Excerpt: ...requested that judicial notice be taken in the footnotes. The first is in Footnote 1 on page 2 where Defendant requested the Court to take judicial notice that “the American Arbitration Association is one of the largest neutral arbitration services in the Unite d State.” Defendant did not specify under which section of the Evidence Code this request was being made. In Footnote 4 on page 9, Defendant requests the Court take judicial notice of...

Excerpt: ...ain.” CCP § 430. 10(f). A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond —i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed again st him or her. Khoury v. Maly's of Calif., Inc. (1993) 14 Cal App.4th 612, 616). A demurrer can be used to challenge defects that appear on the face of the complaint o...

Excerpt: ... but denied without prejudice by the Court due to procedural defects; specifically, a failure to provide proper notice. The Court did not issue a ruling on the merits of the prior motion and therefore finds the present motion is not one for reconsideration. The Cour t will issue a ruling on the merits. Merits of Motion: CCP § 473(b) permits the Court to set aside a default or order entered against an aggrieved party due to mistake, surprise, i...

Excerpt: ...e provi ded by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter. CCP § 583.130. (a...

Excerpt: ...udgment on Dec ember 29, 2023. Defendant has filed an opposition. Procedural Issues. Oppositions to motions for summary judgment are due 14 days before the hearing date. CCP § 437c(b)(2). Defendant filed his opposition on April 2, 2024, just 6 days prior to the hea ring date. The Court finds that the opposition is untimely; however, out of an abundance of caution will exercise its discretion to consider the opposition. The Court notes that th...

Excerpt: ...wing that t here are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. There is a genuine issue of material fact only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the p arty opposing the motion in accordance with the applicable standard of proof. Id. at 845. A defendant has met his or her burden of showing that a cause of action has no merit if the...

Excerpt: ... of Californ ia (1992) 3 Cal. 4th 273, 277- 281 (superseded by statute on other grounds). However, courts cannot automatically and instantly approve a proposed settlement or dismiss a class action suit, even if the representative plaintiff and defendant have agreed on the terms of such settlement or dismissal. In a class action, the trial court has a duty to adequately protect the members of the class. Bingham v. Obledo (1983) 147 Cal. App. 3d 40...

Excerpt: ...e of action pursuant to CCP 430.10(e), and is uncertain pursuant to CCP 430.10(f). Houseboating has concurrently filed a Motion to Strike, which argues that if the Court sustains the demurrer on the third cause of action, punitive damages must be struck from the FAC . The analysis and outcome on Houseboating's Demurrer and Motion to Strike is the same as for the Silverthorn Demurrer and Motion to Strike, which was made on substantially similar g...

Excerpt: ...ement does n ot state facts sufficient to constitute a cause of action pursuant to CCP § 430.10(e). Meet and Confer: CCP § 430.41 requires the demurring party to “meet and confer in person or by telephone with the party who filed the pleading that is subject to demu rrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The Declaration of Peter Witherington i...

Excerpt: ... filed Decemb er 7, 2023. This request is granted pursuant to Evid. Code §§ 452(d) and 453. Meet and Confer. CCP § 430.41 requires the demurring party to “meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for t he purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The Declaration of Katharine McCallum provide...

Excerpt: ...e objections to be raised in the demurrer.” Defendant provided no evidence of this and did not file a declaration addressing meet and confer efforts as required by CCP § 430.41(a)(3). However, Plaintiff did not raise an issue regarding meet and confer efforts and De fendant alleged in the Notice of Motion that counsel wrote a meet and confer letter to Plaintiff's counsel. “A determination by the court that the meet and confer process was in...

Excerpt: ...res the demurring party to “meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demur rer.” The Declaration of Reuben B. Jacobson provides sufficient evidence of meet and confer efforts. Merits. A demurrer should be sustained if the complaint fails to “state facts s...

Excerpt: ...iff filed a First Amended Representative Complaint for a Violation of Labor Code § 2698, et seq. on February 13, 2024. There is no longer a class action allegation. In the original moving papers, Defendant moved for a stay or dismissal of the action. In Defendant' s Supplemental Briefing on Petition to Compel Arbitration filed on March 14, 2024, Defendant only requested a stay pending arbitration. Plaintiff does not oppose arbitration but doe...

Excerpt: ...Reques t for Judicial Notice. The Court further notes that the Declaration of Andrew S. Pletcher provides evidence establishing how each of the documents in Requests 2 -8 (Ex. A -G) were obtained. Plaintiffs' Requests for Judicial Notice are granted pursuant to Ev id. Code §§ 452(h) and 453. Post jurisdictional discovery, Plaintiffs also requested the Court take judicial notice of three maps from Google Maps pursuant to Evid. Code §§ 452 and ...

Excerpt: ... state facts sufficient to constitute a cause of action pursuant to CCP § 430.10(e). Meet and Confer: CCP § 430.41 requires the demurring party to “meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The Declaration of Peter Witherington indicates complia...

Excerpt: ...or, managi ng agent, employee, or agent most qualified in the following categories: 1. Research and Development of any and all stanchions built on Defendant Sierra Pacific Industries' Property. 2. Safety measures/concerns/or considerations taken into account in the d esign of all stanchions built on Defendant Sierra Pacific Industries' Property. 3. Any and all differences between the subject stanchion involved in Plaintiff's injury and the new...

Excerpt: ...d with the Second Amended Notice of Taking Deposition of Witness Jonathan Martin and Request for Production of Documents on September 15, 2023. The Second Amended Notice noticed a Deposition of Jonathan Martin on October 18, 2023. Defendant also provided a Depo sition Subpoena compelling Jonathan Martin to appear on October 18, 2023, with an attached Proof of Service indicating that Jonathan Martin was personally served with the Deposition Subpoe...

Excerpt: ...the Third Amended Complaint. The Cross- Complaint filed on January 12, 2022 contains nine separate causes of action. The Answer filed on March 25, 2022 alleges twenty affirmative defenses to the Cross -Complaint. Plaintiff does not state in the Notice of Motion whether Plaintiff is proceeding with a motion for summary judgment on the Complaint, the CrossComplaint, or both. Instead, the Notice states that Plaintiff prays “That the Court issue ...

Excerpt: ...73. Plaint iffs allege Kacalek suddenly and unexpectedly lost consciousness while en route to an emergency call, causing the Subject Vehicle to go off the road and overturn. Plaintiffs Ryan and Charity Kacalek allege Strict Product Liability and Negligence [Product Liability] against Defendants Faurecia USA Holdings, Inc. and Faurecia Emissions Control Technologies USA, LLC (“Defendants,” for purposes of this Motion). Plaintiffs allege design...

Excerpt: ...ovides t hat “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 ...

Excerpt: ...otion for Summa ry Judgment and other related matters.” As this motion is included in the limited scope representation, Melvin S. Hodges may appear on behalf of Plaintiff for the limited purpose of this motion. Merits. “To ensure the prompt disposition of civil cas es, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” CRC 3.1332(a). “Although continuances of trials are ...

Excerpt: ... 5, 2024 for a Final Approval Hearing. No oral objections were made on February 5, 2024. The Final Approval Hearing was continued to today's date because a declaration was not filed and additional information was necessary. This information has been provided. F inal Approval of the Settlement. The parties agreed to settle the case for $675,000.00. The breakdown of the settlement is as follows: Total Settlement Amount 675,000.00 Proposed Attorney...

Excerpt: ...tatemen t of Non-Opposition to the Motion. Merits: The law favors the settlement of lawsuits, particularly in complex litigation, where they save time and resources. Neary v. Regents of the University of California (1992) 3 Cal. 4th 273, 277 -281 (superseded by statute on other grounds). However, courts cannot automatically and instantly approve a proposed settlement or dismiss a class action suit, even if the representative plaintiff and defenda...

Excerpt: ...Agreement Þled with the Court on September 16, 2022. This request is granted pursuant to Evid. Code §§ 452(d) and 453. Merits. CCP § 664.6 provides the Court with authority, upon motion, to enter judgment pursuant to the terms of a settlement agreement entered into in writing, or orally before the Court. If requested by the parties, the Court also retains jurisdiction over the parties to enforce the settlement until performance in full of the...

Excerpt: ...ling a motion to strike. No evidence of meet and confer e
¯orts has been provided. However, a determination by the Court that meet and confer e
¯orts were insu
¯icient is not a ground upon which a motion to strike can be granted or denied, therefore, the Court will issue a ruling on the merits. Merits. The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any...