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2019.7.31 Motion to Dismiss or for Judgment on the Pleadings 199
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.31
Excerpt: ...All other proceedings in the case will be stayed until the trustee has been added. Explanation: Defendant moves to dismiss the action on the ground that plaintiff has no standing to pursue his claims because his claims should have been listed as assets of his Chapter 7 bankruptcy estate. “Causes of action that exist prior to a bankruptcy filing become assets of the bankruptcy estate. See 11 U.S.C. § 541(a)(1); Sierra Switchboard Co. v. Westing...
2019.7.30 Motion to Set Aside Default 192
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.30
Excerpt: ...hus, it is somewhat unclear exactly what the legal or factual basis for the motion is. Nevertheless, it appears that defendant is moving for relief from the default under Code of Civil Procedure section 473, subdivision (b), which provides for relief from defaults where the default was entered as a result of mistake, surprise, inadvertence, or excusable neglect. “Where the mistake is excusable and the party seeking relief has been diligent, cou...
2019.7.30 Demurrer, Motion to Strike 921
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.30
Excerpt: ...as moot. Cross‐Defendant J. Stanley Teixeira is directed to submit to this court, within seven (7) days of service of the minute order, a proposed judgment dismissing the third‐party cross‐complaint of Oscar Luna. Explanation: The third‐party cross‐complaint filed by Cross‐Complainant Oscar Luna (“Luna”) raises causes of action: (1) abuse of process, (2) intentional infliction of emotional distress, (3) negligent infliction of emo...
2019.7.30 Demurrer 581
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.30
Excerpt: ...ourt, within seven (7) days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Background On December 24, 2018, Plaintiff, representing himself, filed a form complaint, alleging a cause of action for motor vehicle negligence. As can best be determined, he was involved in a motor vehicle collision on December 24, 2015 with a vehicle driven by Cipriano Espinosa on eastbound Highway...
2019.7.18 Application for Default Judgment 151
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.18
Excerpt: ...tiff has now submitted competent evidence proving up his actual damages of $70,000, which is substantially less than the amount he sought in prior applications, he has not shown that he is entitled to prejudgment interest at a rate of 10% per annum from the date of formation of the contract. Plaintiff's evidence shows that he invested $70,000 into the partnership, with $55,000 paid as an initial capital investment when the partnership agreement w...
2019.7.17 Motion for Terminating Sanctions 312
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.17
Excerpt: ... (c), and 2023.030, subdivision(d)(3) for Plaintiff's failure to comply with a previous order to produce responses, issued on April 16, 2019. Section 2023.030 provides: To the 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 anyone engaging...
2019.7.16 Motion for Determination of Good Faith Settlement 312
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.16
Excerpt: ...ement entered into between it and Plaintiffs. According to the applicable statute, in such circumstances, the moving party must serve the notice, application, and proposed order by certified mail, return receipt requested, or by personal service. (Code Civ. Pro., §877.6, subd.(a)(2).) The proof of service must then be filed with the Court. (Ibid.) According to the proof of service attached to the Notice of Motion, the papers were served via regu...
2019.7.11 Motion for Determination of Good Faith Settlement 461
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.11
Excerpt: ...ining that its settlement with plaintiffs is in good faith. (Code Civ. Proc. § 877.6.) Explanation: Under Code of Civil Procedure section 877.6, “[a]ny party to an action in which it is alleged that two or more parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐...
2019.7.9 Motion for Preliminary Approval of Amended Class Action Settlement 372
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.9
Excerpt: ...ties 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; see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) § 7:3 [“The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether cert...
2019.7.3 Motion for Leave to File Amended Complaint 910
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.3
Excerpt: ...o file a First Amended Complaint. The proposed First Amended Complaint contains some additions and deletions of general allegations, as well as a Fifth Cause of Action for Breach of Contract. The allegations of the proposed Fifth Cause of Action appear to concern allegations in Defendant's Cross‐Complaint. Plaintiff has filed a supporting declaration by counsel detailing that the facts supporting the Fifth Cause of Action were only revealed dur...
2019.7.3 Motion to Tax Costs, for Attorney's Fees 471
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.3
Excerpt: ...the record, and $2,457.85 for the transcript of the arbitration hearing. The appeals court decision awarded Castaneda his costs on the appeal. The right to recover costs on appeal is governed by Cal. Rules of Court, rule 8.278, which sets forth the recoverable costs on appeal, if reasonable: (1) A party may recover only the following costs, if reasonable: (A) Filing fees; (B) The amount the party paid for any portion of the record, whether an ori...
2019.7.2 Application for Writ of Attachment 402
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.2
Excerpt: ...en of proving (1) that his claim is one upon which an attachment may be issued, and (2) the probable validity of such claim.'). ‘Generally, an order of attachment may be issued only in an action for a claim of money which is based upon an express or implied contract where the total amount of such claim is a fixed or “readily ascertainable” amount not less than $500.00.' [Citation.]” (VFS Financing, Inc. v. CHF Express, LLC (C.D. Cal. 2009...
2019.7.2 Motion for Final Approval of Class Action Settlement 741
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.2
Excerpt: ...irm in the amount of $953.40. A proposed order and judgment reflecting the above is to be submitted forthwith. The proposed order lodged on June 3, 2019 is acceptable if paragraph 10 is removed and replaced by a new paragraph 10 which describes the class members (CRC 3.771(a)), changes the amount of costs, omits the first paragraph of the judgment, and modifies the last paragraph to state: Pursuant to California Code of Civil Procedure section 66...
2019.7.2 Motion to Strike 731
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.2
Excerpt: ... “(a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;]” or “(b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., §§ 431.10, subd. (b); 436, subd. (a).) A court will “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their tru...
2019.6.27 Motion for Attorney's Fees 891
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.27
Excerpt: ...ure section 685.040 provides: The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the ju...
2019.6.26 Demurrer 104
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.26
Excerpt: ...d with a public entity has been rejected. If the public entity gives written notice of rejection of the claim in accordance with section 913, the statute of limitations is six months from the day such notice is personally delivered or deposited in the mail. If such notice is not given in compliance with section 913, the statute of limitations is two years from accrual of the cause of action.” (Dowell v. County of Contra Costa (1985) 173 Cal.App...
2019.6.25 Motion for Judgment on the Pleadings 718
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.25
Excerpt: ...at the action is moot. Resolution of this motion requires determining whether this is a reverse validation action and, if so, can the court still afford the parties effective relief despite the project being long completed. An action under Code of Civil Procedure section 860, et seq., to either validate or challenge an ordinance or resolution, is recognized as a proceeding “in rem.” (Community Youth Athletic Center v. City of Nat. City (2009)...
2019.6.19 Motion for Summary Judgment 825
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.19
Excerpt: ...and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three‐prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party...
2019.6.19 Motion for Preliminary Approval of Class Settlement and Conditional Class Certification 062
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.19
Excerpt: ... the normal prerequisites for a class action. (Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 625‐ 627.) However, because a trial court is considering certification in a settlement context, the court's review of certification is lessened, particularly those related to management of the class. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93.) On the other hand, other certification issues, such as those designed to protect absentees ...
2019.6.18 Motion for Leave to File Amended Complaint 410
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.18
Excerpt: ...od in which it transacted business in California without having obtained a certificate of qualification from the Secretary of State. (Corp. Code §2203(c).) Explanation: “It has been uniformly held that reasonable amendments to pleadings should, in the interest of justice, be granted, and that section 473 . . . should be liberally construed to accomplish that purpose.” (Jorgensen v. Dahlstrom (1942) 53 Cal.App.2d 322, 331, citations omitted.)...
2019.6.13 Motion for Leave to File Complaint-in-Intervention 402
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.13
Excerpt: ...e ruling. Notice runs from the date that the Minute Order is mailed plus five (5) days for service via mail. (Code Civ. Proc., § 1013.) Explanation: Labor Code section 3853 provides: If either the employee or the employer brings an action against such third person, he shall forthwith give to the other a copy of the complaint by personal service or certified mail. Proof of such service shall be filed in such action. If the action is brought by ei...
2019.6.13 Motion for Leave to File Complaint 170
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.13
Excerpt: ...omplaint Tentative Ruling: To deny the motion without prejudice. Explanation: Background On July 1, 2017, Plaintiff, then 10 years of age, fell into a smoldering pile of debris on the property of Defendants Stephen and Julie DeBenedetto. Plaintiff sustained severe injuries. It is alleged that Defendants Mountain Property Services, Raymond Slocum and Matthew Marvin had been hired by the couple to perform tree cutting services on the property. Thes...
2019.6.13 Motion to Tax Costs 164
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.13
Excerpt: ...orandum of $30,128.75. To grant the motion to tax plaintiff David Bray's costs, in part, and tax the sum of tax $6,130.00 from plaintiff Bray's Cost Memorandum of $16,502.45. To deny the motions in all other respects. Explanation: Items of allowable costs are set forth in Code of Civil Procedure section 1033.5, subdivision (a), and disallowed costs are set forth in subdivision (b). Items not expressly mentioned in the statute “upon application ...
2019.6.12 Demurrer 622
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.12
Excerpt: ... general demurrers to the first cause of action. To sustain the general demurrer to the second cause of action with leave to amend. To sustain the special demurrer under Code of Civil Procedure section 430.10, subdivision (h), to the third cause of action, with leave to amend. To overrule the general demurrer to the third cause of action. Explanation: First Cause of Action – Breach of Contract Statute of Limitations “ ‘When a complaint show...
2019.6.11 Motion for Summary Judgment, Adjudication 779
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.11
Excerpt: ...ion: In this action, plaintiff Maddie Wade (“plaintiff”) alleges that she was discriminated against, harassed, and constructively discharged after revealing to her manager, defendant Dustin Guthrie (“Guthrie”), that she was diagnosed with gender dysphoria and would be transitioning from male to female. The complaint alleges four causes of action: (1) wrongful constructive termination against plaintiff's employer, defendant Starbucks Corpo...
2019.6.11 Motion for Sanctions 022
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.11
Excerpt: ...n & Bellardinelli and the Law Firm of Campagne and Campagne shall pay the sum of $15,000 to Whitney, Thompson & Jeffcoach LLP within 10 days of the clerk's service of this order. To deny the motion in part, as the court will not impose evidence or issue sanctions at this time. Explanation: Code of Civil Procedure section 2031.310, subdivision (i) provides, in relevant part: “[I]f a party fails to obey an order compelling further response, the c...
2019.6.5 Motion to Quash Deposition Subpoena or for Protective Order 742
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.5
Excerpt: ...e period 6:00 a.m. to 7:00 p.m. on June 19, 2017. Explanation: Plaintiff seeks documents and information from AT&T c/o CT Corporation System concerning various cell phone records from June 19, 2017, the day of the accident which is the subject of this lawsuit, as well as from the time of a separate accident which occurred on June 1, 2016. Defendant Paulino was involved in both accidents. Plaintiff argues that these documents are relevant to show ...
2019.6.4 Motion for Summary Judgment 900
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.6.4
Excerpt: ...rvice of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: Moving defendants are entitled to summary judgment because plaintiff cannot prove any actual, pecuniary, or economic damage, and plaintiff is not entitled to punitive damages. Plaintiff's only remaining claim, the third cause of action for common law misappropriation of trade name, is one for damages. The prayer for compensatory dam...
2019.5.29 Motion for Leave to File Amended Complaint 501
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.29
Excerpt: ...osemead (2009) 174 Cal.App.4th 1067.) One has to “opt‐in” to an FLSA action. (Millan v. Cascade Water Services, Inc. (E.D. Cal. 2015) 310 F.R.D. 593.) Courts within the Ninth Circuit have found that Rule 23 class actions are incompatible with FLSA collective actions, but the Ninth Circuit has thus far refused to reconcile the split of authority. (Pitts v. Terrible Herbst, Inc. (9th Cir. 2011) 653 F.3d 1081, 1093.) The “opt‐ins” have t...
2019.5.23 Motion for Summary Judgment 827
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.23
Excerpt: ... defendant bears the initial burden of proof to show that the plaintiff cannot establish one or more elements of his/her causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists—and this must be shown via specific facts and not mere ...
2019.5.23 Motion to Deem Requests for Admission Admitted 812
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.23
Excerpt: ... applicable” and “all rights, remedies, obligations, liabilities and procedures set forth in Article 3 [of the Civil Discovery Act] shall be available to both the insured and the insurer . . . . [¶] [W]henever . . . provision is made for application to the court or obtaining leave of court or approval by the court, the court that shall have jurisdiction for the purposes of this section shall be the superior court of the State of California�...
2019.5.23 Motion for Summary Judgment 900
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.23
Excerpt: ...es Bell is entitled to summary judgment because, even if it is assumed he was treasurer of the defendant corporation, he does not become personally liable based only that status: Directors or officers of a corporation do not incur personal liability for torts of the corporation merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done[.] They may be liable, under the rules of tort and...
2019.5.22 Demurrer, Motion to Strike 712
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.22
Excerpt: ...o strike special damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) Plaintiff is granted 20 days, commencing from service of the minute order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: I. Demurrer In testing a pleading against a demurrer, the facts alleged are deemed to be true, as it is “not the ordinary function of a demurrer ...
2019.5.21 Motion to Tax Costs 038
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.21
Excerpt: ... either party.” (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 732.) Code of Civil Procedure section 1033.5(c)(2) states: “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Further, section 1033.5(c)(3) provides: “Allowable costs shall be reasonable in amount.” “In ruling upon a motion to tax costs, the trial court's first determination...
2019.5.21 Motion to Strike or Tax Costs 652
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.21
Excerpt: ...intiff's causes of action which are closely related to the Fair Employment and Housing Act (“FEHA”) claims are likewise governed by the FEHA fee/cost provision. (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1059‐1060.) Here, the non‐FEHA claims were intertwined with the FEHA claims, as they were based on the same set of facts. The rule under Government Code section 12965, subdivision (b), is that an award of attorney's fees ...
2019.5.16 Motion to Enforce Settlement 166
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.16
Excerpt: ...ned by the parties outside of the presence of the court . . . for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (Emphasis added.) In ruling on a Section 664.6 motion, the court may receive oral testimony, or may rule on the motion based on declarations alone. (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994.) Where the settlement agreement is ambiguous, the court ...
2019.5.16 Demurrer 822
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.16
Excerpt: ...n which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be placed in boldface type. Prior to filing an amended complaint, the parties shall hold a telephonic or inperson conference pursuant to Code of Civil Procedure section 430.41, subdivision (c). With the amended complaint, plaintiff shall file a declaration detailing the compliance with this requirement. Explanation: First Cause of Actio...
2019.5.9 Motion for Summary Judgment, Adjudication 360
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.9
Excerpt: ...ion. Explanation: To obtain summary judgment, “all a defendant needs to do is to show that the plaintiff cannot establish at least one element of the cause of action.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) If a defendant makes this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (Code Civ. Proc. § 437(...
2019.5.9 Petition for Appointment of Receiver 742
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.9
Excerpt: ... state or local building maintenance regulations and the violations are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered, the local enforcement agency may issue a notice and order requiring repair or abatement of the unlawful conditions. If the owner of the building thereafter fails to comply with the notice and order in a reasonable period of time, the enforcement agency can seek...
2019.5.8 Motion to Compel Further Responses, for Monetary Sanctions 900
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.8
Excerpt: ...on to compel as to Special Interrogatory Nos. 2 and 10, but deny as to Special Interrogatory No. 15. To find the motion moot as to Special Interrogatory Nos. 5, 6, and 8, due to defendant's supplemental responses to these interrogatories after the motion was filed. To deny the request for monetary sanctions. Explanation: Special Interrogatory No. 2 Drafting and filing articles of incorporation, and other duties of an Incorporator (e.g., selecting...
2019.5.1 Motion to Transfer and Bifurcate 319
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.1
Excerpt: ...ee. In addition to the claims pertaining to the internal affairs of the trust, the petition asserts a cause of action for financial elder abuse. The Probate Court has exclusive jurisdiction over proceedings concerning the internal affairs of trusts. (Prob. Code § 17000, subd. (a).) Under Probate Code section 7000, subdivision (b), the Probate Court has concurrent jurisdiction over: “(1) Actions and proceedings to determine the existence of tru...
2019.5.1 Motion for Summary Judgment 602
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.1
Excerpt: ...construction project. The motion is opposed by plaintiff, as well as by George A Bics Plumbing, Inc. (“Bics”). Bics' opposition will not be considered due to the untimely service of the papers. (See Code Civ. Proc. §§ 437c(b)(2), 1005(c); Sande Dec. ¶ 2.) Regarding evidentiary objections, the court sustains plaintiff's objection no. 2, and overrules no. 1. Objections nos. 3‐12 are also overruled, as evidentiary objections can only be mad...
2019.5.1 Motion for Summary Judgment 132
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.5.1
Excerpt: ...t summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the initial burden of production to make a prima facie showing of the “nonexistence of any triable issue of material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[A]ll a defendan...
2019.4.30 Motion for Terminating and Monetary Sanctions 921
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.4.30
Excerpt: ...l basis. These motions were Plaintiff's motions to strike Defendant's cross‐complaint and his verified answer (and portions thereof), and to set aside the Court's order of August 30, 2018. Section 128.7, subdivision (b) provides that by submitting any motion or similar paper to the Court, the submitting person is certifying that, after a reasonable inquiry: (1) It is not being presented primarily for an improper purpose, such as to harass or to...
2019.4.30 Motion for Fiinal Approval of Settlement, for Attorneys' Fees 119
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.4.30
Excerpt: ... filed no later than July 15, 2019. Explanation: 1. Failure of Service of Moving Papers The proof of service omits Mr. Delao, who substituted himself in pro per in August of 2018. As a named party to this action, he must be served as any other named party. 2. Final Approval of Settlement a. General Standards California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the propos...
2019.4.30 Motion for Attorney's Fees 038
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.4.30
Excerpt: ...ion, fees are to be awarded as a matter of right. There is no discretion to deny fees under such circumstances. (Rancho Mirage Country Club Homeowners Ass'n. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263.) The arguments made by Westcare California, Inc. (“Westcare”) against any fee award are unpersuasive. The fees request is made directly by Comprehensive Addiction Program, Inc. (“CAP”) on a cross‐complaint brought against CAP by Westcare...
2019.4.9 Motion to Set Aside Default, for Leave to Defend Action 157
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.4.9
Excerpt: ...stake, inadvertence, surprise, or excusable neglect, and therefore the court should set aside the default. Under the discretionary relief portion of section 473, subdivision (b), 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 this...
2019.4.4 Motion for Reclassification of Complaint 101
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.4.4
Excerpt: ... motion for reclassification after the time for that party to amend that party's initial pleading or to respond to a complaint, crosscomplaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both of the following conditions are satisfied: (1) The case is incorrectly classified. (2) The moving party shows good cause for not seeking reclassification earlier. Also, “[i]f a case is re...
2019.4.3 Motion to Strike and Tax Costs 212
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.4.3
Excerpt: ...d of litigation costs under [Code of Civil Procedure] section 1032, subdivision (b), implements a clear legislative goal of encouraging potentially meritorious FEHA suits. (Williams [v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97], 112 . . . .) Although section 1032, subdivision (b), also serves an important purpose, relieving a party whose position was vindicated in court of the basic costs of litigation, when those costs have not b...
2019.4.3 Motion for Class Certification and Preliminary Approval of Class Settlement 182
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.4.3
Excerpt: ...a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81; see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3 [“The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.”].) The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted with ...

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