Excerpt: ...rovide a further response to the form interrogatories. To grant plaintiffs' motion to compel further responses to the requests for admission. To grant monetary sanctions against defendant and its attorney, Larry Shapazian, in the amount of $2,580. Defendant shall serve further responses without objections within 10 days of the date of service of this order. Defendant shall pay monetary sanctions within 30 days of the date of service of this order...

Excerpt: ... (Code Civ. Proc., § 128.5.) “The award of sanctions for a frivolous action [or tactic] under Code of Civil Procedure section 128.5 is within the sound discretion of the trial court. [Citation.] Once imposed, ‘[the] test on appeal is whether the trial court has abused the broad discretion to justify our interference with a sanction award.' [Citation.] In reviewing that exercise of discretion we are informed by ‘several policy guidelines: (...

Excerpt: ...unitive Damages Allegations from Donald R. Levitt's Cross‐Complaint Tentative Ruling: To sustain cross‐defendants' general demurrer to the third and eighth causes of action, with leave to amend. (Code Civ. Proc., §430.10, subd. (e).) To overrule crossdefendants' general demurrer to the sixth and seventh causes of action. Crosscomplainant is granted 20 days, running from service of the minute order by the clerk, to file and serve a first amen...

Excerpt: ...ly when it also violates a duty independent of the contract arising from principles of tort law. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551 [87 Cal.Rptr.2d 886, 981.) The court gave cross‐complainant John Foggy (“Foggy”) an opportunity to amend in the abundance of caution, in the event there was some way he could allege a relationship formed from the agreement at issue (promissory note) which created fiduciary duties. However, the court ...

Excerpt: ... (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, by demonstrating that the facts underlying plaintiff's complaint fit one...

Excerpt: ...ve simultaneous briefs on April 7, 2021 which address each of the nine (9) issues identified by the court in bold typeface below. The briefs shall not exceed 15 total pages (exclusive of tables of contents and authorities). Electronic service is permitted. Any requests to exceed this page limit must be brought ex parte pursuant to Fresno County Superior Court, Local Rule 2.72, and California Rules of Court, rules 3.1200 through 3.1207. Explanatio...

Excerpt: ...ntegral part of plaintiff's cause of action. (Williams v. Horvath (1976) 16 Cal.3d 834, 842.) The government claim presentation deadline is not a statute of limitations. (City of Pasadena v. Superior Court (2017) 12 Cal.App.5th 1340, 1352.) The claim presentation must be made to the public entity separate from subsequently seeking redress in the courts. (DiCampli‐Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991, fn. 8.) Plaintiff premi...

Excerpt: ...Development Agency (“LWDA”) on how settlement of PAGA claims should be assessed, in O'Connor v. Uber Technologies, Inc. (N.D.Cal. 2016) 201 F. Supp. 3d 1110. “It is important to note that where plaintiffs bring a PAGA representative claim, they take on a special responsibility to their fellow aggrieved workers who are effectively bound by any judgment . . . The duty imposed on the PAGA representative is especially significant given that PAG...

Excerpt: ...s controls over any language fixing the settlement amount at $390,000. The Final Settlement Approval hearing is set at 3:30 p.m. on July 8, 2021. Papers shall be filed no later than June 23, 2021. Explanation: 1. Class Certification 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. (Luck...

Excerpt: ... consistent with the court's summary judgment order. Explanation: Objections The court rules as follows on defendants' objections:  Plescia Declaration: Sustain objection nos. 3‐8, 10, 11, 13, 15, 16, 19‐23, 30, 32, 33, 35, 38 and 39. Overrule objection nos. 1, 2, 9, 10, 12, 17, 18, 24‐29, 31, 34, 36, 37 and 38.  Smith Declaration: Sustain all 20 objections. Attorney Smith is testifying to matters for which he does not have personal k...

Excerpt: ...arbitration under California Code of Civil Procedure section 1281.2 and the Federal Arbitration Act (“FAA”). “California courts traditionally have maintained a strong preference for arbitration as a speedy and inexpensive method of dispute resolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Marke...

Excerpt: ... answer to the first amended crosscomplaint within 10 days of the date of service of this order. Explanation: Plaintiff/cross‐ defendants AMP Trucking and Pannu have moved to strike portions of the cross‐complaint on the ground that the cross‐claims are partially or completely barred by the statutes of limitation that apply to each cross‐claim. However, a general demurrer is normally the correct procedure for challenging a cause of action...

Excerpt: ...es of Court, rule 2.550(c).) “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a dec...

Excerpt: ...ourt has held that there is no tort cause of action in California for intentional spoliation evidence, when both the injured party and the alleged “spoliator” were parties to the underlying litigation, and the injured party knew or reasonably should have known of the alleged loss or destruction of evidence before the trial or other decision on the merits of the underlying cause of action. (Cedars‐Sinai Medical Center v. Superior Court (1998...

Excerpt: ...rties' Agreement “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code of Civ. Proc., § 1021.) The franchise agreement here addresses attorney fees and court costs incurred to secure a temporary or...

Excerpt: ...e demurrer of defendant National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) to the third cause of action with leave to amend. To overrule National Union's demurrer to the first and second causes of action. To grant National Union's motion to strike in its entirety, with leave to amend. Plaintiff is granted 30 days' leave to file a second amended complaint. The time in which the complaint can be filed will run from the d...

Excerpt: ...ttorney's fees and costs. To grant the motion to strike the prayer for treble damages without leave to amend. Defendant Saint Agnes Medical Center shall file and serve an answer to the First Amended Complaint within 10 days of the clerk's service of this minute order. Explanation: Demurrer “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We al...

Excerpt: ...nce, as attached as “Appendix B” in the record presented by petitioner, was improperly excluded at the hearing before respondent, and to remand the case to be reconsidered in light of that evidence. To order the motion to strike off calendar as moot in light of the ruling on the motion to augment. Explanation: These motions both concern expense vouchers (called TECs) which were submitted to real party in interest California Department of Tran...

Excerpt: ...Fact and Law “California courts consider ‘pattern and practice evidence, statistical evidence, sampling evidence, expert testimony, and other indicators of a defendant's centralized practices in order to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate.” (Jaimez v. DAIOHS USA (2010) 181 Cal.App.4th 1286, 1298.) In the prior order the court expressed that no such evidence had been p...

Excerpt: ...edure sections 430.41 and 435.5. Moving party and cross‐complainant are ordered to meet and confer pursuant to these statutes and, if necessary, to calendar a new hearing date for new motions. Any new hearing date must be obtained pursuant to Fresno County Superior Court Local Rules, rule 2.2.1. If moving party wishes to file a demurrer and motion to strike, they shall be filed as two separate motions. Explanation: California Farm Management, I...

Excerpt: ...ared for this same date are covered under separate Tentative Rulings.) Tentative Ruling: To grant the motion to seal. To sustain the demurrer to the third cause of action, without leave to amend. To order the motion to strike off calendar as moot, given the ruling on demurrer. Cross‐defendant Intercare is directed to submit to this court, within 7 days of service of the minute order, a proposed judgment dismissing the cross‐complaint as to it...

Excerpt: ... may be filed will run from service by the clerk of the minute order. Explanation: Defendant demurs to cause of action two, an alleged violation of the Consumer Legal Remedies Act § 1750 et. seq. Defendant argues: (1) pursuant to Civil Code section 1782, subdivision (a), proper notice was not provided; and (2) plaintiff has failed to allege an inadequate legal remedy before seeking equitable relief. Each argument is addressed below. 1. Was notic...

Excerpt: ...f no amended pleading is filed, defendant Miguel Torres, individually and doing business as ME Management Services (“defendant”) shall submit a proposed judgment consistent with this order. (Code Civ. Proc., § 438.) Explanation: In this case, defendant's motion for summary adjudication relies exclusively on the pleadings, rather than external affidavits or evidence. As such, it does not test the sufficiency of the evidence, but instead the s...

Excerpt: ...emphasis 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.) Colonial has largely complied with Cal. Rules of Court, Rule 3.1324. Colonial seeks to add a workers' compensation exclusivity affirmative defense. The court agrees wit...

Excerpt: ... including a cause of action asserted in a cross‐complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Code Civ. Proc., § 1048, subd. (b).) Albeit, section 1048 is based on Federal Rule of Civil Procedure 42, subdivision (b). (See Legislative Committee Comment to 1971 Amendment to Code of Civi...

Excerpt: ...dum of Costs and signed the Opposition to the Motion to Tax Costs) to appear telephonically through CourtCall or personally at the Sisk Courthouse. The court orders counsel for Fresno Community Hospital, attorney Karen J. Ray (who verified the Memorandum of Costs and signed the Response to the Motion to Tax Costs) to appear telephonically through CourtCall or personally at the Sisk Courthouse. Masks are required at the Sisk courthouse and entranc...

Excerpt: ...position a second time on the basis that prior to the first deposition he withheld witness statements by plaintiff James Arena and non‐ party Paige Rafanan, and the black box information from the vehicle Primavera was driving during the accident. The court is less concerned with whether Primavera is to blame for not disclosing this information prior to his deposition (there appears to be little fault of Primavera) than the need for a second dep...

Excerpt: ..., order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) The motion “shall be made within a reasonable time, in no case exceeding six months, after the … proceeding was taken.” (Ibid.) “The law favors judgments based on the merits, not procedural missteps.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134; see also Riskin v. T...

Excerpt: ... 19CECG01922 Tentative Ruling: To grant the motion to consolidate. Pietro De Santis v. Pasquale and Carmela De Santis, et al., Case No. 19CECG01922, is consolidated with Pasquale and Carmela De Santis as Trustees et al. v. Pietro De Santis, Case No. 19CECG04121, and Pietro De Santis v. Pat De Santis, Case No. 20CECG02264. A copy of this order shall be filed in each case. Pietro De Santis v. Pasquale and Carmela De Santis, et al., Case No. 19CECG0...

Excerpt: ... compel further responses to Request for Production of Documents, Set One: To grant the motion as to Request for Production (“RFP”) Nos. 10 and 42, and to deny as to the remainder. (Code Civ. Proc., § 2031.310, subd. (c).) To the extent the motions are granted, defendant shall provide further verified responses, produce a privilege log as necessary, and produce all relevant documents, within 20 days of service of the order by the clerk. Expl...

Excerpt: ...ype. Explanation: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial....

Excerpt: ...ules of Court, rule 3.769, subd.(a).) The approval of the settlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769, subd. (d).) “If the court grants preliminary approval, its order must include the time, date, and place of the final approval hearing; the notice to be given to the class; and any other matters deemed necessary for the proper conduct of a settlement hearing. (Cal. Rules of Court, R...

Excerpt: ...demnation, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Ibid.) To sustain the demurrer to the fifth cause of action for unjust enrichment, with leave to amend, for failure to state facts sufficient to constitute a cause of action. (Ibid.) To overrule the demurrer to the sixth cause of action for breach of implied warranty. (Ibid.) To deny defendant's motion to strike the specific allegations in t...

Excerpt: ...nd cause of action with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff is granted 20 days, running from service of the minute order by the clerk, to file and serve a second amended complaint. All new allegations in the amended complaint are to be set in boldface type. To deny defendant's motion to strike as moot in light of the court's February 17, 2021 order. Explanation: Demurrer A demurrer tests only the legal sufficiency o...

Excerpt: ...n for violation of Labor Code section 226(a) on the ground that the cause of action is barred by the one‐ year statute of limitations under Code of Civil Procedure section 340. “[T]he one‐year statute of limitations set forth in Cal. Code Civ. Proc. section 340 applies to Plaintiff's claims under this section [Labor Code § 226] because she is seeking ‘penalties.'” (Elliot v. Spherion Pacific Work, LLC (C.D. Cal. 2008) 572 F.Supp.2d 116...

Excerpt: ...ral demurrer and, except as provided by Code of Civil Procedure section 438, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227; Templo v. State of Calif. (2018) 24 Cal.App.5th 730, 735.) Thus, a defendant will not be able to raise any issues in a motion for judgment on the pleadings that could have been, but were n...

Excerpt: ...dered to pay $3,600 in sanctions to defendant's counsel's law firm within 30 days of service of this order. Explanation: Compelling Further Responses A court “may” – but is not required to – address the merits of discovery responses filed after a motion to compel. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409.) Accordingly, in light of plaintiff supplemental responses, defendant's m...

Excerpt: ...service of the minute order, a proposed judgment dismissing the action. Oral argument on this matter is continued to March 18, 2021, at 3:30 in Dept. 403 so that the petitioner may be present for oral argument via Court Call. Explanation: Petitioner is a civil detainee committed under the Sexually Violent Predator (SVP) Act, and is detained at the Department of State Hospitals, Coalinga (DSH‐Coalinga). The petition concerns DSH's statewide proh...

Excerpt: ...miss Action on the Ground of Inconvenient Forum Tentative Ruling: To grant the motion to quash service of the summons and complaint on defendants Theken Companies, LLC; Slice Mfg, LLC; e‐ Ceramics, LLC; and Theken Group, LLC. (Code Civ. Proc., § 418.10.) To deny the motion to quash service of the summons and complaint on defendant NextStep Arthropedix, LLC, and the alternative motion to stay or dismiss the action on the ground of inconvenient ...

Excerpt: ...��Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” (Code Civ. Proc., § 1285.) “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this sta...

Excerpt: ...burden of showing that the plaintiff agreed to arbitrate the dispute. Under California Code of Civil Procedure section 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 and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate th...

Excerpt: ...cordingly, the words “Exemplary Damages” shall be stricken from the First Amended Complaint at paragraph 10(f). The check mark at box (2) paragraph 14(a) of the First Amended Complaint shall be stricken. Finally, page 9 of the First Amended Complaint (Form PLD‐PI‐001(6)) shall be stricken. Explanation: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be ...

Excerpt: ..., § 704.750.) Explanation: The court has already granted an order requiring defendants to pay plaintiff $10,711.50 for the receiver's work in carrying out the court's May 10, 2019 order, and ordering defendants to pay $33,065.97 for reasonable attorney's fees and costs incurred in the action. (See court's June 5, 2020 order.) The court also ordered plaintiff to record a lien against the subject property under Health and Safety Code section 17980...

Excerpt: ...hoe Regional Planning Agency v. King (1991) 233 Cal.App.3d 1365, 1375, fn 1.) Plaintiffs' Motion for Summary Judgment/Adjudication A plaintiff's motion for summary judgment asks the court to determine that there is no defense to the entire action. (Code Civ. Proc., § 437c, subd. (a).) In contrast, a motion for summary adjudication deals only with one cause of action within a complaint and is not granted unless it entirely disposes of the cause o...

Excerpt: ...kar shall provide further answers as to all questions in the plaintiff's separate statement of disputed responses, except for questions 3, 5, 14, and 23 (Chandrasekar depo., pp. 28:8‐20; 29:5‐ 9; 71:22 ‐ 72:8; 169:19 ‐ 170:2), which seek improper expert testimony from this percipient witness. To grant plaintiff's motion to compel Dr. Pietz to provide further answers to all of the disputed deposition questions. To grant plaintiff's motion ...

Excerpt: ...3.010 defines “misuses of the discovery process” as including, “failing to respond or submit to an authorized method of discovery” and “disobeying a court order to provide discovery.” (Code Civ. Proc., § 2030.010, subds. (d) & (g).) Section 2023.030 states, in relevant part: To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected p...

Excerpt: ...ed complaint adding a new party defendant. (Code Civ. Proc., §473, subd. (a)(1).) Plaintiff shall file and serve the first amended complaint within 5 days of the clerk's service of this order. All new allegations shall be in boldface type. To grant Cross‐complainant's motion for leave to add a new party crossdefendant and file a first amended cross‐complaint. (Code Civ. Proc., §473, subd. (a)(1).) Cross‐complainant shall file and serve th...

Excerpt: ...� 437c.) To grant Bank of Stockton's motion for summary adjudication of its sole cause of action for declaratory relief. (Ibid.) Explanation: Plaintiffs' Motion: Plaintiffs John and Janie Garcia seek adjudication of their breach of contract and declaratory relief causes of action. They contend that defendant Bank of Stockton (the Bank) breached the defense and indemnity clause in a settlement agreement when it refused to provide a full defense an...

Excerpt: ...nts shall submit a proposed order dismissing the Complaint against them within ten days of the date of service of this Order. Explanation: First, although plaintiff Liberi has now dismissed all of her claims without prejudice, the court still intends to rule on the merits of the demurrer because the matter is not entirely moot. Plaintiff Ostella has not dismissed any of her claims, so the matter remains at issue with regard to her claims. Also, w...

Excerpt: ...in 10 days of the date of service of this order. Explanation: Nationwide Agribusiness Insurance Company moves to intervene under Code of Civil Procedure section 387, subdivision (d)(1), which states, (d)(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: … (B) The person seeking intervention claims an interest relating to the property or tra...

Excerpt: ...y is unable to pay its share, the moving party can elect either to pay that portion of the arbitration cost or to waive its right to arbitrate that party's claim. (Roldan v. Callahan & Blaine (Roldan) (2013) 219 Cal.App.4th 87, 96.) When a party arbitrates in good faith but the cost of the arbitration becomes too much for the party, the party may petition the court for relief. If the court “concludes the party's financial status is not a result...

Excerpt: ...bd. (c).) Sanctions are due and payable to defendants' counsel within 30 days of service of this court's order. Explanation: Plaintiff does not dispute that her responses to the Requests for Admissions propounded by defendants were not timely. Plaintiff contends the response deadline was 9/9/20, and the responses were mail served on 9/10/20. Even if plaintiff is correct about the response deadline, the responses are untimely. As the responses wer...

Excerpt: ... seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” ...

Excerpt: ...tion: “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.4th 123, 127; Code Civ. Proc., § 2020.010, subd. (b).) “Any person may serve the subpoena by personal delivery of a copy of it as follows: [¶] . . . [¶] (2) If the deponent is an organization, to any officer, director, custodian of records, or to any agent or employe...

Excerpt: ...intiff Ybarra (6) By defendant to compel independent medical examination of plaintiff Ybarra (7) By defendant to compel plaintiff Ybarra's responses to form interrogatories (set one) (8) By defendant to deem admitted requests for admission (set one) served on plaintiff Ybarra (9) By defendant to compel plaintiff Ybarra's responses to special interrogatories (set one (10) By defendant to compel plaintiff Ybarra's responses to request for productio...

Excerpt: ...h the court's summary judgment order. Explanation: The only issue raised by this motion is whether or not plaintiff filed a written claim under the Government Claims Act (“Act”) prior to commencing this lawsuit, as required for a suit for money or damages against a public entity such as defendant.1 (Gov. Code, §§ 912.4, 945.4; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) The District contends that plaintiff did not do so,...

Excerpt: ...outside of court. (Code Civ. Proc., §§ 2030.090, subd. (a), 2031.060, subd. (a), 2033.080, subd. (a).) The burden is on the party seeking the protective order to show “good cause” for whatever order is sought. (Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal.4th 245, 255; Stadish v. Sup.Ct. (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130; Code Civ. Proc., § 2033.080, subd. (b).) In addition, Fresno Superior Court Local Rule 2.1....

Excerpt: ...breach of the implied warranty of habitability, negligence, intentional infliction of emotional distress, and nuisance. On March 16, 2020, defendant filed a demurrer and motion to strike. The general demurrer was limited to the fourth cause of action for intentional infliction of emotional distress. The court sustained the demurrer and granted the motion to strike with leave to amend. On September 17, 2020, plaintiff filed her Sixth Amended Compl...

Excerpt: ... further responses to document requests, set one, numbers 5, 37‐39, 41, 43, and 45‐63. To deny the motion to compel further responses to request numbers 28 and 29. (Code Civ. Proc. § 2031.310.) Defendant shall serve verified supplemental responses without objections within 20 days of the date of service of this order. Explanation: Meet and Confer: First, to the extent that defendant argues that the plaintiff's counsel did not meet and confer...

Excerpt: ...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 framed by the pleadings; determining whether the moving party has established facts negating the opposing party's cl...

Excerpt: ...ion whether proposed classes are sufficiently cohesive to warrant adjudication. The focus of the Rule 23(a) inquiry remains on inequity and potential inequity at the precertification stage. So when (as here) the district court certifies the class at the same time it approves a settlement, the requirements of Rule 23(a) demand undiluted, even heightened, attention. Amchem, 521 U.S. at 620." (In re Payment Card Interchange Fee and Merchant Discount...

Excerpt: ...All new allegations are to be set in boldface type. To grant the motion to strike the prayer for punitive damages without prejudice to plaintiff's ability to file a motion in compliance with Code of Civil Procedure section 425.13. The motion is moot as to the seventh cause of action in light of the ruling on the demurrer. Explanation: Demurrer Special demurrer Defendant demurs to each of the challenged causes of action on the ground that several ...

Excerpt: ... complainants' claims. Explanation: When a motion to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court must determine: (1) whether the agreement exists and, (2) if any defense to its enforcement is raised, whether it is enforceable. The party seeking to compel arbitration bears the burden of proving the existence of an arbitration agreement by a preponderance of the ...

Excerpt: ...t (“TAC”) arguing that (1) generally, a materials supplier cannot sue a property owner; and (2) Alcal's new equitable causes of action are not adequately pled. Because it is axiomatic that something “generally” true is not “always” true and the new causes of action are adequately pled, the court will overrule the demurrer. 1. Argument that, generally, a materials supplier cannot sue a property owner Modern argues that, generally, subc...

Excerpt: ...nation: Under Code of Civil Procedure section 394, “Whenever an action or proceeding is brought against a county, city and county, city, or local agency, in any county, or city and county, other than the defendant, if the defendant is a county, or city and county, or, if the defendant is a city, or local agency, other than that in which the defendant is situated, the action or proceeding must be, on motion of that defendant, transferred for tri...

Excerpt: ...ith the court's summary judgment order. Explanation: Initially the court notes that the supplemental opposition papers filed by plaintiff on January 25, 2021 are untimely and will not be considered. (See Code Civ. Proc., § 437c, subd. (b)(2).) If plaintiff needed this evidence for the opposition, she should have requested a continuance of the motion pursuant to subdivision (h). Objections In her responsive separate statement plaintiff apparently...

Excerpt: ...ion and uncertainty, without leave to amend. (Code Civ. Proc. § 430.10, subd. (e), (f).) Defendant shall submit a proposed order dismissing the action as to it within 10 days of the date of service of this order. Explanation: First, the entire complaint is vague, ambiguous and confusing, and thus the court intends to sustain the demurrer for uncertainty. (Code Civ. Proc. § 430.10, subd. (f).) “As used in this subdivision, ‘uncertain' includ...

Excerpt: ...iation, and failure to investigate and prevent or remedy discrimination and retaliation. (Code Civ. Proc., § 430.10(e).) Plaintiff is granted 3 0 days, commencing from service of the minute order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: In testing a pleading against a demurrer, the facts alleged are deemed to be true, as it is “not the o...

Excerpt: ...ing resolution of the arbitration. (Code Civ. Proc., § 1281.4.) Explanation: Under the Federal Arbitration Act (“FAA”), “[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, . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist ...

Excerpt: ...it after expiration of the time to amend. Explanation: Demurrer 1. First Cause of Action – Breach of Fiduciary Duty “The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty, (2) breach of the fiduciary duty, and 3) damage proximately caused by the breach.” (Tribeca Companies, LLC v. First American Title ins. Co. (2015) 239 Cal.App.4th 1088, 1114.) Here, it is the first element that is not suffic...

Excerpt: ...menez, M.D. (“Dr. Jimenez”) demurs to the ninth cause of action for defamation as stated in the First Amended Complaint filed by plaintiffs Kelli Askew and Sean Askew. This cause of action alleges that while Ms. Askew was at the emergency room at Clovis Community Medical Center (CCMC) on February 24, 2019, with complaints of acute abdominal and severe rectal pain, she was subjected to sexual abuse and battery by co‐defendant David Lawrence ...

Excerpt: ...Shackelford, Kristi Shafer individually and as the successor‐in‐interest to and on behalf of the Estate of Justin Vanmeter, and Sherry Guadarrama individually and as the successor‐in‐interest to and on behalf of the Estate of Serena Guadarrama. (Code Civ. Proc., § 436.) The grant of the motion to strike is without leave to amend. To sustain the demurrers to the first and second causes of action as to Veronica Lanuza and Natalie Crosbie, ...

Excerpt: ...uses of action stated against him, namely the first (sexual battery, Civ. Code, § 1708.5), second (common law battery), fifth (intentional infliction of emotional distress), sixth (negligent infliction of emotional distress), and seventh (dependent adult abuse) by plaintiffs Kelli Askew and Sean Askew (“plaintiffs”). Sexual Battery, Civil Code Section 1708.5 (First Cause of Action) Dr. Collins argues that the first cause of action of the Fir...

Excerpt: ...436 to strike specific references to an alleged assault which occurred on December 2, 2016 in the second and third causes of action, as barred by the statute of limitations. Plaintiff's original complaint alleged an assault occurring on December 10, 2016. Plaintiff's First Amended Complaint changed that date to December 2, 2016. Plaintiff claims that her amendment the complaint relates back to the original filing and is therefore timely. Traditio...

Excerpt: ...boldface type. Explanation: Defendant North Cal Cleaning Company (NCCC) demurs to the Complaint on the grounds that the sole cause of action against NCCC for breach of an implied contract fails to state facts sufficient to constitute a cause of action against NCCC because it is barred by the exclusive remedy of workers' compensation and that the Workers' Compensation Appeals Board has exclusive jurisdiction over the matter. (Code Civ. Proc., §43...

Excerpt: ...ion. (Code Civ. Proc. § 430.10, subd. (e).) To deny the motion to strike and motion to post a bond, as moot in light of the ruling on the demurrer. Defendants shall submit a proposed order dismissing plaintiffs' claims against them within 10 days of the date of service of this order. Explanation: Demurrer: While the Complaint is filled with many irrelevant and confusing allegations and facts, the gravamen of the action against the Gittler defend...

Excerpt: ...The court notes that the tenth cause of action contains a typo in the referenced code section, the correct section is Government Code section 12955, subdivision (f). Demurring defendant shall file and serve their answer to the second amended complaint within thirty (30) days from the date of this order. Explanation: A general demurrer admits “‘all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.'...

Excerpt: ...Procedure section 177.5 for failure to obey this Court's August 6, 2020, September 16, 2020, and November 18, 2020 orders. Evan Selik and Cassandra Cita, or other representative from Simpluris, Inc., are required to appear personally at the order to show cause hearing. The clerk shall serve a copy of this ruling on Simpluris, Inc., Attention: Cassandra Cita, 3194 Airport Loop Drive, Suite C, Costa Mesa, California 93626. Explanation: Judgment was...

Excerpt: ...he date of service of this order. Explanation: First, defendant Saint Agnes moves for summary adjudication as to the fourth cause of action for sexual harassment, which is based on a theory that Saint Agnes is vicariously liable for the alleged sexual battery committed by its employee, Victor Mendoza, during the course and scope of his employment. Under the holding of the California Supreme Court in Lisa M. v. Henry Mayo Newhall Memorial Hospital...

Excerpt: ...oined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or o...

Excerpt: ... Civ. Proc. §§ 1281.2; 1281.4; 9 U.S.C. § 1, et seq.) Explanation: Defendant Western Riverside Council of Governments (WRCOG) moves to compel arbitration of the dispute pursuant to the Federal Arbitration Act (9 U.S.C. section 1, et seq.), or alternatively, under the California Arbitration Act (Code of Civil Procedure section 1281.2, et seq.). Under the Federal Arbitration Act, A written provision in … a contract evidencing a transaction inv...

Excerpt: ...ied in their revised privilege log served on April 6, 2020, except those documents identified on pages 5, 14, 27, 34 and 74 of said log as being unrelated to this litigation, and those documents already produced with the privilege log on April 6, 2020. The documents shall be produced within 30 days of service of the order by the clerk. (Code Civ. Proc., § Code Civ. Proc. § 2031.310, subd. (a).) To deny all parties' requests for sanctions. (Code...

Excerpt: ...vice of this minute order. 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, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) First Cause of...

Excerpt: ...from the clerk's service of the minute order. New allegations in the amended complaint are to be set in boldface type. Explanation: On a demurrer, the facts alleged in the pleading are deemed to be true, as it is “not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. [Citation....

Excerpt: ...ficers that adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits complying with subdivisions (c) and (d) is immune from liability for civil damages for personal injury to or death of any person or damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he or she is being...

Excerpt: ...Ibid.) Explanation: Defendant City of Huron has demurred to the first, second, and fourth causes of action for unjust enrichment, economic duress, and conversion on the ground that they fail to state causes of action, as they attempt to state common law tort causes of action against a government entity. As defendant correctly notes, Government Code section 815 bars common law tort claims brought against public entities like the City. “Except as...

Excerpt: ...tion to strike the prayer for punitive damages, as moot in light of the ruling on the demurrer. (Code Civ. Proc. §§ 435, 436.) Defendants shall submit a proposed judgment consistent with this ruling within 20 days of the date of service of this order. Explanation: Demurrer: Defendants have demurred to plaintiff's entire first amended complaint on the ground that it fails to state any valid causes of action against them under various theories. W...

Excerpt: ... is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). The evidence on a motion for class certification for settlement must meet the same standards as if there were not settlement, except that there is no need to show the case can be managed for trial. Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620. California law requires admissible evidence to permit class certification. In re Tobacco II Cases (2009) 46 Cal. 4t...

Excerpt: ...ration agreement and that the dispute is covered 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.) ...

Excerpt: ...ceed 10 pages in the length, filed by Friday, January 29, 2021. The motions are continued to Friday, February 28, 2021, at 1:30 p.m., in Department 503, as is the writ of mandate briefing schedule hearing. Explanation: Code of Civil Procedure, section 1094.5, subdivision (e), provides as follows: Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly...

Excerpt: ...eaning of the contractual language and the circumstances under which the agreement was made (Civ.Code, sections 1636, 1644, 1647).” (Rice v. Downs (2016) 248 Cal.App.4th 175, 186.) The evidence shows that an entity named Sebastian Enterprises, Inc. agreed with plaintiff to arbitrate any disputes between them. That entity is not a defendant, and no dispute between plaintiff and it is shown. The evidence shows that plaintiff was employed and paid...

Excerpt: ...ainant Pollen Collection & Sales, Inc.'s (“PCS”) motion for summary judgment of plaintiff/cross‐defendant Miguel Duarte's (“Duarte”) complaint, as well as PCS's motion for summary judgment on its cross‐ complaint against Duarte. (Code Civ. Proc., § 437c.) PCS shall submit a proposed judgment consistent with this order within 10 days of service of the minute order. Explanation: PCS's Motion for Summary Judgment/Adjudication of Duarte'...

Excerpt: ...deemed to be true, as it is “not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim. (Perkins v. Superi...

Excerpt: ...monetary sanctions. To deny plaintiff's renewed motion for right to attach order. (Code Civ. Proc. § 1008, subd. (b).) Explanation: Motion to Compel Deposition of PMQ: “Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of t...

Excerpt: ...wing the nonexistence of a triable issue of material fact. (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1165; Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714.) Plaintiff filed a Judicial Council Form Complaint on form PLD‐PI‐100 and used attachment PLD‐PI‐100(4) to allege a single “cause of action” for premises liability, in three “counts,” each stating a different legal theory: negligence, willful failure to warn [Civil ...

Excerpt: .... RRNS Enterprises (1992) 4 Cal.App.4th 238, 241.) “Allowable” costs awarded to a prevailing party must be (1) incurred by that party; (2) reasonably necessary to the conduct of the litigation; and (3) reasonable in amount. (Code Civ. Proc. §1033.5, subd. (c)(1)‐(3); El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 616.) Although the prevailing party is typically entitled to reimbursement of costs, in ...

Excerpt: ... further responses. Plaintiff shall provide further responses to defendants' Requests for Admissions, Set No. One, Nos. 5, 10, 11, 16, 21, 22, 27, 32 and 33, and to Form Interrogatory, Set No. 1, Interrogatory No. 326.1, related to the Requests for Admission. These further responses shall be served within 20 calendar days of this order, with the time to run from the date of service of this minute order by the clerk, To grant monetary sanctions ag...

Excerpt: ...sotti, A Professional Law Corporation within 30 days of the clerk's service of this minute order. Explanation: In a FEHA action “a prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless special circumstances would render such an award unjust.” (Gov. Code, § 12965, subd. (b); Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115 [in].) “In enacting the FEHA, the Legislature sought to saf...

Excerpt: ...e in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can onl...

Excerpt: ...le issue of material fact exist are to be resolved in favor of the party opposing summary judgment/adjudication. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562; see also See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900 [“Summary adjudication is a drastic remedy and any doubts about the propriety of summary adjudication must be resolved in favor of the party opposing the motion.”].) Accordingly, “[t]h...