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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...(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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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...