Excerpt: ...mages. (Ibid.) Explanation: Motion for Summary Judgment The summary judgment procedure “is drastic and should be used with caution.” (Buehler v. Oregon‐Washington Plywood Corp. (1976) 17 Cal.3d 520, 526.) Accordingly, the affidavits of the moving party are strictly construed, while those of the opposing party are liberally construed. (Huynh v. Ingersoll‐Rand (1993) 16 Cal.App.4th 825, 830.) “[A]ny doubts as to whether summary judgment i...

Excerpt: ...., there is house on the property and as a result, the property cannot be physically divided. But, there are no facts pleaded regarding attempts to obtain an agreement to sell. More importantly, CCP § 872.510 states: The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partitio...

Excerpt: ...f 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 class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620...

Excerpt: ... the demurring defendants. Explanation: The court will address these two actions together. Aside from the addresses and dates, the relevant facts, causes of action, allegations and arguments are the same in each action. Trustee's Privilege Defendants contend that all claims against them are barred by the Trustee's privilege. As in the demurrers to the original complaints, plaintiffs do not respond to this argument. Civil Code § 2924(d) states th...

Excerpt: ...y LLP's general and special demurrer to the entire “Bill in Equity” without leave to amend. (Code Civ. Proc. §430.10(e), (f).) To grant State Farm Mutual Automobile Insurance Company's motion for sanctions. (Code Civ. Proc. §128.7.) Claimant Andrew Arthur Wysotski is ordered to pay monetary sanctions in the amount of $2,000 to Sheppard, Mullin, Richter & Hampton, LLP within 30 days of notice of this order. Claimant has filed and then subseq...

Excerpt: ...he Summons and Complaint. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414 [“[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.”].) On the other hand, it is also true that if the evidence supports a finding that defendants were properly served, then their a...

Excerpt: ...n as to the Sixth Affirmative Defense. Defendant is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with this order. Explanation: The court disregards defendant's “Objections” to plaintiff's amended Separate Statement filed on March 19, 2019, which amounts to a “reply separate statement,” which the summary judgment statute does not provide for or allow. (Nazir v. United Airlin...

Excerpt: ...entatives for such claim, and 3) show manageability for trial of all claims. Plaintiff must file that motion by April 17, 2019. Any opposition is due by May 1, 2019, and a reply may be filed on or before May 10, 2019. Explanation: There is no trial date in this action. The claim under Labor Code section 203 is derivative of and dependent on the success of the already‐pled certified claims. The fact that class members have separated from their e...

Excerpt: ...nation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc. §425.16, subd.(a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court deci...

Excerpt: ...complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer Breach of Fiduciary Duty To adequately allege breach of fiduciary duty, a plaintiff must allege a fiduciary relationship, its breach, and damage proximately caused by that breach. (Knox v. Dean (2012) 205 Cal.App.4th 417, 432.) Where a person was once a limited partner, but then sells his or her partnership interest, the “mere fact that...

Excerpt: ...430.10(e).) Explanation: Though the pleadings are somewhat vague, it is clear that the trespass claim is premised on judicial orders issued by defendants Judge Pro Tem Amy Lopez and Judge David Kalemkarian in other cases involving plaintiff. "[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement." (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.) "Otherwise, hi...

Excerpt: ...he planned cohabitation did not occur. Plaintiff alleges that despite requests to the Defendant for the return of his property, the items remain in her possession. As a result, on October 29, 2018, he filed a Complaint entitled “Possession of Personal Property and for Damages.” On October 31, 2018, Defendant was personally served with the summons, complaint and other documents. She did not file a response. On December 3, 2018, default was ent...

Excerpt: ...��In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.�...

Excerpt: ...ettlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769, subd.(d).) Fairness of the Settlement Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The Court has a fiduciary responsibility as guardian of absent class members' rights to ensur...

Excerpt: ...Act is to enable a party to obtain evidence in the control of [her] adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits. Its purpose is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits.” (Caryl Richards, Inc. v. Superior Court In and For Los Angeles County (1961) 188 Cal.App.2d 300, 303, internal citations and quotation marks omitt...

Excerpt: ...�Jurisdiction of all interested parties may be had by publication of summons pursuant to Section 6063 of the Government Code in a newspaper of general circulation designated by the court, published in the county where the action is pending and whenever possible within the boundaries of the public agency, and in such other counties as may be ordered by the court, and if there be no such newspaper in any such county or counties then in some adjoini...

Excerpt: ...ld that witness statements obtained as a result of interviews conducted by an attorney, or by an attorney's agent at the attorney's behest, constitute work product protected by section 2018.030. (Caito v. Superior Court, supra, 54 Cal.4th at p. 494.) However, the Court also held that the identities of the witnesses are discoverable, absent a showing that privilege applies. (Id. at p. 502.) Here, plaintiff seeks production of documents and...

Excerpt: ...int within 10 days of the date of this order. Explanation: “The 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 ...

Excerpt: ...tion: 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.) However, where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial. (A...

Excerpt: ...ied on the merits on September 18, 2018. (See minute order adopting tentative ruling dated September 18, 2018.) A motion that seeks the same relief as a previously denied motion is “an application for the same order” within the meaning of Code of Civil Procedure section 1008, subdivision (b), regardless of “‘“the label attached to it. The law is not a mere game of words.”'” (California Correctional Peace Officers Assn. v. Virga (201...

Excerpt: ...ral 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. (Blank v. Kirwan (19...

Excerpt: ...fifth and sixth causes of action, with leave to amend. Plaintiff is granted 10 days' leave to file an amended pleading. The time in which the complaint may be amended will run from the clerk's service of the minute order. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer Special demurrer to first through fourth causes of action “Following an order sustaining a demurrer … with leave to amend, th...

Excerpt: ...ace type. Explanation: A demurrer brought pursuant Code of Civil Procedure section 430.10, subdivision (e), contends that the pleading does not state facts sufficient to constitute a cause of action. In ruling on a demurrer, “the trial court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice[.]” (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 11...

Excerpt: ...ts 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. (Blank v. Kirwan (1985) 39 Cal.3d 311...

Excerpt: ...996) 48 Cal.App.4th 1544, discussed the definition of prevailing party under Code of Civil Procedure 1032 and held that, where one meets that definition, fees are to be awarded as a matter of right. There is no discretion to deny fees under such circumstance. (Rancho Mirage Country Club Homeowners Ass'n. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263.) The arguments made by cross‐complainant Westcare California, Inc. (“WestCare”) against any f...

Excerpt: ...on the pleadings. The arbitration agreement attached to the previous motion indicated it was between Plaintiff and an “employer,” but nothing in the submitted papers indicated that “employer” meant Defendant. Therefore, the Court denied the motion to compel arbitration by a minute order dated December 20, 2018. On February 13, 2019, Defendants filed a second motion to compel arbitration. The second motion does not mention the first motion...

Excerpt: ...lly and dba GSS Truck Parking Terminal. Each court has the power to “control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ. Proc. § 128(a)(5).) This power permits courts to disqualify an attorney based upon a conflict of interest on the motion of another party. (In re Complex Asbestos Lit...

Excerpt: ...pation (“SLAPP”) provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc. §425.16(a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant...

Excerpt: ... mutually agreed upon between him and plaintiff's counsel, or (2) a date, time and place as directed in a Notice of Deposition which is properly served upon him. To order defense counsel, G. Andrew Slater, to refrain from advising Mr. Lee not to answer questions where the objection is not based on privilege. To award monetary sanctions against defense counsel, G. Andrew Slater, in the amount of $2,310, payable within 20 days. In the event a heari...

Excerpt: ...y defendant LiDestri Foods, Inc., he fell from an unguarded and elevated height while dumping waste into a lower level recycling dumpster due to lack of proper or adequate guardrail or other safeguards to prevent falls. The cause of action alleges counts of negligence and willful failure to warn. The moving papers show that plaintiff was in fact an employee of employment agency Select Staffing, assigned to work at LiDestri Foods providing sanitat...

Excerpt: ...oposed judgment consistent with the court's summary judgment order. Explanation: In this action plaintiff Amandeep Sandhu dba Akal Carriers, Inc. essentially alleges that defendant Benjamin Ama converted plaintiff's tractor and trailer that plaintiff provided him in connection with his employment. The complaint alleges causes of action for breach of contract, common counts, and conversion. Defendant HST, who was brought into this action through a...

Excerpt: ...y defendant LiDestri Foods, Inc., he fell from an unguarded and elevated height while dumping waste into a lower level recycling dumpster due to lack of proper or adequate guardrail or other safeguards to prevent falls. The cause of action alleges counts of negligence and willful failure to warn. The moving papers show that plaintiff was in fact an employee of employment agency Select Staffing, assigned to work at LiDestri Foods providing sanitat...

Excerpt: ...as a result, Defendant has not met his burden pursuant to Code of Civil Procedure section 437c(p)(2). Explanation: On December 7, 2018, Defendant Samuel Lucido filed a Notice of Motion seeking summary judgment. The date listed on the Notice for the hearing was February 21, 2019. On the same day, a Memorandum of Points and Authorities, a Request for Judicial Notice, a Separate Statement of Undisputed Facts, the Declaration of Walt Whelan and the D...

Excerpt: ...icient 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; see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) § 7:3 [“The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is app...

Excerpt: .... Proc. § 430.10, subd. (e).) Defendants shall submit a proposed judgment consistent with the court's order within 10 days of the date of this order. Explanation: As a preliminary matter, defendants' demurrers are procedurally defective, as they fail to set forth the causes of action to which defendants are demurring; nor do they state the statutory bases for each demurrer. Under California Rules of Court, rule 3.1320, subdivision (a), “[e]ach...

Excerpt: ...ended Complaint. Explanation: 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 ...

Excerpt: ...injuries. See Declaration of Plaintiff at ¶ 7 and see the deposition of Arenas at page 31 lines 10‐16 attached as Exhibit A to the Declaration of Milligan. Explanation: In support of its motion, the Defendant relies extensively on the case of Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030. In that case, Ms. Peralta fell in the bakery section of Vons. An assistant store manager was summoned. She observed that Ms. Peralta was wea...

Excerpt: ...d upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” (Code Civ. Proc., § 583.210, subd. (a).) However, in computing the time within which service must be made pursuant to section 583.210, if “[s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's con...

Excerpt: ...petition. (Super. Ct. Fresno County, Local Rules, rule 2.8.4.) Explanation: The petition indicates that the minor has recovered. The only medical reports provided are from the day of the accident. These records clearly show that the minor had a right tibial plateau fracture and was to follow‐up with Dr. Wiemann in the ortho clinic. The billing attached to the MediCal lien clearly shows services provided in July and August of 2016 yet those reco...

Excerpt: ...rial.” (Cal. Rules of Court, rule 3.1332, subd. (c)(7).) However, continuances of trials are disfavored. (Cal. Rules of Court, rule 3.1332, subd. (c).) Postponement should generally be granted only for such a definite period as reasonably necessary to accomplish the purpose for which it is requested. (In re Harrison's Estate (1951)103 Cal.App.2d 12; Hunt v. United Artists Studio (1947) 79 Cal.App.2d 619.) Here, defendants move to vacate the...

Excerpt: ...ourt 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 be just, an amendme...

Excerpt: ...,” where “described properties” is defined as the properties listed at (A), (B), and (C) in the preamble to the requests. The word “transaction” will be deemed to be defined as “a loan made in 2015 for installation of solar and lighting panels at the locations referenced in the contract.” The hearing will be ordered continued to 3:30 p.m. on Wednesday, February 27, 2019 in Department 403. The parties are ordered to meet and confer o...

Excerpt: ...n. (Code Civ. Proc. § 437c(f).) Explanation: The Judicial Council form complaint alleges one Motor Vehicle cause of action against defendants Geoffrey Young and Preston Young. Though there is just one cause of action attachment, there are multiple theories of liability alleged in the Complaint. Plaintiff Trina Eastep alleges that on 3/26/17 defendants “did so carelessly, recklessly and negligently, own, operated, maintained and controlled a mo...

Excerpt: ...a further declaration segregating the fee‐related fees from the non‐fee‐related fees. If there are objections to the further declaration they may be submitted by March 2, after which the court will make a final ruling on the total fee award. Explanation: The court of appeals has already determined that both Petitioners are entitled to an award of attorney fees under Code of Civil Procedure 1021.5, and remanded to this court to determine the...

Excerpt: ...each cause of action, and the special demurrer for uncertainty as to the second cause of action, with leave to amend. To grant the motion to strike, without leave to amend. Plaintiff is granted 10 days' leave to file the First Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Defendant combined a demurrer and a motion to strike, when these motions s...

Excerpt: ...demurrer to cause of action three, for uncertainty. (Code Civ. Proc., § 430.10, subd. (f).) Plaintiffs are granted 10 days' leave to amend. The time in which the amended pleading may be filed will run from service by the clerk of the minute order. All new allegations are to be set in boldface type. Explanation: Cause of Action One: Breach of Contract When documents are incorporated by reference into the complaint, recitals in the document contra...

Excerpt: ...rejudice to the filing of such motions after the joinder issues have been resolved. To grant the motions to file amended complaints in each case. Plaintiff shall have five (5) court days from the date of this order in which to file the amended complaint in each case. Plaintiff is to perfect service in accordance with the applicable provisions of the Code of Civil Procedure. On the Court's own motion, to set Orders to Show Cause (“OSC”) on the...

Excerpt: ...eave to amend is granted as to plaintiff's claims under the Fair Employment and Housing Act (FEHA), as stated under the first cause of action, her claim for intentional infliction of emotional distress as stated under the third cause of action, and her wage and hour claims as stated under the fourth cause of action. Plaintiff is granted 10 days' leave to file the First Amended Complaint, which will run from service by the clerk of the minute orde...

Excerpt: ... amend as to the Fifth Cause of Action for Fraud as to Defendant Gill. To overrule the demurrers in all other respects. Plaintiffs shall have ten (10) court days in which to file and serve a Second Amended Complaint, addressing the issues noted by the Court below, if they can. All amended allegations are to be set forth in boldface typeset. Although there is a motion to strike put on calendar for Defendant Gill, it appears that no papers were fil...

Excerpt: ...lic Participation (SLAPP) Overview: The anti‐SLAPP statute describes claims within its purview: “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has establish...