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2024.03.07 Motion to Strike, Demurrer to TAC 775
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.07
Excerpt: ... cause of action with leave to amend; and to deny the defendant's motion to strike. The plaintiff is granted leave of 10 days to file her fourth amended complaint, which will run from service by the clerk of the minute order. New language must be set in boldface type. Explanation: Eleven plaintiffs, not including plaintiff Gina Beckman, filed the original complaint in this action on September 7, 2022, against a single named defendant, Saint Agnes...
2024.03.07 Motion to Compel Responses 303
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.03.07
Excerpt: ...es. Any objections included in those response are stricken, as all objections are waived due to the failure to serve timely responses. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a), 2033.280, subd. (a).) To deny the request for monetary san ctions. Explanation: On November 14, 2023, plaintiff served Form Interrogatories, Special Interrogatories, Request for Production of Documents, and Requests for Admission, all Set One, on def...
2024.03.07 Motion to Compel Further Responses 890
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.03.07
Excerpt: ... ob jections within 20 days of the date of service of this order. To impose monetary sanctions in favor of Plaintiff Maria Cordoba, and against Defendant American Honda Motor Co., Inc. (Code Civ. Proc. §§ 2023.010, subd. (e) and (h); 2031.300, subd. (c).) De fendant is ordered to pay $1,060.00 in sanctions to the Knight Law Group, LLP within 30 days of the clerk's service of the minute order. If oral argument is timely requested, such argument ...
2024.03.07 Motion to Compel Arbitration and to Stay Matter Pending Hearing on the Petition 206
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.07
Excerpt: ...il Procedure section 1281.2 states that, “[o]n 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 the controversy exists, unless it determines that: (a) The right to compel arbitra...
2024.03.07 Motion to Abate, Stay, or Consolidate Actions 601
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.03.07
Excerpt: ...ternative request to consolidate the actions, as a complete consolidation for all purposes, including trial and discovery. The lead case will be number 22CECG01601. Defendant is ordered to file and serve a notice of entry of this ord er in all actions, properly captioned with all case names and numbers. Other than this, all further documents filed in the case shall be filed only in the lead case, and shall include the caption and case number o...
2024.03.07 Motion for Preliminary Injunction 036
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.07
Excerpt: ... defendant is likely to suffer if the preliminary injunction were issued.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69 -70; see also Code Civ. Proc., § 526, subd. (d)(2) [Injunctive relief appropriate “[w]hen it appears by the complaint or aff idavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.”].) The Code of Civil Procedure...
2024.03.07 Motion for Attorney Fees 814
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.03.07
Excerpt: ... which provides, in pertinent part that fees may be awarded to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if : (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement… are such as to make th...
2024.03.07 Demurrer, Motion to Strike 634
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.03.07
Excerpt: ...no's demurrer to the second, third, fifth, and sixth causes of action in the First Amended Complaint, with leave to amend. To overrule defendant City of Fresno's demurrer as to the first and fourth causes of action in the First Amended Complaint. Plaintiff is granted 10 days' leave to file the Second Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanati...
2024.03.07 Demurrer, Motion to Strike 425
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.07
Excerpt: ...ause of action. To grant leave to amend as to the ninth and seventeenth causes of action, and to deny leave to amend as to the sixteenth cause of action. To deny defendants' motion to strike portions of the complaint, in its entirety. Pla intiffs shall serve and file their first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer to Sixth Cause of Action: With re...
2024.03.07 Demurrer to FAC, Motion to Strike Punitive Damages 411
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.03.07
Excerpt: ...0 , subd. (e).) The time in which the complaint may be amended will run from service of the order by the clerk. All new allegations are to be placed in boldface type. To deny the motion to strike punitive damages allegations. (Code Civ. Proc., § 436.) Ex planation: Defendants demur to the third through ninth causes of action, and move to strike the punitive damages allegations from the First Amended Complaint (“FAC”). Demurrer Claims Against...
2024.03.07 Motion to Deem RFAs Admitted, for Monetary Sanctions 611
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.03.07
Excerpt: ...laintiff, 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. The matters specified in defendant's Requests for Admission, Set One, propounded on plaintiff are deemed admitted, un less plaintiff serves, before the hearing, proposed responses to the requests for admission that re in substantial compliance with the Code of Civil Procedure, section 2033.220. Plaintiff shall serv...
2024.03.06 Motion for Attorney Fees 563
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.03.06
Excerpt: ...ministrator actually charged for its services. Explanation: 1. Class Certification The court has already determined that the proposed class meets the requirements for certification when it granted preliminary approval of the proposed settlement. There have been no objections to the court's decision, and nothing has happened since the preliminary approval order that would cause the court to reconsider its determination. Therefore, the court inte...
2024.03.06 Demurrer to FAC, Motion to Strike 368
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.03.06
Excerpt: ...bd. (f).) The motion to strike is rendered moot, in light of the court's ruling granting plaintiff leave to amend the First Amended Complaint. Plaintiff is granted 20 days' leave to file a Second Amended Complaint. The time to file such pleading will run from service by the clerk of the minute order. All new allegations in a Second Amended Complaint must be set in boldface type. If oral argument is timely requested, such argument will be entert...
2024.03.06 Motion for Approval of PAGA Settlement 095
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.06
Excerpt: ...nder Labor Code section 2699, “[t]he 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 cou rt.” (Lab. Code, § 2699, subd. (i)(2).) ‘“‘A representative action under PAGA is not a class action'”', and is instead a ‘type of qui tam action', a standard requiring the trial court to det...
2024.03.06 Motion for Terminating Sanctions and Monetary Sanctions 024
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.03.06
Excerpt: ...s shall pay monetary sanctions within 20 days of the date of service of this order. However, the court intends to deny the request to enter an immediate default judgment against defendants, as plaintiff still needs to submit a default jud gment application with evidence to prove up its damages. Explanation: Code of Civil Procedure section 2023.010(g) makes “[d]isobeying a court order to provide discovery” a “misuse of the discovery process,...
2024.03.06 Motion to Compel Arbitration and Stay Proceedings 018
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.03.06
Excerpt: ...ngs. (9 U.S.C. S 2.) If oral argument is timely requested, such argument will be entertained on Friday, March 8, 2024, at 1:30 p.m. in Department 501. Explanation: Evidentiary Objections Plaintiff's first evidentiary objection is sustained for the best evidence rule. The second evidentiary objection is overruled. The third evidentiary objection is sustained for lack of personal knowledge. The fourth evidentiary objection is sustained for hearsay....
2024.03.06 Motion to Establish Admissions, for Sanctions 067
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.03.06
Excerpt: ...the matters specified in the Requests for Admission, Set Three, are to be deemed admitted unless each defendant serves, before the hearing, proposed responses to the requests for admission that are in substantial compliance with Code of Civil Pro cedure section 2033.220. (Code Civ. Proc., § 2033.280, subd. (c).) To impose monetary sanctions against defendants Harpreet Singh and Nijjar Cargo Solutions, Inc., in the amount of $681.25 as to each d...
2024.03.06 Motion to Stay Action 240
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.03.06
Excerpt: ...di scretion to stay a civil proceeding where there is a related criminal proceeding pending. The decision whether to stay civil proceedings in the face of a parallel criminal proceeding should be made 'in light of the particular circumstances and competing interests involved in the case.' [Citation.] This means the decisionmaker should consider 'the extent to which the defendant's fifth amendment rights are implicated.' [Cita...
2024.03.05 Motion to Compel Responses, for Evidence, Terminating, and Monetary Sanctions 766
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.05
Excerpt: ...ntinue the hearing on the motion to Tuesday, April 30, 2024 at 3:30 p.m. in Department 502, to afford plaintiff one final opportunity to comply with the court's order dated 11/7/2023. Defendant shall file with this court an update on the status of the discov ery nine court days before the continued hearing. Explanation: On 5/5/23 defendant propounded on plaintiff Form Interrogatories, Special Interrogatories and Request for Production of Docume...
2024.03.05 Motion to Compel Arbitration and Stay Civil Action 938
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.03.05
Excerpt: ...ment will be entertained on Friday, March 8, 2024, at 1:30 p.m. in Department 501. Explanation: 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 b y 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 ...
2024.03.05 Motion to Bifurcate Issues of Liability from Damages at Trial 118
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.03.05
Excerpt: ...Procedure section 598, the court is given great discretion in regards to the order of issues at trial: The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promot ed thereby, on motion of a party, after notice and hearing, make an order…that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case…. ...
2024.03.05 Motion to Approve PAGA Settlement 976
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.03.05
Excerpt: ....00. To appoint CPT Group, Inc. as settlement administrator and approve costs to administer in the amount of $8,000.00. Plaintiffs are directed to submit a new proposed order. Explanation: 1. Introduction Under Labor Code section 2699, “[t]he supe rior 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 ...
2024.03.05 Motion for Terminating Sanctions 385
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.05
Excerpt: ... to this court, within seven days of the date of service by the clerk of this order, a proposed judgment dismissing this action as to defendant. The court denies defendant's additional request for monetary sanctions. Explanation: Once a motion to compel discovery is granted, continued failure to comply may support a request for more severe sanctions. Code of Civil Procedure section 2023.010, subdivision (g), makes “[d]isobeying a court order to...
2024.03.05 Demurrer 930
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.03.05
Excerpt: ...e of this order. All new allegations shall be in boldface. Explanation: First Cause of Action: “Establishing that claim [for breach of contract] requires a showing of ‘(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.'” (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800, c...
2024.03.05 Demurrer 693
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.03.05
Excerpt: ...nc. and Modivcare Solutions, LLC (collectively, the “Modivcare Defendants”) demur to the entirety of the complaint on the ground that the complaint fails to state a cause of action, and each cause of action is uncertain and time -barred by the applic able statute of limitations. While plaintiff may and does utilize the Judicial Council form complaint, the usage of the form does not change the statutory requirement that the complaint contain �...
2024.02.29 Motion for Attorney Fees, to Strike Costs 440
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.29
Excerpt: ...rmony Communities' motion for its attorney's fees, in the amount of $38,002.50. To grant plaintiffs' motion to strike La Hacienda's Memorandum of Costs, item 10, in the amount of $3,512. To deny plaintiffs' motion to strike the remainder of La Hacienda's Memorandum of Costs. To deny plaintiffs' motion to strike Harmony's Memorandum of Costs, in its entirety. If oral argument is timely requested, such argument will be entertained in Department 501...
2024.02.29 Demurrer to FAC, Motion to Strike Punitive Damages 399
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.29
Excerpt: ...r by the clerk, defendants shall submit a proposed Judgment dismissing the action. If oral argument is timely requested, such argument will be entertained in Department 403 at 3:30 p.m. on March 7, 2024. Explanation: In the FAC filed on 8/15/23, plaintiff Stacy Hu ber alleges she was falsely accused of misconduct at a termination meeting, terminated, and not given any reason for the termination. Based on these bare allegations, plaintiff alleges...
2024.02.29 Motion for Approval of PAGA Settlement 802
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.29
Excerpt: ...ve costs to administer in the amount of $3,250.00. Plaintiff is directed to submit a new proposed order. Explanation: 1. Introduction Under Labor Code section 2699, “[t]he 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).) ‘“‘A representative ...
2024.02.29 Motion for Approval of PAGA Settlement, to Dismiss Cause of Action 112
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.29
Excerpt: ...on Under Labor Code section 2699, “[t]he 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).) The statute does not explain what exactly the trial court should consider when reviewing a proposed PAGA settlement. However, recently the Court of Appeal in...
2024.02.29 Motion to Set Aside Default, for Sanctions 338
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.29
Excerpt: ...ion: “The ethical obligation to warn opposing counsel of an intent to take a default is now reinforced by a statutory policy that all parties ‘cooperate in bringing the action to trial or other disposition.' Quiet speed and unreasonable deadlines do no t qualify as ‘cooperation' and cannot be accepted by the courts.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 137, emphasis added, citations omitted.) In addition, “[t]he law favors judg...
2024.02.29 Motion for Preliminary Approval of Class Action and Representative Action Settlement 297
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.29
Excerpt: ...f Court, rule 3.769, subd. (a).) The approval of the settlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769, subd. (d).) “If the court grants preliminary approval, its order must includ e the time, date, and place of the final approval hearing; the notice to be given to the class; and any other matters deemed necessary for the proper conduct of a settlement hearing. (Cal. Rules of Court, Rul...
2024.02.29 Motion for Summary Judgment, Adjudication 274
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.29
Excerpt: ...ted, such argument will be entertained in Department 501 at 3:30 p.m. on February 29, 2024. Explanation: A plaintiff may request a continuance by filing a declaration explaining why further discovery is essential to opposing the motion for s ummary 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 establ...
2024.02.29 Motion to Consolidate Unlimited Civil Action with Unlawful Detainer Actions 160
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.29
Excerpt: ...nation: The purpose of consolidation is to enhance trial court efficiency by avoiding unnecessary duplication of evidence and procedures, and to avoid the substantial danger of inconsistent adjudications. (Todd -Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.) And where the issue is consolidating an unlawful detainer action with a civil action making a claim of ownership of the subject property, the additional issue is o...
2024.02.29 Motion for Summary Adjudication 390
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.29
Excerpt: ...n for summary adjudication is continued to May 2, 2024, at 3:30 p.m. in Department 403. Defendant shall file and serve its motion for relief from the order deeming it to have admitted the matters in the requests for admission by March 14, 2024. The motion shall be calendared on April 11, 2024. Opposition and reply briefs will be filed and served per code. If oral argument is timely requested, such argument will be entertained in Department 501 ...
2024.02.28 Motion for Determination of Good Faith Settlement 362
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.28
Excerpt: ... v. Woodward -Clyde & Assocs. (1985) 38 Cal.3d 488, 499 (Tech -BIlt)) include “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, a nd a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial condition...
2024.02.28 Demurrer, Motion to Strike 178
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.28
Excerpt: ...Explanation: Demurrer The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690,...
2024.02.28 Demurrer 946
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.28
Excerpt: ...30.10, subd. (e), (f).) To overrule the demurrers to the first and second causes of action. The time in which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be in boldface type. Explanation: This is an elder abuse action brought on behalf of Dorothy Magee (“Decedent”), through her successor -in -interest Lydell Magee. Decedent's children, Lydell Magee and Marcel Smith, also assert a wr...
2024.02.28 Motion for Sanctions 951
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.28
Excerpt: ...s from the date of service of the order by the clerk, to counsel for defendants Hope Benites Serna and Fernando Serna. Explanation: On September 6, 2023, defendants Hope Benites Serna and Fernando Serna (collectively “Defendants”) filed a Request for Pr etrial Discovery Conference, consistent with Fresno Superior Court Local Rules, Rule 2.1.17 regarding disputes between the parties on discovery. On September 25, 2023, noting that plaintiff A...
2024.02.28 Motion to Compel Arbitration 434
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.28
Excerpt: ...submitted on reply in the Reply Declaration of Gary Revis. All supplemental briefing will be per Code of Civil Procedure section 1005, subdivision (b), treating March 26, 2024 as the original hearing date. Explanation: Defendant Future Clovis, Inc. d ba Future Ford of Clovis (“Defendant”) moves for an order compelling Plaintiffs SS Pro Flooring & Construction, Inc. and Saul Sanchez Medina (collectively “Plaintiffs”) to arbitration. A tri...
2024.02.28 Motion to Compel Arbitration 959
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.28
Excerpt: ...ovisi on is deemed severed from the Retail Installment Sale Contract. To stay this action and the remaining claims against defendant PRCO, Inc. and American Contractors Indemnity Company pending the completion of arbitration. Explanation: Plaintiff contracte d to purchase a vehicle from Car Palace, Inc., doing business as Auto Depot, on credit. (Shahnematollah Decl., ¶ 9, Exh. A; Second Amended Complaint, ¶¶ 2, 5.) The dealership then assigned...
2024.02.28 Motion to Quash Three Subpoenas Duces Tecum 223
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.28
Excerpt: ..., to allow time for: (1) ESIS, Inc. to serve all appearing parties to the action with the moving papers and to file a corrected proof of service; and (2) the proposed successor in interest to substitute as a party to this action for the deceased plaint iff. The proposed successor in interest may file an ex parte application and reserve an ex parte hearing date for the substitution. The proposed successor in interest may re -file her opposition...
2024.02.27 Motions for Relief from Deemed Admissions 552
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.27
Excerpt: ... for relief.” However, this misstates the holding of Gribin Von Dyl & Associates, Inc. v. Kovalsky (1986) 185 Cal.App.3d 653. There, the court said a party seeking relief “under a court's equity power must make a stronger showing than is necessary to obtain relief under section 473.” (Id. at p. 660, emphasis added.) It did not find that the showing for a request for relief based on “mistake, inadvertence, or excusable neglect” unde...
2024.02.27 Motion to Set Aside Default 985
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.27
Excerpt: ...dure section 473.5 in their arguments. Cross- Complainant JD Properties, Inc. addressed both grounds. Accordingly, the court proceeds on both grounds. Code of Civil Procedure section 473, subdivision (b) provides, in pertinent part: The court may, upon any te rms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertenc...
2024.02.27 Motion for Summary Judgment, Adjudication 730
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.27
Excerpt: ...ment order. If oral argument is timely requested, such argument will be entertained in Department 501 at 3:30 p.m. on February 27, 2024. Explanation: The Material Undisputed Facts The plaintiffs in this action, Stephanie Norgard and Edward Priest, are the parents of Varonica Priest ("Decedent"). On January 31, 2021, Decedent presented to the hospital emergency department for respiratory dyspnea. She was 35 years old with a history of mito...
2024.02.27 Motion for Summary Judgment 930
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.27
Excerpt: ... others, for failure to properly maintain the lock on the door through which Mr. Roy gained entry to the building. Cosco now moves for summary judgment, relying solely on the firefighter's rule. Cosco contends that the firefighter's rule applies because Mr. D iaz was working as a law enforcement officer in his office at the time of the attack, “and the injuries arose from an activity that was anticipated or expected in the line of duty.” ...
2024.02.27 Motion for Summary Adjudication 368
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.27
Excerpt: ...timely. Additionally, a meet and confer declaration is not filed in support of the motion. Plaintiff's request to set a hearing on an order to show cause regarding contempt against LP's counsel, Jeremy Freedman, for filing untimely documents, is denied. Explanation: Evidentiary Objections and Requests for Judicial Notice The court overrules each of defendant Latchkey Pioneers, LLC's (“LP”) objections, as LP failed to comply with California ...
2024.02.27 Motion for Determination of Good Faith Settlement 745
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.27
Excerpt: ... Center (“Villagio”) and Manco Abbott, Inc., collectively “Settling Defendants,” have agreed to settle with plaintiffs for a total of $5,000,000.00, with offsets taken for settlements reached with defendants Cirks Construction, Inc. in the amount of $125,000 and Miller Clark Landscape and Nursery in the amount of $130,000. The final amount of the settlement is $4,745,000 with Lazy Dog contributing $949,000.00, Villagio contributing $2,37...
2024.02.22 Demurrer, Motion to Strike 254
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.22
Excerpt: ...to file such pleading will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To deny plaintiff's motion to strike. If oral argument is timely requested, such argument will be entertained at 3:30 p.m. on Thursday, February 22, 2024, in Department 502. Explanation: Demurrer Code of Civil Procedure section 430.40 provides that a person may demur to an answer within 10 days after service of the...
2024.02.22 Motion for Leave to File SAC 741
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.22
Excerpt: ...ocedur e section 473, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form w here there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citat...
2024.02.22 Motion for Preliminary Injunction 940
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.22
Excerpt: ...beer bottles on plaintiff's property. Second, on June 4, 2023, the entrance gate was left open. Third, on January 22, 2024, the entrance gate was closed, but not securely latched. Fourth, and primarily, defendants are driving on the dirt road, and the Behrens improved the roadway by paving and grading (though plaintiff only seeks to have defendants stick to the easement boundaries). An injunction may be granted “[w]hen it appears by the complai...
2024.02.22 Motion for Summary Judgment, Adjudication 873
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.22
Excerpt: ...defendants Sergio Franco and Vantage Point Finance, LLC in its entirety. If oral argument is timely requested, such argument will be entertained at 3:30 p.m. on Thursday, February 22, 2024, in Department 502. Explanation: Several parties move for summary judgment of the Second Amended Complaint (“SAC”) by plaintiff Cameron Arballo (“Plaintiff”). The SAC states eight causes of action: (1) breach of contract/specific performance; (2) quiet...
2024.02.22 Motion for Summary Judgment, Adjudication 772
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.22
Excerpt: ...f ser vice of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: Admiral moves for summary judgment or in the alternative, for summary adjudication as to the first and second causes of action in the Fourth A mended Complaint for breach of contract and breach of implied covenant of good faith and fair dealing. Evidentiary Objections and Requests for Judicial Notice Admiral's evidentiary objectio...
2024.02.22 Motion to Set Aside Default Judgment 247
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.22
Excerpt: ...s the date documents were mailed and where they were mailed from, but the section where the documents served should be listed reads “Post office on Alluvial, Fresno CA” and does not state what was served. Assuming that defendant can provide a sa tisfactory proof of service, defendant also has not met the requirements necessary to set aside a default judgment. Code of Civil Procedure section 473, subdivision (b), provides for relief from a jud...
2024.02.22 Motion to Strike 394
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.22
Excerpt: ...Civil Procedure section 425.16, "[a] cause of action against a person arising from any act of that person in furtherance of the person 's rightof petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the ...
2024.02.22 Motion to Compel Initial Responses, for Monetary Sanctions 742
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.22
Excerpt: ... the special interrogatories. However, the court will grant sanctions against HTV for its unjustified failure to serve timely responses to the discovery, in the amount of $585. HTV shall pay sanctions to Varo within 30 days of the date of ser vice of this order. HTV's request for sanctions against Varo is denied. Explanation: The court intends to deny Varo's motion to compel initial responses to special interrogatories, as HTV has now served ver...
2024.02.21 Motion to Compel Further Responses, for Monetary Sanctions 196
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.21
Excerpt: ...eek relief under Code of Civil Procedure sections 2023.040, 2023.030, 2023.030, and 2023.050 on the basis that defendant's “responses are evasive and incomplete and the objections are without merit or too general.” (Notice of Motions, at p. 2:1 -2 .) Plaintiff's separate statements, however, shows that defendant responded to most of the subject interrogatories and requests for admissions with straight forward denials and factual replies. In p...
2024.02.21 Motion for Preliminary Approval of Class Action Settlement 943
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.02.21
Excerpt: .... Class Certification a. Standards First, the court must determine whether the proposed class meets the requirements for certification before it can grant preliminary approval of the proposed settlement. An agreement of the parties is not sufficient t o establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal....
2024.02.21 Motion for Terminating Sanctions 370
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.21
Excerpt: ...r co unsel of record, Brian N. Folland, jointly and severally, 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. If oral argument is timely requested, such argument will be entertain ed at 9:00 a.m. on Friday, February 23, 2024. Explanation: Code of Civil Procedure section 2023.010, subdivision (g), makes “[d]isobeying a court order to provide discovery” a “misuse...
2024.02.21 Motion for Prejudgment Interest 728
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.21
Excerpt: ...section 3287, subdivisions (a) and (b). Under section 3287, subdivision (a), “[a] person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day...” (Civil Code, § 3287, subd. (a).) “‘The purpose of prejudgment interest is to compensate plaintiff for loss of use of h...
2024.02.21 Motion to Strike 193
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.02.21
Excerpt: ... a First Amended Complaint. The time in which such pleading may be filed 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. If oral argument is timely requested, su ch argument will be entertained at 9:00 a.m. on Friday, February 23, 2024, in Department 501. Explanation: A motion to strike can be used to cut out any “irrelevant, false or improper” matters...
2024.02.21 Motion to Strike Punitive Damages from FAC 194
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.02.21
Excerpt: ...a public entity defendant. Specifically, the allegations on paragraph 93, pages 16:23 – 17:5, paragraph 102, pages 17:24 - 18:5, paragraph 111, pages 18:24 – 19:6, paragraph 120, pages 19:23 – 20:5, paragraph 129, pages 20:23 – 21:4, and Prayer for Relief, paragraphs 3, page 32:10 -11 and 12, page 33:23 are stricken from the First Amended Complaint. The court also intends to deny leave to amend. If oral argument is timely requested, such...
2024.02.21 Motion to Tax Costs 006
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.21
Excerpt: ... any action or proceeding." (Code Civ. Proc., 1032, (subd. (b).) "Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtans any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." (Code Civ. Proc., S 1032, subd. (a)(4).) Here, defendant Saint Agnes Medical Center was clearly th...
2024.02.21 Motion to Tax Costs 635
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.02.21
Excerpt: ...tion: Defendants timely filed their Memorandum of Costs, and plaintiff timely filed his motion to tax those costs. Defendants are entitled to claim costs as prevailing parties, since a dismissed defendant is deemed the prevailing party. (Code Civ. P roc., § 1032, subd. (a)(4); City of Long Beach v. Stevedoring Services of America (2007) 157 Cal.App.4th 672, 678.) This is so whether the dismissal was voluntary or (as here) involuntary. (Crib Re...
2024.02.15 Motion to Lift Stay and Vacate Order Compelling Arbitration 160
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.15
Excerpt: ...3:30 p.m. in Department 502. To impose a monetary sanction against defendants Lithia NC, Inc. and American Credit Acceptance, LLC in the amount of $5,560, payable no later than thirty (30) days from the date of service of this order. Explanation: Code of Civ il Procedure section 1281.98 provides, in pertinent part: In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules ...
2024.02.15 Motion for Summary Adjudication 029
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.15
Excerpt: ...on: Plaintiffs in this action allege various causes of action, including wage and hour violations, stemming from the defendants' alleged misclassification of Certified Registered Nurse Anesthesiologists as 1099 independent contractors. On 12/16/2022, defendant CRAMG filed a Voluntary Petition for Non -Individuals Filing for Bankruptcy under Chapter 7 (“Bankruptcy Petition”). (UMF 3.) On 1/12/2023, defendants filed a Notice of Bankrupt...
2024.02.15 Motion for Leave to File FAC 635
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.15
Excerpt: ...l dface type. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading ….” (Code Civ. Proc. § 473, subd. (a); see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776- 777; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) Accordingly, the California Supreme Court has he...
2024.02.15 Motion for Judgment on the Pleadings, for Attorney Fees 175
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.15
Excerpt: ... run from the service of this minute order by the clerk. Defendant is granted 10 days' leave to amend to file an amended answer to plead facts sufficient to constitute the affirmative defenses he has already raised. To the extent defendant seeks to amend to include new defenses that were not previously raised, defendant must file his own noticed motion for leave to amend. The time to file the amended answer will run from the service by the cle...
2024.02.15 Demurrer, Motion to Strike 301
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.15
Excerpt: ...amended complaint within 10 days of the date of service of this minute order by the clerk. All new allegations shall be in boldface. Explanation: Plaintiff PM Transport, Inc. (“Plaintiff”) filed a Complaint regarding the lease of two trailers. The C omplaint states six causes of action: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) negligence; (4) unjust enrichment; (5) conversion; (6) violation o...
2024.02.14 Petition to Compel Compliance with Project Labor Agreement Up to and Including Arbitration 200
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.14
Excerpt: ...ement 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 the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agree...
2024.02.14 Motion for Summary Judgment, to Compel Compliance with Order 535
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.14
Excerpt: ...oot. Explanation: SUMMARY JUDGMENT Evidentiary Objections The court finds plaintiff's objection to Pappas Declaration paragraph 3, and Exhibit A attached thereto, moot in light of plaintiff's submission of the same evidence in her opposition. The court overrules plaintiff's remaining objections to the Pappas Declaration. Merits A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is e...
2024.02.08 Demurrer 216
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.08
Excerpt: ...demurrer is to test the su¯iciency of a plainti¯'s pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plainti¯ has succeeded in stating a cause of action; the court does not concern itself with the issue of plainti¯'s possible di¯iculty or inability in proving the allegations of the complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the su¯icienc...
2024.02.08 Demurrer 841
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.08
Excerpt: ...hich the complaint may be amended will run from service of the order by the clerk. All new allegations shall be in boldface type. Oral argument shall be heard on Wednesday, March 20, 2024 at 3:30 p.m. in Department 503. Explanation: A party may Þle a general demurrer on claims that “[t]he pleading does not state facts su¯icient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 5...
2024.02.08 Demurrer to FAC, Motion to Strike 622
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.08
Excerpt: ...ted 30 days' leave to Þle the Þrst amended complaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations/language in the Þrst amended complaint are to be set in boldface type. To Þnd moot defendant's motion to strike the prayer for punitive damages in light of the ruling sustaining the demurrer to all causes of action. Explanation: In California, a complaint shall contain a s...
2024.02.08 Motion for Attorney Fees 561
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.08
Excerpt: ...awal is not yet e¯ective, as counsel have not Þled proof of service of the Order Granting Attorney's Motion to be Relieved as Counsel. According to the order at paragraph 5, the “[attorney] is relieved as counsel of record for client e¯ective upon the Þling of the proof of service of this signed order upon the client.” No such proof of service has been Þled. Plainti¯ Þled this is action to recover on a $500,000 Loan Agreement and Pr...
2024.02.08 Motion for Reconsideration 709
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2024.02.08
Excerpt: ...ught before the same judge that made the order; (2) made within 10 days after ser vice upon the party of notice of the entry of the order; (3) based on new or di¯erent facts, circumstances, or law; and (4) made and decided before entry of judgment. Code of Civil Procedure section1008 is jurisdictional. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) A party requesting the court reconsider its prior orders must provide new evidence and...
2024.02.08 Motion for Summary Judgment 944
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.02.08
Excerpt: ...rules all of plainti¯'s objections to the Hamilton Declaration, all of plainti¯'s objections to the Wijnen Declaration, plainti¯'s one objection to the Le¯al Declaration, and the objection to paragraph 3 of the Bryan Declaration. The court sustains plainti¯'s hearsay objection to paragraph 4 of the Bryan Declaration. The court overrules defendant's objections numbers 1, 3, 4, 6, and 7. The court sustains defendant's objections numbers 2...
2024.02.08 Motion to Compel Deposition of PMK, Further Responses, for Sanctions 183
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.02.08
Excerpt: ... will be entertained on Tuesday, February 20, 2024, at 3:30 p.m. in Department 403. Tentative Ruling: To grant plainti¯'s motion to compel testimony from person most knowledgeable for defendant Fresno Surgery Center. To grant plainti¯'s motion to compel further responses to request for production of documents served with deposition notices. Defendant shall make its persons most knowledgeable available for the next noticed deposition dates, an...
2024.02.08 Motion to Set Aside Default 914
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.02.08
Excerpt: ...surprise, mistake or excusable neglect under Code of Civil Procedure section 473, subdivision (b).3 Code of Civil Procedure section 473, subdivision (b) provides, in pertinent part: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for t...
2024.02.08 Motions to Set Aside Default, to Strike 720
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.08
Excerpt: ...cument included in defendant's request for judicial notice. (Evid. Code, § 452, subd. (d).) Explanation: Defendant moves to set aside his default on the ground of inadvertence, surprise, mistake, and excusable neglect under Code of Civil Procedure, section 473, subdivision (b). The trial court has broad discretion to vacate the judgment and/or the clerk's entry of default that preceded it. However, that discretion can be exercised only if the mo...
2024.02.08 Motion for Summary Judgment, Adjudication 078
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.08
Excerpt: ...ent consistent with the court's summary judgment order. Explanation: The Material Undisputed Facts Plainti¯s are Robert Solorio, Ana Solorio, Cirenia Lozono and Ian Solorio, a minor, through his guardian ad litem (collectively "Plainti¯s"). This case arises from a tragic collision (the "Collision") between a train and Plainti¯s' passenger vehicle (the "Vehicle"), which resulted in "catastrophic and, ultimately, fatal injuries” to Decedent...
2024.02.07 Motion to Strike Doe Amendments 179
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.02.07
Excerpt: ...y name; when the defendant's true name is discovered, plainti¯ must amend their pleading accordingly. (Code Civ. Proc. §474.) The court may strike out any irrelevant, false or improper matter inserted in any pleading; or strike out all or any part of any pleading not drawn or Þled in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc. §436(a) and (b).) In the case at bench, Defendants move to strik...
2024.02.07 Motion for Summary Judgment 214
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.02.07
Excerpt: ...posed judgment consistent with this ruling. To direct defendant Volkswagen Group of America, Inc. to remit $500 in Þling fees for the consideration of the summary judgment motion. Explanation: Defendants Volkswagen Group of America, Inc. (“Volkswagen”) and Michael Cadillac, Inc. (“Michael Cadillac”) move for summary judgment of the Complaint Þled by plainti¯ Hubert Williams (“Plainti¯”). The Complaint states 5 causes of action: ...
2024.02.07 Demurrer to TAC 776
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.07
Excerpt: ... Sixth, and Seventh Causes of Action Tentative Ruling: To sustain the demurrers to the entire Third Amended Complaint, with leave to amend. (Code Civ. Proc., § 430.10, subd. (f).) To take judicial notice of each document included in defendants' requests for judicial notice. (Evid. Code, § 452, subds. (c), (d).) Explanation: Defendant Fresno Community Hospital and Medical Center dba Community Regional Medical Center (“CRMC”) generally and sp...
2024.02.07 Demurrer to FAC 037
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.07
Excerpt: ...in which the amended pleading must be Þled will run from service of the order by the clerk. Explanation: In this action, FTA seeks declaratory and injunctive relief to the e¯ect that under the Bylaws of Joint Health Management Board (“JHMB”) an annual election must be held among the Union Directors for the Union-designated Chairperson/Co-Chairperson and their alternates using the weighted voting procedure described in the JHMB Bylaws. The ...
2024.02.07 Demurrer 742
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.07
Excerpt: ... s er v i c e o f th i s o rd e r. A ll n ew all egati o n s s h a ll b e i n b o l d face. E x p l an ati o n : C ross - defendant Mutari demurs to the Þrst cross-claim for breach of contract on the ground that it fails to state a cause of action against it, as Mutari was not a party to the purchase agreement that forms the basis for the cause of action. Mutari points out that the cross-complaint only alleges a purchase agreement to buy the sub...
2024.02.07 Demurrer 531
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.07
Excerpt: ...e court does not concern itself with the issue of plainti¯'s p o s s i b l e d i¯iculty or inability in proving the allegations of their complaint. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572; Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) The complaint is liberally construed (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517; Code Civ. Proc., § 452), which “means that the reviewing court draws inferences favorable to t...
2024.02.06 Motion for Final Approval of Class Action Settlement 864
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.06
Excerpt: ...l dollar amounts Þlled in (actual costs awarded as well as enhancement payments), within 5 days of the clerk's service of this order. To set a hearing on December 4, 2024 at 3:30 p.m. in Department 502 as a hearing date for an Amended Judgment pursuant to Code of Civil Procedure section 384. A veriÞed report of payouts of settlement funds and a proposed amended judgment shall be submitted no later than November 18, 2024. Explanation: “Before ...
2024.02.06 Demurrer to FAC 387
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.06
Excerpt: ...ll run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: The function of a demurrer is to test the su¯iciency of a plainti¯'s pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plainti¯ has succeeded in stating a cause of action; the court does not concern itself with the issue of plainti¯'s p o ss i b l e d i¯iculty...
2024.02.06 Demurrer to SAC 998
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.06
Excerpt: ...�Defendant”) demurs to the Second Amended Complaint (“SAC”) on the grounds that the second cause of action, for breach arising from a special relationship that it fails to state su¯icient facts to state a cause of action against Defendant, and that it is uncertain. On a demurrer a court's function is limited to testing the legal su¯iciency of the complaint. A demurrer is simply not the appropriate procedure for determining the truth of ...
2024.02.06 Motion to Compel Deposition of PMQ 151
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.06
Excerpt: ...t in the total amount o $1,875. Monetary sanctions are ordered to be paid within 30 calendar days rom the date o service o the minute order by the clerk. Explanation: On January 3, 2024, this motion was continued when the parties Þled a joint statement indicating that the they had agreed to schedule the deposition or on or beore January 31, 2024. The court has not received an update rom the parties and the matter was not taken o¯ calend...
2024.02.06 Motion for Protective Order 125
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.06
Excerpt: ...ourt may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. (Code Civ. Proc., § 2031.060, subd. (b).) This motion is brought pursuant to Code of Civil Procedure section 2031.060. Accordingly, the Superior Court of Fresno County, Local Rules, rule 2.1.17 applies. The relevant provision of Local Rule 2.1.17 provides as follows “…no motion...
2024.02.06 Motion for Sanctions 529
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2024.02.06
Excerpt: ...Sanctions: First, plainti¯'s motion is defective, since plainti¯ never Þled or served a notice of motion as required by California Rules of Court, rules 3.1110 and 3.1112. “A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (Cal. Rules of Court, rule 3.1110(a). The motion must also identify the party or parties bringing the motion; name the parties to wh...
2024.02.06 Motion to Compel Further Responses 893
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.02.06
Excerpt: ...nal request and response, the request as amended following meet and confer, and any amended response, in addition to the moving party's statement of the factual and legal reasons for compelling a further response and an opposing response thereto. (Cal. Rules of Court, rule 3.1345, subd. (c).) The Joint Separate Statement shall be Þled at least ten court days before the continued hearing. Explanation: A motion to compel a further response to dema...
2024.02.01 Motion to Strike 776
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.01
Excerpt: ...nitive damages, and the allegations at Item 14a “(2) punitive damages,” and “(2) in the amount of: $3,000,000.00.” (Code Civ. Proc., §§ 425.13, 425.10.) The striking of the punitive damages allegations is without prejudice to plainti¯s Þling a motion under Code of Civil Procedure section 425.13, subdivision (a). Explanation: Plainti¯s' Second, Third, and Fourth Amended Complaints Code of Civil Procedure section 472, subdivision (a)...
2024.02.01 Motion to Stay All Proceedings 454
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2024.02.01
Excerpt: ...7) 66 Cal.2d 738, 746.) An order staying an action until determination of criminal charges allows plainti¯ to prepare his or her action “while alleviating [defendant's] di¯icult choice between defending either the civil or criminal case.” (See Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.) The requesting party is generally entitled to a stay in the civil action until disposition of the criminal matter. (See id.) Here, def...
2024.02.01 Motion to Compel Arbitration, Stay Proceedings 246
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.01
Excerpt: ...l Arbitration Act, and request to dismiss, or alternatively, stay the action 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 ...
2024.02.01 Motion for Summary Judgment, Adjudication 057
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.01
Excerpt: ...t Gerald Johnson, Sr. (“decedent”) by o¯icers of the Fresno Police Department. Defendants identiÞed Þve issues in their Notice of Motion as the basis for their motion, as follows: 1. Defendants are entitled to judgment on plainti¯s' Þrst cause of action for battery because defendants Padilla, Bell, and Palomino's use of force (deadly Þrearm force) was objectively reasonable as a matter of law under the totality of the circumstances. 2...
2024.02.01 Motion for Summary Judgment 888
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2024.02.01
Excerpt: ... that plainti¯ failed to allege the existence of a duty. The basis of plainti¯'s negligence cause of action, as she alleges in the SAC, is as follows: On December 3, 2018, an intoxicated driver (Baeza), insured by FSIC, caused an accident by hitting a third-party (Garza). Garza called FSIC to verify Baeza's insurance and asked if she should call the police. The FSIC representative told Garza she did not need to call the police and that they (...
2024.02.01 Motion for Summary Judgment 487
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.01
Excerpt: ...cument included in plainti¯s' request for judicial notice. (Evid. Code, § 452, subd. (d).) To grant plainti¯s' motion for summary judgment against Agricultural Contracting Services Association. Inc., dba American Labor Alliance Workers' Compensation Fund & Trust, dba CompOne USA (“ALA”), and to deny the motion against Omega Community Labor Union, dba Compass Pilot Trust (“Omega”). (Code Civ. Proc., § 437c, subds. (c) and (p)(1).) Pl...
2024.02.01 Motion for Summary Adjudication 720
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.01
Excerpt: ...resolved in their favor. (Code Civ. Proc., § 437c, subd. (p)(1); see also Aguilar v. Atlantic RichÞeld Co. (2001) 25 Cal.4th 826, 850 [“First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.”].) Accordingly, a plainti¯ moving for summary adjudication on an a¯irmative...

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