Excerpt: ...�[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which 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....

Excerpt: ...ion In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and all of the 'inferences' reasonably drawn there 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.) In making this determination, courts usually follow a three‐prong analysis: identifying the issues as fra...

Excerpt: ...t al. for Attorneys' Fees and Costs by Plaintiff Westlands to Tax Memorandum of Costs Filed by Defendant North Coast River Alliance Tentative Ruling: To grant the motion of defendants County of San Joaquin and County of Trinity for an award of attorneys' fees against plaintiff Westlands Water District (Westlands) in the amount of $197,163.75. To grant the motion of defendants California Water Impact Network (CWIN) et al. for an award of attorneys...

Excerpt: ...tial responses to Form Interrogatories, Set Two from plaintiff Ericka Lollis; and request for sanctions Tentative Ruling: To grant the motion seeking an order deeming the truth of matters specified in the Requests for Admission, Set Two established pursuant to Code of Civil Procedure section 2033.280, subdivision (b) against plaintiff Reginald Robinson unless responses in substantial conformity with Code of Civil Procedure section 2033.220 are se...

Excerpt: ...order consistent with the court's summary adjudication ruling. Explanation: Summary Judgment/Adjudication A motion for summary judgment is generally directed toward an entire action or pleading. (Code of Civ. Proc., §437c, subd. (a).) By comparison “[a] party may move for summary adjudication as to one or more causes of action within an action ….” (§ 437c, subd. (f)(1).) In addition, “[a] motion for summary adjudication shall be granted...

Excerpt: ...ctions 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 the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” The purpose for consolidation is to promote trial convenience and economy by avoiding duplication of procedure particularly in t...

Excerpt: ...judgment. To deny summary adjudication of issues one, two, three and four. To grant summary adjudication of issue five. (Code of Civ. Proc., § 437c, subd. (f).) Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c).) Summary adjudication is the proper mechanism for challenging a particular “c...

Excerpt: ...p. (1998) 67 Cal.App.4th 995, 999; see also Templo v. State of Calif. (2018) 24 Cal.App.5th 730, 735 [“‘motion for judgment on the pleadings is equivalent to a demurrer'”].) Accordingly, a defendant is entitled to a judgment on the pleadings where the plaintiff's complaint shows, on its face, that its causes of action are barred by an applicable statute of limitations. (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440; see also Commi...

Excerpt: ...certified for settlement purposes. The court may make an order approving or denying certification of a provisional settlement class after the preliminary settlement hearing. (Cal. Rules of Court, rule 3.769(d).) Before the court may approve the settlement, however, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Products, Inc. v. Windsor (1997) 521 US 591, 625‐627; see also Newberg, Newberg and Rubenstein ...

Excerpt: ...en (7) days of the date of service by the clerk of this order, a proposed judgment dismissing this action as to them. The court denies defendants' additional request for monetary sanctions. Explanation: Code of Civil Procedure section 2023.010, subdivision (g) construes “[d]isobeying a court order to provide discovery” to be a “misuse of the discovery process,” but sanctions are only authorized to the extent permitted by each discovery pr...

Excerpt: ... dismiss the representative portion of the PAGA claim. Explanation: Notice of Joinder Defendant Aerotek, Inc. (“Aerotek”) seeks an order compelling plaintiff to private arbitration of his wage and hour claims and his PAGA claim as an individual, and to dismiss the representative portion of the PAGA claim brought on behalf of all aggrieved employees. A notice of joinder to join in Aerotek's motion was filed by DMM Packaging, Inc. (“DMM”) o...

Excerpt: ...nd 20 of plaintiff's Request for Production of Documents, set one within twenty (20) days from the date of this order. To grant the request for monetary sanctions in the amount of $2,560, payable no later than twenty (20) court days from the date of this order, with the time to run from the service of this minute order by the clerk. Explanation: Discovery requests are generally afforded liberal construction. (See Code of Civ. Proc., § 2017.010; ...

Excerpt: ...stayed until plaintiff proffers proof that he has posted the security as ordered. (Code Civ. Proc. § 391.6.) If plaintiff fails to post security within 30 days as ordered, the court will dismiss the action upon an ex parte application by defendants. (Code Civ. Proc. § 391.4.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits ...

Excerpt: ...y department at defendant Madera Community Hospital (MCH) on April 15, 2020 in great pain and was diagnosed with a torn artery which required surgery. Decedent was subsequently transferred to a couple other medical facilities, but passed away on April 24, 2020. Plaintiff alleges that MCH negligently failed to exercise the proper degree of knowledge and skill in examining, diagnosing, treating, and caring for decedent. As the moving party, a defen...

Excerpt: ...t, or in the alternative summary adjudication. (Ibid.) Defendant shall submit a proposed judgment consistent with this court's order within 10 days of the date of service of the order. Explanation: First, to the extent that plaintiffs have moved for summary adjudication of their first cause of action under an unjust enrichment theory, the motion has been improperly brought because the court has already ruled that plaintiffs cannot state a claim a...

Excerpt: ...f the accident, or on any other date. Therefore, she contends that plaintiff Felix Guevara, who was a passenger in the car and who was injured when Ibrahim allegedly drove the car in a negligent manner and caused it to roll over, cannot recover against her under a negligent entrustment theory or under the vehicle owner liability statute, Vehicle Code section 17150. Under Vehicle Code section 17150, “[e]very owner of a motor vehicle is liable an...

Excerpt: ...g: To overrule defendant Clovis Unified School District's (“CUSD”) demurrer to the fourth cause of action of the First Amended Complaint (“FAC”). (Code Civ. Proc., § 430.10, subds. (b), (d).) CUSD shall file its answer to the FAC within 10 days of service of the order by the clerk. To quash the subpoena served on Saint Mary's Medical Center (“St. Mary's”), without prejudice to CUSD serving a more narrowly tailored subpoena. (Code Civ...

Excerpt: ...laintiff brings a single cause of action under PAGA on behalf of himself and all aggrieved employees under Labor Code section 2698 et seq. Defendant now seeks an order compelling plaintiff to private arbitration of his PAGA claim as an individual, and to dismiss the representative portion of the PAGA claim brought on behalf of all aggrieved employees. Motion to Compel Arbitration A trial court is required to grant a motion to compel arbitration �...

Excerpt: ...ossComplaint. The time to file such pleading will run from service by the clerk of this minute order. All new allegations in the Second Amended Cross‐Complaint are to be set in boldface type. Explanation: First American demurs to Cross‐Complainant's first and only cause of action for professional negligence, contending that she fails to allege facts sufficient to state a valid claim. In particular, First American contends that the First Amend...

Excerpt: ...f contract. (Code Civ. Proc., § 437c.) Explanation: Plaintiffs have met their burden of showing that defendants' second cross‐ claim for breach of contract is barred by the statute of frauds. Under Civil Code section 1624, “The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: [¶] (1) An agreement that by its terms is not to be ...

Excerpt: ...ourth causes of action. To sustain, without leave to amend, Harco National Insurance Company's demurrer to the fifth cause of action. Plaintiff is granted 20 days' leave to file a Second Amended Complaint. The time to file such pleading will run from service by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Plaintiff filed the operative First Amended Complaint (“FAC”) against de...

Excerpt: ...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' representation of an unc...

Excerpt: ...laintiff and defendant Central California Faculty Medical Group, Inc. (“CCFMG”) on 3/22/22. Southwest shall bates stamp all documents responsive to the subpoena served on 2/8/22, and within 20 days of service of the order deliver the documents to CCFMG. CCFMG may then apply the “Attorneys' Eyes Only” designation to any documents it contends include trade secrets or other protected confidential information. CCFMG shall produce all document...

Excerpt: ...tion against defendant alleging five causes of action: (1) right of possession of personal property; (2) fraud; (3) conversion; (4) declaratory relief; and (5) injunctive relief, regarding a 1926 Ford Phaeton convertible. Plaintiff now seeks summary judgment of his Complaint or, in the alternative, summary adjudication of the claims that “Defendant converted, and is in wrongful possession of Plaintiff's property, and Plaintiff is entitled to it...

Excerpt: ...r arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. § 2.) “In recognition of Congress' principal purpose of ensuring that private arbitration agreements are enforced according to their terms, we have held that the FAA pre‐empts state laws which ...

Excerpt: ...btor is not the occupant, on the judgment debtor. Service shall be made personally or by mail. At the hearing on the motion the court shall determine the occupant's right to possession and shall make an order including terms and conditions that are appropriate under the circumstances of the case. (Code Civ. Proc., § 700.080(c) (emphasis added).) Where, as here, the personal property subject to the writ of possession is being used as a dwelling t...

Excerpt: ...the clerk's entry of default that preceded it. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the statutory time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his...

Excerpt: ...n, (6) fraudulent concealment, (7) constructive fraud, (8) breach of contract, (9) breach of written contract, (10) unjust enrichment, and (11) unfair competition. Defendant Lometti initially did not respond to the complaint. Plaintiff entered defendant Lometti's default on May 22, 2018, but it was set aside on February 1, 2019 when the court determined that defendant Lometti did not have actual notice of the complaint and summons. Defendant Lome...

Excerpt: ...) no. 3. Plaintiffs shall provide a further response to Special Interrogatory (set two), no. 3 within twenty (20) days from the date of this order. The motions are denied in all other respects. To deny the request for imposition of monetary sanctions. Explanation: Associational Privacy (Special Interrogatory no. 2/Requests for Production of Documents nos. 3 and 4) Defendants contend that the requested discovery is justified because “[t]he plain...

Excerpt: ...confer regarding the protective order. To grant defendant's motion to compel further responses to Request for Production No. 18 and direct plaintiff to serve a written verification. To grant plaintiff's motion to compel further responses to Requests for Production Nos. 26, 28 and 31, subject to a protective order. To direct the parties to meet and confer regarding the protective order. To grant plaintiff's motion to compel further responses to Re...

Excerpt: ...mended complaint and dismiss the action against defendant. (Code Civ. Proc., §§ 2023.010, subd. (g); 2030.030, subd. (d).) Defendant shall submit a proposed judgment consistent with the court's order within 10 days of service of the minute order. Explanation: Code of Civil Procedure section 2023.010, subdivision (g) makes “[d]isobeying a court order to provide discovery” a “misuse of the discovery process,” but sanctions are only author...

Excerpt: ...other causes of action. (Code of Civil Procedure § 430.10, subd. (e).) Plaintiff is granted 10 days' leave to file a First Amended Complaint. The time in which such pleading can be filed will run from service by the clerk of the minute order. New allegations in a First Amended Complaint are to be set in boldface type. Plaintiff shall correctly number the causes of action, and refrain from cumulative or “chain letter” pleading. (Kelly v. Gene...

Excerpt: ...ones Food Company, Fresno County Superior Court case no. 21CECG01408 and Sarmiento v. The Neil Jones Food Company, Fresno County Superior Court case no. 21CECG03825, have been resolved. Explanation: “The party against whom a complaint or cross‐complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: … (c) There is another action pending between the...

Excerpt: ...ding shall be filed within 20 days of the clerk's service of this order. New or different allegations in the second amended complaint are to be set in boldface type. Explanation: General Demurrer A party may file a general demurrer on claims that “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [“‘A demurrer can be utili...

Excerpt: ...ules 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) states: “If the court approves the settlement agreement after the final approval hearing, the court must make and enter judgment. The judgment must include a provision for the retention of the court's jurisdiction over the parties to enforce the terms of the judgment. The court may not ...

Excerpt: ...hasis added).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Cal. 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 the previous pleading ar...

Excerpt: ...request for costs, without prejudice. Explanation: Plaintiffs Antonio Mercado (“Mercado”) and Miriam Olivares (“Olivares”) bring a Complaint with eight causes of action related to the purchase of a 2015 Dodge Charger. Plaintiffs allege a cause of action for fraud and deceit; four causes of action for negligence under various theories; a cause of action for violation of the Consumer Legal Remedies Act; a cause of action for violation of Bu...

Excerpt: ...aced or affected by the order being appealed. (Code Civ. Proc., § 916, subd. (a).) Explanation: “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter em...

Excerpt: ...or monetary sanctions. To deny defendant's motion for a protective order. Explanation: Although there are exceptions, generally the scope of discovery is broad. (Williams v. Superior Court (2017) 3 Cal.5th 531, 541; Tien v. Superior Court (2006) 139 Cal.App.4th 528, 536; Code Civ. Proc., § 2017.010.) In Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282 (Liberty Mutual) the plaintiff alleged a workers compensation insurer made ...

Excerpt: ...covery subpoena utilizing the California Judicial Council form SUBP‐030. Metropolitan AME contends that the deponent has not complied with the subpoena and thus petitions, in part, for relief under the provisions of Code of Civil Procedure section 2029.060. That section provides that “[i]f a dispute arises relating to discovery under this article, any request for a protective order or to enforce, quash, or modify a subpoena, or for other reli...

Excerpt: ...il Procedure, section 1290 authorizes a party to seek to compel arbitration by filing a petition in court, and states the petition allegations “are deemed to be admitted … unless a response is duly served and filed.” (Code Civ. Proc., § 1290.) “A response shall be served and filed within 10 days after service of the petition… The time provided in this section for serving and filing a response may be extended by an agreement in writing ...

Excerpt: ...e amount of $630 against plaintiff Camalah Kopacz. Sanctions are ordered to be paid by plaintiff within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. Plaintiff shall serve responses, without objections, to defendant Fresno Community Hospital and Medical Center's Form Interrogatories, Set One, Special Interrogatories, Set One, Request for Production of Documents, Set One, and Request fo...

Excerpt: ...tional Facts” filed on September 8, 2022, is disregarded, as the summary judgment statute does not provide for this. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 248.) Evidentiary Objections No proper evidentiary objections have been made, by either side. Objections are made to the evidence and not to the fact stated on the Separate Statement. Written objections are (inter alia) to be filed separately from other papers, and quote...

Excerpt: ...mber 20, 2022, at 3:30 p.m. in Department 501. To impose a monetary sanction against defendant FCA US LLC in the amount of $5,130, payable no later than thirty (30) days from the date of service of this order. Explanation: Plaintiffs seek to restore jurisdiction of the action to this court by vacating an earlier order compelling arbitration and staying the action. Plaintiffs also seek attorney's fees incurred on the aborted arbitration. Defendant...

Excerpt: ...a 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 conditionally certified ...

Excerpt: ...ore parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐ obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc., § 877.6, subd. (a)(1).) “A determination by the court that the settlement was made in good faith ...

Excerpt: ...will run from service by the clerk of the minute order. New allegations/language in the first amended complaint are to 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 truth of the facts alleged in the complaint are assumed true as well as the reasonable inferences that may be drawn from those facts...

Excerpt: ...to amend as to all defenses, except for the thirteenth defense. Defendants shall serve and file their first amended answer within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff demurs to each of the 13 affirmative defenses raised in the Answer. A party can object to an answer by demurrer on any one or more of three grounds: (a) The answer does not state facts sufficient to constitute...

Excerpt: ...om service of the notice of ruling and is extended where such notice is served by mail, fax, overnight delivery or electronically. (Code Civ. Proc., §§ 1010.6 and 1013, subd. (a); People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 692.) New 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. (Plumle...

Excerpt: ...depositions. To grant defendant's request for monetary sanctions against plaintiffs John Geyer and Jarrett Geyer in the amount of $730 against each plaintiff for their unjustified and willful refusal to appear for their depositions. (Code Civ. Proc. § 2025.450, subd. (g).) Plaintiffs shall pay monetary sanctions to defense counsel within 30 days of the date of service of this order. To deny defendant's request for terminating sanctions against p...

Excerpt: ...he time the complaint is filed. The requirements of the code relating to the time for service of summons are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute. (Code Civ. Proc., § 583.250, subd. (b).) If service is not made in an action within the time prescribed, the action may not be further prosecuted and no further proceedings may be held in the action, and the action must be dismissed b...

Excerpt: ...xplanation: Code of Civil Procedure section 436 provides, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading, (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” A motion to strike may be use...

Excerpt: ...ation: Unless otherwise provided for, no suit for money or damages may be brought against a government entity (or against a government employee acting in the scope of employment) unless and until a timely claim has been presented pursuant to the Government Claims Act and either acted upon or deemed rejected by the passage of time. (Govt. Code, §§ 945.4, 950.2, 912.4.) “A claim relating to a cause of action for death or injury to person… sha...

Excerpt: .... Explanation: Defendant Target Corporation moves to strike the punitive damages allegations and prayer from plaintiff's FAC filed on January 13, 2022. The FAC alleges that plaintiff was “injured due to negligently installed and negligently maintained handicap sign located at or near the entrance to the premises.” Punitive damages are sought because defendants “forc[ed] patrons to enter and exit the aforesaid Target retail store through a n...

Excerpt: ...n “while alleviating [the defendant's] difficult choice between defending either the civil or criminal case.” (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.) Pursuant to both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding. (U.S. Const., 5th Amend.; Cal. Const., art. 1, § 15; see Evid. Code, § 940.) The privile...

Excerpt: ...he presiding judge prior to filing any new litigation in the courts of this state in propria persona. (Code Civ. Proc. § 391.7.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260,...

Excerpt: ...ng judge prior to filing any new litigation in the courts of this state in propria persona. (Code Civ. Proc. § 391.7.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265.) Th...

Excerpt: ...o compel the deposition of Julianne Williams without prejudice. (Cal. Rules of Court, rule 3.1345(a)(5), (b).) To grant plaintiff's motion to compel the deposition of Dycora Transitional Health— Weber Oaks LLC's (“Dycora—Weber Oaks”) person most knowledgeable. Dycora— Weber Oaks shall produce the person most qualified to testify regarding categories 1‐16. (Code Civ. Proc., § 2025.450, subd. (a).) To grant plaintiff's motion to compel...

Excerpt: ...visions continuing in full force and effect. (See Defendant's Evidence, Ex. A [Dispute Resolution Agreement].) To grant defendant's motion to stay the pending court action until the arbitration has been resolved. (Code Civ. Proc., § 1281.4.) In light of the court's order granting the motion to compel arbitration, the demurrer set for October 27, 2022 is taken off calendar as moot. Explanation: Pursuant to California Code of Civil Procedure secti...

Excerpt: ...ence, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial 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 dat...

Excerpt: ...le their second amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. To deny the motion for terminating sanctions, but to grant the motion for monetary sanctions and impose monetary sanctions against plaintiffs and their attorney of record, Ilan N. Rosen Janfaza, jointly and severally, in the amount of $3,458.14, payable no later than thirty (30) days from the date of service of th...

Excerpt: ...laintiffs shall serve and file their first amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface type. To grant the motion to strike and strike the phrase “without limitation” from the complaint at pages: 3:7, 4:24, 5:1, 5:9, 5:11, 5:14, 5:20, 5:28, 6:11, 6:21, 6:24, 6:25‐ 7:1, 7:3, 7:10, 7:11, 7:13‐14, 7:16, 7:22, 7:26, 8:1, 8:7, 8:10, 8:11, 11:9, 12:20 ‐21, 12:25, 13:3, 1...

Excerpt: ...set in boldface type. Oral argument for this matter is set on November 2, 2022, at 3:30 p.m. in Department 503. Plaintiff may appear through CourtCall. Explanation: “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, r...

Excerpt: ... service by the clerk of the minute order. New allegations in the First Amended Complaint are to be set in boldface type. The court sustains the demurrer to the second cause of action without leave to amend. The court grants the motion to strike the prayer for pre‐judgment interest and punitive damages, in light of plaintiff's notice of non‐opposition, without leave to amend. The court grants the request for judicial notice of the tort claim ...

Excerpt: ...e or any part thereof, … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. § 2.) “In recognition of Congress' principal purpose of ensuring that private arbitration agreements are enforced according to their terms, we have held that the FAA pre‐ empts state laws which ‘require a judicial forum for the resolution of claims which the contracting p...

Excerpt: ...court to select five nominees from the lists of arbitrators submitted by the parties, then have the parties jointly choose an arbitrator. (Code Civ. Proc., § 1281.6.) The court selects the following nominees: • Hon. Donald S. Black (ret.) • Hon. Joseph R. Brisco (ret.) • Hon. Craig S. Kamansky (ret.) • Hon. Alan Simpson (ret.) • Russell D. Cook, Esq. The parties may either choose an arbitrator from the list above, or jointly select an ...

Excerpt: ....2 states, in relevant part: 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 and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waiv...

Excerpt: ...vely. Robert and Sharleen Robson have both since passed away, and defendant Steven A. Smith is the sole Trustee of The Sharleen G. Robson Survivor's Trust, established under the terms of the Robson Family Living Trust dated March 27, 2001 as amended and restated July 31, 2015. Plaintiffs assert that they attempted to exercise their option to purchase the interest Sharleen Robson had as to both the orchard and the ranch, pursuant to the terms of b...

Excerpt: ...against plaintiff Maciej Kopacz, M.D. Sanctions are ordered to be paid by plaintiff within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. Plaintiff shall serve responses, without objections, to defendant Fresno Community Hospital and Medical Center's Special Interrogatories, Set One, Request for Production of Documents, Set One, and Request for Nature and Amount of Damages no later than...

Excerpt: ...ns, pre‐ employment physical records, questionnaires, job descriptions, job duties, job applications, termination notices, exit interview records, disability payments, disability claims, disciplinary notices, leave of absence records, attendance records, hours worked, time cards, supervisor review notes, work related injury records, workers compensation claims, insurance benefits, and all other records for all dates pertaining to: DR. TIRATH GI...

Excerpt: ...ponent to personally attend the deposition and testify, as well as to attend any court session to consider any issue arising out of (inter alia) the deponent's refusal to be sworn, as here. (Code Civ. Proc., § 2020.220.) If a deponent on whom a deposition subpoena has been served fails to attend a deposition, the court may impose on the deponent sanctions described in Code of Civil Procedure section 2020.240. (Code Civ. Proc., §2025.440, subd. ...

Excerpt: ...1, 2022. Explanation: Plaintiff in this action asserts various causes of action alleging sex abuse as a minor committed by teacher and defendant Stacey Aprile, employed by defendant Clovis Unified School District. Based on plaintiff's allegations of sexual assault, CCTC conducted an investigation into plaintiff's allegations against Aprile. On March 1, 2022, plaintiff served CCTC with a subpoena seeking production of documents generated in or rel...

Excerpt: ...he trial should be set on a shortened time basis to mitigate any prejudice to defendants from plaintiffs' continued occupancy of the premises. To grant defendants' motion to order plaintiffs to pay damages into an escrow account in order to remain in possession of the premises until the case is resolved. (Code Civ. Proc. § 1170.5, subd. (c).) Plaintiffs shall pay $3,185 per month into the escrow account. Explanation: First, to the extent that de...

Excerpt: ..., with leave to amend. Plaintiff shall serve and file an amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface type. Explanation: A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired, and so the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) As in demurrers,...

Excerpt: ...ommercial real estate for plaintiff to operate an auto repair business, with the oral agreement being that, even though title would be taken in the Morenos' name, plaintiff would make the payments on the property (mortgage, insurance, taxes, and maintenance), and the Morenos would just “hold title” in their name. This alleged agreement has spawned two legal actions and years of litigation, with this action commenced in 2016. At one point, the...

Excerpt: ...Defendant contends that claims under Labor Code section 1102.5 are governed by a one‐year statute of limitations, since they are claims under a statute that provides for a civil penalty. (Code Civ. Proc., § 340, subd. (a).) Defendant notes that Labor Code section 1102.5, subdivision (f), provides for a mandatory civil penalty of no more than $10,000 for each violation. Thus, defendant concludes that, since plaintiff did not file his action wit...

Excerpt: ...219 Cal.App.4th 367.) Explanation: Plaintiff Maria Angel (“plaintiff”) requests that the unlawful detainer action, Case No. 22CECL03151, be consolidated with the unlimited civil action, Case No. 22CECG02212, since the unlawful detainer action would otherwise proceed to trial more quickly, before plaintiff's claim to own title to the property could be decided, and she could be evicted from her own property. Under Code of Civil Procedure, secti...

Excerpt: ...'s summary judgment ruling. To sustain defendant's objections nos. 1 thru 3. All other objections are overruled pursuant to Code of Civil Procedure, section 437c, subdivision (q). Explanation: Summary Judgment A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610,...

Excerpt: ...the complaint within 10 days of service of this order. Explanation: These motions arise out of a complaint filed November 10, 2021 for (1) breach of written contract; (2) breach of the implied covenant of good faith and fair dealing; (3) unjust enrichment; (4) violation of Business and Profession Code section 17200 et seq.; (5) declaratory relief, with request for temporary, preliminary, and permanent injunctive relief; and (6) money had and rece...

Excerpt: ...court … for settlement of the case … , the court, upon motion, may enter judgment pursuant to the terms of the settlement.” Here, the parties entered into a written settlement agreement, including a stipulation for entry of judgment in the event defendant failed to pay the amounts he agreed to pay under the settlement agreement, and then failed to cure his default. It does not appear to be disputed that, although defendant made several paym...

Excerpt: ...e first and second causes of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) To grant Montgomery's motions to strike the prayer for punitive damages, and the allegation at paragraph 30 that “Defendant AIMEE MONTGOMERY, D.M.D.'s actions as described above, were malicious, willful, and made in conscious disregard for Plaintiffs health and well‐being.” (Code Civ. Proc., §§ 436, 425.13.) To overrule Smith's demurrer to t...

Excerpt: ... truth of all material factual allegations in the complaint” and the plaintiff's “ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court ….” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496; Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 190 [“We assume the truth of the properly pleaded factual allegations, facts that reasonably can be i...

Excerpt: ...e second cause of action for conversion on the ground that the Complaint fails to state a claim. Mr. Weyant contends that the subject property of the action is not amenable to conversion as a matter of law. To state a claim for conversion, a plaintiff must allege: “(1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. ...

Excerpt: ...duction, Set One; and (3) For Monetary Sanctions Tentative Ruling: To grant plaintiff's motion to compel the deposition of Dycora Transitional Health— Quail Lake LLC's (“Dycora—Quail Lake”) person most knowledgeable. Defendant Dycora—Quail Lake shall produce the person most qualified to testify regarding categories 1‐16. (Code Civ. Proc., § 2025.450, subd. (a).) To grant plaintiff's motion to compel document production regarding requ...

Excerpt: ...ed person(s) who have not timely served an objection pursuant to Code of Civil Procedure section 2025.410 or otherwise obtained the consent of all interested parties agreeing to the non‐appearance of the party or person(s) at the deposition as noticed or subpoenaed, and motions to compel initial responses to interrogatories, requests for production and requests for admissions, no motion under sections 2016.010 through 2036.050, inclusive, of th...

Excerpt: ...lment Sale Contract. Explanation: Plaintiff contracted to purchase the vehicle from Lithia Nissan of Clovis on credit. (Pacheco Decl., ¶5, Exh. A.)The dealership then assigned its interest in the contract to American Credit Acceptance, LLC (ACA). (Pacheco Decl. ¶¶ 6‐9, Exh. B; Henao Decl. ¶¶ 7, 11‐12.) The retail sales installment contract (RISC) contained an agreement to arbitrate disputes that arise between plaintiff purchaser and Lith...

Excerpt: ...and dismiss the action against defendants. (Code Civ. Proc., §§ 2023.010, subd. (g); 2030.030, subd. (d).) Defendants shall submit a proposed judgment consistent with the court's order within 10 days of service of the minute order. Explanation: Code of Civil Procedure section 2023.010, subdivision (g) makes “[d]isobeying a court order to provide discovery” a “misuse of the discovery process,” but sanctions are only authorized to the ext...

Excerpt: ...il Procedure section 1255.010 [the probable amount of compensation to be awarded to defendants], plaintiff has failed to provide notice of its motion to all the requisite parties. Notice Requirement A motion for prejudgment possession must be served on the “record owner of the property and on the occupants, if any.” (Code Civ. Proc., § 1255.410, subd. (b).) “‘[R]ecord owner' means the owner of the legal or equitable title to the fee or a...

Excerpt: ... the same lawsuit. Thus, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) Courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) If plainti...

Excerpt: ...with adverse interests. The Complaint identifies three different legal actions wherein defendants represented parties with adverse interests: the Akoo, Misaghi and Sanchez actions. The Akoo action was filed on 7/15/20, and on 8/3/20 defendants accepted service of the Complaint and thereafter continued to litigate the matter. The Misaghi action was filed on 2/1/21. Defendants represented the defendant in that action, and filed an Answer and Cross�...

Excerpt: ...e to amend. Plaintiff is granted 20 days, running from the date of service of the minute order by the clerk, to file and serve a second amended complaint. Explanation: On December 16, 2021, this court sustained defendant's demurrer to plaintiff's original complaint, with leave to amend, except that leave to amend was not granted to state a petition for a writ of mandate. The court found that, among other things, the original complaint failed to s...

Excerpt: ...e in boldface. To deny defendants' motion to strike each cause of action of the First Amended Complaint. Explanation: On April 7, 2021, plaintiff filed suit against defendants alleging breaches of a leaseoption agreement of agricultural property. Plaintiff pled six causes of action: (1) breach of contract of lease of agricultural property; (2) breach of contract of purchase of a residence; (3) breach of implied covenant of good faith and fair dea...

Excerpt: ...esponses to Form Interrogatories (Set Two), Special Interrogatories (Set One), Request for Production of Documents (Set Two). To grant defendant Smart & Final's motion for an order deeming Requests for Admissions admitted. The truth of the matters specified in the Requests for Admissions, Set One, are to be deemed admitted unless plaintiff Laura Mendoza serves, before the hearing, a proposed response to the Requests for Admission that is in subst...

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 action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93‐95.) “Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well‐defined community of in...

Excerpt: ...companied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: [�...

Excerpt: ... overrule plaintiffs' objection number 6. All other objections are overruled pursuant to Code of Civil Procedure, section 437c, subdivision (q). To vacate the April 17, 2023 trial date. Explanation: Summary Judgment/Adjudication A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c); Schacter v. Citigroup (20...

Excerpt: ...t a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists.” (Code Civ. Proc., § 1281.2, subd. (c), emphasis added.) Petitioner brings this motion to enforce the arbitration provision of the subcontractor agreement between itself and respondent JT2, Inc. The agreement states in pertinent part...

Excerpt: ... 85, subdivision (a), “an action or special proceeding shall not be treated as a limited civil case unless all of the following conditions are satisfied: [¶] (a) The amount in controversy does not exceed twenty‐five thousand dollars ($25,000).” (Code Civ. Proc. § 85, subd. (a).) “As used in this section, ‘amount in controversy' means the amount of the demand, or the recovery sought, or the value of the property, or the amount of the l...

Excerpt: ...s, but merely discovers, through the medium of affidavits or declarations, whether there are issues to be tried and whether the parties possess evidence that demands the analysis of a trial. (Melamed v City of Long Beach (1993) 15 Cal.App.4th 70, 76; Molko v Holy Spirit Ass'n (1988) 46 Cal.3d 1092, 1107; Schwoerer v Union Oil Co. (1993) 14 Cal.App.4th 103, 110.) In short, the motion is not a substitute for a bench trial. A summary judgment motion...

Excerpt: ...mended Complaint. The time to such pleading will run from service by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Demurrer to the First and Fourth Causes of Action for Breach of Written Contract and Breach of Implied Covenant of Good Faith and Fair Dealing: Defendants demur to the first and fourth causes of action on the grounds that these causes of action cannot be maintained as ...