Excerpt: ...tions conditionally: If Plaintiff fails to comply with the court's December 15, 2022, order within 10 days of the clerk's service of this minute order, then the court grants the issue and evidence sanctions requested by the City of Fresno (the City), as set forth below. Explanation: Monetary Sanctions The failure to respond to a discovery request is a "misuse of the discovery process" under Code of Civil Procedure section 2023.010, subdivision (d...

Excerpt: ...desire to amend, the Second Amended Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should plaintiff elect not to amend, demurring defendants shall file responsive pleadings within twenty (20) days from the date of this order. Explanation: First thru Third Causes of Action: Breach of Contract, Implied Covenant, and Common Counts Standing can appropriately be tested by a general...

Excerpt: ...int ("FAC") on 3/13/20, alleging that during a 2015 surgical procedure a part of the coil deployment system, a 24 cm long wire fragment, was left within Zachary Costi that should have been removed during the procedure. (FAC "1 12, 15, 15.) The device was not discovered until 2/1/19. The first two causes of action are essentially for medical malpractice, asserted against treating physicians. The third is for products liability (design and manufact...

Excerpt: ... claims. Explanation: In moving to compel arbitration, a defendant must prove by a preponderance of evidence the existence of the arbitration agreement and that the disputes are 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.) (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.) Writte...

Excerpt: ...laint. (Code Civ. Proc., S 430.10, subd. (e).) The time in which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be in boldface type. Explanation: Strike the TAC The court may, on motion or at any time in its discretion, strike a pleading or allegations from a pleading in two situations: (a) the allegation is "irrelevant, false, or improper" or "superfluous" or "abusive" and (b) where the "p...

Excerpt: ...ll run from service by the clerk of the minute order. Explanation: Demurrer Generally The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of the ...

Excerpt: ...e following conditions, the motion is: (1) brought before the same judge that made the order; (2) made within 10 days after service upon the party of notice of the entry of the order; (3) based on new or different facts, circumstances, or law; and (4) made and decided before entry of judgment. Code of Civil Procedure section is jurisdictional. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) A party requesting the court reconsider its pr...

Excerpt: ...-defendants' demurrer and motion to strike set for September 12, 2023. Explanation: The default entered on April 24, 2023 was in error. The March 8, 2023 prtnf of service as to defendant was defective because the time did not indicate whether it was served at 11:00 a.m. or II:W p.m. and was signed on February 29, 2022, predating the filing of the complaint. The court may correct clerical mistakes in its judgment or orders and set aside any void j...

Excerpt: ...e amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before July 3, 2024. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class, and has found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. In addition,...

Excerpt: ...n be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before July 3, 2024. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. In addition, t...

Excerpt: ...ts for judicial notice, subject to limitations as described in the explanation below. Explanation: Defendant City of Fresno moves to strike the entire complaint under Code of Civil Procedure section 425.16, contending that the complaint is a strategic lawsuit against public participation ("SLAPP suit"), and thus it is subject to being stricken unless plaintiff can show by admissible evidence that he has a probability of prevailing on the merits o...

Excerpt: ...na Luna motion and as to the Rufino Hernandez motion. Explanation: "Any party may obtain discovery . by taking in California the oral depsition of any person, including any party to the action." (Code Civ. Proc., S 2025.010.) Proper service of a notice of deposition compels any deponent to attend, to testify, and to produce documents if requested. Civ. Prcyc., S 2025.280, subd. (a).) Where a party deponent fails to appear at a properly noticed de...

Excerpt: ...claration, the declaration requires members having more than 50 percent of the votes in the association, in a single class voting structure, or members having more than 50 percent of the votes in more than one class in a voting structure with more than one class, to vote in favor of the amendment, the association, or any member, may petition the superior court of the county in which the common interest development is located for an order reducing...

Excerpt: ...eritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., 5425.16, subd. (a); see Martinez v. Metabolife Intern. , Inc. (2003) 113 Cal.App.4th 181, 186.) plaintiffs/cross-defendants prevailed on their ant-SLAPP motion as to the second cause of action in defendant/cross-complainant's cross complaint. The prevailing defendant on a special motion to strike "shall be e...

Excerpt: ...ies concerning this vehicle under the Song-Beverly Consumer Warranty Act (Civ. Code, SS 1790, et seq.).l Defendant moves to compel plaintiffs to arbitrate these claims based on the Retail Installment Sales Contract ("RISC") they signed with Turlock CDJR when they purchased the subject vehicle. Applicable Law A trial court is required to grant a motion to compel arbitration "if it determines that an agreement to arbitrate the controversy exists." ...

Excerpt: ...ecton ["The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency' at the same tme that it is submitted to the court."]) The trial court is to "evaluate a PAGA settlement to determine whether it is fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforceme...

Excerpt: ...or a writ of possession by filing a written application for the writ with the court in which the action is brought." Under secton 512.010, subdivision (b), "The application shall be executed under oath and shall include all of the following: (1) A showing of the basis of the plaintiffs claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiffs claim is a written instrument, a copy of the instrum...

Excerpt: ...thin five days of service of the minute order by the clerk. To deny leave to file a cross-complaint as moot. Explanation: Summary Judgment Plaintiff filed suit for two causes of action: premises liability, and general negligence .1 Defendant Chipotle Mexican Grill, Inc. ("CMG") moves for summary judgment on the basis that no triable issues of material fact exist as to CMG's knowledge of a dangerous condition, and in any event, any alleged dangero...

Excerpt: ...entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.'" (Ramon v. Aerospace Corp. (1996) 50 Cal .App.4th 1233, 1236, quoting Passavant v. Williams (1990) 225 Cal.App.3d 1602, 1506.) Here, the court issued a tentative ruling granting defendant's motion to compel...

Excerpt: ...ity 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 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 condition...

Excerpt: ...tion by the plaintiff supported by appropriate affdavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to S...

Excerpt: ...ns shall be in boldface type. To deny the motion for sanctions. Explanation: Demurrer The first cause of action is for breach of contract. "A cause of acton for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach." (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226...

Excerpt: ...to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." (Civ. Code, S 1717, subd. (a).) Also, under Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney's fees are recoverable as an item of costs when fees are authorized by contract. Here, de...

Excerpt: ... amend. (Code Civ. Proc. S 430.10, subd. (e).) To overrule the demurrer on all other grounds. (Code Civ. Proc. S 430.10, subd. (e),(f).) Plaintiff shall file and serve an amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. If oral argument is timely requested, such argument will be heard at 2:30 p.m. on June 28, 2023, in Department 501. Explanation: On August 22, 2022, plaintiff f...

Excerpt: ...prior to the subject incident to the present. To deny both parties' requests for monetary sanctions against each other. Plaintiffs shall serve further responses within 10 days of the date of service of this order. Explanation: Request for Production number 18 requests "A true and complete copy of all WRITINGS related to disability benefits received by Mr. Shire, including, but not limited to, the applications for such benefits, medical reports, d...