. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) Whether the Class is Sufficiently Numerous and Ascertainable. A class is required to be ascertainable in order to give p...

Excerpt: ...ublication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702, internal quotes omitted.) Plaintiffs have clearly alleged a publication by defendant, since they allege she, or her agent, posted the picture attached as Exhibit 1 (itself an arrangement of photos and text) to her Facebook account. A person posts something to Faceb...

Excerpt: ...ter Dal Pezzo, on all causes of action, based on lack of standing, with leave to amend; 3) to the extent plaintiffs can sufficiently plead delayed discovery and Mr. Dal Pezzo's standing, to deny the motion as to the two breach causes of action; 4) to grant the motion as to the Consumer Legal Remedies Act (CLRA) cause of action with regard to the LLC plaintiff, Scuderia Dal Pezzo, LLC, without leave to amend; and 5) to the extent plaintiffs can su...

Excerpt: ...y adjudication as to all claims alleged against Signal Energy Constructors, LLC. To grant summary adjudication as to vicarious liability only, with regard to Signal Energy, LLC. To deny summary adjudication in all other respects. Explanation: A defendant moving for summary judgment or adjudication has the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co...

Excerpt: ...the legal sufficiency of the complaint, raising issues of law regarding the form or content of the pleading. A general demurrer for failure to state a cause of action asks the court to consider whether all essential elements of each cause of action have been alleged. (Code Civ. Proc., §§ 422.10, 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In ruling on a demurrer, the court should construe the complaint liberally “wit...

Excerpt: ...equested documents on or before September 20, 2020. To impose monetary sanctions in the amount of $ 4,950 against defendant Fresno Community Hospital & Medical Center and its attorneys of record, King & Spalding LLP. (Code Civ. Proc., § 2025.450.) Sanctions must be paid to Carpenter Law within 30 days after service of this order. If oral argument is requested, the court will consider the additional costs incurred for plaintiff. Explanation: A pa...

Excerpt: ...1, 620.) California requires admissible proof sufficient to meet the substantial evidence test. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470; Lockhead Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106.) “Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well‐defined community of interest, and (3) that certification will provide substantial benefits to litigants and the c...

Excerpt: ...grant monetary sanctions against John Waterman in the amount of $1,460.00, payable within 30 days of the date of this order, with the time to run from the service of this minute order by the clerk. Defendants may re‐notice the deposition at a mutually convenient date and time, and Mr. Waterman shall appear and be deposed. Explanation: As an initial matter, the court notes that defendants Rite Aid Corporation and Thrifty PayLess, Inc. (collectiv...

Excerpt: ...cussed below. (Code Civ. Proc. § 438.) To grant leave to amend. Plaintiff shall file and serve his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. To grant defendants Bank of America and Countrywide Bank's motion for judgment on the pleadings as to the entire complaint. To grant leave to amend as to the first and tenth causes of action, but to deny leave to amend as to the ot...

Excerpt: ... be set in boldface type. Explanation: General Standard of Ruling The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The test is whether plaintiff has succeeded in stating a 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. (Highlander...

Excerpt: ...of action five: Summary adjudication is denied as to cause of action five, as it applies to defendant Solorio. Summary adjudication is granted for sexual, gender, and national origin/racial discrimination only, as to Sarama and denied on all other bases. To the extent claims against Kalel, Inc. are derivative, they are granted and denied accordingly. Causes of action six and seven: Summary adjudication is denied. Explanation: Plaintiff alleges th...

Excerpt: ...�Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to make an initial determination of the...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...planation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Second Cause of Action – Fra...

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

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

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

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

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

Excerpt: ...omplaint within ten days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff's complaint attempts to state a single cause of action for breach of contract as to all of the defendants, including Ygrene Energy (incorrectly named as “Ygrene Financial, Inc.”). Plaintiff alleges that she entered into the contract with defendants on October 2, 2017, which was for installation of a new roof and sola...

Excerpt: ...n to strike the prayer for punitive damages (SAC p. 11) without leave to amend. To grant the motion to strike the SAC as a whole because it was not signed, with plaintiff granted 10 days leave to file a Third Amended Complaint. (Code Civ. Proc. § 436.) The time in which the complaint may be amended will run from service of the order by the clerk. To set a motion to reclassify this case as a small claims matter on July 30, 2020 at 9:00 am in Depa...

Excerpt: ...uses of action could be amended to state a cause of action. (Code Civ. Proc. § 430.10(e).) Respondents shall file their answer to the First Amended Petition and Complaint (“FAP”) within 10 days of service of the order by the clerk. If oral argument is timely requested, the matter will be heard on Monday, July 13, 2020 at 1:30 a.m. Explanation: Fourth Cause of Action The fourth cause of action alleges unlawful land use discrimination in viola...

Excerpt: ...is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545.) Accordingly, “[b]ecause the function of a demurrer is not to test the truth or accuracy of the facts alleged in the complaint, we assume the truth of all properly pleaded factual allegations.” (Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 203.) The test is whether plaintiff ha...