Excerpt: ...erk's service of this order. As an evidence sanction, if the cell phone is not produced within 20 days of the clerk's service of this order, the court hereby orders that the cell phone and videos filmed on that cell phone may not be referred to at trial or introduced in evidence in this proceeding. To order plaintiffs Manuel Cubias and Gustavo Gonzalez to appear for properly noticed depositions within 30 days of the date of the clerk's service of...

Excerpt: ...order. Explanation: The party moving for summary judgment/adjudication bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co., supra, (2001) 25 Cal.4th 826, 850.) Only then does the burden of production shift to the party opposing summary judgment, who is then subject to its own burden of production to make a prima facie showing that a triable issu...

Excerpt: ...five‐ year trial date. Explanation: The court incorporates herein its ruling of May 9, 2017 for historical perspective. 1. CLASS CERTIFICATION a. Standards 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, Newbe...

Excerpt: ...e reasonable “ballpark” of the settling crossdefendants' liability. (Code Civ. Proc. § 877.6; Tech‐Bilt, Inc. v. Woodward‐ Clyde & Associates (1985) 38 Cal.3d 488, 499‐500.) Explanation: Under Code of Civil Procedure section 877.6, “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 be entitled to a hearing on the issue of the good faith of a settlem...

Excerpt: ...n good faith shall bar any other joint tortfeasor or co‐obligor from any further claims against the settling tortfeasor or co‐ obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc. §877.6(c).) In considering a motion pursuant to section 877.6, the court balances the statute's goals of (1) encouragement of settlements, and (2) equitable sh...

Excerpt: ... for $143,551.00. This includes an unpaid principal of $110,000, interest of $27,126.00, attorney's fees of $5,850.00, and court costs of $575.00. None of these are accounted for on the CIV‐100 form. Furthermore, the declaration does not explain, or contain any documentation supporting, the claim for $110,000 other than a conclusion that that was the unpaid principle for the note. Therefore, unless plaintiff can produce the evidentiary proof fo...

Excerpt: ...Cal.App.4th 1049, 1054, internal quotation marks and citations omitted; see Code Civ. Proc. §472(a).) Accordingly, the filing of an amended pleading renders a demurrer to the original pleading moot. (Ibid.; Morehead v. Turner (1940) 41 Cal.App.2d 414, 418.) In the instant action, Defendants Growers Farm and Garcia filed a first amended answer on June 13, 2018. Though the amended answer was late‐filed (see Code Civ. Proc. §1005(b)), the Court ...

Excerpt: ...2016, California Code of Civil Procedure section 430.41 went into effect. Subdivision (a) of that section states, in pertinent part: Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. S...

Excerpt: ...gations shall be in boldface. Explanation: Demurrer for Uncertainty: Defendant first demurs to the complaint for uncertainty on the ground that the causes of action in the caption of the complaint do not match the numbers of the claims in the body of the complaint, and the causes of action do not specify against which defendant they are alleged. However, courts look with disfavor on demurrers for uncertainty and will not sustain them unless the c...

Excerpt: ...tlements, and (2) equitable sharing of costs among the parties at fault. (Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 494.) The standard is whether the amount of the settlement is within the “reasonable range” or “ballpark” of the settling tortfeasor's proportionate share of comparative liability for the plaintiff's injuries. (Id. at. p. 499.) Where a motion for determination of good faith settlement is contested, the m...

Excerpt: .... Sup.Ct. (1986) 179 Cal.App.3d 494, 498.) Here, the declaration of Doctor Douglas B. Malcolm, M.D. creates a triable issue of fact. Dr. Malcom opines that Saint Agnes – being a “busy California metropolitan emergency room facility” (Malcom Dec., filed: 5/23/18 ¶11), breached the standard of care in not having a radiologist available to interpret film twenty‐four hours per day. (Ibid.) According to Dr. Malcom, hospitals like Saint Agnes ...

Excerpt: ...r Admission admitted “establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) Any matter admitted in response to a Request for Admission is conclusively established against the party making the admission. (Code Civ. Proc. § 2033.410, subd. (a); see Murillo v. Sup.Ct. (People) (2006) 143 Cal.App.4th 730...

Excerpt: ...r other device. The photos of the standard connection assembly and the one at issue in the fire show that a rubber ring was on the one used in the fire. All parties agree this caused a leak, which then led to the explosion. All agree such rubber ring is not part of the assembly as designed by moving defendant. So no design defect is at issue. Plaintiffs tries to argue that the ring may have been added at moving defendant's factory anyway, outside...

Excerpt: ...oc. §§ 598, 1048.) As the decision to bifurcate is discretionary with the trial judge, and recognizing that this department may not be the ultimate trial department, the Court denies the motion to bifurcate at this time, without prejudice to it being renewed in limine. Judgment on the Pleadings The sole question presented by a defendant's motion for judgment on the pleadings is whether or not the facts stated in the complaint constitute a c...

Excerpt: ... 11, 2018. Service shall be by email. Explanation: Defendant Aerotek moves to compel plaintiff to arbitrate his claims against “all defendants.” The notice of motion was not directed to defendant O'Neill Beverage Company, LLC, and that defendant has neither joined in this motion, nor opposed it. A refusal to arbitrate is a prerequisite to a motion or petition to compel arbitration. Also, Aerotek only cites authority indicating that a third pa...

Excerpt: ...A special motion to strike pursuant to Code of Civil Procedure §425.16 (an “AntiSLAPP motion”) provides a means for quickly identifying and eliminating suits brought to chill the valid exercise of a party's constitutional right of petition or free speech. In order to invoke the protection of the anti‐ SLAPP statute, the defendant must show that the plaintiff's lawsuit arises from defendant's exercise of free speech or petition rights as de...

Excerpt: ...r proceeding or by any other transfer of an interest. The action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." Here, the moving party presented evidence that it is the assignee of the claim. No opposition was filed to the motion. The moving party may be substituted in as the plaintiff in this action. The motion is...

Excerpt: ...ubdivision (b). The motion is timely and is based on Plaintiff's attorney's affidavit of fault. Counsel states he failed to appear at the OSC due to a calendaring error. The only possible exception to the mandatory provision of Code of Civil Procedure section 473, subdivision (b), is where the dismissal is not the result of attorney fault. Here, there is no evidence on which to base such a finding. Accordingly, Plaintiff's motion to have the dism...

Excerpt: ...asors 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(a)(1).) “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor o...

Excerpt: ...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(a)(1).) “The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affid...

Excerpt: ...ars to have been filled out correctly. However, again, what Plaintiff appears to be asking for (as far as the declarations seem to suggest) does not appear to match the allegations in the complaint. The previous ruling asked for briefing on whether the change in terms was allowed for Plaintiff's specific performance claim. “A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plainti...

Excerpt: ... which to cut off the right to file cross‐complaints bringing in new parties without permission of court.” (Loney v. Superior Court (1984) 160 Cal.App.3d 719, 723.) Where a party files a cross‐complaint after the first trial date has been set, the cross‐complaint is subject to a motion to strike. (Code Civ. Proc. §436(b); Loney, supra, 160 Cal.App.3d at p. 724.) Leave of court is required to file a cross‐complaint, or amended cross‐c...

Excerpt: ...3d 311, 318.) “[P]laintiff's ability to prove the allegations, or the possible difficulty in making such proof, does not concern the reviewing court.” (Aragon–Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238; see Bainbridge v. Stoner (1940) 16 Cal.2d 423, 431 [“facts have no place in a demurrer”].) Demurrers supported by evidence are referred to as “speaking” demurrers and are improper. (Mohlmann v. Cit...

Excerpt: ...arty will result from allowing the admission to be withdrawn or amended. (Code Civ. Proc., § 2033.300, subd. (b); see New Albertsons, Inc. v. Sup.Ct. (2008) 168 Cal.App.4th 1403, 1418.) Judicial policy favors relief. Section 2033.300 is designed to eliminate undeserved windfalls obtained through requests for admission and to further the policy favoring resolution of lawsuits on the merits. Therefore, any doubts must be resolved in favor of the p...

Excerpt: ...r. On April 28, 2016, pursuant to an “Order to Show Cause” hearing, the Court dismissed the case without prejudice. Plaintiff now moves to set aside the dismissal on the ground it is void for lack of jurisdiction and notice. As of June 8, 2018, no opposition to the motion had been filed. The general rule is that the filing of a notice of appeal divests subject matter over any matter embraced in or affected by the appeal during the pendency of...