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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 Demurrer 660
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.07
Excerpt: ...ls to state facts sufficient to constitute a cause of action[.l " (Dem., p. 2:15-17, citing Code Civ. Proc., 5430.10, subd. (e).) Any valid cause of action overcomes a general demurrer. (Quelimane Co., Inc. v. Stewart Title Guarantee Co. (1998) 19 Cal.426, 38-39.) The court must overrule a general demurrer if the complaint states a cause of action under any possible legal theory. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) ...
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 ...
2023.06.01 Motion for Sanctions 205
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.01
Excerpt: ...s "[dlisobeying a court order to provide discovery" a "misuse of the discovery process," but sanctions are only authorized to the extent permitted by each discovery procedure. Once a motion to compel answers is granted, continued failure to respond or inadequate answers may result in more severe sanctions, including evidence, issue or terminating sanctions, or further monetary sanctions. (Code Civ. Proc. SS 2030.290, subd. (c); 2031.300, subd. (c...
2023.05.31 Motion for Attorney Fees 450
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.31
Excerpt: ...are incurred to enforce that contract, shall be awarded either to one of the parties or 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...
2023.05.25 Motion to Set Aside Default 386
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.25
Excerpt: ..., subdivision (b). 1 On application, the court may, on any terms as may be just, relieve a party from a default taken against it due to mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., S 473, subd. (b).) This is defendant's second motion to set aside his default. Defendant's first motion was denied by the court, without prejudice, pursuant to the minute order adopting the Tentative Ruling on November 10, 2022 ("Prior Rulin...
2023.05.25 Motion to Grant Final Approval of Class Action Settlement, for Attorney Fees, to Award Enhancement 450
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.25
Excerpt: ...he amount of $167,650.00. To grant administrator costs in an amount of $4,630.00. To grant plaintiff Jesse Cruz, class representative, an incentive award in the amount of $5,000.00. The court will sign the proposed judgment submitted. Notice of the judgment is to be given to class members by an insert with the checks distributed to them, which insert refers the class to the Court's Odyssey search link and gives the case number for this case. (Cal...
2023.05.25 Motion to Discharge Stakeholder, for Attorney Fees 512
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.25
Excerpt: ...n equitable proceeding. (Southern California Gas Co. v. Flannery (2014) 232 Cal.App.4th 477, 485.) It provides a procedure where a person holding funds or property, to which conflicting claims are made by others, can force claimants to litigate their claims to the funds or property among themselves. (Code Civ. Proc., S 386; City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122.) Once the person admits liability and deposits the funds with...
2023.05.25 Motion to Compel Arbitration and Dismiss Representative Claims 266
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.25
Excerpt: ... his PAGA claim aga-nst defendants, and dismiss the representative portion of the PAGA claim. Explanation: A trial court is required to grant a motion to compel arbitration "if it determines that an agreement to arbitrate the controversy exists." (Code Civ. Proc., S 1281.2.) However, there is "no public policy in favor of forcing arbitration of issues the parties have not agreed to arbitrate." (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 14...
2023.05.25 Motion for Summary Adjudication 169
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.25
Excerpt: ...reasonable ground for believing it to be true." (Civ. Code, S 1710, subd. (2).) "The Supreme Court has held: 'Negligent misrepresentation is a separate and distinct tort, a spec:ies of the tort of deceit. "Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit." The Court of Appeal has held: 'The elements o...
2023.05.24 Motion to Compel Further Responses, for Sanctions 575
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.24
Excerpt: ...esponses to Special Interrogatories, Set Three, Nos. 75, 78, and 86. To grant and compel further responses to Request for Production of Documents, Set Two, Nos. 21 and 26, and order plaintiffto all relevant documents, within 20 days of service of the order by the clerk. To impose monetary sanctions in the total amount of against plaintiff Grupo Comunitario de San Miguel Cuevas, in favor of defendant Harmony Communities, Inc., payable no later tha...
2023.05.24 Motion for Summary Judgment, Adjudication 446
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.24
Excerpt: ...ulative. To overrule all of defendant's remaining objections to the expert declaration provided by plaintiff. To overrule all of plaintiff's objections to the expert declaration provided by defendant. Explanation: Declarations by expert witnesses are generally required when expert witness testimony would be required at trial (such as on the issue of the standard of care in a professional malpractice case). (See e.g. Kelley v. Trunk (1998) 66 Cal....
2023.05.24 Demurrer to FAC, Motion to Strike Punitive Damages 256
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.24
Excerpt: ...to the first amended complaint within 10 days of the date of service of this order. Explanation: Meet and Confer: First of all, it does not appear that defendant complied with the meet and confer requirement for demurrers and motions to strike before bringing the present motions. 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 w...
2023.05.23 Motion for Judgment on the Pleadings 665
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.23
Excerpt: ...f action for premises liability, without leave to amend. Explanation: In January 2022 plaintiff Manuel Salazar suffered severe personal injuries in an accident that occurred while he was riding his dirt bike in the Kings River riverbed. He alleges a gap in a mountain of dirt created by Stoney's caused him to fall off his bike. In addition to the operator, Stoney's Sand & Gravel LLC (Stoney s), he has sued Carol Evans and Michael Evans (the Evans ...
2023.05.23 Motion to Compel Compliance, for Sanctions 636
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.23
Excerpt: ...'s prior order on a motion to compel further responses to inspection demands, entered on July 26, 2022. Plaintiff moves under Code of Civil Procedure section 2031.320, which states that "if a party fails to obey an order compelling inspection, copying, testing, or sampling, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. (Code Civ. Proc. S 2031.320, sub...
2023.05.23 Motion to Strike Punitive Damages 066
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.23
Excerpt: ...damages from the complaint. Defendants content that the complaint fails to state sufficient facts to support the prayer for punitive damages as to each of them. The court notes initially that there is a dispute as to the timeliness of the present motion. Code of Civil Procedure section 435, under which defendants move, allows for the filing of a motion to strike within the time allowed to respond to a pleading. (Code Civ. Proc. S 435, subd. (b)(l...
2023.05.23 Motions to Compel Compliance with Deposition Subpoena, to Deem RFAs Admitted 175
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.23
Excerpt: ...fied in plaintiffs' Requests for Admission, Set Two, are deemed admitted, unless defendant serves, before the hearing, proposed responses to the requests for admission that are in substantial compliance with Code of Civil Procedure, Section 2033.220. Explanation: Compel Compliance with Deposition Subpoena Plaintiffs Sharon Vulich, individually, and as successor in interest to the Estate of Jerry Vulich, Nicole Vulich Miller, Crystal Vulish, and J...
2023.05.03 Motion for Preliminary Approval of Class Action and PAGA Settlement 164
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.03
Excerpt: ...ation before it can 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 action 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' representatio...
2023.05.02 Motion for Summary Judgment, Adjudication 785
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.02
Excerpt: ...ition of public property. To grant the CitVs motion for summary adjudication of the third crossclaim for property damage brought by Reyes and Melissa Robles. Explanation: Motion as to the Dangerous Condition Claims: The City mcwes for summary judgment as to all of the claims brought by California Automobile Insurance Company, State Farm Mutual Automobile Insurance Company, Kathy Hayden, and Reyes and Melissa Robles in their complaints and cross-c...
2023.05.02 Motion for Summary Judgment, Adjudication 485
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.05.02
Excerpt: ...ding supersedes the original one, which ceases to perform any function as a pleading. Thus, an amended complaint su#rsedes all prior complaints. The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment. [q] Because there is but one complaint in a civil action, the filing of an amended complaint moots a motion directed to a prior com...
2023.04.27 Motions to Compel Further Responses 166
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.27
Excerpt: ...erified responses without objections within 20 days of the date of service of this order. Explanation: Plaintiffs have moved to compel defendant Foster Poultry Farms to provide further responses to form interrogatories, special interrogatories, and requests for of documents that seek information about all employees of defendant who were employed during the class period as defined by plaintiffs' complaint. Defendant has objected on various grounds...
2023.04.27 Motion for Leave to File FAC 596
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.27
Excerpt: ...ng party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, is not only error but an abuse of discretion." (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) California Rules of Court, Rule 3.1324 provides that a motion to amend must: (1) include a copy of the proposed amendment, (2) state what allegations in...
2023.04.26 Motion for Determination of Good Faith Settlement 745
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.26
Excerpt: ...order determining faith settlement. To find that the settlement Plaintiffs and Cirks Construction, Inc. is in faith. To deny without prejudice, the motions for order determining good faith settlement of Lazy Dog Restaurants, LLC, LDR Holdings, LLC, Villagio Shopping Center, LLC, and Manco Abbott, Inc. Explanation: "Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall ...
2023.04.20 Demurrer, Motion to Strike 296
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.20
Excerpt: ... replacement of the vehicle or reimbursement of the purchase price paid for the vehicle, specifically paragraph 34 and the prayer on page 10, paragraph A, are striken without leave to amend. The motion to strike the prayers for attorneys' fees and costs is denied. Explanation: Demurrer Toyota demurs to the second cause of achon for violation of the Magnuson-Moss Warranty Act ("MMWA") on the grounds that the First Amended Complaint ("FAC") fails t...
2023.04.19 Motion to Strike TAC 695
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.19
Excerpt: ...cton. There, she was placed on a gurney and was given an injection that she was told would make her drowsy. While still on the gurney, plaintiff was moved to a different hall way and was placed under the care of a male nurse, the moving defendant Freddie Rodriguez ("defendant"). Plaintiff alleges that defendant said he would take care of her and "help her with whatever she needed while addressing her in an overly friendly manner." (TAC, '1 5.) Pl...
2023.04.19 Motion for Final Approval of Class Action Settlement, for Attorney Fees 450
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.19
Excerpt: ...before May 9, 2023, plaintiff must file supplemental declarations correcting the problems noted below. Explanation: There are numerous technical problems with this motion and supporting papers, which prevent the court from considering the merits. First, both the Settlement Agreement (Bolce Dec„ Exhibit A) and the "Notice of Class Action Settlement" (ld., Exhibit 8) are missing pages, and there are no signatures showing on the Settlement Agreeme...
2023.04.19 Motion for Default Judgment 866
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.19
Excerpt: ...uest for treble damages and attorney's fees pursuant to Penal Code section 495. (Cal. Rules of Court, Rules 3.1WJ, subd. (a)(l); Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 257, 288.) [Although no evidence relating to liability is necessary for a prove-up hearing, evidence establishing a prima facie case for damages is required.] By defaulting, cross-defendant admits liability for the debt or obligation on all well pled causes of actio...
2023.04.18 Motion for Summary Judgment, Adjudication 621
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.18
Excerpt: ...ation providing for this on or before May 3, 2023, together with the declarations from each party required by this subdivision. Civ. Proc., S 437c, subd. (t)(1)(A)(i) and (ii).) he stipulation must specify that the issue to be adjudicated is: "Did the PAGA claim survive the plaintiff's death, or did it abate, and if it abated, have defendants waived the issue?" The stipulation must also provide that the parties expressly waive the requirements fo...
2023.04.13 Motion to Quash Summons and Complaint 466
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.13
Excerpt: ...mply with The Superior Court of Fresno County, Local Rules, rule 2.1.5 ("rule 2.1.5"), which causes this court to lose personal jurisdiction over her. Defendant is mistaken. Rule 2.1.5 states: A plaintiff shall serve all named defendants with all pleadings and notices required by these rules or other law, including notice of a Case Management Conference, and shall file proof of service with the court, within sixty (60) days from the date the comp...
2023.04.13 Motion to Deem RFAs Admitted, for Monetary Sanctions 465
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.13
Excerpt: ...fendant Juan Zaragoza and Martinez, Dieterich & Zarcone Legal Group (formerly known as Chavez Legal Group), jointly and severally, payable within 20 days of the date of this order, with the tme to run from the service of this minute order by the clerk. The matters specified in plaintiff Valerie Valero's Requests for Admission, Set One, propounded on Mr. Zaragoza are deemed admitted, unless Mr. Zaragoza serves, before the hearing, proposed respons...
2023.04.13 Motion for Leave to File FAC 485
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.13
Excerpt: ...endment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citation.] 'In the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial.... Motions to amend are appropriately granted as late as the first day of trial or even during trial if the defendant is ...
2023.04.13 Demurrer, Motion to Strike 916
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.13
Excerpt: ...an be filed will run from service by the clerk of the minute order. To overrule defendant's moton to strike as to punitive damages. To overrule defendant's moton to strike paragraphs 35 through 70. 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 caus...
2023.04.12 Motion to Compel Arbitration 695
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.12
Excerpt: ...bitrate." (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) "Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute." (Mendez v. Mid Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) Defendant Nissan North American, Inc. ("Nissan") moves to com#l arbitration of plaintiff's action pursuant to an arbitration clause in a retail installmen...
2023.04.12 Demurrer to FAC 306
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.12
Excerpt: ...e 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. Defendants filed the instant demurrer to the First Amended Complaint ("FAC") on several grounds: (1) the court lack jurisdic...
2023.04.06 Motion for Terminating Sanctions 175
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.06
Excerpt: ...ns against defendant Himanchal Verma in the amount of $500 for failure to serve discovery responses in compliance with the court's July 19, 2022 order. (Code Civ. Proc. SS 2023.030, subd. (a); 2030.300, subd. (e).) Explanation: Court's Motion to Strike the Answer of AC Express, LLC Defendant AC Express, LLC filed an answer to the complaint on August 30, 2021 as a self-represented litigant and, to date, remains without attorney representation. Thi...
2023.04.06 Motion for Summary Judgment 561
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.06
Excerpt: ...dly to have been secured by real property (the "Property") sold by Plaintiff to Michael Cornell, deceased spouse defendant Margaret Cornell. Objections Initially, the court notes that it sustains objection number 6 to the Vic Pasnick email, as the document is not authenticated and constitutes hearsay. The remainder of the objections are overruled. Request for Continuance According to Plaintiff's counsel, Plaintiff has been out of the country sinc...
2023.04.06 Motion for Relief to File Late Claim 456
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.06
Excerpt: ...termine the appropriate public entity for petitioners' government claims; however, these efforts proved unsuccessful until. Representation on another matter for the driver, Mr. Steele, concluded and in the process of closing out that matter, this matter was inadvertently marked as resolved in the law firm's calendaring system. Counsel discovered this error in September of 2022, four months after the petitioners' claims should have been presented ...
2023.04.06 Motion for Attorney Fees 069
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.06
Excerpt: ...planation: Plaintiff is Entitled to an Award of Fees and Costs A prevailing plaintiff under the Consumer Legal Remedies Act (CLRA) is entitled to an award of his or her attorney's fees and costs. Under Civil Code section 1780, subdivision (e), "The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section." (Italics added.) Here, plaintiff is the prevailing party in the CLRA litigatio...
2023.04.05 Motion to Compel Arbitration and Stay Action 326
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.05
Excerpt: ...for denial of the moton exists (e.g., fraud, unconscionability, etc.) (Rosenthal v. Great Western Finll Securites 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.) Defendants contend that the alleged arbitration agreement in this case is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. SS 1, et seq. Section 2 of the F...
2023.04.05 Demurrer to FAC 025
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.04.05
Excerpt: ...by plaintiffs Richard Gaestel and Cindee Gaestel Lopez (collectively "Trustee Plaintiffs"). In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of achon u...

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