Excerpt: ...t 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. … [¶] … [¶]  (b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response, or the court may, in its discretion, receive other evidence at...

Excerpt: ...otal award of $13,306.13. 1. Basis for Fees When authorized by contract, statute or law, reasonable attorney fees are “allowable costs.” (Code Civ. Proc. § 1033.5(a)(10)(A), (B) & (C); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Pacific Custom Pools, Inc. v. Turner Const. Co. (2000) 79 Cal.App.4th 1254, 1268; see Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1027.) The Song–Beverly Consumer Warranty Act states: “If the b...

Excerpt: ...es 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, ensuring that any negotiated resolution is fair to those affected.” (Williams...

Excerpt: ..., deletions, and additions must also be submitted electronically to the Court. Any supplemental or revised papers should also be served on the LWDA and proof of service filed with the Court. 1. Counsel states “Plaintiff and her counsel are unable to estimate the potential maximum civil penalties because Defendant did not provide the total number of pay periods in which those employees were paid by direct deposit or pay card.” How is it possib...

Excerpt: ...Legal Remedies Act) on that ground that each fails to state facts sufficient to constitute a cause of action. Defendant also demurs to the 5th (Breach of the Implied Warranty of Merchantability), 6th and 7th causes of action on the ground that each is barred by the applicable statute of limitations. Third Cause of Action for Violation of Song-Beverly Act § 1793.2(a)(3). Defendant demurs to the 3rd cause of action on the ground that it fails to s...

Excerpt: ...plaint, and for the sake of clarifying the record, the court ordered Plaintiff to separately file the same by the end of the next business day. (ROA 291 [2/4/21 Minute Order].) The court notes that Plaintiff represents in its opposition brief that subsequent to the 2/4/21 hearing, it attempted to file the FAC but the clerk's office rejected the same, stating “First Amended Complaint already filed 3/11/2020.” Plaintiff further represents that ...

Excerpt: ... that its Software was suitable for Plaintiff's needs and would work constitute an express warranty.” (See FAC, ¶ 65.) In Opposition, Plaintiff contends that Defendant ignores the allegations that the warranties provided in writing are incorporated by reference. (See, e.g., FAC, ¶¶ 28-30, 48-52, 64-68, 73, Exhs. A-D.) Civil Code section 1791.2(a)(1) specifically defines “express warranty” as a “written statement”. As such, the allega...

Excerpt: ...ays leave to amend. Demurrer as to Richard D. Moore (“Richard”), individually: The demurrer of Cross-Defendants to Cross-Complainant's entire SACC on the grounds that there is a defect or misjoinder of party for Richard, individually, is MOOT. On March 25, 2021, Cross-Defendant Richard, as an individual was dismissed from the Cross-Complaint. (Opp., 2:12-14; ROA 147.) Demurrer to the Tenth, Eleventh and Twelfth causes of action: Cross-Defenda...

Excerpt: ...urrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not c...

Excerpt: ...y be received in evidence.” (Evid. Code § 1401(a).) “Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) “For a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document, would be improper. A court ruling on a demurrer ...

Excerpt: ...Code Civ. Proc., § 1008(a).) The motion must also be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. (Code Civ. Proc., § 1008(a).) A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an e...

Excerpt: ... (Aguilar v. Atlantic Richfield Co. (2001) 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).) Once the moving...

Excerpt: ...is by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlse...

Excerpt: ...ute resolution.'” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 [citations omitted].) “Consequently, courts will indulge every intendment to give effect to such proceedings.” (Moncharsh, 3 Cal. 4th at 9 [citations and internal quotation marks omitted].) “Indeed, more than 70 years ago [the California Supreme Court] explained: The policy of the law in recognizing arbitration agreements and in providing by statute for their enforcement ...

Excerpt: ...and (2) that negligence has also made it impossible for the plaintiff to prove causation, the burden may be shifted to defendant to prove its negligence was not the cause of plaintiff's injury. (Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 769-776; see also Smith v. Americania Motor Lodge (1974) 39 Cal.App.3d 1, 5.) This shifting is done “as a matter of fairness and in view of the parties' relative fault.” (Haft, supra, 3 Cal.3d at p. 772 [ci...

Excerpt: ...ts' requests for judicial notice are GRANTED. “Under Code of Civil Procedure section 1094.5, there are two alternative standards of review that a trial court uses to review [challenges to an agency's factual findings raised by] a petition for writ of administrative mandamus. [Citation.] ‘If the administrative decision involved or substantially affected a “fundamental vested right,” the superior court exercises its independent judgment upo...

Excerpt: ...filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 34...

Excerpt: ...y part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hos...

Excerpt: ... agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for the revocation of the agreement.” Toal v. Tardif (2009) 178 Cal.App.4 th 1208, 1219, provides, “In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (Rosenthal ), our Supreme Court set forth the procedure to b...

Excerpt: ...nce is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5. The court, on its own motion, may make such an order at any time. Where trial of the issue of liability as to all causes of action precedes the trial of ...

Excerpt: ...033.5, and Civil Code section 1717 is support of the Motion. Civil Code section 1293.2 provides, “The court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code.” Code of Civil Procedure section 1032, subdivision (a)(4), states in part, “ ‘Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dism...

Excerpt: ...d or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 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.” Perez v. Golden Empire Transportation Tran...

Excerpt: ...n of this state or of the United States.” Code of Civil Procedure section 418.10, subdivision (a)(1), provides, “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [¶] (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” “A stat...

Excerpt: ...n the forum State…” (Walden at 285.) Physical entry into the State—either by the defendant in person or through an agent, goods, mail, or some other means—is certainly a relevant contact. (Id.) But physical presence in the state is not required. “So long as a commercial actor's efforts are “purposefully directed” toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defe...

Excerpt: ...iled with this Court. Code Civ. Proc. § 2033.280 states: “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from ...