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2021.04.29 Motion to Quash Service of Summons and Complaint 792
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.04.29
Excerpt: ...s that he has no minimum contacts with the State of California and there is therefore no basis for exercising jurisdiction over him. He alleges that he is a resident of Ohio, he has never lived or worked in California, and he does not do business in the state. He has no real estate or other property in California. He has never filed a lawsuit in California, or consented to its jurisdiction over him. (See Theken Decl., ¶¶ 2‐8.) He did not empl...
2021.04.29 Motion for Attorney Fees 227
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.04.29
Excerpt: ...served by May 20, 2021. Defendants shall file and serve any supplemental opposition by June 10, 2021. Explanation: Under Civil Code section 1717, subdivision (a), “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 ...
2021.04.27 Motion for Approval of PAGA Settlement 018
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.04.27
Excerpt: ...bmitted to the agency at the same time that 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 under PAGA. 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 settleme...
2021.04.22 Motion to Declare Vexatious Litigant, to Furnish Security, for Prefiling Order 351
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.04.22
Excerpt: ..., Rory Coetzee, Andrew Westover, Kayleigh Walsh, Raechelle Velarde, and the Law Firm of J. Hector Moreno, Jr. & Associates (“defendants”) to declare plaintiff Madhu Sameer (“plaintiff”) to be a vexatious litigant. (Code Civ. Proc., § 391.) To order plaintiff to post security of $250,000, within 30 days of the date of service of this order, in order to continue litigating the present action. (Code Civ. Proc., § 391.1.) This action is sta...
2021.04.21 Motion to Certify Class 039
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.04.21
Excerpt: ...numerous, and it is impracticable to bring them all before the court.' ‘[W]e have articulated clear requirements for the certification of a class' under this statute. ‘The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a welldefined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.'” (Noel v....
2021.04.13 Demurrer, Motion to Appoint Receiver, for Preliminary Injunction 922
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.04.13
Excerpt: ...ate facts sufficient to constitute a cause of action, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Defendant/crosscomplainant Pasquale De Santis shall serve and file his first amended cross‐complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. To deny plaintiff/cross‐defendant's motion for appointment of a receiver and motion for preliminary injunction. (Code Civ. Proc....
2021.04.08 Motion for Judgment on the Pleadings 717
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.04.08
Excerpt: ...nt RV Country, Inc.'s motion to reform the stipulation. To deny plaintiffs' motion for judgment on the pleadings. All objections are overruled. Explanation: Policy of Adjudicating Disputes on their Merits Adjudicating matters on their merits is preferable to seizing upon or taking advantage of an obvious error by an unsuspecting attorney. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 855 [“[T]he policy of the law is to have every litigated case trie...
2021.04.06 Petition to Approve Compromise of Pending Action 062
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.04.06
Excerpt: ...rtinez, and Cathy Ariana Martinez. Explanation: The court previously indicated that it intended to deny the petitions without prejudice, as it was not clear why some minors were receiving substantially more money than others, even though their injuries were very similar. The court also noted that two of the minors, Carlos and Esmeralda, did require treatment from doctors, but Esmeralda was receiving less than Carlos, even though Esmeralda appeare...
2021.04.06 Motion to Strike 597
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.04.06
Excerpt: ... [4AC] at paragraphs 35-43." The motion to strike these allegations in the general allegation section of the pleading is DENIED. The Court's demurrer order was directed to causes of action, not allegations. These eight paragraphs provide background in addition to describing the plaintiff's emotional state. Causes of action for negligent and intentional infliction of emotional distress have been removed from the pleading. (2) The District contends...
2021.04.06 Motion for Summary Judgment, Adjudication 882
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.04.06
Excerpt: ... plaintiff did not know the location of the accident site and that her use of a scooter within the subject park was forbidden by park rules, and this motion is focused more narrowly on the contention that the crack in the roadway which plaintiff maintains caused the accident was a trivial defect, rather than a dangerous condition of public property. Therefore, this second motion does not fall under the prohibition of repetitive summary judgment m...
2021.03.25 Motion to Compel Arbitration 302
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.03.25
Excerpt: ...ning of the contractual language and the circumstances under which the agreement was made (Civ. Code, §§ 1636, 1644, 1647).” (Rice v. Downs (2016) 248 Cal.App.4th 175, 186, internal quotations omitted.) The evidence shows that an entity named Sebastian Enterprises, Inc. agreed with plaintiff to arbitrate any disputes between them. That entity is not a defendant, and no dispute between plaintiff and it is shown. The evidence shows that plainti...
2021.03.18 Demurrer 452
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.03.18
Excerpt: ...4th 701, 706; Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747.) “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.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 42, fn. 7, citing Code Civ. Proc., § 452.) Defendants contend that the allegations of the first amended complaint require that...
2021.03.18 Demurrer 562
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.03.18
Excerpt: ... for Breach of Contract – Specific Performance Defendant demurs to the first cause of action on the grounds that it fails to state a claim upon which relief can be granted. (Code Civ. Proc., § 430.10, subd. (e).) Specifically, defendant contends that a contract for the sale of real property must be in writing under Civil Code section 1624, subdivision (a)(3), and thus plaintiff's cause of action to enforce an oral contract for the sale of real...
2021.03.11 Demurrer, Motion to Strike Punitive Damages 612
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.03.11
Excerpt: ...unitive Damages Allegations from Donald R. Levitt's Cross‐Complaint Tentative Ruling: To sustain cross‐defendants' general demurrer to the third and eighth causes of action, with leave to amend. (Code Civ. Proc., §430.10, subd. (e).) To overrule crossdefendants' general demurrer to the sixth and seventh causes of action. Crosscomplainant is granted 20 days, running from service of the minute order by the clerk, to file and serve a first amen...
2021.03.10 Motion for Summary Adjudication 651
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.03.10
Excerpt: ...ve simultaneous briefs on April 7, 2021 which address each of the nine (9) issues identified by the court in bold typeface below. The briefs shall not exceed 15 total pages (exclusive of tables of contents and authorities). Electronic service is permitted. Any requests to exceed this page limit must be brought ex parte pursuant to Fresno County Superior Court, Local Rule 2.72, and California Rules of Court, rules 3.1200 through 3.1207. Explanatio...
2021.03.09 Motion to Compel Arbitration, Stay Proceedings 401
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.03.09
Excerpt: ...arbitration under California Code of Civil Procedure section 1281.2 and the Federal Arbitration Act (“FAA”). “California courts traditionally have maintained a strong preference for arbitration as a speedy and inexpensive method of dispute resolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Marke...
2021.03.03 Motion to Strike FAC 720
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.03.03
Excerpt: ... answer to the first amended crosscomplaint within 10 days of the date of service of this order. Explanation: Plaintiff/cross‐ defendants AMP Trucking and Pannu have moved to strike portions of the cross‐complaint on the ground that the cross‐claims are partially or completely barred by the statutes of limitation that apply to each cross‐claim. However, a general demurrer is normally the correct procedure for challenging a cause of action...
2021.03.02 Demurrer, Motion to Strike 772
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.03.02
Excerpt: ...e demurrer of defendant National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) to the third cause of action with leave to amend. To overrule National Union's demurrer to the first and second causes of action. To grant National Union's motion to strike in its entirety, with leave to amend. Plaintiff is granted 30 days' leave to file a second amended complaint. The time in which the complaint can be filed will run from the d...
2021.03.02 Demurrer, Motion to Strike 513
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.03.02
Excerpt: ...ttorney's fees and costs. To grant the motion to strike the prayer for treble damages without leave to amend. Defendant Saint Agnes Medical Center shall file and serve an answer to the First Amended Complaint within 10 days of the clerk's service of this minute order. Explanation: Demurrer “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We al...
2021.02.26 Motion to Strike, to Augment Record 299
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.26
Excerpt: ...nce, as attached as “Appendix B” in the record presented by petitioner, was improperly excluded at the hearing before respondent, and to remand the case to be reconsidered in light of that evidence. To order the motion to strike off calendar as moot in light of the ruling on the motion to augment. Explanation: These motions both concern expense vouchers (called TECs) which were submitted to real party in interest California Department of Tran...
2021.02.25 Motion for Summary Adjudication 520
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.25
Excerpt: ...f no amended pleading is filed, defendant Miguel Torres, individually and doing business as ME Management Services (“defendant”) shall submit a proposed judgment consistent with this order. (Code Civ. Proc., § 438.) Explanation: In this case, defendant's motion for summary adjudication relies exclusively on the pleadings, rather than external affidavits or evidence. As such, it does not test the sufficiency of the evidence, but instead the s...
2021.02.23 Motion to Consolidate All Actions, Continue Trial 922
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.23
Excerpt: ... 19CECG01922 Tentative Ruling: To grant the motion to consolidate. Pietro De Santis v. Pasquale and Carmela De Santis, et al., Case No. 19CECG01922, is consolidated with Pasquale and Carmela De Santis as Trustees et al. v. Pietro De Santis, Case No. 19CECG04121, and Pietro De Santis v. Pat De Santis, Case No. 20CECG02264. A copy of this order shall be filed in each case. Pietro De Santis v. Pasquale and Carmela De Santis, et al., Case No. 19CECG0...
2021.02.18 Motion to Quash Service of Summons and Complaint 792
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.18
Excerpt: ...miss Action on the Ground of Inconvenient Forum Tentative Ruling: To grant the motion to quash service of the summons and complaint on defendants Theken Companies, LLC; Slice Mfg, LLC; e‐ Ceramics, LLC; and Theken Group, LLC. (Code Civ. Proc., § 418.10.) To deny the motion to quash service of the summons and complaint on defendant NextStep Arthropedix, LLC, and the alternative motion to stay or dismiss the action on the ground of inconvenient ...
2021.02.17 Motion to Confirm Sale of Real Property 742
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.17
Excerpt: ..., § 704.750.) Explanation: The court has already granted an order requiring defendants to pay plaintiff $10,711.50 for the receiver's work in carrying out the court's May 10, 2019 order, and ordering defendants to pay $33,065.97 for reasonable attorney's fees and costs incurred in the action. (See court's June 5, 2020 order.) The court also ordered plaintiff to record a lien against the subject property under Health and Safety Code section 17980...
2021.02.17 Motion for Summary Judgment, Adjudication, for Terminating Sanctions 651
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.17
Excerpt: ...hoe Regional Planning Agency v. King (1991) 233 Cal.App.3d 1365, 1375, fn 1.) Plaintiffs' Motion for Summary Judgment/Adjudication A plaintiff's motion for summary judgment asks the court to determine that there is no defense to the entire action. (Code Civ. Proc., § 437c, subd. (a).) In contrast, a motion for summary adjudication deals only with one cause of action within a complaint and is not granted unless it entirely disposes of the cause o...

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