Excerpt: ...all cross‐defendants' demurrers to the third cause of action without leave to amend. To sustain all cross‐defendants' general demurrers to the second, fourth and seventh causes of action with leave to amend. To overrule the general demurrers to the fifth and six causes of action. To grant motion to strike as prayed for with leave to amend. An amended crosscomplaint shall be filed and served within 10 days of the clerk's service of this minute...

Excerpt: ...pose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §430.41, subd. (a).) A demurring party must file and serve with the demurrer a declaration stating the means by which it met and conferred with the party that filed the pleading subject to demurrer and that the parties did not reach an agreement resolving the objections raised in the demurrer or stating that t...

Excerpt: ... is subject to” the demurrer or motion to strike. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The self‐represented litigant “is held to the same restrictive rules of procedure as an attorney.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267, internal citations and quotation marks omitted.) In the instant case, moving party failed to meet and confer with Defendant prior to filing the instant motions. Parties are requi...

Excerpt: ...errogatories. Plaintiff is to provide verifications within ten (10) court days of this order. To grant the motion for deemed admissions unless Plaintiff requests a hearing on this tentative and can provide a verification for the responses, or proof that verification has been provided, at the hearing. To deny the request for sanctions. The Court orders Moving Party to pay additional filing fees of $120.00 to be due and payable to the court clerk w...

Excerpt: ...ueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054.) The court finds that what plaintiff filed is the Second Amended Complaint despite plaintiff's attempt to style it as a “supplemental” pleading. It was filed in response to the demurrer, in lieu of opposition. Thus, it will be regarded as an amended pleading for purposes of counting the number of amendments plaintiff is allowed without leave of court pursuant to Code of Civil...

Excerpt: ... cause of action, with leave to amend. Any amended pleading must be filed and served within 10 days of the clerk's service of this minute order. New allegations must be in boldface typefont. Explanation: Demurrer: General Demurrer: Jurisdiction (Worker's Compensation) Colonial demurs to the first, second and fourth causes of action pursuant to Code of Civil Procedure section 430.10, subdivision (a) on the grounds this court lacks subject matter j...

Excerpt: ...(1)(B).) Here, plaintiffs achieved their litigation objective in this action under the Song‐Beverly Act via the mediation settlement, wherein defendant agreed to pay them $200,000 in damages, including a full statutory “buy‐back” of their vehicle, incidental and consequential damages, and a maximum civil penalty. Thus, they are the prevailing party, and as such they are entitled to attorneys' fees. (Civ. Code § 1794, subd. (d).) The stat...

Excerpt: ...ence in support of the moving party establishes that there is no issue of fact to be tried.” (Buehler v. OregonWashington Plywood Corp. (1976) 17 Cal.3d 520, 526.) The affidavits of the moving party are strictly construed, while those of the opposing party are liberally construed. (Ibid.; Huynh v. Ingersoll‐ Rand (1993) 16 Cal.App.4th 825, 830.) A defendant moving for summary judgment bears the initial burden of making a prima facie showing o...

Excerpt: ...rule the overbreadth objection for all other demands. For Demands Nos. 1, 3, 4, 9, 11, 17, and 21, to order that Zenith produce all documents not identified in a further verified response as subject to the attorney‐ client and/or work product privileges. The identification must be in a further response under oath which identifies each document withheld with its author, date of preparation, all recipients, and the specific privilege claimed. If ...

Excerpt: ...allegations of false arrest, planting evidence, fabrication of police reports, fabrication of probable cause, false testimony, perjury, making false arrests, and false or misleading internal reports including but not limited to false overtime or medical reports. Defendant has not shown that records related to complaints of excessive force are relevant to the issues and defenses raised in the present case, so the court will not require such record...

Excerpt: ... plaintiff William Gong's Form and Special Interrogatories, Set One and plaintiff William Gong's Requests for Production, Set One as to Defendant Cristallo Ventures, LLC. Defendant Cristallo Ventures, LLC will provide verified responses to the Form Interrogatories, Set One, Special Interrogatories, Set One and Requests for Production, Set One without objection within 20 days after the clerk's service of this order. To grant the Motion to Deem Req...

Excerpt: ....300, 2031.300, 2031.310.) Plaintiff is ordered to serve complete verified responses to the discovery set forth above, without objection, within 15 days of the clerk's service of the minute order. To impose monetary sanctions in favor of Defendants E. and R. Lemus, and against Plaintiff. (Code Civ. Proc. §§ 2023.010(d), 2030.290(c), 2030.300(d), 2031.300(c).) Plaintiff is ordered to pay $1,065.00 in sanctions to the Hartsuyker, Stratman & Willi...

Excerpt: ...torney's fees and costs to defendant within 30 days of the date of this order. Explanation: Defendant seeks attorney fees after prevailing on a motion to strike plaintiff's strategic lawsuit against public participation (SLAPP) action. Under Code of Civil Procedure section 425.16, subdivision (c)(1), “in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney&#...

Excerpt: ...from the clerk's service of the minute order. New allegations in the amended complaint are to be set in boldface type. Explanation: A complaint must allege ultimate facts stating an actionable claim; simply pleading the evidence by which plaintiff intends to prove his or her case is insufficient. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390; see Code Civ. Proc. §425.10(a)(1).) “Because the insurer...

Excerpt: .... Rules of Court, Rule 9.40.) Explanation: The Court does not find that Mr. Ibarguen's representation of Defendants by virtue of his representation of Hearst Television, Inc. and Hearst Communications, Inc., constitutes the practice of law in California. Plaintiff offered no authority for this argument. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is n...

Excerpt: ... 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 a complaint alleging causes of action for elder abuse, negligent hiring and supervision, and assault and battery. On April 19, 2018, Plaintiff filed a motion seeking trial preference. An opposition and a reply were filed. Trial Setting Preference Code of Civil Procedure section 36 states...

Excerpt: ...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 amend.' [Citation.] ‘In the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial.... Motions to amend are appropriatel...

Excerpt: ...nt. Explanation: Defendants Strong Holdings, Inc. (erroneously sued as Keller Williams Westland Realty) and Mel Kilner (“Defendant Brokers”) demur to the cause of action for breach of contract contained in the First Amended Complaint based on the Purchase Agreement, attached as Exhibit A to the First Amended Complaint. Defendant Brokers also move to strike the claim for attorney's fees based on the Purchase Agreement. Defendant Brokers' princ...

Excerpt: ...est.” Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting. (Evid. Code, § 500.) The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact. (Evid. Code, § 550, subd. (b).) A claimant of surplus sale proceeds bears the burden of proving his ...

Excerpt: ...ore, the matter will be taken off calendar. The Court notes that the papers on file in support of the application are probably insufficient to support the relief claimed. In order to be entitled to relief, a plaintiff must show that the claim as “probable validity,” which means “it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc. §481.190.) The evidence presented mus...

Excerpt: ...ssor in interest, or the vested owner at the time of the trustee's sale. (Civ. Code §2924k(a)(1)‐ (4).) A declaration signed under penalty of perjury outside of California must state on its face that it is made “under the laws of the State of California.” (Code Civ. Proc. §2015.5; see Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.) In the case at bench, a tr...

Excerpt: ...ued to August 28, 2018, at 3:30 p.m. in Dept. 503, to allow the moving party time to engage in additional discovery, as requested. Explanation: A settlement entered into by one or more of several joint tortfeasors may be determined by the court to be in “good faith.” (Code Civ. Proc. §877.6.) To encourage settlement, it is “quite proper for a settling defendant to pay less than [its] proportionate share of the anticipated damages. . . . Wh...

Excerpt: ...ising from a multi‐vehicle collision that took place on April 2, 2016 on I‐70 near Spiceland, Indiana. Plaintiff alleges that its truck was “rear‐ended” by a truck owned by the Defendant causing damages totaling $68,252.95. On September 27, 2017, the Plaintiff filed a motion seeking to serve the Defendant via service of summons upon the Secretary of State on the grounds that CHD Transport, Inc. is a suspended corporation and it had been...

Excerpt: ...re of moving party to prove service of its Request for Pretrial Discovery Conference. Explanation: For sake of clarity, Northbrook Indemnity Company will be referred to as “Respondent” and Robert Knight will be referred to as “Claimant.” Pursuant to Insurance Code section 11580.2, subdivision (f)(1), the superior court has exclusive jurisdiction over discovery disputes for uninsured and underinsured motorist arbitration. (Miranda v. 21st ...

Excerpt: ... supervision and assault and battery. On March 1, 2018, Plaintiff filed a motion seeking trial preference. Opposition and a reply have been filed. Trial Setting Preference CCP § 36 states in relevant part: (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 following findings: (1) The party has a substantial interest in the action as a whole...

Excerpt: ...hese arguments, California and federal courts have consistently found that indigent plaintiffs in civil actions do not have a right to appointed counsel.” See Defendant's Memorandum of Points and Authorities in opposition at page 8 lines 12‐19 citing inter alia Turner v. Rogers (2011) 564 U.S. 431 and Storseth v. Spellman (9th Cir. 1981) 654 F.2d 1349, 1353. Plaintiff can only present policy arguments and innovative interpretations of federal...

Excerpt: ...ed responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one. (Code Civ. Proc., §§ 2030.290, subd. (b) and 2031.300, subd. (b).) Frank Cruz to provide complete verified responses to all discovery set out above, without objection within 10 days after service of this order. To deny defendant Mel Abdelaziz's motion that the truth of the matters specified in the requests for admis...

Excerpt: ...ement and a brief description of the dispute is sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251; Tech‐Bilt v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) Defendant Aimhigh Group LLC has made the required barebones showing. Pursuant to California Rules of Court, rule 3.1312, subd. (a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary. The minute order adopting t...

Excerpt: ...s of action for conversion and replevin, contending that plaintiff Allstate has not alleged sufficient facts to constitute a cause of action. “The elements of a conversion cause of action are (1) plaintiffs' ownership or right to possession of the property at the time of the conversion; (2) defendants' conversion by a wrongful act or disposition of plaintiffs' property rights; and (3) damages.” (Baldwin v. Marina City Properties, ...

Excerpt: ...service of summons on the grounds that the court lacks jurisdiction. This embodies any of the basic defects – no jurisdiction, no valid service. Plaintiff is a foreign corporation and the method of service utilized by the plaintiff did to comply with Code of Civil Procedure §413.10(c). Failure to comply with the Hague Convention renders service on foreign defendant void. See Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789....

Excerpt: ...ubd. (b).) Plaintiffs' counsel shall pay sanctions to defendants within 30 days of the date of service of this order. Plaintiffs shall also pay the costs of transferring the action. (Code Civ. Proc. § 399, subd. (a).) Explanation: Under Code of Civil Procedure section 395, subdivision (a), “[i]f the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where th...

Excerpt: ...strategic lawsuit against public participation (SLAPP) action. (Code Civ. Proc. §425.16.) Defendants' demurrer is ordered off calendar as moot. Plaintiff's attempted “discovery motion” is ordered off calendar, since Plaintiff did not obtain a hearing date for this motion. Defendants' evidentiary objections are overruled. Explanation: Anti‐SLAPP motion The anti‐SLAPP statute provides: “A cause of action against a person arising from any...

Excerpt: ...to allow Plaintiff to allege some other basis for attorney's fees, if it can. Plaintiff shall have ten (10) court days in which to file a First Amended Complaint. 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 demurre...

Excerpt: ...ontribution, as Laticrete has also settled with plaintiff and obtained its own order determining the settlement to be in good faith. Thus, Benchmark's indemnity and contribution claims against Laticrete are barred. Explanation: Under Code of Civil Procedure section 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 o...

Excerpt: ...es have been mailed to over 90% of the class members, although a small percentage could not be located, apparently because they have moved. No objections have been received, and no class members have chosen to opt out of the class. It does not appear that any other events have occurred which would cast doubt on the reasonableness of the settlement. Therefore, the court intends to grant the motion for final approval of the class action settlement,...

Excerpt: ...e of this order. All new allegations shall be in boldface. 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, aft...

Excerpt: ...s. The Motion is Authorized: Plaintiff contends the motion is unauthorized because Fresno County Superior Court Local Rule 2.1.17(A) provides: “. . . no motion under [C.C.P.] sections 2016.010 through 2036.050 . . . shall be heard . . . unless . . . [a] request for a Conference has either been denied and permission to file the motion is expressly granted via court order or the discovery dispute has not been resolved as a consequence of such a c...

Excerpt: ... Currently the property is rented to non‐parties to this litigation. Plaintiff has served a demand on defendants to conduct a one‐hour inspection of the property. Defendants were unsuccessful in their attempts to obtain the current tenants' permission to inspect the property. Plaintiff moves to compel defendants to permit the inspection. The motion is brought under Code of Civil Procedure section 2031.320(a), which provides that if the party ...

Excerpt: ... 17CECG01691 as the lead case. All hearing dates currently scheduled in case number 17CECG02981 are ordered vacated. An Order to Show Cause re: Service is scheduled in Department 404 on July 12, 2018 at 8:30 a.m. Explanation: Rule 3.350 of the California Rules of Court governs the procedure to be used when filing a motion to consolidate. The motion must: (a) list all named parties in each case, the names of those who have appeared, and the names ...

Excerpt: ...ke Plaintiff's first amended complaint on the ground that it is a strategic lawsuit against public participation (SLAPP) action. (Code Civ. Proc. §425.16.) To grant Jonathan Donnellan's application for admission to the bar of this Court pro hac vice. (Cal. Rules of Court, Rule 9.40.) Explanation: Application Pro Hac Vice The Court does not find that Mr. Donnellan's representation of Defendants, by virtue of his representation of Hearst Televisio...

Excerpt: ...proceeds is not properly supported. The proceeds may be delivered to the petitioner/mother to be held in trust for the minor if the requirements of Probate Code §3401(c) have been satisfied. However, the requirements of Probate Code §3401(c) have not been satisfied. There is no evidence that the petitioner/parent has provided a written assurance, verified by oath that the total estate of the minor, including the money or other property to be pa...

Excerpt: ... mediation and therefore the extent to which any agreements reached during that meeting are subject to applicable mediation privileges. Any party to an arbitration in which an award has been made may petition the court to confirm the award. (Code Civ.Proc. §1286.) A petition must do at least the following: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate; (b) Set forth the names of the arbitrators; (c) Set for...

Excerpt: ...he petitions setting out the rule 7.955 factors and no Attachment 18a copy of the fee agreements attached to the petitions. The declarations and fee agreement were presented in a separate document dated a week after the petitioner signed the petitions. The petitions are supposed to contain all the required attachments and state how many pages are attached. See Item 23 of the petitions. This is how the Court can ensure that the petitioner had prop...

Excerpt: ...e Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The anti‐SLAPP statute may be invoked to challenge suits based on statements made in connection with an issue being considered by a judicial body. (Code Civ. Proc. §425.16(e)(2).) Pleadings, statements and writings “in connection with” civil litigation come within the parameters of the anti‐SLAPP statute. It need not be shown that the litigated matter is of public i...

Excerpt: ...e initial verified responses to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one, are moot. Responses have been provided. The motion that the truth of the matters specified in the requests for admission, set one, be deemed admitted as to defendant Paul Evert's RV Country, Inc. is moot. Defendant provided response to the requests for admission that are in substantial compliance with ...

Excerpt: ...ication Although plaintiff's motion is entitled a motion for preliminary approval of the class action settlement, plaintiff also seeks class certification for the purposes of approving the settlement. Therefore, the court must first determine whether the class should be certified before deciding whether the settlement should be preliminarily approved. “Code of Civil Procedure section 382 authorizes class actions ‘when the question is one of a...

Excerpt: ... v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally certifi...

Excerpt: ... SLAPP statute, defendants need make only a prima facie showing that plaintiff's complaint “arises from” defendant's constitutionallyprotected free speech or petition activity rights as defined in Code of Civil Procedure section 425.16, subdivision (e). (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458‐459; see also...

Excerpt: ...ees are calculated Petitioner does not clearly explain how the attorney fees are calculated. The court can see by the one fee agreement attached to the petition, and by checking the calculations, that petitioner proposes a fee that is 40% of the settlement. But the petitions should have clearly stated this, preferably in the attorney declarations.  Fee calculated on gross award rather than net The petitions are calculating the fee on the gross...

Excerpt: ...e judgment. CCP §989 et seq. The plaintiff must present an affidavit of himself or herself, his or her agent, representative, or attorney attesting that the judgment is in whole or part unsatisfied, and specifying the amount due. CCP §991. The declaration filed on July 26, 2017 never specified the amount due. Further, Code Civ. Proc. §§ 989 et seq. applies only when the alleged joint debtor was named or joined as a party and a joint liability...