Excerpt: ...be (1990) 219 cal.App.3d 1527, 1529; Nicholson v. Barab (1991) 233 cal.App.3d 1671, 1681.) The reply brief makes clear that plaintiff seeks summary judgment based on the parties' oral agreement, only, and not based on that agreement plus the email he sent to defense counsel later in the day after the mediation. However, this only complicates the issue, since the complaint includes a PAGA claim, and plaintiff's counsel's email included a term allo...

Excerpt: ...red by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the moton exists (e.g., fraud, unconscionability, etc.) (Hotels Nevada v. LA. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.) Written Agreement Unless there is a dispute over authenticity, the mere recitation of the terms is suffcient for a party to move to compel arbitration. (Sprunk v. Prisma LLC (2017) 14 Cal.Ap...

Excerpt: ...the order entered by the court on the request for pretrial discovery conference. To grant plaintiffs motions to compel defendant to provde further responses to the disputed form interrogatories, special interrogatories, and requests for production of documents. Defendant shall provide supplemental responses, without objections, within 10 days of the date of service of this order. To grant plaintiff's request for monetary sanctions against defenda...

Excerpt: ...uest for Court Judgment. (Cal. Rules of rule 3.1800(a); Holloway v. Quetel (2015) 242 cal.App.4th 1425, 1432.) This alone requires the denial of the application. The specific relief requested must be indicated on Form CIV- IW, and the relief must list the categories of damages. Second, the present application further fails to submit a declaration of nonmilitary status for each defendant against whom judgment is sought. (Cal. Rules of rule Federal...

Excerpt: ... vehicle ensued which form the basis of the complaint for damages. Plaintiff brought four causes of action against each of defendant Lithia NC, Inc., dba Lithia Nissan of Clovis ("Lithia"), and the moving defendant Nissan North America, Inc. ("Nissan"), for violations of the Song-Beverly Act regarding warranties. Compel Arbitration Nissan moves to com#l arbitration on an arbitration clause in a retail installment sales contract ("RISC") made betw...

Excerpt: ...sis of the instant complaint for damages. Plaintiff brought a single cause of action against defendant, for an express violation of warranties afforded through the Song-Beverly Act. Though the complaint characterizes the agreement as a lease, is undisputed that the agreement is a retail installment sales contract ("RISC") made between plaintiff and a non-party, Toyota of Clovis. Compel Arbitration A trial court is required to grant a motion to co...

Excerpt: ...e Judicial Council complaint form, but filed only the first three introductory pages and failed to attach the pages required to comprise the causes of action. Even so, plaintiff did check the box for "general negligence" at Item 10b (page 3), and also added the following at the "other" box at Item 10f: "Missing the Statue [Sicl of Limitations, Not Keeping Copies of Client File, Failure to Perform, Failure to Communicate, Improper Withdraw." Const...

Excerpt: ...murrer 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 his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697....

Excerpt: ... grant preliminary approval of the proposed settlement. An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class acton is proper. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representation of an uncontested ...

Excerpt: ...ls to state facts sufficient to constitute a cause of action[.l " (Dem., p. 2:15-17, citing Code Civ. Proc., 5430.10, subd. (e).) Any valid cause of action overcomes a general demurrer. (Quelimane Co., Inc. v. Stewart Title Guarantee Co. (1998) 19 Cal.426, 38-39.) The court must overrule a general demurrer if the complaint states a cause of action under any possible legal theory. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) ...

Excerpt: ...s "[dlisobeying a court order to provide discovery" a "misuse of the discovery process," but sanctions are only authorized to the extent permitted by each discovery procedure. Once a motion to compel answers is granted, continued failure to respond or inadequate answers may result in more severe sanctions, including evidence, issue or terminating sanctions, or further monetary sanctions. (Code Civ. Proc. SS 2030.290, subd. (c); 2031.300, subd. (c...

Excerpt: ...are incurred to enforce that contract, shall be awarded either to one of the parties or 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...

Excerpt: ... his PAGA claim aga-nst defendants, and dismiss the representative portion of the PAGA claim. Explanation: A trial court is required to grant a motion to compel arbitration "if it determines that an agreement to arbitrate the controversy exists." (Code Civ. Proc., S 1281.2.) However, there is "no public policy in favor of forcing arbitration of issues the parties have not agreed to arbitrate." (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 14...

Excerpt: ...reasonable ground for believing it to be true." (Civ. Code, S 1710, subd. (2).) "The Supreme Court has held: 'Negligent misrepresentation is a separate and distinct tort, a spec:ies of the tort of deceit. "Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit." The Court of Appeal has held: 'The elements o...

Excerpt: ..., subdivision (b). 1 On application, the court may, on any terms as may be just, relieve a party from a default taken against it due to mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., S 473, subd. (b).) This is defendant's second motion to set aside his default. Defendant's first motion was denied by the court, without prejudice, pursuant to the minute order adopting the Tentative Ruling on November 10, 2022 ("Prior Rulin...

Excerpt: ...n equitable proceeding. (Southern California Gas Co. v. Flannery (2014) 232 Cal.App.4th 477, 485.) It provides a procedure where a person holding funds or property, to which conflicting claims are made by others, can force claimants to litigate their claims to the funds or property among themselves. (Code Civ. Proc., S 386; City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122.) Once the person admits liability and deposits the funds with...

Excerpt: ...he amount of $167,650.00. To grant administrator costs in an amount of $4,630.00. To grant plaintiff Jesse Cruz, class representative, an incentive award in the amount of $5,000.00. The court will sign the proposed judgment submitted. Notice of the judgment is to be given to class members by an insert with the checks distributed to them, which insert refers the class to the Court's Odyssey search link and gives the case number for this case. (Cal...

Excerpt: ...esponses to Special Interrogatories, Set Three, Nos. 75, 78, and 86. To grant and compel further responses to Request for Production of Documents, Set Two, Nos. 21 and 26, and order plaintiffto all relevant documents, within 20 days of service of the order by the clerk. To impose monetary sanctions in the total amount of against plaintiff Grupo Comunitario de San Miguel Cuevas, in favor of defendant Harmony Communities, Inc., payable no later tha...

Excerpt: ...ulative. To overrule all of defendant's remaining objections to the expert declaration provided by plaintiff. To overrule all of plaintiff's objections to the expert declaration provided by defendant. Explanation: Declarations by expert witnesses are generally required when expert witness testimony would be required at trial (such as on the issue of the standard of care in a professional malpractice case). (See e.g. Kelley v. Trunk (1998) 66 Cal....

Excerpt: ...to the first amended complaint within 10 days of the date of service of this order. Explanation: Meet and Confer: First of all, it does not appear that defendant complied with the meet and confer requirement for demurrers and motions to strike before bringing the present motions. under Code of Civil Procedure section 430.41, "[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone w...

Excerpt: ...fied in plaintiffs' Requests for Admission, Set Two, are deemed admitted, unless defendant serves, before the hearing, proposed responses to the requests for admission that are in substantial compliance with Code of Civil Procedure, Section 2033.220. Explanation: Compel Compliance with Deposition Subpoena Plaintiffs Sharon Vulich, individually, and as successor in interest to the Estate of Jerry Vulich, Nicole Vulich Miller, Crystal Vulish, and J...

Excerpt: ...damages from the complaint. Defendants content that the complaint fails to state sufficient facts to support the prayer for punitive damages as to each of them. The court notes initially that there is a dispute as to the timeliness of the present motion. Code of Civil Procedure section 435, under which defendants move, allows for the filing of a motion to strike within the time allowed to respond to a pleading. (Code Civ. Proc. S 435, subd. (b)(l...

Excerpt: ...'s prior order on a motion to compel further responses to inspection demands, entered on July 26, 2022. Plaintiff moves under Code of Civil Procedure section 2031.320, which states that "if a party fails to obey an order compelling inspection, copying, testing, or sampling, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. (Code Civ. Proc. S 2031.320, sub...

Excerpt: ...f action for premises liability, without leave to amend. Explanation: In January 2022 plaintiff Manuel Salazar suffered severe personal injuries in an accident that occurred while he was riding his dirt bike in the Kings River riverbed. He alleges a gap in a mountain of dirt created by Stoney's caused him to fall off his bike. In addition to the operator, Stoney's Sand & Gravel LLC (Stoney s), he has sued Carol Evans and Michael Evans (the Evans ...

Excerpt: ...ation before it can grant preliminary approval of the proposed settlement. An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representatio...