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2021.07.15 Motion to Quash Service of Summons and Complaint 465
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.07.15
Excerpt: ...a)(1) which provides that, “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve or file a motion … [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” “On a challenge to personal jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the evidence, the factual...
2021.07.15 Motion to Compel Deposition of PMK, Production of Docs 825
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.07.15
Excerpt: ...d when the 2016 Polaris Ranger Crew XP (“Subject Vehicle”) she was driving rolled over. Plaintiff alleges that the Subject Vehicle was defective in design, and in order to demonstrate that alternative safer designs were feasible when Polaris constructed the Subject Vehicle, Plaintiff seeks to depose the American Honda Motor Company and compel it to produce extensive documentation regarding the safety netting installed on Honda's UTVs. The dis...
2021.07.13 Motion for Summary Judgment 675
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.07.13
Excerpt: ...laims, plaintiffs must prove the same elements, namely that (1) defendant owed them a duty of care, (2) defendant breached that duty, and (3) plaintiff suffered damages as a proximate result of the breach. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) In order to prevail on a premises liability claim, plaintiffs must show that defendant owned, leased, occupied, or controlled the subject property. (Contreras v. Anderson (1997) 59 Ca...
2021.07.09 Motion for Summary Judgment 105
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.07.09
Excerpt: ...996) 45 Cal.App.4th 705, 713, quoting § 437c, subd. (c).) To prevail on a motion for summary judgment, it is the moving party's burden to prove there is a complete defense or that plaintiff cannot establish one or more elements of each of his causes of action. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.).) To show that plaintiff cannot establish his claims, defendant may either (1) affirmatively negate one or more elements of...
2021.07.08 Motion for Summary Judgment, Adjudication 236
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.07.08
Excerpt: ...'s request for judicial notice of Exhibits A through G pursuant to Evidence Code Secs. 452(a), 452(c) and 452(d)(1). To take judicial notice sua sponte pursuant Evidence Code Sec. 452(c) of the postings on the website of the California Secretary of State for the entity known as Valley Cardiac Surgery Medical Corporation. Explanation: Third Cause of Action—Retaliation and Wrongful Termination in violation of Labor Code Sec. 1102.5 Labor Code Sec...
2021.07.08 Motion for Summary Adjudication 644
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.07.08
Excerpt: ...t 502. Defendant Hurley's opposition shall be served and filed on or before Thursday, September 9, 2021. Plaintiff's reply shall be served and filed on or before September 17, 2021. Explanation: If the party opposing the motion for summary judgment or adjudication shows by declaration that essential evidence “may exist but cannot, for reasons stated, be presented,” the court shall deny the motion, or continue it for a reasonable period, or �...
2021.07.08 Motion for Preliminary Approval of Class Settlement 493
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.07.08
Excerpt: ... the Settlement Administrator, by January 10, 2022. Explanation: Certification of Class for Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected, although there is less scrutiny of manageability issues. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The ...
2021.07.08 Demurrer, Motion to Strike 425
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.07.08
Excerpt: ...r punitive damages only. Plaintiff is granted 20 days' leave to amend. The time in which an amended pleading may be filed will run from service by the clerk of the minute order. All new allegations in the amended complaint are to be set in boldface type. Explanation: This case was filed on December 9, 2019. Two causes of action are alleged: (1) negligence; and (2) legal malpractice. Defendant Stephen Labiak now demurs to both causes of action. Ea...
2021.07.07 Motion to Compel Arbitration 500
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.07.07
Excerpt: ...ndant Ford Motor Co.'s objections. None are material to the outcome of the instant motion. Explanation: Defendant Ford Motor Co. (“FMC”) now moves to compel arbitration. It brings the instant motion based on the broad language of the Arbitration Provision that plaintiff signed when she purchased the subject Vehicle. In relevant part, the Arbitration Provision states: Any claim or dispute, whether in contract, tort or statute… between you an...
2021.07.07 Demurrer 486
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.07.07
Excerpt: ...esire to file a first amended complaint, that must be done within 20 days from the date of this order and any new allegations must be in bold print. Explanation: “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., 452.) Furthermore, “[t]his rule of liberal construction means that the reviewing co...
2021.07.01 Motion for Summary Judgment 165
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.07.01
Excerpt: ...cedure, section 473c, subdivision (f)(2), “A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc., § 437c, subd. (f)(2).) If a party brings a renewed summary...
2021.06.29 Motion to File Docs Under Seal 305
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.06.29
Excerpt: ...2.551(a).) “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551(b)(1).) “The party requesting that a record be filed under seal must lodge it with the court under (d) when the motion or application is made, ...
2021.06.24 Motion for Summary Adjudication 325
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.06.24
Excerpt: ...lse factual assertion; (3) the factual assertion is false; and (4) the defendant failed to take reasonable care to determine the truth or falsity of the assertion. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 470; Judicial Council of Cal. Civ. Jury Instns. (Feb. 2021 rev.) CACI No. 1704.) However, where the plaintiff is a private figure suing over a statement addressing an issue of public concern, plaintif...
2021.06.17 Motion to Oppose Application for Good Faith Settlement 357
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.06.17
Excerpt: ...cy limit settlement with plaintiff was in good faith pursuant to Code of Civil Procedure sections 877 and 877.6. Defendants Jorawar Singh Nagra and Amandeep Singh dba Handi Stop Mini Mart (“Handi Stop”) filed this motion opposing the settlement. Vasquez argues that the opposing parties fail to meet their burden to provide admissible evidence establishing lack of good faith. However, on a contested motion it is still the settling party's burde...
2021.06.17 Motion for Stay of Civil Action 736
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.06.17
Excerpt: ... that arises out of the same incident that led to plaintiffs' decedent's death. He contends that it would constitute a violation of his Fifth Amendment rights to have to choose between testifying in the civil case to defend himself and potentially incriminating himself, or remaining silent in the civil case and potentially being subjected to civil sanctions in order to avoid incriminating himself. An application for a stay is addressed to the sou...
2021.06.17 Demurrer 061
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.06.17
Excerpt: ...defendants Judge Harrell, Judge Alvarez and Judge Simpson's demurrer to plaintiff's first amended complaint without leave to amend. (Code Civ. Proc., § 430.10, subd. (a).) To find moot defendant Judge Gamoian's demurrer to plaintiff's first amended complaint. To deny plaintiff's motion. Explanation: Defendants Judge Harrell, Judge Alvarez and Judge Simpson's Demurrer to Plaintiff's First Amended Complaint Subject Matter Jurisdiction. No specific...
2021.06.16 Motion for Approval of Class Settlement 975
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.06.16
Excerpt: ...pple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a “fiduciary responsibility” as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditionally certified for se...
2021.06.15 Motion to Bifurcate and Sequence Discovery 095
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.06.15
Excerpt: ...g a cause of action asserted in a cross‐complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” Code of Civil Procedure section 598 provides in pertinent part as follows: “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigat...
2021.06.03 Motion for Trial Setting Preference 505
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.06.03
Excerpt: ...e based on the party's health: In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. (Emphasis added.) Rather, th...
2021.06.03 Demurrer, Motion to Strike 796
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.06.03
Excerpt: ...ust be done within 20 days from the date of this order and any new allegations must be in bold print. If plaintiff does not file a second amended complaint within the allotted time period, defendant shall file an answer to the first amended complaint within 30 days from this order. Explanation: Demurrer to Cause of Action Three: Fraudulent Inducement ‐ Concealment Defendant demurs on the grounds that the first amended complaint's cause of actio...
2021.06.02 Demurrer 559
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.06.02
Excerpt: ...f'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 the sufficiency of the complaint against the demurrer, we treat the dem...
2021.05.27 Motion for Terminating Sanctions 815
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.05.27
Excerpt: ...n for Terminating Sanctions Code of Civil Procedure section 2023.010 defines “misuses of the discovery process” as including, “failing to respond or submit to an authorized method of discovery” and “disobeying a court order to provide discovery.” (Code Civ. Proc. § 2030.010, subds. (d) & (g).) Code of Civil Procedure section 2023.030 states, in relevant part: To the extent authorized by the chapter governing any particular discovery ...
2021.05.27 Demurrer 015
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.05.27
Excerpt: ...omplaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Second Cause of Action – Negligent Infliction of Emotional Distress (NIED) Defendants demur to plaintiff Naomi Hendrix's cause of action for negligent infliction of emotional distress (NIED) on the grounds that the second amended complaint (SAC) fails to allege facts sufficient to state a cause of action. Specifically, defendants contend that the...
2021.05.26 Motion to Quash Deposition Subpoena, to Compel Further Responses 686
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.05.26
Excerpt: ...National Carriers, Inc., is modified as follows: “Application for employment, including but not limited to documents received from prior employers excluding any personal financial or medical information of Michael Alexander Gomez, incident reports, driver training records, driver evaluations excluding Department of Transportation drug and alcohol test information, driver history, license history, and all documents regarding termination of emplo...
2021.05.26 Motion for Summary Judgment, Adjudication 261
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.05.26
Excerpt: ...o cause of action three. To deny cross‐complainant Usman Javed's Motion for Summary Adjudication to the Cross‐Complaint. Explanation: A defendant moving for summary judgment meets its burden of showing that a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established. (Code Civ. Proc., § 437c; see also Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 286.) Here, de...
2021.05.25 Motion for Entry of Validation Judgment 336
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.05.25
Excerpt: ...uant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure.” In addition, under Government Code section 53511, subdivision (a), “A local agency may bring an action to determine the validity of its bonds, warrants, contracts, obligations or evidences of indebtedness pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure.” Pursuant to Code of Civil Pro...
2021.05.12 Motion to Compel Further Responses 526
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.05.12
Excerpt: ...equests for Admission, Set 17, Admitted. Tentative Ruling: (1) To grant and award monetary sanctions in the amount of $1,290 against plaintiff Noe Luna and his attorney, L. Dean Smith, Jr., jointly and severally, payable within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. Plaintiff is ordered to serve further responses without objections to PLH Group, Inc.'s Special Interrogatories, S...
2021.05.12 Motion for Summary Judgment 266
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.05.12
Excerpt: ...s. None are material to the outcome of the instant motion. (Code Civ. Proc., § 437c, sub. (q).) Explanation: A defendant moving for summary judgment meets its burden of showing that a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established. (Code Civ. Proc., § 437c; see also Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 286.) However, if a single triable issue o...
2021.05.11 Motion to Set Aside Default 276
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.05.11
Excerpt: ...against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. Code of Civil Procedure section 473.5 states: (a...
2021.05.06 Motion to Strike 035
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.05.06
Excerpt: ... “irrelevant, false or improper” matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166‐167.) Defendants claim that there are insufficient facts to support a claim ...
2021.05.06 Motion for Leave to File Complaint 085
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.05.06
Excerpt: ...ollowing: [¶] (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross‐complaint [¶] (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him ….” (Code Civ. Proc., § 428.10, subd. (b); see also Newhall Land and Farming Co. v. McCarthy Const. (20...
2021.04.29 Motion to Appoint Discovery Referee 015
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.04.29
Excerpt: ... any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: … When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc., § 639, subd. (a)(5).) �...
2021.04.28 Special Motion to Strike 495
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.04.28
Excerpt: ...medy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that t...
2021.04.28 Motion to Determine Entitlement, Fix Amount of Attorney Fees on Appeal 415
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.04.28
Excerpt: ...y brief on this motion. If a hearing on this motion is necessary, the court will award an additional $350 in attorney fees. Costs on appeal are fixed in the total amount of $1,165.65, in accordance with the unopposed Memorandum of Costs on Appeal in the amount of $1,100.40 plus the filing fee of $65.25 associated with this motion. Explanation: An award of costs on appeal, as the appellate court awarded here, does not include an award of appellate...
2021.04.22 Demurrer, Motion to Strike 156
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.04.22
Excerpt: ...endants' demurrer to the entire complaint, without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Defendants shall submit a judgment of dismissal within five days of the clerk's service of this minute order. Explanation: General Standard of Ruling 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...
2021.04.15 Petition to Compel Arbitration 199
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.04.15
Excerpt: ...irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98; see Federal Arbitration Act (FAA)(9 U.S.C. § 1 et seq.).) Title 9 United States Code section 2 states that, “A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter a...
2021.04.14 Motion to Strike 536
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.04.14
Excerpt: ...boldface. Explanation: Under Civil Code section 3294, in order to obtain punitive damages, plaintiff must allege ultimate facts showing that defendant acted with malice, fraud, or oppression. (Civil Code § 3294; Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316–317.) “Malice is defined as ‘conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and c...
2021.04.14 Motion to Bifurcate 260
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.04.14
Excerpt: ..., if necessary. (Code Civ. Proc. § 598, 1048, subd. (b).) Also, the punitive damage claim will be tried after the jury trial of the legal claims. (Civil Code § 3295, subd. (d).) Explanation: “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial ...
2021.04.08 Demurrer 015
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.04.08
Excerpt: ...int are to be set in boldface type. Explanation: Second Cause of Action – Negligent Infliction of Emotional Distress (NIED) Defendants demur to plaintiff Naomi Hendrix's cause of action for negligent infliction of emotional distress (NIED) on the grounds that the first amended complaint (FAC) fails to allege facts sufficient to state a cause of action. Specifically, defendants contend that the FAC fails to plead sufficient facts to demonstrate ...
2021.04.07 Motion for Leave to File FAC 685
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.04.07
Excerpt: ... oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) In other words, a showing that the defendant's conduct was negligent, grossly negligent or even reckless is insufficien...
2021.03.30 Motion to Compel Responses 846
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.03.30
Excerpt: ...e monetary sanctions against plaintiff Pavitarjit Sihota and his attorneys of record, Fishman Larsen & Callister, in the amount of $ 2,775. (Code Civ. Proc., §§ 2033.290, subd. (c), 2031.310, subd. (h), 2030.300, subd. (d).) Sanctions in the amount of $925 must be paid to the Law Office of Emerson ∙ Church within 30 days after service of this order. Sanctions in the amount of $1,850 must also be paid to the Whelan Law Group within 30 days aft...
2021.03.30 Motion for Approval of PAGA Settlement 796
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.03.30
Excerpt: ...it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or standards for making the assessment. Published California case law has not done so either. However, the common practice when ruling on PAGA settlements is to follow existing law on class action settlemen...
2021.03.25 Motion to Quash Subpoena for Employment Records 636
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.03.25
Excerpt: ...y fees. The court finds the issue of temporal limitation could have been resolved without the need for the instant motion. Explanation: Defendant Doshier moves to quash the subpoena directed to Cintas dated October 23, 2020. He argues: (a) there is no “compelling interest” to justify disclosure of private records; (b) the subpoena is overbroad in time and scope; and (c) the subpoena seeks documents that are neither relevant nor reasonably cal...
2021.03.23 Motion for Summary Judgment, Adjudication 205
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.03.23
Excerpt: ...ablishing the moving party's right to the relief sought. (Regents of Univ. of Calif. v. Superior Court (1996) 41 Cal.App.4th 1040, 1044.) Plaintiff re‐filed the motion, albeit narrower in scope, and again neglected to include the policy in the volume of evidence, only submitting it with a notice of errata after the opposition had already been filed. The court would let that omission slide except that many of the other exhibits are not properly ...
2021.03.23 Motion for Summary Judgment, Adjudication 065
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.03.23
Excerpt: ...ed Beverly's motion for summary judgment or adjudication on the merits in March of 2020, and Beverly has not shown that there are any newly discovered facts, circumstances or a change in the law that would justify renewal of the motion.1 Under Code of Civil Procedure section 437c, subdivision (f)(2), “A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless th...
2021.03.18 Motion to Compel Arbitration 845
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.03.18
Excerpt: ... and that the dispute is covered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413‐ 414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) There is a stron...
2021.03.16 Motion to Compel Production of Docs 506
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.03.16
Excerpt: ...1, 2021, and that any claim file for which consent is received be produced by May 17, 2021. A further response, under oath, need also be served on May 17, 2021 which states that production was allowed in full, with the exception of documents identified in that further response as falling within the attorney/client privilege or work product doctrine. Such identification shall list the document's “author, date of preparation, all recipients, and ...
2021.03.16 Motion for Summary Judgment, to Post Undertaking 675
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.03.16
Excerpt: ... post an undertaking to continue prosecuting the case. (Code Civ. Proc. §§ 437c; 1030.) Explanation: Motion for Summary Judgment: Defendant Caltrans moves for summary judgment as to the entire complaint, arguing that plaintiffs cannot prevail on their claim that the section of Highway 180 where their son died constitutes a dangerous condition of public property because the claim is barred by the design immunity defense. “A public entity may b...
2021.02.25 Motion to Amend Answer 586
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.25
Excerpt: ...emphasis added).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Colonial has largely complied with Cal. Rules of Court, Rule 3.1324. Colonial seeks to add a workers' compensation exclusivity affirmative defense. The court agrees wit...
2021.02.25 Motion for Class Certification, Preliminary Approval of Settlement 150
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.25
Excerpt: ...Fact and Law “California courts consider ‘pattern and practice evidence, statistical evidence, sampling evidence, expert testimony, and other indicators of a defendant's centralized practices in order to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate.” (Jaimez v. DAIOHS USA (2010) 181 Cal.App.4th 1286, 1298.) In the prior order the court expressed that no such evidence had been p...
2021.02.23 Motion to Set Aside Entry of Defaults 886
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.23
Excerpt: ..., order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) The motion “shall be made within a reasonable time, in no case exceeding six months, after the … proceeding was taken.” (Ibid.) “The law favors judgments based on the merits, not procedural missteps.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134; see also Riskin v. T...
2021.02.23 Demurrer, Motion to Strike 315
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.23
Excerpt: ...nd cause of action with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff is granted 20 days, running from service of the minute order by the clerk, to file and serve a second amended complaint. All new allegations in the amended complaint are to be set in boldface type. To deny defendant's motion to strike as moot in light of the court's February 17, 2021 order. Explanation: Demurrer A demurrer tests only the legal sufficiency o...
2021.02.18 Motion for Judgment on the Pleadings, for Appointment of Counsel 169
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.18
Excerpt: ...service of the minute order, a proposed judgment dismissing the action. Oral argument on this matter is continued to March 18, 2021, at 3:30 in Dept. 403 so that the petitioner may be present for oral argument via Court Call. Explanation: Petitioner is a civil detainee committed under the Sexually Violent Predator (SVP) Act, and is detained at the Department of State Hospitals, Coalinga (DSH‐Coalinga). The petition concerns DSH's statewide proh...
2021.02.18 Demurrer 260
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.18
Excerpt: ...n for violation of Labor Code section 226(a) on the ground that the cause of action is barred by the one‐ year statute of limitations under Code of Civil Procedure section 340. “[T]he one‐year statute of limitations set forth in Cal. Code Civ. Proc. section 340 applies to Plaintiff's claims under this section [Labor Code § 226] because she is seeking ‘penalties.'” (Elliot v. Spherion Pacific Work, LLC (C.D. Cal. 2008) 572 F.Supp.2d 116...
2021.02.17 Petition to Compel Arbitration 015
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.17
Excerpt: ...burden of showing that the plaintiff agreed to arbitrate the dispute. Under California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration 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 respondent to arbitrate the controversy if it determines that an agreement to arbitrate th...
2021.02.17 Motion to Strike 315
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.17
Excerpt: ...cordingly, the words “Exemplary Damages” shall be stricken from the First Amended Complaint at paragraph 10(f). The check mark at box (2) paragraph 14(a) of the First Amended Complaint shall be stricken. Finally, page 9 of the First Amended Complaint (Form PLD‐PI‐001(6)) shall be stricken. Explanation: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be ...
2021.02.09 Motion to Deem Admitted Truth of RFAs 286
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.09
Excerpt: ...bd. (c).) Sanctions are due and payable to defendants' counsel within 30 days of service of this court's order. Explanation: Plaintiff does not dispute that her responses to the Requests for Admissions propounded by defendants were not timely. Plaintiff contends the response deadline was 9/9/20, and the responses were mail served on 9/10/20. Even if plaintiff is correct about the response deadline, the responses are untimely. As the responses wer...
2021.02.09 Motion for Relief from Arbitral Forum 245
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.09
Excerpt: ...y is unable to pay its share, the moving party can elect either to pay that portion of the arbitration cost or to waive its right to arbitrate that party's claim. (Roldan v. Callahan & Blaine (Roldan) (2013) 219 Cal.App.4th 87, 96.) When a party arbitrates in good faith but the cost of the arbitration becomes too much for the party, the party may petition the court for relief. If the court “concludes the party's financial status is not a result...
2021.02.09 Motion for Leave to Intervene 695
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.09
Excerpt: ...in 10 days of the date of service of this order. Explanation: Nationwide Agribusiness Insurance Company moves to intervene under Code of Civil Procedure section 387, subdivision (d)(1), which states, (d)(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: … (B) The person seeking intervention claims an interest relating to the property or tra...
2021.02.02 Motion to Change Venue 485
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.02
Excerpt: ...nation: Under Code of Civil Procedure section 394, “Whenever an action or proceeding is brought against a county, city and county, city, or local agency, in any county, or city and county, other than the defendant, if the defendant is a county, or city and county, or, if the defendant is a city, or local agency, other than that in which the defendant is situated, the action or proceeding must be, on motion of that defendant, transferred for tri...
2021.02.02 Motion for Summary Judgment, Adjudication 569
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.02
Excerpt: ...ith the court's summary judgment order. Explanation: Initially the court notes that the supplemental opposition papers filed by plaintiff on January 25, 2021 are untimely and will not be considered. (See Code Civ. Proc., § 437c, subd. (b)(2).) If plaintiff needed this evidence for the opposition, she should have requested a continuance of the motion pursuant to subdivision (h). Objections In her responsive separate statement plaintiff apparently...
2021.02.02 Demurrer 705
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.02
Excerpt: ...ion and uncertainty, without leave to amend. (Code Civ. Proc. § 430.10, subd. (e), (f).) Defendant shall submit a proposed order dismissing the action as to it within 10 days of the date of service of this order. Explanation: First, the entire complaint is vague, ambiguous and confusing, and thus the court intends to sustain the demurrer for uncertainty. (Code Civ. Proc. § 430.10, subd. (f).) “As used in this subdivision, ‘uncertain' includ...
2021.02.02 Demurrer 565
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.02.02
Excerpt: ...iation, and failure to investigate and prevent or remedy discrimination and retaliation. (Code Civ. Proc., § 430.10(e).) Plaintiff is granted 3 0 days, commencing from service of the minute order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: In testing a pleading against a demurrer, the facts alleged are deemed to be true, as it is “not the o...
2021.01.26 Demurrer, Motion to Strike 575
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.01.26
Excerpt: ...The court notes that the tenth cause of action contains a typo in the referenced code section, the correct section is Government Code section 12955, subdivision (f). Demurring defendant shall file and serve their answer to the second amended complaint within thirty (30) days from the date of this order. Explanation: A general demurrer admits “‘all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.'...
2021.01.19 Motion for Class Certification and Preliminary Approval of Settlement 265
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.01.19
Excerpt: ... is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). The evidence on a motion for class certification for settlement must meet the same standards as if there were not settlement, except that there is no need to show the case can be managed for trial. Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620. California law requires admissible evidence to permit class certification. In re Tobacco II Cases (2009) 46 Cal. 4t...
2021.01.19 Demurrer, Motion to Strike 906
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.01.19
Excerpt: ...tion to strike the prayer for punitive damages, as moot in light of the ruling on the demurrer. (Code Civ. Proc. §§ 435, 436.) Defendants shall submit a proposed judgment consistent with this ruling within 20 days of the date of service of this order. Explanation: Demurrer: Defendants have demurred to plaintiff's entire first amended complaint on the ground that it fails to state any valid causes of action against them under various theories. W...
2021.01.19 Demurrer 450
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.01.19
Excerpt: ...Ibid.) Explanation: Defendant City of Huron has demurred to the first, second, and fourth causes of action for unjust enrichment, economic duress, and conversion on the ground that they fail to state causes of action, as they attempt to state common law tort causes of action against a government entity. As defendant correctly notes, Government Code section 815 bars common law tort claims brought against public entities like the City. “Except as...
2021.01.12 Motion to Strike or Tax 360
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.01.12
Excerpt: .... RRNS Enterprises (1992) 4 Cal.App.4th 238, 241.) “Allowable” costs awarded to a prevailing party must be (1) incurred by that party; (2) reasonably necessary to the conduct of the litigation; and (3) reasonable in amount. (Code Civ. Proc. §1033.5, subd. (c)(1)‐(3); El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 616.) Although the prevailing party is typically entitled to reimbursement of costs, in ...
2021.01.12 Motion to Compel Further Responses 169
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.01.12
Excerpt: ... further responses. Plaintiff shall provide further responses to defendants' Requests for Admissions, Set No. One, Nos. 5, 10, 11, 16, 21, 22, 27, 32 and 33, and to Form Interrogatory, Set No. 1, Interrogatory No. 326.1, related to the Requests for Admission. These further responses shall be served within 20 calendar days of this order, with the time to run from the date of service of this minute order by the clerk, To grant monetary sanctions ag...
2021.01.12 Motion for Attorney's Fees 806
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2021.01.12
Excerpt: ...sotti, A Professional Law Corporation within 30 days of the clerk's service of this minute order. Explanation: In a FEHA action “a prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless special circumstances would render such an award unjust.” (Gov. Code, § 12965, subd. (b); Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115 [in].) “In enacting the FEHA, the Legislature sought to saf...
2020.12.15 Motion to Compel Deposition 675
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.12.15
Excerpt: ...“serious questions” as to whether plaintiffs' expert's declaration was factually incorrect, at least as to the defendant who was not involved with the procedures addressed in the declaration. (Id. at p. 1540.) Particularly, the court noted, “it is possible that upon deposition of [the plaintiffs' expert], confronted with proof that he may have been mistaken in his belief that [the defendant] was involved in the procedure, he may concede his...
2020.12.15 Motion for Bifurcation of Trial 996
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.12.15
Excerpt: ...rt may separately try one or more issues before trial of the other issues if resolution of the bifurcated issue is likely to simplify the determination of the other issues." (Cal. R. Ct., R. 5.390(b).) "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross- complaint, or ...
2020.12.10 Motion for Reconsideration 165
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.12.10
Excerpt: ...erent order may be entered, if the motion is based on “new or different facts, circumstances, or law.” (Id., subd. (a).) First, plaintiff's counsel's declaration filed with the opening brief indicated that the court's original ruling had been “contrary to applicable law.” However, a claim that the court misinterpreted the law in its initial ruling is not a “new” or “different” matter under section 1008. (Gilberd v. AC Transit (199...
2020.12.10 Demurrer 631
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.12.10
Excerpt: ... this court, within seven days of service of the minute order, an ex parte request (without hearing) dismissing the action as to the demurring defendants. Explanation: “Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought....
2020.12.09 Demurrer 508
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.12.09
Excerpt: ... to a purported forum selection clause in a Solar Representative Agreement. Defendant argues that because plaintiff failed to assert his claims in an action between the parties in Utah, he is now barred raising them here. The court does not find defendant's arguments compelling. Code of Civil Procedure section 426.30, subdivision (a), provides: Except as otherwise provided by statute, if a party against whom a complaint has been filed and served ...
2020.12.09 Demurrer, Motion to Strike 666
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.12.09
Excerpt: ...‐13:27) without leave to amend. To deny the remainder of the motion. (Code Civ. Proc., § 436.) Defendant Golden State shall file its answer to the Second Amended Complaint (“SAC”) within 10 days of service of the order by the clerk. Explanation: Demurrer Golden State's demurrer to the First Amended Complaint's (“FAC”) second cause of action was overruled. It's demurrer to the FAC's fifth cause of action was sustained solely on statute ...
2020.12.09 Motion for Summary Judgment 333
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.12.09
Excerpt: ...ation: In this action plaintiff California Statewide Communities Development Authority seeks judicial foreclosure of an assessment lien. Plaintiff alleges that defendants took out a loan against their property to pay for solar panels. The loan was tied to the property taxes. Defendants then failed to make the property tax payments. The undisputed facts show on January 27, 2010, plaintiff adopted a resolution pursuant to the Improvement Bond Act o...
2020.12.03 Demurrer 359
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.12.03
Excerpt: ...Second Amended Complaint are to be set in boldface type. Explanation: Demurrer, in General 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 the plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of the plaintiff's possible difficulty or inability in proving the allegat...
2020.12.02 Motion for Attorneys' Fees 915
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.12.02
Excerpt: ...ce liability on undertaking without prejudice. Explanation: Motion for Attorneys' Fees Plaintiff J.H. Boyd Enterprises, Inc. (“JHBE”) moves for an award of attorneys' fees in the sum of $607,244.50 plus additional fees incurred in connection with this motion. The motion is brought pursuant to Civil Code section 1717, which provides in relevant part: “(a) In any action on a contract, where the contract specifically provides that attorney's f...
2020.12.01 Demurrer, Motion to Strike 796
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.12.01
Excerpt: ...omplaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the First Amended Complaint are to be set in boldface type Explanation: Demurrer Demurrer, in General 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 c...
2020.11.19 Motion for Leave to Amend Complaint 261
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.11.19
Excerpt: ...e set in boldface type. Explanation: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to a...
2020.11.19 Motion for Entry of Judgment Based on Written Settlement Agreement 540
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.11.19
Excerpt: ...ts against defendant S&A, in the amount of $3,288. Defendant shall pay attorney's fees and costs within 30 days of the date of this order. Explanation: Under Code of Civil Procedure section 664.6, If parties to pending litigation stipulate, in a writing signed by the parties outside 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...
2020.11.19 Demurrer 496
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.11.19
Excerpt: ...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 the sufficiency of the...
2020.11.18 Motion to Set Aside Default 008
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.11.18
Excerpt: ...b), provides for discretionary relief from a default or default judgment that has been entered due to mistake, surprise, inadvertence, or excusable neglect. (Code Civ. Proc. § 473, subd. (b).) The party seeking relief must bring his or her motion within a reasonable time, not to exceed six months from the date of entry of the default or default judgment. (Ibid.) “Where the mistake is excusable and the party seeking relief has been diligent, co...
2020.11.18 Motion for Summary Judgment 165
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.11.18
Excerpt: ...ry relief claims seeking interpretation of written contracts is proper. (Shaw v. Regents of Univ. of California (1997) 58 Cal.App.4th 44, 52.) However, interpretation of a written document is a question of law for the trial court to determine, only where extrinsic evidence is unnecessary. (Temple v. Velcro USA, Inc. (1983) 148 Cal.App.3d 1090, 1095.) In other words, interpretation is appropriate where the language is clear, understandable and com...
2020.11.05 Motion to Amend Complaint 565
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.11.05
Excerpt: ...s informed that the bankruptcy petition had been dismissed; trial therefore was set for July 30, 2020. On July 30, 2020, the court received a copy of a bankruptcy court order dated July 24, 2020 dismissing defendant's bankruptcy petition for failure to timely file documents. At the time scheduled for trial, defendant asserted that a bankruptcy petition had been filed by the second defendant in this action, again staying the action. Although defen...
2020.11.04 Motion for Reconsideration 965
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.11.04
Excerpt: ...o comply with Code of Civil Procedure section 1008, which governs motions for reconsideration. Section 1008 states that, When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstanc...
2020.11.04 Demurrer 778
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.11.04
Excerpt: ...ed judgment dismissing the claims against her within 10 days of the date of this order. Explanation: In its ruling on a prior demurrer, the court held that plaintiffs had failed to state sufficient facts to support their negligence claims against Martinez, as they had not alleged any facts showing that Martinez actually knew that her husband had a propensity to molest children. Instead, plaintiffs only alleged that defendant “knew or should hav...
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...

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