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: ...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: ...ion: Trial dates are firm. CRC 3.1332(a). A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is d...

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: ...ny affidavit in support thereof. Where the defendant has not yet appeared in this action, all of those documents must be served in the same manner as a complaint and summons. CCP S 512.030(b). Defendant was subserved after multiple attempts to personally serve. CCP S 415.20(b). Service is therefore proper. Merits: CCP 5512.060 provides that in order to obtain a claim and delivery writ of possession plaintiff must: 1) demonstrate the probable vali...

Excerpt: ...of Documents, Set One. After Mosely granted Abdulghani several extensions to respond, Abdulghani served unverified objections on August 25, 2023. Mosely filed the instant Motion on October 9, 2023. On October 19, 2023, Abdulghani served substantive responses, which Mosely has indicated are adequate. (Reply at 2.) Mosely maintains the request for sanctions, because of the time and expense required to bring this motion. Merits of Motion: When a par...

Excerpt: ...ate facts sufficient to constitute a valid cause of action." CCP S 430.10(e). A demurrer also lies whether the pleading is uncertain which includes ambiguous or unintelligible causes of action. CCP S 430.10(f). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court "treat[sl the demurrer as admitting all mate...

Excerpt: ...for an order compelling responses. CCP SS 2030.290(b). On March 22, 2023, Plaintiff propounded Form Interrogatories, Set One on Defendant Bonna Johnson. To date, Defendant has not provided any responses. Plaintiff has established proper service of the discovery, that the time to respond has lapsed and that no responses have been received. The Court will issue an order compelling Defendant to provide responses. As for sanctions, they are mandatory...

Excerpt: ...v. Santa Monica (1972) 6 Cal. 3d 920, 939. Leave to amend should be liberally granted so long as there is no statute of limitations issue or prejudice to the opposing party. Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240. Plaintiffs allege it was recently discovered that the breach of contract code section cited in the First Amended Complaint was erroneous. California Civil Code Section 1719(a)(2) was cited, but the correct citation is...

Excerpt: ...udicial Notice: Pursuant to Evid. Code S 452 the Court GRANTS Defendant's request for judicial notice of the Complaint. 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 Declaration of Peter Fi...

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: ...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: ...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...

Excerpt: ...object to the Court preliminarily approving the settlement. This matter is post class certification. The Court has already certified the class, appointed the named Plaintiffs as class representatives, and appointed Kesluck, Silverstein, Jacob, & Morrison, P.C. and the Law Office of Edward Antonino P.C. as class counsel. The proposed settlement is as follows: Total Settlement Amount $250,000 Proposed Attorneys' Fees (33 %) $82,500 Litigation Costs...

Excerpt: ...n- reversionary gross settlement amount is Defendants North State Grocery, Inc. do not object to the Motion. Plaintiff Mary Napoles has filed a Notice of Joinder to the instant Motion in Naples v. North State Grc„cery, Inc. No. 22CV-02[n995 (consolidated with Case No. 22CV-02CG96). Allocation of the proposed settlement is as follows: Total Settlement Amount Proposed Attorneys' Fees (33%) 1,041,667 Litigation Costs and Expenses (up to) Settlemen...

Excerpt: ...int tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the faith of a settlement 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. Section 877.6(b) provides, "The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the no...

Excerpt: ...s GRANTED; however, the Court notes that the rulings are not binding on this court and their persuasive value is extremely limited as the rulings pertain to hourly rates of other legal communities. Objections: Defendants' objections are OVERRULED. Authority: The Song-Beverly Act contains a cost-shifting provision that specifically allows prevailing buyers to ræover their costs, including attorney's fees. Civ. C. S 1794(d). The attorney's fee awa...

Excerpt: ...ronics, and destruction of any information already obtained. Plaintiffs further seek an order prohibiting Defendants from using any information obtained in any legal proceeding. Defendants Demur to the FAC pursuant to CCP S 430.10(e). 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 ag...

Excerpt: ...ivil Code S 1511. Motion for Summary Judgment: CCP S 437c(c) states a motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. "A defendant...has met his or her burden of showing that a cause of achon has no merit if the party has shown that one or more elements of the cause of action, even if not separately p...

Excerpt: ...7c(c) states a motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. "A 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, even if not separately pleaded, cannot be established, or that there is a comp...

Excerpt: ...2022. CCP S 473(a)(1) permits any pleading to be amended in further of justice and on any terms as may be proper, after notice to the adverse party. The Court's discretion in this regard will usually be exercised liberally to permit amendment. Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939. "Ifthe 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 wh...

Excerpt: ...CCP S 430.10(f). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court "treat(s) the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." Hood v. Hacienda La Puente Unified School District (1998) 65 Cal.App.4th 435, 438. No matter how unli...

Excerpt: ...object to the Court preliminarily approving the settlement. This matter is post class certification. The Court has already certified the class, appointed the named Plaintiffs as class representatives, and appointed Kesluck, Silverstein, Jacob, & Morrison, P.C. and the Law Office of Edward Antonino P.C. as class counsel. The proposed settlement is as follows: Total Settlement Amount $250,000 Proposed Attorneys' Fees (33 %) $82,500 Litigation Costs...

Excerpt: ...rrer: Respondent City of Redding demurs to Petitioner Blake Simpson's Notice of Appeal on the grounds that it fails to state sufficient facts. The Court does not believe that Ms. Kafel-Hanna had any involvement in the investigation or adjudication of this case, but does disclose the relationship between the named party and the Court's first degree relative as required by the California Code of Judicial Ethics, Canon 3E(2). Merits of Motion: A gen...

Excerpt: .... When a party fails to respond to a Request for Admissions, the propounding party may move for an order deeming the truth of matters and the genuineness of documents specified in the requests admitted. CCP S 2033.280(b). Failure to also waives any objections to the discovery propounded. CCP S 2033.280(a). Plaintiff's moving papers sufficiently demonstrate that Defendant has failed to respond to the Request for Admissions within the required time...

Excerpt: ...tive Summary Adjudication of Plaintiff's claims alleging discrimination, harassment, retaliation, and other causes of action in violation of the California Fair Employment and Housing Act ("FEHA"), Pregnancy Disability Leave Law, and Labor Code. The Court's employment with the Attorney General was as a criminal prosecutor in the Sacramento office of the Special Prosecutions Section. This section is distinct in its duties and responsibilities from...

Excerpt: ...fendant Bonna Johnson, Plaintiff's Motion to Compel Responses to Plaintiff's Form Interrogatories by Defendant Bonna Johnson, and Plaintiff's Moton for Order Deeming Facts Admitted, all of which were filed on August 17, 2023. Attached to each motion is a proof of service indicating that Defendant Johnson was served by mail on August 16, 2023. The moving papers were mailed from California to Virginia. unless otherwise ordered or specifically provi...

Excerpt: ...r to the hearing on a noticed motion. CCP S 1005(b). This motion is set for hearing on September 11, 2023. Plaintiff's Opposition was therefore due to be filed and served no later than August 28, 2023. Plaintiffs' Opposition to Defendant's Motions was filed September 1, 2023 (the due date for Defendant's Reply), and had been served on Defendant on August 31.2023. Cal. Rules of Court, Rule 3.1300(d) provides that a trial court has discretion to re...

Excerpt: ...ntiff's meet and confer efforts. Request for Judicial Notice. Pursuant to Evid. Code SS 452(d) and 453, the Court takes judicial notice of the Court's Order dated June 28, 2023 from Plaintiff's Motion for Order That Matters in Request for Admissions of Truth of Facts Be Admitted. Merits. CCP S 438(c)(1)(A) provides that a plaintiff may move for judgment on the pleadings if the complaint states sufficient facts to constitute a cause of action and ...

Excerpt: ...ability on behalf of Defendant. Standard on Demurrer: A general demurrer should be sustained if the complaint fails to "state facts sufficient to constitute a valid cause of action." CCP S 430.10(e). A demurrer also lies whether the pleading is uncertain which includes ambiguous or unintelligible causes of action. CCP S 430.10(f). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subj...

Excerpt: ...show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. Summary adjudication is appropriate if there is no merit to particular cause of action, affirmative defense, claim for damages or issue of duty. CCP S 437c(f)(1). "A 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, eve...

Excerpt: ... 3.769. Defendant has filed a Statement of Non-opposition to the Motion. This matter was heard on July 24, 2023, and continued to allow Plaintiff to supplement the Motion. Plaintiff has filed supplemental briefing and declarations which address the concerns raised by the Court in its July 24, 2023 tentative ruling. The class is defined as "all current and former non-exempt employees employed by California Mentor Family Home Agency, LLC in Califor...

Excerpt: ...l file and serve with the motion for judgment on the pleadings a 3 declaration stating" the attempts made to meet and confer. CCP S The Declaration of William Bliss provides sufficient evidence of Plaintiff's meet and confer efforts. Merits of Motion: CCP S 438(c)(1)(A) provides that a plaintiff may move for judgment on the pleadings if the complaint states suffcient facts to constitute a cause of action and the answer does not state facts suffic...

Excerpt: ...equest is GRANTED; however, the Court notes that the rulings are not binding on this court and their persuasive value is extremely limited as the rulings pertain to hourly rates of other legal communities. Objections: Defendants objections are OVERRULED. Authority: 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 ...

Excerpt: ...1W5(b) requires sixteen court days' notice. The Proof of Services prov-des that Plaintiff was served by mail on August 7, 2023. Because the 6 Demurrer was served by mail, five days are added to the notce period. CCP S IW5(b). Therefore, the Demurrer was filed and noticed late. However, a party who contests a motion on the merits without objecting to a defect or irregularity in the notice of motion, including the failure to serve a notice of motio...

Excerpt: ...o "state facts sufficient to constitute a valid cause of action." CCP S 430.10(e). A demurrer also lies when the pleading is uncertain which includes ambiguous or unintelligible causes of action. CCP S 430.10(f). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court "treat[sl the demurrer as admitting all ma...

Excerpt: ...tion was untimely. The Court will exercise its' discretion and consider the late opposition. Merits of Motion: CCP S 428.50(b) provides the court with authority to grant leave to file a crosscomplaint in the interests of justice. The proposed cross-complaint for indemnity relates to the same parties and relates to the same issue arising from the slip and fall incident. The Court finds that allowing the filing of the cross-complaint would be in th...

Excerpt: ...f Motion: The Private Attorneys General Act of 2004 ("PAGA") is codified in Lab. Code SS 2698, et seq. In bringing a PAGA action, an aggrieved employee acts as the proxy or agent of state labor law enforcement agencies, representing the same legal right and interest as those agencies, in a proceeding that is designed to protect the public, not to benefit private parties. Villacres v. ABM Industries Inc. (2010) 189 Cal. App. 4th 562. The purpose o...

Excerpt: ...uest for Judicial Notice: GRANTED. Plaintiffs' Objections to Evidence: Plaintiffs have provided 8 objections. The objections are OVERRULED. Moton for Summary Judgment/Adjudication: CCP S 437c(c) states a motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. Summary adjudication is appropriate there is no me...

Excerpt: ...eglect was excusable, the "court inquires whether 'a reasonably prudent person under the same or similar circumstances might have made the same error." Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682. The burden is on the moving party to show that the neglect was excusable: i.e., that the default could not have been avoided through the exercise of ordinary care. Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. The moving party has the bu...

Excerpt: ...f $4,222.50. Merits of Motion: A Notce of Pendency of Action also known as a lis pendens can be recorded against real property that is subject to litigation. The lis pendens can be expunged (removed) during the pendency of the action if the pleading on which the notice is based does not contain a real property claim. CRC S 405.31. A real property claim in the context of lis pendens is defined as "the cause or causes of action in a pleading which ...

Excerpt: ... arbitration of Plaintiff's individual labor code and PAGA claims, to dismiss her class claims, and to stay her representative PAGA claim. The parties agree that Plaintiff signed a Mutual Agreement to Arbitrate on March 14, 2014 ("the Agreement"). Plaintiff contends the Agreement is superseded by Plaintiff's rejection of a subsequent arbitration agreement that was presented to her some time in 2018. Plaintiff also argues the Agreement is unconsci...

Excerpt: ...Real Party in Interest Robert J. Frank Construction, lnc ("RJF"). Plaintiff was the next lowest bidder and alleges that the RJF bid was nonresponsive due to what Plaintiff alleges is a material deviation between the Subcontractor List and the Certified DV8E Summary. Evidentiary Objections. Defendant's evidentiary objections are overruled. Merits of Motion. The standard for a preliminary injunction is set forth in CCP S 525 et seq. To obtain a pre...

Excerpt: ...a MyDung Quang, M.D., and Christine Bui, D.O: Defendants David Valencia, D.O., Alicia Cherice Ruth Daisley, M.D„ Angela My-Dung Quang M.D., and Christine aui, D.O. demur to the Second Amended Complaint pursuant to CCP SS 430.10(e) and (f). Plaintiff, Richard Morey, by and through his Successor-In Interest, Denise Morey opposes the Demurrer. Meet and confer. CCP S 430.41 requires the demurring party to "meet and confer in person or by telephone ...

Excerpt: ...r Judicial Notice. Pursuant to Evid. Code S 452(c), Defendant requests the Court take judicial notice of ten rulings from various state courts. The Court takes judicial notce pursuant to Evid. Code SS 452(d) and 453. Merits. As a preliminary matter, Defendant asserts that the Federal Arbitration Act applies. Plaintiff does challenge this assertion. Defendant has presented evidence of Defendant's participation in interstate commerce. The agreement...

Excerpt: ...ses 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 objections to be raised in the demurrer." The Declaration of Mark A. Muro, filed in support of the Demurrer, shows sufficient efforts made by Defendants to meet and confer...

Excerpt: ...rsuing wrongful death or survivor actions against the various defendants. On May 1, 2023, the Court denied a motion to compel arbitration that would have required the Plaintiffs associated with 4 of the 15 elderly decedents to proceed solely in arbitration. Defendants appealed that order which resulted in a stay of this proceeding as to the claims associated with the 4 out of the 15 elderly decedents. Based on the overlapping issues between the t...