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2020.08.18 Motion to Compel Further Responses 922
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.08.18
Excerpt: ...endants shall be produced as a further response to Request for Production 6. To deny the motion with regard to Special Interrogatories 1, 2, 3, 8, 14, and 17 and Requests for Production 9 and 10. Explanation: There are essentially two major issues raised by this motion: (1) whether plaintiff's assertion of Code of Civil Procedure section 2030.20 (“section 2030.20 election”) in response to Special Interrogatories (SROGs) 5, 8, 11, 14, 17, 24, ...
2020.08.18 Demurrer 950
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.08.18
Excerpt: ...s. This is not the basis for a special demurrer, but is a general demurrer for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) It will be treated as such, and will be dealt with first. The allegations concerning defendant Brix are sufficient to state a cause of action for medical negligence. Plaintiff has sufficiently alleged the duty element, in that an emergency room doctor making admi...
2020.08.12 Demurrer 552
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.08.12
Excerpt: ...wer to the complaint within 10 days of the date of service of this order. Explanation: Defendant demurs to plaintiffs' single cause of action for declaratory relief on the ground that it fails to state facts sufficient to constitute a cause of action. Under Code of Civil Procedure section 1060, “[a]ny person interested under a written instrument, . . . or under a contract, . . . may, in cases of actual controversy relating to the legal rights a...
2020.08.11 Motion for Judgment on the Pleadings 031
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.08.11
Excerpt: ...dicate that the instant matter was e‐filed on June 7, 2018. On June 11, 2018, plaintiff's counsel's office filed a second duplicate complaint, identical in every respect to the first case. The duplicate complaint was given case no. 18CECG02066, and the matter was assigned to Judge Hamilton and set for a case management conference on October 9, 2018. The second case was never served on defendant and defendant never appeared. Ultimately, the seco...
2020.08.06 Motion for Summary Judgment 719
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.08.06
Excerpt: ...arily possessed and exercised by members of the medical profession under similar circumstances. [Citations.] ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of...
2020.08.05 Motion for Approval of PAGA Settlement and Release 326
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.08.05
Excerpt: ...ut any invitation or permission from the court. While the court exercises its discretion to consider these materials for this hearing, the parties are reminded that they must seek leave of court to submit additional materials after a tentative is posted or in excess of the page limit permitted by the California Rules of court. 2. Is the Settlement Fair and Reasonable? “[A court must be] provided with basic information about the nature and magni...
2020.08.05 Demurrer 292
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.08.05
Excerpt: ...service of this order to file and serve a first amended answer providing ultimate facts supporting the respective affirmative defenses. Explanation: As an initial matter, plaintiff has not filed a demurrer as a separate document. All that is on file is the notice and the memorandum of points and authorities. This is a sufficient ground to overrule the demurrer. (Cal. Rules of Court, rule 3.1320; Witkin, Cal. Procedure (5th ed. 2020) Pleading, § ...
2020.08.04 Motion to Quash Deposition Subpoena 902
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.08.04
Excerpt: ...ant plaintiffs' request for monetary sanctions against defendants, in the amount of $2,175. Explanation: Defendants have not stated the statutory authority for their motion to quash the subpoenas. However, it appears that they are moving under Code of Civil Procedure sections 1985.3 and 1987.1. Under section 1985.3, “[a]ny consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this s...
2020.07.31 Petition to Compel Arbitration 310
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.31
Excerpt: ...C (“Boardwalk”). The action is stayed as to North Point and Boardwalk pending arbitration. Explanation: In moving to compel arbitration, defendants must prove by a preponderance of evidence the existence of the arbitration 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.). ...
2020.07.31 Motions to Tax Costs 654
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.31
Excerpt: ...y proceeding.” The losing party may dispute any or all of the items in the prevailing party's costs memorandum by a motion to strike 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 bur...
2020.07.31 Demurrer, Motion to Strike 550
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.31
Excerpt: ...0.10, subd. (e).) To grant the motion to strike the prayer for punitive damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: With regard to the first cause of action for elder abuse and neglect, plaintiffs have not alleged sufficient facts to state a claim. I...
2020.07.24 Demurrer, Motion to Strike 311
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.24
Excerpt: ...ve to amend will be granted as to the punitive damages allegations unless plaintiff's counsel requests oral argument and appears at the hearing with an offer as to how the complaint could effectively be amended. (Code Civ. Proc. § 436.) Defendant shall file its answer to the complaint within 10 days of service of the order by the clerk. Explanation: In this elder abuse action, the complaint alleges that, on January 11, 2019, decedent Martha Conn...
2020.07.24 Motion to Change Venue 620
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.24
Excerpt: ... section 395, “[e]xcept as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” (Code Civ. Proc., § 395, subd. (a).) Also, “[i]f the action is for injury to person or personal property or for death from wrongf...
2020.07.24 Motion to Compel Arbitration and Dismiss Complaint 111
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.24
Excerpt: ...ntiff's action until the arbitration is resolved. (Code Civ. Proc. § 1281.4.) Explanation: “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].'” (Market Ins. Corp. v. Integ...
2020.07.17 Motion to Quash Service of Summons, to Dismiss Action 401
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.17
Excerpt: ... and she has no contacts with the state. (F. Hoffman‐La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 795; Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, 1258.) Therefore, she concludes that the court must quash service of the summons and complaint on her, as well as dismiss the action. “California's long‐arm statute permits a court to exercise personal jurisdiction over a nonresident defendant to the full exte...
2020.07.17 Motion for Reconsideration of PAGA Settlement 071
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.17
Excerpt: ...granted plaintiffs' motion to approve the PAGA settlement in this case. The settlement agreement acknowledged that the treatment of wages as a penalty under PAGA was questionable. In fact, paragraph 4.3 of the settlement agreement states: “Defendants maintain providing wage payments to alleged aggrieved employees under PAGA is contrary to law but have agreed to this for settlement purposes only.” On September 12, 2019, the California Supreme ...
2020.07.17 Motion for Protective Order 216
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.17
Excerpt: ...d to treat it as such for purposes of discovery. The Court orders that paragraph 3 of the proposed order be stricken, as California courts are barred from finding materials to be confidential based on a stipulation of the parties. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130; Cal. Rules of Court, rule 2.550 et seq.) Further, “[c]ourt records are open to the public unless they are specifically exempted from disclosure by statute or are ...
2020.07.17 Demurrer 922
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.17
Excerpt: ...rrers to the tenth, twelfth, thirteenth, and fourteenth causes of action. Explanation: Breach of Fiduciary Duty (Third Cause of Action) A joint venture is an undertaking between two or more parties to carry out a joint business enterprise for profit. (James v. Herbert (1957) 149 Cal.App.2d 741, 748.) A joint venture exists when: (a) the parties have joint control over the enterprise, even though that control may be delegated; (b) the parties agre...
2020.07.17 Demurrer 052
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.17
Excerpt: ...e clerk of the minute order. Explanation:  Second Cause of Action: Bane Act Violations (Civ. Code, § 52.1) Defendant argues this claim is barred because it was not included in plaintiffs' prefiling claim under the Tort Claims Act. There is no dispute that a claim under the Bane Act is not exempt from the claim filing requirements. (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 764.) The issue is the sufficiency of the claim to allow pl...
2020.07.10 Petition to Compel Arbitration, Motion to Stay Proceedings Pending Outcome 129
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.10
Excerpt: ...tiff's allegedly late‐filed opposition, the objection is overruled. Plaintiff's opposition was timely filed nine court days before the continued hearing date, so it does not appear that the opposition was filed late under Code of Civil Procedure section 1005, subdivision (b). Even assuming that the opposition was late based on the earlier hearing date, defendant has forfeited the objection by filing a reply that addresses the merits of the oppo...
2020.07.10 Motion to Determine Prevailing Party on Contract, Fix Amount of Attorney's Fees 781
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.10
Excerpt: ... does not support the requested amount. Explanation: As an initial matter, to the extent that plaintiff seeks an order determining that it is the prevailing party on the contract action, such an order is unnecessary as the Court of Appeal has already determined that plaintiff is entitled to its attorney's fees on appeal as the prevailing party in the appeal. “Appellants do not challenge the trial court's award of attorney fees. The credit appli...
2020.07.10 Motion for Relief from Dismissal, for Sanctions 822
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.10
Excerpt: ...eave to amend. Because plaintiff's counsel had a habit of not responding to defense counsel's meet and confer requests, pursuant to Code of Civil Procedure section 430.41(c), the court ordered plaintiff's counsel to hold a conference of attorneys prior to filing an amended complaint. Defendant then moved to dismiss the complaint pursuant to Code of Civil Procedure section 581(f)(2) because plaintiff's counsel had not communicated with defense cou...
2020.06.26 Motion for Summary Judgment, Adjudication 882
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.06.26
Excerpt: ...n not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exist are to be resolved in favor of the party opposing summary judgment. (Barbe...
2020.06.26 Demurrer 929
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.06.26
Excerpt: ...dez and Hernandez Chiropractic Spinal Decompression, Inc. demur to the entire complaint on the ground that it is barred by the applicable statute of limitations, as they contend that plaintiff's claims accrued on September 26, 2016 when she was allegedly sexually assaulted by defendant Arthur Hernandez, and she did not file her complaint until October 23, 2018, more than two years after the assault. (See Code Civ. Proc. § 335.1 [establishing two...
2020.03.17 Motion for Approval of PAGA Settlement 792
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.17
Excerpt: ... wage statements in violation of Labor Code section 226(a), (2) failure to provide meal and rest periods or compensation in lieu thereof in violation of Labor Code sections 226.7 and 512, and (3) constructive discharge in violation of public policy. The second and third causes of action are individual causes of action for plaintiff only, and are not brought on behalf of other aggrieved employees. Because an aggrieved employee's action under the [...
2020.03.17 Motion for Summary Judgment, Adjudication 231
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.17
Excerpt: ...drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, trial courts usually follow a three‐step analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movan...
2020.03.17 Motion to Compel Responses, for Sanctions 520
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.17
Excerpt: ...d the requests for admission. To order monetary sanctions in the amount of $385, payable by plaintiff to defense counsel within 30 days of the date of service of this order. Explanation: Motion to Compel Responses to Interrogatories “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: [¶] (a) The party to whom the interrogatories are directed waives . . . any objection to the interrogato...
2020.03.12 Motion to Strike 221
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.12
Excerpt: ...f this minute order. Explanation: A motion to strike can be used to cut out any “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...
2020.03.12 Demurrer, Motion to Strike 582
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.12
Excerpt: .... (e), (f).) To grant defendants' motion to strike portions of the complaint, in part, and deny, in part, as discussed below. (Code Civ. Proc. §§ 435, 436.) To grant leave to amend. Plaintiff shall serve and file his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: Plaintiff has failed to allege any facts showing that he complied with the Government Tor...
2020.03.10 Motion to Declare Case Complex 249
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.10
Excerpt: ....) To deny the application of John C. Richter for admission to the bar of this court pro hac vice, without prejudice. (Cal. Rule of Court, rule 9.40, subd. (c).) To overrule the demurrer of defendant Independent Financing Services (“IFS”). (Code Civ. Proc. § 430.10, subd. (e).) To order defendant IFS to file and serve its answer to the first amended complaint within 10 days of the date of service of this order. Explanation: Complex Case Moti...
2020.03.10 Demurrer, Motion to Strike 078
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.10
Excerpt: ...ll have ten (10) court days from the date of service of the minute order in which to file a Third Amended Complaint. All new or additional allegations are to be set forth in boldface typeset. Explanation: Demurrer Defendant demurs to the second cause of action in the Second Amended Complaint for intentional infliction of emotional distress allegedly suffered by Plaintiff Brandon Griffith. The Court sustained a demurrer to the same cause of action...
2020.03.05 Motion for Determination of Attorney Fees and Costs Under Settlement Agreement 719
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.05
Excerpt: ... prevailing buyer in an action 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 tria...
2020.03.04 Motion to Strike 031
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.04
Excerpt: ...for Attorney Fees The allegations and prayers for attorney fees on the first four causes of action1 are clearly based only on the purchase agreement and thus only apply to defendant Owens, which plaintiff appears to acknowledge. Thus, the motion to strike as to these allegations/prayers is denied. On plaintiff's recent motion to amend, plaintiff moved to re‐add the prayer for attorney fees on the fifth and sixth causes of action, based on the �...
2020.03.04 Motion for Summary Judgment 228
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.04
Excerpt: ...d. (c).) A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff's causes of action, or shows that one or more elements of each cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) A moving defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Only when the initial burden ...
2020.03.04 Demurrer 031
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.04
Excerpt: ...hrust of Kerwin Jackson and KJ Worldwide Investments, Inc.'s (collectively, agent defendants) demurrer to the second amended complaint is that plaintiff's claims arise out of representations and warranties made in a sales transaction. They argue that they did not sign any of the disclosure documents. Their names do not appear on any of the contracts or disclosure documents, and they were not sellers of the property. They did not make any represen...
2020.03.03 Motion to Compel Further Responses 401
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.03
Excerpt: ... to what is intended regarding tolling on the form “Order on Request for Pretrial Discovery Conference” (Local Form TCV‐72 R10‐18). This form order was created in conjunction with Fresno County Superior Court Local Rule 2.1.17, which states: Filing a request for a Pretrial Discovery Conference tolls the time for filing a motion to compel discovery on the disputed issues for the number of days between the filing of the request and issuance...
2020.03.03 Motion for Summary Adjudication 520
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.03
Excerpt: ...sed judgment consistent with the court's order. Explanation: The court notes that all plaintiffs have dismissed the action against defendant David Hovannisian except plaintiff Juan Sagrero. The court therefore addresses the motion as it is directed to plaintiff Juan Sagrero only. Summary adjudication is the proper mechanism for challenging a particular, “cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty....
2020.02.27 Motion to Quash Service of Summons and Complaint 572
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.27
Excerpt: ... Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229.) Therefore, the statutory ground of this motion is that the court lacks jurisdiction over defendant. (Code Civ. Proc., § 418.10, subd. (a)(1).) Until proper service is made on a defendant, he is under no duty to respond in any way to a defectively served summons. This is so even if he has actual knowledge of the action. That knowledge does not dispense with statutory requirements for ...
2020.02.27 Petition to Compel Arbitration 541
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.27
Excerpt: ...mits an arbitration agreement, purportedly signed by plaintiff Carmon. The agreement is dated September 6, 2012, and is signed by plaintiff Carmon as decedent's “Legal Representative/Agent.” (Healy Dec., filed Nov. 18, 2019, at Ex. A.) Plaintiffs oppose on several bases. Notably, plaintiffs object to defendant's declaration in support of the petition. They argue that the arbitration agreement lacks foundation. Plaintiffs also argue that defen...
2020.02.26 Motion for Summary Judgment, Adjudication 199
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.26
Excerpt: ...e of April 20, 2020, is vacated, and the parties shall appear at a Case Management Conference on June 16, 2020, at 3:30 p.m., in Department 403 to determine trial readiness. Explanation: This motion largely rests on the court's prior order deeming certain Requests for Admissions (RFAs) as being admitted. Any matter admitted in response to an RFA is “conclusively established” against the party making the admission unless the court has permitte...
2020.02.25 Application for Default Judgment 402
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.25
Excerpt: ...for lack of evidence showing how the requested damages and interest were calculated. The matter was continued to allow plaintiff to submit additional evidence. Plaintiff has now submitted a supplemental declaration from its First Vice President, Paul Thaxter, regarding computation of the damages and interest. The declaration includes an attachment which shows the principal amounts, payments made, and interest on the debt. However, the attachment ...
2020.02.19 Motion for Summary Judgment, Adjudication 962
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.19
Excerpt: ...to the first through fourth causes of action only. A First Amended Complaint consistent with this ruling shall be filed and served within 10 days from the clerk's service of this minute order. New allegations shall be in boldface type font. The trial date, mandatory settlement conference, and trial readiness conferences are vacated. A status conference is set for March 26, 2020, at 3:30 p.m. in Department 503. Explanation: Initial Procedural Matt...
2020.02.19 Motion for Leave to File Complaint and to Bifurcate 100
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.19
Excerpt: ...otion for Leave to File Cross‐Complaint A defendant may cross‐complain against a third person not yet a party to the action where the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against [it] or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against [it].” (Code Civ. Proc. §428.1...
2020.02.05 Motion to Compel Arbitration and Stay Proceedings 441
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.05
Excerpt: ...tration of issues pertinent to the resolution of a claim under PAGA, Labor Code section 2699 et seq., the contract violates the public policy of the State of California. (ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175; Iskanian v. CLS Trans. Los Angeles, LLC (2014) 59 Cal.4th 348.) Defendants recognize this legal principle in seeking arbitration of causes of action other than those brought as a PAGA claim. A stay of PAGA claims until an arbitrat...
2020.02.05 Demurrer, Motion to Strike 011
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.05
Excerpt: ...iff shall file and serve a new amended complaint, to be titled “Fifth Amended Complaint” within 20 days of the clerk's service of this order. Explanation: Strike Fourth Amended Complaint Code of Civil Procedure section 436 provides, in relevant part, that “[u]pon motion, or at any time in its own discretion, a court may grant a motion to strike . . . all or any part of any pleading not drawn in conformity with the laws of this state, a cour...
2020.02.04 Motion to Set Aside Default 181
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.04
Excerpt: ...a party has appeared through an attorney, service of papers must be made on the attorney rather than the party. (Code Civ. Proc., § 1015.) Moving papers can be served by personal delivery, mail, express mail, “or another method of delivery providing for overnight delivery.” (Code Civ. Proc., §§ 1013, 1013a.) Proof of service is made by a declaration stating, among other requirements, the method of service used, the person(s) served and the...
2020.02.04 Demurrer 982
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.04
Excerpt: ...the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Except as otherwise provided by statute, “every action must be prosecuted in the name of the real party in interest . . . .” (Code Civ. Proc. § 367.) If “any person other than a real party in interest brings an action, it is subject to general demurrer. [Citations.]” (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 427.) “In gen...
2020.01.30 Demurrer, Motion to Amend Complaint 651
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.01.30
Excerpt: ... subd. (f) [uncertainty] and (g) [uncertain contract claim]. To sustain the demurrer to the second cause of action, without leave to amend. To grant the motion to amend in part, and deny in part: plaintiffs' request to reinstate their three causes of action based on violations of the California Labor Code is denied; plaintiffs' request to add allegations regarding the 2001 Employee handbook in order to support their breach of contract claim is gr...
2020.01.29 Motion for Attorney's Fees 011
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.01.29
Excerpt: ... the request for costs, defendant is clearly entitled to an award of its costs as the prevailing party in the action. (Code Civ. Proc. § 1032, subd. (b) [“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”].) Here, defendant has filed its memorandum of costs in the amount of $4,300.69, and plaintiff has not objected to the memorandum or moved t...
2020.01.23 Applications for Writ of Attachment, Writ of Possession 762
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.01.23
Excerpt: ...tiff shows (1) the basis of his claim and that the plaintiff is entitled to possession of the property claimed; (2) that the property is wrongfully detained by the defendant, the manner in which the defendant came into possession of the property, and (on information and belief) the reason for detention; (3) a particular description of the property and a statement of its value; and (4) the location of the property. (Code Civ. Proc., § 512.010.) 1...

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