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2021.02.05 Motion to Seal Court Records 039
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.05
Excerpt: ... seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” ...
2021.02.05 Motion to Quash Business Records Subpoenas 131
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.05
Excerpt: ...tion: “In civil litigation, discovery may be obtained from a nonparty only through a ‘deposition subpoena.' [Citation.]” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127; Code Civ. Proc., § 2020.010, subd. (b).) “Any person may serve the subpoena by personal delivery of a copy of it as follows: [¶] . . . [¶] (2) If the deponent is an organization, to any officer, director, custodian of records, or to any agent or employe...
2021.02.05 Motion to Compel Deposition, IME, Responses 852
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.05
Excerpt: ...intiff Ybarra (6) By defendant to compel independent medical examination of plaintiff Ybarra (7) By defendant to compel plaintiff Ybarra's responses to form interrogatories (set one) (8) By defendant to deem admitted requests for admission (set one) served on plaintiff Ybarra (9) By defendant to compel plaintiff Ybarra's responses to special interrogatories (set one (10) By defendant to compel plaintiff Ybarra's responses to request for productio...
2021.02.05 Motion for Summary Judgment 511
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.05
Excerpt: ...h the court's summary judgment order. Explanation: The only issue raised by this motion is whether or not plaintiff filed a written claim under the Government Claims Act (“Act”) prior to commencing this lawsuit, as required for a suit for money or damages against a public entity such as defendant.1 (Gov. Code, §§ 912.4, 945.4; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) The District contends that plaintiff did not do so,...
2021.02.05 Motion for Protective Order 751
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.05
Excerpt: ...outside of court. (Code Civ. Proc., §§ 2030.090, subd. (a), 2031.060, subd. (a), 2033.080, subd. (a).) The burden is on the party seeking the protective order to show “good cause” for whatever order is sought. (Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal.4th 245, 255; Stadish v. Sup.Ct. (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130; Code Civ. Proc., § 2033.080, subd. (b).) In addition, Fresno Superior Court Local Rule 2.1....
2021.02.05 Demurrer 011
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.02.05
Excerpt: ...breach of the implied warranty of habitability, negligence, intentional infliction of emotional distress, and nuisance. On March 16, 2020, defendant filed a demurrer and motion to strike. The general demurrer was limited to the fourth cause of action for intentional infliction of emotional distress. The court sustained the demurrer and granted the motion to strike with leave to amend. On September 17, 2020, plaintiff filed her Sixth Amended Compl...
2021.01.29 Motion to Compel Arbitration 892
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.29
Excerpt: ...ing resolution of the arbitration. (Code Civ. Proc., § 1281.4.) Explanation: Under the Federal Arbitration Act (“FAA”), “[a] written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist ...
2021.01.29 Demurrer, Motion to Strike 810
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.29
Excerpt: ...it after expiration of the time to amend. Explanation: Demurrer 1. First Cause of Action – Breach of Fiduciary Duty “The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty, (2) breach of the fiduciary duty, and 3) damage proximately caused by the breach.” (Tribeca Companies, LLC v. First American Title ins. Co. (2015) 239 Cal.App.4th 1088, 1114.) Here, it is the first element that is not suffic...
2021.01.29 Demurrer, Motion to Strike 682
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.29
Excerpt: ...menez, M.D. (“Dr. Jimenez”) demurs to the ninth cause of action for defamation as stated in the First Amended Complaint filed by plaintiffs Kelli Askew and Sean Askew. This cause of action alleges that while Ms. Askew was at the emergency room at Clovis Community Medical Center (CCMC) on February 24, 2019, with complaints of acute abdominal and severe rectal pain, she was subjected to sexual abuse and battery by co‐defendant David Lawrence ...
2021.01.29 Demurrer, Motion to Strike 360
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.29
Excerpt: ...Shackelford, Kristi Shafer individually and as the successor‐in‐interest to and on behalf of the Estate of Justin Vanmeter, and Sherry Guadarrama individually and as the successor‐in‐interest to and on behalf of the Estate of Serena Guadarrama. (Code Civ. Proc., § 436.) The grant of the motion to strike is without leave to amend. To sustain the demurrers to the first and second causes of action as to Veronica Lanuza and Natalie Crosbie, ...
2021.01.29 Demurrer 682
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.29
Excerpt: ...uses of action stated against him, namely the first (sexual battery, Civ. Code, § 1708.5), second (common law battery), fifth (intentional infliction of emotional distress), sixth (negligent infliction of emotional distress), and seventh (dependent adult abuse) by plaintiffs Kelli Askew and Sean Askew (“plaintiffs”). Sexual Battery, Civil Code Section 1708.5 (First Cause of Action) Dr. Collins argues that the first cause of action of the Fir...
2021.01.22 Motion for Joinder 751
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.22
Excerpt: ...oined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or o...
2021.01.22 Motion for Summary Judgment, Adjudication 210
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.22
Excerpt: ...he date of service of this order. Explanation: First, defendant Saint Agnes moves for summary adjudication as to the fourth cause of action for sexual harassment, which is based on a theory that Saint Agnes is vicariously liable for the alleged sexual battery committed by its employee, Victor Mendoza, during the course and scope of his employment. Under the holding of the California Supreme Court in Lisa M. v. Henry Mayo Newhall Memorial Hospital...
2021.01.22 Motion to Amend Judgment 119
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.22
Excerpt: ...Procedure section 177.5 for failure to obey this Court's August 6, 2020, September 16, 2020, and November 18, 2020 orders. Evan Selik and Cassandra Cita, or other representative from Simpluris, Inc., are required to appear personally at the order to show cause hearing. The clerk shall serve a copy of this ruling on Simpluris, Inc., Attention: Cassandra Cita, 3194 Airport Loop Drive, Suite C, Costa Mesa, California 93626. Explanation: Judgment was...
2021.01.15 Petition to Compel Arbitration 310
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.15
Excerpt: ...ration agreement and that the dispute is covered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐ 414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) ...
2021.01.15 Motion to Strike, to Augment Record 299
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.15
Excerpt: ...ceed 10 pages in the length, filed by Friday, January 29, 2021. The motions are continued to Friday, February 28, 2021, at 1:30 p.m., in Department 503, as is the writ of mandate briefing schedule hearing. Explanation: Code of Civil Procedure, section 1094.5, subdivision (e), provides as follows: Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly...
2021.01.15 Motion to Compel Arbitration 302
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.15
Excerpt: ...eaning of the contractual language and the circumstances under which the agreement was made (Civ.Code, sections 1636, 1644, 1647).” (Rice v. Downs (2016) 248 Cal.App.4th 175, 186.) 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 plaintiff was employed and paid...
2021.01.15 Motion for Summary Judgment, Adjudication 832
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.15
Excerpt: ...ainant Pollen Collection & Sales, Inc.'s (“PCS”) motion for summary judgment of plaintiff/cross‐defendant Miguel Duarte's (“Duarte”) complaint, as well as PCS's motion for summary judgment on its cross‐ complaint against Duarte. (Code Civ. Proc., § 437c.) PCS shall submit a proposed judgment consistent with this order within 10 days of service of the minute order. Explanation: PCS's Motion for Summary Judgment/Adjudication of Duarte'...
2021.01.15 Demurrer, Motion to Strike 550
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2021.01.15
Excerpt: ...deemed to be true, as it is “not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim. (Perkins v. Superi...
2020.12.18 Motion to Set Aside Default, Judgment 295
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.12.18
Excerpt: ...of this order. Explanation: Under Code of Civil Procedure section 473.5, “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (Code Civ. Proc., § 473.5, subd. (a).) “The notice of ...
2020.12.18 Motion to Compel Arbitration 610
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.12.18
Excerpt: ...eement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists . . . .” (Code of Civ. Proc., § 1281.2.) “Under this provision, a party to an agreement to arbitrate may not bring an action to compel specific performance of the arbitration provision until he or she can allege not only the existence of the a...
2020.12.18 Motion for Summary Judgment, Adjudication 461
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.12.18
Excerpt: ...ke the Supplemental Declaration of Abigail R. Leaf, filed on October 30, 2020. Explanation: The problems with the signatures of Dr. Peter Leeson and defense attorney Abigail Leaf's declaration, both of which were corrected with later‐filed errata, were minor and have been treated as such in ruling on plaintiffs' objections. The missing signature page on Dr. Leeson's declaration was corrected three days after the moving papers were filed. As for...
2020.12.18 Motion for Attorney's Fees 200
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.12.18
Excerpt: ...under the Song–Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to make an initial dete...
2020.12.18 Demurrer 142
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.12.18
Excerpt: ...es shall hold a telephonic or inperson conference pursuant to Code of Civil Procedure section 430.41, subdivision (c). With the amended complaint, plaintiff shall file a declaration detailing compliance with this requirement. Explanation: In this action, plaintiff asserts various claims arising from defendant Don Milligan's refusal to sell his tax and financial planning business to plaintiff pursuant to an oral and written agreement. Plaintiff al...
2020.12.10 Motion to Compel Answers, Deposition 751
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.12.10
Excerpt: ...ntos Marquez, and for sanctions; Defendant's motions to compel production of documents, set one, from plaintiffs Angel Santos Cortes, Adaneidy Marquez Del Angel, and George Aldahir Santos Marquez, and for sanctions; and Defendant's motions to compel plaintiffs' appearance at deposition, directed at plaintiffs Angel Santos Cortes, Adaneidy Marquez Del Angel, and George Aldahir Santos Marquez, and for sanctions Tentative Ruling: To grant all motion...
2020.12.08 Motion to Strike Punitive Damages 731
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.12.08
Excerpt: ...iles, Sears & Eanni, within 30 days of the clerk's mailing of the minute order. Explanation: Anti‐SLAPP Attorney Fees and Costs “Any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) The fee award is directed to the party, not the attorney. (Moore v. Kaufman (2010) 189 Cal.App.4th 604, 614.) Although attorney fees may be mandatory, “a partiall...
2020.12.08 Motion to Strike 222
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.12.08
Excerpt: ...punitive damages, and a prayer for such damages. All new allegations are to be set in boldface type. Any amended pleading shall be filed on or before January 12, 2021. Explanation: I. Punitive Damages The moving parties, defendants Ramon R. Romero and Ana Maria Romero,2 are alleged to be individuals who are also owners of the physical premises at issue, as well as members and managers of the limited liability company defendant. It is their relati...
2020.12.03 Motion to Amend, Demurrer 841
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.12.03
Excerpt: ...f calendar as moot, as permission to file a second amended complaint is granted. Oral argument for this matter is set on December 17, 2020, at 3:30 p.m., in Department 503. Plaintiff is ordered to appear through CourtCall. Explanation: Welfare and Institutions Code section 6600.08, subdivision (a) states, in pertinent part: “Coalinga State Hospital shall be used whenever a person is committed to a secure facility for mental health treatment pur...
2020.12.02 Motion for Summary Judgment, Adjudication 652
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.12.02
Excerpt: ... to show that plaintiff made statements in her deposition which contradicted the statements made in her declaration opposing this motion. This chiefly consisted of plaintiff's deposition responses to legal contention questions (e.g., “Were you ever subjected to any form of discrimination [or harassment, or retaliation] because of your gender?”). The court initially notes that new evidence is generally not considered on reply, especially where...
2020.11.18 Motion for Summary Judgment, Adjudication 210
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.11.18
Excerpt: ...urth cause of action for sexual harassment, which is based on a theory that Saint Agnes is vicariously liable for the alleged sexual battery committed by its employee, Victor Mendoza, during the course and scope of his employment. Under the holding of the California Supreme Court in Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, a hospital cannot be held liable for the intentional torts of its employee unless there is a ca...
2020.11.04 Demurrer, Motion to Strike 200
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.11.04
Excerpt: ...f Civ. Proc., §§ 435, 436.) Plaintiff is granted 10 days' leave to file the second amended complaint. The time in which the complaint can be amended will run from the date of service by the clerk of the minute order. New allegations in the second amended complaint are to be set in boldface type. Explanation: Demurrer The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (19...
2020.10.28 Motion to Quash Service of Summons, to Dismiss Action 329
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.10.28
Excerpt: ...nation: Motion to Quash Service of Summons A summons is issued by the clerk upon request by the plaintiff. (Code of Civ. Proc., § 412.10; Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1107.) Proper service of summons is required to establish personal jurisdiction over a party. (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547.) The plaintiff bears the burden to prove effective service where the defendant properly moves to quash service...
2020.10.28 Demurrer, Motion to Strike 249
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.10.28
Excerpt: ...answer to the second amended complaint within ten (10) days of the date of service of this order. Explanation: Demurrer: Defendant demurs generally and specially to the twenty‐eighth cause of action in the second amended complaint, contending that there are no facts alleged to show that defendant engaged in any unlawful, fraudulent, or unfair conduct, and that the entire cause of action is uncertain because it fails to allege which statutes or ...
2020.10.15 Motion for Bifurcation of Trial 502
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.10.15
Excerpt: ...may order a separate trial of any cause of action . . . .” (Code Civ. Proc., § 1048, subd. (b).) Also, Code of Civil Procedure section 598 provides: 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 conference in cases in which such pretrial c...
2020.10.15 Demurrer, Motion to Strike 541
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.10.15
Excerpt: ...ntiffs are granted 20 days' leave to file a second amended complaint. The time in which the complaint may be amended will run from service of the minute order by the clerk. All new allegations shall be in boldface type. Explanation: Demurrer “[T]he rule governing pleading in this state is that a plaintiff need only ‘set forth the ultimate facts constituting the cause of action, not the evidence by which [the] plaintiff proposes to prove those...
2020.10.14 Motion to Tax Costs 099
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.10.14
Excerpt: ...ke or tax costs. (See Cal. Rules of Court, rule 3.1700(b).) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Item 4 ...
2020.10.14 Motion for Preliminary Approval of Class Settlement 182
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.10.14
Excerpt: ...s, ascertainable class, (2) of a well‐defined community of interest, and (3) that certification will provide substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who ...
2020.10.08 Motion to Amend Judgment to Add Alter Egos as Judgment Debtors 062
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.10.08
Excerpt: ...tent with the ruling on this motion. Explanation: Judgment creditor (formerly plaintiff) Maricela Vazquez seeks to add three new names as judgment debtors on the judgment entered against Aimhigh Group, LLC (“Aimhigh”) on October 31, 2019: Manjit Singh, Sukhninder Singh, and R&S Diversified, Inc. (“R&S”). Although the opposition was very late‐filed, the court will consider it. The moving party objected to the lateness, but she nonetheles...
2020.10.07 Motion to Compel Arbitration, Stay Action 951
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.10.07
Excerpt: ...g arbitration. However, the court severs the confidentiality provision found in paragraph 6 of the Dispute Resolution Agreement, with the remaining provisions continuing in full force and effect. To overrule all of defendant's evidentiary objections. Explanation: When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine: (1) whether t...
2020.10.06 Motion for Summary Judgment, Adjudication 651
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.10.06
Excerpt: ...otherwise, the specific issue of the duty in question, as required by California Rules of Court, rule 3.1350(b) (“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, . . . issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”). Therefore, the court only addresses defendant's motion for sum...
2020.09.30 Motion to Quash Service of Summons, Dismiss Action 329
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.09.30
Excerpt: ...lanation: Motion to Quash Service of Summons A summons is issued by the clerk upon request by the plaintiff. (Code of Civ. Proc., § 412.10; Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1107.) Proper service of summons is required to establish personal jurisdiction over a party. (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547.) The plaintiff bears the burden to prove effective service where the defendant properly moves to quash servi...
2020.09.24 Motion to Compel Compliance with Subpoena, Request for Monetary Sanctions 419
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.09.24
Excerpt: ...Villalpando, in the amount of $735. (Code Civ. Proc. § 2025.480, subd. (j).) Explanation: If a nonparty disobeys a deposition subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (Code Civ. Proc., § 2025.480, subd. (b); see Unzipped Apparel, LLC v. Bader (2007) 156 CA4th 123, 127.) A nonparty opposing such motion without substantial j...
2020.09.17 Motion for Consolidation of Cases, for Compulsory Joinder of Minors 751
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.09.17
Excerpt: ...dwin, case number 18CECG01751, shall be the lead case. To deny defendant's motion for compulsory joinder of the minors. (Code Civ. Proc., § 389.) Explanation: Motion to Consolidate Cases Under Code of Civil Procedure section 1048, subdivision (a), "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the acti...
2020.09.17 Motion for Approval of PAGA Settlement 851
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.09.17
Excerpt: ...ng that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549; Lab. Code § 2699, subd. (l)(2) [“The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.”].) The court in O'Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F....
2020.09.16 Motion for Summary Judgment, Adjudication 227
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.09.16
Excerpt: ... 437c.) To deny defendants' motion for summary judgment, and the alternative motion for summary adjudication. (Ibid.) Explanation: Plaintiff's Motion for Summary Judgment/Adjudication Initially, to the extent plaintiff has moved for summary judgment or adjudication of its sole cause of action for judicial foreclosure, the motion is problematic because, as plaintiff admits, the Modoc parcel that constitutes the security for the loan has already be...
2020.09.03 Motion for Summary Adjudication 829
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.09.03
Excerpt: ...As that is the only cause of action asserted against Eduardo, plaintiff is entitled to judgment against Eduardo in the sum of $8,697,330.08, plus 10 percent interest (UMF No. 10), accruing at the rate of $2,382.83 per day. (Code Civ. Proc., § 437c.) Plaintiff shall submit a proposed judgment consistent with the court's summary adjudication order within five (5) days of service of the order by the clerk. Explanation: I. Relevant Facts Plaintiff i...
2020.09.01 Motion to Tax Costs 624
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.09.01
Excerpt: ...ntiff Nevarez. 2. Defendant Is the Prevailing Party Case law makes clear that dismissal under the five‐year statute does not affect prevailing party status under the catalyst theory. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553; Maria P. v. Riles (1987) 43 Cal.3d 1281.) However, the catalyst theory does require a showing that the party advancing it made reasonable attempts to settle the litigation before filing suit. (Tipton–Whittin...
2020.08.27 Motion for Class Certification and Preliminary Approval of Class Settlement 517
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.08.27
Excerpt: ...California requires admissible proof sufficient to meet the substantial evidence test. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470; Lockhead Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106.) Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well‐defined community of interest, and (3) that certification will provide substantial benefits to litigants and the courts, i.e.,...
2020.08.25 Motion for Summary Judgment, Adjudication 902
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.08.25
Excerpt: ...law.'” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713, quoting § 437c, subd. (c).) To prevail on a motion for summary judgment, it is the defendant's burden to prove there is a complete defense or that the plaintiff cannot establish one or more elements of each of his causes of action. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) To show that the plaintiff cannot establish his claims, the defendant may either (1) a...
2020.08.25 Motion for Summary Adjudication 292
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.08.25
Excerpt: ...espect to, in, over or upon property, . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross‐complaint in the superior court for a declaration of his or her rights and duties in the premises. . . . He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties...

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