Excerpt: ...es this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (CCP § 437(c), subdivision(p)(2).) In a summary judgment motion, the pleadings determine the scope of relevant issues. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) A defendant need only “negate plaintiff's theories of liability a...

Excerpt: ...s shall be filed in connection with the summary judgment motion. Defendants' motion for summary judgment will be heard on August 15, 2019, at 3:30 p.m. in Dept. 403. Explanation: Due to the fact that plaintiff's counsel failed to file plaintiff's opposition brief and supporting declarations, defendants' motion for summary judgment was granted without considering the opposition. Plaintiff's counsel, Steven Glickman, explains that he mistakenly bel...

Excerpt: ...h the applicable provisions of the Code of Civil Procedure. Should Plaintiff file a motion to continue trial, the costs of such a filing shall be reimbursed by Defendants. Explanation: Defendants have filed a motion for leave to file a cross‐complaint against codefendant Beyond Tech Solutions, Inc. (“Beyond Tech”). Defendants assert that they believe Beyond Tech to be responsible for some portion of the accident at issue in this case. They ...

Excerpt: ...Explanation: Demurrer: A demurrer under section 430.10, subdivision (c), is essentially a plea in abatement. “A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action. In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only whe...

Excerpt: ...mpliance is not required. Any First Amended Complaint must be filed within ten (10) court days of this order and any new or changed allegations are to be set forth in boldface typeset. To deny the request for attorney's fees raised by the Defendants in their reply brief. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all i...

Excerpt: ...tiff has now submitted competent evidence proving up his actual damages of $70,000, which is substantially less than the amount he sought in prior applications, he has not shown that he is entitled to prejudgment interest at a rate of 10% per annum from the date of formation of the contract. Plaintiff's evidence shows that he invested $70,000 into the partnership, with $55,000 paid as an initial capital investment when the partnership agreement w...

Excerpt: ...equires 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. [Citations.] ‘ “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 only be proved by their...

Excerpt: ...Explanation: On May 1, 2019, Defendants SPOC and Dr. Taylor filed a motion for summary judgment. It was served via hand delivery on the other parties. A statement of nonopposition was filed by the Plaintiff on July 3, 2019. It has been held that the standard of care against which the acts of a physician and other health care providers are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpr...

Excerpt: ...murrer are defective, as they fail to give adequate notice of the specific ground relied upon in the demurrer or the causes of action being challenged. Under California Rules of Court, Rule 3.1320, subdivision (a), “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross‐complaint, or answer, or to specified causes of action or defenses.” Statutory grounds for demurrer include...

Excerpt: ... (c), and 2023.030, subdivision(d)(3) for Plaintiff's failure to comply with a previous order to produce responses, issued on April 16, 2019. Section 2023.030 provides: 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 party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging...

Excerpt: ...made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … resulting … default entered by the clerk against his or her client, unless the court finds that the default … was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (CCP §473(b).) The court is a...

Excerpt: ...ritten 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: …. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same tran...

Excerpt: ...court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. Such order shall not be considered to be a determination on the merits o...

Excerpt: ...ant. To tax costs in the amount of $10,240. To award Pacific Plastics costs in the amount of $5,316.78. Explanation: 1. Pacific Plastics' Motion to Strike Pacific Plastics argues that Western Ag is not entitled to costs. First, it argues that costs are inappropriate because Western Ag is not the “prevailing party.” However, Western Ag was a cross‐defendant in whose favor a dismissal of the cross‐complaint was entered, and as such, it is a...

Excerpt: ...ement entered into between it and Plaintiffs. According to the applicable statute, in such circumstances, the moving party must serve the notice, application, and proposed order by certified mail, return receipt requested, or by personal service. (Code Civ. Pro., §877.6, subd.(a)(2).) The proof of service must then be filed with the Court. (Ibid.) According to the proof of service attached to the Notice of Motion, the papers were served via regu...

Excerpt: ...n, as herein noted: ∙ Plaintiff has not signed box 6, the declaration of mailing, from mandatory form CIV‐100. ∙ In the Proposed Judgment, the “Judgment in the Prior Action” is listed as for $74,387.88 in paragraph 1, but only $4,905.66 in paragraph 5. Further, the amount of the judgment listed on the CIV‐100 form does not appear anywhere in the Proposed Judgment. ∙ The interest recorded in the CIV‐100 form ($10,414.18) appears no...

Excerpt: ...gs,” and decide the Petition on the “pleadings alone and without further unnecessary litigation.” (Petitioners' Memorandum of Points and Authorities at 3:9‐10, 4:22‐23, 9:16‐17.) California is a code pleading state. The Code of Civil Procedure provides that pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court. (Code Civ. Proc., § 420.) The Code provides that the pl...

Excerpt: ...eview and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” The agency in question is the Labor Workforce Development Agency (“LWDA”). 2. Complex Case The law and motion in this matter is expected to be formidable, as in most class actions, even if it is resolved by settlement. If the matter goes to trial, ther...

Excerpt: ...n. On February 16, 2017, Bravo and Defendant Ghasan Ali Ahmed entered into a contract whereby Bravo was to construct a home on property located at 6640 W. Yale Avenue, Fresno, CA. See Exhibit A attached to the verified original complaint. The price was $270,000. Ahmed was to pay 10% down‐‐$27,000. However, it is alleged that he insisted on paying $30,000. At some point, it is alleged that Ghasan agreed to pay the subcontractors and materials ...

Excerpt: ...ation: 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, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for ...

Excerpt: ...ining that its settlement with plaintiffs is in good faith. (Code Civ. Proc. § 877.6.) Explanation: Under Code of Civil Procedure section 877.6, “[a]ny 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 settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐...

Excerpt: ... the corporate designee need acquire all information available to the company, through company sources, not outside counsel, with a further four hours for deposition. To order that deposition be taken in Fresno or that defendant pay the fees of plaintiff's attorney for travel time to attend elsewhere, in addition to said counsel's travel costs, said deposition to be completed by August 1, 2019. To overrule all objections to the PMK Topics 1 throu...

Excerpt: ...vice of process or in any other manner in compliance with CCP § 416.10. Explanation: On February 26, 2018, Plaintiffs, in pro per, filed a complaint alleging that Defendant West Coast Towing unlawfully towed their vehicle at the improper request of Defendant Avery Apartment. They further assert that property was missing from the vehicle upon its retrieval. On March 23, 2018, an Answer was filed by Avery Apartment. On March 28, 2018 and on August...

Excerpt: ...the motion to set aside default of defendant Juan Miramontes, with said defendant granted 20 days' leave to file his responsive pleading to the complaint. The time in which said pleading can be filed will run from service by the clerk of the minute order. Explanation: Motion to Set Aside Default The motion was timely filed. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 901 [interpreting the six‐month time limit in section 473 to equal 182 days].)...

Excerpt: ...und that plaintiffs' amendment to add him in place of a Doe defendant is ineffective and thus plaintiffs' claims against him are barred by the twoyear statute of limitations. (Code Civ. Proc. § 335.1.) He contends that plaintiffs have known his identity and role in the accident since the filing of the original complaint, and therefore their amendment to add him as a defendant does not “relate back” to the date of filing of the original compl...

Excerpt: ...pects. In sum, the costs are reduced from $30,065.77 to $28,650.06, a total reduction of $1,414.94. Explanation: A motion to strike or tax costs must be directed to particular items in the Memorandum of Costs and state why each is objectionable. Additionally, the challenged items must be referred to in the same order in which they appear in the Memorandum of Costs. (Cal. R.Court 3.1700, subd.(b)(2).) Where the reasonableness of a particular item ...

Excerpt: ...eading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to each cause of action in Plaintiff's complaint on the grounds that: ∙ The address a...

Excerpt: ...ter the accountant's investigation was complete. However, in the complaint, plaintiffs alleged that they are seeking “no less than $500,000”, which is considerably less than what plaintiffs seek now. Thus, the requested default judgment appears to violate the rule against seeking damages in a default judgment that exceed the amount pled in the complaint. “An entry of a default judgment which exceeds the relief requested is an act beyond the...

Excerpt: ...al.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Cause of Action Under Civil Code §3342. Civil Code §3342 provides that the “owner of any dog is liable for the damages suffered by the dog while in a public place.” Defendant argues that the First Amended Compl...

Excerpt: ...9;irrelevant, false or improper' matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) With respect to punitive damage allegations, mere legal conclusions of oppre...

Excerpt: ...ure section 685.040 provides: The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the ju...

Excerpt: ...t. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable...

Excerpt: ...ition and complaint may be amended will run from service of the order by the clerk. Explanation: In the fifth cause of action petitioner seeks a writ of mandate to compel the County of Fresno to comply with the Government Code § 8899.50(b) requirement to administer its programs and activities relating to housing and community development in a manner to affirmatively further fair housing and to take no action that is materially inconsistent with ...

Excerpt: ...n, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” [Citation.]'” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) “Whe...

Excerpt: ...urgery Center's demurrer to the complaint. (Code Civ. Proc. § 430.10, subd. (e).) To order North Point to file its answer to the complaint within 10 days of the date of service of this order. Explanation: Trial Preference Motion: Under Code of Civil Procedure section 36, subdivision (a), A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the follow...

Excerpt: ...osition to this motion appears in the Court's files. Code of Civil Procedure section 387 allows a non‐party, “upon timely application” to intervene in an action where “(A) a provision of law confers an unconditional right to intervene” or “(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may...

Excerpt: ...e Company, the workers compensation carrier for Mendez's employer served a joint statutory offer to compromise. They sought $990,000 in full satisfaction of Mendez's claims and that of the insurer. The offer stated that the funds “shall be subsequently divided by Plaintiffs upon receipt. Defendants argue that the offer was not made in “good faith” because the workers compensation carrier was seeking only $65,489.37 for reimbursement of the ...

Excerpt: ...der, a proposed judgment consistent with the court's summary judgment order. Explanation: Defendants Saint Agnes and Dr. Simons have both moved for summary judgment as to the entire complaint on the grounds that plaintiffs cannot prevail on their negligence and loss of consortium claims because, according to defendant's expert witness, defendants did not breach the applicable standard of care when providing care and treatment for plaintiff, a...

Excerpt: ...n within 10 days of service of this minute order by the clerk. (Code Civ. Proc. §387(d).) Explanation: A suspended corporation may not sue or defend itself against a lawsuit. (Rev. & Tax Code §23301.) “The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: (A) A provision of law confers an unconditional right to intervene. (B) The person seeking ...

Excerpt: ...time of the assignment and therefore had no right to recover. The case cited for that proposition is Doser v. Middlesex Mutual Ins. Co. (1980) 101 Cal. App. 3d 883, 890. In Doser, assignees of an estate's cause of action for bad faith of an insurance contract. The alleged bad faith arose out of the insurer's alleged failure to settle a wrongful death claim brought by the decedent's heirs. The estate administrator executed an assignment of the cla...

Excerpt: ...ays of the date of service of this order. All new allegations shall be in boldface. Explanation: Under Code of Civil Procedure section 430.10, “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: .. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is un...

Excerpt: ...d with a public entity has been rejected. If the public entity gives written notice of rejection of the claim in accordance with section 913, the statute of limitations is six months from the day such notice is personally delivered or deposited in the mail. If such notice is not given in compliance with section 913, the statute of limitations is two years from accrual of the cause of action.” (Dowell v. County of Contra Costa (1985) 173 Cal.App...

Excerpt: ...rt's summary judgment order. Plaintiff's objections are overruled. The court declines to rule on all other objections as none are material to the disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) Explanation: A defendant moving for summary judgment or adjudication has 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. (2001) 25 Ca...

Excerpt: ...may be imposed: 1) an enactment must impose a mandatory duty, not a discretionary or permissive one; 2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting §815.6 as a basis for liability; and 3) breach of the mandatory duty must be a proximate cause of the injury suffered. (State of California v. Superior Court (1984) 150 Cal.App.3d 848, 854; County of Los Angeles v. Superior Court (2002) 102 ...

Excerpt: ...at the action is moot. Resolution of this motion requires determining whether this is a reverse validation action and, if so, can the court still afford the parties effective relief despite the project being long completed. An action under Code of Civil Procedure section 860, et seq., to either validate or challenge an ordinance or resolution, is recognized as a proceeding “in rem.” (Community Youth Athletic Center v. City of Nat. City (2009)...

Excerpt: ...acts. (Code Civ. Proc. § 464; Flood v. Simpson (1975) 45 Cal.App.3d 644, 647.) Explanation: While leave to amend a pleading is generally liberally granted, here it appears that plaintiff is actually seeking to supplement his first amended complaint with new facts and new causes of action based on events that occurred after the filing of the prior complaints. Thus, plaintiff is actually seeking to file a supplemental complaint, not an amended com...

Excerpt: ...3.020.) Defendant shall pay sanctions to plaintiff within 30 days of the date of service of this order. Explanation: Defendant moves to compel plaintiff to provide further responses and documents pursuant to the document request served as part of the deposition notice to plaintiff. (Code Civ. Proc., §§ 2025.280, subd. (a); 2025.450, subd. (a).) Defendant contends that plaintiff failed to comply with the document request served with the depositi...

Excerpt: ...Jacob, LLP, within 30 days after service of this order. Explanation: “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.” (Code Civ. Proc. §2025.420(b).) Such a protective order may include directions that all or certain of the writings or tangible things designa...

Excerpt: ...r can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In her fourth amended complaint, plaintiff pleads a single cause of action for breach of contract. Among other arguments, Defendant argues that the claims are barred by the statute of limitations. In the Fourth Amended Complaint, Plaintiff all...

Excerpt: ...two years after the action is commenced if to do so appears to the court appropriate under the circumstances. (Code Civ. Proc., § 583.410, subd. (a) & Code Civ. Proc., § 583.420, subd. (a)(1).) The criteria which a court must use to determine whether to grant a motion to dismiss under Code of Civil Procedure sections 583.410, subdivision (a) and 583.420, subdivision (a)(1) are set forth in California Rules of Court, rule 3.1342, subdivision (e)...

Excerpt: ...(d) of Code of Civil Procedure section 473 permits the court to “correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” “Section 473 empowers a trial court to set aside any judgment or order that is void as a matter of law … or otherwise because the judgment or order violat...

Excerpt: ... a proposed judgment consistent with the court's summary judgment order. 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(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the initial burden of production to make a prima facie showing of the “nonexistence of any triable is...

Excerpt: ...ion subpoena duces tecum may be made by a party or the non‐party witness. (Civ. Proc. §1987.1.) A motion to quash production of documents must be accompanied by a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled. (CRC 3.1345, subpara. (a)(5).) That provision also includes the format requirements for a separate statement, which requires that ea...

Excerpt: ...burden of proof. Triable issues of material fact exists as to the type of shoe that the Plaintiff was wearing at the time of her fall and as to its cause. See infra for evidence in support of this finding. Explanation: Purpose of Summary Judgment Summary judgment law turns on issue finding rather than issue determination. (Diep v California Fair Plan Ass'n (1993) 15 Cal.App.4th 1205, 1207.) The court does not decide the merits of the issues, ...

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...

Excerpt: ...er Brittany Goto's house (“the incident”). Defendant is Goto's father, and for almost a year prior to the incident, Merlin lived at defendant's while Goto lived elsewhere. Defendant's liability depends on whether he was either an owner of Merlin, or a keeper with knowledge of Merlin's viciousness. Civil Code section 3342 provides that an "owner of any dog is liable for the damages suffered by any person who is bitten by the dog ... regard...

Excerpt: ... the normal prerequisites for a class action. (Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 625‐ 627.) However, because a trial court is considering certification in a settlement context, the court's review of certification is lessened, particularly those related to management of the class. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93.) On the other hand, other certification issues, such as those designed to protect absentees ...

Excerpt: ...12.1 The interrogatory seeks identification of witnesses or persons with knowledge of “the INCIDENT.” Plaintiff defined “INCIDENT” as follows: INCIDENT includes the circumstances and events: (1) alleged in PLAINTIFF's Complaint; (2) giving rise to this action or proceeding; and/or (3) surrounding the alleged: 1. DISCRIMINATION BASED ON DISABILITY IN VIOLATION OF GOVERNMENT CODE SECTION 12940 (a) 2. FAILURE TO PROVIDE REASONABLE ACCOMM...

Excerpt: ...was 14 months ending on March 1, 2018. On January 3, 2018, Plaintiff notified the Defendant that he was in default in the amount of $76,250. On June 1, 2018, Plaintiff served another notice of default. At that time, the Defendant owed $103,250. Defendant remained in default. On June 19, 2018, the Plaintiff filed a complaint alleging causes of action for breach of contract, “intentional tort”, and “claim and delivery.” On January 10, 2019,...

Excerpt: ...�Prime Cross‐ Complaint”) 3) Sierra Vista's Motion to Strike Portions of the Answer to the Cross‐ Complaint (the “Sierra Vista Cross‐Complaint”) Tentative Ruling: To overrule the demurrer in its entirety. To grant the motion to strike FRI's answer to the Sierra Vista Cross‐Complaint, but to grant FRI 30 days' leave to obtain representation by an attorney, to file evidence that its corporate status has been restored to “active” a...

Excerpt: ...od in which it transacted business in California without having obtained a certificate of qualification from the Secretary of State. (Corp. Code §2203(c).) Explanation: “It has been uniformly held that reasonable amendments to pleadings should, in the interest of justice, be granted, and that section 473 . . . should be liberally construed to accomplish that purpose.” (Jorgensen v. Dahlstrom (1942) 53 Cal.App.2d 322, 331, citations omitted.)...

Excerpt: ...omplaint Tentative Ruling: To deny the motion without prejudice. Explanation: Background On July 1, 2017, Plaintiff, then 10 years of age, fell into a smoldering pile of debris on the property of Defendants Stephen and Julie DeBenedetto. Plaintiff sustained severe injuries. It is alleged that Defendants Mountain Property Services, Raymond Slocum and Matthew Marvin had been hired by the couple to perform tree cutting services on the property. Thes...

Excerpt: ...e ruling. Notice runs from the date that the Minute Order is mailed plus five (5) days for service via mail. (Code Civ. Proc., § 1013.) Explanation: Labor Code section 3853 provides: If either the employee or the employer brings an action against such third person, he shall forthwith give to the other a copy of the complaint by personal service or certified mail. Proof of such service shall be filed in such action. If the action is brought by ei...

Excerpt: ...ry sanctions, monetary sanctions, and/or to re‐open discovery and continue trial, as well as the alternative motion to disqualify defense counsel. To deny defendants' request for monetary sanctions against plaintiffs and their counsel. Explanation: First of all, this is not a normal motion for terminating, issue, evidentiary or monetary sanctions based on the opposing party's abuse of the discovery process under the Discovery Act. There is no i...

Excerpt: ...onsistent with the equitable objectives of the statute.” (Tech‐Bilt, Inc. v. Woodward‐Clyde & Assocs. (1985) 38 Cal.3d 488, 499‐500) The application will be granted and the settlement between Mr. Hernandez and the Plaintiff will be determined to be in “good faith” pursuant to CCP § 877.6(a)(2). Explanation: Background On May 27, 2017, Plaintiff was driving a 2016 Polaris Crew XP Utility Task Vehicle (aka UTV). She was wearing a helme...

Excerpt: ...orandum of $30,128.75. To grant the motion to tax plaintiff David Bray's costs, in part, and tax the sum of tax $6,130.00 from plaintiff Bray's Cost Memorandum of $16,502.45. To deny the motions in all other respects. Explanation: Items of allowable costs are set forth in Code of Civil Procedure section 1033.5, subdivision (a), and disallowed costs are set forth in subdivision (b). Items not expressly mentioned in the statute “upon application ...

Excerpt: ... general demurrers to the first cause of action. To sustain the general demurrer to the second cause of action with leave to amend. To sustain the special demurrer under Code of Civil Procedure section 430.10, subdivision (h), to the third cause of action, with leave to amend. To overrule the general demurrer to the third cause of action. Explanation: First Cause of Action – Breach of Contract Statute of Limitations “ ‘When a complaint show...

Excerpt: ...section 1048(a) states: “When actions 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." Neither of these matters involves a certified class. Thus there are no class members in commo...

Excerpt: ...are liberally construed. (Huynh v. Ingersoll‐Rand (1993) 16 Cal.App.4th 825, 830.) “[A]ny doubts as to whether summary judgment is proper should be resolved against the moving party.” (Buehler, supra, 17 Cal.3d at p. 526.) “When the meaning of the language of a contract is doubtful or uncertain and parol evidence is introduced in aid of its interpretation, the question of its meaning is one of fact. […] In such circumstances it is the p...

Excerpt: ...ion: In this action, plaintiff Maddie Wade (“plaintiff”) alleges that she was discriminated against, harassed, and constructively discharged after revealing to her manager, defendant Dustin Guthrie (“Guthrie”), that she was diagnosed with gender dysphoria and would be transitioning from male to female. The complaint alleges four causes of action: (1) wrongful constructive termination against plaintiff's employer, defendant Starbucks Corpo...

Excerpt: ...n & Bellardinelli and the Law Firm of Campagne and Campagne shall pay the sum of $15,000 to Whitney, Thompson & Jeffcoach LLP within 10 days of the clerk's service of this order. To deny the motion in part, as the court will not impose evidence or issue sanctions at this time. Explanation: Code of Civil Procedure section 2031.310, subdivision (i) provides, in relevant part: “[I]f a party fails to obey an order compelling further response, the c...

Excerpt: ...ile and serve a Third Amended Complaint, addressing the issues noted by the Court below, if they can. All amended allegations are to be set forth in boldface typeset. Explanation: Defendant Dr. Kuldeep Gill has (“Defendant Dr. Gill”) filed a demurrer as to the Fifth Cause of Action for Fraud. Defendant Clovis Community Hospital (“Defendant Hospital,” or “Fresno Community”) has filed a demurrer to the First Cause of Action for Fraud, t...

Excerpt: ... nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff. (Judicial Council of Cal. Civ. Jury Instns. (Sept. 2018 rev.) CACI No. 300; see also Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) Here, plaintiffs adequately allege breach of contract. First, plaintiffs allege that on December 8, 2017, the parties entered into an oral agreement wherein defendant promised that all r...

Excerpt: ...l be filed and served within 10 days of the clerk's service of this minute order. New allegations shall be in boldface type font. Explanation: Timeliness of Demurrer and Motion to Strike Plaintiff opposes the demurrer and motion to strike on the grounds that they were untimely served. Code of Civil Procedure section 1005, subdivision (b), provides that “all moving and supporting papers shall be served and filed at least 16 court days before the...

Excerpt: ...t need rule only on material objections.) To overrule all of defendants' evidentiary objections. Explanation: The court disregards defendants' “response” to plaintiff's additional facts, filed on May 10, 2019, as the summary judgment statute does not provide for this response. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 248.) Evidentiary Objections  Plaintiff's Objections Plaintiff is correct that a declaration supporting a...

Excerpt: ...position to the motion appears in the Court's files.] Defaults are disfavored and any doubts existing as to setting aside a default should be resolved in favor of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 (superseded by statute on other grounds as ...

Excerpt: ...pending in the Supreme Court. Nor does it appear that there is any reason for the court to stay the action under its discretionary power. It appears that plaintiff is arguing that he cannot proceed with his case until he obtains certain documents that he sought through the subpoena duces tecum, but he fails to explain exactly which documents he needs to obtain or why he needs to stay the action until he can obtain relief from the Supreme Court. T...

Excerpt: ...posed order by certified mail, return receipt requested, or by personal service. (Civ.Proc. §877.6, subd.(a)(2).) Then the proof of service must be filed with the Court. (Id.) This motion was served by E‐ Service and not by the specific service requirements of section 877.6. Barring an express waiver of that requirement, the motion must be denied without prejudice for failure to comply with the service statute. Moreover, even on the merits, th...

Excerpt: ...cause of action as to which defendants seek summary adjudication, and therefore they are defective. (Cal. Rules of Court, Rule 3.1350.) However, while the notice of motion does not set forth each separate cause of action that defendants seek to adjudicate, it does state that defendants are seeking summary judgment as to the entire complaint and each separate cause of action. The separate statement also includes facts for each of the individual ca...

Excerpt: ...e period 6:00 a.m. to 7:00 p.m. on June 19, 2017. Explanation: Plaintiff seeks documents and information from AT&T c/o CT Corporation System concerning various cell phone records from June 19, 2017, the day of the accident which is the subject of this lawsuit, as well as from the time of a separate accident which occurred on June 1, 2016. Defendant Paulino was involved in both accidents. Plaintiff argues that these documents are relevant to show ...

Excerpt: ...endens, as the lis pendens was never served on her as a party claiming an adverse interest in the property and the second amended complaint fails to allege any real property claims. (Code Civ. Proc. §§ 405.4; 405.23; 405.30.) To grant McKissen's request for reasonable attorney's fees and costs against plaintiff, in the amount of $2,434.90. (Code Civ. Proc. § 405.38.) Plaintiff shall pay sanctions to McKissen within 30 days of the date of servi...

Excerpt: ...rvice of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: Moving defendants are entitled to summary judgment because plaintiff cannot prove any actual, pecuniary, or economic damage, and plaintiff is not entitled to punitive damages. Plaintiff's only remaining claim, the third cause of action for common law misappropriation of trade name, is one for damages. The prayer for compensatory dam...

Excerpt: ...der with language directing that the net settlement money be deposited into a blocked account for the benefit of the minor. Explanation: In general, the petitions appear to be in order. However, petitioner has requested that the court order the entire net settlement sum for Aaron to be paid directly to him rather than being deposited into a blocked account at a bank. The net settlement is only $900, and petitioner argues that this “nominal amou...

Excerpt: ...the Court would have signed one. That is the situation that arose here, with each side submitting its own proposed statement of decision, without the other party's having signed off on it. The Court signed Defendant's proposed statement of decision. Moving party fails to provide adequate authority to grant the relief requested under these circumstances. Accordingly, Plaintiff's motion to strike Defendant's statement of decision is denied. Pursuan...

Excerpt: ...suance of Writ of Mandate: Judicial review of an agency decision by administrative mandamus is available where the agency was required “by law” to conduct an evidentiary hearing. (Code Civ. Proc., § 1094.5, subd. (a).) An evidentiary hearing is required “by law” if it is required by a statute (other than the APA), a regulation, or constitutional due process. (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 279.) Respondent Bo...

Excerpt: ...ion. Explanation: To obtain summary judgment, “all a defendant needs to do is to show that the plaintiff cannot establish at least one element of the cause of action.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) If a defendant makes this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (Code Civ. Proc. § 437(...

Excerpt: ... defendant is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: A defendant moving for summary judgment or adjudication has 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. (2001) 25 Cal.4th 826, 850.) A defendant meets that burden...

Excerpt: ...f the minute order. All new allegations in the first amended complaint are to be set in boldface type. 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 ...

Excerpt: ...demurrer to the second through seventh causes of action with leave to amend. To grant the motion to strike references to punitive damages with leave to amend. A Third Amended Complaint in conformity herewith shall be filed and served within 10 days of the clerk's service of this minute order. All new allegations shall be in boldface type font. Explanation: Court's Own Motion to Strike Third Amended Complaint: Code of Civil Procedure section 436 p...

Excerpt: ... state or local building maintenance regulations and the violations are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered, the local enforcement agency may issue a notice and order requiring repair or abatement of the unlawful conditions. If the owner of the building thereafter fails to comply with the notice and order in a reasonable period of time, the enforcement agency can seek...

Excerpt: ...der dated January 23, 2019. Plaintiff failed to appear at the March 21, 2019 hearing. The Court has set a hearing on May 23, 2019 at 3:00 p.m. in Dept. 501 for the plaintiff to show cause why the case should not be dismissed. At that hearing the plaintiff can present the argument made in the declaration filed on March 29, 2019. If the Court determines there is good cause the Court will proceed with a trial setting conference. Plaintiff requests t...

Excerpt: ...on to compel as to Special Interrogatory Nos. 2 and 10, but deny as to Special Interrogatory No. 15. To find the motion moot as to Special Interrogatory Nos. 5, 6, and 8, due to defendant's supplemental responses to these interrogatories after the motion was filed. To deny the request for monetary sanctions. Explanation: Special Interrogatory No. 2 Drafting and filing articles of incorporation, and other duties of an Incorporator (e.g., selecting...

Excerpt: ... court has already ordered CMF to provide documents responsive to those requests at the pretrial discovery conference, and thus no new order is necessary. The court's prior order is still in effect, and CMF is obligated to comply with it. If CMF continues to fail to produce documents as ordered, it will be subject to additional sanctions, including potential issue, evidence or terminating sanctions. (Code Civ. Proc. § 2031.320, subd.'s (b) and (...

Excerpt: ...to the fifth sixth, eleventh, and twelfth causes of action. To overrule the demurrer to the third, seventh, eighth, ninth, and thirteenth causes of action. A Second Amended complaint shall be filed and served within 10 days of the clerk's service of this minute order. All new allegations shall be in boldface type font. Explanation: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or co...

Excerpt: ...50, subdivision (a), provides for a motion to compel a deponent's attendance and testimony where the responding party fails to appear for deposition. However, where the deponent fails to attend her deposition, a motion to compel attendance must be accompanied by a declaration stating that the attorney for the moving party has contacted the deponent to inquire about her nonappearance. (Code Civ. Proc. §2025.450(b)(2).) Implicit in this statute is...

Excerpt: ... a writ of possession shall issue if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff's claim to possession of the property. (2) The undertaking requirements of Section 515.010 are satisfied.” Section 515.010 concerns the necessity of an undertaking and states: “(a) Except as provided in subdivision (b), the court shall not issue a temporary restraining order or a writ of possession...

Excerpt: ...t seq.) To lift the stay on the action and allow the litigation to proceed in Superior Court as to the remaining causes of action. Explanation: The court intends to deny the motion to compel the plaintiff to arbitrate the remaining six causes of action in the first amended complaint. The court has already ruled a year ago on the defendant's prior motion to compel arbitration that the first six causes of action are not arbitrable, as they raise PA...

Excerpt: ...mpelling defendant to provide documents pursuant to his agreement to do so. (Code Civ. Proc. §§ 2031.310; 2031.320.) Defendant shall provide further responses without objections and responsive documents within 10 days of the date of this order. To grant sanctions against defendant (but not his attorney) in the amount of $1,060. Sanctions shall be paid within 30 days of the date of this order. Explanation: First, while defendant Schoonover has a...

Excerpt: ...c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and this must be shown via specific facts and not mere allegations. (Id.) “California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment...

Excerpt: ... request for punitive damages. Plaintiffs are granted ten days leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanation: I. Demurrer A. Intentional Infliction of Emotional Distress: “Outrageousness” “[W]hether conduct is outrageous is ‘usually a question of fact.'” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235.) And a judge may not reso...