Excerpt: ...dard for Awarding Attorney's Fees Probate Code section 4545 provides that when a challenge is made to a power of attorney by someone other than the attorney in fact, "the court may in its discretion award reasonable attorney's fees" to the attorney in fact, if the court determines that the proceeding was commenced without any reasonable cause." The Probate Code does not define reasonable cause" as it is used in section 4545. However, California c...

Excerpt: ...d Avenue, Fresno, California 93726 (the "Property"). Plaintiff alleged having exclusive, complete, open, continuous and notorious possession of the property for more than five years. Plaintiff now seeks summary judgment. A party may move for summary judgment in an action if is contended that there is no defense to the action. (Code Civ. Proc. S 437c, subd. (a)(l).) Notice of the motion and supporting papers shall be served on all other parties to...

Excerpt: ....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 for settlement purposes. The court may make an o...

Excerpt: ... claims from arbitration. To dismiss the plaintiff's class claims. To stay the litigation of the PAGA claim until the arbitration has been resolved. Explanation: Pursuant to California Code of Civil Procedure secton 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 ...

Excerpt: ...lass 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. There is no reason for the court to reconsider its decision granting certification of the class. Therefore, the court certifies the class for the purpose of final approval of the settlement. 2. Se...

Excerpt: ...Explanation: Under Government Code section 911.2, subdivision (a), a plaintiff alleging a claim against a government entity must present their claim within six months of the accrual of the cause of action. "A cause of action for childhood sex molestation generally accrues at the time of the alleged molestation." (Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 910.) In Shirk v. Vista Unified School District (2007) 42 Cal.4th 201, the California Sup...

Excerpt: ...efendant's failure to obey the court's order entered on March 29, 2023, which issued from plaintiff's unopposed motion to compel initial responses to discovery. The order required defendant Hollly-Ray to serve initial responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents (all set one), and required defendant and her attorney, Brian Folland, to pay (jointly and severally) monetary sanctions in the amou...

Excerpt: ...s. (Code Civ. Proc., S 2025.450, subd. (c)(l).) In the event that plaintiff refuses to agree upon a date then the date shall be unilaterally set by defendants' counsel. To deny the request to impose $713M in monetary sanctions (as a cost reimbursement) because due process requires that the request appear on the caption page of the notce of moton. Explanation: The motion is brought pursuant to Code Civ. Proc., S 2025.450. Subdivision (a) thereof p...

Excerpt: ...furcated as follows: should a jury find liability on the cause of action for defamation and liability for punitive damages, the parties will then present evidence on punitive damages. (Civ. Code S 3295, subd. (d).) To deny defendant's motion for to require plaintiff to post security for costs. (Code Civ. Proc. S 1030.) Explanation: Motion to Bifurcate Punitve Damages Civil Code section 3295, subdivision (d) provides in relevant part: "The court s...

Excerpt: ...t be set in boldface type. Explanation: 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) ...

Excerpt: ...fendant's Person Most Knowledgeable ("PMK") and for production of documents. Plaintiff's counsel asserts that defendant was served with a deposition notice on January 6, 2023. However, the notice attached to counsel's declaration is signed November 14, 2022 for a deposition scheduled for February 23, 2023. (Kreymer Decl., 2 and Exh. 1.) Notably, no proof of service accompanies this notice. Defense counsel asserts that November 14, 2023 plaintiff ...

Excerpt: ... causes of action. To deny the moton to strike portions of the complaint, in its entirety. To deny the motion to deem the matters in the requests for admission, sets one and two, to be admitted, as plaintiff has now served code-compliant responses. To grant sanctions against plaintiff's former counsel, Brian Folland, in the amount of $800. Mr. Folland shall pay sanctions to defendants within 30 days of the date of service of this order. If oral a...

Excerpt: ...he motion to strike without leave to amend. If oral argument is timely requested, it will go forward Wednesday, October 18, 2023, at 3:30 p.m., in Dept. 403. Explanation: Self-represented plaintiff Victor M. Alvaro Garcia filed a three-page Judicial Council form complaint against defendant Carmen Elizabeth Tharp. The defendant demurs to the complaint on the ground that it lacks the necessary allegations to state a cause of action against her. Mee...

Excerpt: ...ivative claims on behalf of Williams & Doris Land & Energy and Oil City LLC (referred to collectively as the "WLDE Defendants"). WLDE Defendants move to require plaintiff to post a $50,000 bond pursuant to Corporations Code section 17709.02, subdivision (b). Within 30 days after service of summons on a limited liability company, the company may move the court for an order requiring the plaintiff to furnish security. (Corp. Code, S 17709.02, subd....

Excerpt: ...ons of the First Amended Complaint ("FAC") pursuant to Code of Civil Procedure section 418.10, subdivision (a)(l). In the alternative, Defendant seeks to set aside the entry of default against her.l Code of Civil Procedure section 418.10, subdivision (a)(l) provides that a defendant, on or before the last day of his or her time to plead or within any further time that the court may for cause allow, may serve and file a notice of motion to quash s...

Excerpt: ...uent bad faith denial (in part) of his insurance policy claim. The complaint includes the following causes of acton: breach of contract and breach of the implied covenant of good faith and fair dealing. Plaintiff seeks the following: general, special, economic, and consequential damages (according to proof), puritive damages, attorney's fees, costs, and pre-judgment interest. Defendant filed its motion to strike with regard to Paragraph 34 (Page ...

Excerpt: ...two on the back, but here counsel has not signed any of the lines. The form is mandatory and must accompany every default judgment application. (Cal. Rules of Court, rule 3.1800(a).) Therefore, since the request for default judgment is incomplete, the court cannot grant the application. Also, while plaintiff's CEO, Richard Torosian, has provided a declaration summarizing the amount of damages, which are based on the unpaid shipping invoices, Mr. ...

Excerpt: ... which contained an arbitration clause. Problems with the vehicle ensued, and this "lemon law" action was filed on November 8, 2022, against Kia, but not the seller. The Complaint alleges the following causes of action: (1) Violation of the Song-Beverly Act— Breach of Express Warranty; (2) Violation of the Song-Beverly Act— Breach of Implied Warranty; and (3) Violation of the Song-Beverly Act section 1793.2. Kia now moves to compel arbitratio...

Excerpt: ...n ten (10) days from the date of this order. Explanation: Plaintiff's allegations of medical negligence typically require competing expert opinion to defeat a motion for summary judgment. (See Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 75; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) In other words, defendant is entitled to summary judgment and the motion must be grant...

Excerpt: .... To impose monetary sanctions in the amount of $6,825 against defendant South Bay Safety Inc. (not its attorney). Defendant South Bay Safety Inc. (not its attorney) shall pay the monetary sanctions to plaintiff's counsel within thirty (30) days from the date of this order. If a timely request for oral argument is made, such argument will be entertained on Friday, October 6, 2023, at 10:30 a.m. Explanation: Code of Civil Procedure secton 2023.010...

Excerpt: ...e clerk. Explanation: Initially the court notes that in previously granting leave to amend, plaintiff was directed to place all new allegations in boldface type. Plaintiff did not follow this direction. In the future please place new allegations in boldface type when requested, to facilitate the evaluation of such a long amended pleading. Also, plaintiff's opposition brief does not have page numbering, as required by Cal. Rules of Court, rule 2.1...

Excerpt: ...fornia, Inc. and Javier Rene Gonzalez-Martinez are directed to file an answer within ten days of service of the minute order by the clerk. Explanation: Plaintiff Emma Kormas ("Plaintiff") filed a First Amended Complaint ("FAC") for eight causes of action: 1. Intentional Misrepresentation; 2. Negligent Misrepresentation; 3. Breach of Fiduciary Duty; 4. Financial Elder Abuse; 5. Negligence; 6. Negligent Supervision and Training; 7. Concealment; and...

Excerpt: ...grant the motion to strike with ten (10) days leave to amend which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To find that defendants adequately attempted to meet and confer with plaintiffs' counsel, who effectively refused to do so. Explanation: The express basis for the defendants' demurrer is that the complaint and each of its causes of action fail to state sufficient facts to...

Excerpt: ... allegations/language must be set in boldface type. 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 his co...

Excerpt: ...ll new allegations shall be placed in boldface type. Explanation: Housing Authority's Demurrer The Housing Authority of the City of Fresno demurs on the ground that plaintiff fails to plead compliance with the claim presentation requirements. The Complaint alleges that Fresno Housing Authority is a public entity. (See Complaint, 5(a).) Compliance with the claim filing requirements (i.e., Gov. Code, SS 910, 912.4, 912.8 and 945.4) is an essential ...