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2024.01.03 Motion for Leave to File Complaint 016
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.03
Excerpt: ...sehold agreement with the defendants whereby they agreed to lease a single family residence located without Fresno County from defendants. The lease agreement was executed November 17, 2020. The lease included a move-in inspection sheet, notice of repair, and indemnity provisions. Plaintiff alleges that, on February 22, 2021, while residing upon the premises, she tripped and fell in a "defective portion" of the hal way, which caused serious injur...
2024.01.03 Demurrer to FAC 216
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.03
Excerpt: ...demurrers to plaintiff's first (breach of fiduciary duty), third (elder abuse), fifth (breach of implied covenant) and sixth (unfair business practice) causes of acton. To grant defendants' request for judicial notce. The court will take notice of its own records in the instant case for the fact of the filing of plaintiff's first amended complaint but not for the truth of the matters stated therein. Explanation: The express basis for the defendan...
2023.12.21 Motion for Preliminary Approval of Class Settlement 415
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.21
Excerpt: ... 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, fn. 9.) 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. (Luckeyv. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertif...
2023.12.20 Motion for Leave to Intervene in Action 360
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.20
Excerpt: ...defendant in resisting the claims of a plaintiff." (Code Civ. Proc., S 387, subd. (b)(2).) "A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests." (Code Civ. Proc., S 387, subd. (c).) "The court may, upon timely application, permit a nonparty ...
2023.12.20 Motion for Final Approval of Class Settlement 615
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.20
Excerpt: ...eady 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 certification of the class. Therefore, the court certifies the class for the purpose of final approval of the settlement. 2. Settlement a. Legal Standards "When, a...
2023.12.20 Motion for Approval of Settlement 745
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.20
Excerpt: ...ent thereon. Explanation: 1. Introduction under Labor Code section 2699, "[tlhe superior court shall review and approve any settlement of any civil acton filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that is submitted to the court." (Lab. Code, S 2699, subd. (i)(2).) The statute does not explain what exactly the trial court should consider when reviewing a proposed PAGA settlement. However, re...
2023.12.20 Demurrer to FAC 450
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.20
Excerpt: ... the second, third, fifth, and sixth causes of action, with leave to amend. (Code Civ. Proc. S 430.10, subd. (e).) To overrule on all other grounds. (Code Civ. Proc. S 430.10, subd. (e), Plaintiff shall serve and file an amended complaint within 10 days of the date of service of this minute order by the clerk. All new allegations shall be in boldface. Explanation: Defendants Yamaha Golf-Car Company ("Yamaha") and Cart Star Motors, LLC ("Cart Star...
2023.12.19 Motion to Enforce Settlement 046
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.19
Excerpt: ...of Civil Procedure, section 664.6 provides in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. (Code Civ. Proc., S 664.6, subd. Here, the parties have a writing and litigation is still pending. The writing was c...
2023.12.19 Motion to Approve PAGA Settlement 736
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.19
Excerpt: ...ffected." (Williams v. Superior Court (2017) 3 Cal.5th 531, 549, citing Labor Code secton "The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency' at the same tme that it is submitted to the court." ) [A1 trial court should evaluate a PAGA settlement to determine whether it is fair, reasonable, and adequate in view of PAGAls purposes to r...
2023.12.19 Motion for Leave to File TAC 856
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.19
Excerpt: ... defendants whereby credit was given based upon the value of their used car lot inventory value secured by the title certificates of those vehicles until sold or for 120 days, which ever occurred first, at which time the loan was to be paid off. The loan agreement was secured by a promissory note, vehicle collateral, a personal guarantee, and a surety bond. Plaintiff alleges that defendants failed to perform. Plaintiff filed its original complain...
2023.12.14 Motion for Summary Judgment, to Quash Subpoena, for Protective Order 485
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.14
Excerpt: ...ity Fruit Company, Inc. or, in the alternative, for a Protective Order Tentative Ruling: To deny the motion for summary judgment. To deny the motions to quash the deposition on Union Bank and U.S. Bank. To deny the motion to quash the deposition subpoena on Trinity Fruit Company, Inc. To deny the alternative relief sought for a protective order limiting the subject matter of the production. To deny every request for sanctions. To direct the parti...
2023.12.13 Demurrer 675
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.13
Excerpt: ...l demurrer on claims that "[t]he pleading does not state facts suffcient to constitute a cause of action." (Code Civ. Proc., S 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.l"].) In essence, "to withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law." (Logan v. Southern Cal. Rapid Transit Dist. (...
2023.12.12 Motion to Enforce Settlement, to Strike Costs 086
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.12
Excerpt: ...n: Enforce Settlement "Code of Civil Procedure section 664.6 provides a summary procedure to enforce a settlement agreement by entering judgment pursuant to the terms of the settlement... The court retains jurisdiction to enforce a settlement under the statute even after a dismissal, but only if the parties requested such a retention of jurisdiction before the dismissal. Such a request must be made either in a writing signed by the parties or ora...
2023.12.06 Petition for Relief from Claim Filing Requirement 925
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.06
Excerpt: ...days of the date of the service of this minute order. (Govt. Code, S 946.6, subd. (f).) Explanation: Petitioners Eileen and John Quinto petition to the court for relief from government claim filing requirements pursuant to Government Code, secton 946.6 on the ground that there was excusable neglect for the untimely filing of their government claims. Unless otherwise provided for, no suit for money or damages may be brought against a government en...
2023.12.06 Motion to Compel Responses, for Monetary Sanctions 966
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.06
Excerpt: ...ories (Set One), and Request for ProducŸon of Documents (Set One). Cross-complainant Emory Merin is ordered to serve veriÞed responses, without objecŸons, to cross-defendant within 30 days of service of the minute order by the clerk. To grant monetary sancŸons against cross-complainant in the total amount of $780. Monetary sancŸons are ordered to be paid within 30 calendar days from the date of service of the minute order by the clerk. E...
2023.12.05 Demurrer, Motion to Strike 606
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.05
Excerpt: ... page 18, line 6; page 19, lines 7-12; and page 19, line 28, with leave to amend. (Code Civ. Proc., S 436; Civ. Code, S 3294.) Plaintiff is granted 20 days' leave to file the second amended complaint. The tme to file the second amended complaint will run from service by the clerk of the minute order. All new allegations in the second amended complaint are to be set in boldface type. Explanation: Retaliation: Defendants, India Oven, Inc., Gurdev S...
2023.11.30 Motion to Compel Responses, for Monetary Sanctions 267
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.30
Excerpt: ...� General, Set One, and Requests for Production of Documents, Set One, and Request for Monetary Sanctions 3) Plaintiff's Moton to Compel Attendance of Defendant Joshua O'Bannon at his Deposition and Request for Monetary Sanctons * *If timely requested, oral argument will be heard on Thursday, December 7, 2023, at 3:30 p.m. in Department 502* * Tentative Ruling: To grant all motions. Within 20 days of service of the order by the clerk, defendants ...
2023.11.29 Petition to Coordinate Add-on Case 241
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.29
Excerpt: ...granted. The plaintiffs in the coordinated actions are owners and operators of pistachio orchards in the Central Valley. They allege that in the spring or summer of 2020 they applied to their pistachios the insecticide imidaclopris, manufactured by defendants Bayer, Albaugh, Rotan, Nutrien Ag Solutions, Inc., and Loveland Products, Inc. Plaintiffs thereafter delivered their 2020 pistachio crops to Horizon Nut Company, who informed plaintiffs that...
2023.11.28 Motion to Strike Attorney Fees 165
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.28
Excerpt: ...thin twenty (20) days from the date of this order. Explanation: A "contract may impliedly as well as expressly permit [l recovery" of attorneys' fees. (Citizens Suburban Co. v. Rosemont Development Co. (1966) 244 Cal.App.2d 666, 683 (Citizens).) However, "[alttorney fees cannot be allowed a successful litigant without pleading and proof that there is a contract provision for them[]" (Ibid), and a demand for judgment not supported by allegations c...
2023.11.28 Demurrer to FAC 186
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.28
Excerpt: ...A complaint showing on its face the cause of action is barred by the statute of limitations is subject to general demurrer." (Iverson, Yoakum, Papiano & Hatch v. Berwa d (1999) 76 Cal.App.4th 990, 995, citaton omitted.) A demurrer based on the statute of limitations is properly brought as a general demurrer for failure to state facts sufficient to constitute a cause of achon even though the section 430 does not mention the statute of limitation a...
2023.11.15 Motion to Compel Deposition of PMQ 650
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.15
Excerpt: ...in that Notice of Deposition as set forth herein, except with respect to Request nos. 14-18. Explanaton: Code of Civil Procedure section 2025.280 provides, in relevant part: "The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or employee of a party to attend and to testify as well as to produce any document for inspection and copying." (Code Civ. Proc., S 2025.280, subd. Cod...
2023.11.15 Motion to Approve PAGA Settlement 736
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.15
Excerpt: ... of the settlement of plaintiff's action for PAGA penalties against defendant set forth in its February 23, 2023 ruling. However, the request for one-third of the gross settlement to be awarded as attorney's fees remains unsupported. The court intends to perform a lodestar calculation to double check the reasonableness of the fee request. (Laffitte v. Robert Half Internat. (2016) 1 Cal.5th 480, 504- 506.) Labor Code section 2699, subdivision stat...
2023.11.14 Motion for Summary Judgment, Adjudication 155
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.14
Excerpt: ...gment law turns on issue finding rather than issue determination. (Diep v California Fair Plan Assln (1993) 15 Cal.App.4th 1205, 1207.) The court does not decide the merits of the issues, but merely discovers, through the medium of affidavits 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 s...
2023.11.14 Motion for Summary Judgment 425
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.14
Excerpt: ... (the "underlying Action"). Labiak moves for summary judgment on the ground that the claim is barred by the one-year statute of limitations. " he applicable statute of limitations for legal malpractice claims is secton 340.6." (Truong v. Glasser (2009) 181 cal.App.4th 102, 110, 103 cal.Rptr.3d 811.) It provides that a malpractice action must be commenced "within one year after the plaintiff discovers, or through the use of reasonable diligence sh...
2023.11.09 Motion for Trial Preference 296
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.09
Excerpt: ...dings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party s interest in the litigation. Civ. Proc., S 36, subd. "upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no contnuance beyond 120 days from the granting of the motion for prefer...
2023.11.08 Demurrer 076
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.08
Excerpt: ... 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 his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing t...
2023.11.07 Motion to Disqualify Counsel 745
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.07
Excerpt: ...he opposing party disclosed to the expert with an expectation of confidentiality. (Shadow Traffic Network v. Superior Court (1994) 24 Cal. App. 4th 1067, 1078-80.) "Because the burden is on the party seeking to disqualify the expert, that party should point to specific and unambiguous disclosures that if revealed would prejudice the party." (Hewlett-Packard co. v. EMC corp. (N.D. cal. 2004) 330 F.supp.2d 1087, 1094.) The party should not be requi...
2023.11.07 Demurrer to FAC 260
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.07
Excerpt: ...to the demurring defendants. Explanation: 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 his complaint. (Highlanders, Inc. v. Olsan (1978...
2023.11.02 Demurrer to FAC 659
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.02
Excerpt: ... eighth [sic, tenthl cause of action. (Code Civ. Proc. (Code Civ. Proc. S 430.10, subd. (f).) Leave to amend is granted to correct the mis-numbering of the ninth and tenth causes of action in addition to the two causes of action for breach of fiduciary duty. Plaintiff is granted 10 days' leave to file the Second Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. ...
2023.11.01 Motion to Compel Initial Responses, to Admit Truth of Facts, for Monetary Sanctions 552
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.01
Excerpt: ...rd in Department 502 on Wednesday, November 1, 2023 at 3:30 pm ** Tentatve Ruling: To grant. (Code Civ. Proc., SS 2030.290, 2031.300.) Within 20 days of service of the order by the clerk, defendant Maria Angelica Ruiz Maciel shall serve objection-free responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One, and produce all responsive documents. The matters specified in plainti...
2023.11.01 Demurrer 336
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.01
Excerpt: ...murrer to the fourth cause of action and to sustain the general and s#cial demurrers as to the first, second, third, and sixth causes of action, with thirty (30) days leave to amend, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: General and Special Demurrers The basis for this demurrer is that the complaint, in its entirety, fails to state facts sufficient to cons...
2023.10.31 Demurrer 897
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.31
Excerpt: ...d claims are barred by the economic loss rule, as the defendants/cross-complainants have only alleged that they suffered financial harm due to plaintiffs' alleged breach of their contractual duties. Plaintiffs contend that, because defendants only allege economic harm from a contract breach, they cannot reccwer in tort as well. It is true that "[a] person may not ordinarily recover in tort for the breach of duties that merely restate contractual ...
2023.10.26 Motion to Quash Service of Summons 550
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.26
Excerpt: ... justifying the exercise of jurisdiction." (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449.) Once the plaintiff meets their burden of establishing minimum contacts, the burden shifts to the defendant to demonstrate that exercising jurisdiction would be unfair or unreasonable. (Secrest Machine Corp. v. Superior Court (1983) 33 Cal.3d 572.) Personal jurisdiction is either general, where the nonresident's contacts with the fo...
2023.10.25 Motion to Compel Further Responses 485
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.25
Excerpt: ...ney, jointly and severally, payable no later than 30 days from the date of this order, with the time to run from the service of this minute order by the clerk. Civ. Proc. SS 2030.31W, subd. (d), 2023.010, subd. (h).) Explanation: A motion to compel further responses lies where the responses to the interrogatories are deemed improper by the propounding party, i.e., meritless or overly general objections, evasive or incomplete answers. (Code Civ. P...
2023.10.25 Motion for Summary Judgment, Adjudication 253
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.25
Excerpt: ...ent with the court's summary judgment order. Explanation: As the moving party, defendant bears the initial burden of proof to show that plaintiffs cannot establish one or more elements of their cause of action or to show that there is a complete defense. Civ. Proc., S 437c, subd. Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts...
2023.10.24 Motion to Compel Responses, to Deem RFAs Admitted, for Monetary Sanctions 385
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.24
Excerpt: ...ries (Set One), Special Interrogatories (Set One), and Request for Prtxluction of Documents (Set One). Plaintiff Dwayne Williams is ordered to serve verified responses, without objections, to defendant within 30 days of service of the minute order by the clerk. To grant defendant Jaene Ojeda Mendoza's requestto deem Requests for Admissions admitted. The truth of the matters specified in the Requests for Admissions, Set One, are to be deemed admit...
2023.10.19 Motion for Summary Adjudication 865
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.19
Excerpt: ...injured on the job while working for an electrical subcontractor on September 25, 2019 at a constructon site at 570 N Magnolia Ave., Clovis, California 93611. Defendants Perch Construction, Inc. and Frontline Plastering were the general contractor and subcontractor, respectively. Perch's cross-complaint against Frontline seeks to enforce the defense and indemnity provisions of their subcontract pursuant to which Frontline agreed to provide plaste...
2023.10.19 Demurrer to SAC 306
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.19
Excerpt: ...nia Attorneys, Administrative Law Judges and Hearing Offcers in State Employment ("Plaintiff") brings one cause of action for declaratory relief against defendants California Department of Human Resources and Eraina Ortega as Director for the California Department of Human Resources (collectively "Defendants"). Plaintiff seeks a judicial declaration of its rights as affected by Defendants' interpretation of certain state law. This court previousl...
2023.10.17 Motion for Summary Judgment 036
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.17
Excerpt: ...ruling. Explanation: A plaintiff is entitled to summary judgment if they have met their burden that '"each element of' the 'cause of action' in question has been 'proved,' and hence that 'there is no defense' thereto." (Aguilar v. Atlantic Richfield Co. (2CM) 25 Cal.4th 826, 8%'.) "A plaintiff has met his or her burden if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the pla...
2023.10.17 Motion for Final Approval of Class Settlement and PAGA Settlement 164
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.17
Excerpt: ...ounsel 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 responsibi...
2023.10.12 Motion for Summary Judgment, Adjudication 485
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.12
Excerpt: ...on: Defendant Stella Villagomez moves for summary judgment, or adjudication of the first amended complaint against her. Although moving defendant denies having taken, secreted, appropriated, obtained or retained any property from the plaintiff or the assistance of another of the same, plaintiff has demonstrated there is a dispute of these material facts. As a result, the motion is denied. Statute of Limitations and Plaintiff's Status as an "Elder...
2023.10.10 Demurrer to FAC 985
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.10
Excerpt: ... To sustain defendant Graney's special demurrers to causes of action Sustain special demurrers to causes of action 1, 2, 3, 6, 9, 10, 11-14, with plaintiff granted 10 days' leave to file a second amended complaint. (Code Civ. Proc., S 430.10, subd. To sustain Graney's general demurrers to causes of action 6, 7, 9, 10, 12 and 14, with leave to amend as to all but 6 and 12. To overrule general demurrers to causes of action 1, 2, 3, 5, 8, 11 and 13....
2023.10.05 Motion for Preliminary Approval of Class Action Settlement 864
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.05
Excerpt: ...Wershba v. Apple computer, Inc. (2001) 91 cal.App.4th 224, 240; see Dunk v. Ford Motor co. (1995) 48 cal.App.4th 1794, 1803, fn. 9.) The trial court has a "fiduciary responsibility" as the guardian of the absentee class members' rights to decide whether to apprcwe 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 certified for...
2023.10.04 Demurrer, Motion to Strike 726
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.10.04
Excerpt: ...emurrers to the seventh, eighth, and ninth causes of action as to all defendants, with leave to amend only as to Beau and Sunshine Pennington. To sustain the demurrers to the fifth and eleventh causes of action, without leave to amend. Plaintiff is granted 10 days' leave to file the Third Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To overrule the motion t...
2023.09.27 Application for Writ of Attachment, Temporary Protective Order 655
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.09.27
Excerpt: ...s or implied contract; (2) the claim is for a fixed or readily ascertainable amount of $500.00 or more, measurable by reference to the contract itself and based upon a computation that is reasonable and certain; and (3) not secured by an interest in real property. (Code Civ. Proc., S 483.010(a).) (CIT Group Equipment Financing, Inc. v. Super DVDI (2004) 115 Cal.App.4th 537, 541.) The plaintiff must at least establish a prima facie case. If the de...
2023.09.20 Demurrer, Motion to Strike 660
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.09.20
Excerpt: ... as to injunctive relief, with leave to amend. Plaintiffs are granted 10 days' leave to file the Second 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 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...
2023.09.12 Motion for Summary Judgment 815
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.09.12
Excerpt: ...st possess and exercise "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 his profession commonly possess and exercise; (2) a brea...
2023.09.06 Petition to Compel Arbitration and Stay Entire Action 685
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.09.06
Excerpt: ...rbitration 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 respndent to arbitrate the controversy it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been wa-ved by the petitioner; or (b) Grounds exist for the revocation o...
2023.08.31 Application for Default Judgment 205
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.31
Excerpt: ...eement for sale of the subject property, plaintiff has not proven that it only needs to pay only $29,941.24 in order to pay off the remaining balance under the agreement and receive title to the property. Plaintiff's evidence shows that the parties agreed that plaintiff would purchase the property for $250,000, with a right of first refusall to buy the remaining properties owned by the Virginia Shubin Barnett Living Trust for $12,500. (Exhibit D ...
2023.08.30 Demurrer 466
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.30
Excerpt: ...and (f).) Any amended pleading shall be filed within 20 days of the clerk's service of this order. New or different allegations in the first amended complaint are to be set in boldface type. 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., S 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [MA demurrer can b...
2023.08.30 Motion for Summary Judgment, Adjudication 485
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.30
Excerpt: ...djudication, of the first amended complaint against it. The court intends to deny the motion entirely. Defendant has not met its burden in addressing every theory of liability pled against it in the first amended complaint. Even if defendant had met fts burden, plaintiff has demonstrated there is a genuine dispute of material fact, notwithstanding the "factually void" discovery responses relied upon by defendant served in response to discovery re...
2023.08.30 Motion for Relief from Denial of Alleged Untimely Claim for Damages 265
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.30
Excerpt: ... Fresno ("County") concedes that the claims of both Petitioners Aksel Joseph Vega and the Estate of Alfonso A. Vega fall within separate statutory exemptions. (See Opp. at pp. 8:5 — 9:15 [citing Gov. Code, S 946.6, subds. (c)(2) and (c)(6).) Therefore, the petition is granted as to petitioners Aksel Joseph Vega and the Estate of Alfonso A. Vega, Jr. Petitoners Janice Palacios and Aksel Joseph Vega (parents of decedent) " '[Tlhe filing of a clai...
2023.08.30 Special Demurrer 495
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.30
Excerpt: ...nt. To grant the request for judicial notice. To sustain the general and special demurrers with ten (10) days leave to amend, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Plaintiff filed a first amended complaint and notice of non-opposibon on August 22, 2023. Opposition was due nine (9) court days prior to hearing, per Code of Civil Procedure, Section 1005(b). T...
2023.08.29 Motions to Dismiss Cross-Complaint, to Stay Cross-Complaint 915
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.29
Excerpt: ..., Inc. Explanation: Cross-defendant Induser Poniente has moved to dismiss or stay the action on the ground that California is an inconvenient forum, as the parties have already agreed to try the action in El Ejido, Spain. under Code of Civil Procedure secton 410.30, "When a court upon motion of a party or its own moton finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay o...
2023.08.29 Motion to Stay Proceedings Pending Completion of Criminal Case 876
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.29
Excerpt: ... a parallel criminal proceeding should be made in light of the particular circumstances and competing interests involved in the case. This means the decision maker should consider the extent to which the defendant's Fifth Amendment rights are implicated. In addition, the decision maker should generally consider the following factors: (1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it...
2023.08.29 Motion for Final Approval of Class Action Settlement, for Attorney Fees 196
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.29
Excerpt: ...s 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. Documentation as to the amount paid to class members must be filed on or before August 1, 2024. Explanation: 1. Final Class Approval The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous...
2023.08.29 Demurrers 025
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.29
Excerpt: ...the demurrers without leave to amend. The prevailing parties are directed to submit to this court, within seven days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Plaintiff Abel Perez filed a first amended complaint (FAC) against defendants Watchtower Bible and Tract Society of New York, Inc., Watch Tower Bible and Tract Society of Pennsylvania, and Christian Congregation of...
2023.08.24 Motion to Quash Service of Summons 966
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.24
Excerpt: ...her upcoming hearings. Explanation: Quashing Service of Summons The proof of service purporting to serve moving defendant shows service by substituted service on December 10, 2020, but it was not filed until June 20, 2023. Defendant filed this motion as soon as it learned plaintiff intended to treat this service as valid, even though defense counsel had spoken with plaintiff and informed her that defendant believed it was invalid and that she nee...
2023.08.23 Motion to Quash Service of Summons 966
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.23
Excerpt: ...her upcoming hearings. Explanation: Quashing Service of Summons The proof of service purporting to serve moving defendant shows service by substituted service on December 10, 2020, but it was not filed until June 20, 2023. Defendant filed this motion as soon as it learned plaintiff intended to treat this service as valid, even though defense counsel had spoken with plaintiff and informed her that defendant believed it was invalid and that she nee...
2023.08.22 Demurrer, Motion to Strike 550
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.22
Excerpt: ... order. Explanation: Meet and Confer Under Code of Civil Procedure section 430.41, "[blefore 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 of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer." (Code Civ. Proc., S 430.41, subd. (a).) "As par...
2023.08.17 Petition to Compel Arbitration 936
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.17
Excerpt: ...s for lack of standing pursuant to the United States Supreme Court's decision in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, 1925 ("Viking River"). The court intends to grant the petition to compel the arbitration of plaintiff's individual PAGA claims, however, the representative PAGA claims are stayed. Plaintiff Ariel Reyes was employed by defendant Mad Duck Brewing, LLC from November 2021 through January 2022 as a cook. On July...
2023.08.17 Demurrer, Motion to Strike 190
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.17
Excerpt: ... this minute order. Explanation: Plaintiff filed her original complaint which, stated eight (8) causes of action: religious discrimination (FEHA, Gov. Code S 12940(a)), harassment (FEHA, Gov. Code S retaliation (FEHA, Gov. Code S 12940(h)), hostile work environment (Gov. Code S 12940(k)), failure to engage in interactive process re accommodation (Gov. Code S failure to reasonably accommodate (Gov. Code S 12940(1)(1)), violation of labor code S 11...
2023.08.16 Motion for Determination of Good Faith Settlement 169
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.16
Excerpt: ...ettlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors .„." (Code Civ. Proc., S 877.6, subd. under Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488 (Tech-Bilt), whether the settlement falls within the parameters of the good faith "ball park" is evaluated from the information available at the time of settlement, "including a rough approximation of plaintiffs' total recovery an...
2023.08.15 Motion to Compel Further Responses 425
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.15
Excerpt: ...ervice of the order by the clerk. Explanation: On April 18, 2023, defendant Labiak filed motions to compel further responses to requests for admission, requests for production of documents, and form interrogatories. Four motions were calendared, but it appears that Labiak twice filed the moton directed at the form interrogatories. Hence, there were really only three motions. Plaintiff Zupancic was unrepresented at the time she served the response...
2023.08.15 Motion for Final Approval of Class Settlement 615
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.15
Excerpt: ... reason for the court to reconsider its decision granting certification of the class. Therefore, the court certifies the class for the purpose of final approval of the settlement. 2. Settlement a. Legal Standards "When, as here, a class settlement is negotiated prior to formal class certification, there is an increased risk that the named plaintiffs and class counsel will breach the fiduciary obligations they owe to the absent class members. As a...
2023.08.10 Petition to Approve Compromise of Disabled Person 836
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.10
Excerpt: ... Joyce Henry cannot appear in court for her disabled adult daughter, Charmaigne Tyler. While Probate Code secŸon 3500 allows parents to Þle peŸŸons for compromise of a minor child's claim, there is no equivalent for disabled adults. SecŸon 372 of the Code of Civil Procedure provides that, when a person lacking legal capacity to make decisions or a person for whom a conservator has been appointed is a party, “that person shall appear ei...
2023.08.09 Motion for Monetary, Issue, or Evidentiary Sanctions 906
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.09
Excerpt: ...tions conditionally: If Plaintiff fails to comply with the court's December 15, 2022, order within 10 days of the clerk's service of this minute order, then the court grants the issue and evidence sanctions requested by the City of Fresno (the City), as set forth below. Explanation: Monetary Sanctions The failure to respond to a discovery request is a "misuse of the discovery process" under Code of Civil Procedure section 2023.010, subdivision (d...
2023.08.08 Demurrer 151
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.08.08
Excerpt: ...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: First thru Third Causes of Action: Breach of Contract, Implied Covenant, and Common Counts Standing can appropriately be tested by a general...
2023.07.26 Demurrer to FAC, Motion to Dismiss for Failure to Prosecute 415
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.26
Excerpt: ...int ("FAC") on 3/13/20, alleging that during a 2015 surgical procedure a part of the coil deployment system, a 24 cm long wire fragment, was left within Zachary Costi that should have been removed during the procedure. (FAC "1 12, 15, 15.) The device was not discovered until 2/1/19. The first two causes of action are essentially for medical malpractice, asserted against treating physicians. The third is for products liability (design and manufact...
2023.07.25 Motion to Compel Arbitration 043
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.25
Excerpt: ... claims. Explanation: In moving to compel arbitration, a defendant must prove by a preponderance of evidence the existence of the arbitration agreement and that the disputes are 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.) (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.) Writte...
2023.07.25 Demurrer to SAC 796
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.25
Excerpt: ...laint. (Code Civ. Proc., S 430.10, subd. (e).) The time in which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be in boldface type. Explanation: Strike the TAC The court may, on motion or at any time in its discretion, strike a pleading or allegations from a pleading in two situations: (a) the allegation is "irrelevant, false, or improper" or "superfluous" or "abusive" and (b) where the "p...
2023.07.20 Demurrer 425
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.20
Excerpt: ...ll 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 the ...
2023.07.19 Motion for Reconsideration 386
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.19
Excerpt: ...e following conditions, the motion is: (1) brought before the same judge that made the order; (2) made within 10 days after service upon the party of notice of the entry of the order; (3) based on new or different facts, circumstances, or law; and (4) made and decided before entry of judgment. Code of Civil Procedure section is jurisdictional. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) A party requesting the court reconsider its pr...
2023.07.18 Motion for Final Approval of Class Settlement 618
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.18
Excerpt: ...n 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 on or before July 3, 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, t...
2023.07.18 Motion for Final Approval of Class Settlement 685
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.18
Excerpt: ...e amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before July 3, 2024. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class, and has found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. In addition,...
2023.07.18 Motion to Set Aside Default 116
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.18
Excerpt: ...-defendants' demurrer and motion to strike set for September 12, 2023. Explanation: The default entered on April 24, 2023 was in error. The March 8, 2023 prtnf of service as to defendant was defective because the time did not indicate whether it was served at 11:00 a.m. or II:W p.m. and was signed on February 29, 2022, predating the filing of the complaint. The court may correct clerical mistakes in its judgment or orders and set aside any void j...
2023.07.13 Special Motion to Strike Complaint 259
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.13
Excerpt: ...ts for judicial notice, subject to limitations as described in the explanation below. Explanation: Defendant City of Fresno moves to strike the entire complaint under Code of Civil Procedure section 425.16, contending that the complaint is a strategic lawsuit against public participation ("SLAPP suit"), and thus it is subject to being stricken unless plaintiff can show by admissible evidence that he has a probability of prevailing on the merits o...
2023.07.13 Motion to Compel Depositions 575
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.13
Excerpt: ...na Luna motion and as to the Rufino Hernandez motion. Explanation: "Any party may obtain discovery . by taking in California the oral depsition of any person, including any party to the action." (Code Civ. Proc., S 2025.010.) Proper service of a notice of deposition compels any deponent to attend, to testify, and to produce documents if requested. Civ. Prcyc., S 2025.280, subd. (a).) Where a party deponent fails to appear at a properly noticed de...
2023.07.11 Petition to Reduce Required Voting Percentage for Amendment of CC&Rs 105
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.11
Excerpt: ...claration, the declaration requires members having more than 50 percent of the votes in the association, in a single class voting structure, or members having more than 50 percent of the votes in more than one class in a voting structure with more than one class, to vote in favor of the amendment, the association, or any member, may petition the superior court of the county in which the common interest development is located for an order reducing...
2023.07.11 Motion for Attorney Fees 346
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.11
Excerpt: ...eritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., 5425.16, subd. (a); see Martinez v. Metabolife Intern. , Inc. (2003) 113 Cal.App.4th 181, 186.) plaintiffs/cross-defendants prevailed on their ant-SLAPP motion as to the second cause of action in defendant/cross-complainant's cross complaint. The prevailing defendant on a special motion to strike "shall be e...
2023.07.06 Motion to Compel Arbitration and Stay Action 335
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.06
Excerpt: ...ies concerning this vehicle under the Song-Beverly Consumer Warranty Act (Civ. Code, SS 1790, et seq.).l Defendant moves to compel plaintiffs to arbitrate these claims based on the Retail Installment Sales Contract ("RISC") they signed with Turlock CDJR when they purchased the subject vehicle. Applicable Law A trial court is required to grant a motion to compel arbitration "if it determines that an agreement to arbitrate the controversy exists." ...
2023.07.06 Motion for Approval of PAGA Settlement 366
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.06
Excerpt: ...ecton ["The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency' at the same tme that it is submitted to the court."]) The trial court is to "evaluate a PAGA settlement to determine whether it is fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforceme...
2023.07.06 Application for Writ of Possession 226
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.06
Excerpt: ...or a writ of possession by filing a written application for the writ with the court in which the action is brought." Under secton 512.010, subdivision (b), "The application shall be executed under oath and shall include all of the following: (1) A showing of the basis of the plaintiffs claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiffs claim is a written instrument, a copy of the instrum...
2023.06.29 Motion for Summary Judgment, Adjudication 860
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.29
Excerpt: ...thin five days of service of the minute order by the clerk. To deny leave to file a cross-complaint as moot. Explanation: Summary Judgment Plaintiff filed suit for two causes of action: premises liability, and general negligence .1 Defendant Chipotle Mexican Grill, Inc. ("CMG") moves for summary judgment on the basis that no triable issues of material fact exist as to CMG's knowledge of a dangerous condition, and in any event, any alleged dangero...
2023.06.29 Motion for Reconsideration 065
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.29
Excerpt: ...entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.'" (Ramon v. Aerospace Corp. (1996) 50 Cal .App.4th 1233, 1236, quoting Passavant v. Williams (1990) 225 Cal.App.3d 1602, 1506.) Here, the court issued a tentative ruling granting defendant's motion to compel...
2023.06.29 Motion for Preliminary Approval of Class Action Settlement 864
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.29
Excerpt: ...ity 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, 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 condition...
2023.06.28 Demurrer, Motion for Sanctions 425
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.28
Excerpt: ...ns shall be in boldface type. To deny the motion for sanctions. Explanation: Demurrer The first cause of action is for breach of contract. "A cause of acton for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach." (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226...
2023.06.28 Motion for Discovery of Financial Condition 175
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.28
Excerpt: ...tion by the plaintiff supported by appropriate affdavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to S...
2023.06.27 Motion for Attorney Fees 450
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.27
Excerpt: ...to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." (Civ. Code, S 1717, subd. (a).) Also, under Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney's fees are recoverable as an item of costs when fees are authorized by contract. Here, de...
2023.06.27 Demurrer, Motion to Strike 588
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.27
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. If oral argument is timely requested, such argument will be heard at 2:30 p.m. on June 28, 2023, in Department 501. Explanation: On August 22, 2022, plaintiff f...
2023.06.22 Motion to Compel Further Responses, for Monetary Sanctions 540
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.22
Excerpt: ...prior to the subject incident to the present. To deny both parties' requests for monetary sanctions against each other. Plaintiffs shall serve further responses within 10 days of the date of service of this order. Explanation: Request for Production number 18 requests "A true and complete copy of all WRITINGS related to disability benefits received by Mr. Shire, including, but not limited to, the applications for such benefits, medical reports, d...
2023.06.22 Motion to Compel Arbitration 216
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.22
Excerpt: ...red by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the moton exists (e.g., fraud, unconscionability, etc.) (Hotels Nevada v. LA. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.) Written Agreement Unless there is a dispute over authenticity, the mere recitation of the terms is suffcient for a party to move to compel arbitration. (Sprunk v. Prisma LLC (2017) 14 Cal.Ap...
2023.06.22 Motion for Summary Judgment, Adjudication 621
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.22
Excerpt: ...be (1990) 219 cal.App.3d 1527, 1529; Nicholson v. Barab (1991) 233 cal.App.3d 1671, 1681.) The reply brief makes clear that plaintiff seeks summary judgment based on the parties' oral agreement, only, and not based on that agreement plus the email he sent to defense counsel later in the day after the mediation. However, this only complicates the issue, since the complaint includes a PAGA claim, and plaintiff's counsel's email included a term allo...
2023.06.21 Motion for Reconsideration, to Compel Further Responses, for Monetary Sanctions 699
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.21
Excerpt: ...the order entered by the court on the request for pretrial discovery conference. To grant plaintiffs motions to compel defendant to provde further responses to the disputed form interrogatories, special interrogatories, and requests for production of documents. Defendant shall provide supplemental responses, without objections, within 10 days of the date of service of this order. To grant plaintiff's request for monetary sanctions against defenda...
2023.06.15 Motion for Entry of Default Judgment 085
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.15
Excerpt: ...uest for Court Judgment. (Cal. Rules of rule 3.1800(a); Holloway v. Quetel (2015) 242 cal.App.4th 1425, 1432.) This alone requires the denial of the application. The specific relief requested must be indicated on Form CIV- IW, and the relief must list the categories of damages. Second, the present application further fails to submit a declaration of nonmilitary status for each defendant against whom judgment is sought. (Cal. Rules of rule Federal...
2023.06.14 Motion to Compel Arbitration, Stay 436
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.14
Excerpt: ... vehicle ensued which form the basis of the complaint for damages. Plaintiff brought four causes of action against each of defendant Lithia NC, Inc., dba Lithia Nissan of Clovis ("Lithia"), and the moving defendant Nissan North America, Inc. ("Nissan"), for violations of the Song-Beverly Act regarding warranties. Compel Arbitration Nissan moves to com#l arbitration on an arbitration clause in a retail installment sales contract ("RISC") made betw...
2023.06.14 Motion to Compel Arbitration, for Stay 946
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.14
Excerpt: ...sis of the instant complaint for damages. Plaintiff brought a single cause of action against defendant, for an express violation of warranties afforded through the Song-Beverly Act. Though the complaint characterizes the agreement as a lease, is undisputed that the agreement is a retail installment sales contract ("RISC") made between plaintiff and a non-party, Toyota of Clovis. Compel Arbitration A trial court is required to grant a motion to co...
2023.06.14 Motion for Summary Judgment 966
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.14
Excerpt: ...e Judicial Council complaint form, but filed only the first three introductory pages and failed to attach the pages required to comprise the causes of action. Even so, plaintiff did check the box for "general negligence" at Item 10b (page 3), and also added the following at the "other" box at Item 10f: "Missing the Statue [Sicl of Limitations, Not Keeping Copies of Client File, Failure to Perform, Failure to Communicate, Improper Withdraw." Const...
2023.06.08 Demurrer 260
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.08
Excerpt: ...murrer 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 his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697....
2023.06.07 Motion for Preliminary Approval of Class Action and PAGA Settlement 164
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.07
Excerpt: ... grant preliminary approval of the proposed settlement. An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class acton is proper. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representation of an uncontested ...

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