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2024.06.13 Motion for Judgment on the Pleadings 648
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.06.13
Excerpt: ...x) have dismissed most of the causes of action in their Complaint against defendant Martin McCubbin (McCubbin). One cause of action arising out of a bar fight caused by McCubbin in October 2022 remains for each plaintiff. For plaintiff Wilson, only the third ca use of action for assault and battery remains. For plaintiff Press Box, only the sixth cause of action for private nuisance remains. Meet and Confer Before filing their amended motion fo...
2024.06.12 Demurrer, Motion to Strike 289
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.06.12
Excerpt: ...i xth, and eighth causes of action, with leave to amend. Plaintiff is granted 10 days' leave to file the First Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To overrule the demurrer to the ninth cause of action. As to defendant North Anna Gardens Homeowners Association No. 4, to sustain the demurrer to the second, third and sixth causes of action, with leav...
2024.06.06 Motion to Tax Costs 428
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.06.06
Excerpt: ...any action or proceeding.” “‘Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., § 1032, subd. (a)(4).) Here, plaintiffs were clearly the “prevailing party” in the litigation, as defen...
2024.06.06 Motion to Deem RFAs Admitted, Compel Initial Responses, for Interlocutory Judgment 258
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.06.06
Excerpt: ...Knight for an Order Compelling Initial Responses by Defendant Christopher S. Kelley on Form Interrogatories, Set One, and Special Interrogatories, Set One; and Request for Sanctions (4) by Plaintiff Amy L. Knight for Interlocutory Judgment To deny all of the disc overy motions. To deny the motion for interlocutory judgment, without prejudice. If oral argument is timely requested, such argument will be entertained on Friday, June 7, 2024, at 11:00...
2024.06.06 Motion for Approval of PAGA Settlement 227
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.06.06
Excerpt: ...violations of the Labor Code allegedly experienced individually, violations of California's Unfair Competition Law (Bus & Prof. Code § 17200, et seq.), and a representative PAGA action. The complaint's causes of action for Labor Code violations are not plead or brou ght as a class action. The parties reached a settlement of the PAGA claim for which they seek court approval. The court previously denied approval of the settlement on January 3, 202...
2024.06.05 Motion to Disqualify Counsel 148
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.06.05
Excerpt: ...ich is “subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549, citing Lab. Code, § 2699, subd. (l)(2) [“The superior court shall review and approve any settlem ent 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...
2024.06.05 Motion to Compel Initial Responses, for Sanctions 679
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.06.05
Excerpt: ...ich is “subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549, citing Lab. Code, § 2699, subd. (l)(2) [“The superior court shall review and approve any settlem ent 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...
2024.06.05 Motion for Attorney Fees 977
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.06.05
Excerpt: ...ich is “subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549, citing Lab. Code, § 2699, subd. (l)(2) [“The superior court shall review and approve any settlem ent 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...
2024.05.23 Motion for Terminating Sanctions 228
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.23
Excerpt: ... ion: Code of Civil Procedure section 2023.010, subdivision (g), makes “[d]isobeying a court order to provide discovery” a “misuse of the discovery process,” but sanctions are only authorized to the extent permitted by each discovery procedure. Once a moti on to compel answers is granted, continued failure to respond or inadequate answers may result in more severe sanctions, including evidence, issue or terminating sanctions, or further m...
2024.05.23 Motion for Attorney Fees and Prejudgment Interest 240
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.23
Excerpt: ...ure and mode of comp ensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties . . ..” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are "allowable as costs under Section 1032" when they are "authorized by" either "Contract," "Statute," or "Law." The Rental Agreement between the parties...
2024.05.23 Demurrer, Motion to Strike 837
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.23
Excerpt: ..., Inc. , shall file and serve a First Amended Complaint within 10 days of the date of service of this order by the clerk. All new allegations shall be in boldface. Explanation: Plaintiff FFF Enterprises, Inc. (“Plaintiff”) file an original Complaint stating four causes of action for: (1) breach of contract; (2) open book account; (3) account stated; and (4) quantum meruit based on the failure to pay for electrical components. Demurrer Defen...
2024.05.22 Motion for Attorney Fees 880
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ...der. If or al argument is timely requested, such argument will be entertained at 2:30 p.m. (rather than 3:30 p.m.). Explanation: A 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 t o 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 ...
2024.05.22 Motion for Approval of Settlement 618
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ...ill b e entertained at 2:30 p.m. (rather than 3:30 p.m.). Explanation: 1. Introduction “The superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted 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...
2024.05.22 Motion to Compel Arbitration and Stay Proceedings 568
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ...il Installment Sale Contract. To stay this action and the remaining claims against the remaining parties pending the completion of arbitration. If oral argument is timely requested, such argument will be entertained at 2:30 p.m. (rather than 3:30 p.m.). Explanati on: 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...
2024.05.22 Motion for Summary Judgment, Adjudication 468
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ... Contr eras. If oral argument is timely requested, such argument will be entertained at 2:30 p.m. (rather than 3:30 p.m.). Explanation: Evidentiary Objections Evidentiary objection numbers 1 through 3 and 5 through 7, wherein defendant objects to the articles and excerpts of various construction and building standards attached as exhibits to the declaration of Zachary M. Moore, PE, DFE, CXFT, are sustained for lack of foundation. In evidentiary o...
2024.05.22 Motion to Compel Arbitration 847
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ...rings a purp orted wage and hour class action against his former employer on behalf of himself and all others similarly situated. Defendant now seeks an order compelling plaintiff to private arbitration of his individual claims, and dismissal of the class claims. A tr ial court is required to grant a motion to compel arbitration “if it determines that an agreement to arbitrate the controversy exists.” (Code Civ. Proc., § 1281.2.) However, th...
2024.05.22 Motion to Enforce Settlement Agreement 279
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ...s i n the total amount of $2,499.90, payable within 10 days of the date of this order, with the time to run from the service of this minute order by the clerk. If oral argument is timely requested, such argument will be entertained at 2:30 p.m. (rather than 3: 30 p.m.). Explanation: Code of Civil Procedure section 664.6 provides, in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presen...
2024.05.21 Petition to Permit Late Claim 477
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.21
Excerpt: ... fails to file a timely claim, a “written application may be made to the public entity for leave to present such claim.” Plaintiff made such an application to the Fresno Housing Authority (“FHA”), but the application was denied. The court can only grant relief t o present a late claim if the application was made within a reasonable time not to exceed one year from the actual date of the cause of action. (Gov. Code, § 911.4, subd. (b).) ...
2024.05.21 Motion for Summary Judgment, Adjudication 879
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.21
Excerpt: ...) In movi ng for summary judgment, 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 … cannot be established, or that there is a complete defense to the cau se of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff Fresno Community Hospital and Medical Center, d/b/a Community Health System (“CMC”) alleges two causes o...
2024.05.21 Motion for Preferential Trial Setting 947
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.21
Excerpt: ...all g rant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., § 36, subd. (a), paragraph breaks omitted.) “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days fr...
2024.05.21 Demurrer 581
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.21
Excerpt: ...to the Com plaint filed August 25, 2023, plaintiff suffered personal injury on May 3, 2021. Accordingly, the two -year statute of limitations applies (Code Civ. Proc., § 335.1), and expired May 3, 2023. The Complaint clearly was not filed within two years of the injur y. “A demurrer on the ground of the bar of the statute of limitations lies where it “appear[s] clearly and affirmatively that, upon the face of the complaint, the right of ac...
2024.05.02 Motion for Summary Judgment, Adjudication 879
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.02
Excerpt: ...vice of the minute order, a proposed judgment consistent with the court's summary judgment order. The motion to modif y a protective order is off calendar, as no papers have been filed. Explanation: Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In moving for summary judgment, a “defendant … has m...
2024.05.02 Motion for Summary Judgment, Adjudication 348
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.02
Excerpt: ...ulting in injurie s (the "Incident"). The court denies defendant China Peak's motion for summary judgment or summary adjudication for the reasons stated below. Law Governing Summary Judgment A trial court shall grant summary judgment if there are no triable issues of mate rial fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c).) In determining a motion for summary judgment, the co...
2024.05.02 Motion for Reconsideration 888
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.02
Excerpt: ... not specifically denying the motion without prejudice. The ruling is hereby amended to reflect that plaintiff's first Motion for Order Permitting Pretrial Discovery Regarding Defendant Richard Pike's Profits and Financial Condition is denied without prejudice. P laintiff's second motion is now continued to Thursday, June 27, 2024, at 3:30 p.m. in Department 501. In ruling on the motion, the court will consider all evidence presented by plain...
2024.05.02 Motion for Attorney Fees, to Tax Costs 728
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.02
Excerpt: ...orney's Fe es: A 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...

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