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2023.08.08 Demurrer, Motion to Strike 007
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.08
Excerpt: ... Plaintiff may file and serve a Second Amended Complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. To grant the moton to strike portions of the First Amended Complaint only as to the prayer for punt-ive damages, without leave to amend. To deny the motion to strike portions of the First Amended Complaint on all other grounds. Explanation: On June 30, 2022, plaintiff filed suit against defe...
2023.08.08 Demurrer to SACC, Motion to Strike 097
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.08
Excerpt: ...ice by the clerk of the minute order. All new allegations/language must be set in boldface type. To deny the motion to strike. Explanation: The express basis for the demurrer is that the Second Amended Cross-complaint fails to state facts constituting a cause of action, based upon Code of Civil Procedure section 431.10, subdivision (e). Plaintiffs also demurred for uncertainty to the second and third causes of action. The request for judicial not...
2023.08.03 Motion to Seal 508
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.03
Excerpt: ...ments are alleged to be confidential business records that contain proprietary information on defendant's operations. Defendant additionally notes that a prior court order for protection authorizes the filing of confidential information under seal. However, "[a] record must not be filed under 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. Ru...
2023.08.02 Motion to Vacate Judgment 028
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.02
Excerpt: ...ease agreement, or an assignee of the lease agreement. Thus, U.S. Bank National Association was not the real party in interest who had the right to sue on this claim. (Code Civ. Proc., S 367; Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 991 [noting that while the standing statute/requirement is "superficially concerned with procedural rules," application of the statute "really calls for a consideration of rights and obliga...
2023.08.02 Motion for Summary Judgment 467
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.02
Excerpt: ...efendants bear the burden of proving that there is a complete defense to each challenged cause of action or that plaintiff cannot establish one or more elements of each of its challenged causes of action. (Barber v. Marina Sailing, Inc. (1995) 35 Cal.App.4th 558, 562.) If that burden is met, plaintiff can defeat the motion by demonstrating a triable issue of material fact. (Martinez v. Enterprise Rent-Acar Co. (2004) 119 Cal.App.4th 46, 52-53.) I...
2023.08.02 Motion for Judgment on the Pleadings 679
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.02
Excerpt: ...action for fraud, the fifth cause of action for conspiracy, the sixth cause of achon for declaratory relief, and the seventh cause of action for unjust enrichment. She argues that plaintiff has not stated any valid claims against her because plaintiff admits in his Third Amended Complaint that the contract that he executed with the Brays to purchase the subject property was invalid because the Brays did not have the authority to sell the property...
2023.08.02 Demurrer to FAC 938
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.02
Excerpt: ...ate facts sufficient to constitute a cause of acton. To sustain defendant Saint Agnes Medical Center's demurrer, with leave to amend, for failure to state facts sufficient to constitute a cause of acton. To sustain defendant Sierra Pacific Orthopedics' demurrer, with leave to amend, for failure to state facts sufficient to constitute a cause of action. Plaintiff is granted 10 days' leave to file a Second Amended Complaint. The time to file such p...
2023.07.20 Motion to Compel Further Responses 879
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.20
Excerpt: ...ponses and for sanctons as to special interrogatories nos. 7, 9, 10, 16, 24, 27, 81, 88, 101, 102, 105, 107, 111, 112, 113, 135 and 188, form interrogatory 8.7, and request for production no. 8. After plaintiff CMC served supplemental responses on 11/14/22, the court continued the hearing and ordered the parties to meet and confer to resolve and narrow any remaining issues: "After an exchange of letters setting forth the parties' positions (with ...
2023.07.20 Motion for Summary Adjudication of FAC 879
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.20
Excerpt: ... within an action or one or more issues of duty, if the party contends that there is no affrmative defense to the cause of action, „ or that one or more defendants either owed a duty to the plaintiff (Code Civ. Proc., S 437c, subd. (f)(l).) Plaintiff Fresno Community Hospital and Medical Center, d/b/a Community Health System ("CMC") moves for summary adjudication of the first cause of action for breach of contract against Community Regional Med...
2023.07.20 Demurrer 938
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.20
Excerpt: ...y demur to the entirety of the Complaint of plaintiffs Julie Osborn and Carolyn Michelle Barnes, an individual and as trustee to the Homer R. Osborn Living Trust, UTD December 4, (together "plaintiffs"). Defendants further generally demur to the entirety of the Complaint for failure to state facts sufficient to constitute a cause of action. The Complaint states twelve causes of action: (1) financial elder abuse; (2) physical and emotional elder a...
2023.07.19 Motion to Transfer Venue and Recover Fees and Expenses 157
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.19
Excerpt: ...ept as otherwise provided by law and subject to the power of the court to transfer actions or proceed-ngs 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., S 395, subd. (a).) Also, "if a defendant has contracted to perform an obligation in a particular county, the superior court in the county ...
2023.07.18 Motion to Strike Punitive Damages 358
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.18
Excerpt: ... view to substantial justice between the parties. (Code Civ. Proc. S 452.) The allegations in the complaint are considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Mere legal conclusions of oppression, fraud or malice are insufficient to support punitive damages allegations and therefore may be stricken. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) However, if looking to the comp...
2023.07.18 Motion to Compel Arbitration and for Dismissal 470
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.18
Excerpt: ...tal filing shall be made no later than p.m. on October 24, 2023. Explanation: Plaintiff Kelly Roberts ("plaintiff") brings a single cause of action under PAGA on behalf of herself and all aggrieved employees under Labor Code secton 2698 et seq. Defendants Sally Beauty Holdings, Inc. and Beauty Systems Groups LLC (together "defendants") now seek an order compelling plaintiff to arbitrate her PAGA claim as an individual, and to dismiss the represen...
2023.07.11 Demurrer to FAC, Motion to Strike 818
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.11
Excerpt: ...rrer to the fourth cause of action. To grant the motion to strike. To grant leave to amend. Should plaintiff desire to amend, the Second Amended Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should plaintiff elect not to amend, demurring defendants shall file responsive pleadings within twenty (20) days from the date of this order. Explanation: The demurring defendants challe...
2023.06.29 Motion to Strike, Compel Responses, for Monetary Sanctions 348
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.29
Excerpt: ...rm Interrogatories (Set One); and 5) Imposing Monetary Sanctions Jointly Against All Defendants Tentatve Ruling: To grant plaintiff Huey Hodges, Jr.'s motion to strike Defendant Disaster Relief International, Inc.-DRI, Inc. ("DRI") from the Answer filed October 14, 2022. To find the motion to compel defendant DRI's responses to form interrogatories moot in light of striking defendant DRI from the Answer. To grant plaintiff's motons to compel resp...
2023.06.29 Motion to Compel Further Responses, for Monetary Sanctions 388
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.29
Excerpt: ...impose monetary sanctions in the sum of $3,210, to be paid by GM to plaintiffs' counsel within 20 days of service of the order by the clerk. Explanation: Plaintiffs move to compel further responses to production demand nos. 16-31, 33, 37-41 and 45-46. In response to these demands, GM served objections and stated that no documents would be produced. After the parties entered into a protective order, GM proceeded to produce a number of documents, b...
2023.06.29 Motion for Terminating Sanctions 370
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.29
Excerpt: ...tly and severally, in the amount of $660, payable to the Law Office of Amy R. Lovegren-Tipton, APLC within 30 days of the clerk's service of the minute order. Explanation: 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. S 2030.010, subds. (d) & (g).) Secton 2023...
2023.06.29 Motion for Attorney Fees 807
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.29
Excerpt: ...rticipation) motion is entitled to attorney fees. (Code Civ. Proc., S 425.16, subd. (c)(l).) Even where the plaintiff dismisses the action or part of the action prior to the hearing, courts have uniformly held that the trial court retains jurisdiction to award attorney fees against the plaintiff. (Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107.) A number of courts have held that the determinative question as to whether fees should be awarded...
2023.06.29 Demurrer to SAC 417
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.29
Excerpt: ...ithin 20 days of the clerk's service of this order. New or different allegations in a Third Amended Complaint are to be set in boldface type. To strike and overrule the demurrer by HSBC Bank, LISA and Mortgage Electronic Registration System. Explanation: Demurrer by Wells Fargo Bank, N.A. ("Wells Fargo") "To withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law." (Logan v. Southern Cal. Rapid Tr...
2023.06.16 Motion for Determination of Good Faith Settlement 487
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.16
Excerpt: ...g the following factors (evaluated as of the time of the settlement): 1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; 2) the amount paid in settlement; 3) a recognition that a settlor should pay less in settlement than if found liable after a trial; 4) the allocation of the settlement proceeds among plaintiffs; 5) the settlor's financial condition and insurance policy limits, if any; and 6) eviden...
2023.06.15 Motion for Leave to Amend Compalint 368
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.15
Excerpt: ...laremont Capital Partners, LLC dba Ocean Grown Extracts dba Evidence ("Claremont LLC"), and four new causes of action relating to these parties' interference with the business and contractual relations between plaintiff and defendant Latchkey Pioneers, LLC ("Pioneers"). Plaintiff has met the formalities required of a motion to amend the Complaint, and has given due notice to all appearing defendants. Motions for leave to amend pleadings are direc...
2023.06.15 Motion for Entry of Full Satisfaction of Judgment 179
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.15
Excerpt: ...creditor of a lesser sum in full satisfaction of the judgment." (Code Civ. Proc., S 724.010, subd. (a).) "For the purposes of subdivisions (b) and (c), the date a money judgment is satisfied in full or in part is the earliest of the following times: (2) The date satisfaction is tendered to the judgment creditor or deposited in court for the judgment creditor." (Code Civ. Proc., S 585.030, subd. (d)(2).) Upon satisfaction of the judgment, the judg...
2023.06.13 Demurrer, Motion to Strike 588
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.13
Excerpt: ... amend. (Code Civ. Proc. S 430.10, subd. (e).) To overrule the demurrer on all other grounds. (Code Civ. Proc. S 430.10, subd. (e),(f).) Plaintiff shall file and serve an amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: On August 22, 2022, plaintiff filed suit against defendants California Department of State Hospitals ("CDSH"), Robert Withrow, Brandon Price, Stanf...
2023.06.13 Demurrer, Motion to Strike FAC 098
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.13
Excerpt: ...tacking the same pleading, set to be heard over a month apart. In the interests of judicial economy, the court continued Dr. Montgomery's motions to be heard jointly with Dr. Smith's motion on June 13, 2023. Because plaintiff's counsel failed to cooperate with defendants' efforts to meet and confer in connection with their challenges to the original Complaint, on October 4, 2022, the court ordered: "In light of plaintiff's counsel's refusal to me...
2023.06.13 Motion for Attorney Fees 807
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.13
Excerpt: ... only the evidence on reply may be filed by plaintiff no later than on Friday, June 16, 2023, at 5:00 p.m. A response to plaintiff's briefing may be filed by PVB no later than on Thursday, June 22, 2023, at 5:00 p.m. Explanation: A defendant who prevails on an ant-SLAPP (Strategic Litigation Against Public Participation) motion is entitled to attorney fees. (Code Civ. Proc., S 425.16, subd. (c)(l).) Even where the plaintiff dismisses the action o...
2023.06.13 Motion for Leave to File Complaint 708
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.13
Excerpt: ...") for indemnity and declaratory relief, pursuant to Code of Civil Procedure section 426.50. Defendant contends that it seeks to state a claim against plaintiff for issues arising out of the same facts and incidents alleged by plaintiff in the first amended complaint. As defendant seeks to state a claim against plaintiff related to plaintiff's causes of action, the cross-complaint is compulsory. (Code Civ. Proc. S 426.30, subd. (a).) Where a prop...
2023.06.13 Motion for Preference in Trial Setting 248
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.13
Excerpt: ...ere preference is to be granted based on age, medical reasons, in the interests of justice, or based on time for trial. Here, plaintiff and cross-defendant are requesting preference based on the Code of Civil Procedure section 36, subdivision (a). Subdivision (a) provides: (a) A party to a civil acton who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:...
2023.06.06 Motions to Dismiss, Demurrer to FAC 998
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.06
Excerpt: ...o contnue the demurrer to June 28, 2023, at 3:30 p.m. in Department 501. The deadlines for opposition and reply papers will remain the same as for the original hearing date. Explanation: On 12/23/22, a motion to dismiss was filed by defendants Bank of America, N.A. (for itself and as successor by merger to BAC Home Loans Servicing, LP and Recontrust Company, N.A.), Mortgage Electronic Registration Systems, Inc., MERSCORP Holdings, lnc„ and The ...
2023.06.06 Motion to Discharge Stakeholder 818
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.06
Excerpt: ...y is certain, the motion may be renewed. To overrule the objections of Amazing Energy Partners, Inc. Explanation: Interpleader, Generally "When a person may be subject to conflicting claims for money or property, the person may bring an interpleader action to compel the claimants to litigate their claims among themselves." (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122.) "An interpleader action is an equitable proceeding. [Citatio...
2023.06.01 Petition to Relieve Petitioner from Claim Filing Requirement 470
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.01
Excerpt: ...iego (2020) 59 Cal.App.5th 63, 72.) Government Code section 911.2, subdivision (a), provides that such a claim is to be presented no later than six months after the accrual of the cause of action. (Gov. Code, S 911.2; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) The policy behind the requirement to file a timely claim is threefold, as it 1) gives the entity an opportunity to promptly remedy the condition, 2) allows the entity t...
2023.06.01 Motion for Good Faith Settlement Determination 447
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.01
Excerpt: ...s may be determined by the court to be in "good faith." If the court does so, this bars any other joint tortfeasor from any further claims against the settling defendant for equitable comparative contribution, equitable indemnity or comparative fault. (Code Civ. Proc„ S 877.6, subd. Tech-Bilt v. Woodward-Clyde & Associates ("Tech-Bilt") provided the following non-exclusive list of factors for the court to consider in determining the "good faith...
2023.05.31 Motion for Summary Judgment, Adjudication 157
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.31
Excerpt: ...over and CA Slover Trucking's motion for summary judgment. To grant defendants Slover and CA Slover Trucking, joined by defendants Freshko Produce Services, LLC and Barnes, motion for summary judgment of the Complaint. The prevailing parties are directed to submit to the court, within 5 days of service of the minute order, a proposed Judgment consistent with the court's summary judgment order. Explanation: Defendants Slover and CA Slover Trucking...
2023.05.25 Motion for Relief Under Code of Civil Procedure 068
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.25
Excerpt: ...rocedure section 473, subdivision (b). That statute provides that "[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken 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...
2023.05.25 Motion for Relief from Waiver of Objections 867
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.25
Excerpt: ...2031.300, subd. (a) [production of documents), 2033.280, subd. (a) [admissions].) Explanation: Defendant Ranthisi Rowel's discovery responses (Form Interrogatories, Requests for Admissions, Special Interrogatories, and Requests for Production of Documents, all Set One) were served three days late. Plaintiff had granted two extensions of time, with the final extension making the responses due on November 28, 2022. The responses were finalized on N...
2023.05.24 Motion for Summary Judgment 367
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.24
Excerpt: ...the merits of the issues, but merely discovers, through the medium of affdavits or declarations, whether there are issues to be tried and whether the parties possess evidence that demands the analysis of a trial. (Melamed v City of Long Beach (1993) 15 cal.App.4th 70, 76; Malko v Holy spirit Ass n (1988) 46 cal.3d 1092, 1107; Schwoerer v Union Oil Co. (1993) 14 Cal.App.4th 103, 110.) In short, the motion is not a substitute for a bench trial. A s...
2023.05.23 Motion for Summary Judgment 467
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.23
Excerpt: ..., and number 14 (last sentence), but to overrule the rest of these objections. As to defendant's evidentiary objections, to overrule numbers 1, 3, 4, 5, 6, 7 and 9, and to sustain numbers 2 and 8. Explanation: The parol evidence rule is not merely an evidentiary rule, but is a rule of substantive law. (Alling v. Universal Manufacturing Corp. (1992) 5 Cal.App.4th 1412, 1433.) It "generally prohibits the introduction of any extrinsic evidence, whet...
2023.05.23 Motion to Enforce Settlement Agreement, for Monetary Sanctions 568
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.23
Excerpt: ...oc., S 128.5.) To impose sanctions in the amount of $750 against defense counsel, David V. Roth, and his law firm, Manning & Kass, Ellrod, Ramirez, Trester LLP, pursuant to Code of Civil Procedure section 177.5 for failing to appear at the April 12, 2023, hearing in violation of a court order. Sanctions are due and payable to the court within 30 days of the date of this order, with the time to run from the service of this minute order by the cler...
2023.05.23 Motion to Transfer Action 598
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.23
Excerpt: ... (Code Civ. Proc. S 396b, subd. (b).) Explanation: This is an insurance bad faith achon in which plaintiffs sued two corporations and multiple individual defendants. No defendant resides in Fresno County, though the underlying auto accident occurred in Fresno County. Moving party's headquarters and principal place of business are in Orange County; Andrea Condrey resides in Orange County; Alexander Morales resides in Los Angeles County; Timothy St...
2023.05.11 Motion to Compel Initial Responses, for Monetary Sanctions 348
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.11
Excerpt: ...t One); and 5) for Monetary Sanctions Jointly Against All Defendants Tentative Ruling: To continue the hearing on the motions to Thursday, June 29, 2023, at 3:30 p.m. in Department 501, in order to allow the parties to meet and confer in person or by telephone, as required for the moton to strike. If this resolves the issues, plaintiff shall call the court to take the motion off calendar. If it does not resolve the issues, counsel for plaintiff s...
2023.05.11 Motion to Compel Further Responses 067
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.11
Excerpt: ...o deny all motions. Explanation: These motions were continued from April 11, 2023, because plaintiff's counsel had not attached to the motions defendants' discovery responses, which was necessary for the court to determine when and how the responses were served, and to determine if the responses were accurately stated in the Separate Statements for each motion. Plaintiff's counsel has now supplied the responses via three separate supplemental dec...
2023.05.11 Motion to Compel Arbitration and Dismiss or Stay Proceedings 287
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.11
Excerpt: ...e remaining civil proceedings are stayed pending the outcome of this arbitration motion. Explanation: Defendants Cerca Trova Steakhouse, LP., Cerca Trova Steakhouse, Inc., Cerca Trova Restaurant Concepts, Inc., T-Bird Restaurant Group, Inc., and Out West Restaurant Group, Inc. move for an order compelling arbitration under the Federal Arbitration Act, and request to dismiss, or alternatively, stay the action pending arbitration. Pursuant to the F...
2023.05.11 Demurrer to SAC 980
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.11
Excerpt: ...dants regarding breaches to a lease-option agreement of agricultural property. Plaintiff brings six causes of action: (1) breach of contract of lease of agricultural property; (2) breach of contract of purchase of a residence; (3) breach of implied covenant of good faith and fair dealing; (4) breach of implied contract related to agricultural property", (5) conversion related to sublease of agricultural property; and (6) intentional interference ...
2023.05.10 Motion to Strike Answer and Enter Default 548
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.10
Excerpt: ...nswer showing representation by a licensed attorney. Defendants' default may not be taken during the 14-day leave to amend period. The time in which the answer can be amended will run from service by the clerk of the minute order. Explanation: A California Corporation cannot represent itself in a court action. (Himmel v. City Council of Burlingame (1959) 169 Cal.App.2d 97; Paradise v. Nowlin (1948) 86 Cal.App.2d 897.) Instead, a corporation can a...
2023.05.10 Motion to Set Aside Default, Judgment 029
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.10
Excerpt: ... stating that defendant was served by personal service on 7/29/20 at 7:08 p.m. The POS describes the "person served" as "MOHAMED M. ALOADHI, an indivdual dba Coalinga Market, Middle Eastern, Male, Age: 50, Hair: Black ,Eyes: Brown, Height: 5'7", Weight: 170"." The POS states that defendant was served at 210 EAST ELM AVENUE, COALINGA, CA 93210, which was identified as defendant's "home". Defendant's default was entered on 9/3/20. The request for e...
2023.05.09 Motion for Final Approval of Class Settlement 227
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.05.09
Excerpt: ...t to Code of Civil Procedure section 384, subdivision (b), so that the judgment can be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed no later than April 17, 2024. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g), states: "Before final approval, the court must conduct an inquiry into the fairness of the proposed settlement." Sub...
2023.04.26 Motion to Disqualify Counsel 113
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.26
Excerpt: ...ial Notice All evidentiary objections to the Declaration of Leigh Ann Ruijters are sustained based on lack of foundation to support personal knowledge of the declarant. Code of Civil Procedure section 2009 generally authorizes the use of affidavits and declarations in motion proceedings, creating an exception to the hearsay rule and rendering them potentially admissible as evidence. However, declarations must still be based on personal knowledge ...
2023.04.25 Motion for Leave to Amend Complaint 184
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.25
Excerpt: ...nitive damages allegations against defendants pursuant to Code of Civil Procedure section 425.13. Code of Civil Procedure section 425.13, subdivision (a), prov-des, In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to ...
2023.04.25 Application to Appear Pro Hac Vice 076
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.25
Excerpt: ...sel of record are reminded that "[al person permitted to appear as counsel pro hac vice under [California Rules of Court, rule 9.40] is subject to the jurisdiction of the courts of this state with respect to the law of this state governing the conduct of attorneys to the same extent as a licensee of the State Bar of California. The counsel pro hac vice must familiarize himself or herself and comply with the standards of professional conduct requi...
2023.04.19 Demurrer, Motion to Strike FAC 389
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.19
Excerpt: ..., sixth and eighth causes of action. To overrule the demurrer for uncertainty. (Code Civ. Proc. S 430.10, (f).) To deny the motion to strike the allegations for punitive damages in paragraphs 79 and 96. The moton to strike paragraph 85 from the second cause of action is moot in light of the ruling sustaining the demurrer to the second cause of action. Plaintiff may file and serve a Second Amended Complaint. Such must be done within 10 days of the...
2023.04.18 Demurrer to FAC, Motion for Judgment on the Pleadings 879
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.18
Excerpt: ...sciences Institute, Inc. ("UNI"), and Joyce Fields-Keene (collectively, "CCFMG Defendants"). (Code Civ. Proc„ S 430.10, subd. (e).) To deny Scott Wells' motion for judgment on the pleadings as to the fourth cause of action. To grant his motion for judgment on the pleadings as to the third cause of action, with plaintiff granted 10 days' leave to file a Second Amended Complaint. The time in which such amended pleading may be filed will run from ...
2023.04.18 Motion to Bifurcate 007
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.18
Excerpt: ...issue or any part thereof shall precede the trial of any other issue or any part thereof in the case...." (Code Civ. Proc„ S 598.) Similarly, Code of Civil Procedure section 1048 provides that "[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expediton and economy, may order a separate trial of any cause of acton...or of any separate issue or of any number of causes of action or issu...
2023.04.18 Motion to Compel Further Responses 668
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.18
Excerpt: ...f's moton to compel further responses to request number 30. Defendant Kings Canpn Unified School District ("the District") shall provide further responses and produce all relevant documents in substantial compliance with Code of Civil Procedure sections 2031.210, 2031.220 and 2031.240, within 30 days of service of the order by the clerk. Explanation: Under Code of Civil Procedure, section 2025.450, subdivision (a), If, after service of a depositi...
2023.04.13 Motion to Compel Responses 007
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.13
Excerpt: ... no later than 20 days from the date of this order, with time to run from the service of this minute order by the clerk. Monetary sanctions in the amount of $510 are ordered in favor of judgment creditor and against judgment debtor. Monetary sanctions are to be paid to Campagne & Campagne, A Professional Corporation, no later than 30 days from the date of service of the minute order by the clerk. Explanation: On February 4, 2022, default judgment...
2023.04.13 Demurrer 058
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.13
Excerpt: ... (APEC). Plaintiff is granted 10 days leave to file a First Amended Cross-complaint, which will run from service by the clerk of the minute order. New language must be set in boldface type. Explanation: Background This action is about a dispute between a general contractor (APEC) and its subcontractor (SLM) over money. After plaintiff SLM filed a Complaint against defendants APEC and American Contractors Indemnity Company over a contractual dispu...
2023.04.12 Motion to Strike Portions of FAC 267
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.12
Excerpt: ...amend, the plaintiff may amend his or her complaint only as authorized by the court's order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend." (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023, citations omitted.) "It is the rule that when a trial court sustains a demurrer wi...
2023.04.12 Demurrer 148
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.12
Excerpt: ...ch pleading will run from service by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Plaintiff is a California non-profit public benefit corporation. To further plaintiff's mission, it provided Santé Health Foundation ("SHF")I with grant funding to stabilize and enhance the delivery of primary care and specialty physician care in the San Joaquin Valley. Plaintiff alleges that the gr...
2023.04.11 Motion to Compel Further Responses 067
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.11
Excerpt: ...rther Responses from Defendants to Requests for Admission, Set One Tentative Ruling: To deny the motion regarding Requests for Admission. To continue the remaining motions to Thursday, May 11, 2023, at 3:30 p.m. in Department 501, to allow plaintiffs counsel to file a supplemental declaration attaching defendants' responses served December 2, 2022, which must be filed no later than May 1, 2023. Explanation: Responses Must Be Attached to Supportin...
2023.04.11 Motion to Compel Arbitration and Stay Action 798
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.11
Excerpt: ...asis of the Complaint for damages. Plaintiff brought four causes of action against defendant Nissan North America, Inc., for negligent repair and failure to replace the vehicle. All of the causes of action against defendant comprise alleged breaches of Civil Code, section 1790 et seq. regarding consumer warranties, and fraud by omission that defendant was aware of the various defects to the vehicle but concealed the defects from plaintiff, who wo...
2023.04.11 Motion for Reconsideration, to Compel Arbitration 790
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.11
Excerpt: ...y the pending court proceed-ngs until the arbitration is resolved. (Code Civ. Proc. S 1281.4.) To stay plaintiff's representative PAGA claims pending resolution of the arbitration. Explanation: Under Code of Civil Procedure section 1008, subdivision (a), a party moving for reconsideration of a court order must show that there are "new or different facts, circumstances, or law" that justify reconsideration of the order. (Code Civ. Proc. S 1008, su...
2023.04.04 Motion to Dismiss Action 478
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.04
Excerpt: ...planation: "An action shall be brought to trial within five years after the action is commenced against the defendant." (Code Civ. Proc., S 583.310.) "An action shall be dismissed by the court on its own motion or on moton of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article." Civ. Proc„ S 583.350, subd. (a).) "The requirements of this article are mandatory and are not s...
2023.04.04 Motion for Court Judgment 658
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.04.04
Excerpt: ..., either through adverse possession, or easement by prescription. The action further seeks declaratory relief regarding the rights and duties of the parties as to the Property. The defaults of each ofthe defendants were previously entered except: (1) the County of Fresno, who has consented to judgment subject to certain reservations; and (2) the DOE defendants remain. The court initially notes that plaintiff's application and proposed judgment fa...
2023.03.29 Motion for Summary Judgment, for Leave to File FAC 167
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.29
Excerpt: ... "shall not include a cause of action under the Song—Beverly Consumer Warranty Act." (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 929; Code Civ. Proc„ S 473, subd. (a)(l) ["The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend . " Emphasis added.]) The First Amended Complaint shall be filed within ten (10) days from the date of this order. New or different allegations in the First Amended...
2023.03.29 Demurrer to Amended Complaint 106
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.29
Excerpt: ...t whom a cause of achon is brought. The Sixth Amended Complaint may be filed within 10 days of service of the order by the clerk. All new allegations shall be in boldface type. Explanation: Judicial Notice It is "well settled" that the court is authorized to consider matters which may be judicially noticed when determining whether a complaint is suffcient to survive a demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Code Civ. Proc. S 430.30,...
2023.03.23 Demurrer 080
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.23
Excerpt: ...will run from service by the clerk of the minute order. Explanation: Demurrer Generally The function of a demurrer is to test the sufficiency of a plaintiff'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 hi...
2023.03.23 Motion for Summary Judgment, Adjudication 277
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.23
Excerpt: ...infliction of emotional distressl causes of action. 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., S 437c, subd. In moving 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 b...
2023.03.22 Motion to Consolidate 757
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.22
Excerpt: ...deny the motion to consolidate without prejudice. Explanation: Court's Motion to Strike Code of Civil Procedure section 436 provides, in relevant part, "... at any time in its own discretion, a court may granta motion to strike all or any part of any pleading not drawn in conformity with the laws of this state, a court rule, or an order of the court." Code of Civil Procedure section 472 allows that, "[al party may amend its pleading once without ...
2023.03.22 Motion for Summary Judgment, Adjudication 467
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.22
Excerpt: ...st Ms. Lo in the first through fifth causes of action are solely based on the allegation that Ms. Lo aided or abetted Dr. Vang in sexually assaulting her. (Complaint, "1 31, 37, 43, 50 and 58.) There is no allegation that Ms. Lo personally participated in the sexual assault, which was allegedly committed by Dr. Vang while he was alone with plaintiff in an examination room. (ld. at 7-19.) The only allegations of the Complaint that identify Lo spec...
2023.03.22 Motion for Judgment on the Pleadings 737
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.22
Excerpt: ...wer. The Third Amended Answer shall be filed within thirty (30) days from the date of this order. (Code Civ. Proc., S 437, subd. The new amendments shall be in bold print. Explanation: "[A1 motion for judgment on the pleadings is the functional equivalent of a general demurrer[,]" - particularly when time calculations are involved. (See People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 582, 591-692.) As with the standards applicable to demurr...
2023.03.21 Motion to Enforce Settlement 118
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.21
Excerpt: ...on: On July 11, 2022, plaintiffs La Daga Investments, LLC and Chure, LLC filed a complaint against defendant Noe Martnez. Rene Esquivel is not a party in the complaint, but he is described as the managing member of both plaintiff entities and the brother-inlaw and friend of defendant. At no point has the acton been amended to include Mr. Esquivel as a party. Code of Civil Procedure section 664.6 provides, in relevant part: If parties to pending l...
2023.03.21 Motion for Final Approval of Class Settlement, for Attorney Fees 480
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.21
Excerpt: ...lass counsel will breach the fiduciary obligations they owe to the absent class members. As a result, such agreements must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court's approval as fair." (Koby v. ARS National Services, nc. (9th Cir. 2017) 846 F. 3d 1071, 1079.) "[lln the final analysis it is the Court that bears the resp...
2023.03.21 Demurrer, Motion to Strike 007
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.21
Excerpt: ...urth causes of action, with leave to amend. To sustain the demurrer to the fifth cause of action, without leave to amend. Plaintiff shall serve and file a First Amended Complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: On June 30, 2022, plaintiff filed suit against defendants California Department of State Hospitals ("CDSH"), Robert Withrow and Brandon Price for five causes...
2023.03.16 Demurrer to SAC, Motion to Strike 118
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.16
Excerpt: ...laint within 20 days of service of the order by the clerk. To deny the moton to strike except as it relates to plaintiffs' claim for relief under Code of Civil Procedure section 1021.4, as to Community Hospital of Central California only. Explanation: In deciding a demurrer, the test is whether the plaintiff has succeeded in stating a cause of action - the court does not concern itself with the issue of plaintiff's possible difficulty or inabilit...
2023.03.14 Motion for Summary Judgment, Adjudication of Issues 868
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.14
Excerpt: ...od moves for summary judgment, contending that it owed no duty to plaintiff and thus it cannot held liable for negligence. "To establish a cause of action for negligence, the plaintiff must show that the 'defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.' Recovery for negligence depends as a threshold matter on the existence of a legal duty of care." (Br...
2023.03.14 Motion for Summary Adjudication 017
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.14
Excerpt: ...y of the events leading up to this continuation is as follows: On June 30, 2022, defendant filed a demurrer to plaintiff's original Complaint on the grounds that it failed to state facts sufficient to constitute a cause of action. On August 24, 2022, plaintiff filed the instant motion for summary adjudication and the hearing was originally set for January 25, 2023. On January 18, 2023, the court issued its adopted tentative ruling sustaining the ...
2023.03.09 Petition to Confirm Arbitration Award 068
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.09
Excerpt: ... has made may petition the court to confirm, correct or vacate the award." (Code Civ. Proc., S 1285.) "A response to a petition under this chapter may request the court to dismiss the petition or to confirm, correct or vacate the award." (Code Civ. Proc„ S 1285.2.) "If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordan...
2023.03.07 Demurrer, Motion to Strike 818
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.07
Excerpt: ...rth, fifth and sixth causes of action with leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) Plaintiff is granted 20 days' leave to file a Second Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To find moot defendant Fresno Unified School district's demurrer to the eighth cause of action. Explanation: Motion to Strike “It is the rule that when a trial ...
2023.03.07 Motion to Compel Arbitration and Stay Proceedings 389
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.07
Excerpt: ...ansaction, plaintiff signed a Retail Installment Sales Contract (“RISC”) which contained an arbitration clause. Problems with the vehicle ensued, and this “lemon law” action was filed on February 4, 2022, against Nissan only. The Complaint alleges the following causes of action: (1) Violation of the Song-Beverly Act – Breach of Express Warranty; (2) Violation of the Song-Beverly Act – Breach of Implied Warranty; (3) Violation of the S...
2023.03.07 Motion for Determination of Good Faith Settlement 238
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.07
Excerpt: ... of Civil Procedure section 877.6, “[a]ny party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co- obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877...
2023.03.02 Motion for Default Judgment 547
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.02
Excerpt: ...0, naming all defaulted defendants, and dismissing the Doe defendants by March 2, 2023, at 10:00 a.m. Explanation: The quiet title statutes require a hearing to be held before a default judgment is entered: The court shall examine into and determine the plaintiff's title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff's title and hear such evidence as may...
2023.03.01 Motion for Summary Judgment, Adjudication 879
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.01
Excerpt: ...§ 437c, subd. (c).) In moving 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 cause of action.” (§ 437c, subd. (p)(2).) If the defendant does not meet that burden, the motion must be denied, even if the plaintiff has not opposed it adequa...
2023.03.01 Motion for Summary Judgment, Adjudication 007
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.03.01
Excerpt: ...endants”) jointly move for summary judgment of plaintiff Elidia Salinas' (“plaintiff”) Complaint, which states three causes of action: (1) medical negligence; (2) lack of informed consent; and (3) battery. Following plaintiff's opposition papers, defendants withdrew their contest of the first cause of action for medical negligence for both breach of duty and causation. Because at least the first cause of action for medical negligence remain...
2023.02.28 Demurrer to FAC 688
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.02.28
Excerpt: ...) A Second Amended Complaint may be filed within 10 days of service of the order by the clerk. All new allegations shall be in boldface type. Explanation: Plaintiffs Larry and Johnathan Norton essentially allege that they were duped into investing in a Ponzi scheme run by defendant Richard Ramirez and JMJ Capital Group. They were encouraged to invest in the scheme by defendant Steve Hirata. The First Amended Complaint (the FAC) alleges the follow...
2023.02.09 Motion for Preliminary Approval of Class Action Settlement 817
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.02.09
Excerpt: ...represents a reasonable compromise, given the magnitude and apparent merit of the claims being released, discounted by the risks and expenses of attempting to establish and collect on those claims by pursuing litigation. The court has a fiduciary responsibility as guardians of the rights of the absentee class members when deciding whether to approve a settlement agreement . . . The courts are supposed to be the guardians of the class.” (Kullar ...
2023.02.07 Motion to Strike FAC 718
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.02.07
Excerpt: ...f the minute order. All new allegations in the Second Amended Complaint are to be set in boldface type. Explanation: In relevant part, Code of Civil Procedure section 436 empowers the court to (a) strike out any irrelevant, false, or improper matter inserted in any pleading, and (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state. Civil Code section 3294 allows for the recovery of punitive d...
2023.02.07 Motion to Compel Further Responses 628
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.02.07
Excerpt: ... the order by the clerk. Explanation: Notwithstanding defendant's protestation, it appears that plaintiffs' counsel engaged in adequate and good faith meet and confer efforts prior to bring this motion. Plaintiffs' counsel exchanged multiple meet and confer letters with defense counsel about the disputed responses in May 2022 after receiving defendant's responses and objections to the subject discovery. Plaintiffs' counsel made several attempts t...
2023.02.01 Motion to Set Aside Default 688
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.02.01
Excerpt: ...is a suspended corporation and thus has no right to appear in the action or move to set aside the default. (Corp. Code § 2205; Palm Valley Homeowners Assn. v. Design MTC (2000) 85 Cal.App.4th 553, 560; Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th 1361, 1365‐1366.) The court intends to take judicial notice of the California Secretary of State's website, which shows that Midline is a suspended corporation. The court intends to deny the ...
2023.02.01 Motion for Attorney Fees 448
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.02.01
Excerpt: ...nation: 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 “requires...
2023.01.31 Motion for Terminating Sanctions 628
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.31
Excerpt: ... submit to an authorized method of discovery and disobeying court orders to provide discovery. The action will be dismissed as to defendants Zaid Altahan and K&K Home, LLC. (Code Civ. Proc. § 2023.030, subd. (d)(3).) Explanation: Requests for Production of Documents, as well as Form and Special Interrogatories, were served by defendants Zaid Altahan and K&K Home, LLC, on plaintiffs in September 2021. Because plaintiffs never served responses, mo...
2023.01.26 Motion to Strike, to Consolidate 757
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.26
Excerpt: ...n. To deny the motion to consolidate without prejudice. Explanation: Court's Motion to Strike Code of Civil Procedure section 436 provides, in relevant part, “… 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 court rule, or an order of the court.” Code of Civil Procedure section 472 allows that, “[a] party may amend its plead...
2023.01.24 Motions to Dismiss 679
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.24
Excerpt: ...efendants' Motion to Dismiss: David Bray, Jr., and Dawn Bray move to dismiss the action against them as well as the claims against David Bray, Sr., and Robert Bray, under both the five‐year mandatory dismissal statute, Code of Civil Procedure section 583.310, and the discretionary statute for failure to prosecute the action diligently, Code of Civil Procedure sections 583.410 and 583.420. Under section 583.310, “[a]n action shall be brought t...
2023.01.24 Motion to Compromise Minor's Claim 027
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.24
Excerpt: ...) the request that petitioner be allowed to deposit the money in a custodial account under the California Uniform Transfers to Minors Act (“CUTMA”) and 2) the request for $5,000 of the settlement to go to petitioner. While CUTMA accounts are often used by private parties as a means of giving gifts to minors, it is extremely uncommon for the court to order this in a minor's compromise situation. Petitioner has provided no basis for the court t...
2023.01.19 Motion to Compel Arbitration, Dismiss PAGA Representative Action 790
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.19
Excerpt: ...ompelling arbitration under both the Federal Arbitration Act and the California Arbitration Act, Code of Civil Procedure section 1281, et seq. Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent ...
2023.01.19 Demurrers 751
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.19
Excerpt: ... fifth, sixth, eighth and ninth causes of action of the Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To sustain the demurrer of defendant Jennings to the entire Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) In the event a timely request for oral arg...
2023.01.18 Demurrer 468
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.18
Excerpt: ... file a Notice of Related Case in the Los Angeles Superior Court Case Number 20STCV33816 or submit proof that such has already been filed. Explanation: Misjoinder of Parties Code of Civil Procedure section 389 articulates when a nonparty must be joined to the action. A person is a necessary and indispensable party where 1) complete relief cannot be obtained in the nonparty's absence, 2) the nonparty claims an interest relating to the subject of t...
2023.01.18 Demurrer 017
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.18
Excerpt: ...st Amended Complaint are to be set in boldface type. Explanation: Demurrer to the First Cause of Action for Breach of Contract Defendant demurs to the first cause of action for breach of contract on the grounds that the Complaint fails to state facts sufficient to constitute a cause of action. “A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorp...
2023.01.10 Motion to Require Undertaking 277
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.10
Excerpt: ...file an undertaking, in the amount of $50,000, under Code of Civil Procedure section 1030. Section 1030, subdivision (a), states, When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action o...
2023.01.10 Motion for Protective Order, to Compel Production of Docs 389
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.10
Excerpt: ...isappropriated. (Code Civ. Proc. § 2019.210.) Plaintiff is ordered to file a notice of compliance no later than 20 days from the date of this order, with time to run from the service of this minute order by the clerk. To deny plaintiff's motion for an order compelling responses to request for production of documents. (Coder Civ. Proc. § 2031.300.) Explanation: Defendants' Motion for Protective Order Defendants seek a protective order directing ...
2023.01.05 Motion to Quash Subpoenas for Medical Records 798
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.05
Excerpt: ...ed in time and to records for only the body parts/issues of which plaintiff complains. Plaintiff appears to have placed every conceivable form of economic recovery at issue in her Complaint. In her Complaint, page 3, at paragraph 11, every box is checked for damages and plaintiff adds: “ALL ECONOMIC AND NON‐ECONOMIC DAMAGES KNOWN AND UNKNOWN TO PLAINTIFF AT THIS TIME, BUT SUBJECT TO PROOF AT THE TIME OF TRIAL; PLUS STATUTORY INTEREST.” Both...
2023.01.05 Motion to Quash Service of Summons 767
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.05
Excerpt: ...fendants Carolina Transportation, Inc., Carolina Logistic, Inc., and Dispatch & Services, Inc. (collectively “Carolina defendants”) move to quash service of summons for lack of personal jurisdiction over them. The Carolina defendants are each incorporated in the State of North Carolina and each has its principal place of business in North Carolina. (Hoover Decl., ¶ 3.) Additionally, the Carolina defendants have no offices or employees in Cal...
2023.01.05 Demurrer 938
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.01.05
Excerpt: ...rvice by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Defendant demurs to plaintiff's Complaint, which alleges a single cause of action for medical malpractice. Defendant contends that the cause of action is barred by the applicable statute of limitations under Code of Civil Procedure section 340.5. The function of a demurrer is to test the sufficiency of a plaintiff's pleading by...

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