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2020.10.29 Demurrer, Motion to Strike 685
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.10.29
Excerpt: ...f Rights, which is granted without leave to amend. Defendant is granted 10 days' leave to file its answer to the complaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer The Complaint alleges sufficient facts for a cause of action for Elder Abuse and Neglect if the plaintiff shows: (1) Defendant had a responsibility for meeting the basic needs of Plaintiff; (2) Defendant kn...
2020.10.28 Motion for Summary Judgment, Adjudication 065
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.10.28
Excerpt: ...the motion on the plaintiff. The proof of service indicates that the notice of motion and supporting documents were served on plaintiff by mail at 9720 Zelzah Avenue, Apartment 207 in Northridge California. However, plaintiff's address of record with the court is 17730 Lassen Street, Apartment 123 in Northridge. Since the address on the motion proof of service does not match the address of record with the court, it does not appear that plaintiff ...
2020.10.27 Motion for Approval of PAGA Settlement 866
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.10.27
Excerpt: ...des evidence at the hearing that the LWDA has been served with the settlement agreement and motion for approval, then the court intends to approve the settlement. Explanation: 1. Introduction Under Labor Code section 2699, subdivision (a), the Private Attorneys General Act of 2004 (“PAGA”), “Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and ...
2020.10.27 Demurrer, Motion to Strike 546
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.10.27
Excerpt: ...tion to strike is granted, in part. (Code of Civ. Proc., § 436, subd. (b).) Plaintiff is granted leave to amend to include future plaintiffs who become eligible for relief. Explanation: Demurrer Demurrer ‐ General Standard of Ruling “The rule governing pleading in this state is that a plaintiff need only ‘set forth the ultimate facts constituting the cause of action, not the evidence by which [the] plaintiff proposes to prove those facts' ...
2020.10.21 Motion for Protective Order 926
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.10.21
Excerpt: ...mount of $1,060. (Code Civ. Proc. § 2017.020, subd. (b).) Plaintiff shall pay monetary sanctions to defendant within 30 days of the date of this order. Explanation: Under Code of Civil Procedure section 2017.020, “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence...
2020.10.20 Motion for Certification of Class for Settlement, for Approval of Class Action Settlement 746
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.10.20
Excerpt: ...n must establish three things: (1) the existence of an ascertainable and sufficiently numerous class; (2) a welldefined community of interest; and (3) substantial benefits from certification that render proceeding as a class superior to the alternatives. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) Whether the Class is Sufficiently Numerous and Ascertainable. A class is required to be ascertainable in order to give p...
2020.10.20 Demurrer 906
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.10.20
Excerpt: ...ublication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702, internal quotes omitted.) Plaintiffs have clearly alleged a publication by defendant, since they allege she, or her agent, posted the picture attached as Exhibit 1 (itself an arrangement of photos and text) to her Facebook account. A person posts something to Faceb...
2020.09.16 Motion for Summary Judgment, Adjudication 358
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.16
Excerpt: ...y adjudication as to all claims alleged against Signal Energy Constructors, LLC. To grant summary adjudication as to vicarious liability only, with regard to Signal Energy, LLC. To deny summary adjudication in all other respects. Explanation: A defendant moving for summary judgment or adjudication has the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co...
2020.09.16 Motion for Judgment on the Pleadings 915
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.16
Excerpt: ...ter Dal Pezzo, on all causes of action, based on lack of standing, with leave to amend; 3) to the extent plaintiffs can sufficiently plead delayed discovery and Mr. Dal Pezzo's standing, to deny the motion as to the two breach causes of action; 4) to grant the motion as to the Consumer Legal Remedies Act (CLRA) cause of action with regard to the LLC plaintiff, Scuderia Dal Pezzo, LLC, without leave to amend; and 5) to the extent plaintiffs can su...
2020.09.15 Demurrer 926
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.15
Excerpt: ...the legal sufficiency of the complaint, raising issues of law regarding the form or content of the pleading. A general demurrer for failure to state a cause of action asks the court to consider whether all essential elements of each cause of action have been alleged. (Code Civ. Proc., §§ 422.10, 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In ruling on a demurrer, the court should construe the complaint liberally “wit...
2020.09.10 Motion to Compel Deposition, for Sanctions 165
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.10
Excerpt: ...equested documents on or before September 20, 2020. To impose monetary sanctions in the amount of $ 4,950 against defendant Fresno Community Hospital & Medical Center and its attorneys of record, King & Spalding LLP. (Code Civ. Proc., § 2025.450.) Sanctions must be paid to Carpenter Law within 30 days after service of this order. If oral argument is requested, the court will consider the additional costs incurred for plaintiff. Explanation: A pa...
2020.09.10 Motion for Class Certification and Preliminary Approval of Settlement 150
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.10
Excerpt: ...1, 620.) California requires admissible proof sufficient to meet the substantial evidence test. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470; Lockhead Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106.) “Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well‐defined community of interest, and (3) that certification will provide substantial benefits to litigants and the c...
2020.09.09 Demurrer 559
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.09
Excerpt: ... be set in boldface type. Explanation: General Standard of Ruling 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. (Highlander...
2020.09.09 Motion to Quash Deposition Subpoena, for Protective Order 569
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.09
Excerpt: ...grant monetary sanctions against John Waterman in the amount of $1,460.00, 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. Defendants may re‐notice the deposition at a mutually convenient date and time, and Mr. Waterman shall appear and be deposed. Explanation: As an initial matter, the court notes that defendants Rite Aid Corporation and Thrifty PayLess, Inc. (collectiv...
2020.09.09 Motion for Judgment on the Pleadings 585
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.09
Excerpt: ...cussed below. (Code Civ. Proc. § 438.) To grant leave to amend. Plaintiff shall file and serve his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. To grant defendants Bank of America and Countrywide Bank's motion for judgment on the pleadings as to the entire complaint. To grant leave to amend as to the first and tenth causes of action, but to deny leave to amend as to the ot...
2020.09.08 Motion for Summary Judgment, Adjudication 275
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.08
Excerpt: ...of action five: Summary adjudication is denied as to cause of action five, as it applies to defendant Solorio. Summary adjudication is granted for sexual, gender, and national origin/racial discrimination only, as to Sarama and denied on all other bases. To the extent claims against Kalel, Inc. are derivative, they are granted and denied accordingly. Causes of action six and seven: Summary adjudication is denied. Explanation: Plaintiff alleges th...
2020.09.03 Motion for Attorney's Fees 550
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.03
Excerpt: ...�Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to make an initial determination of the...
2020.09.02 Motion to Compel Neuropsychological Exam 465
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.02
Excerpt: ...0(a)(1), 3) testing is limited to the tests described in Amended Notice for the June 8, 2020 date, 4) the exam is limited to eight hours, and 5) that the exam be completed by October 31, 2020. To deny sanctions. Explanation: An independent mental examination “is the only procedure as to which a court order is still required before commencing discovery. Notice and hearing are deemed essential to protect against unreasonable examinations and to s...
2020.09.01 Motion for Summary Judgment, Adjudication 926
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.09.01
Excerpt: ...dant “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If defendant meets this burden, then the burden of production shifts to plaintiff “to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) Summary adjudication is the proper mechanism for challenging a par...
2020.08.27 Demurrer, Motion to Strike 175
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.08.27
Excerpt: ...minute order. New allegations in the Fourth Amended Complaint are to be set in boldface type. Explanation: Where the complaint fails to plead ultimate facts, the complaint is subject to demurrer. (Code of Civil Procedure § 430.10(e); Berger v. California Ins. Guar. Ass'n (2005) 128 Cal.App.4th 989, 1006.) Essentially, “[a] complaint must allege the ultimate facts necessary to the statement of an actionable claim. It is both improper and insuff...
2020.08.26 Motion for Class Certification and Preliminary Approval of Settlement 969
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.08.26
Excerpt: ...). They involve numerous pretrial motions that raise difficult legal issues which are time‐consuming to resolve, and involve significant documentary and other evidence. Motions seeking class certification in conjunction with settlement approval are exceptionally demanding, as the Court is the sole guardian of the rights of the absent class members who will be bound. “[S]ettlement class actions present unique due process concerns for absent cl...
2020.08.19 Motion to Strike 736
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.08.19
Excerpt: ...a Salazar based on the allegations that Salazar drove his vehicle recklessly at a high rate of speed without looking in his rear view mirror while backing out of a driveway in a residential neighborhood. (Complaint, EX‐2.) He “accelerated the vehicle loudly causing the tires to screech as he backed out of the driveway at an extremely excessive speed.” (Ibid.) Defendant allegedly knew that decedent was directly behind him, standing next to a...
2020.08.19 Motion for Terminating Sanctions, Monetary Sanctions 675
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.08.19
Excerpt: ...s Guardian Angel's Adult Day Health Care LLC and John Thao are stayed until the February 11, 2020 Order for Discovery is obeyed. The court awards an additional $820 in monetary sanctions payable by plaintiffs Guardian Angel's Adult Day Health Care LLC and John Thao, and attorney Douglas V. Thornton, jointly and severally, to Resnick & Louis, P.C. within 30 days of this clerk's service of this order. Explanation: Section 2023.010 defines “misuse...
2020.08.11 Demurrer, Motion to Strike 465
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.08.11
Excerpt: ...f the class allegations. (Code Civ. Proc., § 436, subd. (a).) To sustain the demurrer to the second cause of action, with plaintiff Terri Drew granted 10 days' leave to file a second amended complaint. (Code Civ. Proc., § 430.10, subd. (e), (f).) The time in which the complaint can be amended will run from service by the clerk of the minute order. All new allegations shall be in boldface type. The time in Explanation: Plaintiffs brought this co...
2020.08.06 Motion to Compel Further Responses, to Compel Psychological Records 238
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.08.06
Excerpt: ..., defendant Keith Ross (hereinafter “Ross”) shall provide further verified responses to Special Interrogatory nos. 1, 2, 4, 13‐16, 22‐24, 33, Requests for Production of Document nos. 1‐5, 7, 9, 17, 18, 20, 21, and Requests for Admission nos. 9, 19‐21, 29. The motions are otherwise denied. All documents responsive to the above production demands shall be produced within 20 days of service of the order. To impose $6,494 in monetary sanc...

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