Excerpt: ...ust be done within 20 days from the date of this order and any new allegations must be in bold print. If plaintiff does not file a second amended complaint within the allotted time period, defendant shall file an answer to the first amended complaint within 30 days from this order. Explanation: Demurrer to Cause of Action Three: Fraudulent Inducement ‐ Concealment Defendant demurs on the grounds that the first amended complaint's cause of actio...

Excerpt: ...f's pleading by raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against the demurrer, we treat the dem...

Excerpt: ...n for Terminating Sanctions Code of Civil Procedure section 2023.010 defines “misuses of the discovery process” as including, “failing to respond or submit to an authorized method of discovery” and “disobeying a court order to provide discovery.” (Code Civ. Proc. § 2030.010, subds. (d) & (g).) Code of Civil Procedure section 2023.030 states, in relevant part: To the extent authorized by the chapter governing any particular discovery ...

Excerpt: ...omplaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Second Cause of Action – Negligent Infliction of Emotional Distress (NIED) Defendants demur to plaintiff Naomi Hendrix's cause of action for negligent infliction of emotional distress (NIED) on the grounds that the second amended complaint (SAC) fails to allege facts sufficient to state a cause of action. Specifically, defendants contend that the...

Excerpt: ...National Carriers, Inc., is modified as follows: “Application for employment, including but not limited to documents received from prior employers excluding any personal financial or medical information of Michael Alexander Gomez, incident reports, driver training records, driver evaluations excluding Department of Transportation drug and alcohol test information, driver history, license history, and all documents regarding termination of emplo...

Excerpt: ...o cause of action three. To deny cross‐complainant Usman Javed's Motion for Summary Adjudication to the Cross‐Complaint. Explanation: A defendant moving for summary judgment meets its burden of showing that a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established. (Code Civ. Proc., § 437c; see also Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 286.) Here, de...

Excerpt: ...uant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure.” In addition, under Government Code section 53511, subdivision (a), “A local agency may bring an action to determine the validity of its bonds, warrants, contracts, obligations or evidences of indebtedness pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure.” Pursuant to Code of Civil Pro...

Excerpt: ...equests for Admission, Set 17, Admitted. Tentative Ruling: (1) To grant and award monetary sanctions in the amount of $1,290 against plaintiff Noe Luna and his attorney, L. Dean Smith, Jr., jointly and severally, payable within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. Plaintiff is ordered to serve further responses without objections to PLH Group, Inc.'s Special Interrogatories, S...

Excerpt: ...s. None are material to the outcome of the instant motion. (Code Civ. Proc., § 437c, sub. (q).) Explanation: A defendant moving for summary judgment meets its burden of showing that a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established. (Code Civ. Proc., § 437c; see also Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 286.) However, if a single triable issue o...

Excerpt: ...against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. Code of Civil Procedure section 473.5 states: (a...

Excerpt: ... “irrelevant, false or improper” matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166‐167.) Defendants claim that there are insufficient facts to support a claim ...

Excerpt: ...ollowing: [¶] (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross‐complaint [¶] (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him ….” (Code Civ. Proc., § 428.10, subd. (b); see also Newhall Land and Farming Co. v. McCarthy Const. (20...

Excerpt: ... any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: … When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc., § 639, subd. (a)(5).) �...

Excerpt: ...medy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that t...

Excerpt: ...y brief on this motion. If a hearing on this motion is necessary, the court will award an additional $350 in attorney fees. Costs on appeal are fixed in the total amount of $1,165.65, in accordance with the unopposed Memorandum of Costs on Appeal in the amount of $1,100.40 plus the filing fee of $65.25 associated with this motion. Explanation: An award of costs on appeal, as the appellate court awarded here, does not include an award of appellate...

Excerpt: ...endants' demurrer to the entire complaint, without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Defendants shall submit a judgment of dismissal within five days of the clerk's service of this minute order. Explanation: General Standard of Ruling In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University...

Excerpt: ...irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98; see Federal Arbitration Act (FAA)(9 U.S.C. § 1 et seq.).) Title 9 United States Code section 2 states that, “A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter a...

Excerpt: ...boldface. Explanation: Under Civil Code section 3294, in order to obtain punitive damages, plaintiff must allege ultimate facts showing that defendant acted with malice, fraud, or oppression. (Civil Code § 3294; Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316–317.) “Malice is defined as ‘conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and c...

Excerpt: ..., if necessary. (Code Civ. Proc. § 598, 1048, subd. (b).) Also, the punitive damage claim will be tried after the jury trial of the legal claims. (Civil Code § 3295, subd. (d).) Explanation: “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial ...

Excerpt: ...int are to be set in boldface type. Explanation: Second Cause of Action – Negligent Infliction of Emotional Distress (NIED) Defendants demur to plaintiff Naomi Hendrix's cause of action for negligent infliction of emotional distress (NIED) on the grounds that the first amended complaint (FAC) fails to allege facts sufficient to state a cause of action. Specifically, defendants contend that the FAC fails to plead sufficient facts to demonstrate ...

Excerpt: ... oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) In other words, a showing that the defendant's conduct was negligent, grossly negligent or even reckless is insufficien...

Excerpt: ...e monetary sanctions against plaintiff Pavitarjit Sihota and his attorneys of record, Fishman Larsen & Callister, in the amount of $ 2,775. (Code Civ. Proc., §§ 2033.290, subd. (c), 2031.310, subd. (h), 2030.300, subd. (d).) Sanctions in the amount of $925 must be paid to the Law Office of Emerson ∙ Church within 30 days after service of this order. Sanctions in the amount of $1,850 must also be paid to the Whelan Law Group within 30 days aft...

Excerpt: ...it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or standards for making the assessment. Published California case law has not done so either. However, the common practice when ruling on PAGA settlements is to follow existing law on class action settlemen...

Excerpt: ...y fees. The court finds the issue of temporal limitation could have been resolved without the need for the instant motion. Explanation: Defendant Doshier moves to quash the subpoena directed to Cintas dated October 23, 2020. He argues: (a) there is no “compelling interest” to justify disclosure of private records; (b) the subpoena is overbroad in time and scope; and (c) the subpoena seeks documents that are neither relevant nor reasonably cal...

Excerpt: ...ablishing the moving party's right to the relief sought. (Regents of Univ. of Calif. v. Superior Court (1996) 41 Cal.App.4th 1040, 1044.) Plaintiff re‐filed the motion, albeit narrower in scope, and again neglected to include the policy in the volume of evidence, only submitting it with a notice of errata after the opposition had already been filed. The court would let that omission slide except that many of the other exhibits are not properly ...