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: ...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: ...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: ...'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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ... 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: ...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: ...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: ...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: ... § 430.10, subds. (e) and (f).) Plaintiff is granted 20 days' leave to file a First 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: Untimely Opposition: “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days […] before the hearing.�...

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: ... 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: ...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 ...

Excerpt: ...mpetent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies...

Excerpt: ... 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 Lithia Nissan or its assigns, which arise out of or relate to the credit application, purchase or con...

Excerpt: ...Set One Tentative Ruling: To grant defendant Central California Ear Nose & Throat Medical Group's (“CCENT”) motion for relief from waiver of objections. (Code Civ. Proc., §§ 2030.290, subd. (a)(1); 2031.300, subd. (a)(1).) To take plaintiff's motions to compel off calendar due to failure to comply with Local Rule 2.1.17 or the meet and confer requirements of Code of Civil Procedure sections 2016.040, 2030.300, subdivision (b)(1), and 2031.3...

Excerpt: ...st plaintiff and his counsel in the amount of $1,035. (Code Civ. Proc., § 1987.2.) Plaintiff shall pay sanctions to defendant within 30 days of the date of service of this order. Explanation: Under Code of Civil Procedure section 1987.1, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the ta...

Excerpt: ...he parties as indicated below. (Code Civ. Proc., § 2025.450, subd. (c)(1).) To impose $2,865 in monetary sanctions, to be paid within 30 days to counsel for defendant. Explanation: The motion is brought pursuant to Code of Civil Procedure section 2025.450. subdivision (a), which provides: If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an o...

Excerpt: ... Young moves for summary judgment of the entire Complaint against her on the ground that she did not grant permission to the driver, defendant Ramzy Ibrahim, to drive her vehicle on the date of 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 u...

Excerpt: ...ion (a), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may ...

Excerpt: ...; and (3) battery. Defendants Kevin F. Ciresi, M.D., and Kevin F. Ciresi, M.D., Inc. (together “Defendants”) bring a general demurrer as to the third cause of action, for battery, for failure to state facts sufficient to constitute an action, and a specially demurrer to the third cause of action for uncertainty. Applicable Standards On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. A demurrer is si...

Excerpt: ...nding between the same parties on the same causes of action. (Code Civ. Proc. § 430.10, subd. (c).) It claims that plaintiffs in the present action are members of the putative class of an earlier filed action in Fresno Superior Court for the same wage and hour claims against the same defendant. (See Defendant's Request for Judicial Notice, Exhs. 1 and 2, Complaint and First Amended Complaint filed in Gonzalez v. Charlie's Enterprises, Inc., et a...

Excerpt: ...division (a), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as...

Excerpt: ... plaintiff's double minimum wage claim. Plaintiff is granted 20 days' leave to file the first amended complaint, if necessary. If plaintiff cannot amend the complaint accordingly, plaintiff shall file a declaration indicating as such. The time to file the first amended complaint will run from service by the clerk of the minute order. All new allegations in the first amended complaint are to be set in boldface type. DMM Packaging, Inc.'s (“DMM�...

Excerpt: ... 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 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 se...

Excerpt: ...ifornia and federal law “favor[] the enforcement of valid arbitration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) Nevertheless, arbitration is a “ ‘matter of consent, not coercion,'” and “ ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' ” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4...

Excerpt: ... M.D., moves for summary judgment based on the declarations of a medical expert, Lundy Campbell, M.D., who has opined that Dr. Van Putten's care and treatment of plaintiff did not fall below the standard of care, and that nothing he did or failed to do caused plaintiff any injury. “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care o...

Excerpt: ...n 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 date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disabili...

Excerpt: ... (Code Civ. Proc. § 405.34.) Explanation: Under Code of Civil Procedure section 405.30, any party, or any nonparty with an interest in real property affected by a lis pendens, can move to expunge the lis pendens at any time after the notice of pendency of action has been recorded. (Code Civ. Proc. § 405.30.) “Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form o...

Excerpt: ...ne whether the proposed class meets the requirements for certification before it can grant preliminary approval of the proposed settlement. An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Acti...

Excerpt: ...ary adjudication of each separate cause of action. (Code Civ. Proc. § 437c.) Explanation: First, defendant Saint Agnes has moved for summary adjudication of the medical negligence cause of action on the ground that plaintiffs cannot prevail on their claim for malpractice against the hospital because the treating doctor, Dr. Iberdemaj, is not an employee or agent of the hospital and therefore the hospital cannot be held vicariously liable for his...

Excerpt: ...est for Production of Documents, Set Two, 15 days late. As a result, all objections were waived. (Code Civ. Proc., § 2031.300, subd. (a).) Relief from waiver of objections may be granted where both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (2) The party's failure to serve a timely response was th...

Excerpt: ...clerk to set the final approval hearing. Explanation: 1. Class Certification A precertification settlement may stipulate that a defined class be conditionally 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...

Excerpt: ...ourth Causes of Action for Racial and Age Harassment: Defendants demur to the third and fourth causes of action on the grounds that the Second Amended Complaint (“SAC”) fails to allege sufficient facts to state a cause of action for harassment. Plaintiff's third and fourth causes of action alleges harassment in violation of the California Fair Employment and Housing Act (“FEHA”), Government Code, section 12940, subdivision (j), by defenda...

Excerpt: ...es to special interrogatories, set one, numbers 1, 2 and 3, and requests for production of documents, numbers 3, 5, 7 and 9. (Code Civ. Proc. §§ 2030.300; 2031.310.) Defendant shall serve responses to the interrogatories 2 and 3 and requests for production 3, 5, 7, and 9 without objections within 21 days of the date of service of this order. The parties shall meet and confer regarding a Belaire‐West notice to be sent to the putative class mem...