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

Excerpt: ...embers, pursuant to Code of Civil Procedure section 384, subdivision (b), so that the judgment can be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before July 7, 2023. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed set...

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

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

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

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

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

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

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

Excerpt: ...ed as compared to the harm that the opposing party is likely to suffer if the preliminary injunction were issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69‐70.) In considering these factors, the court “balances the relative hardships.” (Ibid.) The second factor (interim harm) “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status ...

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

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

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

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

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

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

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

Excerpt: ...from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Furthermore, “[o]nly when the inferences are indisputable may the court decide the issues as a matter of law ... An issue of fact becomes one of law only when ‘the undisputed facts leave no room for a reasonable difference of opinion.'” (Manuel v. Pacific Gas & Electric C...

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

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

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

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

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

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

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

Excerpt: ...tration of the dispute pursuant to the Federal Arbitration Act (9 U.S.C. section 1, et seq.), or under the California Arbitration Act. (Code Civ. Proc., § 1281.2, et seq.) Under the Federal Arbitration Act, A written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, … shal...

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

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

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

Excerpt: ... Civil Procedure section 384, subdivision (b), so that the judgment can be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before April 13, 2023. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed settlement.” Subsection (h...

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

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

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

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

Excerpt: ...vered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) There is a strong public policy in favor of ...

Excerpt: ...nd such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three‐prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movant's favor; and determining whether the opposition d...

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...governmental immunity. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. (Barquis v. Merchants Collection Assn. (1972)...

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