Excerpt: ....40, subds. (a), (d).) Here, Mr. McKey's application does not meet the requirements set forth in California Rules of Court, rule 9.40. The application does not include his place of residency, and no evidence is submitted to show that he does not regularly engage in substantial business, professional, or other activities in the State of California. Pursuant to California Rules of Court, rule 391(a) and Code of Civil Procedure section 1019.5, subd....

Excerpt: ...ther responses to the document requests within 10 days of the date of service of this order. Defendant shall pay monetary sanctions within 30 days of the date of service of this order. Explanation: As an initial matter, to the extent that defendant objects to plaintiff's motion on the ground that the plaintiff's separate statement does not comply with Rule of Court 3.1345, the objection is not well‐taken. Plaintiff's separate statement contains...

Excerpt: ...r with trial counsel's schedule must attend as a new trial date will be assigned at the hearing. If no hearing is held on this motion, the court will set a new trial date at a Case Management hearing on Thursday, August 23, 2018 at 3:30 p.m. in Department 403. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473; see also, § 576.) There is ge...

Excerpt: ...keting, Inc. (“Sandstone”). Explanation: California law includes special procedures for determining the claims of third persons (i.e., those other than the judgment debtor and creditor) in property under levy. These third party procedures are optional. They may be used by a third party who claims ownership to or possession of real or personal property, or a superior security interest in or lien on personal property. The third party claim proc...

Excerpt: ... strike “shall be entitled” to recover his or her attorney fees and costs. (Code Civ. Proc. §425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; see also Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 193 [“Our Supreme Court has construed section 425.16, subdivision (c) as mandatory.”].) The award of attorney fees to the prevailing defendant on an antistrategic lawsuit against public participation (SLAPP) motion includ...

Excerpt: ...ther equipment with a California Certificate of Title and eligibility to be licensed for travel on public roads in California) as part of the receivership estate. Although they have filed no opposition to this motion, Defendants apparently objected to the Receiver's sale of vehicles because Plaintiff has no security interest in them. The Order at paragraph 2 provides that the Receiver was to “take possession of all that certain Personal Propert...

Excerpt: ...on the ground that it fails to state facts sufficient to constitute a cause of action, as plaintiff has not clearly alleged which defendants were her employers, and that defendant Laura Fraser was not a licensed real estate broker and therefore could not have been an “employer” of plaintiff because only licensed real estate brokers can employ real estate agents. However, the complaint clearly alleges that, “The term ‘DEFENDANTS' shall ref...

Excerpt: ...osing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust.” (Emphasis added.) (Code Civ. Proc., § 405.38.) Plaintiff argues that because his complaint contains a “real property claim,” he acted with substantial justification. However, the statute contemplates that in order to survive a motion to expunge, plaintiff mus...

Excerpt: ...fth causes of action both allege claims for harassment in violation of the Fair Employment and Housing Act (FEHA) based on plaintiff's medical condition and sexual orientation. Defendants' contend that the acts of harassment cited by plaintiff with regard to her sexual orientation or medical condition were not so severe or pervasive as to alter the conditions of her employment. “Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 ....

Excerpt: ...planation: 1. Objections to Evidence The Court sustains that part of plaintiff's objection no. 1 on the basis of hearsay. All other objections made by plaintiff are overruled. The Court did not consider objections by defendant as defendant's moving papers failed to carry its burden on any issue except for the legal question of fiduciary duty. 2. Disputed Facts Facts Nos. 1, 9, 11, 12, 14, 16, 17, 18, 20, 21, 24, 26, 27, 28, and 32 are disputed. A...

Excerpt: ...fendant only needs the extra deposition time because counsel made an inefficient use of time previously. Plaintiffs did not comply with California Rules of Court, rule 3.1116 in attaching the entire unmarked transcripts, and it is not the court's burden to review over 300 pages of transcripts to independently identify the evidentiary basis for plaintiffs' arguments. Defendant has provided a sufficient basis to justify needing more time than the s...

Excerpt: ...r acceptance of offer to allow judgment,” states in relevant part: (a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. (b) Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award...

Excerpt: ...ugust 30, 2018, at 3:30 p.m. in Department 503. Plaintiff may file a responsive brief on the issue no later than August 16, 2018. Explanation: A party may voluntarily withdraw a pleading filed by him or her. (See Code Civ. Proc., § 128.7, subd. (c).) The wisdom of such a maneuverer is not for the court to decide. The operative second amended complaint was filed May 27, 2015. It seeks termination of three trusts held by the late J.M. Irigoyen, in...

Excerpt: ...‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6, subd. (a)(1).) “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or c...

Excerpt: ... deny the request for terminating sanctions. To impose monetary sanctions in the amount of $1,530. Sanctions must be paid by Defendant Jesus Hernandez to the Law Office of Robert C. Abrams within 30 days after service of this order. Explanation: Interrogatories: Code of Civil Procedure section 2030.290, subdivision (b) provides for a motion to compel where the opposing party fails to respond to written interrogatories. Further, when a party has n...

Excerpt: ...ch type of discovery for which further responses are sought pursuant to California Rules of Court, rule 3.1112; and 3. Failure to submit a separate statement in support of each motion pursuant to California Rules of Court, rule 3.1345(c). Explanation: On or about August 8, 2016, Plaintiff was involved in a motor vehicle accident with a rented Ryder Truck driven by Alan John Walsh in the scope of his employment with Defendant Baggie Farms Express,...

Excerpt: ... fees to a “successful party” if the underlying litigation has enforced an important right affecting the public interest, has conferred a significant benefit on the general public or a large class of persons, and has imposed a financial burden on the fee claimants out of proportion to their individual stake in the matter. (Baggett v. Gates (1982) 32 Cal.3d 128, 142.) Though it is a proceeding of a different nature than the ordinary civil acti...

Excerpt: ...use of action in light of the court's order on the demurrer. The prevailing party shall submit to this court, within 7 days of service of the minute order, an ex parte request dismissing the action as to the demurring defendant. Explanation: Demurrer to Fourth Cause of Action: Plaintiff, who is the Trustee of the Ninos' bankruptcy estate, has once again attempted to state a claim for negligence against Premier Valley Bank for failing to perform a...

Excerpt: ...ype. Explanation: The court finds the Complaint uncertain. The Complaint alleges that plaintiff leased an apartment at the apartment complex located at 3442 W. University Avenue, Fresno. The Complaint is vague as to what defective conditions existed at the unit in which plaintiff resided. Paragraph 11 alleges, “On August 24, 2017, inspection and observations of the conditions of the dwelling unit at 3442 W. University Avenue, Fresno, California...

Excerpt: ...nt can be amended will run from service by the clerk of the minute order. Explanation: In the complaint a plaintiff must “plead facts showing that he may be entitled to some relief.” (Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1152.) The complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc. § 425.10.) Plaintiff does not allege any facts in his First ...

Excerpt: ...e filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. If an amended pleading is filed, the responding party shall meet and...

Excerpt: ...ates, to ensure the information is consistent with what was stated in the Reply declarations. Explanation: It appears the memorandum of points and authorities plaintiff filed on July 20, 2018, was not the Reply brief but was the opening brief that plaintiff apparently intended to file with the other moving papers on June 15, 2018. It does not have the word “reply” in the caption, but instead the title simply indicates it is the memorandum in ...

Excerpt: ...1987.1 provides, in relevant part: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things … at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b) … may make an order … directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Ci...

Excerpt: ...gainst a public entity may only be brought where a written claim has been presented to, and rejected by, the entity. (Gov. Code §§905, 945.4; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454 [timely filing of claim is condition precedent to maintenance of civil action].) Such a claim must be presented within six months of its accrual. (Gov. Code §911.2.) Once a notice of rejection has been personally delivered to the claimant or de...

Excerpt: ... of the settlement.” (Code Civ. Proc., § 664.6 emphasis added.) The purpose of Code of Civil Procedure section 664.6 is to permit a court, via a summary proceeding, to finally dispose of an action. (Wackeen v. Malis (2002) 97 Cal.App.4th 429.) Here, the parties settled in February 2014. At that time, this case was (and still is) pending. The agreement contains a provision making it enforceable under Code of Civil Procedure section 664.6. Howev...

Excerpt: ...from the date of this order in which to file a First Amended Complaint addressing the issues noted below. All new or changed allegations shall be set forth in boldface typeset. Explanation: Moving Parties Growers Farm Management, Inc. and George Garcia (“Moving Defendants”) demur to the First, Second, and Fourth Causes of action for Breach of Contract, Negligent Misrepresentation, and Fraud, respectively. The grounds for the demurrer, and the...

Excerpt: ...e a receiver appointed for the purpose of transferring the judgment debtor's interest in the license. (Code Civ. Proc. § 708.630.) A necessary part of a motion for appointment of a receiver is to identify the person the moving party wishes to have serve as the receiver, showing that he or she has the necessary qualifications. The moving party here did not do this, but instead proposes that the receiver will be selected after the motion is grante...

Excerpt: ... summary judgment order. Explanation: Civil Code section 55.3, subdivision (b)(1), provides that an attorney “shall provide” the specified written advisory form “with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction‐related accessibility claim . . . .” (Emphasis added.) Civil Code section 55.54, subdivision (a)(1), provides that “an attorney who causes a summons and comp...

Excerpt: ... Dispute Resolution (Rutter Group 2017) “Contractual Arbitration” §§ 5:301, 5:304; Code Civ. Proc. §1290.2.) The motion/petition must allege specific facts demonstrating the existence of an arbitrable controversy, rather than mere conclusions, and must allege not only the existence of the arbitration agreement but “also that the opposing party refuses to arbitrate the controversy.” (Id. at 5:307 [citing Strauch v. Eyring (1994) 30 Cal....

Excerpt: ..., the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined …” The question is whether the pendency of appeal of an order denying a petition to arbitrate means “such application” is still “undetermined.” The only two courts to consider the issue come to different conclusions. Plaintiffs ...

Excerpt: ...(2000) 79 Cal.App.4th 876, 885‐886 citing Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322.) And when faced with parallel criminal proceedings, an analysis should be undertaken "in light of the particular circumstances and competing interests involved in the case.” (Avant!, supra, 79 Cal.App.4th at 885, citing Keating, supra, 45 F.3d at 324‐325.) In general, Courts should consider the following factors (“the Keating...

Excerpt: ...ruction, Inc. contracted to provide labor, services and materials in the rehabilitation of a construction project for defendants Ramos Ruiz Brothers, Inc. dba, Ramos Furniture, Jose Ramos, and Jose Ramos AG Land Ventures (hereinafter “Ramos”). Ramos amended the contract with Pickett to exclude insulation, flooring and painting, which work was performed by Peters Roofing, Inc., TCC Construction, Inc., and Spectrum Building Insulation Services....

Excerpt: ...00 is not contingent on FCA scheduling surrender of the vehicle. (Code Civ. Proc. § 664.6.) To deny the motion for sanctions. (Code Civ. Proc. § 128.5.) Explanation: Motion to Enforce Settlement Code of Civil Procedure section 664.6 provides: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon mot...

Excerpt: ..., and to prohibit defendant from interfering with the receiver's discharge of his duties. Explanation: Under Code of Civil Procedure section 564, subdivision (a), “A receiver may be appointed, in the manner provided in this chapter, by the court in which an action or proceeding is pending in any case in which the court is empowered by law to appoint a receiver.” Also, “A receiver may be appointed by the court in which an action or proceedin...

Excerpt: ...e Osiride Inis Towt Trust, uta dated 2‐1‐91. Plaintiff is the son of Ms. Towt. Contrary to the pleadings, which allege that Plaintiff loaned money to Defendants, Plaintiff states in his declaration in support of his default judgment request that his mother loaned $250,000 to Defendants “as evidenced by a Borrower's Closing Statement” attached as Exhibit A. (Kliegl Decl. at ¶ 3.) There is no Exhibit A attached to Plaintiff's declaration. ...

Excerpt: ...the debtor's assets until final adjudication of the claim sued upon. (Code Civ. Proc., §481.010 et seq.) A creditor must follow statutory guidelines in applying for the attachment and establish a prima facie claim. (Lorber Industries of Calif. v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) An attachment may be issued only if the claim sued upon meets the following requirements: (1) it is a claim for money based on a contract, express or im...

Excerpt: ...877.6, “Any 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‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6, subd. (a)(1).) “A de...

Excerpt: ...e complete verified responses to the discovery set out above, without objection, within 10 days after service of this order. To grant defendant Donald Inman's motion for sanctions. Plaintiff Eduardo Calderon and his attorney of record, jointly and severally, are ordered to pay monetary sanctions to Ericksen Arbuthnot in amount of $315.00 within 30 days after service of this order. (Code Civ. Pro., § 2031.300(c).) Pursuant to California Rules of ...

Excerpt: ...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 class certification does not relieve the Court of the duty of determining whet...

Excerpt: ...defense counsel before he filed his demurrer. (Code Civ. Proc., § 430.41, subd. (a)(3).) Therefore, he has failed to comply with the requirements of section 430.41. However, the failure to meet and confer is not enough, by itself, to justify overruling the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).) Also, since plaintiff is involuntarily confined at Coalinga State Hospital, he obviously cannot meet and confer in person with defense cou...

Excerpt: ...ant's residential care facility with a diagnosis of schizophrenia. A few months after admission, Plaintiff was allegedly physically attacked by Doe 1, another resident. On or about May 2017, Plaintiff alleges that he was physically attacked by yet another resident, Doe 2. Eventually, Plaintiff moved to another care facility. On March 23, 2018, Plaintiff filed his complaint alleging causes of action for elder abuse, negligent hiring and supervisio...

Excerpt: ...g).) Plaintiff is ordered to pay $1,372.10 in sanctions to the Yarra Law Group, within 30 days of the clerk's service of the minute order. Explanation: Proper service of a notice of deposition compels the opposing party to appear, to testify, and to produce documents if requested. (Code Civ. Proc. §2025.280(a); see Code Civ. Proc. §2025.410 [party served with deposition notice may serve objections on party that noticed the deposition].) Where a...

Excerpt: ... Plaintiff fails to adequately justify its request for increased attorney's fees; (4) Plaintiff improperly requests costs for a litigation guarantee; (5) Plaintiff fails to elect between remedies; and (6) Plaintiff provides no interest calculations. 1. Notice Due process considerations limit the amount of damages awardable on default: “In all default judgments, the demand sets a ceiling on recovery.” (Greenup v. Rodman (1986) 42 Cal.3d 822, 8...

Excerpt: ...n of the defendant if to do so appears to the court appropriate under the circumstances of the case.” Code of Civil Procedure section 583.420 authorizes the court to exercise its discretion to dismiss a matter in three circumstances: if service is not made within two years after the action is commenced against a defendant; if the matter is not brought to trial or conditionally settled within three years, and if the action is not tried within tw...

Excerpt: ...t. Fresno County, Local Rules, rule 2.8.4.) Explanation: Ordinarily, the reasonable attorney's fees in a petition to compromise the minor's claim are 25% of the net settlement without a clear explanation of why the higher fee would be justified per code. In the current petition the attorney seeks 33% of gross. There is nothing about this case that warrants this increased fee amount. The signature of the petitioner is not dated. The top portion of...

Excerpt: ...mplaint. The time in which the complaint may be amended will run from the clerk's service of the minute order. New allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer In California, a complaint must contain a statement of the facts constituting the cause of action, in ordinary and concise language; and a demand for judgment for the relief to which the pleader claims to be entitled. (Code Civ. Proc. §425.10....

Excerpt: ...ice of this minute order. All new allegations shall be in boldface typefont. Explanation: 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.) “[P]laintiff's ability to prove the allegations, or the possible difficulty in making such proof, does not concern the reviewing court.�...

Excerpt: ...de of Civil Procedure section 473, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to am...

Excerpt: ...entative of the client; and 3. proof of service on the defendants as required by Cal. Rules of Court, rule 3.1362(d). Failure to file the required declaration will result in the motion being taken off calendar. Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure section 1019.5(a), no further written order is necessary. The minute order adopting this ruling will serve as the order of the court, and service by the clerk o...

Excerpt: ...oyd sought to tax. (See Opp. brief, p. 3:14‐15—“The $435 filing fee amount for the first account was actually and reasonably incurred by Ms. Marsh and should be recoverable” (emphasis added).) Mr. Boyd provided no authority for his argument that because the accounting was filed as a result of a court order the filing fee is not a recoverable cost. As prevailing party, this is a cost that is recoverable by Ms. Marsh. The fact that Ms. Mars...