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Motion to Quash Service of Summons 036
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: Motion
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...
2024.05.23 Motion for Terminating Sanctions 228
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.23
Excerpt: ... ion: Code of Civil Procedure section 2023.010, subdivision (g), makes “[d]isobeying 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 moti on 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 m...
2024.05.23 Motion for Judgment on the Pleadings 382
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.23
Excerpt: ...tion 438, subdivis ion (c)(1)(B)(ii). Defendant submits that the second cause of action fails to state sufficient facts on three grounds: (1) as a public entity, it is immune from direct common law claims; (2) as a public entity, it cannot be held vicariously liable for its employees when it was the actor, not the employees; and (3) the claim is not sufficiently particularly pled. A motion for judgment on the pleadings has the same function as a ...
2024.05.23 Motion for Final Approval of Class Settlement 104
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.23
Excerpt: ...ed to submit a new proposed order. To set a status conference for Thursday, December 5, 2024, 3:30 p.m. in Department 403. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class an d found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the court to reconsider its d...
2024.05.23 Motion for Attorney Fees and Prejudgment Interest 240
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.23
Excerpt: ...ure and mode of comp ensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties . . ..” (Code Civ. Proc., § 1021.) Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney fees are "allowable as costs under Section 1032" when they are "authorized by" either "Contract," "Statute," or "Law." The Rental Agreement between the parties...
2024.05.23 Demurrer, Motion to Strike 837
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.23
Excerpt: ..., Inc. , shall file and serve a First Amended Complaint within 10 days of the date of service of this order by the clerk. All new allegations shall be in boldface. Explanation: Plaintiff FFF Enterprises, Inc. (“Plaintiff”) file an original Complaint stating four causes of action for: (1) breach of contract; (2) open book account; (3) account stated; and (4) quantum meruit based on the failure to pay for electrical components. Demurrer Defen...
2024.05.23 Demurrer, Motion to Stay 714
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.23
Excerpt: ...arty is directed to submit to this court, within 7 days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendant. Explanation: Defendant Michelle Evans demurs on the basis that the complaint filed by plaintiff Nationwide Insurance Company of America (“Nationwide”) fails to state fact sufficient to state a cause of action, improperly omits a necessary defendant, and that there is another action p...
2024.05.23 Motion to Compel Arbitration and Stay Proceedings 628
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.23
Excerpt: ...ty the reto 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 the controversy exists, unless it determines that: (a) The right to compel arbi tration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. (c) A party to the arbitration agreement is also a party to a pending court action or...
2024.05.22 Motion for Attorney Fees 880
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ...der. If or al argument is timely requested, such argument will be entertained at 2:30 p.m. (rather than 3:30 p.m.). Explanation: 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 t o 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 ...
2024.05.22 Demurrer 052
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.22
Excerpt: ...of Ca lifornia, acting by and through the State Public Works Board (the Board, together the State) and The California High -Speed Rail Authority (the Authority, together Plaintiffs) filed this action against six related captioned defendants (Defendants) alleging eight causes of action to recover funds mistakenly paid to Defendants in 2017. Defendants now demur, claiming the first six claims are barred by the applicable statute of limitations an...
2024.05.22 Demurrers to SAC 931
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.22
Excerpt: ...enth and eight h causes of action, without leave to amend. To overrule Martinez Accounting, Inc.'s (“MAI”) demurrers. (Code Civ. Proc., § 430.10, subd. (e).) Defendants shall file their answers to the Second Amended Complaint (“SAC”) within 10 days of service of the order by the clerk. Explanation: RVJ's Demurrer First Cause of Action for Breach of Contract “A cause of action for breach of contract requires proof of the following elem...
2024.05.22 Motion for Approval of Settlement 618
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ...ill b e entertained at 2:30 p.m. (rather than 3:30 p.m.). Explanation: 1. Introduction “The superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that 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...
2024.05.22 Motion for Attorney Fees 299
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.22
Excerpt: ...xc ept as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1).) “Thus, u nder Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. M...
2024.05.22 Motion to Compel Arbitration 847
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ...rings a purp orted wage and hour class action against his former employer on behalf of himself and all others similarly situated. Defendant now seeks an order compelling plaintiff to private arbitration of his individual claims, and dismissal of the class claims. A tr ial court is required to grant a motion to compel arbitration “if it determines that an agreement to arbitrate the controversy exists.” (Code Civ. Proc., § 1281.2.) However, th...
2024.05.22 Motion for Summary Judgment 895
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.22
Excerpt: ...mmary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713, quoting § 437c, subd. (c).) To prevail in a motion for summary ju dgment, it is defendant'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...
2024.05.22 Motion for Summary Judgment, Adjudication 468
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ... Contr eras. If oral argument is timely requested, such argument will be entertained at 2:30 p.m. (rather than 3:30 p.m.). Explanation: Evidentiary Objections Evidentiary objection numbers 1 through 3 and 5 through 7, wherein defendant objects to the articles and excerpts of various construction and building standards attached as exhibits to the declaration of Zachary M. Moore, PE, DFE, CXFT, are sustained for lack of foundation. In evidentiary o...
2024.05.22 Motion to Compel Arbitration and Stay Proceedings 394
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.22
Excerpt: ...he acti on pending arbitration. Pursuant to the Federal Arbitration Act (“FAA”), A written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any con...
2024.05.22 Motion to Compel Arbitration and Stay Proceedings 568
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ...il Installment Sale Contract. To stay this action and the remaining claims against the remaining parties pending the completion of arbitration. If oral argument is timely requested, such argument will be entertained at 2:30 p.m. (rather than 3:30 p.m.). Explanati on: In moving to compel arbitration, defendants must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The...
2024.05.22 Motion to Enforce Settlement Agreement 279
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.22
Excerpt: ...s i n the total amount of $2,499.90, payable within 10 days of the date of this order, with the time to run from the service of this minute order by the clerk. If oral argument is timely requested, such argument will be entertained at 2:30 p.m. (rather than 3: 30 p.m.). Explanation: Code of Civil Procedure section 664.6 provides, in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presen...
2024.05.21 Motion for Preliminary Approval of Class Action Settlement 501
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.21
Excerpt: ...the court assesses the action for certification for settlement purposes. (Cal. Rules of Court, rule 3.769(d); Amchem Products, Inc. v. Windsor (1997) 521 US 591, 625- 627.) Because this class action has already been certified, the court need not address this issue. Settlement Approval “[I]n the final analysis it is the Court that bears the responsibility to ensure that the recovery represents a reasonable compromise, given the magnitude and ...
2024.05.21 Demurrer 581
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.21
Excerpt: ...to the Com plaint filed August 25, 2023, plaintiff suffered personal injury on May 3, 2021. Accordingly, the two -year statute of limitations applies (Code Civ. Proc., § 335.1), and expired May 3, 2023. The Complaint clearly was not filed within two years of the injur y. “A demurrer on the ground of the bar of the statute of limitations lies where it “appear[s] clearly and affirmatively that, upon the face of the complaint, the right of ac...
2024.05.21 Motion for Preferential Trial Setting 947
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.21
Excerpt: ...all g rant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., § 36, subd. (a), paragraph breaks omitted.) “Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days fr...
2024.05.21 Motion for Preliminary Approval of Class Settlement 039
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.21
Excerpt: ...cati on of a preliminary 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 oth er matters deemed 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, not...
2024.05.21 Petition to Permit Late Claim 477
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.21
Excerpt: ... fails to file a timely claim, a “written application may be made to the public entity for leave to present such claim.” Plaintiff made such an application to the Fresno Housing Authority (“FHA”), but the application was denied. The court can only grant relief t o present a late claim if the application was made within a reasonable time not to exceed one year from the actual date of the cause of action. (Gov. Code, § 911.4, subd. (b).) ...
2024.05.21 Motion for Summary Judgment, Adjudication 879
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.21
Excerpt: ...) In movi ng for summary judgment, a “defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action … cannot be established, or that there is a complete defense to the cau se of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff Fresno Community Hospital and Medical Center, d/b/a Community Health System (“CMC”) alleges two causes o...
2024.05.21 Motion for Summary Adjudication 514
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.21
Excerpt: ...tled to disgor gement from defendants of the $52,017.90 paid to defendants. Explanation: Pursuant to Code of Civil Procedure section 437c, subdivision (f), plaintiffs seek summary adjudication of the first cause of action for Violation of Contractor License Law – Contra cting Without a License. Plaintiffs seek disgorgement of all sums paid to defendants for construction work requiring a contractor's license, the sum of $50,295.51. The motion w...
2024.05.16 Motion for Preferential Trial Setting 481
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.16
Excerpt: ...eference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interes t in the litigation. (Code of Civ. Proc., § 36, subd. (a), emphasis added.) The intent behind the provision of a preferential trial setting is to “safeguard litigants who qualify u...
2024.05.16 Demurrer to SAC 293
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.16
Excerpt: ... leave to amend. To overrule the demurrer for the third and sixth causes of action as to plaintiff Rafael Gonzalez- Silva. (Code Civ. Proc., § 430.10, subd. (e).) Each request for judicial notice is granted. (Evid. Code, § 452, subds. (d), (h).) Plaintiffs are grant ed 20 days' leave to file the Third Amended Complaint. The time in which the Third Amended Complaint can be amended will run from service by the clerk of the minute order. All new ...
2024.05.16 Motion for Attorney Fees 394
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.16
Excerpt: ...moti on to strike shall be entitled to recover that defendant's attorney's fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1).) “Thus, under Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131, citations omitted.) “The amount of an attorney fee award under the anti -SLAPP...
2024.05.16 Motion for Leave to File Amended Complaint 306
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.16
Excerpt: ...November 2, 2023, plaintiff California Attorneys, Administrative Law Judges and Hearing Officers in State Employment (“Plaintiff”) filed the operative Third Amended Complaint (“TAC”). The TAC states three causes of action: (1) preliminary and permanent injunctive relief; (2) petition for writ of mandamus as to defendants California Department of Human Resources and Eraina Ortega (collectively “Defendants”); and (3) petition for writ ...
2024.05.16 Motion for Reconsideration 160
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.16
Excerpt: ... bring a motion to reconsider, and a different order may be entered, if, subject to the following conditions, the motion is: 1. brought before the same judge that made the order; 2. made within 10 days after service upon the party of notice of the entry of the o rder; 3. based on new or different facts, circumstances, or law; and 4. made and decided before entry of judgment. “[F]acts of which the party seeking reconsideration was aware at the t...
2024.05.16 Motion for Summary Judgment 114
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.16
Excerpt: ...erguson ("Plaintiff"). Plaintiff alleges decedent's passing on November 21, 2019, was the result of negligent medical care provided by defendants, including Scott Ford, M.D. ("Dr. Ford"), after a motor vehicle accident in which decedent was injured. Allegations of the Complaint The accident occurred on October 26, 2019. Plaintiff alleges decedent was a seat -belted passenger in a vehicle that was struck by a drunk driver. Dece...
2024.05.16 Motion for Summary Judgment 721
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.16
Excerpt: ...e and such inferences ' in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In making this determination, courts usually follow a three -prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movant's favor; and determinin...
2024.05.16 Motion to Bifurcate Special Defense at Trial 953
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.16
Excerpt: ...r issues in the case. Defendant city appears to argue that trying the issue of exhaustion of administrative remedies separate from the merits is mandatory here. Defendant city relies on Hill RHF Housing Partners v. City of Los Angeles (2020) 51 Cal.App.5th 621, 634 for its position that exhaustion of administrative remedies is a threshold question which is required to be addressed before considering the merits. This case has been overruled. (Hill...
2024.05.16 Motion to Compel Responses, for Terminating Sanctions 267
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.16
Excerpt: ...off cale ndar due to the automatic bankruptcy stay against indispensable party, Joshua O'Bannon. Explanation: A Notice of Stay Proceedings due to filing of bankruptcy was filed as to defendant Joshua O'Bannon. The case is stayed as to the bankrupting defendant. ( 11 U.S.C. § 362; Wekell v. U.S. (9th Cir. 1994) 14 F.3d 32, 33.) Here, the Motion to Compel Initial Responses to Request for Production of Documents, Set Two, made against defendant O...
2024.05.16 Motion to Disqualify Counsel 521
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.16
Excerpt: ...50-851.) Explanation: The court may disqualify an attorney based upon a conflict of interest on the motion of another party. (Code Civ. Proc., § 128, subd. (a)(5); In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 585; see also Cal. Rules Prof. Cond., rule 1.9(a).) There is sufficient evidence presented for the court to find that Anthony Werbin (“Werbin”) is disqualified from representing plaintiff in this matter. His own decla...
2024.05.16 Motion to Enforce Settlement 374
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.16
Excerpt: ...parties outs ide of the presence of the court or orally before the court, for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms of the settlement.” It also provides that the parties may request that the court “retain jurisdic tion over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc. § 664.6.) Due to the summary nature of the statut...
2024.05.16 Motion to Stay Proceedings 200
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.16
Excerpt: ...ure sect ion 916, subdivision (a), “[e]xcept as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or ord...
2024.05.15 Motion to Quash Subpoenas for Medical Records 950
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.15
Excerpt: ...unity Regional Medical Center (Radiology) 4. Community Regional Medical Center (Billing) 5. Central California Faculty Medical Group 6. Accident Recovery Center (Medical/Radiology) 7. Accident Recovery Center (Billing) 8. Central California ENT Medical Group 9. Precise Imaging 10. Jonathan D. Caldwell, M.D. 11. Ali Najafi, M.D. 12. Ali Najafi, M.D. (Billing) 13. 3H Medical Group, Inc. 14. California Heart Medical Associates To award monetary sa...
2024.05.15 Motion for Summary Judgment of FAA, Adjudication 225
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.15
Excerpt: ...tively "Plaintiffs") seek summary judgment or, in the alternative, summary adjudication of the twenty-three affirmative defenses of the February 21 , 2023 Amended Answerl by defendants Joginder Singh, M.D., and Mandeep Singh, M.D.(collectively"Defendants").2 A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. S437c, subd. (c...
2024.05.15 Motion for Relief from Discovery Order 472
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.15
Excerpt: ...al discov ery conference. The court sets a pretrial discovery conference on June 14, 2024 at 10:30 a.m., in Department 503. Should plaintiff fail to participate in this conference or fail to agree to extend defendants' motion filing deadline, the court intends to re instate its August 4, 2023, order. Explanation: Pursuant to Code of Civil Procedure section 473, subdivision (b) (“473(b)”), plaintiff seeks relief from the court's order entered...
2024.05.15 Demurrer 985
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.15
Excerpt: ...on; and to sustain general demurrers to the sixth, seventh, eleventh, thirteenth causes of action, without leave to amend. Matthew Graney shall file his answer to the SAC within 10 days of service of the order by the clerk. Explanation: Special Demurrers As to cause s of action 1-3, 6, and 8 -14, Graney argues that the SAC is uncertain in that it fails to identify the parties affected thereby. Graney cites to Williams v. Beechnut Nutrition Corp....
2024.05.14 Motion for Judgment on the Pleadings 769
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.14
Excerpt: ...ion Here, defendants have defects in their verifications. Code of Civil Procedure section 2015.5 governs verifications. A verification requires a recitation that 1) it is certified or declared by the person 2) to be true under penalty of perjury, 3) is subs cribed by the person, and 4) if executed in California, states the date and place of execution or 5) if executed at any place, within or without this state, states the date of execution an...
2024.05.14 Demurrer, Motion to Strike Complaint 615
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.14
Excerpt: ...endar. If it does not resolve the issues, counsel for cross -defendant shall file a declaration, on or before June 18, 2024, stating the efforts made. If no declaration is filed, the motion will be taken off calendar. Explanation: Under Code of Civil Procedure secti on 430.41, “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that i...
2024.05.14 Demurrers to SAC 280
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.14
Excerpt: ... shall file responsive pleadings within twenty (20) days from the date of this order. Explanation: Plaintiffs Second Amended Complaint (“SAC”) alleges that, in the years preceding the subject fire, defendant California Department of Housing and Community Develo pment (“HCD”) had received numerous complaints of specific fire hazards by community members, park residents, and municipal police and fire department staff. Despite receiving...
2024.05.14 Demurrer to FACC 424
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.14
Excerpt: ...d prayer for relief items 1, 3 and 8, without leave to amend. (Code Civ. Proc., § 436.) Cross -defendants shall file their answer to the FACC within 10 days of service of the order by the clerk. Explanation: Demurrer Plaintiff's personal injury complaint alleges cause s of action for premises liability and negligence against Fresno -Bullard Park I Owners' Association (“Fresno -Bullard”). Fresno -Bullard has filed a cross -complaint against...
2024.05.14 Motion for Preliminary Injunction 076
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.14
Excerpt: ... Orchards , Inc. (“Defendant”). The verified Complaint states four causes of action: (1) breach of contract; (2) foreclose on producer's lien; (3) recovery of statutory late charges; and (4) constructive trust. Plaintiffs seek to enjoin Defendant from: (1) selling o r removing from this state or beyond Defendant's control, any 2021 crop almonds or processed product therefrom that were delivered to Defendant by Plaintiffs, unless the proceeds...
2024.05.14 Motion for Terminating Sanctions 034
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.14
Excerpt: ... against p laintiff Malik Powe payable no later than 20 days from the date of this order, with time to run from the service of this minute order by the clerk. Explanation: Code of Civil Procedure section 2023.010(g) makes “[d]isobeying a court order to provide discov ery” 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, c...
2024.05.14 Motion to Compel Arbitration 792
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.14
Excerpt: ...pute r esolution. To this end, ‘arbitration agreements should be liberally construed', with ‘doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration [citations].'” (Market Ins. Corp. v. Integrity Ins. Co. (1987) 188 Cal. App. 3d 1095, 1098, internal citations omitted.) In essence, “[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidenc...
2024.05.14 Motion to Compel Arbitration and Stay Action 199
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.14
Excerpt: ...d Amy Co rpus, an individual, move for an order compelling arbitration under the Federal Arbitration Act (“FAA”), and request to stay the action pending arbitration. Pursuant to the FAA, A written provision in … a contract evidencing a transaction involving commerc e to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, … shall be valid, irre...
2024.05.14 Motion for Summary Judgment, Adjudication 250
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.14
Excerpt: ...or disclosu res regarding a real estate transaction and that she failed to properly disclose information about the property. (First Amended CrossComplaint, ¶¶ 10 -13.) It is undisputed that Casa Robles Realty, and its agent Luis Altamirano, represented plaintiff Ben ito Cano -Perez in a real estate transaction involving the subject property. (UMF No. 1.) CVI Group, LLC was the seller of the subject property and was represented by All State Home...
2024.05.09 Petition to Perpetuate Testimony and Preserve Evidence 059
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.09
Excerpt: ...tain discov ery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), for the purpose of perpetuating that person's own testimony or that of another natura l person or organization, or of preserving evidence for use in the event an action is subsequently filed.” (Code Civ. Proc., § 2035.010, subd. (a).) “The methods available...
2024.05.09 Motions to File Late Memorandum of Costs, to Strike or Tax Costs 229
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.09
Excerpt: ...grant p laintiff's alternative motion to tax costs in the amount of $19,450. (Ladas v. Calif. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Explanation: Untimely Filing “A prevailing party who claims costs must serve and file a memorandum of costs within 15 d ays after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of ent...
2024.05.09 Motion to Strike 959
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.09
Excerpt: ...ricken. Plaintiffs are granted 20 days' leave to file the first amended complaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. All new allegations in the first amended complaint are to be set in boldface type. Explanation: A motion to strike can be used to cut out any irrelevant, false or improper matters or a demand for judgment requesting relief not supported by the allegations of th...
2024.05.09 Motion to Compel Deposition of PMQ 052
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.09
Excerpt: ...de of Civ . Proc., § 2017.010; Williams v. Superior Court (2017) 3 Cal.5th 531, 541), and “[a]ny party may obtain discovery … by taking in California the oral deposition of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) Proper servi ce of a notice of deposition compels any deponent to attend, to testify, and to produce documents if requested. (Code Civ. Proc., § 2025.280, subd. (a).) Where a party deponent...
2024.05.09 Motion to Compel Arbitration and Stay Proceedings 216
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.09
Excerpt: ...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 strong policy in favor of arbitration. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, ...
2024.05.09 Motion for Trial Preference 834
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.09
Excerpt: ...owing that “the health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., § 36, subd. (a)(2).) According to plaintiffs' attorney, Mr. Cleveland “suffers from age -related decline in health, suffers from increasing deterioration of his spinal column having had microdisectomy with a fusion surgery scheduled sometime in the summer 2024 and is in the final stag...
2024.05.09 Motion for Summary Judgment, Adjudication 274
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.09
Excerpt: ...ent 403. Explanation: A plaintiff may request a continuance by filing a declaration explaining why further discovery is essential to opposing the motion for summary judgment and why additional time is needed. (Code Civ. Proc., § 437c, subd. (h); Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.) The declaration must show facts that establish a likelihood that evidence may exist which would create a triable issue of fact,...
2024.05.08 Motion for Judgment on the Pleadings 183
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.08
Excerpt: ... Cal.App .4th 995, 999.) As in demurrers, grounds for the motion must appear on the face of the challenged pleading or on facts which the court may judicially notice. (Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.)1 When reviewing a pleading, a demurrer or motion for judgment on the pleadings admits the truth of all material allegations and a court will “give the complaint a reasonable interpretation by reading it as a whole a...
2024.05.08 Demurrer 225
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.08
Excerpt: ... powe r of attorney may bring an action on behalf of his principal only as guardian ad litem. (In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1152.) Here, it is apparent that the real party in interest is Carolina Cruz and that Antonio Cruz would be a n appropriate guardian ad litem for Carolina Cruz. The court grants leave to amend the complaint to name the real party in interest as the plaintiff and to address the issue of a guardian a...
2024.05.08 Motion for Attorney Fees 481
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.08
Excerpt: ...on (d). Plainti ff submits a partially executed settlement agreement declaring Plaintiff as the prevailing party, entitling her to seek fees and costs. The settlement agreement is not subscribed by defendant Mercedes -Benz, USA, LLC (“Defendant”), against whom Plaintiff se eks to enforce this provision. In opposition, Defendant does not appear to contest the execution of the settlement agreement. The court finds that Plaintiff sufficiently s...
2024.05.08 Motion to Quash Subpoena 125
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.08
Excerpt: ...es she su ffered “severe and permanent injury to the body and nervous system” … (Complaint ¶ 20.) In her discovery responses, plaintiff states that she suffered a tear in her right knee's lateral meniscus, as well as injuries to her back, left arm, bilateral shoulde rs, neck, hip, head, and upper back. (Response to Defendant Form Interrogatories, Set One (“Form Rog”), No. 6.2.) Plaintiff also states that she continues to suffer con...
2024.05.08 Motion for Summary Judgment, Adjudication 582
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.08
Excerpt: ...s Associat ion (“POA”), (collectively “Defendants”) move for summary judgment of plaintiff's complaint on the basis that the undisputed material facts demonstrate defendants have a complete affirmative defense to the action, that the plaintiffs have failed to proffer evidence to support their claims, and that there is no merit to their causes of action. Defendants move in the alternative for summary adjudication of each cause of action wi...
2024.05.08 Motion to Direct Sheriff to Seize Property from Private Place 763
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.08
Excerpt: ...es for a n order directing the sheriff to seize 31 items of property (mostly shipping containers and helicopter manufacturing equipment) from Hiller at 925 M Street in Firebaugh, California. This noticed motion was followed the denial of plaintiff's ex parte applic ation for the same relief. The motion is brought pursuant to Code of Civil Procedure section 699.030, which provides, The judgment creditor may apply to the court ex parte, or on notic...
2024.05.08 Motion to Strike Answer 532
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.08
Excerpt: ...d. (b).) Legacy's default may not be taken during the 30 -day leave to amend period. The time in which the answer may be amended will run from service by the clerk of the minute order. Explanation: The court previously continued plaintiff's motion to strike to allow time fo r the parties to meet and confer on the issue. Plaintiff's counsel, Stephanie J. Schiern, has filed a declaration indicating that the parties have properly met and conferred....
2024.05.07 Motion to Compel Further Responses, for Sanctions 351
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.07
Excerpt: ...otion t o compel responses from defendant Abigail Abel. To deny the motion to compel responses from defendant Rich Villapando as moot. To impose monetary sanctions in the amount of $44.50, in favor of plaintiff Jackie York and against defendant Rich Villapando. Within thirty (30) days of service of the order by the clerk, defendant Rich Villapando shall pay sanctions to plaintiff Jackie York. Explanation: Motion to Compel Responses – Abigail Ab...
2024.05.07 Motion for Change of Venue, Demurrer, Motion to Strike 746
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.07
Excerpt: ...ction within 30 days after service of notice of the transfer order. The demurrers and motion to strike are taken off calendar, but are subject to be recalendared in the proper court upon the transfer of the action. Explanation: County of Tulare moves to change t he venue of this action on the ground that County of Fresno is an improper venue and County of Tulare is the only proper venue. “It is a long established rule that a motion for change o...
2024.05.07 Demurrer, Motion to Strike 851
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.05.07
Excerpt: ...urrer 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 co ncern 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 asses...
2024.05.07 Demurrer, Motion to Strike 130
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.07
Excerpt: ...e to amend, defendant's general demurrer to the First Amended Complaint's fifth cause of action for “Fraudulent Inducement -Concealment” on the basis that plaintiff had insufficiently pled a relationship with defendant General Motors, LLC to give rise to a duty to dis close the alleged concealed material facts regarding plaintiff's vehicle. On December 14, 2023 plaintiff filed the Second Amended Complaint (“SAC”) which is now the subjec...
2024.05.07 Demurrer to FAC, Motion to Strike, to Quash Subpoenas 756
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.07
Excerpt: ...nt the motion to strike. (Code Civ. Proc., § 436.) To deny plaintiff's motion to quash. To deny imposition of sanctions. Explanation: Demurrer and Motion to Strike “Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Nevertheless, claims falling under the Tort Cla...
2024.05.02 Demurrer, Motion to Strike 206
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.02
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...
2024.05.02 Motion for Attorney Fees, to Tax Costs 728
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.02
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...
2024.05.02 Motion for Reconsideration 888
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.02
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...
2024.05.02 Motion for Summary Adjudication 390
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.02
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...
2024.05.02 Motion for Summary Judgment, Adjudication 348
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.02
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...
2024.05.02 Motion for Summary Judgment, Adjudication 879
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.02
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...
2024.05.01 Motion to Compel Arbitration 739
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.05.01
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...
2024.05.01 Motion for Summary Judgment, Adjudication 468
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.01
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 ...
2024.05.01 Motion for Judgment on the Pleadings 648
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.01
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...
2024.05.01 Motion for Attorney Fees 765
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.01
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...
2024.05.01 Demurrer, Motion to Strike 097
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.05.01
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...
2024.04.30 Demurrer to FAC 701
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.04.30
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.)...
2024.04.30 Demurrer, Motion to Strike 084
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.04.30
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...
2024.04.30 Demurrer, Motion to Strike Complaint 667
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.04.30
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 ...
2024.04.30 Demurrer, Motion to Strike Punitive Damages from FAC 505
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.30
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...
2024.04.30 Demurrers 303
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.04.30
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 ...
2024.04.30 Motion for Preliminary Approval of Class Settlement 205
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.04.30
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...
2024.04.30 Motion to Dismiss for Inconvenient Forum 734
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.04.30
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...
2024.04.30 Motion to Enforce Settlement Agreement and Enter Judgment, for Attorney Fees 071
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.04.30
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...
2024.04.30 Motion to Quash Service of Summons, to Compel Arbitration and Stay Proceedings 737
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.04.30
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...
2024.04.25 Motion to Withdraw or Amend Admissions 390
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.04.25
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.,...
2024.04.25 Motion for Terminating Sanctions 315
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.25
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...
2024.04.25 Motion for Summary Judgment 815
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.25
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 ...
2024.04.25 Motion for Good Faith Settlement 340
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.04.25
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...
2024.04.25 Demurrer to FAC 466
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.25
Excerpt: ...e order. Explanation: A general demurrer is sustained where the pleading is insufficient to state a cause of action or is incomplete. (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535.) A special demurrer, though disfavored, is nevertheless sustained where a pleading is so uncertain that the defendant cannot reasonably respond to the subject pleading. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612...
2024.04.25 Demurrer 611
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.25
Excerpt: ...aint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To overrule the special demurrer for uncertainty. (Code Civ. Proc. § 430.10, subd. (f).) Explanation: A party may file a general demurrer on claims that “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535...
2024.04.24 Motion to Enforce Settlement 238
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.04.24
Excerpt: ...tentative ruling, a proposed judgment. Explanation: Plaintiffs Jay Hylton and Krystal Hylton (together “Plaintiffs”) seek to enforce a settlement agreement by and between them and defendant FCA US LLC (“Defendant”) under Code of Civil Procedure section 664.6. Code of Civil Procedure Section 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court . . ...
2024.04.24 Motion to Dismiss 165
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.24
Excerpt: ...planation: Corporations may not represent themselves before the court in propria persona, nor can corporations represent themselves through their officers, directors, or any other employee who is not an attorney. (CLD Construction, Inc. v. City of San Ramon (2 004) 120 Cal.App.4th 1141, 1145.) Corporations must be represented by an appropriately licensed attorney in court proceedings. (CLD Construction, Inc. v. City of San Ramon, supra, 120 Cal.A...
2024.04.24 Motion to Compel Further Responses 995
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.24
Excerpt: ...984) 158 Cal.Ap p.3d 524, 526), the expiration of the time period is considered “‘jurisdictional' in the sense that it renders the court without authority to rule on motions to compel other than to deny them.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (S exton) [referring to the 45- day statutory time limit]; see also Vidal Sassoon Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 684 (Sassoon); Standon Co. v. Superior Cour...
2024.04.24 Motion to Compel Compliance with Subpoena, for Monetary Sanctions 809
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.04.24
Excerpt: ... the mo tions compelling Prestige Urgent Care's compliance with subpoena, without prejudice. (Code Civ. Proc., § 2020.220, subds. (b) -(c); Cal. Rules of Court, rule 3.1346.) To deny the motions for defendant Homegoods, Inc.'s responses to Requests for Production of Documents, Sets One and Two, since Homegoods, Inc. served its verified responses on April 9, 2024. To award monetary sanctions in the total amount of $1,320 against Homegoods, Inc.'...

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