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: ...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: ...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: ... 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: ...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...

Excerpt: ...ition of public property. To grant the CitVs motion for summary adjudication of the third crossclaim for property damage brought by Reyes and Melissa Robles. Explanation: Motion as to the Dangerous Condition Claims: The City mcwes for summary judgment as to all of the claims brought by California Automobile Insurance Company, State Farm Mutual Automobile Insurance Company, Kathy Hayden, and Reyes and Melissa Robles in their complaints and cross-c...

Excerpt: ...ding supersedes the original one, which ceases to perform any function as a pleading. Thus, an amended complaint su#rsedes all prior complaints. The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment. [q] Because there is but one complaint in a civil action, the filing of an amended complaint moots a motion directed to a prior com...

Excerpt: ...erified responses without objections within 20 days of the date of service of this order. Explanation: Plaintiffs have moved to compel defendant Foster Poultry Farms to provide further responses to form interrogatories, special interrogatories, and requests for of documents that seek information about all employees of defendant who were employed during the class period as defined by plaintiffs' complaint. Defendant has objected on various grounds...

Excerpt: ...ng party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, is not only error but an abuse of discretion." (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) California Rules of Court, Rule 3.1324 provides that a motion to amend must: (1) include a copy of the proposed amendment, (2) state what allegations in...

Excerpt: ...order determining faith settlement. To find that the settlement Plaintiffs and Cirks Construction, Inc. is in faith. To deny without prejudice, the motions for order determining good faith settlement of Lazy Dog Restaurants, LLC, LDR Holdings, LLC, Villagio Shopping Center, LLC, and Manco Abbott, Inc. Explanation: "Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall ...

Excerpt: ... replacement of the vehicle or reimbursement of the purchase price paid for the vehicle, specifically paragraph 34 and the prayer on page 10, paragraph A, are striken without leave to amend. The motion to strike the prayers for attorneys' fees and costs is denied. Explanation: Demurrer Toyota demurs to the second cause of achon for violation of the Magnuson-Moss Warranty Act ("MMWA") on the grounds that the First Amended Complaint ("FAC") fails t...

Excerpt: ...cton. There, she was placed on a gurney and was given an injection that she was told would make her drowsy. While still on the gurney, plaintiff was moved to a different hall way and was placed under the care of a male nurse, the moving defendant Freddie Rodriguez ("defendant"). Plaintiff alleges that defendant said he would take care of her and "help her with whatever she needed while addressing her in an overly friendly manner." (TAC, '1 5.) Pl...

Excerpt: ...before May 9, 2023, plaintiff must file supplemental declarations correcting the problems noted below. Explanation: There are numerous technical problems with this motion and supporting papers, which prevent the court from considering the merits. First, both the Settlement Agreement (Bolce Dec„ Exhibit A) and the "Notice of Class Action Settlement" (ld., Exhibit 8) are missing pages, and there are no signatures showing on the Settlement Agreeme...

Excerpt: ...uest for treble damages and attorney's fees pursuant to Penal Code section 495. (Cal. Rules of Court, Rules 3.1WJ, subd. (a)(l); Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 257, 288.) [Although no evidence relating to liability is necessary for a prove-up hearing, evidence establishing a prima facie case for damages is required.] By defaulting, cross-defendant admits liability for the debt or obligation on all well pled causes of actio...

Excerpt: ...ation providing for this on or before May 3, 2023, together with the declarations from each party required by this subdivision. Civ. Proc., S 437c, subd. (t)(1)(A)(i) and (ii).) he stipulation must specify that the issue to be adjudicated is: "Did the PAGA claim survive the plaintiff's death, or did it abate, and if it abated, have defendants waived the issue?" The stipulation must also provide that the parties expressly waive the requirements fo...

Excerpt: ...mply with The Superior Court of Fresno County, Local Rules, rule 2.1.5 ("rule 2.1.5"), which causes this court to lose personal jurisdiction over her. Defendant is mistaken. Rule 2.1.5 states: A plaintiff shall serve all named defendants with all pleadings and notices required by these rules or other law, including notice of a Case Management Conference, and shall file proof of service with the court, within sixty (60) days from the date the comp...

Excerpt: ...fendant Juan Zaragoza and Martinez, Dieterich & Zarcone Legal Group (formerly known as Chavez Legal Group), jointly and severally, payable within 20 days of the date of this order, with the tme to run from the service of this minute order by the clerk. The matters specified in plaintiff Valerie Valero's Requests for Admission, Set One, propounded on Mr. Zaragoza are deemed admitted, unless Mr. Zaragoza serves, before the hearing, proposed respons...