Excerpt: ...arate Statement is improper and the Court declines to rule on the objections. The Court does note that Plaintiffs violated California Rules of Court, rule 3.1350 by not citing their evidence in response to Defendants' material undisputed facts. Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defens...

Excerpt: ...aller fonts, which make the papers in violation of the Rules of Court. The court elects to overlook these procedural irregularities in order to address the merits. She also procedural irregularities with plaintiffs' evidentiary objections, as noted below. Plaintiffs' Request for Continuance The summary judgment motion was filed with an initial hearing date of May 12, 2022. It has been continued several times pursuant to Code of Civil Procedure se...

Excerpt: ...e, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” (Code of Civ. Proc., § 576.) A motion to amend a pleading before trial must: (1) include a copy of the proposed amendment or amended pleading; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, pa...

Excerpt: ...e § 201-203 (Waiting Time Penalties Subclass);  Subclass B: All Class Members employed during the time from January 29, 2017, through Class certification, who incurred reasonable business expenses in the discharge of their duties and were not reimbursed (Expense Reimbursement Subclass);  Subclass C: All Class Members employed during the time from January 29, 2017, through Class certification, who did not receive accurate itemized wage stat...

Excerpt: ... of limited Court time and resources. The parties shall also provide redline copies of the revised notice and proposed order. A judgment in a PAGA action “binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, “PAGA settlements are subject to trial court review and approval, “to determine whether it is fa...

Excerpt: ...is when plaintiff began to sustain damages and therefore this action is time-barred. The plaintiff alleges it sought to purchase an insurance policy to protect it from lawsuits brought after the sale of the business for products it had manufactured prior to the sale of the business. It is alleged that an accident occurred in 2017 involving a product it had manufactured and that an action for personal injury damages was filed in Utah. It turned th...

Excerpt: ...aintiff's Request for Judicial Notice pursuant to Evidence Code § 452(h). The court OVERRULES Defendant Roxanne Chamouille's (Defendant) objections to Declaration of Judy Hirahara, filed 11-9-22 under ROA No. 93. Defendant's objections to Declaration of David Bourguignon, filed 11-9-22 under ROA No. 90 are SUSTAINED as to objections 1-2, 7-8, sustained in part as to objections 5-6 and OVERRULED as to objections 3 and 4. Lydig Construction, Inc. ...

Excerpt: ... Plaintiff's unauthorized sur-reply filed under ROA No. 175. “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a)(1).) “A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, ...

Excerpt: ...d complaint shall be served upon a defendant within three years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.210(a).) “[A]n action is commenced at the time the complaint is filed.” (Id.) “[O]nce one defendant is sued, all fictitiously named defendants must be brought in within a maximum period of three years ….” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 589, fn. 10; Inversione...

Excerpt: ...25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc. § 437c(p)(2).) A cause of action “cannot be established” if the undisp...

Excerpt: ...eged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” P e r e z v . G o l d e n E m p i r e T r a nsportation Transit District (2012) 2...

Excerpt: ...tions.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1482 (Friends), provides, “A party may also object by demurrer on the ground that “[t]he pleading does not state facts sufficient to constitute a cause of action,” including that the claims are barred by the applicable statutes of limit...

Excerpt: ...Plaintiffs' (Jessica Garten, individually, and as guardian ad litem for minor children, Dru Stinson and Lilyana Stinson) Request for Judicial Notice, filed on 11-1-22 under ROA No. 71, as immaterial to the court's decision. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.) “A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are fac...

Excerpt: ...tion on January 26, 2022. (ROA 93.) The Court notes Plaintiff filed a second Opposition, as well as Objections to Evidence, on November 2, 2022. Not only are Plaintiff's filings untimely, due to the November 11 holiday, but the Court did not grant Plaintiff leave to file any new opposition papers to the Motion. Thus, the Court will not consider the second Opposition or Objections to Evidence. Repeated Litigation under CCP § 391(b)(2): A litigant...

Excerpt: ...both the Demurrer and Motion to Strike. Thus, any objection by Pfizer has been effectively waived and Pfizer has not been prejudiced. Request for Judicial Notice: Pfizer requests judicial notice of the following: (1) The Inflectra label and medication guide in place since April 2016; and (2) The FDA's website regarding Tumor Necrosis Factor blockers. The Request for Judicial Notice as to Exhibit 2 (the FDA's website regarding Tumor Necrosis Facto...

Excerpt: ...ltimately prevail on the merits of his [or her] claim, and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance and nonissuance of the injunction. [Citations.]” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 441-442; footnote 7 omitted.) “A trial court deciding whether to issue a preliminary injunction weighs two interrelated factors—the likelihood the moving party will prevail on the merits at...

Excerpt: ...s filed on 7-26-22 under ROA No. 595: The court SUSTAINS Objections Nos. 1, 4, 7, 8, 10, 11, 23, 25, 26, 27, and 28. The court OVERRULES the remaining objections. Lynn v. George (2017) 15 Cal.App.5th 630, 637 (Lynn), states, “ ‘A trial court's authority to disqualify an attorney derives from the power inherent in every court “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any man...

Excerpt: ...e or order of court.” (Code Civ. Proc, § 436.) Furthermore, as with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records). (Code Civ. Proc, § 437.) Punitive Damages: MP seeks to strike the punitive damages allegations from the FAXC. A claim for punitive damages must be supported by specific factual allega...

Excerpt: ...tion in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” Code Civ. Proc., § 425.16, subd. (b)(1). “Section 425.16 posits ... a two-step process for determining whether an action is a [strategic lawsuit against public participation]. First, the court decides whether the defenda...

Excerpt: ... SPROGs 1, 13, and 21. Code of Civil Procedure section 2017.010 provides, “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to...

Excerpt: ...tion Agreement, before arbitration can be compelled. (See 9 U.S.C. §2 and C.C.P. §1281.2.) "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4 th 951, 972; See also Green Tree F...

Excerpt: ...nd discretion of the trial court.” (Carr v. Barnabey's Hotel Corp. (1994) 23 Cal.App.4 th 14, 20.) However, “[t]he greatest liberality is to be encouraged in the allowance of such amendments in order to see that justice is done.” (Id.) As explained by the Court in Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4 th 117, the law is unsettled as to the scope of CCP section 187. As the court explained, section 187 is...

Excerpt: ...sserted to the evidence presented by Plaintiff in support of the Motion. As explained further below, Plaintiff carried its burden of proving each element of each of the causes of action on which summary adjudication is sought. The burden therefore shifts to Defendants to show that a triable issue of one or more material facts exists as to the cause of action. See CCP § 437c(p)(1). Because Defendants did not oppose the Motion, they did not carry ...

Excerpt: ...CP”) section 438(e) provides: “No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” (Civ. Proc. Code § 438.) HOM argues that, because there was no pretrial conference order pursuant to Section 575, the motion is untimely and should be denied for that...

Excerpt: ...have failed to comply with the notice requirements set forth in California Rules of Court, rule 3.1382. A notice of motion for good faith settlement determination “must list each party and pleading or portion of pleading affected by the settlement and the date on which the affected pleading was filed.” (California Rules of Court, rule 3.1382.) Further, Defendant, High End Development (HED) makes an alternative request for a continuance to all...