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2023.08.24 Motion for Summary Judgment 627
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.24
Excerpt: ...his error on plaintiff's part. Healthcare providers must possess and exerc:ise "that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances." (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, in 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 h...
2023.08.24 Demurrers 751
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.24
Excerpt: ...rp.; and Planet 13 Holdings, Inc., to the second, fourth, fifth, sixth, eighth and ninth causes of action of the First Amended Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. S 430.10, subd. (e).) To sustain the demurrer of defendant Jennings to the entire First Amended Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action...
2023.08.24 Motion for Relief from Waiver of Objections, to Compel Further Responses, Deposition of PMK 270
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.24
Excerpt: ... for Production, Set Two Tentative Ruling: To grant defendant General Motors, LLC's motion for relief from waiver of objections asserted in its response to Request for Production of Documents, Set Two. To deny plaintiff Brooks' motion to compel further responses to requests for production, set one. To take off calendar plaintiff Brooks' motion to compel the deposition of defendant's person most knowledgeable for failure to file moving papers. To ...
2023.08.23 Motion for Summary Judgment 627
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.23
Excerpt: ...his error on plaintiff's part. Healthcare providers must possess and exerc:ise "that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances." (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, in 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 h...
2023.08.23 Motion for Relief from Waiver of Objections, to Compel Further Responses, Deposition of PMK 270
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.23
Excerpt: ... for Production, Set Two Tentative Ruling: To grant defendant General Motors, LLC's motion for relief from waiver of objections asserted in its response to Request for Production of Documents, Set Two. To deny plaintiff Brooks' motion to compel further responses to requests for production, set one. To take off calendar plaintiff Brooks' motion to compel the deposition of defendant's person most knowledgeable for failure to file moving papers. To ...
2023.08.23 Demurrers 751
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.23
Excerpt: ...rp.; and Planet 13 Holdings, Inc., to the second, fourth, fifth, sixth, eighth and ninth causes of action of the First Amended Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. S 430.10, subd. (e).) To sustain the demurrer of defendant Jennings to the entire First Amended Complaint, without leave to amend, for failure to state facts sufficient to constitute a cause of action...
2023.08.22 Motion for Summary Judgment, Adjudication 647
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.22
Excerpt: ...ubmitted on reply by the Supplemental Declaration of Donna Barrett. Plaintiff shall file and serve the supplemental briefing by 5:00 p.m. on October 27, 2023. Defendant shall serve and file its response to the supplemental briefing by 5:00 p.m. on November 2, 2023. Explanation: Defendant The General Council of the Assemblies of God ("Defendant") seeks summary judgment or, in the alternative, summary adjudication of the three causes of action of t...
2023.08.22 Demurrer, Motion to Strike 317
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.22
Excerpt: ...olve the issues, defense counsel shall file a declaration, no later than September 22, 2023, stating the efforts made. If no declaration is filed, the hearing will be taken off calendar. Explanation: Under Code of Civil Procedure section 430.41, "[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose ...
2023.08.22 Demurrer 279
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.22
Excerpt: ...rance Company's demurrer to the fifth cause of action. Plaintiff is granted 10 days' leave to file and serve a Fourth Amended 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, failure to do so (again) will result in the pleading being stricken. Explanation: On November 3, 2021, plaintiff filed suit against defendants Samuel Alexande...
2023.08.10 Motion to Compel Arbitration and Stay Proceedings 918
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.10
Excerpt: ... that transaction, 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 March 25, 2022, against Nissan and Naftoon, lnc„ a repair facility (but not the seller). The Complaint alleges the following causes of action: (1) Violation of the Song-Beverly Act — Breach of Express Warranty; (2) Fraudulent Inducement — Intentiona...
2023.08.10 Motion for Summary Judgment, Adjudication 757
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.10
Excerpt: ...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; Molko 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. Summary adjudicat...
2023.08.10 Motion for Final Approval of Class Action Settlement 817
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.10
Excerpt: ...an be amended and the distribution of any cy pres funds can be ordered. as to the amount paid to class members must be filed on or before August 1, 2024. 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. In addition, there does n...
2023.08.09 Motion for Summary Adjudication 508
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.09
Excerpt: ...ary judgment, except it acts on specific causes of action, rather than on the entire complaint. (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 398.) A plaintiff moving for summary judgment or adjudication of a cause of action must "prove[l each element of the cause of action entitling the party to judgment on that cause of action." (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241; Code Civ. Proc„ S 4...
2023.08.09 Motion to Strike 518
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.09
Excerpt: ... to address defects in pleadings otherwise not challengeable by a demurrer. (See Code Civ. Proc., S 435.) A motion to strike can be used to attack either a portion or the entirety of a pleading. (Ibid.) Waiver Cross-complainants rely on California Rules of Court, rule 8.54(c), for the position that cross-defendant's arguments are waived because he did not assert them in an opposition to the motion for leave to file a cross-complaint. The rule sta...
2023.08.09 Motion for Summary Judgment, Adjudication 679
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.09
Excerpt: ...f's motion to set the trial date against the estate of Robert Bray by September 7, 2023. To deny the alternative moton to extend the five-year statute for bringing the case to trial. Explanation: Summary Judgment Motion To the extent plaintiff seeks summary judgment against defendant Adi McKissen, the court has already granted McKissen's motion for judgment on the pleadings as to all claims alleged against her without leave to amend. Therefore, p...
2023.08.09 Motion for Writ of Possession 297
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.09
Excerpt: ...f the instrument shall be attached. (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention. (3) A particular description of the property and a statement of its value. (4) A statement, according to the best knowledge, information, and belief of t...
2023.08.08 Motion for Leave to File FAC 678
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.08.08
Excerpt: ...ivision (a), "[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, ora mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may...
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 ...

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