Excerpt: ...rty pro pounding interrogatories 1 may move for an order compelling response if the party to whom the interrogatories are directed fails to serve a timely response. Here, Plaintiff served Form Interrogatories – General, Set One on Heather Long on February 5, 2024. Responses to written interrogatories are due within 30 days after service. CCP § 2030.260(a). As of the filing of this Motion on March 29, 2024, no responses have been received by P...

Excerpt: ...osition should hav e been filed and served on April 16, 2024. Plaintiffs object to the Court considering the late Opposition, however, Plaintiffs filed a substantive Reply and made no showing of how receiving the Opposition one day late caused any prejudice to Plaintiffs. The Court exercises its discretion to consider the Opposition and overrules any objection regarding a late Opposition. Meet and Confer. A motion brought under this section mus...

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: ...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: ... 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: ...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: ...he Vilchez Declaration are OVERRULED. Song-Beverly: The Song- Beverly Act contains a cost-shifting provision that speciÞcally allows prevailing buyers to recover their costs, including attorney's fees. Civ. C. § 1794(d). The attorney's fee award is limited to the amount the court determines was reasonably incurred by the buyer in commencing and prosecuting the action, based on actual time expended. The prevailing buyer has the burden of proving...

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...

Excerpt: ...material fact and that the moving party is entitled to a judgment as a matter of law. CCP § 437c(c). A plainti
¯ has met his burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plainti
¯ has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists ...

Excerpt: ...at is contained within the motion reflects service by electronic service and mail service on Plaintiff on December 19, 2023. "A party seeking dismissal of a case under Code of Civil Procedure sections 583.410- 583.430 must serve and file a notice of motion at least 45 days before the date set for hearing of the motion." CRC 3.1342(a). The notce provided to Plaintiff does not comply with CRC 3.1342(a). Defendant alternatively moves for terminating...

Excerpt: ...on of Stewart Altemus in which counsel provides evidence of custom and practice for construction projects. This objection is sustained on the grounds that counsel is not an expert. Plaintiff also objects to what are framed as misstatements of the evidence and statements not supported by evidence. These objections are overruled. 80th parties object to spreadsheets provided. These objections are overruled. Defendant objects to Plaintiff's counsel p...

Excerpt: ...on of Eric J. Jun provides sufficient evidence of meet and confer efforts. Merits. The court may, upon a moton made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any 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. CCP S 436 A...

Excerpt: ...hat on any action on a contract where the contract prov-des for attorney's fees, the prevailing party on the contract shall be entitled to attorney's fees in addition to other costs. A prevailing party is defined as the party with a net recovery, a defendant in whose favor a dismissal is entered, a defendant when neither side obtained any relief and a defendant as against a plaintiff who do not reccwery any relief against defendant. CCP S 1032. I...

Excerpt: ...g contract. "Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided." CCP S 1021. Allowable costs include "Attorney's fees, when authorized by any of the following: (A) Contract. (B) Statute. (C) Law." CCP S 1033...

Excerpt: ...r a trial are firm. All parties and their counsel must regard the date set for trial as certain. (c) Grounds for contnuance Although continuances of trials are disfavored, each request for a continuance must be considered on fts own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or exper...

Excerpt: ... Proof of Service for the Amended Petition, the Judgement by Default filed on December 10, 2021, and the Inventory filed on January 18, 2022, all of which are from Shasta County Case No. 21CV0433. Defendants also request the Court take judicial notice of the Order Compelling Responses to Form Interrogatories, Special Interrogatories, Request for Admissions, and Request for Production filed on January 18, 2023, in this matter (Shasta County Case N...

Excerpt: ...ce Statement on December 21, 2023 that notes that the parties are in agreement with the Motion for Preliminary Approval being heard today. Therefore, the Court will proceed on the merits. The settlement in this matter is a nan-reversionary settlement that consists of both a $200,000 payment by Defendant and changes to certain policies and practices that Defendant has agreed to keep in place for five years following judgment in this matter. The pr...

Excerpt: ...ocess by failing to respond to the discovery requests that are subject to the Court's Order dated August 7, 2023. The discovery requests at issue in the previous Motion to Compel are Plaintiffs' Request for Production, Set One, Request for Admissions, Set One, Form Interrogatories, Set One, and Special Interrogatories, Set One. The Court ordered that Defendant provide responses within fifteen days of the Notice of Entry of Order. Notice of Entry ...

Excerpt: ...service on those defendants must be filed with the court within 50 days after the filing of the complaint." CRC 3.110(b). A Proof of Service of Summons is on file for Defendant David Caleb Willis indicating service of the Complaint on November 29, 2021. A Proof of Service of Summons is on file for Defendant Andrea Johnson indicating service of the Complaint on November 29, 2021. Responsive pleadings should have been on file within 30 days of serv...

Excerpt: ...ling, this was corrected to Department 8. Because Defendant was served prior to filing, the clerk stamped the Notice with the following: "NOTICE Time and/or dept. have been changed. Moving party shall give notce of change to all parties." Nothing has been filed indicating that Defendant was provided notice of the correct department. Request for Judicial Notice. Plaintiff requests the Court take judicial notce of the Stipulation Agreement filed wi...

Excerpt: ... are seven specific objections that the Court lists sequentially starting with the first. 1. Overruled as to each objection with the exception of the sentence starting with "As evidence of his assertion" for which the Evid. Code S 1152 objection is sustained. That sentence is stricken. 2. Overruled as to each objection. 3. Overruled as to each objection. 4. Overruled. 5. Overruled as to each objection. 6. Overruled as to each objection. 7. Overru...

Excerpt: ...er 15, 2023, that has been opposed by Defendant. Procedural Issues. Motions for Summary Judgment have certain procedural requirements that differ from other motions. CCP S 437c(b)(1) reads: The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositons, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concis...

Excerpt: ...S 1005(b). The Court interprets this pleading as Plaintiff agreeing that the Demurrer should be sustained but seeking leave to amend. Meet and confer. CCP S 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 Declarati...

Excerpt: ...aintiff argues the responses were untimely. Plaintiff had granted Defendant a 30-day extension to respond. Plaintiff argues that the 30-day extension ran from the day Plaintiff granted the extension (August 2, 2023) rather than from the original due date (August 9, 2023). The parties' email correspondence does not specify what they intended. A logical reading of "30-day extension" means 30 days past the original due date, not 30 days past the dat...

Excerpt: ...ed liberally to permit amendment. Nestle v. Santa Monica (1972) 5 Cal. 3d 920, 939. "If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion." Morgan v. Sup.Ct. (1959) ...

Excerpt: ...Vilchez Declaration are OVERRULED. Song-Beverly: The Song-Beverly Act contains a cost-shifting provision that specifically allows prevailing buyers to recover their costs, including attorney's fees. Civ. C. S 1794(d). The attorney's fee award is limited to the amount the court determines was reasonably incurred by the buyer in commencing and prosecuting the action, based on actual time expended. The prevailing buyer has the burden of proving the ...

Excerpt: ...Notice. The Court notes that no objections were made to Plaintiffs' Request 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-GI were obtained. Plaintiffs' Requests for Judicial Notice are granted pursuant to Evid. Code SS 452(h) and 453. Merits. A defendant can challenge jurisdiction in California courts by filing a motion to qua...

Excerpt: ...mplied-in-fact contract causes of action on the grounds that they are barred by the statute of frauds defense. Request for Judicial Notice: 80th parties have requested judicial notice ofvarious documents. No objections have been raised. The requests are GRANTED. Standard on Demurrer: A general demurrer should sustained if the complaint fails to "state facts sufficient to constitute a valid cause of action." CCP S 430.10(e). A demurrer can be used...

Excerpt: ... was stricken as being filed without leave of Court on May 18, 2023. As a preliminary matter, despite being properly noticed, Plaintiffs did not file an Opposition to the Demurrer. Meet and Confer. CCP S 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 objectio...

Excerpt: ...vice listing the document titled Plaintiff's Evidence in Support of Motion for Summary Judgment or in the Alternative Summary Adjudication. Accordingly, Plaintiff's Evidence in Support of Motion for Summary Judgment or in the Alternative Summary Adjudication was not considered by the Court. Request for Judicial Notice. Pursuant to Evid. Code SS 452(a) and 453, the Court takes judicial notice of 15 USC Section 1665 and 12 CFR Section 202.12. Merit...