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2022.06.01 Motion to Compel Verified Responses 458
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.01
Excerpt: ...inst defendant Christopher Allen Moore and his attorneys, the Law Offices of Lynn M. Yempuku, jointly and severally, payable within 20 days of the date of this Order, with the time to run from the service of this minute order by the clerk. Defendant Christopher Allen Moore shall serve a verification to the responses already made to plaintiff Victor Moreno's Form Interrogatories, Set One, Special Interrogatories, Set One, and the Request for Produ...
2022.05.26 Motion for Default Judgment 557
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.26
Excerpt: ...m CIV‐100, as well as a supplemental points and authorities. Previously, the court noted, among other issues, that no evidence or argument was given to establish the values sought in general damages; and the calculation for attorney's fees, while supported by factors required by local rules, exceed the allowable amount on a default judgment based on an action on contract's Civil Code section 1717 fees provision (Fresno Super. Ct. Local Rules, A...
2022.05.12 Motion to Seal Filed Docs 728
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.12
Excerpt: ...l based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) Also, the court must make certain express findings in order to seal records. Specifically, the court must find that the facts establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overridin...
2022.05.12 Motion for Preliminary Approval of Class Settlement 418
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.12
Excerpt: ... requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769(d).) Certification of the Class: The court has already granted certification of the class. Fairness of the Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The court has a fiduciary r...
2022.05.11 Motion to Tax Costs 808
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.11
Excerpt: ...n Plaintiff's counsel attributes the untimely opposition to his “clerical error.” Defendants were able to file a reply and do not assert prejudice. Therefore, the opposition was considered in determining this motion. (See Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) Defendants' reply notes that the requested amount is now $9,077.55, and requests that it be taxed and reduced to $4,759.22. Allowable Costs Generally Ite...
2022.05.11 Motion to Compel Deposition 833
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.11
Excerpt: ...rney of record, jointly and severally, payable within 30 days of the date of this order, with the time to run from the service of this minute order by the clerk. The request for an order compelling plaintiff's answers or productions to deposition questions in defendant's reply is not considered. If defendant seeks such relief, defendant must file a motion to compel pursuant to Code of Civil Procedure section 2025.480. In the event of a timely req...
2022.05.11 Application for Writ of Possession 270
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.11
Excerpt: ...oral argument, such argument will be entertained on May 12, 2022, at 3:30 p.m. in Department 501. Explanation: The court shall issue a writ of possession if it finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ have been satisfied. (Code Civ. Proc. §§ 512.040, subd. (b); 515.060, subd. (a)(1).) Among other things, the plaintiff's application must show the basis of the plaintiff's claim, that the p...
2022.05.10 Motion to Strike Complaint 805
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.10
Excerpt: ...nt, such argument will be conducted on May 12, 2022, at 3:30 p.m. in Department 501. Explanation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in...
2022.05.10 Motion for Approval of PAGA Settlement 418
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.10
Excerpt: ...troduction “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 assess a settlement. Nor has the legislature provided any structure or stand...
2022.05.05 Motion to Deem RFAs Admitted, for Monetary Sanctions 487
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.05
Excerpt: ...ant, but to require plaintiff to pay $240 for motion fees to the clerk (in addition to the $60 for the motion fees already paid) for the correct total motion fee of $300 (5 motions x $60 each). The additional filing fees must be paid on or before May 25, 2022. Defendant Hart Family Trust is ordered to serve verified responses, without objections, to plaintiff Terry L. Thelen's Form Interrogatories, Set One, Special Interrogatories, Set One, Reque...
2022.05.03 Demurrer to TAC 607
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.03
Excerpt: ...n May 4, 2022, at 3:30 p.m. Explanation: Demurrer A party may file a general demurrer on claims that “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [“‘A demurrer can be utilized where the complaint itself is incomplete ….' [Citations.]”].) Although in ruling on a demurrer the complaint is liberally construed, “[t...
2022.05.03 Demurrer, Motion to Strike 868
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.03
Excerpt: ....10, subd. (e).) To grant, with leave to amend, defendants' motion to strike the prayer for attorney's fees under the tort of another doctrine, on page 11, lines 2‐4. To deny defendants' motion to strike the prayer for attorney's fees qua attorney's fees, on page 10, line 27. To deny defendants' motion to strike the portions of the First Amended Complaint as it pertains to punitive damages, specifically paragraphs 31 and 36, and the prayer on p...
2022.05.03 Motion to Compel Further Production of Docs 918
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.03
Excerpt: ...complexes, two limited liability companies and two limited partnerships. On August 2, 2021, plaintiffs filed their first motion to compel further production of financial documents. On October 13, 2021, the court denied the motion without prejudice due to a lack of showing of relevance. Plaintiffs now bring the present second motion to compel further production. Plaintiffs incorrectly conclude this court earlier denied plaintiffs' motion owing to ...
2022.05.03 Petition to Compel Arbitration or to Stay Action 397
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.03
Excerpt: ...and Community Regional Anesthesia Medical Group, Inc. (CRAMG). (Code Civ. Proc. § 1281.2.) To stay the civil action on the cross‐claims until the resolution of the arbitration. (Code Civ. Proc. § 1281.4.) If there is a timely request for oral argument, such argument will be conducted on May 4, 2022, at 3:30 p.m. Explanation: Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleg...
2022.04.21 Motion to Compel Depositions of PMK, PMQ, for Sanctions 708
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.21
Excerpt: ...rth America, Inc.'s person most knowledgeable and custodian of records to attend his or her deposition, and to produce documents pursuant to the demand for production of documents served with the deposition notice. (Code Civ. Proc. § 2025.450.) To deny plaintiffs' request for sanctions against defendant. (Code Civ. Proc. § 2025.450(g)(1).) To deny plaintiff's motion to compel Lithia Nissan of Clovis's person most qualified and Timothy Bowden, T...
2022.04.21 Motion to Compel Arbitration and Stay Proceedings 579
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.21
Excerpt: ...rcement of valid arbitration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) “When presented with a petition to compel arbitration, the initial issue before the court is whether an agreement has been formed.” (Diaz v. Sohnen Enterprises (2019) 34 Cal.App.5th 126, 129.) In addition, arbitration is a “ ‘matter of consent, not coercion,'” and “ ‘a party cannot be required to submit to...
2022.04.20 Motion for Summary Judgment 008
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.20
Excerpt: ...of this order. Explanation: “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. ‘ “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 t...
2022.04.19 Motion to Strike Punitive Damages Allegations 370
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.19
Excerpt: ...rder by the clerk. Explanation: Contending that the Complaint alleges insufficient facts to state a claim for punitive damages, defendants move to strike the following from the Complaint: Item 1: Page 3, section 14, paragraph (2), which states: "Plaintiff prays for judgment for costs of suit for such relief as is fair, just and equitable; and for punitive damages." Item 2: Page 5, section Prem.L.‐3., which states: "Count Two – Willful Failure...
2022.04.19 Motion to Compel Responses, for Monetary Sanctions 658
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.19
Excerpt: ...ries, Set One, as to Request Nos. 2.12, 2.13, 4.1, 6.3, 6.4, 6.5, 10.1, 10.3 and 12.1. As to Request No. 17.1, defendant's request to compel plaintiff's supplemental response is denied. To grant defendant's motion to compel plaintiff's supplemental responses to defendant's Request for Admission, Set One, Requests Nos. 1, 2, 12 and 15. Plaintiff shall serve verified supplemental responses in full compliance with Code of Civil Procedure, sections 2...
2022.04.19 Demurrer to FAC 097
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.19
Excerpt: ...gainst a general demurrer a complaint will be liberally construed[…]; that any mere ground of special demurrer for uncertainty will be resolved in support of the complaint and the demurrer overruled, when the necessary facts are shown to exist, although inaccurately or ambiguously stated, or appearing only by necessary implication.” (Hunter v. Freeman (1951) 105 Cal.App.2d 129, 133; see Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App....
2022.04.13 Motion to Disqualify Counsel 148
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.13
Excerpt: ...duct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ. Proc., § 128, subd. (a)(5).) Substantial Relationship of Representation: Cases disqualifying attorneys for receiving confidential information in the absence of an attorney‐client relationship, as is this case, are generally limited to situations where the information is relev...
2022.04.13 Motion for Summary Adjudication 728
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.13
Excerpt: ...ion of punitive damages. (Cal. Rules of Court, rule 3.1350(b).) Explanation: Fourth Cause of Action: The elements of a fraudulent concealment cause of action are “ ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the pl...
2022.04.13 Motion for Final Approval of Class Settlement, for Attorney Fees 457
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.13
Excerpt: ...ees in the amount of $1,283,333. To grant the named plaintiff (class representative) an incentive award in the amount of $15,000. To order the parties to return on March 21, 2023, at 3:30 p.m. in Department 501 to inform the court of the total amount actually paid to the class members, pursuant 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. Doc...
2022.04.12 Motion to Amend Judgment 998
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.12
Excerpt: ... conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.' (Code Civ. Proc., § 187 (section 187).) Buried in this opaque language is the power of a t...
2022.04.07 Demurrer to FACC 106
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.07
Excerpt: ... complaint and the demurrer overruled, when the necessary facts are shown to exist, although inaccurately or ambiguously stated, or appearing only by necessary implication.” (Hunter v. Freeman (1951) 105 Cal.App.2d 129, 133; see Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 [pursuant to rule of liberal construction, court draws inferences favorable to plaintiff, not defendant].) In testing a pleading against a demurrer,...
2022.03.30 Motion to Deem RFAs Admitted, for Monetary Sanctions 487
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.03.30
Excerpt: ...require plaintiff to pay $240 for motion fees to the clerk (in addition to the $60 for the motion fees already paid) for the correct total motion fee of $300 (5 motions x $60 each). The additional filing fees must be paid on or before April 13, 2022. Defendant Lola M. Hart is ordered to serve verified responses, without objections, to plaintiff Terry L. Thelen's Form Interrogatories, Set One, Special Interrogatories, Set One, Requests for Product...
2022.03.30 Motion to Compel Further Responses, for Monetary Sanctions 099
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.03.30
Excerpt: ...rrogatories must be “given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing…” (Code Civ. Proc., § 2030.300, subd. (c).) “Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the pa...
2022.03.29 Motion for Summary Judgment, Adjudication 700
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.03.29
Excerpt: ...iff, individually and as successor‐in‐interest to decedent Jessica Cortez, brought a single cause of action against defendants Kevin Ciresi, M.D. and Athenix Body Sculpting Institute for wrongful death based on medical malpractice. The complaint alleges that on September 24, 2019, defendants care and treatment of decedent breached the standard of care, causing decedent's death. On January 18, 2022, plaintiff amended his complaint, only to add...
2022.03.23 Motion to Strike Answer, Application for Writ of Possession 398
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.03.23
Excerpt: ...er within ten days of the date of service of this order. The amended answer must be verified, it must contain the contact information of the filing party or attorney as required under Rule of Court 2.111, and defendant Awesome Charters and Tours must appear through an attorney licensed in the State of California. To grant plaintiff's application for a writ of possession for the collateral, namely the 2013 MCI J4500 Motorcoach, VIN 2MG3JMBA0DW0664...
2022.03.22 Demurrer to FAC 627
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.03.22
Excerpt: ...can be filed will run from service by the clerk of the minute order. New allegations in a Second Amended Complaint must be set in boldface type. Explanation: Meet and Confer Defendant's attorney filed a declaration stating that he sent a detailed ten page meet and confer letter and left a voicemail with plaintiff's counsel, but the call was not returned. Considering that this matter seeks division of only partially identified property, it appears...
2022.03.22 Demurrer 307
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.03.22
Excerpt: ...een the parties on the same causes of action. (Code Civ. Proc. § 430.10, subd. (c).) To stay the first, second and fifth causes of action pending resolution of Loveman v. Leavitt, case no. 18STCV05817, pending the Los Angeles County Superior Court. To sustain the demurrer of Leavitt to the third cause of action on the ground that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. §430.10, subd. (e).) To deny le...
2022.03.15 Demurrer, Motion to Strike 179
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.03.15
Excerpt: ...leave to file a Third Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Demurrer It is “the established rule that as against a general demurrer a complaint will be liberally construed[…]; that any mere ground of special demurrer for uncertainty will be resolved in support of the complaint and the demurrer overruled, when the necessary facts are ...
2022.03.09 Motion to Deem Requests to Admit Truth of Facts, to Compel Responses, for Monetary Sanctions 558
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.03.09
Excerpt: ...To grant and to award monetary sanctions in the total amount of $1,106.60 against plaintiffs Helen Lee and George Xury, jointly and severally1 , payable within 30 days of the date of this order, with the time to run from the service of this minute order by the clerk. The matters specified in defendant Lowe's Home Center, LLC's Requests for Admission, Set One, are deemed admitted, unless plaintiffs serve, before the hearing, proposed responses to ...
2022.03.03 Motion to Compel Further Responses 080
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.03.03
Excerpt: .... To deny the motion compelling further responses to Request for Production of Documents, Nos. 1‐43 and 45‐57. To grant, in part, the motion compelling further responses to Request for Production of Documents No. 44. Within ten (10) days of service of the order by the clerk, defendant shall serve further verified responses to Request for Production No. 44 and produce all documents responsive to the Requests for Production on documents that pl...
2022.03.01 Demurrers 668
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.03.01
Excerpt: ...must contain “a statement of the facts constituting the cause of action, in ordinary and concise language;” i.e., to plead “ultimate facts.” (Code Civ. Proc. § 425.10, subd. (a)(1); Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) The modern approach is to find allegations sufficient if on the whole they apprise defendant of the factual basis of the claim, and to find that the particularity required “‘depends on the extent to ...
2022.02.17 Motion for Transfer of Venue 927
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.02.17
Excerpt: ...ice of the transfer order. Explanation: “It is a long established rule that a motion for change of venue must satisfy two requirements: (1) [i]t must be shown the action is proper in the county to which the movant seeks transfer; and (2) it must be shown the county in which the action was filed was improper under any applicable theory.” (Easton v. Superior Court (1970) 12 Cal.App.3d 243, 245‐246 [internal citations omitted, brackets added.]...
2022.02.10 Motion to Quash Service of Summons 680
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.02.10
Excerpt: ...ules of Court; and (2) no evidence was submitted in support of the motion. (1) California Rules of Court Pursuant to California Rules of Court, rule 3.1112, the papers filed in support of a motion must consist of at least the following: (1) a notice of hearing on the motion; (2) the motion itself; and (3) a memorandum in support of the motion. The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments...
2022.02.09 Motion for Final Approval of Class Settlement 218
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.02.09
Excerpt: ...nd Workforce Development Agency. The proposed Order and Judgment will be signed. No appearances are necessary. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the court to reconsider its decision granting...
2022.02.09 Motion to Stay Action Pending Hearing on Petition for Arbitration 278
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.02.09
Excerpt: ...m alleging breach of contract, breach of warranty, and concealment. Plaintiff alleges that on September 16, 2018, she leased a 2019 Jeep Cherokee from Fresno Chrysler, manufactured by FCA, which came with various warranties. During the warranty period, defects were contained or developed in the vehicle, which could not be repaired. On December 8, 2021, defendants filed a motion to compel arbitration and stay the action, set for hearing on June 29...
2022.02.08 Demurrer, Motion to Strike 888
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.02.08
Excerpt: .... Proc., § 430.10, subd. (e).) To grant the motion to strike. (Code Civ. Proc., §§ 435 and 431.10, subd. (b).) To grant leave to amend. Should plaintiff desire to amend, a Second Amended Complaint shall be filed within ten (10) days from the date of this order. Any new language in the amended pleading shall be in bold print. Explanation: Demurrer A general demurrer, “admits the truth of all material factual allegations in the complaint” an...
2022.02.02 Demurrer 487
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.02.02
Excerpt: ...(20) days from service by the clerk of the minute order. Explanation: A general demurrer, “admits the truth of all material factual allegations in the complaint” and the plaintiff's “ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court ….” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496; Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, ...
2022.02.01 Demurrer 467
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.02.01
Excerpt: ...s Castro's (“Cross‐Complainant”) cross‐complaint, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Cross‐Complainant is granted 20 days' leave to file a First Amended Cross‐Complaint. The time to file such 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: Meet and Confer: The on...
2022.01.27 Motion to Compel Further Responses, for Monetary Sanctions 707
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.01.27
Excerpt: ...umbers 35 and 38. For a partially successful motion, monetary sanctions in the amount of $1,200 (at a rate of $400 per hour) will be imposed against defendant Fresno Pacific University (FPU) and in favor of plaintiffs. (Code Civ. Proc. § 2030.300, subd. (d).) Sanctions must be paid no later than 30 after service of this Order. Explanation: Background Plaintiffs were members of the swim team at FPU. At a swim team practice on January 9, 2018, pla...
2022.01.20 Motion to Compel Mental Exam 987
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.01.20
Excerpt: ....210), or by a mental examination, the party shall obtain leave of court.” (Code Civ. Proc. § 2032.310, subd. (a).) “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Code Civ. Proc. § 2032.320, subd. (d).) “In contrast to more pedestrian discovery ...
2022.01.12 Demurrer 517
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.01.12
Excerpt: ...mend. (Code Civ. Proc. § 430.10, subd. (e).) Explanation: Cause of Action No. 1: Violation of California Civil Code Section 2923.6 Under Civil Code section 2923.6, If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not...
2022.01.06 Motion to Compel Deposition of PMK, for Sanctions 728
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.01.06
Excerpt: ...f documents served with the deposition notice. (Code Civ. Proc. § 2025.450.) To deny plaintiffs' request for sanctions against defendant. (Code Civ. Proc. § 2025.450(g)(1).) Explanation: Plaintiff seeks to compel the deposition of Kia America, Inc.'s (“KA”) person most knowledgeable (PMK) and custodian of records, and to compel production of various categories of records. Plaintiff served KA with a deposition notice setting the deposition f...
2022.01.05 Motion for Summary Adjudication 388
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.01.05
Excerpt: ...burden to establish a prima facie case of discrimination… While the plaintiff's prima facie burden is ‘not onerous', he must at least show ‘“ ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion ....'”'” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354‐355, internal citations omitte...
2022.01.05 Motion for Leave to Amend 898
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.01.05
Excerpt: ... to amend under Code of Civil Procedure, section 473, subdivision (a), and Code of Civil Procedure, section 576, favoring resolution of all disputed matters between the parties in the same lawsuit. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Additionally, where “the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint…” (Code Civ. ...
2022.01.04 Motion to Set Aside Dismissal of Action 248
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.01.04
Excerpt: ...nation: Attorney Affidavit of Fault: The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. § 473, subd. (b).) Where a motion seeking this relief is based on an “attorney affidavit of fault,” the relief is mandatory. Otherwise, relief is discretio...
2021.12.16 Motion for Judgment on the Pleadings, to Strike 170
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.12.16
Excerpt: ...for Judgment on the Pleadings: Defendants move for judgment on the pleadings as to the entire Complaint on the ground that the case has become moot due to the Governor's decision to rescind the Blueprint for a Safer Economy. A motion for judgment on the pleadings will lie where the issues of the case have become moot. (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746.) “Courts do not decide abstract questions of law. An indispensable ...
2021.12.16 Motion for Summary Judgment 470
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.12.16
Excerpt: ... restaurant. She slipped and fell on a slippery substance on the floor as she walked back to her table after using the restroom. She felt sudden and severe pain in her right knee. The Complaint alleges a single cause of action for premises liability. Initially the court will address plaintiff's evidentiary objections. The first three objections are expressly directed at portions of defendant's separate statement. These objections should be overru...
2021.12.16 Motion to Amend Judgment to Add Alter Ego as Judgment Debtor 178
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.12.16
Excerpt: ...ent Creditor Assignee Forster‐Gill, Inc., seeks to add Canales Group LLC as a judgment debtor on the Judgment entered against Canales‐Selma LLC and Michael Canales, individually and doing business as Michael Canales Construction on July 24, 2012. After a judgment creditor obtains a judgment against a corporation and it then discovers that the corporation has few or no assets and is controlled by a nonparty alter ego, the judgment creditor may...
2021.12.15 Motion to Set Aside Default 068
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.12.15
Excerpt: ...t aside. Defendants are excused from including a copy of their proposed pleading as a precondition for the set aside and are granted 30 days' leave to file their responsive pleadings to the First Amended Complaint, with the time to run from service by the clerk of the minute order. If this response is a demurrer, as defendants have indicated, then the parties must comply with the meet and confer requirements outlined in Code of Civil Procedure se...
2021.12.14 Motion to Seal Portions of SAC 179
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.12.14
Excerpt: ...nfidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).) “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. Rules of Court, rule 2.551(a).) “A party requesting that a record be filed under seal must file a motion or an application for an order sealin...
2021.12.09 Motion for Summary Judgment, Adjudication 278
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.12.09
Excerpt: ...he Underlying Case In underlying Case No. 13CECG03811 entitled Cal LeDuc; Tori Abby; Miley Abby, a minor by and through her Guardian ad litem, Tori Abby, Mandy Jobe, Lukus LeDuc, Jay LeDuc and Cal LeDuc as successor in interest to the estate of Marsha Kay LeDuc v. Mario Alberto Guerro; Daniel M. Canchola and Guerra Produce, the defendants filed for bankruptcy protection on April 24, 2017, shortly before the initial trial date. The Plaintiffs peti...
2021.12.07 Motion to Compel Arbitration and Stay Action 318
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.12.07
Excerpt: ...e 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.) (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1...
2021.12.02 Motion to Compel Joinder 700
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.12.02
Excerpt: ...ccessor‐in‐ Interest to Jessica Cortez, brought suit against, among others, defendant and moving party, Kevin Ciresi, M.D. The complaint alleges one cause of action for medical malpractice resulting in wrongful death. Plaintiff is alleged to be the husband of Cortez, who passed away on September 25, 2019, and as such is the “wrongful death heir.” Ciresi brings this motion to compel joinder of Alyza and Isaiah Boriphanvichitr, as omitted a...
2021.12.02 Motion to Compel Further Deposition, for Protective Order, for Monetary Sanctions 579
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.12.02
Excerpt: ... unable resolve disputes regarding plaintiff's counsel's stated objections and instructions to his client. Motion to Compel Plaintiff's Further Deposition To the extent the motion requests a further response to a particular deposition question or document request a Separate Statement is necessary under California Rules of Court, rule 3.1345. While that rule does provide an exception where “no response has been provided to the request for discov...
2021.12.02 Demurrer 679
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.12.02
Excerpt: ...planation: Exclusivity of the Workers' Compensation Remedy Defendant North Cal Cleaning Company (NCCC) demurs to the First Amended Complaint on the grounds that the breach of contract cause of action alleged against it in the First Amended Complaint is barred by the exclusive remedy of workers' compensation. (Code Civ. Proc., § 430.10, subd. (e).) Labor Code section 3600, subdivision (a), provides that liability for the compensation provided by ...
2021.12.01 Motion for Attorney Fees 758
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.12.01
Excerpt: ... and $262.10 in costs. (Code Civ. Proc., § 425.16, subd. (c).) Explanation: A special motion to strike (an “anti‐ SLAPP” motion) provides a procedural remedy to dismiss non‐meritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) A prevailing defendant on an a...
2021.11.18 Demurrer, Motion to Strike 735
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.11.18
Excerpt: ...murrer to the second cause of action in the Second Amended Cross‐Complaint, with leave to amend. Bazan is granted 10 days' leave to file a Third Amended Cross‐Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To sustain CFM's demurrers to the fourth and fifth causes of action in the Second Amended Cross‐Complaint, without leave to amend. CFM is directed to submit ...
2021.11.17 Demurrer 157
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.11.17
Excerpt: ... will be entertained at 2:30 p.m. Explanation: Before filing a demurrer, the moving party “shall file and serve with the demurrer a declaration stating… (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a)(3)(A) [emphasis added].) Here, thou...
2021.11.16 Motion to Compel Initial Responses, Deposition 097
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.11.16
Excerpt: ...ees already paid) for the correct total motion fee of $360 (6 motions x $60 each). The additional filing fees must be paid no later than November 30, 2021. Plaintiffs Brandon A. Escalante and Samantha Quintero are ordered to serve separate, verified responses, without objections, to defendants' Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One (a separate set of which was served on e...
2021.11.10 Petition to Perpetuate Testimony and Preserve Evidence 768
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.11.10
Excerpt: ...ver, petitioners have not yet filed a civil action against Dr. Foxley or anyone else to the court's knowledge, and it is not clear if they intend to do so in the future. Nevertheless, they seek to preserve the complaint and to compel its production, citing to Code of Civil Procedure sections 2035.010 to 2035.060. Under section 2035.010, “One who expects to be a party or expects a successor in interest to be a party to an action that may be cogn...
2021.11.10 Motion for Summary Adjudication 918
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.11.10
Excerpt: ...�40%) on amounts withheld from tenants' security deposits. The First Amended Complaint (“FAC”) filed on July 28, 2016, alleges causes of action for (1) Unfair Competition (Bus. & Prof. Code § 17200); (2) Preliminary and Permanent Injunction; (3) Declaratory Relief; and (4) Violation of Civ. Code § 1950.5. All causes of action are premised on violation of section 1950.5. The FAC simply alleges that “[t]he 40% administration fees deducted f...
2021.11.10 Motion for Leave to File SAC 777
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.11.10
Excerpt: .....” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909.) “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading ... by adding ... any party.” (Code Civ. Proc., § 473, subd. (a)(1).) “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading ... in other particulars ....” (Code Civ. Proc., § ...
2021.11.09 Motions to Compel Arbitration, Dismiss Class Claims, Stay Action 667
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.11.09
Excerpt: ...ned below. Explanation: Agreement to Arbitrate. “Under both federal and California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98; see Federal Arbitration Act (FAA)(9 U.S.C. § 1 et seq.).) Title 9 United States Code section 2 states that, “A written...
2021.10.28 Motion to Deem Vexatious Litigant 709
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.28
Excerpt: ... action. (Code Civ. Proc., § 391.1.) The 30‐day time limit will run from the service of the minute order by the clerk. (Code Civ. Proc., § 1013, subd. (a) [20‐calendar‐day extension for service to address outside the United States].) This action is stayed pending proof that such security has been furnished, and if no security is posted within the time allowed, the case shall be dismissed by the court upon ex parte application therefor by ...
2021.10.28 Motion to Consolidate Actions 298
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.28
Excerpt: ...nses related to the subject property during the pendency of the action, including property taxes, utilities, insurance, and the annual payment related to the property's solar panels, and to keep Ms. Rogers reasonably well informed as to the status of these payments so she is ensured there are no missed payments Explanation: Since the parties are each “plaintiff” and “defendant” (in reversed roles) between the two cases, they will be refer...
2021.10.27 Motion for Validation Judgment 887
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.27
Excerpt: ...e conducted on October 27, 2021, at 1:30 p.m., in Department 501. Explanation: Plaintiff has brought its renewed motion under Code of Civil Procedure section 1008, subdivision (b), (hereafter “Section 1008(b)”) which provides: A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circums...
2021.10.26 Motion to Compel Initial Responses 517
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.26
Excerpt: ...nt; and (4) by Plaintiff seeking an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted as to each Defendant Tentative Ruling: To grant the motions to compel responses to Form Interrogatories Set One, Special Interrogatories Set One and “Requests for Production of Documents” aka Inspection Demands Set One pursuant to Code of Civil Procedure sections 2030.290, subdivisions (b), ...
2021.10.21 Motion for Pretrial Discovery of Financial Condition 707
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.21
Excerpt: ...aintiff of evidence of the profits or financial condition of a defendant is prohibited, unless the court enters an order permitting it. (2 Witkin, Cal. Evid. (5th ed. 2021) Discovery, § 18.) “No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) [i.e., defendant's profits gained by virtue of the wrongful course of conduct of the nature and type shown by t...
2021.10.19 Motion to Quash Deposition Subpoenas 089
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.19
Excerpt: ...oks, documents, or other things … at the taking of a deposition, the court, upon motion … may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of th...
2021.10.14 Application for Default Judgment 767
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.14
Excerpt: ...Nelson Blvd., Selma, CA 93662. According to the allegations of the Complaint, defendant was a corporation doing business in California but headquartered in Japan. Defendant acquired the property via Grant Deed on July 25, 1990. Plaintiff's husband (Frank Matsuoka) was an employee of defendant and in charge of its business in the United States. He was also designated as its agent for service of process. Defendant ceased doing business in Californi...
2021.10.14 Demurrer, Motion to Strike 498
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.14
Excerpt: ...is operative. Three causes of action are alleged therein: (1) general negligence; (2) violation of the Consumer Legal Remedies Act (‘CLRA') § 1750 et. seq.; and (3) negligent misrepresentation. Plaintiff alleges in the second cause of action: “[P]rior to the filing of this Third Amended Complaint, [plaintiff] mailed to Defendant, via certified and regular mail, a Consumer Legal Remedies Act notification and demand letter, notifying Defendant...
2021.10.14 Motion for Summary Judgment 698
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.14
Excerpt: ... subd. (c).) Where defendant is the moving party, summary judgment is proper where defendant demonstrates the absence of an essential element of the plaintiff's case. (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266.) “Because of the very drastic nature of the summary judgment statute, power given thereby should be used with caution, and hence when there is doubt as to the propriety of the motion, courts should, without hesitancy,...
2021.10.13 Motion to Compel Production of Yearly Financial Statements 918
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.13
Excerpt: ... Civil Procedure section 2016.010, et seq. (Compare, e.g., Civil Code § 3295.) Specifically, plaintiffs appear to move to compel a further response to Request for Production of Documents, Set Two, Number 22, which seeks from all defendants, “yearly financial statements for 2015‐2019, including profit and loss statements, that reflect the components of the total overhead expenses incurred by each of YOUR apartment complexes.” (Declaration o...
2021.10.13 Motion for Summary Judgment 607
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.13
Excerpt: ...��[I]n any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Hanson v. Grode (1999) 76 Cal.App.4th 6...
2021.10.07 Motion to Compel Responses, for Monetary Sanctions 398
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.07
Excerpt: ...t of papers. In the future the moving party must reserve the proper number of motions. Moving party shall pay an additional filing fee of $120.00 to be due and payable to the court clerk within 30 days of service of the minute order by the clerk. (Gov. Code § 70617, subd. (a).) To grant the moving party's motion to compel responses to the Form Interrogatories‐general (set one), Special Interrogatories (set one), and Request for Production of D...
2021.10.07 Demurrer, Motion to Strike 117
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.07
Excerpt: ...ndants to Strike Tentative Ruling: To grant defendants' motion to strike the first, second, third and fifth causes of action of the Second Amended Complaint (“SAC”). To deny the motion to strike punitive damage allegations. (Code Civ. Proc., § 436, subd. (a), (b).) To sustain the demurrer to the SAC's fourth cause of action, without leave to amend, only as to defendants Sherri Jones, Brandon Price, Emi Komaki, Sara Arad, David Mwangi, Virgin...
2021.10.07 Demurrer 679
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.07
Excerpt: ... To strike, sua sponte, the Second Amended Complaint filed on February 9, 2021. (Code Civ. Proc., § 436, subd. (b).) Explanation: Meet and Confer. Before filing a demurrer, the demurring party “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer[.]” (Code Civ. Proc., § 430.41, subd. (a), emphasis added; see also Judicial Council form CIV‐140.) Where the parties are unable to su...
2021.10.05 Motion to Quash Deposition of PMK 338
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.05
Excerpt: ...bsence of contrary court order, a civil litigant's right to discovery is broad.”].) “In civil litigation, discovery may be obtained from a nonparty only through a ‘deposition subpoena.' [Citation.]” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127; Code Civ. Proc. § 2020.010, subd. (b).) However, “Discovery procedures are generally less onerous for strangers to the litigation. That is because they are less likely to be r...
2021.10.05 Motion for Summary Judgment 718
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.05
Excerpt: ...rofessional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” [Citation.]'” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) However, the standard of care against which physicians acts are mea...
2021.10.05 Motion for Preliminary Approval of Class Settlement 227
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.10.05
Excerpt: ...(Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally cer...
2021.09.21 Motion for Preliminary Approval of Settlement 457
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.09.21
Excerpt: ...l be considered on September 21, 2021, at 4:00 p.m. in Department 403. Explanation: Certification of Class for Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected, although there is less scrutiny of manageability issues. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803...
2021.09.21 Demurrer 497
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.09.21
Excerpt: ...mplaint Tentative Ruling: To overrule the demurrer, with defendants Robert G. Melenbacker (individually and as trustee of the Robert and Cynthia Melenbacker Trust Dated June 5, 2009), Marvin A. Farris (individually and as trustee of the Marvin and Cindy Farris Family Trust Dated May 31, 2006), Rodney O. Swenson (individually and as trustee of the Swenson Family Trust of 1998), and Ted Torosian granted 10 days' leave to file their Answer(s) to the...
2021.09.16 Dismissal and Imposition of Monetary Sanctions 470
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.09.16
Excerpt: ...of cases filed by Enrique Reyes and Guadalupe Reyes (Plaintiffs) that, taken as a whole, constitute “deliberate and egregious misconduct” sufficient to support dismissal. (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 738, 762.) To monetary sanctions in favor of the Kutnerian Defendants and against Plaintiffs and James Michel, jointly and severally, in the amount of $17,852.31 pursuant to Code of Civil Procedure section 12...
2021.09.16 Motion to Set Aside Default 008
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.09.16
Excerpt: ...ading. To deny the motion to set aside default as to defendants Donald Krouskup, Askem Farms LLC, and McCall Village Mobile Home Park LLC, without prejudice. Explanation: On May 12, 2019, plaintiff filed suit alleging five causes of action: breach of express warranty; revocation of acceptance; breach of contract; breach of implied warranty of merchantability; and fraud in the inducement. Proofs of service were subsequently filed. On March 29, 202...
2021.09.09 Demurrer 487
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.09.09
Excerpt: ...ount shall file and serve its First Amended Cross‐Complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. If oral argument is timely requested, such argument will be conducted at 2:30 p.m. on September 9, 2021, in Department 501. Explanation: Catamount has cross‐ complained against Dusten Perry (“Perry”) for equitable indemnity, contribution and declaratory relief on the assertion that Perr...
2021.09.08 Motion to Compel Arbitration 318
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.09.08
Excerpt: ... denial of the motion exists (e.g., fraud, unconscionability, etc.) (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) Defendant contends that the alleged arbitration agreement in this case is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq. Section 2 o...
2021.09.02 Motion for Summary Judgment 528
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.09.02
Excerpt: ...roposed judgment consistent with the court's summary judgment ruling. Explanation: “‘[I]n any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage re...
2021.09.01 Motion to Stay Proceedings 268
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.09.01
Excerpt: ...pp.4th 876, 885‐886 citing Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322.) When a litigant seeks a stay based upon parallel criminal proceedings, an analysis should be undertaken "in light of the particular circumstances and competing interests involved in the case.” (Avant! v. Superior Court, supra, 79 Cal.App.4th at p. 885.) Courts should consider the following factors (“the Keating factors”): (1) the interest of t...
2021.08.26 Motion for Preliminary Approval of Class Action Settlement 218
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.08.26
Excerpt: ...n a request for continuance to a later date, if plaintiff needs more time. Explanation: The court will allow the additional pages of the memorandum, as requested in the brief itself. However, in the future counsel should request this relief ex parte, prior to filing the brief. As for conditional class certification, plaintiff bears the burden of establishing the propriety of class treatment with admissible evidence. (Richmond v. Dart Industries, ...
2021.08.26 Motion for Final Approval of Class Action Settlement, for Attorney Fees 417
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.08.26
Excerpt: ...s sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the court to reconsider its decision granting certification of the class. 2. Settlement Previously, the court found that the settlement was fair and reasonable based on the evidence that plaintiff submitted in support of the motion for preliminary approval. It does not appear that there is any reason for the court...
2021.08.25 Motion for Summary Adjudication 278
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.08.25
Excerpt: ... of the first cause of action. Explanation: The Underlying Case In the underlying Case No. 13CECG03811 entitled Cal LeDuc; Tori Abby; Miley Abby, a minor by and through her Guardian ad litem, Tori Abby, Mandy Jobe, Lukus LeDuc, Jay LeDuc and Cal LeDuc as successor in interest to the estate of Marsha Kay LeDuc v. Mario Alberto Guerro; Daniel M. Canchola and Guerra Produce, defendants filed for bankruptcy protection on April 24, 2017, shortly befor...
2021.08.24 Motion for Summary Judgment 847
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.08.24
Excerpt: ...itially asserting three cases of action: deceit, fraud and negligent misrepresentation. Between February and October 2016, multiple demurrers were sustained so that plaintiffs' only remaining cause of action is malicious prosecution. On May 3, 2017, CCS filed the instant motion for summary judgment, based on: (1) collateral estoppel/res judicata; (2) failure to prove the elements of malicious prosecution; and (3) statute of limitations. This cour...
2021.08.19 Motion for Summary Judgment, Adjudication 237
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.08.19
Excerpt: ...n: “‘Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713, quoting Code Civ. Proc. § 437c(c).) Summary judgment is properly directed toward the entire complaint and not portions thereof. (see Barnick v. Longs Drug Stores, Inc. (1988) 203 Cal.App.3d 377, 384; Khan v. Shiley, Inc. (1990) 217...
2021.08.18 Special Motion to Strike 470
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.08.18
Excerpt: ...rior Court Case No. 15CECG00659; In Re: Reyes U.S. Bankruptcy Court (E.D. Cal.) Case No. 18‐11357‐B‐13 and Reyes v. Bernel Fresno Superior Court Case No. 18CECG00202 as Exhibits 1‐8 attached to Defendants' Request for Judicial Notice. However, the court will not take judicial notice of Defendants' analysis of these cases. (See Fremont Indem. Co. v. Fremont Gen. Corp., supra, 148 Cal.App.4th at 113; Tenet Healthsystem Desert, Inc. v. Blue ...
2021.08.17 Motion to Renewal 370
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.08.17
Excerpt: ...a motion when it has already brought a prior motion for the same relief, but the prior motion was denied, or only granted conditionally or on terms. The party moving for renewal must also specify what application was made, to what judge, when it was made, and what order or decision was made. (Code Civ. Proc. § 1008, subd. (b).) The renewal motion must also state what new or different facts, circumstances, or law exist that justify renewing the p...
2021.08.17 Motion for Terminating Sanctions 518
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2021.08.17
Excerpt: ...of Defendant Virginia Valenzuela and against Plaintiff. (Code Civ. Proc. §§ 2023.010, subd. (g), and 2025.450, subd. (h).) Plaintiff is ordered to pay $846.75 in sanctions to the Carbone, Smith & Koyoma law firm, within 30 days of the clerk's service of the minute order. If a timely request for oral argument is made, such argument will be conducted on August 18, 2021, at 3:30 p.m., in Department 501. Explanation: Code of Civil Procedure section...

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