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2022.08.16 Demurrer, Motion to Strike 118
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.08.16
Excerpt: ...e a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) To grant CHCC's motion to strike the portions of the First Amended Complaint (“FAC”) as it pertains to punitive damages and attorney's fees pursuant to Code of Civil Procedure, section 1021.4, specifically: (1) paragraphs 33, 41, 46, and 65; (2) page 10, lines 5‐7; (3) the prayer on page 17, lines 17‐18; and (4) the prayer on page 17, lines 19‐ 21, with leave to amend. Explan...
2022.08.16 Demurrer 818
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.08.16
Excerpt: ...nt, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Defendant Fresno Unified School District (FUSD) brings this demurrer to the fourth, fifth, sixth and seventh causes of action pursuant to Code of Civil Procedure section 430.10 for failure to state a cause of action against FUSD. The causes of action at issue are intentional torts and include allegations that FUSD ...
2022.08.04 Motion to Deem RFAs Admitted, to Compel Responses, for Monetary Sanctions 707
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.08.04
Excerpt: ...posing Monetary Sanctions 3) by Defendant Paul Speece, M.D., for an Order Compelling Plaintiff Maciej Kopacz, M.D., to Respond to Form Interrogatories, Special Interrogatories, Request for Production, and Request for Nature and Amount of Damages, and Imposing Monetary Sanctions Tentative Ruling: To grant defendant's motion to deem requests for admissions admitted and to award sanctions in the amount of $480 against plaintiff Maciej Kopacz, M.D., ...
2022.07.21 Motion for Preliminary Approval of Class Settlement 418
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.07.21
Excerpt: ...ent also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769(d).) Certification of the Class: The court has already granted certification of the class. Fairness of the Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The court has a fid...
2022.07.21 Demurrer, Motion to Strike Amended Complaint 180
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.07.21
Excerpt: ...21, against James Hinson (“James”) and Does 1‐20. James filed an Answer to the Complaint on March 12, 2021. On November 18, 2021, plaintiff filed an Amendment to the Complaint, substituting Jesse Hinson (“Jesse”) for Doe 1. A party may amend its pleading once without leave of court at any time before an answer or other responsive pleading is filed. (Code Civ. Proc., § 472.) Except where section 472 applies, amendment of any pleading re...
2022.07.20 Motion for Summary Judgment, Adjudication 778
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.07.20
Excerpt: ...al burden of production to make a prima facie showing that no triable issue of material fact exists. Only when the initial burden of production is met, does the burden shift to the responding party to demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850‐51; see also Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.) A defendant moving for summary judgment must ...
2022.07.19 Motion to Compel Arbitration and Stay Action 278
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.07.19
Excerpt: .... Problems with the vehicle ensued, forming the basis of the instant complaint for damages. Plaintiff brought five causes of action against defendant FCA US, LLC (“defendant”) for express and implied violations of warranties afforded through the Song‐Beverly Act. Defendant moves for an order compelling arbitration pursuant to an arbitration clause in a lease agreement made between plaintiff and a dismissed party, Fresno Chrysler Dodge Jeep ...
2022.07.07 Motion to Strike Complaint 757
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.07.07
Excerpt: ...nez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, by demonstrating that the facts underlying plaintiff's complaint fit one of the categories set forth in section 425.16, s...
2022.07.07 Motion for Preliminary Approval of Class Settlement 480
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.07.07
Excerpt: ...ore 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. Westlaw, 2017) Section 7:3: “The parties' representation of an...
2022.07.07 Motion for Leave to File FAC 894
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.07.07
Excerpt: ...f action following defendant's deposition testimony and expert Dunnett's medical analysis. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473, subd. (a)(1).) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, th...
2022.07.06 Motion for Reconsideration 180
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.07.06
Excerpt: ...0602.6.) Any briefing to be submitted by defendant addressing the issues herein must be filed and served no later than Wednesday, July 27, 2022. All papers in response to defendant's briefings must be filed and served no later than Friday, August 5, 2022. Alternatively, the court will take the motion off calendar if defendant pays the initial filing fee of $435 prior to Wednesday, July 27, 2022. Explanation: Plaintiff seeks reconsideration of an ...
2022.06.30 Motion for Preliminary Approval of Class Settlement 418
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.30
Excerpt: ...ttlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769(d).) Certification of the Class: The court has already granted certification of the class. Fairness of the Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The court has ...
2022.06.29 Motion for Judgment on the Pleadings 047
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.29
Excerpt: ...d. (Ibid.) Explanation: Defendants FCA and Selma Chrysler move for judgment on the pleadings as to the sixth cause of action for fraudulent concealment and the seventh cause of action for negligent failure to repair, as well as the punitive damage claim. Their primary contention is that the “economic loss rule” bars plaintiff's tort claims, and therefore plaintiff's fraud and negligence causes of action do not state valid causes of action. Al...
2022.06.29 Demurrer 727
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.29
Excerpt: ...e first, second, third, fifth, sixth and eighth causes of action, with plaintiff Ana Lewis (“Mrs. Lewis”) granted 10 days' leave to file a First Amended Complaint. (Code Civ. Proc., § 4301.10, subd. (e).) All new allegations shall be in boldface type. The time in which the Complaint may be amended will run from service of the order by the clerk. Explanation: In this action plaintiffs sue all involved in a real estate transaction in which Mrs...
2022.06.28 Motion for Evidence Sanctions and Monetary Sanctions for Violation of Prior Discovery Order 517
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.28
Excerpt: ...bject of the court's order dated October 28, 2021. (Code Civ. Proc. § 2031.300, subd. (c).) Monetary sanctions in the amount of $1,282.20 are ordered against defendants, jointly and severally, and payable no later than 20 court days from the date of this Order. Explanation: The Notice of Motion indicates plaintiff is making its motion pursuant to Code of Civil Procedure section 2031.300, subdivision (c), which governs the failure to respond to r...
2022.06.28 Motion for Determination of Good Faith Settlement 238
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.28
Excerpt: ...ion 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‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6, subd. (a)(1), emphasis added.) “The issue of the g...
2022.06.16 Motion to Stay Proceedings 228
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.16
Excerpt: .... (1967) 66 Cal.2d 738, 746.) An order staying discovery until determination of criminal charges allows plaintiff to prepare his or her action “while alleviating [defendant's] difficult choice between defending either the civil or criminal case.” (Pacers, Inc. v. Super. Ct. (1984) 162 Cal.App.3d 686, 690.) An objecting party is generally entitled to a stay of discovery in the civil action until disposition of the criminal matter. (Ibid.) Here...
2022.06.16 Motion to Compel Responses 917
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.16
Excerpt: ... 1‐15, 17 and 19. The court intends to enter defendant Cooper Tire & Rubber Company's (“Cooper Tire”) proposed protective order. Cooper Tire shall submit a proposed order consistent with the court's order and the terms of the proposed stipulated protective order set forth in Exhibit “A” of the Declaration of David T. McCann, within 10 days of the date of this order, and serve further responses in full compliance with Code of Civil Proce...
2022.06.15 Motion for Summary Judgment, Adjudication 478
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.15
Excerpt: ...n their claims for violation of the California Superfund Act (also known as the Carpenter‐Presley‐Tanner Hazardous Substances Account Act or the HSAA), nuisance, trespass and declaratory relief because there is no evidence that Delta or Cordes ever released hazardous substances onto the property when they operated the dry cleaning business there. They note that plaintiffs' discovery responses do not point to any direct evidence showing that d...
2022.06.14 Motion to Reinstate Causes of Action 478
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.14
Excerpt: ...nd 3.1113.) The brief in support of the motion is 46 pages long, which is about three times the page limit for points and authorities briefs. (Cal. Rules of Court, rule 3.1113(d).) Plaintiff's brief also does not contain any cognizable legal argument or citations to authorities that would support his contentions. It is simply a copy of the second amended complaint with random citations to documents and deposition testimony, without any explanatio...
2022.06.14 Motion to Compel Further Responses, Deposition of PMK 880
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.14
Excerpt: ...mpel further responses to the special interrogatories, set one, numbers 14, 42, 43, 45 and 57. To deny the motion to compel further responses to interrogatories numbers 40, 41 and 44. (Code Civ. Proc. § 2030.300.) To grant plaintiff's motion to compel further responses to form interrogatories, set one, number 12.1. (Code Civ. Proc. § 2030.300.) To grant plaintiff's motion to compel further responses to document requests, set one, numbers 1, 3, ...
2022.06.14 Motion to Compel Arbitration and Stay Action 781
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.14
Excerpt: ...omplaint for damages. Plaintiffs brought two causes of action against defendant ‐ for express and implied violations of the SongBeverly Act regarding warranties. Compel Arbitration Defendant moves to compel arbitration on an arbitration clause in a sales contract made between plaintiffs and a non‐party, Selma Honda. A trial court is required to grant a motion to compel arbitration “if it determines that an agreement to arbitrate the controv...
2022.06.14 Motion for Determination of Good Faith Settlement 238
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.14
Excerpt: ...vil 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‐ obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6...
2022.06.09 Demurrer 078
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.09
Excerpt: ...ision is made by the administrator in the probate proceeding to accept or reject plaintiff's creditor claim. Plaintiff is granted 20 days' leave to file a First Amended Complaint. The time to file such pleading will run from service by the clerk of the minute order. All new allegations in a First Amended Complaint are to be set in boldface type. Explanation: Demurrer to the First Cause of Action for Breach of Contract: Defendants Morris S. Srabia...
2022.06.08 Motion to Compel Verified Responses, to Deem RFAs Admitted 458
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.08
Excerpt: ...nting verified responses from defendant RJMS Corporation DBA Toyota Material Handling of Northern California to form interrogatories, sets one and two, special interrogatories, set one, and request for production of documents, set one, moot in light of the service of verifications on May 20, 2022. To deny the motion for an order deeming matters in requests for admission be admitted by defendant RJMS Corporation DBA Toyota Material Handling of Nor...
2022.06.07 Motion for Summary Judgment, Adjudication 478
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.07
Excerpt: ...will be heard on Thursday, June 9, 2022, at 3:30 p.m. in Dept. 501. Explanation: With regard to the first, second, third and fourth causes of action for retaliation, racial discrimination, age discrimination, and national origin discrimination under FEHA, defendant contends that plaintiff has no evidence that he was ever subject to an “adverse employment action”, which is an essential element of his prima facie claims for retaliation and disc...
2022.06.02 Motion to Stay or Dismiss Action 138
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.02
Excerpt: ...ifornia, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens ... , but a motion based on a forum selection clause is a special type of forum non conveniens motion. The factors that apply generally to a forum non conveniens motion do not control in a case involving a mandatory forum selection clause.' When a case involves a mandatory forum selection clause, it will usually be given effect un...
2022.06.02 Motion for Summary Judgment, Adjudication 007
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.02
Excerpt: ...nt Mark Alson, M.D. moves for summary judgment based on the declarations of a medical expert, Fred S. Vernacchia, M.D., who has opined that Dr. Alson's care and treatment of plaintiff did not fall below the standard of care, and that nothing he did or failed to do caused plaintiff any injury. “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledg...
2022.06.02 Motion for Leave to Amend Complaint 627
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.02
Excerpt: ...Athenix Body Sculpting Institute (together “Athenix”), on any cause of action. The time in which the Complaint may be amended will run from service by the clerk of the minute order. Explanation: Plaintiffs seek leave to amend to add claims and prayers for punitive damages against all defendants pursuant to Code of Civil Procedure section 425.13. Plaintiffs' motion must be filed within two years after the original complaint was filed, or nine ...
2022.06.01 Motion to Compel Verified Responses 458
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.06.01
Excerpt: ...inst defendant Christopher Allen Moore and his attorneys, the Law Offices of Lynn M. Yempuku, 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. Defendant Christopher Allen Moore shall serve a verification to the responses already made to plaintiff Victor Moreno's Form Interrogatories, Set One, Special Interrogatories, Set One, and the Request for Produ...
2022.05.26 Motion for Default Judgment 557
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.26
Excerpt: ...m CIV‐100, as well as a supplemental points and authorities. Previously, the court noted, among other issues, that no evidence or argument was given to establish the values sought in general damages; and the calculation for attorney's fees, while supported by factors required by local rules, exceed the allowable amount on a default judgment based on an action on contract's Civil Code section 1717 fees provision (Fresno Super. Ct. Local Rules, A...
2022.05.12 Motion to Seal Filed Docs 728
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.12
Excerpt: ...l based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) Also, the court must make certain express findings in order to seal records. Specifically, the court must find that the facts establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overridin...
2022.05.12 Motion for Preliminary Approval of Class Settlement 418
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.12
Excerpt: ... requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769(d).) Certification of the Class: The court has already granted certification of the class. Fairness of the Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The court has a fiduciary r...
2022.05.11 Motion to Tax Costs 808
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.11
Excerpt: ...n Plaintiff's counsel attributes the untimely opposition to his “clerical error.” Defendants were able to file a reply and do not assert prejudice. Therefore, the opposition was considered in determining this motion. (See Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) Defendants' reply notes that the requested amount is now $9,077.55, and requests that it be taxed and reduced to $4,759.22. Allowable Costs Generally Ite...
2022.05.11 Motion to Compel Deposition 833
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.11
Excerpt: ...rney of record, jointly and severally, payable within 30 days of the date of this order, with the time to run from the service of this minute order by the clerk. The request for an order compelling plaintiff's answers or productions to deposition questions in defendant's reply is not considered. If defendant seeks such relief, defendant must file a motion to compel pursuant to Code of Civil Procedure section 2025.480. In the event of a timely req...
2022.05.11 Application for Writ of Possession 270
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.11
Excerpt: ...oral argument, such argument will be entertained on May 12, 2022, at 3:30 p.m. in Department 501. Explanation: The court shall issue a writ of possession if it finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ have been satisfied. (Code Civ. Proc. §§ 512.040, subd. (b); 515.060, subd. (a)(1).) Among other things, the plaintiff's application must show the basis of the plaintiff's claim, that the p...
2022.05.10 Motion to Strike Complaint 805
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.10
Excerpt: ...nt, such argument will be conducted on May 12, 2022, at 3:30 p.m. in Department 501. Explanation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in...
2022.05.10 Motion for Approval of PAGA Settlement 418
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.10
Excerpt: ...troduction “The superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or stand...
2022.05.05 Motion to Deem RFAs Admitted, for Monetary Sanctions 487
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.05
Excerpt: ...ant, but to require plaintiff to pay $240 for motion fees to the clerk (in addition to the $60 for the motion fees already paid) for the correct total motion fee of $300 (5 motions x $60 each). The additional filing fees must be paid on or before May 25, 2022. Defendant Hart Family Trust is ordered to serve verified responses, without objections, to plaintiff Terry L. Thelen's Form Interrogatories, Set One, Special Interrogatories, Set One, Reque...
2022.05.03 Petition to Compel Arbitration or to Stay Action 397
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.03
Excerpt: ...and Community Regional Anesthesia Medical Group, Inc. (CRAMG). (Code Civ. Proc. § 1281.2.) To stay the civil action on the cross‐claims until the resolution of the arbitration. (Code Civ. Proc. § 1281.4.) If there is a timely request for oral argument, such argument will be conducted on May 4, 2022, at 3:30 p.m. Explanation: Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleg...
2022.05.03 Motion to Compel Further Production of Docs 918
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.03
Excerpt: ...complexes, two limited liability companies and two limited partnerships. On August 2, 2021, plaintiffs filed their first motion to compel further production of financial documents. On October 13, 2021, the court denied the motion without prejudice due to a lack of showing of relevance. Plaintiffs now bring the present second motion to compel further production. Plaintiffs incorrectly conclude this court earlier denied plaintiffs' motion owing to ...
2022.05.03 Demurrer, Motion to Strike 868
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.03
Excerpt: ....10, subd. (e).) To grant, with leave to amend, defendants' motion to strike the prayer for attorney's fees under the tort of another doctrine, on page 11, lines 2‐4. To deny defendants' motion to strike the prayer for attorney's fees qua attorney's fees, on page 10, line 27. To deny defendants' motion to strike the portions of the First Amended Complaint as it pertains to punitive damages, specifically paragraphs 31 and 36, and the prayer on p...
2022.05.03 Demurrer to TAC 607
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.05.03
Excerpt: ...n May 4, 2022, at 3:30 p.m. Explanation: Demurrer A party may file a general demurrer on claims that “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [“‘A demurrer can be utilized where the complaint itself is incomplete ….' [Citations.]”].) Although in ruling on a demurrer the complaint is liberally construed, “[t...
2022.04.21 Motion to Compel Depositions of PMK, PMQ, for Sanctions 708
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.21
Excerpt: ...rth America, Inc.'s person most knowledgeable and custodian of records to attend his or her deposition, and to produce documents pursuant to the demand for production of documents served with the deposition notice. (Code Civ. Proc. § 2025.450.) To deny plaintiffs' request for sanctions against defendant. (Code Civ. Proc. § 2025.450(g)(1).) To deny plaintiff's motion to compel Lithia Nissan of Clovis's person most qualified and Timothy Bowden, T...
2022.04.21 Motion to Compel Arbitration and Stay Proceedings 579
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.21
Excerpt: ...rcement of valid arbitration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) “When presented with a petition to compel arbitration, the initial issue before the court is whether an agreement has been formed.” (Diaz v. Sohnen Enterprises (2019) 34 Cal.App.5th 126, 129.) In addition, arbitration is a “ ‘matter of consent, not coercion,'” and “ ‘a party cannot be required to submit to...
2022.04.20 Motion for Summary Judgment 008
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.20
Excerpt: ...of this order. Explanation: “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents t...
2022.04.19 Motion to Strike Punitive Damages Allegations 370
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.19
Excerpt: ...rder by the clerk. Explanation: Contending that the Complaint alleges insufficient facts to state a claim for punitive damages, defendants move to strike the following from the Complaint: Item 1: Page 3, section 14, paragraph (2), which states: "Plaintiff prays for judgment for costs of suit for such relief as is fair, just and equitable; and for punitive damages." Item 2: Page 5, section Prem.L.‐3., which states: "Count Two – Willful Failure...
2022.04.19 Motion to Compel Responses, for Monetary Sanctions 658
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.19
Excerpt: ...ries, Set One, as to Request Nos. 2.12, 2.13, 4.1, 6.3, 6.4, 6.5, 10.1, 10.3 and 12.1. As to Request No. 17.1, defendant's request to compel plaintiff's supplemental response is denied. To grant defendant's motion to compel plaintiff's supplemental responses to defendant's Request for Admission, Set One, Requests Nos. 1, 2, 12 and 15. Plaintiff shall serve verified supplemental responses in full compliance with Code of Civil Procedure, sections 2...
2022.04.19 Demurrer to FAC 097
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.19
Excerpt: ...gainst a general demurrer a complaint will be liberally construed[…]; that any mere ground of special demurrer for uncertainty will be resolved in support of the complaint and the demurrer overruled, when the necessary facts are shown to exist, although inaccurately or ambiguously stated, or appearing only by necessary implication.” (Hunter v. Freeman (1951) 105 Cal.App.2d 129, 133; see Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App....
2022.04.13 Motion to Disqualify Counsel 148
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2022.04.13
Excerpt: ...duct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ. Proc., § 128, subd. (a)(5).) Substantial Relationship of Representation: Cases disqualifying attorneys for receiving confidential information in the absence of an attorney‐client relationship, as is this case, are generally limited to situations where the information is relev...

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