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2023.08.01 Motion to Quash Summons 939
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.08.01
Excerpt: ...ence to alienate her from plaintiff For convenience, the court will refer to plaintiff Erin Stratte as Erin and defendant Eric Stratte as Eric. The Complaint includes a cause of acton under the False Claims Act brought on behalf of the State of California. The claim is based on the allegation that defendants presented a false claim to the State to defraud decedent out of her CalPERS pension and medical benefits. On April 11, 2023, Eric was served...
2023.08.01 Motion for Summary Judgment 162
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.08.01
Excerpt: ...: California law makes clear that Defendant[s] had a non-delegable duty of care to maintain the subject property, including the subject window, in a safe condition. Koepnick v. Kashiwa Fudosan America, Inc. (2009) 173 Cal.App.4th 32, 35. As a general matter, "[all' landowners, including landlords, must use reasonable care to protect people who come onto their property. [Citations. [Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App....
2023.08.01 Motion to Compel Initial Discovery Responses, for Sanctions 109
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.08.01
Excerpt: ... Lopez and Araceli Hernandez each with Requests for Admission, Request for Production of Documents, and Form Interrogatories — General (each set one). Defendants received multiple extensions of time to respond, ultimately to May 1, 2023. Another extension of time was requested on May 3, 2023, but the further extension was not granted, as the responses were already late and multiple extensions had already been given. Plaintiff has filed motions ...
2023.08.01 Motion to Compel Arbitration 153
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.08.01
Excerpt: ...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.) This case is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. S 1, et seq. Section 2 of the FAA provides for enforcement of arbitration provisions in any co...
2023.08.01 Motion for Summary Judgment, Adjudication 249
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.08.01
Excerpt: ...y Judgment, or in the Alternative Summary Adjudication of its Breach of Contract Claim and Defendants' Affirmative Defenses in Case No. 20CECG01363 Defendant Wonderful Almonds Cooperative's Motion for Summary Judgment, in the Alternative Summary Adjudication of Plaintiffs' Thirty-First Cause of Action Tentative Ruling: To grant plaintiff Independent Financing Services' motion for summary adjudication of its breach of contract claim and defendant'...
2023.07.27 Motion to Dismiss for Failure to Prosecute 635
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.27
Excerpt: ... filed on March 9, 2023, for the reasons explained below, and the clerk is directed to remove "Yolanda Cardenas as Executor of the Estate of David Cardenas, Deceased" from being designated as Doe 1 in this action. Explanation: Plaintiff filed opposition to this motion very late, namely on July 17, 2023. That was only three court days before the date initially set for hearing.l The court has discretion to refuse to consider papers filed after the ...
2023.07.27 Motion for Summary Judgment, Adjudication 742
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.07.27
Excerpt: ... a minor. Plaintiff's father, Frank Sifuentes Jr. (decedent), reported to the emergency' department at Madera Community Hospital (MCH) on 4/15/20 in great pain and was diagnosed with a torn artery which required surgery. MCH transferred decedent to defendant Community Regional Medical Center (CRMC). CRMC discharged decedent on 4/22/20 without performing surgery. On 4/23/20 decedent was transferred to defendant Keck Hospital of USC, where died on ...
2023.07.26 Motion to Strike Answers 754
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.26
Excerpt: ... Department 403, to allow Defendants/cross-complainants' PEP Partners, LLC and UBBC Group, LLC one last chance to retain new counsel, and to file written notice of new counsel's contact information on or before Friday, September 1, 2023. If new counsel is not retained, the court intends to grant this motion in all respects. Explanation: A corporation is not a natural person, and therefore cannot appear in an action in propria persona, but instead...
2023.07.26 Demurrer to FAC, Motion to Dismiss for Failure to Prosecute 415
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.26
Excerpt: ...int ("FAC") on 3/13/20, alleging that during a 2015 surgical procedure a part of the coil deployment system, a 24 cm long wire fragment, was left within Zachary Costi that should have been removed during the procedure. (FAC "1 12, 15, 15.) The device was not discovered until 2/1/19. The first two causes of action are essentially for medical malpractice, asserted against treating physicians. The third is for products liability (design and manufact...
2023.07.25 Motion for Preliminary Injunction 771
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.07.25
Excerpt: ... acquires personal jurisdiction of a defendant by service of process in accordance with statutory and due process requirements. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229; Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 612 [personal jurisdiction is conferred by service on defendant of the summons and complaintl.) Actual notice of the action alone is not a substitute for proper servi...
2023.07.25 Demurrers, Motion to Strike 774
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.25
Excerpt: ...nd. To sustain defendant Next Green Wave, LLC's demurrer to the first and second causes of action, with leave to amend. To grant defendant Next Green Wave, LLC's motion to strike the prayer for attorneys' fees and the prayer for punitive damages. Plaintiff shall serve and file his Second Amended Complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: The function of a demurrer is...
2023.07.25 Demurrer to SAC 796
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.25
Excerpt: ...laint. (Code Civ. Proc., S 430.10, subd. (e).) 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: Strike the TAC The court may, on motion or at any time in its discretion, strike a pleading or allegations from a pleading in two situations: (a) the allegation is "irrelevant, false, or improper" or "superfluous" or "abusive" and (b) where the "p...
2023.07.25 Motion to Compel Arbitration 043
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.25
Excerpt: ... claims. Explanation: In moving to compel arbitration, a defendant must prove by a preponderance of evidence the existence of the arbitration agreement and that the disputes are covered by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.) (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.) Writte...
2023.07.25 Motion to Lift Stay 274
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.25
Excerpt: ...248, 254, 57 s.ct. 163, 81 L.Ed. 153, explained, 'the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants" (St. Paul Fire and Marine Insurance Company v. AmerisourceBergen Corporation (2022) 80 Cal.App.5th 1, 13—14, citations omitted.) Also, under Code of Civil Procedure section 923, the tria...
2023.07.25 Motion to Strike or Tax Costs 937
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.25
Excerpt: ...proceeding." "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 obtains 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).) Defendant was the "prevailing party" in the litigation. The court granted summary judgment in favor of the Ci...
2023.07.20 Motion to Strike Punitive Damages 434
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.20
Excerpt: ...mages from the complaint. To grant leave to amend the complaint. Plaintiff shall serve and file her first amended complaint within 10 days of the date of service of this order. All new allegations shall in boldface. Explanation: In order to seek punitive damages, the plaintiff must allege facts showing that the defendant was guilty of fraud, malice, or oppression. (Civil Code S 3294, subd. Also, "[aln employer shall not be liable for damages purs...
2023.07.20 Motion to Compel Responses 711
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.07.20
Excerpt: ...ories, set one, and requests for production of documents, set two, as verified responses have been provided. To deny the motion to compel responses to requests for admission, set one. Code of Civil Procedure section 2033.280(b) does not provide authority to compel responses but to deem matters admitted. To grant defendant's request for sanctions as to plaintiff for having unsuccessfully moved to compel responses to interrogatories and requests fo...
2023.07.20 Motion to Compel Further Responses 879
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.20
Excerpt: ...ponses and for sanctons as to special interrogatories nos. 7, 9, 10, 16, 24, 27, 81, 88, 101, 102, 105, 107, 111, 112, 113, 135 and 188, form interrogatory 8.7, and request for production no. 8. After plaintiff CMC served supplemental responses on 11/14/22, the court continued the hearing and ordered the parties to meet and confer to resolve and narrow any remaining issues: "After an exchange of letters setting forth the parties' positions (with ...
2023.07.20 Motion for Summary Adjudication of FAC 879
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.20
Excerpt: ... within an action or one or more issues of duty, if the party contends that there is no affrmative defense to the cause of action, „ or that one or more defendants either owed a duty to the plaintiff (Code Civ. Proc., S 437c, subd. (f)(l).) Plaintiff Fresno Community Hospital and Medical Center, d/b/a Community Health System ("CMC") moves for summary adjudication of the first cause of action for breach of contract against Community Regional Med...
2023.07.20 Motion for Preliminary Approval of Class Action Settlement 624
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.07.20
Excerpt: ...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 to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. W...
2023.07.20 Demurrer 938
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.20
Excerpt: ...y demur to the entirety of the Complaint of plaintiffs Julie Osborn and Carolyn Michelle Barnes, an individual and as trustee to the Homer R. Osborn Living Trust, UTD December 4, (together "plaintiffs"). Defendants further generally demur to the entirety of the Complaint for failure to state facts sufficient to constitute a cause of action. The Complaint states twelve causes of action: (1) financial elder abuse; (2) physical and emotional elder a...
2023.07.20 Demurrer 425
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.20
Excerpt: ...ll run from service by the clerk of the minute order. Explanation: Demurrer Generally The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of the ...
2023.07.20 Demurrer 299
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.20
Excerpt: ...ourt intends to overrule the demurrer to the other affirmative defenses. Defendant shall serve and file its first amended demurrer within ten days of the date of service of this order. All new allegations shall be in boldface. Explanation: under Code of Civil Procedure secton 430.20, "A party against whom an answer has been filed may object, by demurrer as prov-ded in Section 430.30, to the answer upon any one or more of the following grounds: (a...
2023.07.19 Motion for Preliminary Injunction 273
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.19
Excerpt: ...ections Initially, the court notes that it sustains Defendants' objections 5, 7, 8, 11,12, 14, 15, 16, 17, 19, and 20to the declaration of Russel Martone, filed May 24, 2023. The remainder of the objections are overruled. Merits In considering whether to issue a preliminary injunction, the court should consider (1) the likelihood that the moving party will prevail on the merits at trial, and (2) the interim harm that the moving party is likely to...
2023.07.19 Motion for Reconsideration 386
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.19
Excerpt: ...e 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 order; (3) based on new or different facts, circumstances, or law; and (4) made and decided before entry of judgment. Code of Civil Procedure section is jurisdictional. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) A party requesting the court reconsider its pr...
2023.07.19 Motion to Compel Deposition of PMK 113
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.19
Excerpt: ...ed in opposition to the motion to compel that the motion is untimely, since plaintiff did not file it within 60 days of the date when the record was completed, which defendant claims is the date it served its objections to the deposition notice. (Code Civ. Proc. S 2025.480, subd. (b); Unzipped Apparel v. Bader (2007) 156 Cal.App.4th 123, 115-118.) However, defendant is incorrect. Defendant relies on Code of Civil Procedure section 2025.480, which...
2023.07.19 Motion to Disqualify Counsel 114
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.19
Excerpt: ...ising out of Cuttone's representation of Guadalupe Villagomez, plaintiffs mother, against plaintiff, Villagomez Farms, lnc„ 2 Boyz, Inc., Stella Villagomez, All Ag, Inc., and Frank Villagomez in the related action Villagomez v. Villagomez, et al., case no. filed February 15, 2022. ("The Elder Abuse action." ) However, plaintiff has failed to demonstrate that he has standing to move for the disqualification of Cuttone or his firm, as Leonel Vill...
2023.07.19 Motion to Transfer Venue and Recover Fees and Expenses 157
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.19
Excerpt: ...ept as otherwise provided by law and subject to the power of the court to transfer actions or proceed-ngs as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action." (Code Civ. Proc., S 395, subd. (a).) Also, "if a defendant has contracted to perform an obligation in a particular county, the superior court in the county ...
2023.07.18 Motion to Strike Punitive Damages 358
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.18
Excerpt: ... view to substantial justice between the parties. (Code Civ. Proc. S 452.) The allegations in the complaint are considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Mere legal conclusions of oppression, fraud or malice are insufficient to support punitive damages allegations and therefore may be stricken. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) However, if looking to the comp...
2023.07.18 Motion to Set Aside Default 116
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.18
Excerpt: ...-defendants' demurrer and motion to strike set for September 12, 2023. Explanation: The default entered on April 24, 2023 was in error. The March 8, 2023 prtnf of service as to defendant was defective because the time did not indicate whether it was served at 11:00 a.m. or II:W p.m. and was signed on February 29, 2022, predating the filing of the complaint. The court may correct clerical mistakes in its judgment or orders and set aside any void j...
2023.07.18 Motion to Compel Further Responses 833
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.18
Excerpt: ...77, 78 and 80 of Plaintiff's request for production of documents, set three within twenty (20) days from the date of this order. Explanation: Discovery requests are generally afforded liberal construction. (See Code of Civ. Proc., S 2017.010; Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) A motion seeking further responses in a request for further production of documents "shall set forth specific facts showing cause justifying the discove...
2023.07.18 Motion to Compel Arbitration and for Dismissal 470
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.18
Excerpt: ...tal filing shall be made no later than p.m. on October 24, 2023. Explanation: Plaintiff Kelly Roberts ("plaintiff") brings a single cause of action under PAGA on behalf of herself and all aggrieved employees under Labor Code secton 2698 et seq. Defendants Sally Beauty Holdings, Inc. and Beauty Systems Groups LLC (together "defendants") now seek an order compelling plaintiff to arbitrate her PAGA claim as an individual, and to dismiss the represen...
2023.07.18 Motion for Final Approval of Class Settlement 685
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.18
Excerpt: ...e amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before July 3, 2024. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class, and has found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. In addition,...
2023.07.18 Motion for Final Approval of Class Settlement 618
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.18
Excerpt: ...n be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before July 3, 2024. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. In addition, t...
2023.07.13 Demurrer to FAC 431
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.13
Excerpt: ...order. All new allegations shall be in boldface. Explanation: Plaintiffs' third cause of action alleges that defendant AAA Tree Service, LLC made a fraudulent promise without the intent to perform it. "'Promissory fraud' is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that...
2023.07.13 Motion for Clarification and Reconsideration 933
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.13
Excerpt: ...s and their attorneys. Explanation: under Code of Civil Procedure section 1008, subdivision (a), a party moving for reconsideration of a court order must show that there are "new or different facts, circumstances, or law" that justify reconsideration of the order. (Code Civ. Proc. S 1008, subd. (a).) "The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were ma...
2023.07.13 Motion to Compel Further Responses, for Monetary Sanctions 944
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.13
Excerpt: ...e Whelan Decl.; Jenkins Decl.) While there has been much discussion between counsel, it is apparent that the parties had arrived at an impasse. The court finds that the parties have sufficiently engaged in the meet and confer process. Merits Request Numbers 40, 42, and 43—Waiver of Privilege The primary issue with these requests appears to be the existence of an "ADA List" which is referenced in defendant's produced documents, but was not itsel...
2023.07.13 Special Motion to Strike Complaint 259
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.13
Excerpt: ...ts for judicial notice, subject to limitations as described in the explanation below. Explanation: Defendant City of Fresno moves to strike the entire complaint under Code of Civil Procedure section 425.16, contending that the complaint is a strategic lawsuit against public participation ("SLAPP suit"), and thus it is subject to being stricken unless plaintiff can show by admissible evidence that he has a probability of prevailing on the merits o...
2023.07.13 Motion to Compel Depositions 575
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.13
Excerpt: ...na Luna motion and as to the Rufino Hernandez motion. Explanation: "Any party may obtain discovery . by taking in California the oral depsition of any person, including any party to the action." (Code Civ. Proc., S 2025.010.) Proper service of a notice of deposition compels any deponent to attend, to testify, and to produce documents if requested. Civ. Prcyc., S 2025.280, subd. (a).) Where a party deponent fails to appear at a properly noticed de...
2023.07.11 Petition to Reduce Required Voting Percentage for Amendment of CC&Rs 105
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.11
Excerpt: ...claration, the declaration requires members having more than 50 percent of the votes in the association, in a single class voting structure, or members having more than 50 percent of the votes in more than one class in a voting structure with more than one class, to vote in favor of the amendment, the association, or any member, may petition the superior court of the county in which the common interest development is located for an order reducing...
2023.07.11 Motion to Compel Further Responses 036
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.11
Excerpt: ... Jones ("Jones") argues that the defendant Daniel Ash ey's ("Ashley") present motion is untimely, the motion is timely. As Ashley states, the deposition occurred on August 2, 2022. Following meet-and-confer efforts, documents responsive to the disputed Deposition Request for Production No. 3 were produced on January 11, 2023. Pursuant to the parties' agreement, all compel deadlines were to be calculated from the January 11, 2023 production date. ...
2023.07.11 Motion for Terminating Sanctions 034
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.11
Excerpt: ...e extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anpne engaging in conduct that is a misuse of the discovery process: * * * (d) The court may impose a terminating sanction by one of the following orders order dismissing the action or any ...
2023.07.11 Motion for Leave to File Supplemental Complaint 612
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.07.11
Excerpt: ...ke a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer." (Code Civ. Proc., S 464, subd. (a).) "A 'supplemental' pleading is used to allege facts occurring after the original pleading was filed. In contrast, the additional allegations in an 'amended' pleading address matters that had occurred before the original pleading was filed." (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1032...
2023.07.11 Motion for Attorney Fees 346
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.11
Excerpt: ...eritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., 5425.16, subd. (a); see Martinez v. Metabolife Intern. , Inc. (2003) 113 Cal.App.4th 181, 186.) plaintiffs/cross-defendants prevailed on their ant-SLAPP motion as to the second cause of action in defendant/cross-complainant's cross complaint. The prevailing defendant on a special motion to strike "shall be e...
2023.07.11 Demurrer to FAC, Motion to Strike 818
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.07.11
Excerpt: ...rrer to the fourth cause of action. To grant the motion to strike. To grant leave to amend. Should plaintiff desire to amend, the Second Amended Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should plaintiff elect not to amend, demurring defendants shall file responsive pleadings within twenty (20) days from the date of this order. Explanation: The demurring defendants challe...
2023.07.06 Motion for Approval of PAGA Settlement 366
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.06
Excerpt: ...ecton ["The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency' at the same tme that it is submitted to the court."]) The trial court is to "evaluate a PAGA settlement to determine whether it is fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforceme...
2023.07.06 Application for Writ of Possession 226
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.06
Excerpt: ...or a writ of possession by filing a written application for the writ with the court in which the action is brought." Under secton 512.010, subdivision (b), "The application shall be executed under oath and shall include all of the following: (1) A showing of the basis of the plaintiffs claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiffs claim is a written instrument, a copy of the instrum...
2023.07.06 Demurrer, for Monetary Sanctions 092
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.07.06
Excerpt: ...tiff Griselda Rodriguez's first and second causes of action for motor vehicle negligence, and to plaintiff Marcela Martinez's sole cause of action for loss of consortium, unless all other parties appear at the hearing and waive service of the moving papers. (Code Civ. Proc., SS 1005, subd. (b); 1014.) To deny plaintiffs Rodriguez and Martinez's request for monetary sanctions. (Code Civ. Proc., S 128.5.) Explanation: Notice Defects "[Alll moving a...
2023.07.06 Motion for Stay of Action 721
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.07.06
Excerpt: ...Rules of Court, rule 3.515(a) to stay the matter pending resolution by the California Supreme Court of Everardo Rodriguez v. FCA US, LLC, Case No. S274625. Code of Civil Procedure secton 404.5 and California Rules of Court, rule 3.515 contemplate stays pending consideration for coordination of multiple actions. Plaintiff provides no evidence that he seeks to have the matter coordinated. Accordingly, a stay under Code of Civil Procedure section 40...
2023.07.06 Motion to Compel Arbitration and Stay Action 335
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.07.06
Excerpt: ...ies concerning this vehicle under the Song-Beverly Consumer Warranty Act (Civ. Code, SS 1790, et seq.).l Defendant moves to compel plaintiffs to arbitrate these claims based on the Retail Installment Sales Contract ("RISC") they signed with Turlock CDJR when they purchased the subject vehicle. Applicable Law A trial court is required to grant a motion to compel arbitration "if it determines that an agreement to arbitrate the controversy exists." ...
2023.07.06 Motion to Compel Further Responses, for Monetary Sanctions 953
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.06
Excerpt: ... 17, and 19, subject to the discussion below. The court will allow defendant to raise objections as to closed session meetings, deliberative process privilege, and attorney-client privilege where appropriate, subject to the discussion below. To deny as to Requests Numbers 6, 7, 8, and 9. Defendant, City of Parlier, shall serve verified supplemental responses within 20 days of the date of the service of this order. To find that plaintiff's motions...
2023.07.06 Motion to Compel Arbitration 833
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.07.06
Excerpt: ...motion to compel arbitration, defendant Sunshine Raisin Corporation dba National Raisin Company (hereinafter "National") has moved to compel arbitration of the claims of plaintiff's complaint pursuant to an arbitration clause alleged to be in the "standard terms" preprinted on the back page of the seven Grower Contracts that are the subject of the plaintiffs' complaint and the Raisin Bargaining Association —Individual Agreement (RBA Agreements)...
2023.06.29 Motion for Preliminary Approval of Class Action Settlement 864
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.29
Excerpt: ...ity issues. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a "fiduciary responsibility" as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be condition...
2023.06.29 Demurrer 629
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.06.29
Excerpt: ...h will run from service by the clerk of the minute order. New language must be set in boldface type. Explanation: Plaintiff, S.C., sued the County of Fresno (County), KTDA Group Home, Inc. (Facility), and Does 3 through 25, in a revival action under Code of Civil Procedure secton 340.1. (S.C. was under age 40 at the time he filed his complaint.) S.C. alleges he was sexually abused and assaulted in foster care when he was minor, while under the de...
2023.06.29 Demurrer to SAC 417
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.29
Excerpt: ...ithin 20 days of the clerk's service of this order. New or different allegations in a Third Amended Complaint are to be set in boldface type. To strike and overrule the demurrer by HSBC Bank, LISA and Mortgage Electronic Registration System. Explanation: Demurrer by Wells Fargo Bank, N.A. ("Wells Fargo") "To withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law." (Logan v. Southern Cal. Rapid Tr...
2023.06.29 Motion for Preliminary Approval of Class Action Settlement 200
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.06.29
Excerpt: ...posed settlement. An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93-95.) "Class certification requires proof (1) ofa sufficiently numerous, ascertainable class, (2) of a well-defined community of interest, and (3) that certification will prov...
2023.06.29 Motion for Attorney Fees 807
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.29
Excerpt: ...rticipation) motion is entitled to attorney fees. (Code Civ. Proc., S 425.16, subd. (c)(l).) Even where the plaintiff dismisses the action or part of the action prior to the hearing, courts have uniformly held that the trial court retains jurisdiction to award attorney fees against the plaintiff. (Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107.) A number of courts have held that the determinative question as to whether fees should be awarded...
2023.06.29 Motion for Reconsideration 065
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.29
Excerpt: ...entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.'" (Ramon v. Aerospace Corp. (1996) 50 Cal .App.4th 1233, 1236, quoting Passavant v. Williams (1990) 225 Cal.App.3d 1602, 1506.) Here, the court issued a tentative ruling granting defendant's motion to compel...
2023.06.29 Motion for Summary Judgment, Adjudication 860
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.29
Excerpt: ...thin five days of service of the minute order by the clerk. To deny leave to file a cross-complaint as moot. Explanation: Summary Judgment Plaintiff filed suit for two causes of action: premises liability, and general negligence .1 Defendant Chipotle Mexican Grill, Inc. ("CMG") moves for summary judgment on the basis that no triable issues of material fact exist as to CMG's knowledge of a dangerous condition, and in any event, any alleged dangero...
2023.06.29 Motion for Terminating Sanctions 370
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.29
Excerpt: ...tly and severally, in the amount of $660, payable to the Law Office of Amy R. Lovegren-Tipton, APLC within 30 days of the clerk's service of the minute order. Explanation: Code of Civil Procedure section 2023.010 defines "misuses of the discovery process" as including, "failing to respond or submit to an authorized method of discovery" and "disobeying a court order to provide discovery." (Code Civ. Proc. S 2030.010, subds. (d) & (g).) Secton 2023...
2023.06.29 Motion to Compel Further Responses, for Monetary Sanctions 388
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.29
Excerpt: ...impose monetary sanctions in the sum of $3,210, to be paid by GM to plaintiffs' counsel within 20 days of service of the order by the clerk. Explanation: Plaintiffs move to compel further responses to production demand nos. 16-31, 33, 37-41 and 45-46. In response to these demands, GM served objections and stated that no documents would be produced. After the parties entered into a protective order, GM proceeded to produce a number of documents, b...
2023.06.29 Motion to Compel Further Responses, for Monetary Sanctions 953
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.06.29
Excerpt: ...to raise objections as to closed session meetings, deliberative process privilege, and attorney-client privilege where appropriate, subject to the discussion below. To deny as to Requests Nos. 12, 15, 15, 18, 19, and 20. Defendant, City of Parlier, shall serve verified supplemental responses within 20 days of the date of the service of this order. To order monetary sanctions against defendant and its counsel in the amount of $4,887.50. Monetary s...
2023.06.29 Motion to Strike, Compel Responses, for Monetary Sanctions 348
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.29
Excerpt: ...rm Interrogatories (Set One); and 5) Imposing Monetary Sanctions Jointly Against All Defendants Tentatve Ruling: To grant plaintiff Huey Hodges, Jr.'s motion to strike Defendant Disaster Relief International, Inc.-DRI, Inc. ("DRI") from the Answer filed October 14, 2022. To find the motion to compel defendant DRI's responses to form interrogatories moot in light of striking defendant DRI from the Answer. To grant plaintiff's motons to compel resp...
2023.06.28 Motion for Discovery of Financial Condition 175
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.28
Excerpt: ...tion by the plaintiff supported by appropriate affdavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to S...
2023.06.28 Demurrer, Motion for Sanctions 425
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.28
Excerpt: ...ns shall be in boldface type. To deny the motion for sanctions. Explanation: Demurrer The first cause of action is for breach of contract. "A cause of acton for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach." (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226...
2023.06.27 Motion for Attorney Fees 450
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.27
Excerpt: ...to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." (Civ. Code, S 1717, subd. (a).) Also, under Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney's fees are recoverable as an item of costs when fees are authorized by contract. Here, de...
2023.06.27 Motion for Attorney Fees 287
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.06.27
Excerpt: ...ion under Code of Civil Procedure secton 1021 and Section XXV, subdivision (G) of the franchise agreements, dated December 3, 2010 and April 11, 2012, between the parties (the "Franchise Agreements"). "Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties, but parties to actions or proceedings are enti...
2023.06.27 Demurrer, Motion to Strike, for Leave to File Punitive Damages, for Sanctions Pleadings 731
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.06.27
Excerpt: ...pleading shall be filed within 30 days of the clerk's service of this order. New or different allegations in the first amended complaint are to be set in boldface type. To deny plaintiff's motion for leave to file punitive damages pleadings. To deny plaintiff's application for sanctions. Explanation: Demurrer/strike "To withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law." (Logan v. Southern C...
2023.06.27 Demurrer, Motion to Strike 588
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.27
Excerpt: ... amend. (Code Civ. Proc. S 430.10, subd. (e).) To overrule the demurrer on all other grounds. (Code Civ. Proc. S 430.10, subd. (e),(f).) Plaintiff shall file and serve an amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. If oral argument is timely requested, such argument will be heard at 2:30 p.m. on June 28, 2023, in Department 501. Explanation: On August 22, 2022, plaintiff f...
2023.06.22 Application for Injunction or for Appointment of Receiver 048
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.06.22
Excerpt: ...son, the court considers the likelihood that the moving party will prevail on the merits at trial, and the interim harm that the moving party is likely to sustain the injunction were denied as compared to the harm that the opposing party is likely to suffer if the preliminary injunction were issued. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70.) In considering these factors, the court "balances the relative hardships." (Ibid.) The s...
2023.06.22 Demurrer to SAC, Motion for Relief from Sanctions 910
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.06.22
Excerpt: ...ute order by the clerk. To deny the motion for relief from sanctions. Explanation: Defendants Springs SPE, LP (erroneously sued as The Springs), and Apartment Management Consultants, LLC (collectively "defendants") generally demur to the eighth cause of action, for public nuisance, for failure to state facts to support the cause of action. The present demurrer is the third challenge to the same cause of action, based on the same deficiencies alle...
2023.06.22 Motion for Attorney Fees 402
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.06.22
Excerpt: ...lanation below), with the time to run from the clerk's service of the minute order adopting this Tentative Ruling. Explanation: In this partition action, an interlocutory judgment issued on December 22, 2020, which ordered the subject property to be sold by the appointed referee, with the proviso that $20,000 of the sale proceeds would be impounded to cover later costs of partition. A further order was entered on February 3, 2022, confirming the ...
2023.06.22 Motion for Summary Judgment, Adjudication 621
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.22
Excerpt: ...be (1990) 219 cal.App.3d 1527, 1529; Nicholson v. Barab (1991) 233 cal.App.3d 1671, 1681.) The reply brief makes clear that plaintiff seeks summary judgment based on the parties' oral agreement, only, and not based on that agreement plus the email he sent to defense counsel later in the day after the mediation. However, this only complicates the issue, since the complaint includes a PAGA claim, and plaintiff's counsel's email included a term allo...
2023.06.22 Motion for Terminating Sanctions 491
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.06.22
Excerpt: ...iv. Proc., S 2023.010, subd. (g); 2030.290, subd. (c); 2031.300, subd. (c).) To strike the complaint and dismiss the action. To grant and to award monetary sanctions in the total amount of $735 against plaintiff David Herrera and his attorney of record, Justin B. Toobi, jointly and severally, payable within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. To grant and to award monetary sa...
2023.06.22 Motion to Compel Arbitration 216
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.22
Excerpt: ...red by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the moton exists (e.g., fraud, unconscionability, etc.) (Hotels Nevada v. LA. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.) Written Agreement Unless there is a dispute over authenticity, the mere recitation of the terms is suffcient for a party to move to compel arbitration. (Sprunk v. Prisma LLC (2017) 14 Cal.Ap...
2023.06.22 Motion to Compel Arbitration and Stay Pending Arbitration 490
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.06.22
Excerpt: ...ssues the parties have not agreed to arbitrate." (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) "Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute." (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) The party moving to compel arbitration bears the burden of proving by a preponderance of the evidence the existence...
2023.06.22 Motion to Compel Further Responses, for Monetary Sanctions 540
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.22
Excerpt: ...prior to the subject incident to the present. To deny both parties' requests for monetary sanctions against each other. Plaintiffs shall serve further responses within 10 days of the date of service of this order. Explanation: Request for Production number 18 requests "A true and complete copy of all WRITINGS related to disability benefits received by Mr. Shire, including, but not limited to, the applications for such benefits, medical reports, d...
2023.06.22 Motion to Compel Production of Client File 152
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.06.22
Excerpt: ... by Rules of Professional Conduct, Rule 1.16, subdivision (e). Mr. Hoppe attests to having provided the contents of the file as requested by his client with the exception of a February 14, 2023 email from Jeff Williams, in-house counsel for Zenith, and emails sent after his representation of TJ & Sons ended on March 1, 2023. (Hoppe Decl. "1 9-10.) The author of the emails, Mr. Williams, asserted the work product privilege regarding the February 1...
2023.06.22 Motions to Compel Further Responses, for Monetary Sanctions 844
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.06.22
Excerpt: ...fendants Folmer and Kearney: First, to the extent that plaintiff seeks to compel further responses from defendants Corrine Folmer and Kevin Kearney, plaintiff has not shown that she ever served these defendants with discovery requests or that they provided inadequate responses to the requests. Therefore, there is no basis for her to compel them to provide further responses to discovery, as they were apparently never served with any discovery requ...
2023.06.21 Motion to Compel Initial Discovery Responses, Deposition 405
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.06.21
Excerpt: ...es, Set One, and Request for Production of Documents, Set One. The truth of all matters specified in the Request for Admissions, Set One, are deemed admitted. (Code Civ. Proc., S 2033.280, subd. (bj.) To impose reasonable sanctions in the sum of $3,001.50 against JOM and in favor of plaintiffs Miguel Lopez and Maria Lopez, to be paid to plaintiffs' counsel within 30 days of service of the order by the clerk. To grant the motion to compel depositi...
2023.06.21 Motion for Reconsideration, to Compel Further Responses, for Monetary Sanctions 699
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.21
Excerpt: ...the order entered by the court on the request for pretrial discovery conference. To grant plaintiffs motions to compel defendant to provde further responses to the disputed form interrogatories, special interrogatories, and requests for production of documents. Defendant shall provide supplemental responses, without objections, within 10 days of the date of service of this order. To grant plaintiff's request for monetary sanctions against defenda...
2023.06.21 Demurrer, Motion to Strike 273
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.06.21
Excerpt: ...0 days' leave to file a second amended answer. The time in which the first amended answer can be amended will run from service by the clerk of the minute order. All new allegations in the second amended answer are to be set in boldface type. To deny the motion to strike affirmative defenses 1-7, 9-25, and 27-28, as moot in light of the ruling on the demurrer. To deny the motion to strike the request for attorney's fees due to a failure to provide...
2023.06.21 Demurrer 404
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.06.21
Excerpt: ...lease and breach of guarantee. The first cause for breach of lease is brought against Daphne's Restaurant-Fresno, lnc„ and the cause of achon for breach of guaranty is brought against defendants Mosa Gazali and Husein Alamoodi. "A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plai...
2023.06.16 Motion for Determination of Good Faith Settlement 487
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.16
Excerpt: ...g 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 settlor's financial condition and insurance policy limits, if any; and 6) eviden...
2023.06.15 Motion for Determination of Good Faith Settlement 374
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.06.15
Excerpt: ...court intends to deny plaintiff's motion to the extent that plaintiff seeks a determination that the settlement does not affect its claims against the non-settl-ng defendants, as such a determination is beyond the scope of section 877.6. Also, the court intends to deny plaintiff's moton to the extent it seeks to declare the settlement null and void and vacate the judgment. Explanation: Under Code of Civil Procedure section 877.6, subdivision (a),...
2023.06.15 Motion for Entry of Default Judgment 085
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.15
Excerpt: ...uest for Court Judgment. (Cal. Rules of rule 3.1800(a); Holloway v. Quetel (2015) 242 cal.App.4th 1425, 1432.) This alone requires the denial of the application. The specific relief requested must be indicated on Form CIV- IW, and the relief must list the categories of damages. Second, the present application further fails to submit a declaration of nonmilitary status for each defendant against whom judgment is sought. (Cal. Rules of rule Federal...
2023.06.15 Motion for Entry of Full Satisfaction of Judgment 179
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.15
Excerpt: ...creditor of a lesser sum in full satisfaction of the judgment." (Code Civ. Proc., S 724.010, subd. (a).) "For the purposes of subdivisions (b) and (c), the date a money judgment is satisfied in full or in part is the earliest of the following times: (2) The date satisfaction is tendered to the judgment creditor or deposited in court for the judgment creditor." (Code Civ. Proc., S 585.030, subd. (d)(2).) Upon satisfaction of the judgment, the judg...
2023.06.15 Motion for Judgment on the Pleadings 374
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.06.15
Excerpt: ...for judgment on the pleadings is a nonstatutory but well-established procedure with the purpose and effect of a general demurrer. Because the motion is, in effect, a general demurrer, the same rules apply. Thus, to prevail on a motion for judgment on the pleadings, a defendant must show a complaint fails to state a cause of acton. (Sofas v. Bank of America (1985) 172 Cal.App.3d 583, 586, citations omitted.) "'A motion for judgment on the pleading...
2023.06.15 Motion for Final Approval of Class Settlement 641
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.06.15
Excerpt: ...ancement payment to plaintff Eric Garcia is $5,000. A revised proposed order shall be submitted to this department within 5 days of the clerk's service ofthis order. To set a hearing at June 13, 2024, at 3:30 p.m. in Department 503 as a hearing date for an Amended Judgment pursuant to Code of Civil Procedure section 384. A verified report of payouts of settlement funds and a proposed amended judgment shall be submitted no later than May 30, 2024....
2023.06.15 Motion for Leave to Amend Compalint 368
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.15
Excerpt: ...laremont Capital Partners, LLC dba Ocean Grown Extracts dba Evidence ("Claremont LLC"), and four new causes of action relating to these parties' interference with the business and contractual relations between plaintiff and defendant Latchkey Pioneers, LLC ("Pioneers"). Plaintiff has met the formalities required of a motion to amend the Complaint, and has given due notice to all appearing defendants. Motions for leave to amend pleadings are direc...
2023.06.15 Motion to Amend Complaint 931
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2023.06.15
Excerpt: ...intiffs attach an email from Mr. Rosado wherein he asks counsel to use a new address. However, as the court instructed counsel in the Tentative Ruling issued on April 18, 2023, when service to Mr. Rosado is made by mail, plaintiffs must include service at his address of record, even if they also wish to serve him at a different address. It is the duty of the litigant (including a self-representing litigant) to serve all parties with a written not...
2023.06.15 Motion to Set Aside Default 783
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.06.15
Excerpt: ... defend the action, the court is empowered to grant relief from a default. (Code Civ. Proc„ S 473.5.) Defendant Bhupinder Singh ("Defendant") argues that he was never served the summons in this case. Though the filing of a proof of service creates a rebuttable presumption that service was proper (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163), "a declaration of non-service if credited by the trial court can rebut the presumption of proper serv...
2023.06.14 Motion to Compel Arbitration, Stay 436
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.14
Excerpt: ... vehicle ensued which form the basis of the complaint for damages. Plaintiff brought four causes of action against each of defendant Lithia NC, Inc., dba Lithia Nissan of Clovis ("Lithia"), and the moving defendant Nissan North America, Inc. ("Nissan"), for violations of the Song-Beverly Act regarding warranties. Compel Arbitration Nissan moves to com#l arbitration on an arbitration clause in a retail installment sales contract ("RISC") made betw...
2023.06.14 Motion to Compel Arbitration, for Stay 946
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.14
Excerpt: ...sis of the instant complaint for damages. Plaintiff brought a single cause of action against defendant, for an express violation of warranties afforded through the Song-Beverly Act. Though the complaint characterizes the agreement as a lease, is undisputed that the agreement is a retail installment sales contract ("RISC") made between plaintiff and a non-party, Toyota of Clovis. Compel Arbitration A trial court is required to grant a motion to co...
2023.06.14 Motion for Summary Judgment, Adjudication 314
Location: Fresno
Judge: Skiles, Jonathan
Hearing Date: 2023.06.14
Excerpt: ...parties are ordered to appear so that the court may determine whether such an interested party exists and if so, set a new court trial date. Explanation: Burden on Summary Judgment As the party moving for summary judgment, plaintiff bears an overall burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Woodridge Es...
2023.06.14 Motion for Summary Judgment 966
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.06.14
Excerpt: ...e Judicial Council complaint form, but filed only the first three introductory pages and failed to attach the pages required to comprise the causes of action. Even so, plaintiff did check the box for "general negligence" at Item 10b (page 3), and also added the following at the "other" box at Item 10f: "Missing the Statue [Sicl of Limitations, Not Keeping Copies of Client File, Failure to Perform, Failure to Communicate, Improper Withdraw." Const...
2023.06.13 Motion for Preference in Trial Setting 248
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.13
Excerpt: ...ere preference is to be granted based on age, medical reasons, in the interests of justice, or based on time for trial. Here, plaintiff and cross-defendant are requesting preference based on the Code of Civil Procedure section 36, subdivision (a). Subdivision (a) provides: (a) A party to a civil acton who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:...
2023.06.13 Motion for Leave to File Complaint 708
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.13
Excerpt: ...") for indemnity and declaratory relief, pursuant to Code of Civil Procedure section 426.50. Defendant contends that it seeks to state a claim against plaintiff for issues arising out of the same facts and incidents alleged by plaintiff in the first amended complaint. As defendant seeks to state a claim against plaintiff related to plaintiff's causes of action, the cross-complaint is compulsory. (Code Civ. Proc. S 426.30, subd. (a).) Where a prop...
2023.06.13 Motion for Attorney Fees 807
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.13
Excerpt: ... only the evidence on reply may be filed by plaintiff no later than on Friday, June 16, 2023, at 5:00 p.m. A response to plaintiff's briefing may be filed by PVB no later than on Thursday, June 22, 2023, at 5:00 p.m. Explanation: A defendant who prevails on an ant-SLAPP (Strategic Litigation Against Public Participation) motion is entitled to attorney fees. (Code Civ. Proc., S 425.16, subd. (c)(l).) Even where the plaintiff dismisses the action o...
2023.06.13 Demurrer, Motion to Strike FAC 098
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2023.06.13
Excerpt: ...tacking the same pleading, set to be heard over a month apart. In the interests of judicial economy, the court continued Dr. Montgomery's motions to be heard jointly with Dr. Smith's motion on June 13, 2023. Because plaintiff's counsel failed to cooperate with defendants' efforts to meet and confer in connection with their challenges to the original Complaint, on October 4, 2022, the court ordered: "In light of plaintiff's counsel's refusal to me...

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