Excerpt: ...laintiff has the initial burden of showing the essential facts of jurisdiction, that is the facts requisite to an effective service. (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; Dill v. Berquist Const. (1994) 24 Cal.App.4th 1426, 1439‐ 40.) This may be done through presentation of declarations, with opposing declarations received in response. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.) Furthermore, filing a proof of...

Excerpt: ...ulting in injurie s (the "Incident"). The court denies defendant China Peak's motion for summary judgment or summary adjudication for the reasons stated below. Law Governing Summary Judgment A trial court shall grant summary judgment if there are no triable issues of mate rial fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c).) In determining a motion for summary judgment, the co...

Excerpt: ... adm itted that plaintiff's injuries were caused entirely by defendant's and its employee Daniel Willard's negligence, that plaintiff did not contribute to the accident through her own negligence, and that no third party contributed to the accident. As plainti ff points out, the court previously granted an order deeming STA to have admitted the truth of the matters in the requests for admission after defendant failed to verify its responses. (See...

Excerpt: ... not specifically denying the motion without prejudice. The ruling is hereby amended to reflect that plaintiff's first Motion for Order Permitting Pretrial Discovery Regarding Defendant Richard Pike's Profits and Financial Condition is denied without prejudice. P laintiff's second motion is now continued to Thursday, June 27, 2024, at 3:30 p.m. in Department 501. In ruling on the motion, the court will consider all evidence presented by plain...

Excerpt: ...orney's Fe es: A prevailing buyer in an action under the Song –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...

Excerpt: ... deny in par t. (Code Civ. Proc., § 436.) The request to strike the allegations pertaining to defendant Samuel Lofty Confectioner's acts done in the course and scope of his employment with defendant Fresno Unified School District (“FUSD”) is granted. The request to st rike the allegations pertaining to FUSD's duty to investigate is granted. The request to strike the prayer for attorney's fees pursuant to Civil Code 52 and 52.4 is granted. T...

Excerpt: ...vice of the minute order, a proposed judgment consistent with the court's summary judgment order. The motion to modif y a protective order is off calendar, as no papers have been filed. Explanation: Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In moving for summary judgment, a “defendant … has m...

Excerpt: ...that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.) (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.) Unless there is a dispute over authenticity, the mere recitation of the terms is sufficient for a party to move to compel arbitration. (Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793.) The moving party has the burden of proving the existence of a valid arbitration agreement. (Pinn...

Excerpt: ...ted to sub mit a proposed judgment consistent with this order, within five days of service of the minute order by the clerk. Explanation: Fresno Unified School District (“FUSD”) moves for summary judgment or, in the alternative, for summary adjudication as to the thi rd, fourth and fifth causes of action for negligent hiring, supervision or retention of an unfit employee, failure to report suspected child abuse, and negligent supervision ...

Excerpt: ...2024. Any oppos ition and reply due dates shall run from the new hearing date. Explanation: Plaintiffs Wesley Wilson (Wilson) and Press Box, Inc. (Press Box), have dismissed most of the causes of action in their Complaint against defendant Martin McCubbin (McCubbin). One cause of action arising out of a bar fight caused by McCubbin in October 2022 remains for each plaintiff. For plaintiff Wilson, only the third cause of action for assault and ba...

Excerpt: ...gh evidence regarding the hours spent on the case and the tasks performed to find that the requested fees are reasonable and should be approved. She has also not provided enough evidence to support the request to approve her law clerk's rate of $225 per hour . In Serrano v. Priest (1977) 20 Cal.3d 25, the California Supreme Court stated: “ ‘The starting point of every fee award, once it is recognized that the court's role in equity is to...

Excerpt: ...fliction of emotional distress and medical negligence, with leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) To overrule the general demurrer as to the causes of action for intentional infliction of emotional distress and medical negligence. (Code Civ. Proc. § 430.10, subd. (e).) To grant the motion to strike portions of the Third Amended Complaint in part, and strike: the attachment of a phone log; the attachment of a letter dated Sept...

Excerpt: ...laintiff Zahi Saleh shall serve and file an amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer Defendant General Motors, LLC ("Defendant") demurs to the fifth cause of action, for fraudulent concealment of the First Amended Complaint ("FAC") by plaintiff Zahi Saleh ("Plaintiff"). On a demurrer a court's function is limited to testing the legal sufficiency of the c...

Excerpt: ...the allegations of the first amended complaint show that she has an absolute defense to the claim because she has been in adverse possession of the subject property for over five years before the complaint was filed and thus plaintiff has no right to partition the property. Adverse possession may be the basis for either a cause of action or an affirmative defense. (Family Service Agency of Santa Barbara v. Ames (1958) 166 Cal.App.2d 344, 348.)...

Excerpt: ... to def ective moving papers. Explanation: This motion arises out of a Third Amended Complaint (“TAC”) filed February 14, 2024 alleging 1) premises liability against defendant Noble Federal Credit Union and 2) dangerous condition of public property against defenda nt City of Fresno. It does not appear that defendant Noble Federal Credit Union has been served with a Summons or the Third Amended Complaint yet. Defendant City brings this demurr...

Excerpt: ...n ey's fees from the Complaint. To grant leave to amend the Complaint to state claims by the Trust, provided it retains a licensed California attorney to represent it. To grant leave to amend the Complaint as to Mr. Peterson, provided that he either repres ents himself or has a licensed attorney represent him. To deny leave to amend to request attorney's fees. To overrule the demurrer to the first cause of action. To sustain the demurrer to the ...

Excerpt: ...ions to quash. To grant the motion to compel arbitration and order plaintiffs to arbitrate their claims against defendants. The action is stayed pending completion of arbitration. Explanation: Motion(s) to Quash Moving defendants deem themselves passive “Single Purpose Entities,” with insufficient contacts with California to confer jurisdiction. However, the motions all admit that the respective defendants are some degree of partner to the in...

Excerpt: ...Proc. § 430. 20, subd. (a) and (b).) To overrule the general and special demurrer for uncertainty to the Amended Cross -Complaint. (Code Civ. Proc. § 430,10, subd. (e) and (f).) To sustain the general and special demurrers to the first, third, fourth, and fifth cause of action. (Code Civ. Proc. § 430.10, subd. (e) and (f).) To overrule the general and special demurrers to the second cause of action. (Code Civ Proc., § 430.10, subd. (e) and ...

Excerpt: ...li minary settlement class. (Cal. Rules of Court, rule 3.769, subd. (d).) “If the court grants preliminary approval, its order must include the time, date, and place of the final approval hearing; the notice to be given to the class; and any other matters de emed necessary for the proper conduct of a settlement hearing. (Cal. Rules of Court, Rule 3.769, subd. (e).) “If the court has certified the action as a class action, notice of the fin...

Excerpt: ...s brought under Code of Civil Procedure section 418.10, which provides that the last day to file the notice of motion for a defendant who has not yet appeared in the action is when the responsive pleading to the complaint is due. However, “[t]he provisions of Sec tion 418.10 do not apply to a motion to stay or dismiss the action by a defendant who has made a general appearance.” (Code Civ. Proc., § 410.30, subd. (b).) Here, plaintiffs' comp...

Excerpt: ...planation: 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, up on motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performa...

Excerpt: ... reque sting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted... The court shall make this order, unless it finds that the party to whom the requests for admission have bee n directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc.,...

Excerpt: ...Emeline Pano will be dismissed as a defendant in plaintiff's Complaint. (Code Civ. Proc., § 2023.030, subd. (d)(3).) Explanation: Plaintiff has a history of failing to comply with discovery obligations in this action, and appears to have abandoned this action. On August 10, 2023, and October 10, 2023, defendant Emeline Pano served plaintiff with deposition notices. Plaintiff never objected, but failed to appear on both occasions. On August 30, 2...

Excerpt: ...tiff Kimberly White are ordered to appear at the hearing on this motion. Explanation: Healthcare providers must possess and exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under si milar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, in any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to ...

Excerpt: ...er a settl ement is within the “good faith ballpark” by considering the following factors (evaluated as of the time of the settlement): 1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; 2) the amount paid in settlement; 3) a recognition that a settlor should pay less in settlement than if found liable after a trial; 4) the allocation of the settlement proceeds among plaintiffs; 5) the se...